Riana Buffin v. City & County of San Francisco

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIANA BUFFIN; CRYSTAL No. 20-15518

PATTERSON,

Plaintiffs-Appellees, D.C. No.

4:15-cv-04959-

and YGR

CITY AND COUNTY OF SAN

FRANCISCO; PAUL MIYAMOTO, OPINION

Sheriff,

Defendants-Appellees,

Vv.

STATE OF CALIFORNIA; ROB BONTA,

Defendants-Appellants,

and

CALIFORNIA BAIL AGENTS

ASSOCIATION,

Intervenor-Defendant.

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

2 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

Argued and Submitted March 4, 2021

San Francisco, California

Filed January 13, 2022

Before: Bobby R. Baldock," Kim McLane Wardlaw, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Wardlaw

* The Honorable Bobby R. Baldock, United States Circuit Judge for

the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 3

SUMMARY™

Civil Rights

The panel affirmed the district court’s order requiring

California to pay attorney’s fees and costs in the amount of

$1,950,000.00 after plaintiffs successfully challenged the

State’s application of a mandatory bail law in San Francisco

through an official-capacity class action suit brought

pursuant to 42 U.S.C. § 1983 against the Sheriff for the City

and County of San Francisco, who enforced California’s bail

law on behalf of the State.

Plaintiffs alleged that the bail schedule set by the San

Francisco Superior Court, an arm of the State, violated their

rights to equal protection and due process because it failed

to take into account pre-arraignment detainees’ inability to

pay the state court’s pre-set mandatory bail amounts.

Following years of litigation, the district court enjoined the

Sheriff, who it had long ago decided enjoyed Eleventh

Amendment immunity from a damages judgment because

she was acting on behalf of the State, from enforcing the bail

schedule and any other state bail determination that made the

existence or duration of pre-trial detention dependent on the

detainee’s ability to pay. After the injunction issued, the

district court awarded a reduced lodestar amount of

attorney’s fees—amounting to $1,950,000.00—to the class.

And it held the State of California responsible for payment

of the attorney’s fees, given that this was an official-capacity

action against the Sheriff, who was at all times acting on

behalf of the State of California.

*“ This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

In affirming the attorney’s fee award, the panel rejected

the State’s arguments that it was not responsible for paying

the attorney’s fee award because (1) the State was dismissed

from the case on the ground of Eleventh Amendment

immunity from suit; and (2) the State did not otherwise

participate in the litigation, either through intervention or by

offering to represent the Sheriff in this action. The panel

held that although it was true that the State was immune from

a suit for damages here, the district court correctly ruled that

the Sheriff could be sued in her capacity as a state official

for injunctive relief, and that the State could be assessed a

reasonable attorney’s fee under 42 U.S.C. § 1988. The panel

further noted that in Hutto v. Finney, 437 U.S. 678 (1978),

the Supreme Court confirmed that § 1988 awards against a

state that is not a party to the lawsuit can be proper. The

panel held that given the district court’s ruling that the

Sheriff acted on behalf of the State when setting bail, the

district court did not err in concluding that the Sheriff in her

official capacity acted as the State’s agent for the purposes

of assessing attorney’s fees. The panel further determined

that the State had the necessary notice and an opportunity to

respond to plaintiffs’ claims that this official-capacity suit

against the Sheriff could properly be treated as a suit against

the State.

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 5

COUNSEL

Jose A. Zelidon-Zepeda (argued), Deputy Attorney General;

Benjamin M. Glickman, Supervising Deputy Attorney

General; Thomas S. Patterson, Senior Assistant Attorney

General; Rob Bonta, Attorney General; Office of the

Attorney General, San Francisco, California; for

Defendants-Appellants.

Sadik Huseny (argued), Tyler P. Young, Aaron T. Chiu, and

Abagil Parr, Latham & Watkins LP, San Francisco,

California; Phil Telfeyan, Equal Justice Under Law,

Washington, D.C.; for Plaintiffs-Appellees.

Jeremy M. Goldman (argued), Co-Chief of Appellate

Litigation; Office of the City Attorney, San Francisco,

California; for Defendants-Appellees.

