Forest v. City Of Lake Forest

• Decision Date: 22 October 2010
• Docket Number: 09-55215.,No. 08-56564,08-56564
• Parties: LA ASOCIACION DE TRABAJADORES DE LAKE FOREST, Plaintiff-Appellant, and National Day Laborer Organizing Network, Plaintiff-Appellant, v. CITY OF LAKE FOREST, Defendant, and Don Barnes, City of Lake Forest's Chief of Police Services, in his individual and official capacities; Chris Thompson, Orange County Sheriff's Department law enforcement officer, in his individual and official capacities, Defendants-Appellees. La Asociacion De Trabajadores De Lake Forest; National Day Laborer Organizing Network, Plaintiffs-Appellants, v. City of Lake Forest, Defendant, and County Of Orange; Jay LeFlore, City of Lake Forest's Chief of Police Services, in his individual and official capacities; Chris Thompson, Orange County Sheriff's Department law enforcement officer, in his individual and official capacities; Don Barnes, City of Lake Forest's Chief of Police Services, in his individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

624 F.3d 1083

LA ASOCIACION DE TRABAJADORES DE LAKE FOREST, Plaintiff-Appellant,

and

National Day Laborer Organizing Network, Plaintiff-Appellant,

v.CITY OF LAKE FOREST, Defendant,andDon Barnes, City of Lake Forest's Chief of Police Services, in his individual and official capacities; Chris Thompson, Orange County Sheriff's Department law enforcement officer, in his individual and official capacities, Defendants-Appellees.

La Asociacion De Trabajadores De Lake Forest; National Day Laborer Organizing Network, Plaintiffs-Appellants,

v.City of Lake Forest, Defendant,andCounty Of Orange; Jay LeFlore, City of Lake Forest's Chief of Police Services, in his individual and official capacities; Chris Thompson, Orange County Sheriff's Department law enforcement officer, in his individual and official capacities; Don Barnes, City of Lake Forest's Chief of Police Services, in his individual and official capacities, Defendants-Appellees.

Nos. 08-56564, 09-55215.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 8, 2010.

Filed Oct. 22, 2010.

COPYRIGHT MATERIAL OMITTED.

Hector O. Villagra (argued) and Belinda Escobosa Helzer (argued), ACLU Foundation of Southern California, Orange, CA; and Mark D. Rosenbaum and Peter J. Eliasberg, ACLU Foundation of Southern California, Los Angeles, CA, for the appellants.

S. Frank Harrell (argued) and Pancy Lin, Lynberg & Watkins, Orange, CA, for the appellees.

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:07-cv-00250-DOC-AN.

Before: ALEX KOZINSKI, Chief Judge, JOHNNIE B. RAWLINSON, Circuit Judge, and ALGENON L. MARBLEY, District Judge. ^*

OPINION

MARBLEY, District Judge.

This appeal arises from a dispute between a nonprofit organization advocating on behalf of day laborers and local government officials over the enforcement of restrictions on soliciting work on public sidewalks. The district court held that plaintiffs lacked standing and were not entitled to attorney's fees. We agree with the district court's standing conclusion, but disagree with its resolution of the attorney's fees issue. We therefore AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. THE PARTIES

Plaintiff National Day Laborer Organizing Network (“NDLON”) is a nonprofit association consisting of a nationwide coalition of day laborers and agencies working with day laborers to protect their ability to seek employment. NDLON's mission encompasses six broad program areas: (1) promoting worker centers as the preferred public policy for responding to day laborer concerns; (2) developing educational materials and organizing materials for member organizations; (3) helping day laborers defend their wage and hour rates; (4) helping them defend their civil rights; (5) working in partnerships with national organizations to effectuate comprehensive immigration reform; and (6) working on gender equity among member organizations. NDLON's office is located in Los Angeles County.

Plaintiff La Asociación de Trabajadores de Lake Forest (“ATLF”) is an unincorporated association of day laborers regularly seeking work on public sidewalks in Lake Forest. ATLF was formed in January 2007, in response to alleged harassment by police officers. ATLF members have a common interest in learning about their rights and responsibilities, and addressing issues such as police enforcement, community relations, and wage and hour claims. Groups of ATLF members meet at least once a week, and all of the members meet together occasionally to make decisions or plan activities.

Plaintiff Colectivo Tonantzin (“Colectivo”) is an unincorporated organization that was formed in July 2004 to protect the interests of immigrant workers and their families in Orange County. Colectivo works to ensure that workers and their families receive equal protection under the law. The organization engages in activities such as planning marches, educating members and the public about relevant issues, and working in gardens to produce food and to provide education regarding food production and consumption. Colectivo members often visit the sidewalks where ATLF members seek employment to provide support, counseling, and education.

