Defendant's Attorney: Dennis I. Wilenchik and John D. Wilenchik, Phoenix, Arizona, for Movant-Appellant.
Description: Plaintiffs obtained an injunction against Defendant in an
action under 42 U.S.C. § 1983. Melendres v. Arpaio, 784 F.3d
1254, 1267 (9th Cir. 2015). Sheridan, a now-retired employee
of Defendant, appealed from the district court’s finding that
he committed civil contempt by disobeying the injunction.
ORTEGA MELENDRES 4 V. SHERIDAN
After Sheridan filed his opening brief, we granted Plaintiffs’
motion to dismiss Sheridan’s appeal for lack of standing.
Plaintiffs now seek attorney’s fees under 42 U.S.C. § 1988(b)
for services performed in connection with the appeal. We
grant the award in part.
Plaintiffs are “prevailing part[ies]” within the meaning of
section 1988 in every sense. 42 U.S.C. § 1988(b). They
succeeded in obtaining an injunction in the district court and
succeeded in dismissing Sheridan’s appeal from its finding of
contempt for violating the injunction. That we dismissed
Sheridan’s appeal for lack of standing rather than on the
merits does not, as Sheridan contends, divest Plaintiffs of
prevailing party status. See Sotomura v. Cty. of Hawaii,
679 F.2d 152, 152 (9th Cir. 1982) (order) (holding plaintiffs
were prevailing parties, “even though they prevailed by
obtaining dismissal of the appeal as untimely rather than
affirmance on the merits”); accord Ford v. Bender, 768 F.3d
15, 31 (1st Cir. 2014) (holding plaintiff was prevailing party,
even though plaintiff obtained dismissal of the appeal as
moot, because judgment was not moot when issued by the
district court); Murphy v. Fort Worth Indep. Sch. Dist.,
334 F.3d 470, 471 (5th Cir. 2003) (same); Young v. City of
Chicago, 202 F.3d 1000, 1000–01 (7th Cir. 2000) (same).
Our dismissal contemplates no future proceedings involving
the merits of the contempt finding that could change the
favorable result obtained by Plaintiffs below. Sotomura,
679 F.2d at 153. Plaintiffs are prevailing parties under section
Sheridan further argues that Kentucky v. Graham,
473 U.S. 159 (1985), stands for the proposition that a nonparty
may not be liable for a fee award under section 1988.
We do not read Graham so broadly. Graham held that a
ORTEGA MELENDRES V. SHERIDAN 5
government entity could not be vicariously liable for a fee
award when plaintiffs prevailed in a lawsuit against its
employees in their personal capacities. Id. at 167–68. After
the entity’s dismissal on Eleventh Amendment grounds, it
was a non-party and did not actively participate in the
litigation. Id. at 162. By contrast, Sheridan disobeyed the
injunction entered in the underlying litigation. He actively
inserted himself into the litigation by appealing the contempt
finding in the hope of clearing his name. We and our sister
circuits have held that non-party contemnors may be liable
for attorney’s fees in other contexts. Portland Feminist
Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d
787, 789–90 (9th Cir. 1989) (holding non-party contemnors
liable for plaintiffs’ attorney’s fees incurred in bringing
contempt proceeding as a remedial sanction); see also Gen.
Ins. Co. of Am. v. E. Consol. Utils., Inc., 126 F.3d 215, 220
(3d Cir. 1997) (affirming award of attorney’s fees from nonparty
contemnor); Waffenschmidt v. Mackay, 763 F.2d 711,
726 (5th Cir. 1985) (affirming award of attorney’s fees from
non-party contemnors because they aided and abetted the
defendants in violating the court’s injunction). There is no
reason to treat an award of fees under section 1988 any
differently. Therefore, we grant Plaintiffs’ application for
attorney’s fees and costs related to Sheridan’s dismissal.
Plaintiffs also seek fees for preparing an answering brief
that they never filed, having instead prevailed in their motion
to dismiss. We may award fees only for work “expended in
pursuit of the ultimate result achieved.” Hensley v. Eckerhart,
461 U.S. 424, 435 (1983) (internal quotation marks and
citation omitted). Because Plaintiffs did not succeed in
opposing Sheridan’s appeal on the merits, we award them no
fees for preparing the answering brief.
ORTEGA MELENDRES 6 V. SHERIDAN
We refer this matter to the Appellate Commissioner to
calculate the amount of reasonable attorney’s fees and nontaxable
costs to award Plaintiffs consistent with this order.
Any such award is subject to reconsideration by this panel.
See Ninth Cir. R. 39-1.9.