Sylvia Mahach-Watkins v. Larry Depee ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVIA MAHACH-WATKINS, 
Individually & as the Successor in
Interest to the Estate of John
Joseph Wayne Watkins; PATRICIA
No. 08-15694
ANN WATKINS,
Plaintiffs-Appellees,
 D.C. No.
3:05-cv-01143-SI
v.
OPINION
LARRY DEPEE, a California
Highway Patrol Officer; STATE OF
CALIFORNIA,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, United States District Judge, Presiding
Argued and Submitted
July 14, 2009—San Francisco, California
Filed February 1, 2010
Before: Dorothy W. Nelson, William A. Fletcher and
Richard A. Paez, Circuit Judges.
Opinion by Judge William A. Fletcher
1823
1826 MAHACH-WATKINS v. DEPEE
COUNSEL
David Warren Hamilton, S. Michelle Inan, OFFICE OF THE
CALIFORNIA ATTORNEY GENERAL, Oakland, Califor-
nia, for the appellants.
Tory M. Pankopf, LAW OFFICES OF TORY M. PANKOPF,
Reno, Nevada, Mary Helen Beatificato, BEATIFICATO &
ASSOCIATES, Rancho Santa Margarita, California, for the
appellees.
OPINION
W. FLETCHER, Circuit Judge:
California Highway Patrol (“CHP”) Officer Larry Depee
(“Depee”) shot and killed John Watkins (“Watkins”) while on
MAHACH-WATKINS v. DEPEE 1827
duty in Crescent City, California. Watkins’s mother, Sylvia
Mahach-Watkins (“Mahach-Watkins”), filed suit under 42
U.S.C. § 1983 and various provisions of state law on her own
behalf and on behalf of her son’s estate. A number of
Mahach-Watkins’s claims were dismissed before trial. Two
§ 1983 claims and a state-law wrongful death claim went to
trial. The jury returned a favorable verdict on one of the two
§ 1983 claims and on the wrongful death claim. The jury
awarded nominal damages of one dollar on each of these two
claims.
Mahach-Watkins thereafter sought almost $700,000 in
attorney’s fees under 42 U.S.C. § 1988. The district court
awarded $136,687.35. The court reduced the amount of attor-
ney’s fees because of the limited success achieved in Mahach-
Watkins’s § 1983 claim. Depee appeals the award of attor-
ney’s fees. He contends under Farrar v. Hobby, 506 U.S. 103
(1992), that because of her limited success Mahach-Watkins
is entitled to no attorney’s fees at all.
For the reasons that follow, we affirm.
I. Background
CHP Officer Larry Depee shot and killed John Watkins
during a struggle on the night of December 9, 2003. Watkins
was unemployed and had a long history of schizophrenia,
accompanied by drug and alcohol abuse. He survived on
Social Security payments and support from his mother.
In its order denying defendants’ motion for summary judg-
ment on the § 1983 and wrongful death claims, the district
court wrote:
The parties essentially agree that, Watkins, a
forty-year old American Yurok Indian man, was rid-
ing his bicycle down U.S. Highway 101 southbound
in the northbound lane. Defendant Depee observed
1828 MAHACH-WATKINS v. DEPEE
Watkins and saw that he was riding his bicycle with-
out any lights. Depee tried to initiate a traffic stop of
Watkins twice that evening but could not do so
because Watkins rode away before defendant could
position his patrol car for the stop.
Later that evening, Depee saw Watkins a third
time, riding southbound on the sidewalk next to the
northbound lane of Highway 101. The parties agree
that Depee parked his patrol car directly in front of
Watkins. Plaintiff claims that Watkins collided with
the patrol car and fell from his bicycle onto the
ground, while defendants maintain that Watkins
stopped, straddled his bicycle and after Depee told
Watkins he could not ride the wrong way in the
roadway without lights, that Watkins either shoved
or threw the bicycle at Depee and started running.
