RIZO v. LYNCH
United States Court of Appeals, Ninth Circuit
810 F.3d 688
2. Due Process
Rizo contends his initial removal proceeding violated his right to due process because the IJ “exceeded his bounds as a neutral arbiter and usurped the role of opposing counsel” in aggressively questioning both Rizo and Rizo‘s witness while testifying. The BIA rejected Rizo‘s claim.
We will reverse the BIA‘s decision on due process grounds only if the underlying IJ proceeding was “so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986). Importantly, a mere showing that the IJ was unfriendly, confrontational, or acted in an adversarial manner is not enough to meet this burden. See, e.g., Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003); Perez-Lastor v. INS, 208 F.3d 773, 782 n. 9 (9th Cir. 2000); see also
Rizo‘s due process rights were not violated by the IJ. While the record indicates that the IJ conducted Rizo‘s removal hearing in an aggressive manner, the IJ did not deny him a fair hearing. Rizo was permitted to testify on his own behalf, was permitted to present the testimony of an additional witness (the only other witness he proffered), and was permitted to submit additional documentary evidence. Furthermore, Rizo‘s counsel never suggested—either in his brief before the BIA, or at the IJ hearing itself—that the IJ had obstructed counsel‘s ability to represent his client. Rizo was able to reasonably present his case. We therefore affirm the BIA‘s dismissal of Rizo‘s due process claim.
CONCLUSION
We hold that Pinto v. Holder remains good law after our decision in Abdisalan v. Holder, and that Rizo was therefore subject to a final order of removal when the BIA remanded his case to the IJ for proceedings related solely to voluntary departure. Rizo‘s due process rights were not violated by the IJ during the removal hearing. Rizo‘s remaining asylum claim fails for non-exhaustion. Rizo‘s petition for review is denied.
PETITION DENIED.
Steve KLEIN; Howard Putnam; Glen Biondi, Plaintiffs-Appellants, v. CITY OF LAGUNA BEACH, Defendant-Appellee.
No. 13-56973.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 10, 2015. Filed Jan. 14, 2016.
Philip D. Kohn, Michelle D. Molko (argued), Rutan & Tucker, LLP, Costa Mesa, CA, for Defendant-Appellee.
Before: RONALD M. GOULD and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY,* District Judge.
OPINION
GOULD, Circuit Judge:
Steve Klein filed this
We affirm the district court‘s order denying fees under California law. Under federal law, we hold that because Klein‘s lawsuit achieved its future-oriented goals and Klein never attempted to secure compensatory damages under
I
In 2008, Laguna Beach Municipal Code section 5.40.010 prohibited people from using “any radio loudspeaker or sound amplifier in such a manner as to cause any sound to be projected outside ... without having first procured a permit from the city manager so to do [sic].” Section 5.40.020 stated that a permit “shall be granted at the will of the city manager,” although the Code gave no standards for exercising his discretion. At the same time, Laguna Beach had another Code provision, section 7.25.120, on amplified speech that required speakers to secure a permit from the Chief of Police, who was directed to “consider the constitutional right of free speech of all persons” along with factors ranging from “the volume of traffic” to “the threat of the overthrow of the lawfully established government.” The Code also prohibited use of amplifying devices within 100 yards of hospitals, churches, schools, and City Hall. Section 7.25.120 was intended to repeal other inconsistent Code provisions, which would include sections 5.40.010-020.
On November 11, 2008, Steve Klein sent a letter to the city manager applying for a sound amplification permit under section 5.40.010 to conduct religious “youth outreach” on public sidewalks around Laguna Beach High School. The city manager rejected the request, explaining that his “longstanding and consistently followed policy and practice has been not to issue amplified sound permits.” Klein filed a complaint on December 3, 2008, seeking declaratory and injunctive relief under the U.S. and California Constitutions and the California Bane Act,
Klein amended his complaint to incorporate new factual developments and direct his constitutional challenge to § 7.25.120. On December 15, 2008, Klein wrote anoth
On June 16, 2009, the City replaced the temporary ordinance with a permanent ordinance that limited the application of the 100-yard ban at City Hall and the high school to times when “such facilities are in use or operation, and for a period of thirty minutes both before and after such use and operation.” The City kept the general 5 p.m. to 9 a.m. ban citywide. This new ordinance continued to preclude Klein‘s request to use amplifying devices downtown after 5 p.m., at City Hall between 5-6 p.m., and at the school between 3:35-4:05 p.m.