OPINION

WARDLAW, Circuit Judge:

Riana Buffin and Crystal Patterson successfully

challenged the application of the State of California’s

(“State”) mandatory bail law in San Francisco through this

official-capacity class action suit against the Sheriff for the

City and County of San Francisco, who enforced

California’s bail law on behalf of the State. In this 42 U.S.C

§ 1983 civil rights action, Buffin and Patterson claimed that

the bail schedule set by the San Francisco Superior Court, an

arm of the State, violated their rights to equal protection and

due process because it failed to take into account pre-

arraignment detainees’ inability to pay the state court’s pre-

set mandatory bail amounts. Ultimately, following years of

6 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

litigation, the district court enjoined the Sheriff, who it had

long ago decided enjoyed Eleventh Amendment immunity

from a damages judgment because she was acting on behalf

of the State, from enforcing the bail schedule and any other

state bail determination that makes the existence or duration

of pre-trial detention dependent on the detainee’s ability to

pay. After the injunction issued, the district court awarded a

reduced lodestar amount of attorney’s fees—amounting to

$1,950,000.00—to the class. And it held the State of

California, which never challenged the amount of the fees,

responsible for payment of the attorney’s fees, given that this

was an official-capacity action against the Sheriff, who was

at all times acting on behalf of the State of California.

The State appeals this determination, arguing that it is

not responsible for paying the attorney’s fee award because

(1) the State was dismissed from the case on the ground of

Eleventh Amendment immunity from suit; and (2) the State

did not otherwise participate in the litigation, either through

intervention or by offering to represent the Sheriff in this

action. Like the district court, we reject these arguments

because under Hutto v. Finney, 437 U.S. 678 (1978) and its

progeny, the State can be required to pay the attorney’s fees,

and its arguments miss the point of the controlling case law.

We therefore affirm the district court’s order requiring

California to pay the class’s fees and costs in the amount of

$1,950,000.00.

L

A.

For background, we first describe the State of

California’s bail-setting regime. California regulates how its

sheriffs and judges set bail through “a comprehensive

statutory scheme.” Galen v. Cnty. of L.A., 477 F.3d 652, 660

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 7

(9th Cir. 2007); see generally Cal. Penal Code §§ 1268—

1320.5. Under state law, bail is set in one of the following

three ways:

(1) if the defendant has had his first hearing,

bail is set at the “amount fixed by the judge”

at that hearing;

(2) if the defendant has not had his first

hearing, but was arrested pursuant to an arrest

warrant, bail is set at “the amount fixed in the

warrant of arrest”; or

(3) if the defendant has not had his first

hearing and was not arrested pursuant to an

arrest warrant, bail is set by the sheriff at the

amount dictated in a “uniform countywide

schedule of bail.”

Cal. Penal Code § 1269b(b).

This case revolves around the third method of setting

bail: uniform countywide bail schedules. In California, state

law imposes a duty on the Superior Court of each county to

“prepare, adopt, and annually revise a uniform countywide

schedule of bail” for all bail-eligible felony offenses and all

misdemeanors and infraction offenses except Vehicle Code

infractions. /d. § 1269b(c). In turn, the Sheriff must comply

with the Superior Court’s uniform schedule. See id.

§ 1269b(a). The Sheriff determines an arrestee’s bail

amount solely by reference to the bail schedule and may

release an arrestee only if he pays that amount. An excerpt

8 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

from San Francisco’s bail schedule, created by the San

Francisco Superior Court, appears below:

2015 FELONY & MISDEMEANOR BAIL SCHEDULE (July 1, 2015)

For all unscheduled felonies, the bail amountis $15,000. For all unscheduled

misdemeanors, the bail amount is $3,000. For all unscheduled infractions, the

bail amount is $100. NOTE: All attempts of an offense (whether listed as

“attempt,” “att," or "664") have the same bail amount as the offense itself.

|

NOTE: "#" indicates that bail amount applies to all subsections of the listed

statute, or subsection, unless subsection is listed with differnt bail. Offenses

subject to P.C. Section 1270.1 are marked in this schedule with a single astetisk ( *

| Attached at the end of this schedule are two conversion charts related fo

Penal Code weapon offenses. The first table is the conversion fram the old statute

‘to tha current section. The second table is the conversion from new statutes to. the

old, The intention of this bail schedule is to sel bail based on the current statute,

‘In the event that the old statute is reference in the booking process, youare-toset —

(the higher ball based on these conversion tables, and NOT to set ball as 4 default.

