Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 02/04/2002)

[1] U.S. Court of Appeals, Ninth Circuit

[2] No. 00-55524

[3] 279 F.3d 862, 2002

[4] February 04, 2002

[5] ANGELA BERNHARDT, PLAINTIFF-APPELLANT,
v.
COUNTY OF LOS ANGELES; LLOYD W. PELLMAN, INDIVIDUALLY; LLOYD W. PELLMAN, IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES.

[6] D.C. No. CV-99-10121-JSL Appeal from the United States District Court Central District of California J. Spencer Letts, District Judge, Presiding

[7] Counsel Michael R. Mitchell, Los Angeles, California, for the plaintiff-appellant. Jonathan H. Geller, Senior Deputy County Counsel, Los Angeles, California, for the defendants-appellees.

[8] Before: Robert Boochever, Ferdinand F. Fernandez and Raymond C. Fisher, Circuit Judges.

[9] The opinion of the court was delivered by: Fisher, Circuit Judge

[10] FOR PUBLICATION

[11] Argued and Submitted October 15, 2001--Pasadena, California

[12] OPINION

[13] Appellant Angela Bernhardt's § 1983 lawsuit alleged that the County of Los Angeles settles civil rights actions only on a lump sum basis that includes all attorney fees, and that such a policy interferes with her implicit right under 42 U.S.C. § 1988 to obtain an attorney. The district court dismissed the suit sua sponte, ruling on the basis of Bernhardt's complaint that she lacked standing. We have jurisdiction under 28 U.S.C. § 1291 and we reverse. On de novo review, we hold that Bernhardt's complaint sufficiently established standing. Although Bernhardt's claims for prospective relief are moot, we hold that a live controversy remains because of the possibility that Bernhardt may be awarded actual or nominal damages.

[14] BACKGROUND

[15] A. Evans v. Jeff D.

[16] This action must be viewed in the context of Evans v. Jeff D., 475 U.S. 717 (1986). In Evans, plaintiffs in a class action suit entered into a settlement that included a waiver of statutory attorney fees under 42 U.S.C. § 1988, which permits an award of fees to a prevailing party in a federal civil rights lawsuit.*fn1 Plaintiffs argued that the district court should have rejected the fee waiver as inconsistent with § 1988. They contended the fee waiver was a product of coercion because it exploited the ethical obligation of plaintiffs' counsel to recommend any settlement that was in the best interests of the clients. Id. at 729. Concluding "that it is not necessary to construe the Fees Act [i.e., § 1988 ] as embodying a general rule prohibiting settlements conditioned on the waiver of fees in order to be faithful to the purposes of that Act, " the Court rejected plaintiffs' claims. Id. at 737-38. But the Court suggested that § 1988 might prohibit fee waivers in three specific situations. First, § 1988 might bar a governmental unit from implementing a "statute, policy, or practice" precluding the payment of attorney fees in settlements of civil rights cases. Id. at 739-40. Second, a district court might be required to disapprove a fee waiver that was part of "a vindictive effort to deter attorneys from representing plaintiffs in civil rights suits." Id. at 740. Finally, an action might lie if it were shown that fee waivers have had the effect, "in the aggregate and in the long run," of shrinking "the pool of lawyers willing to represent plaintiffs in such cases," thereby "constricting the effective access to the judicial process for persons with civil rights grievances which the Fees Act was intended to provide." Id. at 741 n.34 (internal quotation marks omitted). Noting that comment on this last issue was "premature," the Court added "that as a practical matter the likelihood of this circumstance arising is remote." Id.

[17] Then, in Willard v. City of Los Angeles, 803 F.2d 526 (9th Cir. 1986), the plaintiffs settled a civil rights action in exchange for a lump sum, which included all attorney fees potentially recoverable under § 1988. Id. at 527. They nonetheless moved for an award of attorney fees, arguing that the settlement was unenforceable. Id. The district court denied the motion. We affirmed, but, following Evans, stated that a settlement waiving fees might be unenforceable if the governmental unit had a "statute, policy, or practice requiring waiver of fees as a condition of settlement or . . . it has vindictively sought to deter attorneys from bringing civil rights suits." Id. at 528.

[18] B. Bernhardt's Complaint.

[19] In this case, Bernhardt sought to pick up where Evans and Willard left off. Bernhardt alleged that the County of Los Angeles and county counsel Lloyd W. Pellman (collectively, "the County") have, since 1978, had a custom, practice and policy to offer or accept settlements in federal civil rights cases only for a "lump sum, including all attorney's fees." Bernhardt alleged that the policy had deprived her of her "implied federal statutory right under 42 U.S.C. Section 1988" to contract with an attorney for representation in exchange for an assignment to the attorney of the right to seek statutory attorney fees. The County's policy, she alleged, violates the Supremacy Clause by implicitly repealing § 1988. See U.S. Const. art. VI, cl. 2. She sought declaratory and injunctive relief, compensatory and punitive damages and attorney fees and costs.

