Bernhardt v. Los Angeles County

• Citation: 339 F.3d 920
• Decision Date: 05 August 2003
• Docket Number: No. 02-56412.,02-56412.
• Parties: Angela BERNHARDT, Plaintiff-Appellant, v. LOS ANGELES COUNTY; Lloyd W. Pellman, individually and in his official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 920

339 F.3d 920

Angela BERNHARDT, Plaintiff-Appellant, v. LOS ANGELES COUNTY; Lloyd W. Pellman, individually and in his official capacity, Defendants-Appellees.

No. 02-56412.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 20, 2003 — Pasadena, California.

Filed August 5, 2003.

Michael R. Mitchell, Woodland Hills, California, for the plaintiff-appellant.

Lauren M. Black, Deputy County Counsel, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; J. Spencer Letts, District Judge, Presiding. D.C. No. CV-99-10121-JSL.

Before Robert Boochever, Stephen Reinhardt and Raymond C. Fisher, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Angela Bernhardt has sued the County of Los Angeles and its County Counsel, claiming that the County has a policy of settling civil rights cases only for "a lump sum, including all attorney's fees" that violates both an implied federal right under 42 U.S.C. § 1988 and the Supremacy Clause. In summary, Bernhardt contends the County's lump sum settlement policy has made it impossible for her to retain counsel to represent her in litigating her federal claims against the County. This interlocutory appeal is before us following our decision in Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir.2002), in which we held that Bernhardt had standing to assert her claims in limited respects and remanded her case to the district court for further proceedings. Although the merits of those claims remain pending before the district court where Bernhardt is appearing pro se, we are now asked to determine whether the district court properly denied Bernhardt a preliminary injunction barring the County's lump sum policy so that she can obtain counsel to represent her in those district court proceedings.

We hold, first, that our prior decision does not foreclose Bernhardt from seeking a preliminary injunction for purposes of securing trial counsel. On the merits, we hold that although the district court did not err in denying Bernhardt a broad preliminary injunction that would have barred the County's use of a lump sum settlement policy in all civil rights cases pending the trial of her case, the district court did err in not considering a narrower injunction limited to Bernhardt's pending case only. Given the serious questions Bernhardt has raised concerning the County's policy, and the balance of hardships that tips strongly in favor of removing an obstacle to her obtaining trial counsel, we hold that, pending her trial, Bernhardt is entitled to a narrow injunction barring the application of the County's alleged policy to her case alone.

FACTUAL AND PROCEDURAL BACKGROUND

Following an incident in a Santa Monica courtroom in 1998, Angela Bernhardt initiated a 42 U.S.C. § 1983 excessive force case against Los Angeles County law enforcement officials and a Santa Monica College police officer. After she was unable to retain an attorney to represent her in that case (the "excessive force case"), and while that case was still pending, Bernhardt brought a separate case pro se (the "instant case") against the County of Los Angeles and Lloyd W. Pellman, the County Counsel (collectively, "the County").¹ In the instant case, Bernhardt challenges the County's alleged policy of settling all federal civil rights cases only for "a lump sum, including all attorney's fees." Bernhardt claims that the County's policy has deprived her of her "`implied federal statutory right under 42 U.S.C. Section 1988' to contract with an attorney for representation in exchange for an assignment to the attorney of the right to seek statutory attorney fees." Bernhardt, 279 F.3d at 866. She also alleges that the policy violates the Supremacy Clause by implicitly repealing § 1988.² At the time Bernhardt filed the instant case, its premise was that the policy — by requiring the waiver of statutory attorney's fees as a condition of settlement — effectively prevented Bernhardt from retaining a lawyer to represent her in her excessive force case. Thus she sought declaratory relief, damages and a permanent injunction against the County's policy. Although her objective included barring the County's use of its policy generally so that she could obtain trial counsel in her then-pending excessive force case, she did not seek a similar injunction in the instant case where she was also proceeding pro se.