Klein filed a motion for a preliminary injunction on August 3, 2009, which the district court denied, concluding that the ordinance was “a content neutral, reasonable restriction on time, place and manner of speech.” We reversed on appeal, holding that Laguna Beach presented insufficient evidence that the ordinance was narrowly tailored to the City‘s interests. Klein v. City of Laguna Beach, 381 Fed. Appx. 723, 726-27 (9th Cir. 2010) (Klein I). We also concluded that the remaining preliminary injunction factors favored Klein given the “fundamental interest in the protection of all people‘s constitutional rights” and that the City had other ordinances “prohibiting excessive and disruptive sound.” Id. at 727.
Our decision issued on June 4, 2010. On October 5, 2010, the City amended section 7.25.120 to remove the 100-yard restriction around schools and City Hall and to increase the time amplified speech was allowed from 9 a.m.—5 p.m. to 9 a.m.—9 p.m. The parties then filed cross-motions for summary judgment, with Klein seeking an award of nominal damages and attorneys’ fees. The district court granted Klein‘s motion in part, entering judgment in favor of Klein on his nominal damages claims that the repealed permitting scheme was an unconstitutional prior restraint and that the City‘s restriction of Klein‘s speech in the downtown business district violated the First Amendment. Klein received $1 damages for each of those claims. The court also granted the City‘s motion in part, concluding that Laguna Beach did not violate Klein‘s rights by restricting his speech outside the high school and outside City Hall. The court then entered judgment in favor of the City on Klein‘s remaining claims for nominal damages, his California Bane Act claim, and his claims for declaratory and injunctive relief for federal and state constitutional violations. The judgment stated that “Plaintiffs shall recover their costs, including reasonable attorneys’ fees pursuant to motion for the two claims on which they prevailed.”
Klein again appealed. We affirmed the district court as to the high school and downtown business district, but we reversed with respect to Klein‘s proposed speech near City Hall, holding that Klein was entitled to summary judgment on that claim as well. Klein v. City of Laguna Beach, 533 Fed. Appx. 772, 774-75 (9th Cir. 2013) (Klein II). Klein therefore won nominal damages on three of his four as-applied challenges under federal law.
Klein then filed a motion for attorneys’ fees. The district court denied the
II
We review de novo whether the district court applied the correct legal standard in determining entitlement to attorneys’ fees. Labotest, Inc. v. Bonta, 297 F.3d 892, 894 (9th Cir. 2002).
III
Once a party is found eligible for fees, the district court must then determine what fees are reasonable. Hensley, 461 U.S. at 433. District courts generally start by applying the “lodestar method,” i.e., multiplying “the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (quoting Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006)). The district court “may then adjust [the lodestar] upward or downward based on” twelve factors identified in Hensley. Id. (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008)); see Hensley, 461 U.S. at 430 n. 3.5
Because “‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained,‘”
In this case, the district court concluded that because Klein received only nominal damages, the Farrar exception applied, and the court balanced the O‘Connor factors and determined that Klein was not entitled to fees. Klein argues that the district court erred by applying Farrar. In Klein‘s view, “The Farrar special circumstances exception is limited to cases where civil rights plaintiffs seek compensatory damages but obtain only nominal damages, not to cases where plaintiffs seek only nominal damages” like this one. Instead, Klein argues that he was entitled to receive attorneys’ fees under the standard procedure, i.e., beginning with the lodestar and then considering the twelve Hensley/Kerr factors. We agree.
While we have not addressed this precise issue, we stated in Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995), that ”Farrar‘s holding is limited to cases in which the plaintiff seeks substantial monetary damages but obtains only a nominal award.” Id. at 753. We held that Farrar did not apply in that case because the plaintiffs had obtained some of the injunctive relief they sought via a settlement agreement. Id. This reading of Farrar was appropriate because Congress has “emphasized the importance of attorneys’ fees in cases seeking injunctive relief, where there is no monetary light at the end of the litigation tunnel.” Moreno, 534 F.3d at 1111 n. 1. The same logic applies here. Without a request for compensatory damages, Klein had no chance of receiving a significant monetary payout, and his suit was not one in which “recovery of private damages is the purpose of ... civil rights litigation.” Farrar, 506 U.S. at 114 (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring in the judgment)). Instead, Klein‘s primary goal has always been to legalize amplified speech in Laguna Beach. While Laguna Beach argues that Klein did not seek “elimination of the challenged regulation” because he never brought a facial challenge, the City is mistaken; the complaint alleges, “On its face, and as applied, the ordinances violate the First Amendment to the United States Constitution” and Article I, section 2 of the California Constitution.
Laguna Beach also argues that Klein sought $72,000 in compensatory damages under the California Bane Act, and judgment was entered against him on the merits of that claim. This argument is unpersuasive. First, Klein sought only $4,000 under the statute as nominal damages, not compensatory damages—unlike federal law, the statute guarantees a minimum of $4,000 regardless of actual damages.
