United States v. 2011-10-04 | 09-56498 | REBECCA RICKLEY V. COUNTY OF LOS ANGELES | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 REBECCA A. RICKLEY, No. 09-56498
Plaintiff-Appellant, D.C. No.
v. 2:08-cv-04918-
SVW-AGRCOUNTY OF LOS ANGELES; WILLIAM
HOWARD; KEVIN PETROWSKY; ORDER
SOHEILA KALHOR; MICHAEL TRIPP; AMENDING
RAJESH PATEL, OPINION AND
 Defendants-Appellees. DENYING
PETITION FOR
PANEL
REHEARING AND
REHEARING EN
BANC AND
AMENDED
OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
February 10, 2011—Pasadena, California
Filed August 19, 2011
Amended October 4, 2011
18691

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Before: Michael Daly Hawkins and Raymond C. Fisher,
Circuit Judges, and Mark L. Wolf, District Judge.*
Opinion by Judge Fisher
*The Honorable Mark L. Wolf, Chief United States District Judge for
the District of Massachusetts, sitting by designation.
18692 RICKLEY v. COUNTY OF LOS ANGELES

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COUNSEL
Natasha Roit (argued), Malibu, California; Christopher L.
Campbell, Los Angeles, California, for the appellant.
18694 RICKLEY v. COUNTY OF LOS ANGELES

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Andrea Sheridan Ordin, County Counsel, and Casey C.
Yourn, Deputy County Counsel, Office of County Counsel,
Los Angeles, California; Deborah J. Fox (argued) and Philip
A. Seymour, Meyers, Nave, Riback, Silver & Wilson, Los
Angeles, California, for the appellees.
ORDER
The opinion filed August 19, 2011, slip op. 11191, and
appearing at 2011 WL 3632788 (9th Cir. 2011), is amended
as follows:
At slip op. 11205, 2011 WL 3632788, at *6, delete
The County did not raise in the district court (and
does not raise on appeal) an argument that Rickley
should not recover attorney’s fees for Roit’s services
because “special circumstances exist sufficient to
render an award unjust.” Mendez v. Cnty. of San Ber-
nardino, 540 F.3d 1109, 1126 (9th Cir. 2008) (quot-
ing Thomas, 410 F.3d at 648) (internal quotation
marks omitted). Having failed to raise this issue in
the district court, the County has forfeited it. See
Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 636 F.3d
1115, 1122 (9th Cir. 2011) (explaining that issues
not raised before the district court are generally for-
feited). The issue is not preserved for remand.
and replace it with
The County does not raise on appeal its argument
that Rickley should not recover attorney’s fees for
Roit’s services because “special circumstances exist
sufficient to render an award unjust.” Mendez v.
Cnty. of San Bernardino, 540 F.3d 1109, 1126 (9th
Cir. 2008) (quoting Thomas, 410 F.3d at 648) (inter-
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nal quotation marks omitted). The issue is therefore
not preserved for remand.
With this amendment, the panel has voted to deny Appel-
lees’ petition for panel rehearing. Judge Fisher has voted to
deny the petition for rehearing en banc, and Judges Hawkins
and Wolf so recommend.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
Appellees’ petition for panel rehearing and the petition for
rehearing en banc, filed September 2, 2011, are DENIED.
No further petitions for rehearing will be entertained.
OPINION
FISHER, Circuit Judge:
Pursuant to 42 U.S.C. § 1988, we hold that a successful
civil rights plaintiff may recover a reasonable attorney’s fee
for legal services performed by her attorney-spouse.
BACKGROUND1
Rebecca Rickley filed this federal civil rights action against
the County of Los Angeles and individual County employees
(collectively, the “County”), alleging violations of her consti-
tutional rights to free speech and equal protection. She alleged
that the County harassed her in retaliation for her complaints
about the County’s failure to enforce building and safety
codes against her Malibu neighbors.