The parties agree that at some point after Depee
stopped Watkins, Watkins ran away to a wooded
area behind a nearby Super 8 Motel, and Depee
chased him. According to Depee, he and Watkins
struggled, and at some point during the fight, Wat-
kins began yelling that he needed to go home to take
his medications, and also told Depee he had a gun.
Also according to Depee, Watkins wrested Depee’s
flashlight away from him and swung at him twice
with the flashlight. After the second swing, Depee
drew his gun and shot Watkins several times, killing
him.
Based upon, inter alia, the declaration of forensic
pathologist John Cooper, plaintiff maintains that at
the time Depee shot Watkins, Watkins was lying on
his left side with his right arm raised up in a “ward-
ing off” gesture, and that Watkins could not have
been swinging the flashlight at the time of his death.
Plaintiff also emphasizes the fact that a fingerprint
analysis of Depee’s flashlight only revealed one of
MAHACH-WATKINS v. DEPEE 1829
Watkins’ fingerprints on the head area of the flash-
light; plaintiff asserts that if Depee’s version of
events was true, there would be more of Watkins’
fingerprints on the flashlight, and that those finger-
prints would be on the shaft of the flashlight.
The evidence at trial was largely consistent with this narra-
tive. Depee testified at trial that he fired two shots and that he
was probably two or three feet away from Watkins when he
fired. When asked why he shot Watkins, Depee replied:
A. Well, in the end [I] shot him because he was try-
ing to hit me with the flashlight and I definitely felt
like he was trying to kill me. He said he had a gun.
I don’t know why else he would tell anybody you
have a gun you wanted the kill them or what-have-
you. The whole circumstances fighting, running,
assaulting my — and then ultimately the flashlight is
when I shot.
Q. Why did you believe, maybe it’s obvious, but tell
the jury why did you believe he was trying to kill
you?
A. That flashlight is no doubt, to me that’s a deadly
weapon when you[‘re] swinging that flashlight
somebody, to me it’s painfully obvious he was trying
to kill me.
After Watkins’s death, Mahach-Watkins filed suit against
Depee and several other defendants in state court under 42
U.S.C. § 1983 and various provisions of California law.
Defendants removed to federal court. Mahach-Watkins filed
an amended complaint in federal court, pleading a number of
federal and state-law claims. Mahach-Watkins’s § 1983
claims were contained in her Sixth Cause of Action which
contained two “counts.” Count 1 included an allegation of
excessive force in violation of the Fourth Amendment, as well
1830 MAHACH-WATKINS v. DEPEE
as allegations of First, Fifth, and Fourteenth Amendment vio-
lations, on behalf of Mahach-Watkins and Watkins’s estate.
Count 2 was an allegation of a conspiracy to violate Wat-
kins’s constitutional rights. In addition, in her Seventh Cause
of Action Mahach-Watkins brought a claim under 42 U.S.C.
§ 1985(3) alleging a failure to prevent civil rights violations
and a conspiracy to cover up such violations. Mahach-
Watkins’s state-law claims included wrongful death, assault
and battery, intentional infliction of emotional distress, negli-
gence, and negligent hiring, training and retention.
After motions to dismiss, to strike, and for summary judg-
ment, only three claims survived, as to which Depee was the
sole defendant. The claims were a § 1983 Fourth Amendment
claim by Mahach-Watkins, a § 1983 Fourth Amendment
claim by Watkins’s estate, and a state-law wrongful death
claim by Mahach-Watkins. The district court held a three-
week jury trial, divided into liability and damages phases. At
the conclusion of the liability phase, the jury returned a ver-
dict against Depee on the estate’s § 1983 Fourth Amendment
excessive force claim and Mahach-Watkins’s state-law
wrongful death claim.
In the damages phase, the district court instructed the jury
that it could return an award of only one dollar in nominal
damages on the § 1983 claim, irrespective of what the evi-
dence showed. The court instructed the jury that it could
return an award on the wrongful death claim in whatever
amount the evidence supported. At the conclusion of the dam-
ages phase, the jury awarded one dollar in nominal damages
on each of the two claims.
