In THE
SUPREME COURT OF THE uNITED STATES

___________

Michael R. Mitchell,

v.

County of Los Angeles and Paulette Pony,

s.

_____________

_____________

_____________

1. QUESTIONS PRESENTED

In Evans v. Jeff D., 475 U.S. 717 (1986), this Court indicated that a plaintiff seeking relief under 42 U.S.C. § 1983 could assign to her attorney the right to statutory fees under 42 U.S.C. § 1988 and noted that there is "little disagreement" that a state policy of settling civil rights cases only on a "lump sum" basis (i.e., requiring the plaintiff to waive the right to seek statutory fees) would conflict with Section 1988. The questions presented in this case are:

1. May a victim of civil rights abuse assign to an attorney, in exchange for representation, her contingent right to seek statutory attorney’s fees, thus giving the attorney standing to apply for attorney’s fees despite a "lump sum" settlement of the lawsuit?

2. Does a civil rights attorney have standing to challenge a municipality’s policy, custom, or practice of settling civil rights cases on a lump sum basis to preclude awards of statutory attorney’s fees?

3. PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, the following individuals were sued in their individual capacity: Marc Jon Weigensberg; Carola Felber; Does 1 through 10; and Quitizia Guerrero, also known as Doe 1.

 

5. TABLE OF CONTENTS

Page

OPINIONS BELOW *

JURISDICTION *

CONSTITUTIONAL PROVISION INVOLVED *

STATUTORY PROVISION INVOLVED *

STATEMENT OF THE CASE *

A. Factual and Procedural Background *

B. The District Court’s Decision. *

C. The Court of Appeals’ Decision. *

REASONS FOR GRANTING THE WRIT *

I. By Invalidating A Civil Rights Victim’s Assignment Of Her Right to Seek Fees And Denying Standing To Lawyers To Challenge Lump Sum Settlement Policies, The Decision Below Impedes Civil Rights Victims’ Access to Counsel. *

II. The Court of Appeals’ Holding That A Civil Rights Victim’s Assignment of The Right To Seek Statutory Attorney’s Fees Is Invalid Contravenes Prior Decisions Of This Court, The Decisions of Other Circuits, And Congressional Intent. *

III. The Court of Appeals’ Holding That A Lawyer Cannot Challenge A Lump Sum Settlement Policy Cannot Be Reconciled With Standing Decisions Of This Court And Of Several Courts Of Appeals. *

A. The Court of Appeals’ Article III Standing Analysis Defied This Court’s Precedent. *

B. Lower Courts Are Divided On Whether A Plaintiff Asserting A Supremacy Clause Violation Must Prove That He Falls Within The Zone Of Interests Of The Preempting Law. *

CONCLUSION *

 

TABLE OF AUTHORITIES

FEDERAL CASES

Page

ANR Pipeline Co. v. Corp. Comm’n of Oklahoma, 860 F.2d 1571 (10th Cir. 1988) 23

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) 25

Babcock v. Rezak, 96-CV-0394, 2004 U.S. Dist. LEXIS 13828 (W.D. N.Y. June 23, 2004) 14

Bennett v. Spear, 520 U.S. 154 (1997) 20, 21

Bernhardt v. County of Los Angeles, 339 F.3d 920 (9th Cir. 2003) 3, 24

Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002) 3

Blanchard v. Bergeron, 489 U.S. 87 (1989) 10

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) 24

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) 26

City of Riverside v. Rivera, 477 U.S. 561 (1986) 10

Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978)…………………………….........21

Eisenstadt v. Baird, 405 U.S. 438 (1972) 27

Evans v. Jeff D., 475 U.S. 717 (1986) passim

Freeman v. B & B Assocs., 790 F.2d 145 (D.C. Cir. 1986) 14, 17

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) 24

Hensley v. Eckerhart, 461 U.S. 424 (1983) 10

Kay v. Ehrler, 499 U.S. 432 (1991) 10

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………………………….……….20

Maher v. Gagne, 448 U.S. 122 (1980) 10

Marek v. Chesny, 473 U.S. 1 (1985) 10

Newton v. Rumery, 480 U.S. 386 (1987) 15

Pershing Park Villas Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895 (9th Cir. 2000) 22

Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66 (1st Cir. 2001) 22, 23, 24

Pharm. Research & Mfrs. of Am. v. Thompson, 259 F. Supp. 2d 39 (D. D.C. 2003) 23

Pharm. Research & Mfrs. of Am. v. Thompson, 362 F.3d 817 (D.C. Cir. 2004) 24

Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003) 24

Planned Parenthood v. Sanchez, 403 F.3d 324 (5th Cir. 2005) 24

Richardson v. Penfold, 900 F.2d 116 (7th Cir. 1990) 17

Sec’y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) 25, 26

Self-Insurance Inst. of America, Inc. v. Korioth, 993 F.2d 479 (5th Cir. 1993) 23

Shaw v. Delta Airlines, 463 U.S. 85 (1983) 24

St. Thomas - St. John Hotel & Tourism Ass’n, Inc. v. Govt. of the United States Virgin Islands, 218 F.3d 232 (3d Cir. 2000) 22, 24

Taubman Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475 (4th Cir. 2003) 23