FELONY OFFENSES -- PENAL CODE

OFFENSE | DESCRIPTION

a7 Treason _ __

67 Bribery a.

67.5 (b) Bribery of public officer or employee (lf theft of thing given or offered would be

|_____|grand theft)

68 Taking bribe

69 Resisting arrest/threatening officer

76 (a) Threats to the life of an official or judge

8: Bribe government official

9 Bribing judge or juror

93 (a) Accepting bribe by judge or juror

415 (ay Offering farged/false documents for filing i

198 (a) Perjury _ ere a:

118a - Perjury by ‘documents

118.1 ‘False police report

1 _Subornation of perjury

128" _____| Perjury - capite —

436.1 "Ht Preventing ar victim or witness from testifying

137(b) Inducing false testimony

139 (a) | Threats of farce or violence against witness or victim

140 (a) Threaten witness

148.10 # [Resisting officer & causing death or serious bodily injury

165 \Bribery of councilman, supervisor, ets,

168(c)(4) ‘Violation of order connected with domestic violence with previous conviction for

violating domestic violence order

182 (a)(1-5) Conspiracy (to commit specific felony).

When no felony is specified, bail is $15,000 |

182(a}(6) Conspiracy to commit any crime against president, vice-president and others | 300,000

186.22 (a) Participation in street gang activity [25,000

186.26 # Gang activities | 40,000

186.28 # Transferring control of firearm to gang member 80,000

187 "# Murder i set by judge |

As this excerpt demonstrates, bail schedules list the criminal

charges that an individual might face and a corresponding

amount of bail for each offense. /d. § 1269b(e). But setting

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 9

bail by this uniform bail schedule does not allow the Sheriff

to take into account anything else—including an individual’s

ability to pay—when calculating bail. And California

sheriffs are prohibited by state law from deviating from this

schedule when setting bail. See id. § 1269b(a).

Along with many others, Buffin and Patterson had their

bail set according to this schedule. The police arrested

Buffin on October 26, 2015, and, based on San Francisco’s

state-mandated bail schedule, the Sheriff set her bail at

$30,000. The next day, the police arrested Patterson, and the

Sheriff used the same schedule to set her bail at $150,000.

Both Buffin and Patterson were indigent and unable to afford

these large bail amounts.

B.

On October 28, 2015, Buffin and Patterson filed this

class action lawsuit under 42 U.S.C. § 1983, originally

naming as the defendants the City and County of San

Francisco (“County”) and the State of California, but the

State successfully moved to dismiss on grounds of sovereign

immunity. Ultimately, the plaintiffs filed a Third Amended

Complaint, adding as defendants the Sheriff and the

California Attorney General for their alleged roles in fixing

and enforcing the mandatory bail schedule in violation of

plaintiffs’ rights to equal protection and due process. The

Sheriff, County, and Attorney General moved under Rule

12(b)(6) to dismiss the action. The County and the Sheriff

argued that the complaint failed to state a claim against them

because the Sheriff acted on behalf of the State when she

enforced the bail schedule, and therefore she, too, was

entitled to sovereign immunity. The Attorney General

argued, inter alia, that she also enjoyed Eleventh

Amendment sovereign immunity, and that the Ex Parte

10 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

Young exception was inapplicable. See generally Ex Parte

Young, 209 U.S. 123 (1908).

The district court applied the McMillian v. Monroe

County, 520 U.S. 781 (1997) framework to determine

whether the Sheriff acted on behalf of the State or on behalf

of the County when she detained an individual unable to pay

the bail amount set by the Superior Court in the county-wide

bail schedule. In light of California’s comprehensive bail

regime and the state law requirement that the Sheriff detain

arrestees until they pay a scheduled amount—giving the

Sheriff no discretion but to do so, see Cal. Penal Code

§ 1269b—the district court ruled that the Sheriff “acts on

behalf of the State when she detains a person based on his or

her inability to pay the bail amount prescribed in the bail

schedule as set by the Superior Court.” Buffin v. City and

Coty. of S.F., No. 15-cv-04959-YGR, 2016 WL 6025486, at

*9 (N.D. Cal. Oct. 14, 2016). Thus, according to the district

court, “[t]he State is the relevant actor when the Sheriff

detains a person who does not pay bail.” Jd.