While the instant case against the County was pending, the district court dismissed Bernhardt's underlying excessive force case. See id. (discussing the history of Bernhardt's case). She appealed, and another panel of this court dismissed the appeal. Id. at 866-67. The rug had been pulled out from under the instant case: the excessive force case for which Bernhardt was seeking an attorney was over.

In the meantime, the district court dismissed the instant case sua sponte for lack of standing. Bernhardt appealed, and attorney Michael Mitchell represented her for the limited purpose of the appeal.³ On February 4, 2002, we reversed and remanded for further proceedings, holding that "[t]he allegations made in Bernhardt's complaint established standing." Id. at 873. We also held that Bernhardt's claims for prospective relief were moot because the excessive force case was over and her injury was not one "capable of repetition, yet evading review." Id. at 871. We concluded, however, that Bernhardt presented a sufficient live controversy because she may be entitled to damages. Id. at 873. Although we were skeptical that Bernhardt could prove that she deserved actual damages on the theory that "she would have prevailed in her [excessive force] action if she had been represented by counsel," we accepted her argument that she might be entitled to actual damages because "we examine only the face of her complaint." Id. at 872. We also noted that even if Bernhardt could not obtain actual damages, she "still may be entitled to nominal damages on the basis that the County's policy interfered with her implied federal right to obtain counsel in a civil rights action." Id.

On remand, Bernhardt again proceeded pro se. Rather than simply begin to litigate her case for actual or nominal damages, Bernhardt filed a motion for a preliminary injunction against the County's policy on the theory that it was now preventing her from retaining an attorney in the instant case to pursue her claim for damages on remand.⁴ Bernhardt thereby shifted the initial focus of her case on remand from her inability to retain an attorney in her excessive force case to her inability to retain an attorney to press her remaining claims for damages in the instant case. Affidavits from Bernhardt, Mitchell and Robert Alan Seeman, another civil rights attorney who stated that he knew of the County's policy and that over the years it had prevented him from representing many victims of civil rights abuses, supported the motion. The district court denied Bernhardt's injunction motion on July 18, 2002. Nearly four months later, the district court issued findings of fact and conclusions of law in support of its order. It concluded that Bernhardt had no likelihood of success on the merits in the underlying instant case, the balance of hardships did not tip in her favor and the public interest weighed against granting the broadly worded injunction.

Mitchell filed a timely notice of appeal on Bernhardt's behalf. The district court denied Bernhardt's motion to stay further proceedings pending our resolution of this interlocutory appeal. Thereafter, on January 28, 2003, the County moved for judgment on the pleadings. Faced with the prospect that this motion might be granted before we resolved Bernhardt's injunction appeal — which, if successful, could result in her having trial counsel — Mitchell, again representing Bernhardt only on appeal, sought a stay of the district court proceedings, which we granted. We have jurisdiction pursuant to 28 U.S.C. § 1292(a).

STANDARD OF REVIEW

We review the district court's denial of Bernhardt's motion for a preliminary injunction to "determine whether the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact." See Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir.2000). Such a denial is based on clearly erroneous factual findings "if the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir.1999) (internal quotation marks omitted). It is based on an erroneous legal standard if it (a) did not employ the appropriate legal standard governing the decision to issue a preliminary injunction or (b) misapprehended the law with respect to the underlying issues in the litigation. Id. The district court's interpretation of the underlying legal principles is subject to de novo review. See Textile Unlimited, Inc. v. A.BMH & Co., 240 F.3d 781, 786 (9th Cir.2001).

DISCUSSION

A. Reaching the Merits of Bernhardt's Appeal: Law of the Case

Despite the County's suggestion that our prior mootness holding bars Bernhardt's request for a preliminary injunction, we will reach the merits of Bernhardt's motion. Her motion is not foreclosed by the law of the case. The law of the case doctrine provides that "the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case." In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir.1996) (internal quotation marks omitted). The doctrine applies to our "explicit decisions as well as those issues decided by necessary implication." United States v. Hughes Aircraft Co., 243 F.3d 1181, 1186-87 (9th Cir.2001) (internal quotation marks omitted). In our prior opinion, we concluded that the rejection of Bernhardt's appeal of her excessive force case...