United States Dept. of Labor v. Triplett, 494 U.S. 715 (1990) 26

Venegas v. Mitchell, 495 U.S. 82 (1990) passim

Viceroy Gold Corp. v. Aubry, 75 F.3d 482 (9th Cir. 1996) 23

Warth v. Seldin, 422 U.S. 490 (1975) 21, 22

White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982) 10

Wilson v. Garcia, 471 U.S. 261 (1985) 13

Zeisler v. Neese, 24 F.3d 1000 (7th Cir. 1994) 16

FEDERAL CONSTITUTIONAL

U.S. Const. art. VI, cl. 2……………………………. passim

FEDERAL STATUTES

28 U.S.C. § 1254(1) 1

28 U.S.C. § 1331 5

28 U.S.C. § 1343(a)(3) 5

42 U.S.C. § 1983 passim

42 U.S.C. § 1988 passim

MISCELLANEOUS

Julie Davies, Federal Civil Rights Practices in the 1990s: The Dichotomy Between Reality and Theory, 48 Hastings L.J. 197, 199-200 (1997) 11

H. Rep. 94-1558, 94th Cong. 2d Sess. (1976) ……10, 19, 28

Public Law 94-559 (1976) 2

S. Rep. 94-1011, 94th Cong. 2d Sess. (1976) 2, 10, 12

 

 

PETITION FOR A WRIT OF CERTIORARI

6. OPINIONS BELOW

The opinion of the Court of Appeals (App., infra, 1a-17a) is reported at 433 F.3d 1138. The opinion of the district court (App. 18a-38a) is unreported.

8. JURISDICTION

The judgment of the Court of Appeals was entered on January 11, 2006. App. 1a. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

10. CONSTITUTIONAL PROVISION INVOLVED
12. The United States Constitution, art. VI, cl. 2, provides:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

14. STATUTORY PROVISION INVOLVED

42 U.S.C. § 1988(b) provides in pertinent part:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 195, and 1986 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…

16. STATEMENT OF THE CASE
18. As Congress recognized 30 years ago, the nation’s civil rights laws are essentially meaningless if there are no attorneys willing to represent plaintiffs whose rights have been violated. To ensure that attorneys would take on the representation of civil rights plaintiffs, even those with claims for minimal damages or purely injunctive relief, Congress enacted the Civil Rights Attorney’s Fees Award Act of 1976 ("Fees Act"), which allowed courts to award attorney’s fees to "prevailing part[ies]" in cases brought under the civil rights statutes, including 42 U.S.C. § 1983 ("Section 1983"). See Pub. L. 94-559 (codified at 42 U.S.C. § 1988) ("Section 1988"). According to Congress, "fee awards are essential if the [civil rights statutes] are to be fully enforced…" S. Rep. 94-1011 at 5, 94th Cong. 2d Sess. (1976).
20. Today, however, the litigation strategy of certain municipalities, including the County of Los Angeles, threatens the continued availability of lawyers willing and able to take on civil rights cases. These government agencies almost invariably condition pre-trial settlement of civil rights lawsuits on the plaintiff’s waiver of her claim to statutory attorney’s fees. These so-called "lump sum settlements" may provide the plaintiff with significant monetary or injunctive relief, but they leave the plaintiff’s lawyer with inadequate compensation for the time, money, and effort expended in securing that result for the plaintiff.
22. This Court has held that lump sum settlements do not constitute a per se violation of Section 1988, see Evans v. Jeff D., 475 U.S. 717, 742-43 (1986), but it has also recognized 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." Id. at 741 n.34. This "possibility" has become a reality in places like Los Angeles, where County decision-makers employ a lump sum settlement strategy on a consistent and widespread basis. See Bernhardt v. County of Los Angeles, 339 F.3d 920, 927 (9th Cir. 2003) (citing a letter from a County lawyer admitting that a lump sum policy is in place). In these places, individuals with modest damage or only equitable civil rights claims cannot find experienced lawyers to take their cases, because lawyers anticipate that the municipality’s lump sum settlement strategy will leave them with inadequate compensation for their efforts. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 866 (9th Cir. 2002) (citing civil rights plaintiff’s allegations that eight attorneys declined to take her case, even though some "commented positively about the merits," and one attorney told her that lump sum settlement policy precluded representation).
24. This case involves one Los Angeles lawyer’s attempt to continue his representation of civil rights plaintiffs in spite of the County’s lump sum settlement strategy by conditioning his representation on a prospective client’s voluntary assignment of her right to apply for statutory attorney’s fees. Directly contrary to the precedents of this Court and in violation of Congress’ intent in enacting Section 1988, the Court of Appeals for the Ninth Circuit held that any such assignment from a client to a lawyer was invalid, so that, despite the assignment, a lawyer has no standing to apply for attorney’s fees under Section 1988 following a lump sum settlement between his client and the County.
26. The Court of Appeals also held, contrary to both sound analysis and precedent, that a lawyer lacks constitutional and prudential standing to bring a Supremacy Clause challenge to the County’s purported policy, custom, or practice of settling civil rights cases only on a lump sum basis. If the decision below stands, civil rights lawyers -- uniquely motivated to challenge a lump sum policy that this Court has suggested would obstruct the goals of Section 1988 -- will be unable to pursue such a challlenge. No court will be able to address the important statutory and constitutional questions that this case raises.
1. Factual and Procedural Background

