This case is now visiting the Ninth Circuit Court of Appeals for the second time. See, Bernhardt v. County of Los Angeles, (9^th Cir., 2002) 279 F.3d 862. ⁽¹⁾  The issue of subject matter jurisdiction in the district court was resolved in appellant's favor in that appeal. ⁽²⁾

(a) The statutory basis for subject matter jurisdiction of the district court was that the case involved a federal question, to wit, deprivation of federal civil rights under color of law in violation of 42 U.S.C. Section 1983, ⁽³⁾ so the district court had jurisdiction under 28 U.S.C. Section 1331. The district court also had jurisdiction under 28 U.S.C. Section 1343(a)(4) because the action sought to recover damages under an Act of Congress providing for the protection of civil rights .

The date of entry of the order denying preliminary injunction was July 22, 2002. ⁽⁴⁾ The notice of appeal was filed August 19, 2002, ⁽⁵⁾ and was therefore timely under F.R.A.P. 4(a)(1).

The Court of Appeals has jurisdiction under 28 U.S.C. Section 1292(a) because this is an appeal from an order of the district court refusing a preliminary injunction.

A. Does enforcement of a "lump sum including all attorney's fees" settlement policy effectively repeal a federal law - 42 USC Section 1988(b) ("Fees Act") ⁽⁶⁾ - in violation of the Supremacy Clause?

B. Can a judicially-created policy favoring settlements trump a Congressionally-created policy designed "to attract competent counsel to represent citizens deprived of their civil rights?" ⁽⁷⁾

C. Is there any evidence that prohibiting "lump sum including all attorney's fees" settlements will inhibit settlements?

D. Did the district court err in denying plaintiff-appellant Angela Bernhardt ("Bernhardt") a preliminary injunction to stop a Los Angeles County ("County") policy of settling civil rights lawsuits on a "lump sum, including all attorneys fees" basis so she could obtain a lawyer as Congress intended in enacting the Fees Act? In particular, did the district court base its decision on erroneous legal premises or clearly erroneous findings of fact as follows:

1. Did the district court base its decision on the erroneous legal premise that Bernhardt could not establish a likelihood of success on the merits because Evans v. Jeff D. ⁽⁸⁾ approved "lump sum" settlements?

2. Did the district court base its decision that the "lump sum including all attorney's fees" settlement policy was valid as a matter of law on the erroneous legal premise that Evans v. Jeff D., supra, held it would promote the purposes of the Fee's Act?

3. Did the district court make a clearly erroneous finding of fact that Bernhardt had not demonstrated that the policy has had the effect of shrinking the pool of lawyers willing to represent plaintiffs in civil rights actions?

4. Did the district court make a clearly erroneous finding of fact or law that Bernhardt's underlying case was not meritorious?

5. Did the district court make a clearly erroneous finding of fact that Bernhardt had not shown that her case fell within any of the Evans exceptions so that she was unlikely to succeed on the merits?

6. Did the district court make a clearly erroneous finding of fact when it held that Bernhardt had not established she will suffer irreparable harm?

7. Did the district court base its decision on the erroneous legal premise that Bernhardt's lawsuit does not present a serious question?

8. Did the district court base its decision on the erroneous legal premise that the balance of hardships favored denial of the preliminary injunction?

9. Did the district court base its decision on the erroneous legal premise or factual finding that the public interest favored denial of the preliminary injunction?

The standard of review on appeal of denial of a motion for preliminary injunction is that an order denying a preliminary injunction "is reviewed to determine whether the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact." ⁽⁹⁾

This case is about the County of Los Angeles and its attorney ("County") repealing a federal statute, 42 U.S.C. Section 1988(b), in violation of the Supremacy Clause. ⁽¹⁰⁾

This case is also about whether a judicially-created policy favoring settlements can trump a Congressionally-created policy designed "to attract competent counsel to represent citizens deprived of their civil rights?" ⁽¹¹⁾

And this case is about whether there is any evidence that enjoining "lump sum including all attorney's fees" settlement policies would inhibit settlements.

The County enforces a "lump sum, including all attorney's fees" settlement policy in civil rights cases. When plaintiffs accept such a settlement, attorneys cannot resist because of their legal and ethical duties and regardless of their contracts with their clients. Since 98% of the cases settle, attorneys have lost substantial statutory attorneys fees. Consequently, they cannot afford to represent victims with modest economic claims such as Bernhardt. Thus, the County deprived Bernhardt, under color of law, of an implied statutory federal right - the right created by enactment of 42 U.S.C. Section 1988 to contract with an attorney -- in exchange for representation -- that the attorney would have the enforceable right to apply for and collect statutory attorney's fees in the event plaintiff prevailed by settlement. Bernhardt unsuccessfully sought an injunction against the policy so that she could obtain a lawyer in this case. As shown below, the district erred in denying the motion for preliminary injunction and should be reversed.

