United States v. 2006-01-10 | 03-56855 | PONY VMITCHELL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 PAULETTE PONY,
Plaintiff-Appellee,
MICHAEL R. MITCHELL,
Intervenor-Appellant,
No. 03-56855 v.
D.C. No. COUNTY OF LOS ANGELES,  CV-02-02222-SJO Defendant-Appellee,
OPINION and
MARC JON WEIGENSBERG; CAROLA
FELBER; QUITZIA GUERRERO, a/k/a
Doe 1,
Defendants. 
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
September 13, 2005—Pasadena, California
Filed January 11, 2006
Before: Jerome Farris, Ferdinand F. Fernandez, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
311

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COUNSEL
Michael R. Mitchell, in pro per, Woodland Hills, California,
for the appellant.
Clayton C. Averbuck, Monroy, Averbuck & Gysler, Westlake
Village, California, and Timothy T. Coates, Greines, Martin,
Stein & Richland, L.L.P., Los Angeles, California, for the
defendant-appellee.
OPINION
BYBEE, Circuit Judge:
The issue before us is whether a plaintiff bringing suit
under 42 U.S.C. § 1983 can assign her right to seek attorney’s
fees to her attorney. We answer that she may not, and we
affirm the judgment of the district court.
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I. FACTS AND PROCEDURAL HISTORY
On March 19, 2002, Wilma Pony, the legal guardian of
Paulette Pony, a minor, filed suit against the County of Los
Angeles (the “County”) and various employees of the Los
Angeles Juvenile Alternative Work Program (“JAWS”) in the
United States District Court for the Central District of Califor-
nia. The complaint alleged that Pony was a victim of various
traditional torts and constitutional violations arising out of
medical procedures she was subjected to by JAWS employees
on April 24, 2001.
On March 4, 2002, Pony entered into a retainer agreement
with attorneys Michael Mitchell and David Margulies. The
agreement contained the following provision:
Client agrees to and hereby does irrevocably
assign and transfer to Attorneys all of Client’s rights
and powers, whether contingent or vested or both,
(a) to waive “prevailing party” status, (b) to waive,
apply for, obtain judgment upon, collect, and/or
receive any statutory attorney’s fee award, and (c) to
make and/or accept a “lump sum, including all attor-
ney’s fees” settlement offer. Client acknowledges
and agrees that the foregoing assignment and trans-
fer may make it more difficult for Client to settle the
case, because Client will not possess the powers or
rights to waive “prevailing party” status or the pow-
ers or rights to waive, apply for, obtain judgment
upon, collect, and/or receive any attorney’s fee
award. Client hereby authorizes and directs the court
to make any such attorney fee award and judgment
thereon in Attorneys’ names only and not in Client’s
name. In the event that a right to apply for statutory
attorney’s fees survives settlement or judgment
respecting Client’s claims, Attorneys will negotiate
and seek agreement from Defendants upon the
amount of statutory attorney’s fees to be paid by
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Defendants; otherwise Attorneys will apply for statu-
tory attorneys fees.
(emphasis in original). The agreement also provided that the
attorneys would receive the greater of one-third of the gross
amount of the award (forty percent if settlement was reached
within sixty days of trial), or statutory attorney’s fees.