Mahach-Watkins moved for a new trial on the issue of
damages on the wrongful death claim. The district court
denied the motion, explaining that in its view the evidence in
support of damages was consistent with the jury’s verdict. In
the court’s words, the evidence showed a “complicated pic-
ture of the relationship” between Watkins and his mother.
MAHACH-WATKINS v. DEPEE 1831
Although Mahach-Watkins testified that she and her son
“loved each other and had a close relationship,” the evidence
showed that Watkins had threatened his mother “on several
occasions,” that she was “afraid of him and periodically
requested police assistance with him,” that he “had difficulty
forming any meaningful relationships,” and that he “had a
serious history of poorly-managed psychiatric instability.”
Mahach-Watkins moved for attorney’s fees and costs under
42 U.S.C. § 1988 based on the jury’s favorable verdict on the
§ 1983 claim. She sought $686,796.74 in attorney’s fees and
$117,654.68 in costs. The district court tolled the time for tak-
ing an appeal in order to consider the motion for fees. The
court awarded $136,687.35 in attorney’s fees, reducing the
requested amount due to Mahach-Watkins’s limited success
in her § 1983 suit. The court held that Mahach-Watkins was
entitled to recover costs under Federal Rule of Civil Proce-
dure 54, but wrote that it was unable to determine the amount
without more information. The court denied the motion for
costs and authorized Mahach-Watkins to file a renewed
motion after the clerk taxed costs.
Depee appealed the award of attorney’s fees. Mahach-
Watkins did not file a timely cross-appeal.
II. Standard of Review
We review an award of attorney’s fees for abuse of discre-
tion. Benton v. Or. Student Assistance Comm’n, 421 F.3d 901,
904 (9th Cir. 2005). A district court abuses its discretion if it
awards fees based on an erroneous view of the law or a
clearly erroneous finding of fact. Id.
III. Discussion
This appeal presents three issues. First, Mahach-Watkins
argues that because the district court had not fully resolved
her motion for attorney’s fees and costs when Depee filed his
1832 MAHACH-WATKINS v. DEPEE
notice of appeal, the appeal was premature. Second, Depee
argues that because Mahach-Watkins obtained only one dollar
in nominal damages on the § 1983 claim, she is not entitled
to attorney’s fees under Farrar v. Hobby, 506 U.S. 103
(1992). Third, Mahach-Watkins argues that the district court
abused its discretion in reducing the amount of attorney’s
fees.
A. Timeliness of Appeal
Mahach-Watkins contends that Depee’s notice of appeal
was filed prematurely and that we therefore have no jurisdic-
tion. We disagree.
[1] Mahach-Watkins filed a motion for attorney’s fees and
costs on November 14, 2007. On November 20, 2007, she
requested, pursuant to Federal Rule of Civil Procedure 58(e),
that the district court extend the time for filing an appeal until
the motion was decided. The district court granted the motion.
Rule 58(e) provides:
Ordinarily, the entry of judgment may not be
delayed, nor the time for appeal extended, in order
to tax costs or award fees. But if a timely motion for
attorney’s fees is made under Rule 54(d)(2), the
court may act before a notice of appeal has been
filed and become effective to order that the motion
have the same effect under Federal Rule of Appellate
Procedure 4(a)(4) as a timely motion under Rule 59.
Federal Rule of Appellate Procedure 4(a)(4) provides:
If a party timely files in the district court any of the
following motions under the Federal Rules of Civil
Procedure, the time to file an appeal runs for all par-
ties from the entry of the order disposing of the last
such remaining motion . . . .
MAHACH-WATKINS v. DEPEE 1833
The motions referenced in Rule 4(a)(4) include a motion “for
attorney’s fees under Rule 54 if the district court extends the
time to appeal under Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii).
