654 F.3d 950
9th Cir.2011Background
- Rickley sued the County of Los Angeles under §1983 for allegedly retaliatory actions related to her complaints about building/land-use violations by neighbors.
- Roit, Rickley’s spouse and co-owner of the Malibu property, was the primary conduit for many County complaints and contributed to the lawsuit as counsel for Rickley’s interests.
- The district court denied Roit’s request for attorney’s fees under §1988, citing Kay v. Ehrler and Ford v. Long Beach Unified SD.
- The Ninth Circuit held Kay and Ford do not categorically bar awards of attorney’s fees to attorney-spouses and that the court must consider the category-specific framework, not a blanket rule.
- The panel vacated the denial of Roit’s fees and remanded for a determination of a reasonable fee, with costs awarded to Rickley; the decision was affirmed in part, vacated in part, and remanded.
- The district court had not yet ruled on whether Roit’s hours and rates are reasonable or whether Rickley’s limited success should reduce Roit’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1988 permits fees for services by an attorney-spouse | Rickley argues Roit may recover under §1988. | County argues Kay/Ford prohibit such fees. | Yes; not categorically barred; Roit may recover. |
| Whether Kay and Ford extend to attorney-spouses under §1988 | Rickley relies on Kay/Ford precedent. | County advocates a categorical ban via Kay/Ford. | Not extended categorically; framework focused on categories, not individuals. |
| Whether the district court erred in applying Kay’s framework to Roit | District court erred by treating Roit as unindependent. | County argues independence/detachment is required for fee awards. | Error; a categorical approach was improper. |
| Whether the case should be remanded for fee determination | Remand for reasonable fee calculation appropriate. | Same; preserve issues on appeal. | Remand for determination of a reasonable fee warranted. |
Key Cases Cited
- Kay v. Ehrler, 499 U.S. 432 (Sup. Ct. 1991) (pro se attorney-plaintiffs excluded under §1988 to encourage independent counsel)
- Ford v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006) (IDEA context; special role of parents; categorical bar not extended to attorney-parents under IDEA)
- Elwood v. Drescher, 456 F.3d 943 (9th Cir. 2006) (extends Kay to pro se attorney-defendants; categorical framework)
- Weissburg v. Lancaster School District, 591 F.3d 1255 (9th Cir. 2010) (awards fees to attorney-grandmother under IDEA; rejects broad extension of Kay)
- Mahtesian v. Snow, 2004 WL 2889922 (N.D. Cal. 2004) (district court noted lack of authority extending Kay to attorney-spouses (WL cites omitted in official reporter))
- Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir. 1999) (per curiam; fee-shifting context cited in discussion)
- Woodside v. School District of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001) (UBE-like discussion cited in Ford’s framework)