Plaintiff filed her initial complaint October 4, 1999. The magistrate judge dismissed it sua sponte for lack of subject matter jurisdiction with leave to amend. Ultimately plaintiff filed a second amended complaint ("complaint"), defendants answered, and the next day, the magistrate judge filed his report recommending dismissal without prejudice for lack of subject matter jurisdiction.

On February 14, 2000, the district court adopted the magistrate judge's recommendations and made a judgment dismissing the "complaint and the entire action" without prejudice. The judgment was entered February 22, 2000 and Bernhardt appealed to this Court. The appeal was decided in Bernhardt v. County of Los Angeles, (9^th Cir., 2002) 279 F.3d 862. ⁽¹²⁾  This Court reversed and remanded holding, inter alia, that while Bernhardt still had a viable damage claim, because Bernhardt's merits case had been finally dismissed, her need for a lawyer in that case was moot.

But Bernhardt still needed a lawyer in the instant case.

Accordingly, she sought and obtained a stipulation ⁽¹³⁾ from defendants that she could file a third amended complaint ⁽¹⁴⁾ clarifying that she was seeking an injunction so she could obtain a lawyer in theinstant case, but the district court denied leave to file it. ⁽¹⁵⁾

But the operative verified second amended complaint contained Bernhardt's in pro per claim that she "cannot obtain a lawyer to represent plaintiff in . . . this case." ⁽¹⁶⁾ This claim had not been addressed by this Court in Bernhardt I.

On July 1, 2002, Bernhardt filed a motion for a preliminary injunction so that she could obtain a lawyer. ⁽¹⁷⁾ The County opposed, ⁽¹⁸⁾ Bernhardt replied, ⁽¹⁹⁾ and, without oral argument , the district court denied the motion for preliminary injunction. ⁽²⁰⁾ This appeal followed. ⁽²¹⁾

The district court subsequently filed Findings of Fact and Conclusions of Law. ⁽²²⁾

Bernhardt requested a stay pending appeal ⁽²³⁾ which the district court denied. ⁽²⁴⁾

On October 6, 1998, Los Angeles County deputy sheriffs deprived Bernhardt of her federal civil rights by using excessive force on her and falsely imprisoning her. ⁽²⁵⁾ She had a claim under 42 U.S.C. Section 1983 for deprivation under color of law of her constitutional rights. But she could not find a lawyer to represent her because she could not afford one, and because of the County's "lump sum, including all attorney's fees" settlement policy. But for that policy, she would have been able to obtain a lawyer. ⁽²⁶⁾

On July 1, 2002, Bernhardt filed a motion for a preliminary injunction to prohibit the County from employing its "lump sum, including all attorney's fees" settlement policy so that she could obtain an attorney to represent her in this case. ⁽²⁷⁾ She filed Points and Authorities in Support, ⁽²⁸⁾ her own declaration, ⁽²⁹⁾ and the declarations of two attorneys. ⁽³⁰⁾

Bernhardt is "not a lawyer. . . . [and] is unschooled in the law." ⁽³¹⁾ She "cannot afford to hire a lawyer on an hourly basis." ⁽³²⁾ And she needs a "competent federal civil rights lawyer to represent her in this action." ⁽³³⁾

After the decision in Bernhardt I, Bernhardt contacted 34 civil rights attorneys and asked them to represent her in this case. Each lawyer declined. ⁽³⁴⁾

One civil rights lawyer, Robert A. Seeman, - a former Los Angeles Deputy City Attorney - told Bernhardt he was aware of the County's "lump sum, including all attorney's fees" settlement policy, and that the policy had precluded him from representing many victims of civil rights abuse who had important but only modest economic or only equitable claims. ⁽³⁵⁾ He told Bernhardt that "if the court were to declare the policy unconstitutional or enjoin its enforcement, he would be able and willing to represent such victims." ⁽³⁶⁾ He wrote Bernhardt a letter stating that the policy was "a reason why he was unable to accept" her case and stated that if the County policy were enjoined or declared unconstitutional, he would be "inclined to represent" Bernhardt. ⁽³⁷⁾

Attorney Seeman is "aware of Los Angeles' County's 'lump sum, including all attorney's fees' settlement policy." ⁽³⁸⁾ The policy has "precluded [Seeman] from representing many victims of civil rights abuse who have important but only modest economic or only equitable claims [footnote omitted]. ⁽³⁹⁾ Attorney Seeman "would be able and willing to represent such victims . . . [i]f the court were to declare the policy unconstitutional or enjoin its enforcement . . . ." ⁽⁴⁰⁾

