Citizens for Free Speech, LLC v. County of Alameda ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITIZENS FOR FREE SPEECH, LLC; Nos. 18-16805
MICHAEL SHAW, 19-15231
Plaintiffs-Appellants,
D.C. No.
v. 4:18-cv-00834-
SBA
COUNTY OF ALAMEDA; EAST
COUNTY BOARD OF ZONING
ADJUSTMENTS; FRANK J. IMHOFF; OPINION
SCOTT BEYER; MATTHEW FORD,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted February 6, 2020
San Francisco, California
Filed March 24, 2020
Before: Richard A. Paez and Carlos T. Bea, Circuit Judges,
and Lynn S. Adelman, * District Judge.
Opinion by Judge Adelman
*
The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
2 CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA
SUMMARY **
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 against
Alameda County, its zoning board, and various local
officials alleging constitutional violations arising from the
County’s enforcement of its billboard ordinance through an
abatement proceeding, and award of attorney’s fees and
costs.
Plaintiff, Citizens for Free Speech, LLC entered into an
agreement with Michael Shaw, the owner of a parcel of land
in Alameda County, to display billboards expressing
political messages. Determining that the billboards violated
the local zoning scheme, County officials began an
abatement proceeding against Citizens. In response,
Citizens and Shaw filed suit pursuant to § 1983. The district
court dismissed plaintiffs’ action based on the abstention
doctrine introduced in Younger v. Harris, 401 U.S. 37
(1971).
In affirming the dismissal, the panel determined that the
County’s abatement proceeding against Citizen was
ongoing, constituted a quasi-criminal enforcement action,
and implicated an important state interest, namely the
County’s strong interest in its land-use ordinances and in
providing a uniform procedure for resolving zoning
disputes. The abatement proceeding also allowed Citizens
adequate opportunity to raise its federal challenges; under
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA 3
California law, a litigant may seek judicial review of an
adverse decision and, in doing so, may raise federal claims.
Finally, the panel determined that plaintiffs’ federal action
could substantially delay the abatement proceeding, thus
having the practical effect of enjoining it. And no exception
to Younger, such as bad faith, harassment, or flagrant
violation of express constitutional prohibitions by the state
or local actor, were present.
The panel held that the district court’s fee award was not
an abuse of discretion. The panel held that plaintiffs’
initiation of this action was wholly without merit.
Additionally, the panel held that the County was the
prevailing party because the district court’s Younger-based
dismissal eliminated the possibility that plaintiffs’ federal
lawsuit would halt or impede the County’s abatement
proceeding. Applying CRST Van Expedited, Inc. v.
E.E.O.C., 136 S. Ct. 1642, 1651 (2016), and Amphastar
Pharm. Inc. v. Aventis Pharma SA, 856 F.3d 696, 710 (9th
Cir. 2017), the panel held that Elwood v. Drescher, 456 F.3d
943, 948 (9th Cir. 2006), which had previously established
an outright bar of fee awards to defendants winning
Younger-based dismissals, was no longer good law. The
panel held that while a dismissal of a damages claim under
Younger may not always materially alter the parties’ legal
relationship, it unquestionably did so here.
4 CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA
COUNSEL
Frank C. Gilmore (argued), Robison Sharp Sullivan & Brust,
Reno, Nevada, for Plaintiffs-Appellants.
Matthew D. Zinn (argued), Winter King, and Aaron M.
Stanton, Shute Mihaly & Weinberger LLP, San Francisco,
California, for Defendants-Appellees.
CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA 5
OPINION
ADELMAN, District Judge:
Citizens for Free Speech, LLC (“Citizens”) and Michael
Shaw appeal orders from the district court (1) dismissing
their 42 U.S.C. § 1983 complaint against Alameda County,
its zoning board, and various local officials (collectively,
“the County”) based on the abstention doctrine introduced in
Younger v. Harris, 401 U.S. 37 (1971); and (2) awarding the
County $101,174.40 in fees and $1,259.60 in costs pursuant
to 42 U.S.C. § 1988. We affirm. The district court’s
Younger analysis was correct, and the district court’s fee
award was not an abuse of discretion.
I.
In 2014, Citizens for Free Speech, LLC entered into an
agreement with Michael Shaw, the owner of a parcel of land
in Alameda County, to display billboards expressing
political messages. Determining that the billboards violated
the local zoning scheme, county officials began an
abatement proceeding against Citizens, which provided for
a hearing before the zoning board and process by which to
appeal an adverse decision. In response, Citizens filed a
federal lawsuit seeking to prevent abatement but failed to
obtain a permanent injunction barring the County from
enforcing its ordinances.