Therefore, once the district court granted Mahach-Watkins’s
Rule 58(e) motion, the time to file the appeal ran from the
entry of the order disposing of the motion for attorney’s fees.
[2] The district court ruled on Mahach-Watkins’s motion
for attorney’s fees on February 25, 2008. At the same time,
it denied without prejudice her motion for costs, permitting
her to renew the motion after the clerk of the court had taxed
costs. The resolution of the costs motion could have no effect
on the resolution of the attorney’s fees motion. Because the
court’s February 25 ruling entirely disposed of Mahach-
Watkins’s motion for attorney’s fees, the parties had 30 days
from that date to file their notices of appeal. See Fed. R. App.
P. 4(a)(1)(A). Depee timely filed his notice of appeal on
March 25, 2008.
B. Entitlement to Attorney’s Fees
[3] In an action brought pursuant to 42 U.S.C. § 1983, “the
court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee as part of the costs . . . .” 42 U.S.C.
§ 1988(b). A plaintiff who receives a nominal damage award
for a § 1983 claim is a prevailing party under § 1988. Farrar,
506 U.S. at 112. However, under Farrar, “[i]n a civil rights
suit for damages . . . the awarding of nominal damages [ ]
highlights the plaintiff ’s failure to prove actual, compensable
injury.” Id. at 115. A nominal damages award often “accom-
plishe[s] little beyond giving petitioners ‘the moral satisfac-
tion of knowing that a federal court concluded that [their]
rights had been violated’ in some unspecified way.” Id. at 114
(second alteration in original) (quoting Hewitt v. Helms, 482
U.S. 755, 762 (1987)). Therefore, “[w]hen a plaintiff recovers
only nominal damages because of his failure to prove an
essential element of his claim for monetary relief, the only
reasonable fee is usually no fee at all.” Id. at 115 (internal
1834 MAHACH-WATKINS v. DEPEE
citation omitted). We follow the general rule, derived from
Justice O’Connor’s concurrence in Farrar, that “[i]f a district
court chooses to award fees after a judgment for only nominal
damages, it must point to some way in which the litigation
succeeded, in addition to obtaining a judgment for nominal
damage.” Wilcox v. City of Reno, 42 F.3d 550, 555 (9th Cir.
1994) (emphasis in original).
[4] There are three factors a district court should consider
in determining whether a plaintiff succeeded in some way
beyond the judgment for nominal damages. First, the court
should consider “[t]he difference between the amount recov-
ered and the damages sought,” which in most nominal dam-
ages cases will disfavor an award of fees. Farrar, 506 U.S. at
121 (O’Connor, J., concurring). Second, the court should con-
sider “the significance of the legal issue on which the plaintiff
claims to have prevailed.” Id. Third, the court should consider
whether the plaintiff “accomplished some public goal.” Id.
We have approved of the consideration of these factors in
nominal damages cases. Cummings v. Connell, 402 F.3d 936,
947 (9th Cir. 2005); Benton, 421 F.3d at 905-06. We have
held that “[w]here the district court properly has weighed
[these three] factors, the resulting award [of attorney’s fees]
is not an abuse of its discretion.” Cummings, 402 F.3d at 947.
In awarding attorney’s fees in this case, the district court
wrote a careful order emphasizing the second and third fac-
tors. The court wrote that a case resulting in a wrongful death
“involves significant legal issues, serves a public purpose, and
affirms important rights, regardless of the amount of damages
recovered.” It wrote, further, that “the constitutional rights at
stake in a wrongful death case are of a different magnitude
than those at issue in non-death cases, and . . . cases such as
the instant one present questions of vital importance to the
public.” Finally, the court found “that, in addition to obtaining
nominal damages, plaintiff achieved other ‘tangible results’ in
that the jury’s verdict will likely deter defendant Depee from
engaging in future unconstitutional conduct.”
MAHACH-WATKINS v. DEPEE 1835
We consider the three factors below.
1. Amount of Damages Sought and Recovered
The first factor looks to the difference between the amount
of damages sought and recovered.