Mitchell began representing Pony and continued to do so
through discovery and pre-trial motions. Problems arose dur-
ing the course of settlement negotiations, however. The
County offered to settle Pony’s claim for a “lump sum,
including all attorney’s fees” figure. Mitchell wrote a letter to
the County’s attorneys stating that if the County made a
“lump sum, including all attorney’s fees” offer which was
acceptable to Pony, “it will perforce be in abrogation of my
rights under the retainer agreement and I will be legally and
ethically powerless to resist it.” Citing California Business
and Professions Code Section 6128(b), which makes it a mis-
demeanor for an attorney to “willfully delay[ ] his client’s suit
with a view to his own gain,” Mitchell said that such a settle-
ment offer “will force me to resign as plaintiff’s counsel
because of the conflict it creates.” Mitchell also advised the
County that if such a settlement were reached, he intended to
seek statutory attorney’s fees pursuant to his rights under his
retainer agreement with Pony. He also declared his intent to
pursue other claims, such as a claim for intentional interfer-
ence with contractual relations.1
1Mitchell has waged a long war in his attempts to secure attorney’s fees
in civil rights cases. His insistence on an assignment, via the retainer
agreement, of plaintiff’s statutory rights to pursue attorney’s fees, while
maintaining co-counsel throughout the case, is only his most recent
attempt to do so. See, e.g., Mitchell v. City of Los Angeles, 753 F.2d 86
(9th Cir. 1985) (declining to decide whether an attorney or former attorney
has standing to seek attorney’s fees because Mitchell did not appeal the
district court’s order dismissing the underlying suit); Willard v. City of Los
Angeles, 803 F.2d 526 (9th Cir. 1986) (finding against Mitchell and hold-
ing that, pursuant to Evans v. Jeff D., 475 U.S. 717 (1986), the right to
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Nonetheless, settlement negotiations continued, and a week
later Mitchell signed an attorney substitution making co-
counsel, David Margulies, Pony’s sole counsel of record. The
substitution was filed two weeks later. The day before it was
filed, Pony and the County reached a tentative settlement
agreement whereby Pony received $29,999.99 in exchange
for release of all of her claims against the County and a
waiver of her right to seek attorney’s fees.
The tentative settlement was disrupted by Mitchell, who
reiterated his intentions to pursue statutory attorney’s fees
from the County despite the settlement. Following Mr. Mitch-
ell’s formal request to the court for fees and a June 9, 2003,
hearing on the issue of attorney’s fees, the district court con-
cluded that the case had not yet been settled and scheduled the
case for trial.
Prior to trial, Pony and the County reached a firm settle-
ment, with Pony releasing all of her claims against the County
in exchange for $29,999.99. The settlement was inclusive of
all attorney’s fees, “notwithstanding any statutory or contrac-
tual rights which plaintiff’s present or former counsel may
have or have had and notwithstanding any language in the
retainer agreement between plaintiff and her present or former
counsel.” As part of the settlement, however, Pony and Mar-
attorney’s fees resides in the client, so that an attorney or former attorney
does not have standing to sue for fees); Venegas v. Skaggs, 867 F.2d 527
(9th Cir. 1989) (asserting validity of contingency fees in excess of statu-
tory fees), aff’d sub nom. Venegas v. Mitchell, 495 U.S. 82 (1990); Darby
v. City of Torrance, 810 F. Supp. 271 (C.D. Cal. 1992) (refusing to allow
a transfer from plaintiff to Mitchell of his right to collect attorney’s fees),
rev’d on other grounds, 1995 U.S. App. LEXIS 1171 (9th Cir. 1995)
(unpublished memorandum opinion); Darby v. City of Torrance, 810 F.
Supp. 275 (C.D. Cal. 1992) (refusing to allow Mitchell to withdraw in
order to pursue statutory fees under his retainer agreement with Darby);
Mitchell v. County of Los Angeles, 211 F.3d 1274 (9th Cir. 2000) (unpub-
lished memorandum opinion) (ruling Mitchell lacked standing to chal-
lenge the constitutionality of County’s settlement policy).
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gulies had to agree to indemnify the County against any fees
or costs sought by Mitchell. The court dismissed Pony’s suit
on account of settlement on July 16, 2003.
In response to the dismissal, Mitchell filed two motions: a
Motion for Relief from Order, alleging that the court’s dis-
missal of the suit was by mistake or inadvertence, and a
motion for attorney’s fees. The district court ruled that Mitch-
ell lacked standing, and denied both motions. He now appeals.
II. ANALYSIS
A. Mitchell’s Standing to Seek Attorney’s Fees2
[1] Successful plaintiffs in civil rights suits may seek attor-
ney’s fees from the losing defendant. Under 42 U.S.C.
§ 1988(b), “[i]n any action or proceeding to enforce a provi-
sion 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 . . . .”