After the decision in Evans v. Jeff D., supra, numerous public entities in Southern California began entering into settlements of civil rights cases only upon a "lump sum, including all attorney's fees" basis. That is the policy of the County of Los Angeles. ⁽⁴¹⁾

Such policies of governmental entities in Southern California prevented one civil rights lawyer, over the past 16 years, from applying for almost $3 million in statutory attorney's fees under the Fees Act, ⁽⁴²⁾ and "rendered him financially unable to represent victims of civil rights abuse whose claims involve only modest damages or equitable relief." ⁽⁴³⁾ Bernhardt presented both her merits case and the instant case to the lawyer and asked him to represent her, but he told her he could not do so because of the County's settlement policy. ⁽⁴⁴⁾

The lawyer would represent her if the injunction sought here were granted. ⁽⁴⁵⁾

The County responded offering only the following facts:

"[A]s of July 3, 2002, County Counsel databases reflect that the County was defending against over 250 active cases involving civil rights allegations under the Civil Rights Act, 42 U.S.C. Section 1983." ⁽⁴⁶⁾

"[A]s of July 8, 2002, County Counsel databases reflect that the County has at least 150 active claims filed under the Government Tort Claims Act which allege civil rights violations." ⁽⁴⁷⁾

A. By enforcing the "lump sum including all attorney's fees" settlement policy, the County is repealing a federal statute - the Fees Act - in violation of the Supremacy Clause.

B. A judicially-created policy favoring settlement cannot trump a Congressional policy designed to attract competent counsel to represent citizens deprived of civil rights.

C. There is no evidence that enjoining the "lump sum" settlement policy would inhibit settlements; to the contrary, logically an injunction should encourage settlements.

D. The district court erred in denying Bernhardt a preliminary injunction to stop the County policy of settling civil rights lawsuits on a "lump sum, including all attorneys fees" basis so she could obtain a lawyer as Congress intended in enacting the Fees Act. In particular, the district court based its decision on erroneous legal premises or clearly erroneous findings of fact as follows:
 

1. The district court based its decision on the erroneous legal premise that Bernhardt could not establish a likelihood of success on the merits because Evans v. Jeff D. ⁽⁴⁸⁾ approved "lump sum" settlements.

2. The district court based its decision that the "lump sum including all attorney's fees" settlement policy was valid as a matter of law on the erroneous legal premise that Evans v. Jeff D., supra, held it would promote the purposes of the Fee's Act.

3. The district court made a clearly erroneous finding of fact that Bernhardt had not demonstrated that the policy has had the effect of shrinking the pool of lawyers willing to represent plaintiffs in civil rights actions.

4. The district court made a clearly erroneous finding of fact or law that Bernhardt's underlying case was not meritorious.

5. The district court made a clearly erroneous finding of fact that Bernhardt had not shown that her case fell within any of the Evans exceptions so that she was unlikely to succeed on the merits.

6. The district court made a clearly erroneous finding of fact when it held that Bernhardt had not established she will suffer irreparable harm.

7. The district court based its decision on the erroneous legal premise that Bernhardt's lawsuit does not present a serious question.

8. The district court based its decision on the erroneous legal or factual premise that the balance of hardships favored denial of the preliminary injunction.

9. The district court based its decision on the erroneous legal premise or factual finding that the public interest favored denial of the preliminary injunction.

It is beginning to appear that the idea of Bernhardt obtaining a lawyer has not put the district court in a particularly festive mood. The district court stated, "[P]ro per plaintiffs do not get bad representation, pro per plaintiffs get a good representation from the judge. You [Bernhardt] had as good a representation as we could give you . . . ." ⁽⁴⁹⁾  Obviously, the district judge cannot represent Bernhardt. The district court is a judicial arbiter, not an advocate for any party, pro per or represented. However, if the district judge has been representing Bernhardt, the job was botched. The district court sua sponte dismissed Bernhardt's complaint for lack of standing and this Court reversed. This suggests that Bernhardt needs a different lawyer. Now the district court has denied Bernhardt an injunction. Bernhardt clearly needs a different lawyer.

And the district court explicated a view of the "lump sum, including all attorney's fees" settlement policy which is incongruent with the suggested law in this Circuit and the law of the U.S. Supreme Court. The district court said, "The reason there is no preliminary injunction is because the policy is a good policy, because judges cannot do attorney's fees." ⁽⁵⁰⁾

In fact, the law is that judges can "do" - i.e. decide about - statutory attorney's fees. They are required to. ⁽⁵¹⁾ And the lodestar formula is well-established as a minimum award which is not to be reduced because of a modest recovery on the merits. ⁽⁵²⁾ But the cogent point is that the district court believed the "lump sum including all attorney's fees" settlement policy to be a "good" policy for whatever reason. However "good" the policy may be for purposes of the district court, or the County, the question this Court should address and answer is whether it repeals a federal law in violation of the Supremacy Clause.