In her first amended complaint, Mahach-Watkins did not
specify an amount of damages. Relevant to the § 1983 exces-
sive force claim, she sought only general and punitive dam-
ages “in an amount to be determined according to proof at
trial.” At the end of the damages phase trial, the court
instructed the jury on the § 1983 claim that, as a matter of
law, it “must award nominal damages of no more than one
dollar.” The jury returned a verdict of one dollar, the maxi-
mum allowed under the instruction. The court also instructed
the jury that it could award punitive damages on the § 1983
claim if it found that Depee’s conduct was “malicious,
oppressive or in reckless disregard” of Watkins’s rights. The
jury declined to award punitive damages.
Mahach-Watkins had argued for a jury instruction that
would have allowed the jury to award compensatory damages
to her son’s estate on the § 1983 excessive force claim for
pain and suffering between the time he was shot and the time
he died. In justifying its instruction allowing only nominal
damages, the district court wrote, “The Ninth Circuit has not
addressed the question of what damages are available under
a Section 1983 wrongful death claim.” In the absence of a
Ninth Circuit holding on the point, the district court con-
cluded that the available damages on the § 1983 excessive
force claim were “those set forth in California’s survival stat-
ute, Cal. Code Civ. Proc. § 377.34, [which] does not allow
recovery for the decedent’s loss of enjoyment of life, or the
decedent’s pain and suffering.” Mahach-Watkins has not
appealed that ruling. We therefore assume without deciding
that as a matter of law compensatory damages were not avail-
able to the estate on the § 1983 excessive force claim.
1836 MAHACH-WATKINS v. DEPEE
In Romberg v. Nichols, 48 F.3d 453, 454 (9th Cir. 1995),
plaintiffs had sought $2 million dollars in compensatory and
punitive damages. However, in closing argument to the jury,
plaintiffs requested only “some sum like one dollar.” Id. We
denied attorney’s fees. We wrote, “An attorney cannot avoid
Farrar’s mandate by waiting until the close of trial and then,
when he perceives that his clients have little chance of suc-
cess, asking for only nominal damages to justify an attorney’s
fee award.” Id. at 455.
The case now before us is not on all fours with Romberg.
In Romberg, the plaintiffs’ problem was that their evidence
did not support their damages claim for $2 million dollars.
Here, by contrast, Mahach-Watkins did not seek a specified
amount of damages. Rather, she sought only an award of
compensatory damages “according to proof at trial.” Further,
and more important, the district court determined that evi-
dence of actual harm was irrelevant to Mahach-Watkins’s
§ 1983 claim, instructing the jury as a matter of law that she
was entitled to nominal rather than compensatory damages.
We do not read Romberg to hold that in a § 1983 case in
which only nominal damages are available as a matter of law
a verdict awarding such damages is less than a complete suc-
cess. See, e.g., Farrar, 506 U.S. at 115 (“When a plaintiff
recovers only nominal damages because of his failure to
prove an essential element of his claim for monetary relief,
the only reasonable fee is usually no fee at all.” (emphasis
added) (internal citation omitted)). But the case before us is
not one in which it was clear from the outset that only nomi-
nal damages would be available as a matter of law. First,
Mahach-Watkins brought several § 1983 claims. She obtained
a verdict on only the excessive force claim. Second, the dis-
trict court believed that the law in the Ninth Circuit was
unclear as to the availability of compensatory damages to an
estate on a § 1983 excessive force claim resulting in death.
Mahach-Watkins sought to persuade the district court that
compensatory damages were available. She was unsuccessful
MAHACH-WATKINS v. DEPEE 1837
in that attempt and has not appealed the district court’s
adverse ruling.
[5] In sum, Mahach-Watkins sought an award of an indeter-
minate amount of compensatory and punitive damages on her
§ 1983 claims. She obtained a verdict on her § 1983 excessive
force claim and then obtained an award of only nominal dam-
ages. As we discuss below, her success in achieving a liability
verdict was significant, independent of any damage award.