This case arises from civil rights abuses committed by employees of the Los Angeles Juvenile Alternative Work Program ("JAWS") against 16-year-old Paulette Pony. After Pony was unable to perform the labor required by the program, JAWS employees subjected her to invasive, humiliating medical procedures, including forcing her to give a urine sample in full view of several male strangers and -- even after a doctor confirmed that a shoulder injury would preclude her from performing physical labor -- and subjecting her to a gynecological examination although she had never been sexually active. App. 20a-21a. Pony and her guardian ad litem, Wilma Pony, contacted attorneys Michael Mitchell and David Margulies to represent them in pursing a claim against the County of Los Angeles and several JAWS employees. Pony signed a retainer agreement with Mitchell and Margulies that contained the following provision:

Client agrees to and hereby does irrevocably assign and transfer to Attorneys all of Client's rights and powers, whether contingent or vested or both, (a) to waive "prevailing party" status, (b) to waive, apply for, obtain judgment upon, collect, and/or receive any statutory attorney's fee award, and (c) to make and/or accept a "lump sum, including all attorney's fees" settlement offer. Client acknowledges and agrees that the foregoing assignment and transfer may make it more difficult for Client to settle the case, because Client will not possess the powers or rights to waive "prevailing party" status or the powers or rights to waive, apply for, obtain judgment upon, collect, and/or receive any attorney's fee award.

(emphasis in original). The attorneys filed Pony’s complaint in United States District Court for the Central District of California, alleging traditional torts and constitutional violations and asserting a claim under Section 1983. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). The complaint informed the County that Pony had assigned her right to seek or waive statutory attorney’s fees to Mitchell. The court denied the defendants’ motion to dismiss and admonished defense counsel to take the case more seriously. App. 21a.

The case progressed through discovery and pre-trial motions. As trial approached, the County offered to settle Pony’s claim on a "lump sum, including all attorney’s fees basis." Because Pony indicated her willingness to settle on this basis and because California Business and Professions Code § 6128(b) makes it a misdemeanor for an attorney to "willfully delay[ ] his client’s suit with a view to his own gain," Mitchell withdrew as Pony’s counsel, making Margulies her sole attorney. Pony and the County reached a tentative settlement agreement, under which Pony received $29,999.99 in exchange for the release of all claims against the County and a purported waiver of her right to seek statutory attorney’s fees. Mitchell notified Defendants of his intention to apply to the district court for attorney’s fees, and the parties signed a stipulation joining Mitchell to the action under Federal Rule of Civil Procedure 19(a). Mitchell subsequently filed a motion seeking attorney’s fees under Section 1988. Following a hearing on the issue of fees, the district court concluded that the case had not been settled and set the case for trial.

Prior to trial, Pony and the County reached a final settlement agreement, under which Pony and Margulies agreed to indemnify the County against any fees or costs sought by Mitchell. The court dismissed Pony’s suit on account of the settlement. Mitchell then filed two motions: a Motion for Relief from Order, alleging that the court’s dismissal of the action was by mistake or inadvertence, and a Motion for Attorney’s Fees in the amount of $52,275. In arguing these motions, Mitchell asserted that the County had instituted a blanket policy of offering only "lump sum settlements," and that this policy violates the Supremacy Clause of the United States Constitution, U.S. Const. art. VI cl. 2, by thwarting the operation of Section 1988. The district court denied both motions.

2. The District Court’s Decision.

In denying Mitchell’s motions, the district court ruled that Mitchell had no standing to apply for statutory attorney’s fees, because he no longer had "any cognizable stake in the instant litigation." App. 32a. The court noted that a fee award "belongs to the prevailing party, not to counsel," and in this fee matter, Mitchell was not representing the plaintiff or acting for her benefit. Id. The district court sought to distinguish this Court’s decision in Venegas v. Mitchell, 495 U.S. 82 (1990), which upheld the validity of contingent fee contracts that would require a plaintiff to pay his attorney more than a statutory fee award under Section 1988. According to the district court, that opinion addressed only the "issue of whether the contract was void, not whether an attorney can stand in the place of his client to collect fees." App. 35a.

The district court went on to analyze the assignment provision in the retainer agreement between Mitchell and Pony. App. 36a. The court found that clause (b) of this provision -- which assigned to Mitchell Pony’s right and powers to "waive, apply for, obtain judgment upon, collect, and/or receive any statutory attorney’s fee award" -- was valid pursuant to this Court’s decision in Venegas. Id. However, the district court construed this provision to give Mitchell only the right to collect the amount available under a statutory fee award from Pony; it did not give him standing to seek fees from the court under Section 1988. Id. According to the court, the issue of fees had been resolved by the agreement of the parties, and "Mitchell no longer has any relation to the instant case since he withdrew as Plaintiff’s counsel and the case settled in his absence." App. 37a.

The district court did not address Mitchell’s Supremacy Clause challenge to the County’s lump sum settlement policy.

3. The Court of Appeals’ Decision.

Mitchell appealed the district court’s decision to the United States Court of Appeals for the Ninth Circuit, challenging the district court’s conclusion that he lacked standing to apply for statutory fees despite the assignment provision in his retainer agreement with Pony. Mitchell also asked the Court of Appeals to find that the County had a custom, policy, or practice of settling civil rights cases on a lump sum basis, and that this custom, policy, or practice violated the Supremacy Clause of the United States Constitution. U.S. Const. art. VI, cl. 2.