Federal law is the supreme law of the land. ⁽⁵³⁾ Congress intended to do something when it enacted the Fees Act. The U.S. Supreme Court has stated that Congress intended to "to attract competent counsel to represent citizens deprived of their civil rights." ⁽⁵⁴⁾ Presumably, the way to attract competent counsel is to offer the possibility of collection of statutory attorney's fees if the client "prevails." Since 98% of all civil rights actions terminate other than by verdict, the County settlement policy obliterates that possibility and erases any economic attraction for competent counsel to represent victims of civil rights abuse with modest monetary or only equitable claims. As a direct result, Bernhardt has been unable to obtain a lawyer, denying her effective access to the courts.

The Supremacy Clause would invalidate a County ordinance which prohibited collection of federal income taxes from County residents. Similarly, the Supremacy Clause invalidates a policy which prohibits application for attorney's fees under the Fees Act. The prohibition arises because lawyers cannot ethically interfere with a settlement desired by the client. In California, such interference or delay is a crime. "Every attorney is guilty of a misdemeanor who ... [w]illfully delays his client's suit with a view to his own gain." ⁽⁵⁵⁾

Indeed, in Evans, the Supreme Court expressly foreshadowed claims by plaintiffs in Bernhardt's position:

"We are cognizant of the possibility that decisions by individual clients to bargain away fee awards may, in the aggregate and in the long run, diminish lawyers' expectations of statutory fees in civil rights cases. If this occurred, the pool of lawyers willing to represent plaintiffs in such cases might shrink, constricting the 'effective access to the judicial process' for persons with civil rights grievances which the Fees Act was intended to provide. H.R.Rep. No. 94 1558, p. 1 (1976). That the 'tyranny of small decisions' may operate in this fashion is not to say that there is any reason or documentation to support such concern at the present time [1986]. Comment on this issue is therefore premature at this juncture. 475 U.S. at 741 n. 34, 106 S.Ct. 1531." ⁽⁵⁶⁾

Accordingly, this Court should expressly hold that the County policy violates the Supremacy Clause.

As shown in Section C below, the dicta in Evans to the effect that unless statutory attorney's fees can be obliterated, settlements would be more difficult to achieve is unsupported by evidence and logically unsound. But even if it were supported by evidence or logic, it would not be grounds for approving the "lump sum" settlement policy.

No federal statute exists which provides "to promote settlements, the provisions of the Fees Act shall be inapplicable when a settlement occurs." The policy of promoting settlements is a judicially-created policy. And judges cannot impose their policies to abolish a Congressional policy designed to attract competent counsel to represent victims of civil rights abuse. Thus, even if "lump sum" settlement policies did promote settlements, the Court cannot allow that to undermine Congressional intent. A County policy of shooting to death all civil rights lawyers on the eve of trial would unquestionably promote settlements, but ought to run afoul of other legal prohibitions. A similar County policy which, on the courthouse steps, erases the civil rights lawyer's ability to apply for federally-created statutory attorney's fees, means that Bernhardt and other victims of civil rights abuse are be unable to obtain attorneys.

The County, in its Opposition to Bernhardt's Motion for Preliminary Injunction, ⁽⁶⁰⁾ had the penultimate opportunity present evidence that the requested injunction would work a hardship on the County by inhibiting settlements. It is propitious that the County failed to present such evidence. The County merely quotes the Evans dicta, ⁽⁶¹⁾ and proceeds to recite the number of federal civil rights cases it is defending (250) and the number of pending Government Code claims against the County (150) involving federal civil rights claims. Then the County argues (but offers no evidence for) the proposition "A limitation on the County's ability to settle these lawsuits would undoubtedly have a significant effect on the County's legal representation." ⁽⁶²⁾

What does that mean? Does it mean that it would significantly improve or significantly harm the County's "legal representation?" The County could easily have presented declarations from County Counsel or the Board of Supervisors which stated: "If the County were required to abandon it's 'lump sum, including all attorney's fees' settlement policy, the County would not agree to settle any of these pending 400 civil rights claims." The County did not do that.

The County could have submitted declarations from policy-makers which stated that "The County will not put public money at risk to the mercy of unknown statutory attorney's fees, and accordingly - if this injunction is granted - will not settle any of these pending 400 civil rights claims, but will take them to trial." The County did not do that.

The County did not present evidence that the requested injunction against the policy would harm the County, or its ability to settle cases, at all.