Litigation having concluded, the County initiated a new
abatement proceeding. Citizens responded by filing another
federal lawsuit alleging constitutional violations pursuant to
42 U.S.C. § 1983, seeking both equitable and monetary
relief. The district court, invoking Younger abstention,
dismissed the complaint and awarded the County costs and
6 CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA
fees, precipitating this appeal. 1 We have jurisdiction under
28 U.S.C. § 1291.
II.
We agree with the district court that all the elements
required for Younger abstention are present. Younger
abstention applies to state civil proceedings when the
proceeding: (1) is ongoing, (2) constitutes a quasi-criminal
enforcement action, (3) implicates an important state
interest, and (4) allows litigants to raise a federal challenge.
ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund,
754 F.3d 754, 759 (9th Cir. 2014). If these elements are met,
we then consider whether the federal action would
effectively enjoin the state proceedings. Id.
The abatement proceeding was “ongoing” for Younger
purposes. See Gilbertson v. Albright, 381 F.3d 965, 969 n.4
(9th Cir. 2004). The abatement proceeding also satisfied the
“quasi-criminal enforcement” element. As the Supreme
Court has recognized, civil enforcement proceedings
initiated by the state “to sanction the federal plaintiff . . . for
some wrongful act,” including investigations “often
culminating in the filing of a formal complaint or charges,”
meet this requirement. Sprint Commc’ns, Inc. v. Jacobs,
571 U.S. 69, 79–80 (2013). Nuisance abatement
proceedings fall into this category. See, e.g., Huffman v.
Pursue, Ltd., 420 U.S. 592, 604 (1975); Herrera v. City of
Palmdale, 918 F.3d 1037, 1045 (9th Cir. 2019). The
County’s abatement action included an investigation,
alleged violations of nuisance ordinances, notice to appear
1
Specifically, Citizens appeals the denial of a preliminary
injunction, the dismissal of its Fourteenth Amendment due process claim
pursuant to 42 U.S.C. § 1983, and the award of fees to the County.
CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA 7
before a zoning board, and the possibility of monetary fines
and/or forcible removal of Citizens’s billboards.
The abatement proceeding also implicated an important
state interest, namely the County’s “strong interest in its
land-use ordinances and in providing a uniform procedure
for resolving zoning disputes.” San Remo Hotel v. City &
Cty. of San Francisco, 145 F.3d 1095, 1104 (9th Cir. 1998);
see also World Famous Drinking Emporium, Inc. v. City of
Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987). The abatement
proceeding also allowed Citizens adequate opportunity to
raise its federal challenges; under California law, a litigant
may seek judicial review of an adverse decision and, in
doing so, may raise federal claims. See Cal. Code. Civ. P.
§ 1094.5; see also Ohio Civil Rights Comm’n v. Dayton
Christian Sch., Inc., 477 U.S. 619, 629 (1986).
Finally, the plaintiffs’ federal action could substantially
delay the abatement proceeding, thus having the practical
effect of enjoining it. And no exception to Younger, such as
bad faith, harassment, or flagrant violation of express
constitutional prohibitions by the state or local actor, is
present. See Gilbertson, 381 F.3d at 983. Citizens
complains that the sua sponte nature of the district court’s
Younger analysis was both untimely and prejudicial, but we
find this contention unpersuasive; the court may raise
abstention of its own accord at any stage of the litigation.
See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976).
III.
The district court’s fee award was not an abuse of
discretion. A prevailing defendant in a § 1983 action is
entitled to an award of attorney’s fees under § 1988 only
when the plaintiff’s action is “frivolous, unreasonable, or
without foundation.” Tutor-Saliba Corp. v. City of Hailey,
8 CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA
452 F.3d 1055, 1060 (9th Cir. 2006) (internal quotations
omitted); see also Amphastar Pharm. Inc. v. Aventis Pharma
SA, 856 F.3d 696, 710 n.14 (9th Cir. 2017) (explaining that
because fee-shifting statutes exist to deter frivolous
litigation, awarding fees for frivolous actions almost always
furthers the purpose of the statutory scheme). Here, the
district court described the plaintiff’s action as “frivolous at
the outset” in its fees order. We agree. Citizens’s initiation
of this action and its arguments were wholly without merit.
The action appears to be little more than an attempted end-
run around the parties’ previous three years of litigation that
resolved Citizens’s constitutional objections.
