FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LA ASOCIACION DE TRABAJADORES
DE LAKE FOREST,
Plaintiff-Appellant,
and
NATIONAL DAY LABORER
ORGANIZING NETWORK,
Plaintiff-Appellant,
v.
No. 08-56564
CITY OF LAKE FOREST,
Defendant, D.C. No.
8:07-cv-00250-
and DOC-AN
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.
17451
17452 ATLF v. CITY OF LAKE FOREST
LA ASOCIACION DE TRABAJADORES
DE LAKE FOREST; NATIONAL DAY
LABORER ORGANIZING NETWORK,
Plaintiffs-Appellants,
v.
CITY OF LAKE FOREST,
Defendant,
and No. 09-55215
COUNTY OF ORANGE; JAY LEFLORE, D.C. No.
City of Lake Forest’s Chief of
Police Services, in his individual
8:07-cv-00250-
DOC-AN
and official capacities; CHRIS
THOMPSON, Orange County OPINION
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.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
June 8, 2010—Pasadena, California
Filed October 22, 2010
ATLF v. CITY OF LAKE FOREST 17453
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
Circuit Judge, and Algenon L. Marbley, District Judge.*
Opinion by Judge Marbley
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
ATLF v. CITY OF LAKE FOREST 17455
COUNSEL
Hector O. Villagra (argued) and Belinda Escobosa Helzer
(argued), ACLU Foundation of Southern California, Orange,
California; and Mark D. Rosenbaum and Peter J. Eliasberg,
ACLU Foundation of Southern California, Los Angeles, Cali-
fornia, for the appellants.
S. Frank Harrell (argued) and Pancy Lin, Lynberg & Watkins,
Orange, California, for the appellees.
OPINION
MARBLEY, District Judge.
This appeal arises from a dispute between a nonprofit orga-
nization advocating on behalf of day laborers and local gov-
ernment 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 attor-
ney’s fees. We agree with the district court’s standing conclu-
sion, 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 opin-
ion.
I. BACKGROUND
A. THE PARTIES
Plaintiff National Day Laborer Organizing Network
(“NDLON”) is a nonprofit association consisting of a nation-
17456 ATLF v. CITY OF LAKE FOREST
wide 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 educa-
tional materials and organizing materials for member organi-
zations; (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 com-
prehensive 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 com-
mon 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 mem-
bers 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 unincor-
porated 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 mem-
bers often visit the sidewalks where ATLF members seek
employment to provide support, counseling, and education.
Defendants include Orange County; the City of Lake For-
est; Jay LeFlore, the City of Lake Forest’s Chief of Police
ATLF v. CITY OF LAKE FOREST 17457
Services, in his official and individual capacities; Don Barnes,
the City of Lake Forest’s Chief of Police Services, in his offi-
cial 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 Sher-
iff’s Department (“OCSD”) deputies “ran all the day laborers
looking for work off the public sidewalks” at three intersec-
tions 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.
1
The original Complaint named several more defendants, including the
Mayor of Lake Forest, among others, but only five defendants remain at
this point. Claims against all other defendants were voluntarily dismissed.
17458 ATLF v. CITY OF LAKE FOREST
Almost every week, Federovsky would drive approxi-
mately 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 Pro-
grams 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 nonethe-
less 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.
ATLF v. CITY OF LAKE FOREST 17459
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 Defen-
dants 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 par-
ties.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 neces-
sary, as the only remaining issue involved injunctive relief.
Later that day, ATLF and the Defendants reached a settle-
ment.
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 pur-
suant to 28 U.S.C. § 1331. NDLON filed a timely interlocu-
tory appeal of the district court’s order on standing on
September 17, 2008. The order on standing became appeal-
able when the district court entered its subsequent order fully
2
Plaintiffs’ counsel did not receive the tentative order until the morning
of the hearing, and was given a short time to review it before argument.
3
While the Settlement Agreement stated that the parties disagreed as to
reasonable attorney’s fees and costs, it provided Plaintiffs with 90 days to
file a motion for such fees and costs.
17460 ATLF v. CITY OF LAKE FOREST
adjudicating the remaining issues. See Am. Ironworks & Erec-
tors, 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 STANDING
1. Standard of Review
A district court’s decision regarding standing is reviewed
de novo. Fair Hous. of Marin v. Combs, 285 F.3d 899, 902
(9th Cir. 2002). Likewise, we review a district court’s grant
of summary judgment de novo. Oliver v. Keller, 289 F.3d
623, 626 (9th Cir. 2002).