But the first factor looks only to the difference between the
damages sought and obtained. In the circumstances of this
case, that factor somewhat disfavors an award of attorney’s
fees.
2. Significance of the Legal Issue on Which Mahach-
Watkins Prevailed
The second factor looks to “the significance of the legal
issue on which the plaintiff claims to have prevailed.” Farrar,
506 U.S. at 121 (O’Connor, J., concurring).
We have repeatedly noted the relevance of this second fac-
tor. See, e.g., Benton, 421 F.3d at 905; Morales v. City of San
Rafael, 96 F.3d 359, 363 (9th Cir. 1996). Other circuits have
also done so. See, e.g., Mercer v. Duke Univ., 401 F.3d 199,
206 (4th Cir. 2005) (“This factor is concerned with the gen-
eral legal importance of the issue on which the plaintiff pre-
vailed.”); Maul v. Constan, 23 F.3d 143, 145 (7th Cir. 1994)
(“[W]e understand the second Farrar factor to address the
legal import of the constitutional claim on which plaintiff pre-
vailed.”); Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir.
1993) (“The second factor considers the significance of the
legal issue on which the plaintiffs prevailed. This factor looks
not at the relief obtained but to the extent the plaintiffs suc-
ceeded on their theory of liability.”).
[6] The district court emphasized the importance of the
legal issue in this case, whether state-sanctioned force result-
1838 MAHACH-WATKINS v. DEPEE
ing in death was excessive. The importance of the issue may
be assessed by comparing it to other issues that our sister cir-
cuits have held to qualify as important under this factor. See,
e.g., Mercer, 401 F.3d at 206 (right to be free from discrimi-
nation in school sponsored contact sports); Piper v. Oliver, 69
F.3d 875, 877 (8th Cir. 1995) (right to be free from illegal
detention); Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir.
1994) (right to be free from cruel and unusual punishment).
We have difficulty imagining a more important issue than the
legality of state-sanctioned force resulting in death. It is obvi-
ously of supreme importance to anyone who might be subject
to such force. But it is also of great importance to a law
enforcement officer who is placed in a situation where deadly
force may be appropriate. We therefore conclude that the sec-
ond factor supports the award of attorney’s fees.
3. Public Goal
The third factor looks to whether the plaintiff accomplished
some public goal.
Depee contends that no public goal was accomplished
because his employer, the CHP, investigated the shooting and
concluded that his use of force was legally justified. Depee
relies on our opinion in Wilcox v. City of Reno, 42 F.3d 550,
555 (9th Cir. 1994), where we wrote:
If the [§ 1983] lawsuit achieved other tangible
results—such as sparking a change in policy or
establishing a finding of fact with potential collateral
estoppel effects—such results will, in combination
with an enforceable judgment for a nominal sum,
support an award of fees.
In support of Depee’s opposition to an award of attorney’s
fees, the Chief of the CHP’s Northern Division provided a
sworn declaration to the district court. He stated, inter alia:
MAHACH-WATKINS v. DEPEE 1839
Officer Larry Depee was not disciplined as a
result of the shooting on December 9, 2003 or this
litigation. The CHP investigation determined that
Officer Depee’s use of force was legally justified
and consistent with CHP’s use of force policy. . . .
Whether or not claims of excessive force are filed,
the CHP investigates every shooting incident involv-
ing an officer to review policies and practices and to
determine issues of employee misconduct. The CHP
investigated the shooting in this case. It did not alter
or change any of its law enforcement policies and
practices as a result of the investigation or this law-
suit. In its experience, the vast majority of excessive
force complaints are fact-specific claims which, like
the instant litigation, do not result in policy or prac-
tice changes.