A court must also consider whether a party seeking fees
has “prevailed” in the litigation. Texas State Teachers Ass’n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989); see
also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 604–05 (2001)
(explaining that a prevailing party must obtain a judgment
that creates a “material alteration in the legal relationship of
the parties” to permit an award of attorneys’ fees). In
Elwood v. Drescher, we held that the defendants were not
“prevailing part[ies]” within the meaning of § 1988 and thus
were not entitled to attorneys’ fees where the basis for the
district court’s dismissal was Younger abstention. 456 F.3d
943, 948 (9th Cir. 2006). We explained that because
Younger abstention concerns the exercise of jurisdiction,
such a dismissal “makes no comment on the merits of the
case, and does not ‘materially alter[] the legal relationship
between the parties.’” Id. (quoting Farrar v. Hobby,
506 U.S. 103, 111, 113 (1992)). However, in its recent
decision in CRST Van Expedited, Inc. v. E.E.O.C., the
Supreme Court held that a defendant does not need to obtain
a judgment on the merits in order to be a “prevailing party”
CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA 9
for fee purposes. 136 S. Ct. 1642, 1651 (2016). 2 This is
because a defendant “fulfill[s] its primary objective
whenever the plaintiff’s challenge is rebuffed, irrespective
of the precise reason for the court’s decision.” Id; see also
Amphastar, 856 F.3d at 710 (finding defendants the
“prevailing party” upon dismissal for lack of jurisdiction). 3
This is precisely what the County did in the present case.
The district court’s Younger-based dismissal effected a
material change in the parties’ relationship because it
eliminated the possibility that plaintiffs’ federal lawsuit
would halt or impede the County’s abatement proceeding.
We also do not see anything unique about Younger
abstention that justifies deviating from the principles set
forth in CRST and reflected in the outcome in Amphastar,
which permitted a fee award to a defendant who won a
jurisdiction-based dismissal. 856 F.3d at 710; see also
Canatella v. California, 404 F.3d 1106, 1113 (9th Cir. 2005)
(“Younger abstention is essentially a jurisdictional
doctrine.”). Taken together, these developments indicate
that Elwood’s outright bar of fee awards to defendants
winning Younger-based dismissals is no longer good law,
2
CRST was a Title VII case, but the Court described § 1988 as
“closely related” to the fee provisions in Title VII. 136 S. Ct. at 1651
(citing Fox v. Vice, 563 U.S. 826, 836 (2011)).
3
In Amphastar, we recognized that CRST “effectively overruled”
Branson v. Nott, 62 F.3d 287 (9th Cir. 1995), which held that “when a
defendant wins because the action is dismissed for lack of subject matter
jurisdiction[,] he is never a prevailing party.” 856 F.3d at 710; see also
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (recognizing that a
three-judge panel may “take into account the possibility that our prior
decision may have been undercut by higher authority to such an extent
that it has been effectively overruled by such higher authority and hence
is no longer binding on district judges and three-judge panels of this
court.”).
10 CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA
and we conclude that the County is entitled to fees under
§ 1988.
This is not to say that a Younger-based dismissal will
always materially alter the legal relationship between the
parties. When a party seeks federal equitable relief, Younger
abstention alters the parties’ relationship because it bars the
plaintiff from seeking such relief. Gilbertson v. Albright,
381 F.3d 965, 980 (9th Cir. 2004). The material alteration is
the abstention itself. As to claims for damages, when a claim
is stayed under Younger pending resolution of a state-law
claim, the parties’ legal relationship is probably not altered
because the plaintiff can return to the federal forum after
completion of the parallel proceedings. The same would
appear to be true of a claim that is dismissed without
prejudice under Younger. However, where a damages claim
is dismissed under Younger for being frivolous, the dismissal
will likely materially alter the legal relationship between the
parties. Id. at 982 n.18.
In the present case, in dismissing plaintiff’s damages
claim, the district court did not explicitly state that the claim
was frivolous, but it did so in the separate fees order stating
that the claim was “frivolous,” “unreasonable,” without
“substantive merit,” and “meritless.” And in the dismissal
order, the Court stated that there was “no merit” to plaintiff’s
claim that claim preclusion barred the county from endorsing
its zoning ordinance against plaintiff, characterized some of
plaintiff’s citations as “irrelevant,” and noted plaintiff’s
failure to provide “any authority” in support of its key
argument. Thus, while a dismissal of a damages claim under
CITIZENS FOR FREE SPEECH V. CTY. OF ALAMEDA 11
Younger may not always materially alter the parties’ legal
relationship it unquestionably did so here. 4
IV.
AFFIRMED.
4
Citizens also complains that the district court’s award was
excessive. But Citizens has not shown with adequate specificity that the
hours billed were unreasonable. See, e.g., McGrath v. Cty. of Nevada,
67 F.3d 248, 255 (9th Cir. 1995) (“The [losing party] may not rely on
conclusory challenges” to evidence as to claimed hours).