In fact, if the County knows that a fee application will follow any merits settlement, that would be an incentive for the County to make merits offers based on realistic risk-assessment sooner rather than later. If and when the plaintiff accepts the merits offer, negotiated resolution of statutory fees should be the norm rather than the exception. But today there is no "negotiation" of fees. The right to apply for fees - subject to careful court oversight - is simply erased by the "lump sum" settlement.

    The Evans Court approved the "lump sum" settlement which had occurred in that class action case at the district court level. Governor Evans' lawyers conditioned settlement upon waiver of the right to apply for attorney's fees and plaintiffs' attorney agreed, reserving the right to have the condition reviewed by the court. Evans stands for the fact that an agreement is an agreement; the remainder of the decision is dicta.

This is a much different case, although one presaged in the Evans decision. This case is about getting lawyers to represent victims of civil rights abuse - particularly Angela Bernhardt.

The district court held: "The County's alleged policy is not unconstitutional, but is valid as a matter of law." ⁽⁶⁴⁾ This was a clearly erroneous conclusion of law. It flies in the face of Congressional intent in enacting the Fees Act: to attract competent counsel to represent victims of civil rights abuse. Lawyers are not attracted to represent such victims in the face of a County policy that impoverishes them. ⁽⁶⁵⁾ And there is no indication that Congress intended, as the district court seemed to believe, that victims of civil rights abuse be represented by the court.

Neither the Evans Court nor the district court here made any logical argument, based on admissible evidence, showing how the purpose of the Fees Act is served by a policy that repeals the Act.  In each individual case, viewed alone, fee-waivers appear to promote settlement - by eliminating statutory attorney's feess. In the long run, however, a policy of eliminating attorney's fees simply stops civil rights attorneys from representing victims of civil rights abuse, a situation which the Evans court expressly did not address.

The district court held that Bernhardt "has not demonstrated that the policy has had the effect of shrinking the pool of lawyers willing to represent plaintiffs in civil rights actions." ⁽⁶⁶⁾ The district court took judicial notice "that many courts in this jurisdiction, including this one, have found that there is no shortage of lawyers willing to take civil rights cases in the County of Los Angeles." ⁽⁶⁷⁾

This was a clearly erroneous finding of fact. First, Bernhardt did demonstrate that the policy has had the effect of shrinking the pool of lawyers will to represent plaintiffs - to wit, her - in civil rights actions. Two civil rights lawyers would represent her but for the policy. And she only needs one lawyer. Represented by a lawyer, she could conduct discovery to further demonstrate the insidious effect of the policy in denying counsel to victims of civil rights abuse. She might discover that there was a vindictive effort to discourage attorneys from representing victims of civil rights abuse. Absent a lawyer, Bernhardt is helpless to develop such evidence.

The district court's judicial notice about the plethora of lawyers willing to take on civil rights cases is first of all belied by the evidence Bernhardt presents here. Second, there is no means by which the district court could know how many victims of civil rights abuse are thwarted in their efforts to obtain counsel because the Fees Act is inapplicable to the County. For example, the district court is not privy to the numerous instances when attorneys Mitchell and Seeman and other civil rights lawyers have declined to represent victims of civil rights abuse because of their modest damage claims with no hope for applying for statutory attorney's fees.

And the district court ignored the first Evans exception, to wit, that Section 1988 might flatly "bar a governmental unit from implementing a 'statute, policy, or practice' precluding the payment of attorney fees in settlements of civil rights cases." ⁽⁶⁸⁾ The district court instead expressly approved of the policy, finding that it was not unconstitutional but was valid as a matter of law. ⁽⁶⁹⁾ As shown above, this was a clearly erroneous conclusion of law.

The district court held that "the purpose of the Fees Act is to encourage meritorious civil rights claims by providing fee shifting to a plaintiff who has proven the validity of her claim by prevailing on the merits." ⁽⁷⁰⁾ This was a clearly erroneous conclusion of law. As this Court pointed out in Bernhardt I, "Congress enacted Section 1988 'to attract competent counsel to represent citizens deprived of their civil rights.'" ⁽⁷¹⁾ In Bernhard I, this Court pointed out the error which the district court has now made again. "[T]he court misunderstood the nature of the injury-in-fact alleged to have been suffered by Bernhardt. Because Bernhardt alleged that she was injured by her inability to obtain counsel, the court's focus on whether Bernhard was a prevailing party or had been forced to waive fees, like the plaintiffs in Willard,[ ⁽⁷²⁾] was misplaced." ⁽⁷³⁾ The Fees Act was not enacted for the purpose recited by the district court. Nor was it enacted for the effect set forth by the district court, to wit, a requirement for "prevailing on the merits." As the courts have recognized for years, fee-shifting should also occur when cases settle. ⁽⁷⁴⁾