[2] The Supreme Court has held that Section 1988 vests the
right to seek attorney’s fees in the prevailing party, not her
attorney, and that attorneys therefore lack standing to pursue
them. Evans v. Jeff D., 475 U.S. 717, 730-32 (1986); see also
Venegas v. Mitchell, 495 U.S. 82, 88 (1990); Churchill Vill.,
L.L.C. v. Gen. Elec., 361 F.3d 566, 579 (9th Cir. 2004);
United States ex rel. Virani v. Jerry M. Lewis Truck Parts &
Equip., Inc., 89 F.3d 574, 577 (9th Cir. 1996); Willard v. City
of Los Angeles, 803 F.2d 526, 527 (9th Cir. 1986). Once the
prevailing party exercises her right to receive fees, the attor-
ney’s right to collect them vests, and he may then pursue them
on his own. Virani, 89 F.3d at 578. Unless and until the party
exercises this power, however, the attorney has no right to
collect fees from the non-prevailing party, and the non-
2We review a district court’s determination of standing de novo. Beck
v. Pace Int’l Union, 427 F.3d 668, 678-79 (9th Cir. 2005).
318 PONY v. COUNTY OF LOS ANGELES

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prevailing party has no duty to pay them. Id. A prevailing
party may waive her statutory eligibility for attorney’s fees as
a condition of settlement. Evans, 475 U.S. at 737-38 (con-
cluding that 42 U.S.C. § 1988 does not create a general rule
prohibiting settlements conditioned on the waiver of fees).
[3] In this case, Pony, the prevailing party, did not exercise
her rights to pursue attorney’s fees. To the contrary, she
waived them as a condition of settlement with the County.
Accordingly, under the Court’s ruling in Evans and our ruling
in Virani, Mitchell has no standing to pursue attorney’s fees
merely as a result of his position as Pony’s former attorney.
[4] Mitchell argues that he need not rely on his status as
Pony’s former attorney. He contends that he has standing
under his retainer agreement with Pony, whereby she assigned
her rights to apply for attorney’s fees to him. If the assign-
ment is valid, Mitchell argues, he stands in her shoes and may
assert her rights to statutory attorney’s fees as if she had
asserted them herself. However, Pony’s putative assignment
to Mitchell is invalid because the right to seek attorney’s fees
under 42 U.S.C. § 1988 is a substantive cause of action which
cannot be transferred contractually.
Section 1988 establishes a prevailing plaintiff’s right to
seek attorney’s fees, but it provides no direct guidance on
whether plaintiffs have the ability to transfer this right. Sec-
tion 1988 also provides that courts should resolve ambiguities
in the federal civil rights laws by looking to the common law,
as modified by the laws of the state in which they sit. 42
U.S.C. § 1988(a) (2000) (“[I]n all cases where [federal laws]
are not adapted to [protecting and vindicating civil rights], or
are deficient in the[ir] provisions [to do so], the common law,
as modified and changed by the constitution and statutes of
the State wherein the court [sits shall govern] . . . , so far as
[it] is not inconsistent with the Constitution and laws of the
United States . . . .”); Chardon v. Fumero Soto, 462 U.S. 650,
655-56 (1983); see also Town of Newton v. Rumery, 480 U.S.
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386, 392 (1987) (“We resolve [a question regarding 42 U.S.C.
§ 1983] by reference to traditional common-law principles, as
we have resolved other questions about the principles govern-
ing § 1983 actions.”); Wilson v. Garcia, 471 U.S. 261, 266-67
(1985), superseded by statute, Judicial Improvements Act of
1990, Pub. L. No. 101-650, Title III, § 313(a), 104 Stat. 5114,
as recognized in Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 379-80 (2004). We must therefore turn to California
state law for guidance.
[5] The Supreme Court has construed claims brought under
Section 1983 as tort claims for personal injury. City of Monte-
rey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709
(1999) (“[T]here can be no doubt that claims brought pursuant
to § 1983 sound in tort.”); Heck v. Humphrey, 512 U.S. 477,
483 (1994); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.
299, 305 (1986) (“We have repeatedly noted that 42 U.S.C.