The district court reasoned that Farrar should be applied because there was no principled basis to treat differently a plaintiff who does not seek compensatory damages because he cannot prove actual injury from a plaintiff who seeks compensatory damages and fails to prove actual injury____ Thus, although Mr. Klein‘s decision to not pursue in court what he cannot prove is laudable, his failure to recover some significant amount of damages or other meaningful relief counsels against an award of fees. The district court‘s reasoning does not persuade us because it obscures the rationale behind Farrar‘s narrow exception. Farrar emphasized the importance of considering “the amount of damages awarded as compared to the amount sought.” Farrar, 506 U.S. at 114 (quoting Riverside, 477 U.S. at 585 (emphasis added)). This comparative analysis matters because, as discussed above, “‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.‘” Id. (quoting Hensley, 461 U.S. at 436). The Supreme Court in Farrar concluded that because Farrar sought $17 million and was awarded only $1, he essentially lost—his victory was only “technical.” Id. We drew the same conclusion in Romberg v. Nichols, 48 F.3d 453 (9th Cir. 1995), where the plaintiffs sought $2 million and received only $1. “As in Farrar,” we stated, “the Rombergs requested a substantial sum, but received only one dollar each; although they prevailed, the Rombergs did not succeed.” Id. at 455 (emphasis added). This makes good sense. A plaintiff who “asked for a bundle and got a pittance” has not achieved success in that he did not reach the goal sought. Farrar, 506 U.S. at 120 (O‘Connor, J., concurring).
In this case, however, when one compares the relief Klein sought with the results he achieved, it is clear that he succeeded. Klein‘s suit was forward-looking, and he gained the relief that he primarily sought when the challenged law was amended to expand the permissible use of amplification devices. As we stated in a previous appeal of this matter, “the City voluntarily repealed all challenged portions of the sound ordinance as a result of this lawsuit.” Klein II, 533 Fed. Appx. at 775.6
The Fifth Circuit has also recently held that Farrar does not apply in this type of situation. See Sanchez v. City of Austin, 774 F.3d 873 (5th Cir. 2014). In that case, the district court granted the plaintiffs’ request for an injunction but denied all other requested relief, including nominal damages. Id. at 877. The City of Austin argued that “Appellants’ injury and victory merely were technical or de minimis and thus justify a wholesale denial of fees,” citing Farrar for support. Id. at 882. The Fifth Circuit rejected this argument and read Farrar narrowly to apply only when the plaintiff “seeks compensatory damages but receives no more than nominal damages.” Id. at 883 (quoting Farrar, 506 U.S. at 115). The court explained, “Unlike Farrar, Appellants’ primary goal in this litigation was to force the City to stop issuing CTNs [criminal-tres
As in Sanchez, Klein‘s primary goal was to change the City‘s policy, not to secure compensatory damages. Although Klein did not receive a permanent injunction and declaratory relief, the district court appears to have denied such relief only because the City voluntarily eliminated the policies about which Klein complained. It is more accurate to think of Klein‘s request for an injunction as being mooted when the City changed the law to accommodate Klein‘s planned conduct, rather than denied on its merits. Klein achieved the outcome he sought when he filed this lawsuit,7 and Farrar “does not control” in these circumstances. Id.8 We vacate the district court order and remand for the district court to analyze Klein‘s entitlement to attorneys’ fees under the procedures specified by the Supreme Court in Hensley. See Gonzalez, 729 F.3d at 1202.
IV
Klein also argues that he was entitled to attorneys’ fees under California law, including an enhancement multiplier.
Klein argues that because he pled a California state law claim, he is entitled to fees under the California statute even though he lost on the claim. But federal courts apply state law for attorneys’ fees to state claims because of the Erie9 doctrine, see id., and Erie does not compel
Klein cites Jones v. City of L.A., 2011 U.S. Dist. LEXIS 68416 (C.D. Cal. 2011), for the proposition that attorneys’ fees under California law are proper when the party pleads both state and federal claims and prevails on federal law even when he “did not pursue the state claim in summary judgment.” Id. at *4. But the plaintiff in Jones never lost on the state claims—the parties reached a settlement, and the court reasoned that “[t]he settlement agreement provides for almost all the relief which the plaintiffs sought, and the plaintiffs’ complaint included a state law claim.” Id. Jones does not stand for the proposition that a party gets fees under California law when it wins a federal claim but loses its state claim on the merits. We affirm the district court‘s denial of fees under California law.10
AFFIRMED in part, VACATED in part, and REMANDED.