The district court gratuitously held that Bernhardt had not established "the scope or extent" of the settlement policy. To the contrary, Bernhardt established by the declarations of attorneys Mitchell and Seeman the "lump sum" settlement policy which was recited, without reservation, in Exhibit C-3, the Pellman letter. Pellman says nothing about the policy being limited in "scope or extent" to "frivolous" or "non-meritorious" lawsuits. And again, the County had the penultimate opportunity to deny its policy or to delineate its scope and extent in its response to Bernhardt's motion for preliminary injunction. But it did not. The record is devoid of any admissible evidence denying its "lump sum" settlement policy or even suggesting that the policy was somehow limited to "frivolous" or "non-meritorious" lawsuits.

The district court erred as a matter of law in shifting to Bernhardt a burden of proof at the preliminary injunction stage which the County should have and easily could have borne.

The district court inserted in its decision an adjective which has not appeared in any Section 1988 decision: "appreciable." The district court held that Bernhardt had not shown "that the pool of available lawyers willing to take civil rights cases has shrunk in an appreciable manner." (emphasis added) ⁽⁷⁵⁾ That qualifying adjective does not appear in any fee statute nor in any reported fee decision of the U.S. Supreme Court or of this Court. And it is at least disingenuous. Bernhardt appreciates that - in the sense of being most aggrieved by it - the policy prevents her from getting a lawyer. What did the district court expect Bernhardt to prove?

Did the district court require that Bernhardt contact every one of the more than 200,000 probate, corporate, commercial, family and other lawyers in California, and then declare that each one had refused to take her case because of the County's "erase the attorney's fees" settlement policy which they had never heard of or could care less about? That is an unfair burden to shift to Bernhardt, and is a clearly erroneous conclusion of law.

More portentous is that neither the district court - Bernhardt's pro per advocate - nor the County offered any evidence that there was any lawyer willing to represent Bernhardt in the face of the County's "lump sum" settlement policy."

The County could have easily done that. The County could have submitted declarations from at least one if not scores of competent civil rights lawyers to the effect that they would have been delighted to represent Bernhardt. The County did not do that, strongly suggesting that the County could not find any attorney to make such a declaration.

The district court could have easily done that. Bernhardt asked the district court to merely ask a lawyer to represent her, but the court declined to do so. ⁽⁷⁶⁾

The district court held that Bernhardt had not established she will suffer irreparable harm. ⁽⁷⁷⁾ The court held she would have to show she had a "meritorious case" or that she "could prevail if she had a lawyer." ⁽⁷⁸⁾ The latter burden is an impossible one for any litigant to fulfill and was a clearly erroneous conclusion of law.

The former burden is one improperly erased by the court in concluding that her original case was not meritorious. The court was acting as if it were reviewing a motion to dismiss. "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." ⁽⁷⁹⁾

Here the only admissible evidence before the court respecting the underlying action is contained in Bernhardt's verified second amended complaint where she states that a deputy "kicked [her] to the ground [and] punched her with his fists for about two minutes . . . other deputies joined him, and punched [her] with their fists, dug their fingernails into her left hand . . . . [the deputies] failed to protect [her] from the use of excessive force . . . and unlawfully detained, arrested and imprisoned [her in a courtroom] holding cell." ⁽⁸⁰⁾ The record is devoid of any evidence contradicting Bernhardt's sworn statement. Thus, to hold that she had not shown her original case was meritorious was clear factual and legal error.

The district also erected another impossible burden for Bernhardt to meet: she would have to show that her "original case . . . could have been settled if attorneys fees had been negotiated separately." She did not have an attorney in her original case, no attorney's fees were available to be "negotiated separately," and no litigant could meet such a burden. This was clear legal error.

The district court committed clear legal error in holding that Evans "addressed and rejected" ⁽⁸¹⁾ the serious question raised by Bernhardt. This Court has expressly recognized that Bernhardt seeks "to pick up here Evans and Willard ⁽⁸²⁾ left off. ⁽⁸³⁾ "  She is attacking a lump sum settlement policy that has effectively erased lawyers' expectations of statutory fees and which is demonstrably prohibiting her from obtain a lawyer, constricting her effective access to the judicial process. ⁽⁸⁴⁾

The district court merely speculated on the "probable impact" upon the County if the injunction were granted. ⁽⁸⁵⁾ The court stated, "The County has shown that granting the injunction would cause it significant hardship." ⁽⁸⁶⁾ Where in the record is this "showing?" The County submitted no evidence whatsoever of any hardship, much less a "significant" one. The court simply invented this.