Further, the district court concluded, as a state actor, the

Sheriff in her official capacity received Eleventh

Amendment immunity from a suit for monetary relief—a

protection enjoyed only by states, arms of the state, and state

officials acting in their official capacities.! See Flint v.

Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007). Second,

because the Sheriff acted on behalf of the State, the district

court dismissed the sole claim against the County because

' The phrase Eleventh Amendment immunity is a “convenient

shorthand but something of a misnomer, for the sovereign immunity of

the States neither derives from, nor is limited by, the terms of the

Eleventh Amendment.” N. ns. Co. of N.Y. v. Chatham Cnty., 547 U.S.

189, 193 (2006) (citation omitted).

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 11

Buffin and Patterson had “not alleged a municipal policy or

practice for which the County may be held liable.” Buffin,

2016 WL 6025486, at *9 (emphasis added); see McMillian,

520 U.S. at 784-86. So, although plaintiffs could not

proceed against the Sheriff and County for money damages,

they could proceed to the extent they sought injunctive or

declaratory relief against the Sheriff in her official capacity

for enforcing the unconstitutional bail law. See Ex Parte

Young, 209 U.S. at 155-56.

However, the Ex Parte Young exception to sovereign

immunity did not apply to the California Attorney General

because the Attorney General did not enforce the

unconstitutional bail law—“|[rJather ... the Sheriff is the

actor responsible for enforcing the challenged state law in

San Francisco.” Buffin, 2016 WL 6025486, at *12. Absent

the Ex Parte Young exception, no similar claim could lie

against the California Attorney General. See Coal. to Def.

Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir.

2012). The district court therefore dismissed the Attorney

General as a party to the case.

As a result, this action proceeded solely against the

Sheriff acting in her official capacity on behalf of the State

of California. One might have thought that at this point, the

Attorney General would have taken over the defense of this

action from the San Francisco city attorneys representing the

Sheriff, but the Attorney General’s Office didn’t do so.

Next, the Sheriff filed an answer to the operative Third

Amended Complaint stating that she did not intend to defend

California’s bail laws. The Attorney General then

represented, along with the California Bail Bonds

Association (CBAA) in a stipulation among all the parties,

that they separately intended to move to intervene in this

action, “given that no currently named Defendant intends to

12 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

defend the lawsuit.” Then, the Attorney General apparently

changed her mind and filed a Notice of Non-Intervention in

the district court, informing the parties that she would not

move to intervene. The CBAA successfully intervened to

defend the State’s bail regime.

The parties heavily litigated the case. On cross-motions

for summary judgment, the now-certified plaintiff class

prevailed. The district court ruled that the Sheriff's use of

the countywide bail schedule—in accordance with state

law—violated the Fourteenth Amendment, applying the

strict scrutiny standard of review.” At stake was the plaintiff

class’s fundamental right to liberty of which it was deprived

by reason of its indigence. The district court granted

summary judgment against the Sheriff in her official

capacity. The parties then negotiated and reached a

settlement as to the appropriate class-wide and prospective

injunctive remedy. The district court approved that

settlement and issued an injunction barring the Sheriff from

using the State’s bail schedule or any other formula

dependent on the arrestee’s ability to pay to set bail in the

future. No appeals were filed from these rulings.

C.

Because Buffin and Patterson had prevailed against the

Sheriff in a § 1983 official-capacity suit, they were

presumptively entitled to an award of attorney’s fees under

§ 1988. See 42 U.S.C. § 1988; see also Hensley vy.

? California’s own courts have also recently concluded that blind

adherence to such a bail schedule violates the Fourteenth Amendment.

See In re Humphrey, 228 Cal. Rpt. 3d 513, 538-42 (Cal. Ct. App. 2018),

aff'd and ordered precedential in relevant part by In re Humphrey,

472 P.3d 435 (Cal. 2020) (en banc); accord. In re Humphrey, 482 P.3d

1008, 1019 (Cal. 2021).

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 13

Eckerhart, 461 U.S. 424, 429 (1983) ([A] prevailing

plaintiff should ordinarily recover an attorney’s fee unless

special circumstances would render such an award unjust.”)

(cleaned up). However, both they and the Sheriff thought

that the State should pay the attorney’s fees, given that the

district court had earlier ruled that the Sheriff acted for the

State when she set bail under the bail schedule. The City

Attorney therefore reached out to the California Attorney

General’s Office and invited it to participate in the attorney’s

fees negotiations. That office refused to join those

negotiations.