§ 1983 creates a species of tort liability . . . .” (quotations
omitted) (footnote omitted)); Wilson, 471 U.S. at 276-77. The
right to apply for fees under Section 1988 is only granted to
a prevailing party, and is therefore fundamentally derivative
of the underlying substantive claim itself. Thus, California
tort law is the appropriate source from which to obtain the
rules of decision for the instant case. Cf. Heck, 512 U.S. at
483; Memphis Cmty. Sch. Dist., 477 U.S. at 305-06; Wilson,
471 U.S. at 266-67.
[6] The right to sue in tort for personal injury is non-
assignable under California law. Pac. Gas & Elec. Co. v.
Nakano, 87 P.2d 700, 701 (Cal. 1939) (“It is well settled in
this jurisdiction that a purely tort claim is not assignable.”);
Curtis v. Kellogg & Andelson, 86 Cal. Rptr. 2d 536, 545 (Ct.
App. 1999) (stating that causes of action “which arise from a
wrong done to the person” are non-assignable under Califor-
nia law); Hartford Accident & Indem. Co. v. Gropman, 209
Cal. Rptr. 468, 471 (Ct. App. 1984) (“[I]t is well established
in California that an assignment of a cause of action for per-
sonal injuries is void . . . .”) (citing Lee v. State Farm Mut.
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Auto. Ins. Co., 129 Cal. Rptr. 271, 275 (Ct. App. 1976));
Block v. Cal. Physicians’ Serv., 53 Cal. Rptr. 51, 53 (Ct. App.
1966) (“[I]t is the established rule in California that an assign-
ment of a cause of action for personal injuries is void . . . .”).
Just as plaintiff cannot assign her Section 1983 action, she
cannot assign an action, such as Section 1988, that is deriva-
tive of it. Cf. Erickson v. R.E.M. Concepts, Inc., 25 Cal. Rptr.
3d 39, 49-50 (Ct. App. 2005) (allowing the assignment of the
right to collect attorney’s fees on actions under a contract
when made with the assignment of other contractual rights,
which are freely assignable under California law); Cal.
Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc.,
117 Cal. Rptr. 2d 390, 396-97 (Ct. App. 2002) (same).
Accordingly, plaintiff’s right to seek statutory attorney’s fees
is not transferrable in California, and the retainer agreement’s
provisions to the contrary are void as a matter of law.
This application of California tort law is consistent with the
purpose of the federal civil rights statutes. See Felder v.
Casey, 487 U.S. 131, 139 (1988) (“Any assessment of the
applicability of a state law to federal civil rights litigation,
therefore, must be made in light of the purpose and nature of
the federal right.”). Preventing civil rights plaintiffs from con-
tractually transferring their rights to attorney’s fees furthers
both the federal policy of protecting civil rights and the fed-
eral policy of encouraging settlement. See Evans, 475 U.S. at
732 (“[W]e believe that a general proscription against negoti-
ated waiver of attorney’s fees in exchange for a settlement on
the merits would itself impede vindication of civil rights, at
least in some cases, by reducing the attractiveness of settle-
ment.”); Marek v. Chesny, 473 U.S. 1, 10 (1985) (“There is
no evidence . . . that Congress, in considering § 1988, had any
thought that civil rights claims were to be on any different
footing from other civil claims insofar as settlement is con-
cerned.”).
Mitchell’s strongest argument in favor of upholding the
transfer under the retainer agreement comes from dicta in
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Venegas v. Mitchell, 495 U.S. 82 (1990). In that case, the
Court addressed the issue of whether statutory attorney’s fees
operated as an upper bound on the compensation attorneys
could receive from civil rights plaintiffs. The Court concluded
that the statute did not impose a ceiling on compensation, and
that parties could contract for contingency fees or hourly rates
in excess of the statutory level. Id. at 90. Mitchell relies on the
Court’s statement that:
[I]t is the party’s entitlement to receive the fees in
the appropriate case . . . [and] it is the party’s right
to waive, settle, or negotiate that eligibility. . . .
. . . If § 1983 plaintiffs may waive their causes of
action entirely, there is little reason to believe that
they may not assign part of their recovery to an attor-
ney if they believe that the contingency arrangement
will increase their likelihood of recovery. A contrary
decision would place § 1983 plaintiffs in the peculiar
position of being freer to negotiate with their adver-
saries than with their own attorneys.