The Court of Appeals ruled that the "assignments to Mitchell under the retainer agreement are invalid as a matter of law." App. 11a. According to the Court of Appeals, because Section 1988 does not specify whether a civil rights plaintiff could assign the right to seek attorney’s fees, this question must be answered "by looking to the common law, as modified by the laws of the state in which [the court] sit[s]." App. 7a. Since the right to sue in tort for personal injury is not assignable under California law, the Court of Appeals concluded that the right to seek attorney’s fees under Section 1988 was also not assignable. App. 8a-9a.

The Court of Appeals distinguished this Court’s statements in Venegas, 495 U.S. at 88, that a party was entitled to "waive, settle, or negotiate…eligibility" for attorney’s fees, on the grounds that the Venegas Court was "writing in the context of contingency fees and was referring to a plaintiff’s ability to assign a portion of her recovery, not her substantive causes of action." App. 10a (emphasis in original). The Court of Appeals found that "while a plaintiff can transfer the right to collect attorney’s fees, she may not transfer the right to seek or waive them." App. 11a (emphasis in original). Because the Court of Appeals invalidated Pony’s assignment of her right to seek statutory attorney’s fees, it concluded that Mitchell lacked standing to bring a claim for attorney’s fees. Id.

Finally, the Court of Appeals held that Mitchell did not have standing to challenge the County’s lump sum settlement policy under the Supremacy Clause. First, the court held, Mitchell did not have Article III standing, because his monetary injury resulting from Pony’s lump sum settlement was "speculative." App. 14a. The court also concluded that Mitchell’s monetary loss was not "fairly traceable" to the lump sum policy: Pony might have chosen to bargain away her right to seek statutory attorney’s fees under Section 1988 even if the County had not initially offered her a lump sum settlement. App. 14a. The court then held that, in any event, Mitchell lacked prudential standing for his Supremacy Clause challenge, because the challenge sought to protect the rights of a party, Pony, who did not wish to assert those rights. App. 15a.

28. REASONS FOR GRANTING THE WRIT

1. By Invalidating A Civil Rights Victim’s Assignment Of Her Right to Seek Fees And Denying Standing To Lawyers To Challenge Lump Sum Settlement Policies, The Decision Below Impedes Civil Rights Victims’ Access to Counsel.

Both Congress and this Court have repeatedly recognized that the availability of statutory attorney’s fees in civil rights cases is an issue of profound importance that affects not only civil rights plaintiffs and their attorneys, but society as a whole. Congress enacted Section 1988 because it understood that awarding attorney’s fees in civil rights cases was essential to ensuring that government officials comply with these important laws and do not infringe on the rights of citizens. In the words of the Senate Judiciary Committee, "[i]f our civil rights are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases." S. Rep. 94-1011 at 6; see also H. Rep. 94-1558 at 9, 94th Cong. 2d Sess. (1976) ("The effect of [§ 1988] will be to promote the enforcement of the Federal civil rights acts, as Congress intended, and to achieve uniformity with those statutes and justice for all citizens."). In its decisions interpreting Section 1988, this Court has been cognizant of the primary policy behind the attorney’s fees provision: to ensure effective access to the judicial process for all citizens. See Kay v. Ehrler, 499 U.S. 432, 438 (1991) (recognizing that § 1988 represents "statutory policy of furthering the successful prosecution of meritorious claims"); City of Riverside v. Rivera, 477 U.S. 561, 579-80 (1986) ("[H]ad respondents had to rely on private-sector fee arrangements, they might well have been unable to obtain redress for their grievances. It is precisely for this reason that Congress enacted § 1988.").

Issues related to Section 1988 attorney’s fees in civil rights cases are important matters on which this Court has historically provided guidance to lower courts, in order to ensure the consistent application of Section 1988 and, consequently, the universal enforcement of the civil rights statutes. The two issues related to attorney’s fees presented by this case -- whether an assignment of the right to seek statutory fees from the client to the attorney is valid and whether an attorney has standing to challenge a municipality’s lump sum settlement policy -- are no exception. Since the Supreme Court’s ruling in Jeff D. that lump sum settlement offers do not per se violate Section 1988, "[l]ump sum [settlement] offers [have become] the rule," which "leads to undercompensation of plaintiffs’ attorneys and produces disincentives to represent plaintiffs in cases that lack ‘personal injury’ type damages." See Julie Davies, Federal Civil Rights Practices in the 1990s: The Dichotomy Between Reality and Theory, 48 Hastings L.J. 197, 199-200 (1997).

If the rulings below stand, attorneys will have even less incentive to take on the representation of plaintiffs with smaller dollar claims against municipalities that employ lump sum settlements, such as the County of Los Angeles. These municipalities will continue to condition settlement of meritorious Section 1983 claims on the waiver of attorney’s fees. Plaintiffs -- who, after the Court of Appeals’ invalidation of the assignment in this case, would be the only individuals with decision-making power concerning statutory attorney’s fees -- will have no reason to resist the municipality’s settlement offer, because it provides them with compensation for their injuries. See Jeff D., 475 U.S. at 757 (Brennan, J., dissenting). Following the settlement, attorneys will have no recourse to apply to the court for attorney’s fees.