Buffin, Patterson, and the Shenff therefore negotiated

among themselves and agreed to an attorney’s fees award

totaling $1,950,000. However, they still proposed to the

district court that it order the State to pay these fees. The

district court invited the State to submit a brief on the

propriety of an order requiring the State to pay the plaintiffs’

attorney’s fees and costs. At that, the California Attorney

General’s Office re-entered the fray and objected to an order

requiring the State to pay the fees, but it did not dispute the

amount of the fees.

After reviewing the State’s arguments, the district court

ordered the State to pay the attorney’s fees. Relying on

Hutto, the district court concluded that such an award was

proper so long as the plaintiffs had prevailed “for all

practical purposes ... against the State itself.” Hutto,

437 U.S. at 699-700. Given that the district court had

already held that the Sheriff acted on behalf of the State

when setting bail, enjoyed Eleventh Amendment immunity

from monetary relief, and was liable in her official capacity

for purposes of injunctive relief, the district court found

Hutto’s condition satisfied. And because the State did not

contest the amount of attorney’s fees, the district court

14 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

ordered the State to pay the entire sum, noting that it was a

significant reduction from the lodestar amount.

On March 24, 2020, the State timely appealed that

attorney’s fees award.3 The district court agreed to stay its

order pending appeal, though it demanded that the State

deposit 125% of the attorney’s fees judgment into a secure

third-party account. On October 15, 2020, we granted the

State’s motion to stay the fee award without bond while we

considered this appeal.

II.

We review a district court’s award of attorney’s fees

under 42 U.S.C. § 1988 for an abuse of discretion, Corder v.

Gates, 947 F.2d 374, 377 (9th Cir. 1991), while “[a]ny

element of legal analysis which figures in the district court’s

3 Although the State of California was no longer a named party to

the suit when the attorney’s fees judgment was entered against it, we will

nonetheless hear the State’s appeal. We will “hear nonparties’ appeals

only in ‘exceptional circumstances.” United States ex rel. Alexander

Volkhoff, LLC v. Janssen Pharmaceutica N.V., 945 F.3d 1237, 1241 (9th

Cir. 2020) (quoting S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 804 (9th

Cir. 2002)). “We have allowed such an appeal only when (1) the

appellant, though not a party, participated in the district court

proceedings, and (2) the equities of the case weigh in favor of hearing

the appeal.” Hilao v. Est. of Marcos, 393 F.3d 987, 992 (9th Cir. 2004)

(citation omitted). The equities weigh in favor of hearing an appeal

“when judgment has been entered against the nonparty.” Janssen

Pharmaceutica N.V., 945 F.3d at 1242 (citation omitted).

Here, exceptional circumstances warrant allowance of the State’s

appeal. First, not only did the State participate in the district court

proceedings as a former party, it also briefed and argued the propriety of

this attorney’s fees judgment before the district court. Second, because

the attorney’s fees judgment was entered against the State, the equities

weigh in favor of hearing the State’s appeal.

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 15

decision is reviewed de novo,” In re Mercury Interactive

Corp. Secs. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (citation

omitted). In other words, we will not disturb a district

court’s fee award so long as it rests on an accurate view of

the law and is otherwise reasonable.

III.

When § 1983 plaintiffs have prevailed against a state

official in his official capacity, they may recover attorney’s

fees under 42 U.S.C § 1988. Kentucky v. Graham, 473 U.S.

159, 170 (1985); Hutto, 437 U.S. at 699-700. And the

district court reviewing an application for § 1988 fees can

require those fees to come from (1) the state official’s

“agency or [funds] under his control” or (2) “the State” itself.

Hutto, 437 U.S. at 700. We affirm the district court’s

decision to require that the attorney’s fees be paid by the

State itself, because it correctly found that the Eleventh

Amendment does not bar § 1988 attorney’s fees awards and

that the plaintiff class prevailed against the Sheriff for

actions taken on behalf of the State.

A.

The State principally objects to the district court’s award

of attorney’s fees against it because it enjoys sovereign

immunity under the Eleventh Amendment from suits for

monetary damages. Although it is true that the State is

immune from a suit for damages here, the district court

correctly ruled that the Sheriff could be sued in her capacity

as a State official for injunctive relief, and that the State could

be assessed a reasonable attorney’s fee under 42 U.S.C.