2. Analysis
[1] The standing doctrine limits federal court jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It
is well established that the “irreducible constitutional mini-
mum of standing” consists of these three elements: (1) injury
in fact; (2) causation; and (3) redressability. Id. at 560-61.
While the Lujan decision established the “irreducible consti-
tutional minimum” test for standing in the context of an indi-
vidual plaintiff, the same analysis is used to determine
whether an organizational plaintiff has standing in a particular
case. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378
(1982) (“In determining whether HOME has standing under
the Fair Housing Act, we conduct the same inquiry as in the
case of an individual.”).
[2] An organization suing on its own behalf can establish
an injury when it suffered “both a diversion of its resources
and a frustration of its mission.” Combs, 285 F.3d at 905. It
ATLF v. CITY OF LAKE FOREST 17461
cannot manufacture the injury by incurring litigation costs or
simply choosing to spend money fixing a problem that other-
wise would not affect the organization at all. See, e.g., Fair
Employment Council v. BMC Mktg. Corp., 28 F.3d 1268,
1276-77 (D.C. Cir. 1994). It must instead show that it would
have suffered some other injury if it had not diverted
resources to counteracting the problem. In Havens, for exam-
ple, housing discrimination threatened to make it more diffi-
cult for HOME to counsel people on where they might live if
the organization didn’t spend money fighting it. 455 U.S. at
379. The organization could not avoid suffering one injury or
the other, and therefore had standing to sue. Cf. Smith v.
Pacific Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir.
2004) (organization “had . . . to divert its scarce resources
from other efforts”); El Rescate Legal Servs., Inc. v. Exec.
Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir. 1992)
(challenged policy “require[d] the organizations to expend
resources . . . they otherwise would spend in other ways”).
[3] In this case, NDLON failed to assert any factual allega-
tions in its complaint that it was forced to divert resources to
help ATLF because of the defendants’ actions, and never
sought leave to add them.4 NDLON appeared to assert claims
against the defendants in the form of Declarations submitted
by Veronica Federovsky and Chris Newman, which were
proffered in conjunction with NDLON’s response to Defen-
dants’ motion for summary judgment. What NDLON failed to
do, however, was to assert any factual allegations regarding
organizational standing in its complaint. “Ordinarily, a plain-
tiff opposing a motion for summary judgment on [a standing]
issue would have to support, with affidavits or other evidence,
4
An organization may sue only if it was forced to choose between suf-
fering an injury and diverting resources to counteract the injury. See BMC
Marketing Corp., 28 F.3d at 1277 (rejecting the idea that a plaintiff orga-
nization has standing to sue based solely on its own decision regarding
resources allocation, and requiring that the plaintiff be forced to divert
resources in order to avoid an injury caused by defendant’s conduct).
17462 ATLF v. CITY OF LAKE FOREST
the factual allegations underlying the assertion of standing
because such allegations must ultimately be proven for a
plaintiff to prevail.” Fernandez v. Brock, 840 F.2d 622, 625-
26 (9th Cir. 1988) (citing Gladstone Realtors v. Village of
Bellwood, 441 U.S. 91, 115 & n. 31 (1979)). Without making
any attempt to allege organizational standing in its complaint,
NDLON’s provision of affidavits and declarations supporting
organizational standing at the summary judgment stage is
ineffectual.
It appears as though at the time NDLON filed its com-
plaints (up to and including its Third Amended Complaint),
the organization intended to assert standing on behalf of its
members rather than on behalf of itself as an organization.
Various paragraphs in the complaint refer to NDLON’s mem-
bers and the alleged violations of their First Amendment
rights. Nowhere in the complaint, however, does NDLON
assert a frustration of its purpose or diversion of its resources
that would allow the Court to conclude that NDLON had
pleaded organizational standing on its own behalf. By con-
trast, Colectivo did make such allegations, stating “Defen-
dants’ chilling actions challenged in this case frustrate the
Colectivo’s mission and prompt the diversion of its limited
resources to organize, educate, and otherwise assist the day
laborers in Lake Forest.”
[4] Given its inadequate pleading regarding organizational
standing, NDLON may not effectively amend its Complaint
by raising a new theory of standing in its response to a motion
for summary judgment. See Wasco Prods., Inc. v. Southwall
Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put,
summary judgment is not a procedural second chance to flesh
out inadequate pleadings.” (Internal quotation marks omitted).