As this Court has noted, there is "little disagreement" that a policy of settling civil rights cases only on a lump sum basis would violate Section 1988. See Jeff D., 475 U.S. at 739 And yet, if the Court of Appeals’ decision stands, federal courts cannot even consider challenges to the policy, because lawyers -- the only parties likely to raise the issue, since it affects their livelihood -- will not have standing to pursue it. Lump sum policies will remain, for all practical purposes, unassailable. Such an outcome would severely undermine Congress’ purpose in enacting Section 1988 -- to ensure competent counsel are available to handle all civil rights cases, even the non-lucrative ones -- and greatly affect those individuals whose civil rights have been violated. See S. Rep. 94-1011 at 6 (Congress "intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases and not be reduced because the rights involved may be nonpecuniary in nature."). It would also give government actors license to violate the rights of others, because they would know that their victims may not be able to find a lawyer to bring their case.

2. The Court of Appeals’ Holding That A Civil Rights Victim’s Assignment of The Right To Seek Statutory Attorney’s Fees Is Invalid Contravenes Prior Decisions Of This Court, The Decisions Of Other Circuits, And Congressional Intent.

The Court of Appeals’ invalidation of Pony’s assignment to Mitchell is contrary to this Court’s decisions in Jeff D. and Venegas; is inconsistent with other circuits’ statements regarding whether a client can assign the right to statutory attorney’s fees to an attorney; and undermines Congress’ purpose in enacting Section 1988. Granting certiorari would thus give this Court the opportunity to correct the Court of Appeals’ misapplication of important Supreme Court precedent, to resolve the apparent circuit division on the issue of the assignment of the right to seek attorney’s fees, and to further Congress’ intent in securing competent counsel to take on civil rights cases.

The issue of whether a prospective client can assign to an attorney the right to seek attorney’s fees under Section 1988 is not, contrary to the Court of Appeals’ decision, an "ambig[uous] issue…[of] federal civil rights law" that has to be answered by the "looking to the common law, as modified by the laws of the state in which [the court] sit[s]." App. 7a. As this Court has spoken on this issue, a "suitable federal rule exists" that makes resort to state common law unnecessary. See Wilson v. Garcia, 471 U.S. 261, 267 (1985). In Evans v. Jeff D., this Court, in holding that a lump sum settlement (including all attorney’s fees) of a civil rights case waiver did not constitute a per se violation of Section 1988, stated:

[T]he language of the Act, as well as its legislative history, indicates that Congress bestowed on the "prevailing party" (generally plaintiffs) a statutory eligibility for a discretionary award of attorney’s fees in specified civil rights actions. It did not prevent the party from waiving this eligibility anymore than it legislated against assignment of this right to an attorney. . . . Thus, while it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights, it neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable.

475 U.S. at 730-732 (emphasis added) (footnotes omitted). Thus, in Jeff D., this Court made clear that Section 1988 does not preclude a client from assigning her right to statutory fees to her attorney. While the Court of Appeals ignored this passage from Jeff D. entirely in its decision below, other courts have interpreted it to mean that assignments of a party’s right to fees are valid. Freeman v. B & B Assocs., 790 F.2d 145, 150 (D.C. Cir. 1986) (stating that in dicta Jeff D. holds that "party may assign his right to fees to his attorney"); Babcock v. Rezak, 96-CV-0394, 2004 U.S. Dist. LEXIS 13828, at *18-19 (W.D. N.Y. June 23, 2004) (citing Jeff D. to support principle that plaintiff "was able to assign his rights under section 1988" to lawyers).

The Court of Appeals’ ruling on the validity of Pony’s assignment also contravenes this Court’s decision in Venegas v. Mitchell, where the Court held that a contingent fee provision in a retainer agreement is valid even if it would give the attorney more fees than he would be entitled to receive under § 1988. In that case, the Court wrote:

A cause of action under § 1983 belongs to the injured individua[l],’ Newton v. Rumery, 480 U.S. 386, 395 (1987) (plurality opinion), and in at least some circumstances that individual’s voluntary waiver of a § 1983 cause of action may be valid. Id., at 398 (plurality opinion); id., at 403 (O’Connor, J., concurring in part and concurring in judgment). If § 1983 plaintiffs may waive their causes of action entirely, there is little reason to believe that they may not assign part of their recovery to an attorney if they believe that the contingency arrangement will increase their likelihood of recovery. A contrary decision would place § 1983 plaintiffs in the peculiar position of being more free to negotiate with their adversaries than with their own attorneys.

495 U.S. at 88 (emphasis added).

Although the Court of Appeals did not pass over the Court’s statements from Venegas completely (as it did the passage from Jeff D. quoted above), see App. 10a, it unquestionably misinterpreted and misapplied this Court’s reasoning in that case. First, in discussing Venegas, the Court of Appeals omitted the Court’s discussion of and citation to Newton v. Rumery, 480 U.S. 386, 395 (1987), which held that a plaintiff could give up his entire Section 1983 cause of action in exchange for a dismissal of criminal charges. As a result, the Court of Appeals’ attempt to limit and distinguish Venegas on the ground that the Venegas Court was only discussing a portion of a plaintiff’s recovery and not her substantive cause of action, see App. 10a-11a, is entirely unpersuasive.