§ 1988.

The Eleventh Amendment’s grant of state sovereign

immunity generally prevents nonconsenting states from

16 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

“be[ing] sued by private individuals in federal court.” Bd. of

Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).

But for decades, the Supreme Court has acknowledged two

rationales for nonetheless permitting an award of attorney’s

fees pursuant to 42 U.S.C. § 1988(b) against a sovereign

state. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 279

(1989); Hutto, 437 U.S. at 691-99.

First, “Congress has plenary power to set aside the

States’ [sovereign] immunity from retroactive relief in order

to enforce the Fourteenth Amendment.” Hutto, 437 U.S. at

693; accord Californians for Renewable Energy v. Cal. Pub.

Utils. Comm’n, 922 F.3d 929, 941-42 (9th Cir. 2019)

(acknowledging this aspect of Hutto); Spain v. Mountanos,

690 F.2d 742, 744 (9th Cir. 1982) (same). And as Hutto

elaborated, in enacting 42 U.S.C. § 1988, “Congress

undoubtedly intended to exercise that power and to authorize

fee awards” against the states “when their officials are sued

in their official capacities.” 437 U.S. at 693-94.

Second, and in any event, “the application of § 1988 to

the States [does] not depend on congressional abrogation of

the States’ immunity.” Jenkins, 491 U.S. at 279; see Hutto,

437 US. at 695-98. For § 1988 “imposes attorney’s fees ‘as

part of the costs’” the losing party must pay, and “[c]osts

have traditionally been awarded without regard for the

States’ Eleventh Amendment immunity.” Jenkins, 491 U.S.

at 280 (quoting Hutto, 437 U.S. at 695). “The holding of

Hutto, therefore, was not just that Congress had spoken

sufficiently clearly to overcome Eleventh Amendment

immunity in enacting § 1988, but rather that the Eleventh

Amendment did not apply to an award of attorney’s fees

ancillary to a grant of prospective relief.” Jd.

Thus, to the extent that the State argues that “[t]here is

no ‘attorneys’ fees’ exception to the Eleventh Amendment,”

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 17

it misunderstands Supreme Court precedent. State of Cal.’s

Open. Br. 15. It has identified no Supreme Court decision

overruling Hutto and its progeny. Indeed, in its reply brief,

California agrees that such awards are proper if made

because of a state officer’s conduct.

Thus, the State’s point that it enjoys sovereign immunity

from § 1983 claims seeking retroactive monetary damages is

of no import here. Because a § 1988 claim for attorney’s

fees “is uniquely separable from the cause of action to be

proved at trial,’ it does not matter that the Eleventh

Amendment precludes a state’s retroactive fiscal liability

under § 1983. White v. N.H. Dep’t of Emp. Sec., 455 U.S.

445, 452 (1982): see also id. at 451-52 (“Regardless of when

attorney’s fees are requested, the court’s decision of

entitlement to fees will therefore require an inquiry separate

from the decision on the merits—an inquiry that cannot even

commence until one party has ‘prevailed.’”); Quern vy.

Jordan, 440 U.S. 332, 344-45 (1979) (noting that Congress

evinced different intentions regarding the abrogation of

Eleventh Amendment immunity when it enacted § 1983 and

§ 1988).

The State’s reliance on Supreme Court of Virginia vy.

Consumers Union of the U.S., Inc., 446 U.S. 719 (1980), is

also misplaced. That case merely established that attorney’s

fees under § 1988 should not be awarded based on the

actions of state officials acting in a legislative capacity.

446 U.S. at 738 (finding “no [] indication .. . that Congress

intended [§ 1988] to permit an award of attorney’s fees to be

premised on acts for which defendants would enjoy absolute

legislative immunity”). Indeed, the Court essentially

confirmed that a fee award against the Virginia State Bar—

the authority responsible for “enforc[ing]” the challenged

state attorney disciplinary rules—or the Virginia Supreme

18 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

Court, to the extent it enforced rather than made those rules,

would have been proper. /d. at 739 (“Fee awards against

enforcement officials are run-of-the-mill occurrences.”).