Id. at 88.
While at first glance, this may seem like a solid foundation
for Mitchell to rely on, it does not withstand careful scrutiny.
In Venegas, the Court was writing in the context of contin-
gency fees and was referring to a plaintiff’s ability to assign
a portion of her recovery, not her substantive causes of action.
Generally, a party may freely assign the proceeds of his judg-
ment or the value of his recovery. This is true under federal,
California, and common law. See, e.g., id. at 87 (“We have
never held that § 1988 constrains the freedom of the civil
rights plaintiff to become contractually and personally bound
to pay an attorney a percentage of the recovery, if any . . . .”)
(emphasis added); CAL. BUS. & PROF. CODE § 6147 (West
2000). This is also consistent with current Section 1988 juris-
prudence, which holds that an attorney is free to collect statu-
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tory attorney’s fees once a client has exercised his rights by
demanding them, but not before. Evans, 475 U.S. at 730-31;
Virani, 89 F.3d at 578. Thus, while a plaintiff can transfer the
right to collect attorney’s fees, she may not transfer the right
to seek or waive them.
[7] In summary, Mitchell’s argument falls beyond the
scope of the Supreme Court’s holding in Venegas, and repre-
sents an extension that is unsupported by the Court’s logic
and analysis. Accordingly, the assignments to Mitchell under
the retainer agreement are invalid as a matter of law. Without
his contractual rights, Mitchell lacks standing to bring a claim
for attorney’s fees. See Evans, 475 U.S. at 730-32.3
B. Supremacy Clause Challenge to the County’s Settlement
Policy
Mitchell also asserts that the County has a “custom, policy,
or practice of settling civil rights cases only on a ‘lump sum,
including all attorney’s fees basis.’ ” He further asserts that
this practice contradicts federal policy and congressional
intent to provide attorney’s fees for civil rights victims, as
manifested in 42 U.S.C. § 1988, and that the County’s con-
duct therefore violates the Supremacy Clause of the United
States Constitution. See U.S. CONST. art. VI, cl. 2. The County
denies having such a policy, and maintains that its actions are
consistent with the Constitution. The County further argues
that Mitchell lacks standing to challenge the settlement on this
basis; Mitchell counters by alleging that he has both direct
and third-party standing. We do not reach the substantive
merits of Mitchell’s claim, as we find that Mitchell lacks
3In light of our disposition on standing, we do not reach the County’s
alternative argument that the retainer agreement’s transfer provisions are
void because acquiring Pony’s right to seek attorney’s fees would violate
Mitchell’s duty of loyalty to his client.
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standing to challenge the County’s policy under the Suprem-
acy Clause.4
[8] Mitchell does not have standing to challenge the legal-
ity of the County’s action merely by virtue of being a voter
or a taxpayer. To satisfy this Court’s jurisdictional standing
requirement, a plaintiff “must allege a distinct and palpable
injury to himself, even if it is an injury shared by a large class
of other possible litigants.” Warth v. Seldin, 422 U.S. 490,
501 (1975); see also Allen v. Wright, 468 U.S. 737, 754
(1984) (“This Court has repeatedly held that an asserted right
to have the Government act in accordance with law is not suf-
ficient, standing alone, to confer jurisdiction on a federal
court.”). In order to have direct standing under Article III, a
plaintiff must demonstrate that:
(1) [he] has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or immi-
nent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
4We note that we have never held that a policy of only settling Section
1983 actions on a lump sum basis, including all attorney’s fees, would vio-
late the Supremacy Clause, although we have previously alluded to this
possibility. See Bernhardt v. Los Angeles County, 339 F.3d 920, 926 (9th
Cir. 2002) (“Although at this stage of the remand proceedings Bernhardt’s
case still remains sketchy, she has shown enough to establish that her
[challenge based on the Supremacy Clause] presents serious questions
about the nature and effect of the County’s settlement policy.”); id. at 926
n.5 (“As in our earlier opinion, we do not now resolve the question of
whether Bernhardt properly states a claim pursuant to § 1983 or otherwise
states a claim upon which relief can be granted.”) (internal quotations
omitted); see also Evans, 475 U.S. at 737-40. Bernhardt’s analysis of the
merits of such a claim remains dicta—as would any analysis we might
make here.