The logic of Venegas and Newton clearly applies here as well: if Section 1983 claimants can waive their cause of action entirely, then there is no reason why they cannot assign to an attorney the right to seek statutory attorney’s fees in exchange for representation to prosecute that cause of action. Plaintiffs would still retain their right to recover damages for the underlying Section 1983 cause of action. The Court of Appeals’ invalidation of Pony’s assignment is also inconsistent with Venegas’ recognition that potential Section 1983 clients should be free to bargain with attorneys to obtain representation and that the deals that they make should be honored. See 495 U.S. at 89, 90 (noting § 1988 does not "by its own force, protect[] plaintiffs from having to pay what they have contracted to pay," and that "Section 1988 itself does not interfere with the enforceability of a contingent-fee contract"). By granting certiorari, this Court could correct the Court of Appeals’ misinterpretation of these precedents and clarify its own rulings in prior cases to ensure that other courts do not make the same mistakes.

In addition to being contrary to this Court’s precedents, the Court of Appeals’ invalidation of Pony’s assignment is also inconsistent with other circuit courts’ treatment of the assignment issue. While it appears that no other court has squarely addressed the issue of whether Section 1988 attorney’s fees are assignable, the Seventh Circuit has expressly held that the right to seek attorney’s fees under another federal statutory fee provision is assignable. In Zeisler v. Neese, 24 F.3d 1000, 1002 (7th Cir. 1994), the Seventh Circuit held that an attorney was not entitled to recover attorney’s fees in a lawsuit under the Truth-in-Lending Act after the client had waived fees as part of settlement, because the client had never assigned her statutory right to fees under 15 U.S.C. § 1640(a)(3) to the attorney. In reaching this holding, the Seventh Circuit stated:

The lawyer can protect himself, moreover, though not perfectly, by entering into a written contract with his client in which the client assigns his statutory right to attorney’s fees to the lawyer. Then the lawyer can enforce the right without the participation of his client…If the client makes a settlement with the defendant, waiving attorney’s fees, and the defendant has no notice of the assignment -- no notice, that is, that the entitlement to attorney’s fees is not the plaintiff’s to waive -- the lawyer can go against his client for breach of contract. If the defendant does have notice of the assignment, the lawyer can go directly against the defendant.

Id (citations omitted). Moreover, dicta in other circuit court opinions indicate that those courts may find that a client can assign his right to apply for attorney’s fees under Section 1988 to his lawyer. See Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir. 1990) (in holding that Section 1988 fee award to attorney who represented client solely in appeal was premature prior to the resolution of the lawsuit, court noted that the "plaintiff’s entitlement to attorney’s fees (or the lawyers’ entitlement, if the plaintiff assigns it to them)" was the same regardless of whether a single attorney or multiple attorneys handled various phases of the litigation) (emphasis added); Freeman, 790 F.2d at 150 (in holding that there is no independent cause of action for attorney’s fees under the Truth in Lending Act, court summarized Jeff D.’s holding to be that "party may assign his right to fees to his attorney").

Additionally, the Court of Appeals’ justification of its invalidation of the fee assignment on the grounds that this holding was "consistent with the purpose of the federal civil rights statutes," App. 9a, is dubious at best. The court emphasized the "federal policy" of encouraging settlements but entirely ignored the "policy" behind the very civil rights provision applicable in its decision (Section 1988). As noted above, Congress enacted Section 1988 in order to ensure that competent counsel would be willing to represent plaintiffs in all civil rights cases, no matter how large or small the potential damages. See H. Rep. 94-1558 at 9 (§ 1988 "will insure that reasonable fees are awarded to attract competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys"). Allowing victims of civil rights abuse to assign their right to apply for Section 1988 fees to attorneys would undoubtedly encourage additional attorneys to take on civil rights cases on behalf of even the poorest plaintiffs, because they would know that they would be able to seek fees even when the plaintiff decided to settle the underlying claim with the defendant. At the same time, such a ruling would promote early settlement of civil rights cases, by encouraging defendants to assess the merits of these cases at the beginning stages of litigation and to pursue settlement if the case appears strong, because they would know that they may be liable for all reasonable attorney’s fees incurred if the case progresses.

The Court of Appeals’ ruling that Mitchell had no standing to seek attorney’s fees under Section 1988 was based on its invalidation of Pony’s assignment of her right to seek fees; it did not reach the question of whether Mitchell would have standing to apply for fees if the assignment was enforceable. If this Court reverses the Court of Appeals’ ruling on the validity of the assignment, reversal of the Court of Appeals’ ruling on Mitchell’s standing would follow perforce, for if Mitchell has a valid assignment of the right to seek fees, then he clearly has standing to apply for those fees.

3. The Court of Appeals’ Holding That A Lawyer Cannot Challenge A Lump Sum Settlement Policy Cannot Be Reconciled With Standing Decisions of This Court And Of Several Courts Of Appeals.

Even if the Court of Appeals were correct that Pony’s assignment was invalid, and therefore did not give Mitchell standing to pursue statutory fees, Mitchell nonetheless has standing to assert that the County’s policy of demanding lump sum settlements in civil rights cases obstructs the purposes of the Fees Act in violation of the Supremacy Clause. In Jeff D., 475 U.S. at 739, this Court noted that there was "little disagreement" that "a consistent practice of insisting on a fee waiver as a condition of settlement in civil rights litigation is in conflict with the federal statute authorizing fees for prevailing parties, including those who prevail by way of settlement." The Court of Appeals’ holding that Mitchell lacked standing for his preemption challenge insulates from review the very policy about which this Court expressed concerns in Jeff D. The Court of Appeals followed a patently incorrect Article III standing analysis with a sua sponte conclusion that Mitchell lacked prudential standing to assert his preemption claim. In denying Mitchell prudential standing, the Court of Appeals adhered to an earlier Ninth Circuit decision requiring plaintiffs asserting preemption claims, in order to satisfy the requirements of prudential standing, to fall within the zone of interests of the preempting federal law. The Courts of Appeals disagree on whether that requirement is proper.