We therefore affirm the district court’s decision that NDLON
lacks standing to pursue its claims.
ATLF v. CITY OF LAKE FOREST 17463
B. ATTORNEY’S FEES
1. Standard of Review
We review a district court’s decision to deny attorney’s
fees for an abuse of discretion. Labotest, Inc. v. Bonta, 297
F.3d 892, 894 (9th Cir. 2002). In conducting that analysis,
“[e]lements of legal analysis and statutory interpretation that
figure into the district court’s attorney’s fees decision are
reviewed de novo,” and “[f]actual findings underlying the dis-
trict court’s decision are reviewed for clear error.” Richard S.
v. Dep’t of Dev. Servs., 317 F.3d 1080, 1086 (9th Cir. 2003).
We review a district court’s determination regarding “prevail-
ing party” status de novo, as “[t]he question of whether a
judgment has materially altered the legal relationship of the
parties is a legal one.” V.S. ex rel. A.O. v. Los Gatos-Saratoga
Joint Union High Sch. Dist., 484 F.3d 1230, 1232-33 (9th Cir.
2007).
2. Analysis
[5] A court may award a reasonable attorney’s fee to a
party that prevails under § 1983. See 42 U.S.C. § 1988(b). Lit-
igation that results in an enforceable settlement agreement can
confer “prevailing party” status on a plaintiff. See, e.g., Car-
bonell v. I.N.S., 429 F.3d 894, 899 (9th Cir. 2005) (“We have
. . . found that a litigant prevailed when he entered into a
legally enforceable settlement agreement.”). In determining
whether a settlement agreement confers prevailing party sta-
tus on a plaintiff, we have used a three-part test, looking at:
“(1) judicial enforcement; (2) material alteration of the legal
relationship between the parties; and (3) actual relief on the
merits of [the plaintiff’s] claims.” Saint John’s Organic Farm
v. Gem County Mosquito Abatement Dist., 574 F.3d 1054,
1059 (9th Cir. 2009).
[6] There is no doubt here that the settlement agreement at
issue here is judicially enforceable: the district court explicitly
17464 ATLF v. CITY OF LAKE FOREST
retained jurisdiction over the case for five years to enforce the
agreement. See id. (“The Agreement specifically provided
that its terms would be enforceable by the district court.”).
When “the district court [has] placed its stamp of approval on
the relief obtained, that relief has the necessary judicial impri-
matur to qualify a plaintiff as a prevailing party.” Carbonell,
429 F.3d at 901 (alteration in original) (internal quotation
marks omitted).
Nor is there any doubt that the legal relationship between
the parties was materially altered by the agreement. First,
while everything Appellees are required to do as a result of
the settlement agreement is couched in terms of existing poli-
cies, Appellees were not necessarily subject to the jurisdiction
of a federal court for violating those policies until the settle-
ment agreement was signed. See Saint John’s, 574 F.3d at
1059. (“[E]ven if the Agreement required [the defendant] to
do only what it was already doing, it was undisputed that [the
defendant’s] behavior became legally required rather than
voluntary as a result of the Agreement.”). Second, ATLF can
now simply move to enforce the settlement agreement rather
than having to bring a new action to defend its members.
[7] Finally, Appellants received “actual relief” on the mer-
its of their claims. To do so, “a plaintiff must receive some
actual relief that serves the goals of the claim in his or her
complaint.” Id. While some relief is required, “an extremely
small amount of relief is sufficient to confer prevailing party
status.” Id. at 1059-60. Here, Appellants received relief in the
form of a judicially enforceable agreement requiring Appel-
lees to adhere to policies respecting day laborers and their
First Amendment rights, relief ATLF sought in its complaint.
Cf. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1120 (9th Cir.
2000) (“According to Fischer’s complaint, the goal of his
ADA claim was to obtain an injunction that would force the
Inn to change its alleged policy and practice of denying access
to people who use service dogs. In the end that is exactly what
he achieved.”).
ATLF v. CITY OF LAKE FOREST 17465
[8] Because ATLF has achieved “prevailing party” status,
it is entitled to an award of attorney’s fees.
IV. CONCLUSION
The district court properly held that NDLON lacked organi-
zational standing to pursue its claims, and its decision in that
regard is AFFIRMED. The district court erred, however, in
denying ATLF’s request for attorney’s fees. Its decision on
the attorney’s fees issue is REVERSED, and the case is
REMANDED for further proceedings consistent with this
opinion.
Each party shall bear its own costs.