1The facts are derived from the district court’s fee order and the parties’
summary judgment briefs.
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Rickley and Natasha Roit are legally married and co-own
property in Malibu where they both reside. Their home, as
well as their neighbors’ homes, are located in an area prone
to landslides. Since at least 2001, Rickley and Roit have been
complaining to the County regarding two of their neighbors’
illegal construction and land use. Frustrated by the County’s
failure to stop the violations, Rickley and Roit, as co-
plaintiffs, brought a civil action against their neighbors. After
that civil action, which resulted in a permanent injunction
against the neighbors, Rickley and Roit continued to complain
to the County about their neighbors’ building code violations,
and the County continued to fail to act. A majority of the
complaints to the County were lodged by Roit, although Rick-
ley says that Roit made the complaints in her capacity as
Rickley’s attorney.
Rickley, as sole plaintiff, then filed this 42 U.S.C. § 1983
action against the County, alleging the County took actions
against her and Roit in retaliation for her complaints. Rickley
and the County eventually reached a settlement that reserved
the determination of attorney’s fees and costs to the district
court. As the prevailing party, Rickley filed a motion to
recover $145,930 in attorney’s fees under the Civil Rights
Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988,
including $124,510 for the legal work performed by lead
attorney Roit and $21,420 for work performed by co-counsel
Christopher L. Campbell. The district court granted Rickley’s
request for attorney’s fees for Campbell in the amount of
$13,770, but denied the request with respect to Roit.
In denying fees for Roit’s legal services, the district court
relied on Kay v. Ehrler, 499 U.S. 432 (1991), and Ford v.
Long Beach Unified School District, 461 F.3d 1087 (9th Cir.
2006). In Kay, the Supreme Court held that § 1988 does not
permit an award of attorney’s fees to attorney-plaintiffs who
represent themselves in successful civil rights actions. See
Kay, 499 U.S. at 437-38. In Ford, we extended Kay and held
that the Individuals with Disabilities Education Act (IDEA)
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does not permit an award of attorney’s fees to attorney-
parents who represent their children in proceedings under the
IDEA. See Ford, 461 F.3d at 1090-91. We said that permit-
ting fees to be awarded for legal services rendered by
attorney-parents would undermine the primary purpose of the
IDEA’s fee-shifting provision, which is to encourage parents
“to seek independent, emotionally detached counsel for their
children’s IDEA actions.” Id. at 1091 (quoting Woodside v.
Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 131 (3d Cir.
2001)) (internal quotation marks omitted). From Kay and
Ford, the district court derived a general principle that attor-
ney’s fees may not be awarded under § 1988 other than for
legal services performed by an “independent, emotionally
detached counsel.”
The court concluded that Roit, as Rickley’s spouse and as
the co-owner of the property subject to the litigation, could
not satisfy this standard. The court noted that, although Rick-
ley is the named plaintiff in the action, a majority of the com-
plaints to the County were submitted by Roit. The court also
noted that all of the County’s alleged retaliatory actions were
directed at Rickley and Roit jointly, and that Roit stood to
gain in equal measure with Rickley from any benefits
obtained through the litigation. The court accordingly con-
cluded, under Kay and Ford, that Rickley was barred from
recovering fees for Roit’s legal work, explaining: “as the
Ninth Circuit found that a parent-attorney cannot receive
attorneys’ fees under IDEA when she is representing her child
because the parent lacks independence, the Court finds that in
the current situation, Roit cannot receive attorney’s fees
because she is not an ‘independent emotionally detached coun-
sel.’ ”2 Rickley timely appealed.
2The court also noted that Roit was a percipient witness to events giving
rise to the lawsuit, creating the potential for a conflict of interest if Roit,
as counsel, was called to testify at trial. The court raised this concern at
a preliminary hearing, prompting the parties to enter into a stipulation
wherein Roit agreed not to testify and to waive whatever rights she might
have as a plaintiff or co-plaintiff and, in exchange, the County waived any
right it might have to seek Roit’s disqualification as trial counsel.
