9th Cir.: Appeals court can't second-guess fees for mooted claims

The Ninth Circuit reinstated an attorneys’ fees award it had previously vacated in an environmental case, holding that the court of appeals cannot review the merits of a mooted claim in deciding whether fees were proper.

The court suggested that this may lead to questionable results, but that there is no principled basis for delving into the merits of moot claims. Center for. Biological Diversity v. Marina Point Development Co., --- F.3d ----, 2009 WL 792533 (9th Cir. Mar. 27, 2009) (No. 06-56193).

 

          Plaintiffs challenged a planned condominium development in California under the Clean Water Act (CWA) and the Endangered Species Act (ESA). The district court entered judgment for plaintiffs, but the panel held that the CWA claim failed because plaintiffs failed to send defendants a sufficiently specific notice of intent to sue as required under that Act; and that the ESA claim was now moot because the bald eagle had been de-listed as an endangered species. In its initial decision, the panel also reversed fees and contempt orders issued by the district court. 535 F.3d 1026 (9th Cir. 2008).

 

          On petition for rehearing, the panel has now amended its order as to fees, stating that “segregation is now required because the portion of the award based upon the CWA must fall, while the portion based upon the ESA must stand.”  The court said “it cannot be gainsaid” that until the ESA claim became moot, the judgment gave plaintiffs relief sufficient to make them a prevailing party, and that “mootness alone does not preclude an award of attorneys’ fees.” See Richard S. v. Dep't of Dev. Servs. of State of Cal., 317 F.3d 1080, 1088-89 (9th Cir. 2003).

 

          The court further stated that “the weight of authority strongly indicates that when a matter becomes moot on appeal, the court will not, and cannot, review the merits of the underlying dispute for the purpose of determining whether an award of attorney fees was proper. That is to say, although it can consider whether the plaintiff prevailed at all, it cannot ask whether the district court's underlying decision on the merits was erroneous.” The court cited Diamond v. Charles, 476 U.S. 54, 69-72 (1985), as well as a long string of decisions from this and other circuits. While the panel suggested that the result of this rule “may be somewhat disquieting at times, we see no ultimately principled and persuasive reason to deviate from … the wide agreement by appellate judges that they should not undertake to delve into the details of a district court's resolution of a controversy that has since become moot in order to decide the ancillary question of fees.”

 

          Accordingly, the panel remanded for determination of the portion of the fee award attributable to the ESA claim. It did refused to revive the contempt order, however, stating that it “must inexorably fall along with the judgment itself.”

         Judge Rymer concurred reluctantly, saying the panel was bound by language in UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189 (9th Cir. 2007). She questioned the "wisdom" of that precedent however. "It isn't obvious," she mused, "has nevertheless prevailed such that fees are appropriately recoverable for all the work along the way.”

        Dissenting in part, Judge Kleinfeld would have distinguished UFO Chuting. The panel in that case determined that an intervening change in law was not sufficient reason to vacate a fee award based on proprerly awarded temporary relief, but the panel ultimately denied fees on the ground that the mootness of the case left the plaintiffs without a direct and substantial benefit. At any event, UFO Chuting didn't cite or discuss Sole v. Wyner, 551 U.S. 74 (2007) (summary), which held that fees are not available when a final judgment undoes preliminary relief.