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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). We find that
Mitchell is unable to satisfy the first two of these elements.
[9] As we have discussed above, the right to seek attorney’s
fees under 42 U.S.C. § 1988 belongs to clients, not to attor-
neys. Evans, 475 U.S. at 730-32. Therefore, the County’s pol-
icy of settling claims only on a “lump sum, including all
attorney’s fees” basis has not directly deprived Mitchell of
any right. Cf. Bernhardt v. County of Los Angeles, 279 F.3d
862, 871 (9th Cir. 2002) (holding that civil rights plaintiff
who was unable to retain counsel because of the County’s
policy does have standing to sue). Mitchell must therefore
argue that he has suffered a monetary injury, in that he would
have received greater fees in this case than he actually did if
the County had not had such a policy.
[10] Such a claim is inherently “conjectural or hypotheti-
cal.” In the absence of its policy, the County might have
refused to settle Pony’s civil rights case at all. This seems par-
ticularly likely given that the ultimate settlement amount,
$29,999.99, is less than the attorney’s fees Mitchell seeks
(over $50,000); moreover, Mitchell was not Pony’s only attor-
ney and he terminated his representation of her before the set-
tlement was reached. It is therefore entirely possible that the
case would have gone to trial. Had the County prevailed at
trial, Mitchell, under his contingency fee arrangement with
Pony, would not have received any compensation at all. But
even if the County were willing to settle Pony’s case without
forcing her to waive her right to seek attorney’s fees, Pony,
as a prevailing party, would still be free to use waiver as a
bargaining chip in order to increase the amount that the
County would pay her in the settlement. Evans, 475 U.S. at
731 n.20. In such a scenario, one would expect Mitchell’s
compensation to mirror that which he has received under the
County’s policy. Mitchell’s monetary injuries are therefore
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speculative, at best, and he is unable to satisfy Article III’s
“injury in fact” requirement.
[11] This same line of logic demonstrates that Mitchell has
also failed to satisfy the second requirement for Article III
standing. For much the same reasons that it is uncertain
whether Mitchell was injured by the County’s policy, it is also
unclear whether his injury, if any, is fairly traceable to the
County’s actions. Without its policy, the County might have
insisted on taking the case to trial; if the County had won at
trial, Mitchell would have received nothing. Even if the
County had been willing to settle with Pony while permitting
her to retain her right to seek attorney’s fees, she still would
have had the right to bargain away that right in exchange for
a larger settlement, and there is every reason to believe that
she would have done so. Therefore, even if Mitchell has suf-
fered an injury, he would have suffered the same injury in the
absence of the County’s policy; his injury, if any, thus cannot
fairly be traced to the County’s actions.
[12] Generally, a plaintiff may only bring a claim on his
own behalf, and may not raise claims based on the rights of
another party. See Allen, 468 U.S. at 751 (“Standing doctrine
embraces several judicially self-imposed limits on the exer-
cise of federal jurisdiction, such as the general prohibition on
a litigant’s raising another person’s legal rights . . . .”). How-
ever, “[v]endors and those in like positions have been uni-
formly permitted to resist efforts at restricting their operations
by acting as advocates of the rights of third parties who seek
access to their market or function.” Craig v. Boren, 429 U.S.