18698 RICKLEY v. COUNTY OF LOS ANGELES

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STANDARD OF REVIEW
“Awards of attorney’s fees are generally reviewed for an
abuse of discretion.” Thomas v. City of Tacoma, 410 F.3d
644, 647 (9th Cir. 2005). “However, we only arrive at discre-
tionary review if we are satisfied that the correct legal stan-
dard was applied and that none of the district court’s findings
of fact were clearly erroneous.” Id. We review questions of
law de novo. See id.
DISCUSSION
The sole issue on appeal is whether the district court prop-
erly denied Rickley an award of attorney’s fees for Roit’s
legal services. We hold that the district court erred.
I.
Section 1988 provides that, “[i]n any action or proceeding
to enforce a provision of [42 U.S.C. § 1983], the court, in its
discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). Here,
relying on Kay and Ford, the district court construed § 1988
as precluding an award of attorney’s fees for services per-
formed by an attorney lacking independence and emotional
detachment, ruling that “Roit cannot receive attorney’s fees
because she is not an ‘independent emotionally detached
counsel.’ ” The court misconstrued the applicable precedents.
[1] In Kay, 499 U.S. at 437-38, the Supreme Court held
that § 1988 does not permit awards of attorney’s fees to pro
se plaintiffs who, being attorneys, represent themselves in
successful civil rights actions. The Court identified § 1988’s
“overriding statutory concern” as “the interest in obtaining
independent counsel for victims of civil rights violations.” Id.
at 437. The Court described the object of the statute as “ensur-
ing the effective prosecution of meritorious claims,” id., and
held that awarding attorney’s fees to pro se attorney-plaintiffs
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would undermine that purpose by creating a disincentive for
plaintiffs to retain independent — and hence effective —
counsel:
Even a skilled lawyer who represents himself is at
a disadvantage in contested litigation. Ethical con-
siderations may make it inappropriate for him to
appear as a witness. He is deprived of the judgment
of an independent third party in framing the theory
of the case, evaluating alternative methods of pre-
senting the evidence, cross-examining hostile wit-
nesses, formulating legal arguments, and in making
sure that reason, rather than emotion, dictates the
proper tactical response to unforeseen developments
in the courtroom. The adage that “a lawyer who rep-
resents himself has a fool for a client” is the product
of years of experience by seasoned litigators.
A rule that authorizes awards of counsel fees to
pro se litigants — even if limited to those who are
members of the bar — would create a disincentive to
employ counsel whenever such a plaintiff considered
himself competent to litigate on his own behalf. The
statutory policy of furthering the successful prosecu-
tion of meritorious claims is better served by a rule
that creates an incentive to retain counsel in every
such case.
Id. at 437-38 (footnote omitted). The Court accordingly
adopted a per se rule, categorically precluding an award of
attorney’s fees under § 1988 to a pro se attorney-plaintiff.
[2] In Ford, 461 F.3d at 1090-91, we held that parents per-
forming legal services for their children are not entitled to
attorney’s fees under the IDEA.3 We reasoned that, “[l]ike an
3The IDEA contains a fee-shifting provision similar to § 1988. The cur-
rent version, which is materially indistinguishable from the version in
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attorney appearing pro se, a disabled child represented by his
or her parent does not benefit from the judgment of an inde-
pendent third party.” Id. at 1091. Quoting the Third Circuit’s
decision in Woodside v. School District of Philadelphia Board
of Education, 248 F.3d 129, 131 (3d Cir. 2001), and the
Fourth Circuit’s decision in Doe v. Board of Education, 165
F.3d 260, 263 (4th Cir. 1998), we observed that “emotionally
charged parent[s] . . . are generally incapable of exercising
sufficient independent judgment on behalf of their children to
ensure that reason, rather than emotion, will dictate the con-
duct of the litigation.” Ford, 461 F.3d at 1091 (citations and
internal quotation marks omitted). We recognized that, “on
some occasions, attorney-parents will provide independent,
reasoned representation to their children.” Id. But we con-
cluded that a per se bar on recovery of fees — “which pre-
sumes irrefutably that parents and guardians are always
unable to provide independent, dispassionate legal advice —
w[ould] better serve Congress’ intentions.” Id. Echoing Kay,
we held that “[t]he statutory policy of furthering successful
prosecution of meritorious claims is better served by a rule
that creates an incentive to retain [independent] counsel in
every case.” Id. (alteration in original) (quoting Kay, 499 U.S.