In conflict with this Court’s holdings, the Court of Appeals denied Mitchell Article III standing to challenge the County’s lump sum policy by inappropriately relying on hypothetical scenarios under which Mitchell might not recover attorney’s fees. Article III of the United States Constitution requires that a plaintiff have suffered an "injury in fact" -- an actual or imminent harm that is concrete and particularized and affects a judicially cognizable interest. Bennett v. Spear, 520 U.S. 154, 167 (1997). The injury must be fairly traceable to the challenged action of the defendant, and it must be likely that the injury would be redressed by a favorable decision. Id.

The Court of Appeals acknowledged that Mitchell could satisfy the Article III standing requirement of injury in fact by "argu[ing] that he has suffered a monetary injury, in that he would have received greater fees in this case than he actually did if the County had not had such a policy." App. 13a. Mitchell made this precise assertion. In Mitchell’s motion for Section 1988 attorney’s fees, Mitchell asserted his preemption claim and alleged that application of the County’s lump sum settlement policy in Pony’s case would cause Mitchell to recover only $6,000, rather than $52,275, in attorney’s fees. The harm alleged -- the lost opportunity to recover $46,275 in additional fees -- in no way resembles the far-fetched potential injuries that this Court has labeled conjectural. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 566-567 (1992) (holding that environmental organization was not injured by federal agency’s action with respect to endangered species in other countries, when organization members had visited the animals’ habitats but had no concrete plan to return). Nonetheless, defying logic, the Court of Appeals labeled Mitchell’s harm "conjectural or hypothetical," App. 13a, and concluded that he had not established an injury in fact.

The Court of Appeals also improperly applied the "fairly traceable" requirement for Article III standing. This Court has cautioned against a rigid proximate cause standard for the "fairly traceable" requirement. See Bennett, 520 U.S. at 168-169. Instead, the plaintiff must merely demonstrate that there is a "substantial probability" that the defendant’s actions caused the plaintiff injury. Warth v. Seldin, 422 U.S. 490, 504 (1975). Mitchell met this standard. Mitchell asserted that the County, pursuant to its policy, required a "lump sum" provision as a condition of settlement with Pony. Pony waived her right to seek statutory fees in order to obtain recovery. Mitchell therefore lost the ability to seek fees under Section 1988 -- fees to which he would be entitled as a prevailing party’s counsel. The Court of Appeals relied on pure conjecture about possible future events that might cause Mitchell not to recover fees: the court reasoned that even if the County had no lump sum policy in place, Pony may have lost at trial or have chosen to waive her right to seek fees anyway. App. 13a. This sheer speculation "wrongly equate[d] injury ‘fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation." Bennett, 520 U.S. at 168-169; see also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 78 (1978) ("Nothing in our prior cases requires a party seeking to invoke federal jurisdiction to negate the kind of speculative and hypothetical possibilities suggested in order to demonstrate the likely effectiveness of judicial relief.").

The Court of Appeals erred even in reaching the question of Mitchell’s prudential standing to challenge the County’s lump sum policy, since the County had asserted no objection to Mitchell’s prudential standing to assert a preemption claim. See Pershing Park Villas Homeowners Ass’n v. United Pacific Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). The court’s ensuing prudential standing analysis denied Mitchell standing on the ground that Mitchell was not properly positioned to vindicate the rights (presumably under Sections 1983 and 1988) of a third party, Pony. App. 15a. This Court should resolve a conflict among the circuits on whether a plaintiff suing under the Supremacy Clause, in order to establish prudential standing, must prove that he falls within the zone of interests of the preempting federal law.

Prudential standing is a rule of judicial self-restraint providing that a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). The essential question is whether "the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." Id. at 500 (emphasis added). In a preemption case, Warth therefore implies that the prudential standing inquiry must center on the interests protected by the law on which the claim rests -- the Supremacy Clause -- rather than on the interests protected by the preempting statute. Cf. Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 73 (1st Cir. 2001), aff’d sub nom. Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644 (2003) (plurality opinion).

The Courts of Appeals for the First, Third, and Fourth Circuits follow the approach that Warth suggests is appropriate, concluding that the Supremacy Clause confers prudential standing on any plaintiff who demonstrates Article III standing. See St. Thomas - St. John Hotel & Tourism Ass’n v. Gov’t of the United States Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000) (holding that an association of employers had standing to seek a declaration that a state wrongful discharge law was preempted by the National Labor Relations Act, even though employers had "no substantive rights" under the challenged NLRA provision); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d at 73 (holding that a pharmaceutical manufacturers’ association had standing to challenge a state prescription drug pricing law as preempted by the federal Medicaid laws, even though the federal law was not intended to protect pharmaceutical companies); Taubman Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475, 481 n.3 (4th Cir. 2003) (noting in dicta that plaintiffs asserting claims under the Administrative Procedure Act ("APA") and the Supremacy Clause would be required to meet the "zone of interests" standing requirement for the APA claim, but not the preemption claim). The United States District Court for the District of Columbia, in an opinion affirmed by the Court of Appeals, has also accepted this view in dicta. Pharm. Research & Mfrs. of Am. v. Thompson, 259 F. Supp. 2d 39, 58 (D. D.C. 2003), aff’d, 362 F.3d 817 (D.C. Cir. 2004).