[20] Bernhardt more specifically alleged the County's policy deprived her of the opportunity to obtain a civil rights lawyer to represent her in a separate § 1983 action against County law enforcement officials for use of excessive force ("the underlying action"). Between October 1998 and January 1999, she said, she contacted eight attorneys or law firms to represent her. None of the attorneys took her case, even though some commented positively about the merits of her claims. One of the attorneys allegedly told Bernhardt that it was the County's lump sum settlement policy that precluded him from representing her. Bernhardt ultimately filed the underlying action in pro per, the case was dismissed and Bernhardt appealed. Bernhardt's complaint alleged that she would be able to obtain a lawyer in the appeal of the underlying action if she obtained injunctive or declaratory relief in the instant action. Subsequent to the dismissal of the instant action, we dismissed the appeal in Bernhardt's underlying action. Thus, the underlying action is no longer pending.

[21] C. The District Court's Dismissal.

[22] The district court, looking solely to the allegations in Bernhardt's complaint, sua sponte dismissed Bernhardt's action for lack of standing. First, the court noted that Bernhardt, unlike the Willard plaintiffs, was not a prevailing party in her § 1983 lawsuit and therefore was not entitled under § 1988 to attorney fees that she was forced to waive in settlement. Thus, the district court reasoned, she did not have standing to raise the issue left open by Evans and Willard. Second, the district court further found that Bernhardt's factual allegations inadequately established the Article III standing requirements of injury and causation. The court stated, "allegations that some attorneys refused to represent the plaintiff for various other reasons, and that one attorney told the plaintiff he would not take her case because of the County's alleged `lump sum' settlement policy, do not show that the County's alleged settlement policy prevented the plaintiff from obtaining counsel."*fn2 Finally, the court found Bernhardt's allegations too speculative. It was pure speculation that a settlement would be offered in her case, or that the County would require her to waive fees in the event of settlement.

[23] I.

[24] Standing is a question of law reviewed de novo. S.D. Meyers, Inc. v. City and County of San Francisco, 253 F.3d 461, 474 (9th Cir. 2001).

[25] Because the district court sua sponte dismissed Bernhardt's complaint on its face, we will review her standing as if raised in a motion to dismiss. "When reviewing motions to dismiss, we must `accept all factual allegations of the complaint as true and draw all reasonable inferences in favor of the nonmoving party . . . .' " Western Ctr. for Journalism v. Cederquist, 235 F.3d 1153, 1154 (9th Cir. 2000) (per curiam) (quoting Two-rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)). "For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Graham v. FEMA, 149 F.3d 997, 1001 (9th Cir. 1998) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). "We need not, and do not, speculate as to the plausibility of [plaintiff's ] allegations . . . ." Western Ctr. for Journalism, 235 F.3d at 1154. "[W]e consider only the facts alleged in the complaint and in any documents appended thereto." Id. at 1154 n.1. "A plaintiff needs only to plead general factual allegations of injury in order to survive a motion to dismiss, for `we presume that general allegations embrace those specific facts that are necessary to support the claim.' " LSO, Ltd. v. Stroh, 205 F.3d 1146, 1156 (9th Cir. 2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).

[26] II.

[27] As an initial matter, the County contends there was no subject matter jurisdiction in the district court because Bernhardt's claim was brought under 42 U.S.C. § 1988, which does not provide independent jurisdiction. It is true that " `section 1988 does not by its terms confer subject matter jurisdiction upon federal courts, but rather relies upon the provisions of other federal statutes, such as section 1983 read in conjunction with 28 U.S.C. § 1343 (1988), . . . to confer subject matter jurisdiction.' " Branson v. Nott, 62 F.3d 287, 293 (9th Cir. 1995) (quoting Keene Corp. v. Cass, 908 F.2d 293, 298 (8th Cir. 1990)). But Bernhardt's complaint was brought under 42 U.S.C. § 1983 rather than § 1988. The phrase "42 U.S.C. Section 1983" appears in the caption of the complaint. In addition, the language used in the complaint, stating that Bernhardt has been "deprived, under color of law, of her implied federal statutory right" under § 1988, closely tracks the language of § 1983.*fn3 Thus, the district court had subject matter jurisdiction.*fn4

[28] III.

[29] Bernhardt also raises a preliminary matter. She contends the district court lacked authority to dismiss sua sponte her action for lack of standing. We disagree. "[F]ederal courts are required sua sponte to examine jurisdictional issues such as standing." B.C. v. Plumas Unified Sch. Dist. , 192 F.3d 1260, 1264 (9th Cir. 1999); see also Fed. R. Civ. P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). The district court had both the power and the duty to raise the adequacy of Bernhardt's standing sua sponte.

[30] IV.

[31] We next turn to whether the district court erred in concluding that Bernhardt's complaint failed to establish standing. We examine whether Bernhardt had standing at the time the lawsuit was filed, and separately consider whether her case has become moot. See Friends of the Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc., 528 U.S. 167, 190-91 (2000) (discussing distinction between standing and mootness). For the purposes of the standing inquiry, we assume Bernhardt's appeal in her underlying action is still pending, although we do not do so when addressing mootness.