Scott Teutscher v. Riverside Sheriffs Assn

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT TEUTSCHER, an individual, No. 13-56411
Plaintiff - Appellee, D.C. No. 5:06-cv-01208-RHW-OP
and
MEMORANDUM *
RIVERSIDE SHERIFFS’ ASSOCIATION,
Defendant - Appellee,
and
RIVERSIDE SHERIFFS’ ASSOCIATION
LEGAL DEFENSE TRUST; et al.,
Defendants,
v.
WILLIAM NATHANIEL WOODSON, III,
Intervenor - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
SCOTT TEUTSCHER, an individual, No. 13-56659
Plaintiff - Appellee, D.C. No. 5:06-cv-01208-RHW-OP
v.
RIVERSIDE SHERIFFS’ ASSOCIATION,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted January 5, 2016
Pasadena, California
Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.
Intervenor-Appellant William N. Woodson, III, appeals from the district
court’s order denying his motion for leave to intervene to seek a fee award directly
from Defendant, Riverside Sheriffs’ Association (“RSA”). We address the district
court’s judgment in favor of Plaintiff Scott Teutscher against RSA in a
concurrently filed opinion. We now affirm the district court’s denial of
Woodson’s motion. 1
1
Per Woodson’s unopposed request, this court takes judicial notice of two
unpublished orders on statutory attorney’s fees under California law in a different
action, Alvarado v. Fed. Express Corp., No. C04-0098 (N.D. Cal. June 5, 2008),
and Alvarado v. Fed. Express Corp., No. C04-0098 (N.D. Cal. Jan. 9, 2009), and
this court’s unpublished memorandum disposition affirming the district court’s
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Woodson represented Teutscher in an employment dispute with RSA from
2005 until February 2013, when Woodson filed an ex parte application to withdraw
as counsel of record. The district court granted Woodson’s motion over
objections by RSA and Teutscher, and Teutscher obtained new counsel who
successfully represented him through trial on his wrongful and retaliatory
discharge claims under state law and his retaliatory discharge claim under section
510 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1140. After Teutscher declined to seek attorney’s fees and costs for
Woodson’s work on the case under section 502(g)(1) of ERISA, 29 U.S.C.
§ 1132(g)(1), Woodson sought to intervene in order to seek fees from RSA on his
own behalf. Because we agree with the district court that a fee award under
ERISA’s discretionary fee-shifting provision belongs to the client rather than to his
attorney, we affirm.
It is well-settled that a federal fee-shifting statute that bestows a
discretionary fee award on a “party” vests the right to attorney’s fees solely in that
party, not in the party’s attorney. See, e.g., Astrue v. Ratliff, 560 U.S. 586, 591-98
judgment denying counsel standing to seek fees in that case, Alvarado v. Fed.
Express Corp., Nos. 09-15415, 09-15417 (9th Cir. May 26, 2011).
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(2010) (holding that the prevailing litigant, rather than her lawyer, is entitled to
fees under the fee-shifting provision of the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d)(1)(A)); Venegas v. Mitchell, 495 U.S. 82, 89 (1990) (“[W]e have already
rejected the argument that the entitlement to a § 1988 award belongs to the
attorney rather than the plaintiff.”); Evans v. Jeff D., 475 U.S. 717, 730 (1986)
(holding that “the language of [42 U.S.C. § 1988], as well as its legislative history,
indicates that Congress bestowed on the ‘prevailing party’ (generally plaintiffs) a
statutory eligibility for a discretionary award of attorney’s fees in specified civil
rights actions” (footnote omitted)); Image Tech. Serv., Inc. v. Eastman Kodak Co.,
136 F.3d 1354, 1357 (9th Cir. 1998) (“Any fee award in an antitrust case goes to
the successful plaintiff, not to plaintiff’s counsel.”). ERISA is such a statute. See
29 U.S.C. § 1132(g)(1) (providing that “the court in its discretion may allow a
reasonable attorney’s fee and costs of action to either party”) (emphasis added).
We have also held that “[u]nless the statute specifies payment to the litigant’s
attorney, payment to the attorney is not assumed.” United States v. Kim, 806 F.3d
1161, 1173 (9th Cir. 2015) (quoting United States v. $186,416.00, 642 F.3d 753,
756 (9th Cir. 2011)). Woodson fails to point to any language in ERISA giving a
party’s attorney the power to demand fees for himself from the opposing side, and
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we have identified none.
Woodson advances several arguments in an attempt to overcome these
settled principles, none of which are availing. First, his reliance on the California
Supreme Court decision in Flannery v. Prentice, 28 P.3d 860 (Cal. 2001), is
misplaced because, as the district court recognized, it was a state court decision
interpreting a state statute. Indeed, Flannery acknowledged that it was parting
ways with federal cases that “have recognized the right of the client, rather than the
attorney, to seek, recover, or waive statutory fees.” Id. at 864. Woodson also
relies on our decision in United States ex rel. Virani v. Jerry M. Lewis Truck Parts
& Equip., Inc., 89 F.3d 574 (9th Cir. 1996), abrogation recognized by United
States v. Kim, 806 F.3d 1161, 1174 (9th Cir. 2015), in which we held that once a
fee application is made, the “client himself is not entitled to keep the fees which
are measured by and paid on account of the attorneys’ services.” Id. at 577. But
Virani itself recognized that only the plaintiff “has the power to demand that the
defendant pay the fees of the plaintiff’s attorney,” id. at 578, and, regardless, the
part of its holding on which Woodson relies has since been abrogated, see Kim,
806 F.3d at 1174 (recognizing that “Ratliff abrogated Virani”).
Finally, Woodson relies on our decision in Venegas v. Skaggs, 867 F.2d 527
5
(9th Cir. 1989), aff’d sub nom. Venegas v. Mitchell, 490 U.S. 82 (1990), to argue
that the court erred in denying him permissive intervention. This reliance is
misplaced, because in Venegas we permitted an attorney to intervene solely to
impose a lien on his client’s judgment pursuant to a contingent-fee contract with
his client, not to collect fees directly from the opposing side. Our holding here
does not prevent Woodson from similarly attempting to collect his fees directly
from Teutscher. See Venegas v. Mitchell, 495 U.S. at 90 (explaining that a federal
fee-shifting statute “controls what the losing defendant must pay, not what the
prevailing plaintiff must pay his lawyer”).
Because Woodson had no right to seek attorney’s fees from RSA, and
because that was the sole ground on which he sought to intervene, the district court
properly denied his motion. See Willard v. City of Los Angeles, 803 F.2d 526, 527
(9th Cir. 1986).
AFFIRMED.
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