at 438) (internal quotation marks omitted). We therefore held
that the IDEA precludes an award of attorney’s fees to
attorney-parents representing their children.
In addition to Ford, we have applied Kay on two other
occasions. In Elwood v. Drescher, 456 F.3d 943, 946-48 (9th
Cir. 2006), we adopted a per se rule precluding an award of
attorney’s fees under § 1988 to pro se attorney-defendants.
We decided that certain of the policies underlying Kay
applied not only to plaintiffs who successfully represent them-
selves in civil rights actions, but also to defendants who do so.
effect at the time we decided Ford, provides that, “[i]n any action or pro-
ceeding brought under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs . . . to a prevailing party who
is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)
(2006). See Ford, 461 F.3d at 1090 n.5.
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In Weissburg v. Lancaster School District, 591 F.3d 1255,
1260 (9th Cir. 2010), which we decided after the district
court’s decision here, we declined to extend Kay and Ford “to
a grandparent who provides legal representation to his or her
grandchild in proceedings brought under the IDEA.” We rea-
soned that, “[u]nlike parents, who have a special role under
the IDEA as the enforcers of their children’s education rights,
other relatives are not so uniquely invested in IDEA proceed-
ings.” Id. (footnote omitted). We therefore held that the plain-
tiffs, who were the parents of a child with special education
needs, were eligible to receive an award of attorney’s fees for
the legal representation provided by the child’s attorney-
grandmother in IDEA proceedings. See id. at 1261.
[3] The district court misconstrued these precedents as pre-
cluding an award of attorney’s fees to Rickley because Roit
“is not an independent emotionally detached counsel.” First,
neither § 1988 nor the IDEA imposes a general rule requiring
counsel to be independent and emotionally detached. Neither
the Supreme Court nor this court has ever adopted such a rule.
Nor could such a rule be harmonized with Weissburg, where
we awarded attorney’s fees for legal services performed by an
attorney-grandmother notwithstanding the grandmother’s
obvious emotional attachment to her grandson.
[4] Second, the district court misapplied the framework
established in Kay by conducting an individualized rather than
a categorical inquiry. Kay, Ford, Elwood and Weissburg did
not ask whether a particular attorney was sufficiently inde-
pendent or emotionally detached to provide effective repre-
sentation. Rather, each of these cases addressed whether a
category of lawyers should be excluded from § 1988 or the
IDEA because that class of attorneys as a whole should be
presumed to lack independence or detachment. See Kay, 499
U.S. at 437 (holding that the category of pro se attorney-
plaintiffs are excluded from recovery under § 1988); Ford,
461 F.3d at 1091 (extending Kay to the category of attorney-
parents under the IDEA); Elwood, 456 F.3d at 948 (extending
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Kay to the category of pro se attorney-defendants); Weiss-
burg, 591 F.3d at 1260-61 (declining to extend Kay to the cat-
egory of nonparent relatives under the IDEA). By abandoning
this categorical framework in favor of a specific inquiry into
whether Roit in particular was sufficiently independent and
emotionally detached to render effective representation, the
district court misapplied Kay. The district court’s denial of
fees for Roit’s services therefore rests on legal error.
II.