190, 195 (1976) (holding that a vendor of alcoholic beverages
had standing to bring an equal protection challenge to a law
setting a different drinking age for males and females on
behalf of her would-be customers); see also U.S. Dep’t of
Labor v. Triplett, 494 U.S. 715, 720-21 (1990) (holding that
an attorney who had allegedly collected illegal fees under the
Black Lung Benefits Act had standing to raise black lung ben-
efit claimants’ due process right to legal representation);
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Caplin & Drysdale, Chartered v. United States, 491 U.S. 617,
623-24 (1989) (holding that law firm had third-party standing
to challenge a drug forfeiture statute on behalf of Sixth
Amendment rights of an existing client where forfeited assets
were needed to pay attorney’s fees); Barrows v. Jackson, 346
U.S. 249, 254-58 (1953) (holding, in a suit to enforce a
racially restrictive land covenant, that white sellers of land
have standing to litigate the constitutional rights of potential
black purchasers). But see Conn v. Gabbert, 526 U.S. 286,
292-93 (1999) (holding that attorney did not have standing to
assert his client’s alleged right as a grand jury witness to have
counsel present outside the jury room). Mitchell attempts to
fit this case into the holdings of this line of cases by arguing
that, as Pony’s attorney, he has third-party standing to chal-
lenge the County’s settlement policy on her behalf.
[13] However, this case differs from all of these other cases
in one fundamental way: It is clear in this case that Pony, the
holder of the rights at issue, does not wish to assert them. As
a condition of settlement, she indemnified the County against
any attorney’s fees that it must pay to Mitchell. Consequently,
the claim that Mitchell is asserting is directly against Pony’s
interests. Cf. Elk Grove Unified Sch. Dist. v. Newdow, 542
U.S. 1, 15-18 (2004) (holding that a noncustodial parent did
not have standing to assert the constitutional claims of his
daughter when the parent with exclusive legal custody
objected on the grounds that litigation was not in the child’s
best interest); Craig, 429 U.S. at 192 (noting that the vendor
challenging the constitutionality of the statute on the grounds
that it violated the equal protection rights of certain clients
had such a client as co-plaintiff); Triplett, 494 U.S. 715 (chal-
lenging lawyer had contracted to provide claimants with rep-
resentation in exchange for 25% contingency fee); Caplin &
Drysdale, Chartered, 491 U.S. 617, 621 (challenging law
firm’s compensation would have been paid from client’s for-
feited assets); Barrows, 346 U.S. 249 (challenging sellers
sought to sell to non-Caucasian buyers who were disadvan-
taged by covenant).
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[14] A litigant is granted third-party standing because the
tribunal recognizes that her interests are aligned with those of
the party whose rights are at issue and that the litigant has a
sufficiently close connection to that party to assert claims on
that party’s behalf. See Coal. of Clergy, Lawyers, & Profes-
sors v. Bush, 310 F.3d 1153, 1166 n.1 (9th Cir. 2002) (Ber-
zon, J., concurring) (“[T]hird-party standing recognizes a
wide range of relationships in which the third-parties’ inter-
ests are sufficiently aligned with the interests of the rights-
holder that standing is appropriate.”); Gulf Island-IV, Inc. v.
Blue Streak-Gulf Is Ops, 24 F.3d 743, 747 (5th Cir. 1994);
Harris v. Evans, 20 F.3d 1118, 1124-25 (11th Cir. 1994) (en
banc) (“Courts have repeatedly emphasized that the key to
third-party standing analysis is whether the interests of the lit-
igant and the third party are properly aligned . . . .”); Canfield
Aviation, Inc. v. Nat’l Transp. Safety Bd., 854 F.2d 745, 748
(5th Cir. 1988); cf. Newdow, 542 U.S. at 15; Craig, 429 U.S.
at 195. To find that Mitchell has standing in this case to assert
a claim based on Pony’s rights—a claim that she does not
wish to bring and one that is directly adverse to her interests
—would not only be contrary to established Supreme Court
case law, but would contravene the policies and rationale on
which the doctrine of third-party standing is based. See New-
dow, 542 U.S. at 15. Accordingly, we agree with the decision
of the district court and hold that Mitchell does not have third-
party standing to challenge the County’s settlement policy.
III. CONCLUSION
We hold that the provisions of the retainer agreement con-
veying Pony’s right to seek or waive attorney’s fees to Mitch-
ell are void under California law. We reach this conclusion
because Section 1983 sounds in tort and California law pro-
hibits a plaintiff from transferring her substantive tort claims.
We also find that Mitchell lacks standing to raise a constitu-
tional challenge to the County’s settlement policy. We there-
fore dismiss Mitchell’s claims and affirm the judgment of the
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district court.
AFFIRMED.
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