[7] We are unwilling to conclude that no public goal was
served by Mahach-Watkins’s § 1983 verdict merely because
the CHP disagreed with the jury’s conclusion that its officer
used excessive force in violation of the Fourth Amendment,
and because the CHP has refused either to discipline the offi-
cer or to change its policies. The CHP has come to its own
conclusions about the legality of Depee’s use of force. But the
CHP’s exoneration of Depee does not mean that his action
was, in fact, appropriate. Indeed, we are bound to conclude
otherwise, given the unappealed jury verdict that Depee used
unconstitutionally excessive force in killing Watkins.
[8] It is possible that the CHP will continue, as it has said
it will, to follow its current “policies and practices” concern-
ing the use of force despite the jury’s conclusion that Officer
Depee acted unconstitutionally. However, this does not mean
that Mahach-Watkins’s § 1983 suit, and the jury’s verdict that
Depee used excessive force, accomplished no public goal.
With respect to Depee, the district court wrote: “The Court
. . . finds that, in addition to obtaining nominal damages,
1840 MAHACH-WATKINS v. DEPEE
plaintiff achieved other ‘tangible results’ in that the jury’s
verdict will likely deter defendant Depee from engaging in
future unconstitutional conduct.” Further, the verdict had the
deterrent effect we described in Morales, 96 F.3d at 364-65:
“[T]he verdict established a deterrent to . . . others who estab-
lish and implement official policies governing arrests of citi-
zens. Thus, it served the public purpose of helping to protect
Morales and persons like him from being subjected to similar
unlawful treatment in the future.” The CHP’s stated choice to
ignore that deterrent does not minimize the importance of the
case to others. We therefore conclude that the third factor
favors the award of attorney’s fees.
4. Summary
[9] The core of Mahach-Watkins’s suit has always been her
contention that Depee acted improperly in killing her son. The
jury agreed with her, holding under § 1983 that Depee used
unconstitutionally excessive force. The jury’s liability verdict
on the § 1983 claim was hardly a hollow victory for a mother
suing for the death of her son. The jury did not give Mahach-
Watkins everything she asked for, but it gave her enough to
entitle her to an award of attorney’s fees under § 1988.
C. Size of the Award
Mahach-Watkins did not file a timely cross appeal. Despite
her failure to cross-appeal, she seeks to argue that the district
court abused its discretion in reducing her attorney’s fees
request. In his appeal, Officer Depee argues only that
Mahach-Watkins is entitled to no attorney’s fees. He makes
no explicit argument, in the alternative, that if she is entitled
to fees the district court’s award is too high.
[10] We generally require a cross-appeal when a party
seeks to enlarge her substantive rights. Doherty v. Wireless
Broad. Sys., 151 F.3d 1129, 1131 (9th Cir. 1998). Under this
rule, “we have required a cross-appeal when a party seeks to
MAHACH-WATKINS v. DEPEE 1841
increase its monetary recovery or decrease its monetary liabil-
ity.” Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102,
1107 (9th Cir. 2001). “Because the cross-appeal requirement
is a rule of practice and not a jurisdictional bar,” we have
“ ‘broad power to make such dispositions as justice
requires.’ ” Id. (quoting Bryant v. Technical Research Co.,
654 F.2d 1337, 1342 (9th Cir. 1981)). Because the issues
raised by Mahach-Watkins in challenging the district court’s
reduction of her fee award are interrelated to the issues prop-
erly on appeal, we can consider them. Id. at 1107.
[11] We are willing to consider Mahach-Watkins’s argu-
ment as to the amount of fees. Because we consider her argu-
ment, we construe Officer Depee’s appeal broadly to include
a challenge to the amount of fees. We therefore consider the
district court’s fee award from both directions. The court care-
fully considered the three factors derived from Farrar and
provided a written order justifying its conclusion that a sub-
stantial reduction of the fee request was appropriate in light
of Mahach-Watkins’s limited success. We hold that the dis-
trict court acted within its discretion in awarding $136,687.35.
Conclusion
For the foregoing reasons, we affirm the district court’s
award of attorney’s fees.
AFFIRMED.