The County acknowledges that the district court did not
apply Kay’s categorical framework, but urges us to do so on
appeal, contending that we should extend Kay and hold that
successful civil rights plaintiffs are categorically barred from
recovering attorney’s fees under § 1988 for legal services per-
formed by their attorney-spouses. We do not find the argu-
ment persuasive.
[5] Married couples have strong emotional bonds with one
another. The County is therefore certainly correct that there
exists some risk that an attorney who represents her spouse in
a civil rights action may allow emotion to cloud her indepen-
dent legal judgment. But we see no reason to presume that
attorney-spouses are, as a general proposition, “unable to pro-
vide independent, dispassionate legal advice.” Ford, 461 F.3d
at 1091. There is therefore no basis for a bright-line prohibi-
tion on awarding fees to successful civil rights plaintiffs who
are represented by their attorney-spouses.
[6] Ford, upon which the County heavily relies, is distin-
guishable. As we explained in Weissburg, the rule we adopted
in Ford was justified not only by the close relationship
between a parent and a child, but also by the “special role”
parents play under the IDEA’s statutory framework. Weiss-
burg, 591 F.3d at 1260. The IDEA designates parents as “en-
forcers of their children’s education rights,” making them
“uniquely invested in IDEA proceedings.” Id. (citing Schaffer
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ex rel. Schaffer v. Weast, 546 U.S. 49, 53-54 (2005) (describ-
ing the significant statutory role parents serve in making edu-
cational decisions under the IDEA)).4 Spouses serve no
comparable function in federal civil rights actions. They have
no “special role” under § 1983. Nor are they designated by
any statute to “enforce” their spouses’ federal civil rights.
And they are not, by statutory design, “uniquely invested” in
their spouses’ § 1983 proceedings.
[7] The courts to have addressed this question, though few
in number, have uniformly held that Kay should not be
extended to attorney-spouses. In Mahtesian v. Snow, Nos. 03-
5372MMC & 04-1306MMC, 2004 WL 2889922 (N.D. Cal.
Dec. 14, 2004), the court properly noted the absence of any
authority “in which the reasoning in Kay has been extended
to cases in which the client and the attorney are spouses or,
for that matter, adults in any type of familial relationship.” Id.
at *4. The court also reasoned that, “[u]nlike the situation
presented in the attorney-parent cases, an adult client can be
presumed to . . . have made an informed choice as to whether
his spouse can fairly represent his interests.” Id. The court
accordingly declined to extend Kay to attorney’s fees sought
under § 1988 for legal services provided to a successful civil
rights plaintiff by the plaintiff’s attorney-spouse. See id.; see
also Bennett v. Smith, No. 96 C 2422, 2002 WL 169323, at
*2 (N.D. Ill. Feb. 1, 2002) (concluding that Kay does not pro-
hibit awarding attorney’s fees to an attorney-spouse under
Title VII of the Civil Rights Act of 1964). We find these deci-
sions persuasive.
[8] Extending Kay to attorney-spouses would not further
the overall purposes of § 1988. There are times when an
4Parents’ special role under the IDEA carries over to that statute’s attor-
ney’s fee provision, which makes parents the direct beneficiaries of fee
awards. See 20 U.S.C. § 1415(i)(3)(B)(i) (providing for an “award [of]
reasonable attorneys’ fees . . . to a prevailing party who is the parent of
a child with a disability” (emphasis added)).
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attorney-spouse may be the only attorney, or the best attorney,
available to the plaintiff. Were fees categorically barred in
such cases, a meritorious claim might not be brought at all, or
it might be brought with counsel who is, though more “inde-
pendent” than the plaintiff’s spouse, less effective. We do not
believe that § 1988 mandates those results, or that such results
could be harmonized with the purpose of § 1988 “to ensure
‘effective access to the judicial process’ for persons with civil
rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429
(1983) (quoting H.R. Rep. No. 94-1558, p. 1 (1976)). We see
no reason to presume that plaintiffs who are represented by
their attorney-spouses will be “deprived of the judgment of an
independent third party.” Kay, 499 U.S. at 437. To the con-
trary, civil rights plaintiffs can be presumed to make “in-
formed choice[s] as to whether [their] spouse[s] can fairly
represent [their] interests.” Mahtesian, 2004 WL 2889922, at
*4.