The Courts of Appeals for the Fifth and Ninth Circuits, on the other hand, in tension with Warth, have required plaintiffs asserting preemption to prove that their claims fall within the zone of interests protected by the preempting federal law. Viceroy Gold Corp. v. Aubry, 75 F.3d 482, 488 (9th Cir. 1996); Self-Insurance Inst. of Am., Inc. v. Korioth, 993 F.2d 479, 484 (5th Cir. 1993). The Tenth Circuit, taking a slightly different approach, has held that a plaintiff had prudential standing in a preemption case where the plaintiff’s obligations under state rules conflicted with its obligations under the preempting federal laws. ANR Pipeline Co. v. Corp. Comm'n of Oklahoma, 860 F.2d 1571, 1579 (10th Cir. 1988).

In this case, the Court of Appeals’ decision impliedly relied on the Ninth Circuit rule. The court obliquely noted that Mitchell’s preemption challenge to the County’s lump sum policy was "based on the rights of another party." App. 13a. Therefore, the court evaluated whether Mitchell had third-party standing to assert Pony’s rights (presumably under Sections 1983 and 1988).

Prudential standing rules "add to the constitutional minima a healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed, the claim not be an abstract, generalized grievance. . . ." Sec’y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 n.5 (1984). This concern does not apply to a preemption challenge in the same way as it does to other constitutional claims, because a preemption plaintiff seeks not to invoke an individual right, but instead to sort out clashing legal obligations. Litigants who satisfy the requirements of Article III standing are well-equipped to pursue a preemption challenge. Mitchell may zealously pursue a preemption claim because the challenged lump sum policy imposes a hardship on him; a favorable decision on preemption would redress his grievance. This Court should resolve the circuit conflict as to whether a plaintiff asserting a Supremacy Clause claim is required to prove that the preempting federal law was enacted to benefit the plaintiff.

Even if a plaintiff asserting a Supremacy Clause challenge must prove that he falls within the zone of interests of the preempting federal law, then Mitchell met that requirement. As part of its prudential standing inquiry, a court examines whether the interest that a plaintiff seeks to protect "is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). Congress enacted Section 1988 to ensure uniform and zealous enforcement of civil rights claims. See H. Rep. 94-1558 at 9. Civil rights lawyers, who form the core of this enforcement machinery, easily fall within that zone of interests.

Moreover, even if the Court of Appeals correctly assumed that Mitchell does not fall within the zone of interests of Section 1988, Mitchell may nonetheless properly assert third-party standing on behalf of civil rights abuse victims whose access to counsel is impeded by the County’s lump sum policy. Ordinarily, a plaintiff may not vindicate the interests of third parties. However, three factors counsel in favor of third-party standing: a close relationship between the litigant and the person whose rights are being asserted; the third party’s inability to advance his own rights; and the impact of the litigation on third-party interests. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989). The Court of Appeals concluded that Mitchell did not have third-party standing to assert a preemption claim on Pony’s behalf because Mitchell did not have a sufficiently close relationship with Pony; further, their interests were adverse, since Pony was contractually bound to indemnify the County for any fees it paid to Mitchell. App. 15a-16a.

That decision is difficult to reconcile with this Court’s repeated conclusion that professionals have third-party standing to challenge restrictions relating to the professional’s fee. The Court has reasoned that these restrictions will ultimately harm the ability of third parties -- present and future clients -- to access needed services or vindicate constitutional rights. See United States Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990) (holding that lawyer had third-party standing for due process challenge to statute barring lawyer from accepting fees from a black lung benefits applicant, unless a federal court or agency approved the arrangement); Caplin & Drysdale, Chartered, 491 U.S. at 624 n.3 (holding that lawyer had third-party standing for Sixth Amendment challenge to federal criminal law requiring forfeiture of funds the defendant had set aside for his attorney fees); Joseph H. Munson Co., 467 U.S. at 958 (holding that professional fundraising company had standing to challenge on First Amendment grounds a state law limiting to 25% the portion of a charity’s fundraising profits that it may pay to the company as a fee).

Mitchell’s case closely resembles Triplett, Caplin & Drysdale, Chartered, and Joseph H. Munson Co. Similarly to the fee restrictions at issue in those cases, the County’s lump sum policy harms future victims of civil rights abuse, who cannot be expected to challenge the policy. While Section 1988 benefits prospective civil rights plaintiffs by increasing the supply of available counsel, a plaintiff who has already secured counsel may obtain adequate compensation in a lump sum agreement and be unaffected by the waiver of statutory fees. The Court of Appeals, by evaluating Mitchell’s third-party standing solely through the lens of Mitchell’s relationship with Pony, turned a blind eye on a core concern of this Court’s third-party standing cases: the plaintiff’s role in vindicating a right that a third parties who will be harmed in the future cannot be expected to protect on their own. See Eisenstadt v. Baird, 405 U.S. 438, 445-446 (1972).

For the foregoing reasons, this Court should grant certiorari in this case.