Metropolitan News-Enterprise


Wednesday, April 26, 2023


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Ninth Circuit:

Tribes Not Eligible for Attorney Fees Under CCP §1021.5

Panel Says, in Denying Motion for More Than $1 Million in Fees Expended on Appeal, That California CCP Section Does Not Apply Where Plaintiffs Pursued Claim Under Federal Statute Lacking a Provision for Fee-Shifting


By a MetNews Staff Writer


Native American tribes that prevailed in an action against the State of California in a U.S. District Court, under a federal statute that does not contain an attorney-fee provision, cannot recover the more than $1 million it paid to its lawyers, the Ninth U.S. Circuit Court of Appeals held yesterday, spurning a motion under California Code of Civil Procedure §1021.5, which codifies the private attorney general doctrine.

Sec. 1021.5 provides that “a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest” under specified circumstances.

The tribes successfully sued the state under the federal Indian Gaming Regulatory Act (“IGRA”), establishing, in an appeal the Ninth Circuit decided last year, that “California failed to act in good faith in its compact negotiations with the plaintiff Tribes” over Las Vegas-style casino gambling permits. After scoring its victory, by a 2-1 opinion, the tribes sought an award by the Ninth Circuit of moneys it expended for work on the appeal amounting to $1,130,678.57.

“The time spent is reasonable considering the novelty, complexity, and difficulty of the case and the defenses raised by the State, including the State’s unsuccessful motion for a stay pending appeal,” they remarked.

Bress Authors Opinion

Ninth Circuit Judge Daniel A. Bress, who wrote last year’s majority opinion in the tribes’ favor, authored yesterday’s opinion denying the tribes’ motion. He was joined by Judges Kim Wardlaw and Patrick J. Bumatay.

 “We hold that because the plaintiffs prevailed on a federal cause of action, they are entitled to attorneys’ fees only if federal law allows them. Because it does not, we deny the Tribes’ fee request.”

California asserted in its opposition to the motion for fees that the lawsuit is a “pure federal question case.”

Tribes’s Position

The tribes disputed that, saying:

“The Tribes…did not and could not have pursued this litigation based purely on federal law….This litigation was only possible because California law waives the State’s sovereign immunity and Eleventh Amendment immunity to claims by California Indian tribes that the State failed to negotiate a class III gaming compact in good faith. The Tribes’ motion for attorneys’ fees is only possible because the California Legislature chose to grant successful litigants the right to seek attorneys’ fees against the State pursuant to the private attorney general doctrine and waive the State’s sovereign immunity to such claims.”

The tribes added:

“Even more fundamentally, this litigation arises from the State’s insistence that California law be imposed on the Tribes’ on-reservation activities beyond the gaming activities conducted by the Tribes pursuant to the Indian Gaming Regulatory Act….State law is at the heart of every element of this case.”

Federal Claim

Bress responded:

“[T]he Tribes’ IGRA claim did not lose its character as a federal claim simply because state law issues were lurking in the case or because state law in some sense set the stage for the violation of federal law that was the basis of the action.”

The tribes argued that in its 2018 decision in Independent Living Center of Southern California, Inc. v. Kent, “this Court awarded attorney fees to the plaintiffs under Section 1021.5, notwithstanding the fact that the action was not based on a state law cause of action.”

Case Mischaracterized

To the contrary, Bress wrote, the court in Kent said that because “Appellants brought a state-law claim,...they are therefore permitted to seek fees pursuant to § 1021.5.”

He commented:

“Kent did not suggest that the prevalence of a state law backdrop could somehow justify applying a state law attorneys’ fees provision to a purely federal claim.”

The judge declared:

“Because the Tribes brought a claim only under IGRA, California law does not govern their request for fees. And because federal law does not provide for fee shifting here, the Tribes’ motion for attorneys’ fees must be


The case is Chicken Ranch Rancheria v. State of California, 21-15751.


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