Defendants include Orange County; the City of Lake Forest; Jay LeFlore, the City of Lake Forest's Chief of Police Services, in his official and individual capacities; Don Barnes, the City of Lake Forest's Chief of Police Services, in his official and individual capacities; and Chris Thompson, an Orange County Sheriff's Department law enforcement officer, in his official and individual capacities. ¹

B. FACTUAL BACKGROUND

ATLF alleges that, in January 2007, Orange County Sheriff's Department (“OCSD”) deputies “ran all the day laborers looking for work off the public sidewalks” at three intersections in Lake Forest. Two OCSD deputies informed day laborers that they could not remain on the public sidewalk at one of the intersections. The day laborers staged a protest on January 20, 2007. An OCSD deputy told them that month that it was illegal for them to be hired, and that if they did find employment while on public property, deputies would pull them out of the employers' cars.

In February 2007, ATLF members called NDLON's office to complain about the harassment. In response, Veronica Federovsky, NDLON's West Coast Field Coordinator, began meeting approximately once a week with ATLF members in Lake Forest, despite the fact that ATLF is not one of NDLON's member organizations. Federovsky's regular job duties include providing technical support and training to member organizations, helping them establish and operate worker centers, assisting with local campaigns affecting day laborers, and strengthening the organizational network on the west coast. Due to the alleged harassment of ATLF members in Lake Forest, Federovsky diverted approximately 20% of the time and resources she would usually spend performing her regular job duties to assisting ATLF members.

Almost every week, Federovsky would drive approximately 60 miles from her home in North Hollywood to Lake Forest to meet with ATLF members, a drive that took between one and a half and two hours. She spent two and a half to three hours meeting with ATLF members, and then drove approximately 50 miles back to NDLON's office in Los Angeles. The assistance she provided to ATLF members included planning and participating in “know your rights” presentations and copying and distributing literature for those presentations. According to Chris Newman, the Legal Programs Director of NDLON, the loss of staff pay, time, and expenses has “detracted from [NDLON's] ability to serve [its] member organizations and reduced the resources available to conduct [NDLON's] ordinary activities.” NDLON nonetheless chose to continue assisting ATLF members because it feared that the practices allegedly engaged in by Lake Forest police officers would spread to other areas and begin affecting NDLON's actual member organizations.

Plaintiffs filed their original Complaint on March 1, 2007, seeking to block the enforcement of Section 5.06.020 of the Lake Forest Municipal Code (“the Ordinance”). Lake Forest then repealed the Ordinance, effective April 3, 2007, and Plaintiffs filed a First Amended Complaint on April 19, 2007. The district court granted them leave further to amend the Complaint on June 19, 2007, and on November 27, 2007.

In late April 2007, after the Ordinance had been repealed, OCSD deputies allegedly continued to harass day laborers. Around that time, one deputy told a group of day laborers that they could not look for work on public sidewalks and made them leave. When an employer parked legally next to a group of day laborers, a deputy told the employer he could not hire the laborers and made the laborers leave. Plaintiffs alleged that numerous other incidents of such harassment occurred in 2007 and 2008.

In late July 2008, Plaintiffs stipulated to the dismissal of their claims against all Defendants except Sandra Hutchens, Don Barnes, Jay LeFlore, and Chris Thompson. At the pretrial conference, held August 11, 2008, Defendants raised the issue of standing for the first time. The district court ordered Defendants to submit a brief on the standing issue by August 12, 2008, and Plaintiffs to respond by August 15, 2008. On August 18, 2008, the district court held a hearing on the standing issue, at which it converted the Defendants' brief into a motion for summary judgment, and granted that motion pursuant to a tentative order the court had provided to the parties. ² As a result of that decision, Plaintiffs NDLON and Colectivo were dismissed from the case for lack of standing. The remaining parties then agreed that a jury was not necessary, as the only remaining issue involved injunctive relief. Later that day, ATLF and the Defendants reached a settlement.

On September 17, 2008, NDLON appealed the district court's standing order. On November 14, 2008, pursuant to the settlement agreement, ATLF filed a motion for attorney's fees. ³ The district court denied that motion on January 28, 2009. On February 10, 2009, ATLF appealed the denial of attorney's fees.

II. JURISDICTION

The district court below had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. NDLON filed a timely interlocutory appeal of the district court's order on standing on September 17, 2008. The order on standing became appealable when the district court entered its subsequent order fully adjudicating the remaining issues. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir.2001) (“An interlocutory order becomes appealable when final judgment is entered.”). The district court denied ATLF's motion for attorney's fees on January 28, 2009. That order is appealable under 28 U.S.C. § 1291.

III. ANALYSIS

A. NDLON'S ORGANIZATIONAL...