In short, any suggestion of a blanket Eleventh

Amendment prohibition on attorney’s fees awards against

states under § 1988 is a mirage. To the extent that the State

suggests otherwise, its “argument is directed to the wrong

court.” Spain, 690 F.2d at 744 n.2.

B.

Although it is settled that § 1988 permits attorney’s fees

awards against a non-party state in some circumstances,

Hutto, 437 U.S. at 699-700, this case raises a related issue

that our Circuit has yet to settle: how to decide which party

should be liable for attorney’s fees among a state, a county,

and an official-capacity defendant. The State argues that

because it was not a part of this lawsuit, it should not be the

entity on the hook for attorney’s fees. We disagree.

The Supreme Court confirmed in Hutto that § 1988

awards against a state that is not a party to the lawsuit can be

proper. Specifically, in making such an award, it is

immaterial that neither a state nor its agency “is expressly

named as a defendant.” /d. at 699.4 An Ex Parte Young suit

* Hutto suggested that it would be preferable for the order to run

against the official actually sued, but that the distinction ultimately does

not matter where the state would be required to pay in any event. Hutto

explained: “Instead of assessing the award against the defendants in their

official capacities, the District Court directed that the fees are “to be paid

out of Department of Correction funds.’ Although the Attorney General

objects to the form of the order, no useful purpose would be served by

requiring that it be recast in different language.” 437 U.S. at 692 (1978)

(internal citation and footnote omitted).

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 19

against a state officer in her official capacity is “for all

practical purposes, brought against the State.” /d. Congress

itself recognized as much in passing § 1988, for “[t]he

legislative history makes it clear that in such suits attorney’s

fee awards should generally be obtained ‘either directly from

the official, in his official capacity, from funds of his agency

or under his control, or from the State or local government

(whether or not the agency or government is a named

party).’” Jd. at 700 (quoting S. Rep. No. 94-1011, p. 5

(1976).

However, as the Sixth Circuit has aptly noted, “Hutto

doesn’t tell us how to choose” whether § 1988 fees can or

should be assessed against a state, a county department or

entity, or a defendant in her official capacity. Miller v.

Caudill, 936 F.3d 442, 450 (6th Cir. 2019). “[T]he Hutto

Court faced a choice between individual officers or the

government they served, so the Court never determined

when and how liability could shift amongst three possible

parties,” id. (emphasis in original)—in this case the Sheriff,

the County, and the State. This problem frequently arises

when it comes to certain county officials, whose duties and

actions often depend on both county and state laws or

policies. See, e.g., id. at 450-52 (discussing a county clerk

responsible for issuing marriage licenses as dictated by state

law); Echols v. Parker, 909 F.2d 795, 800-01 (Sth Cir. 1990)

(discussing a county attorney, district attorney, and county

judge enforcing a state anti-boycott law).

Although our Circuit has never addressed this issue, the

Fifth, Sixth, and Seventh Circuits have offered a persuasive

answer regarding when such an award should fall upon a

state. Those circuits determine where § 1988 liability should

fall by “look[ing] to the entity on whose behalf [the official]

acted” when the official “[took] the challenged action.”

20 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

Miller, 936 F.3d at 450; see also Herbst v. Ryan, 90 F.3d

1300, 1306 (7th Cir. 1996) (asking which “governmental

entity is the ‘moving force’ behind the constitutional wrong

that forms the basis of the suit”) (citations omitted); Echols,

909 F.2d at 800-01 (asking whether the constitutional wrong

was the result of state or county policy). This makes sense,

“Tb]ecause official-capacity lawsuits seeking injunctive

relief are effectively lawsuits against the government,” and

“which government an official serves determines which

government a plaintiff prevails against.” A/iller, 936 F.3d

at 450; cf Graham, 473 U.S. at 165 (“[L]iability on the

merits and responsibility for fees go hand in hand; where a

defendant has not been prevailed against, either because of

legal immunity or on the merits, § 1988 does not authorize a

fee award against that defendant.”).

And this test from our sister circuits aligns with how,

over the years, the Supreme Court has explained what it

means to be a government official sued in his official

capacity. For instance, “a judgment against a public servant

‘in his official capacity’ imposes liability on the entity that

he represents,” Brandon v. Holt, 469 U.S. 464, 471 (1985),

or the “entity of which [he] is an agent,” Lewis v. Clarke,

137 S. Ct. 1285, 1291 (2017) (citation omitted). When sued

in their official capacity, these government agents and

representatives enjoy the same immunities and are held

liable under the same standards as the government entities

they represent. See Hafer v. Melo, 502 U.S. 21, 25 (1991).