Similarly the court invented that the injunction would "undoubtedly have a significant effect on the County's handling of [pending civil rights] suits." ⁽⁸⁷⁾ But what effect? The County does not say and the court does not say. In fact, if the injunction were in effect, the County would simply have to settle the merits cases and then litigate or settle the attorney's fees cases.

Compare this "hardship" with the severe hardship which Congress recognized in enacting the Fees Act: victims of civil rights abuse such as Bernhardt could not get lawyers, denying them effective access to the judicial process. Ultimately, the district court approved the County's repeal of the Fees Act. That was clear legal error.

The district court invented "The County has shown that the injunction sought by Plaintiff would seriously hinder the County's ability to settle the numerous civil rights cases currently pending against it." ⁽⁸⁸⁾ The court cites no evidence in support of this proposition. There is no such evidence; the County submitted none.

And the court's citation to Evans that "When the parties find [simultaneous negotiation" of liability and attorney's fees] conducive to settlement, the public interest, as well as that of the parties, is served by simultaneous negotiation" is inapposite. There was no "simultaneous negotiation" in Evans, the Governor's lawyers simply conditioned favorable settlement on waiver of fees - an offer which California lawyers cannot resist. And there is no "simultaneous negotiation" under the County's policy; the fees are simply erased.

In any event, the district court did recognize that "simultaneous negotiation" can get a lawyer disbarred. ⁽⁸⁹⁾ And this Court recently recognized that a petition for statutory attorney's fees must be made "separate from and subsequent to settlement." ⁽⁹⁰⁾ Otherwise, there is "too much leeway for a lawyer representing a class [or an individual] to spurn a fair, adequate and reasonable settlement for the clients in favor of inflated attorneys' fees." ⁽⁹¹⁾

The district court also based its decision on a clear, factual error. It compared plaintiff's individual interest in obtaining a lawyer for her case with the "public interest" in promoting settlements. ⁽⁹²⁾

First, this was clear legal error because the sought-for injunction will also benefit other victims of civil rights abuse by helping them obtain a lawyer. Bernhardt's interest is congruent with all such victims' interests.

Second, as shown above, the judicially-created policy of promoting settlements cannot trump the Congressional policy of victims of civil rights abuse obtaining lawyers.

And finally, as shown above, there is no evidence that the injunction would inhibit settlements.

This Court should reverse the district court's July 18, 2002 order denying Bernhardt's motion for preliminary injunction and itself should grant the injunction or remand to the district court with instructions to grant the injunction.
 

MICHAEL R. MITCHELL
Attorney for Plaintiff-Appellant
Angela Bernhardt
 
 

    There were three related cases pending in this court: Docket Nos. 00-55596, 00-55930, and 00-55524.
 

MICHAEL R. MITCHELL
Attorney for Appellant
 
 

I certify that pursuant to Fed. R. App. Proc. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the preceding opening brief is
proportionately spaced, has a typeface of 14 points or more, and contains 7,640 words.
 

MICHAEL R. MITCHELL
Attorney for Appellant

U.S. Constitution, Article VI (relevant paragraph)

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
 

42 USC Sec. 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
 

42 USC Sec. 1988. Proceedings in vindication of civil rights
 

(b) Attorney's fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 (20 U.S.C. 1681 et seq.), the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb et seq.), the Religious Land Use and Institutionalized Persons Act of 2000 (42 U.S.C. 2000cc et seq.), title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.

I am a citizen of the United States; I am over the age of eighteen years and not a party to the above-entitled action; my business address is 20300 Ventura Boulevard, No. 317, Woodland Hills, CA 91364. On November 29, 2002 I served the within:

on the interested parties in said action by placing a true copy thereof, fees prepaid, with United Parcel Service, at Los Angeles, CA 91364 addressed to:

Lloyd W. Pellman, County Counsel
Louis V. Aguilar
Lauren M. Black, Deputy County Counsel
648 Hall of Administration
500 West Temple Street
Los Angeles, CA 90012-2713

I declare under penalty of perjury and the laws of the United States that the foregoing is true and correct and that this certificate of service was executed on November 29, 2002 at Los Angeles, CA.

MICHAEL R. MITCHELL

1. Excerpts of Record ("ER"), Tab 30

2. ER 30, p. 9

3. Appendix

4. ER 48

5. ER 52

6. Appendix

7. Evans v. Jeff D., 475 U.S. 717, 731, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986)

8. Evans v. Jeff D., 475 U.S. 71, 106 S.Ct. 1531, 89 L.Ed. 2d 747 (1986)

9. Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172,1176 (9^th Cir., 2000) citing Miller ex. rel. NLRB v. California Pacific Med. Ctr., 19 F.3d 449, 455 (9th Cir.1994) (en banc); Stanley v. University of Southern California, 13 F.3d 1313, 1319 (9^th Cir.1994).