For these reasons, we hold that a plaintiff who is repre-
sented by her attorney-spouse in a successful civil rights
action may be awarded “a reasonable attorney’s fee as part of
the costs” under § 1988.5
III.
[9] The district court suggested that fees might be denied
for another reason — because Rickley and Roit may have
acted strategically “in naming Rickley as the plaintiff and
Roit as the attorney.” The district court appears to have disap-
proved of this strategy, noting that “[b]y only naming Rickley
as the plaintiff, the couple can protect their constitutional
5Because we agree with Rickley that § 1988 does not preclude an award
of attorney’s fees for legal services performed by an attorney-spouse, we
need not address Rickley’s argument that, by virtue of the Defense of
Marriage Act (DOMA), Pub. L. No. 104-199, § 3(a), 110 Stat. 2419
(1996), 1 U.S.C. § 7, she and Roit are not “spouses” for purposes of
§ 1988.
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rights and their property rights, as well as receive attorney’s
fees for doing so.” The County urges us to affirm on this
basis, describing the “contrived proxy arrangement attempted
by Roit and Rickley here” as an improper attempt “to avoid
the ban on attorneys’ fees for self-representation announced
in Kay.” County’s Answering Brief 24.6
[10] We do not agree with the County’s assessment. Even
assuming that Rickley and Roit acted “strategically” in the
manner suggested by the district court, there would have been
nothing improper in doing so. It is not an end-run around Kay
for a plaintiff to recover both damages for her injuries and
attorney’s fees for her attorney’s legal services. See Thomas
v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005) (“To
require Defendants to pay reasonable attorney’s fees relevant
to the prosecution of the successful claim does not create a
windfall, but fulfills the Congressional purpose of
§ 1988(b).”). In any event, it is far from clear that Rickley
would have been precluded from obtaining attorney’s fees had
Roit been joined as a plaintiff. See Schneider v. Colegio de
Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir. 1999)
(per curiam) (holding that an attorney-plaintiff was properly
awarded attorney’s fees under § 1988 when he represented
another plaintiff in addition to himself). We therefore decline
to affirm the district court’s decision on the ground that Rick-
ley and Roit could have structured their attorney-client rela-
tionship differently.
IV.
The County does not raise on appeal its argument that
Rickley should not recover attorney’s fees for Roit’s services
because “special circumstances exist sufficient to render an
award unjust.” Mendez v. Cnty. of San Bernardino, 540 F.3d
6In support of this argument, the County cites an unpublished, 2006
decision of this court. The County’s citation is improper under Ninth Cir-
cuit Rule 36-3(c).
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1109, 1126 (9th Cir. 2008) (quoting Thomas, 410 F.3d at 648)
(internal quotation marks omitted). The issue is therefore not
preserved for remand.
V.
For the foregoing reasons, we hold that the district court
erred by denying Rickley an award of attorney’s fees for
Roit’s legal services. It remains for the district court to deter-
mine a reasonable fee. In the district court, the County argued
that Roit’s hours and hourly rates were excessive and that
Roit’s fees should be reduced based on Rickley’s limited suc-
cess. The district court has not yet addressed those arguments
and they are preserved for purposes of remand. We express no
opinion on their merits.
CONCLUSION
We vacate the portion of the district court’s fee order deny-
ing Rickley an award of attorney’s fees for Roit’s services.
The case is remanded for determination of a reasonable attor-
ney’s fee.
AFFIRMED IN PART, VACATED IN PART and
REMANDED.
Costs of appeal are awarded to appellant.
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