10. U.S. Constitution, Article VI, See Appendix

11. Evans v. Jeff D., supra, 475 U.S. at 731

12. ER 30

13. ER 41

14. ER V

15. ER 41

16. ER 14, p. 14, lines 5-6

17. ER 35

18. ER 42

19. ER 46

20. ER 48

21. ER 52

22. ER 63

23. ER 51

24. ER 62

25. Verified Complaint, ER 14, pps. 2-3.

26. Verified Complaint, ER 14, p. 23

27. ER 35

28. ER 37

29. ER 38

30. ER 36, ER 39

31. ER 38, p. 1, line 22

32. ER 38, p. 1, lines 23-24

33. ER 38, p. 1, lines 22-23

34. ER 38, p. 2, lines 3-6

35. ER 38, p. 2, lines 7-10

36. ER 38, p. 2, lines 10-12

37. ER 38, p. 2, lines 13-15, Exhibit B to ER 38

38. ER 39, p. 2, lines 1-2

39. ER 39, p. 2, lines 2-4

40. ER 39, p. 2, lines 4-5

41. ER 36, p. 1 line 23 to page 2 line 2; ER 47, p. 2, lines 11-16

42. ER 47, p. 2, lines 3-6

43. ER 36, p. 2, lines 5-6

44. ER 36, p. 2, lines 8-10

45. ER 36, p. 2, lines 10-19

46. ER 42, p. 11, lines 11-15

47. ER 42, p. 11, lines 15-18

48. Evans v. Jeff D., 475 U.S. 71, 106 S.Ct. 1531, 89 L.Ed. 2d 747 (1986)

49. ER TP, p. 21, lines 13-17, Transcript of Proceedings on Bernhardt's Motion to Stay

50. ER TP, p. 28, lines 10-12, Transcript of Proceedings on Bernhardt's Motion to Stay

51. See e.g. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9^th Cir., 2001)

52. Caudle v. Bristow Optical Co., 224 F.3d 1014, 1029 (9^th Cir., 2000)

53. U.S. Constitution, Article VI, Appendix

54. Evans v. Jeff D., supra, 475 U.S. at 731

55. California Business and Professions Code Section 6128(b)

56. Bernhardt v. County of Los Angeles (9^th Cir., 2002) 279 F.3d at 870

57. ER 36, p. 2, lines 3-5

58. ER 36, p. 2, lines 5-7

59. ER 36, p. 2, lines 8-19; ER 39, p. 2, lines 2-5; ER 38, Ex. B

60. ER 42

61. ER 42, p. 9, line 13 through p. 10, line 6

62. ER 42, p. 10. lines 10-13

63. Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed. 2d 747 (1986)

64. ER 63, P. 5, lines 22-23

65. Cf. ER 36. lines 3-7

66. ER 63, p. 8, lines 9-11

67. ER 63, p. 8, fn 7

68. Bernhardt I, 279 F.3d at 866, citing Evans, 475 U.S. at 739-740, 106 S.C. 1531

69. ER 63, P. 5, lines 22-23

70. ER 63, p. 8, lines 14-17

71. ER 30, p. 11, Bernhardt I, 279 F.3d at 870

72. Willard v. City of Los Angeles, 803 F.2d 526 (9^th Cir., 1986)

73. ER 30, p. 12, Bernhardt I, 279 F.3d at 871

74. Maher v. Gagne 448 U.S. 122, 126 n.8, 100 S.Ct. 2570, 65 L.Ed. 2d 653 (1980); Hanrahan v. Hampton, 446 U.S. 754, 756-758, 100 S.Ct. 1987, 64 L.Ed. 2d 670 (1980)

75. ER 63, p. 10, lines 3-5

76. ER D, p. 3, items 9 and 13

77. ER 63, p. 11, lines 9-10

78. ER 63, p. 11, lines 14-15

79. Scheuer v. Rhodes, 416 US 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)

80. ER 14, p. 2, lines 5-23

81. ER 63, p. 12, lines 4-7.

82. Willard v. City of Los Angeles, 803 F.2d 526 (9^th Cir., 1986)

83. ER 30, p. 8, 279 F.3d at 866

84. Bernhardt v. County of Los Angeles, 279 F.3d at 870 quoting Evans, 475 U.S. at 741, n. 4

85. ER 63, p. 12, lines 12-15

86. ER 63, p. 12, lines 15-16

87. ER 63, p. 12, lines 20-23

88. ER 63, p. 13, lines 3-5

89. ER TP, p. 28, line 12 through p. 29, line 23

90. Staton V. Boeing Co., No. 99-36086 (9th Cir. November 26, 2002) ___F.3d ___

91. Id.

92. ER 63, p. 13, lines 10-11