Here, the San Francisco County Sheriff was charged by

state law with enforcing a state-mandated bail regime. We

must resolve whether the Sheriff was a state or local official

for the purposes of this claim. To do so, we must first home

in on the challenged actions the Sheriff took. County

officials like the Sheriff can act as county or state officials,

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 21

depending on the particular context. See Ceballos v.

Garcetti, 361 F.3d 1168, 1182 (9th Cir. 2004), reversed on

other grounds by Garcetti v. Ceballos, 547 U.S. 410 (2006).

For such officials who “serve two masters,” we examine

whether “the particular acts the official is alleged to have

committed fall within the range of his state or county

functions.” Id.; ef McMillian, 520 U.S. at 785-86.

As the district court explained in great depth when it

ruled on the County and Sheriff's motions to dismiss,

California’s statutory bail regime enlisted the County Sheriff

and compelled her to set bail in line with a state-created bail

schedule. California law permits a sheriff to set bail using

only a bail schedule set by the state court; she must set bail

at the amount listed in that document. Cal. Penal Code

§ 1269b(b). Moreover, the Sheriff has no discretion over

when to release or hold a pre-trial detainee. If the detainee

makes bail, the Sheriff must release her; if not, the Sheriff

must keep her in jail pending her court proceedings. /d.

§§ 1269, 1269a, 1269b(a), (g); see also id. § 1270 (giving a

court or magistrate the authority to release a defendant on

their own recognizance, but conveying no similar power to

a sheriff or peace officer).

The district court viewed the State as the Sheriff’ s master

as she set bail under the state-mandated bail schedule. The

court therefore concluded that the Sheriff “act[ed] on behalf

of the State” when setting bail. Buffin, 2016 WL 6025486,

at *9. See Restatement (Third) of Agency § 1.01 (2021)

(“Agency is the fiduciary relationship that arises when one

person (a ‘principal’) manifests assent to another person (an

‘agent’) that the agent shall act on the principal’s behalf.”).

Thus, “the Sheriff [wa]s the actor responsible for enforcing

the challenged state law in San Francisco,” id. at *12, and

22 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

the State was “the relevant actor when the Sheriff detains a

person who does not pay bail,” id. at *9.

Given that unchallenged ruling, the district court did not

err in concluding that the Sheriff in her official capacity

acted as the State’s agent for the purposes of assessing

attorney’s fees. See Echols, 909 F.2d at 800. For when a

state statutory regime comprehensively “directs the actions

of an official, as here, the officer, be he state or local, is

acting as a state official,” i.e., a state agent. /d. at 801;

accord Miller, 936 F.3d at 451 (finding it dispositive that

“Kentucky controls every aspect of how county clerks issue

marriage licenses” when concluding that these clerks were

state officials). In other words, instead of exercising control

over the Sheriff by signing her paycheck, the State here used

its plenary power over the structure of California’s

government to enlist the Sheriff and command her to do its

bidding when she set bail using a bail schedule. The State

may make that choice. But in doing so, the State makes the

Sheriff a state official in this context, and so bears

responsibility for the unconstitutional actions it mandated

she take. See Miller, 936 F.3d at 451-52; cf Restatement

(Second) of Agency § 224 (1958) (“One compelled by law

or duress to render services to another has power to subject

the other to liability as if there were a master and servant

relation.”) (emphasis added).

Despite the State’s protest, no further factual information

was necessary to establish that the Sheriff acted as an agent

of the State. California’s own bail law—“the official policy

of the State,” Echols, 909 F.2d at 801 (internal citation

omitted)—was all the evidence the district court needed.

The other provisions of California law generally “labeling”

sheriffs “as local officials” cannot overcome the fact that—

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 23

in this particular context—the Sheriff acted for the State. /d.;

accord Miller, 936 F.3d at 451.

Indeed, any other conclusion at the attorney’s fees stage

would have led to an untenable dissonance with the district

court’s earlier Eleventh Amendment holding. The district

court had noted that the Sheriff was “entitled to immunity

from suit for money damages under the Eleventh

Amendment.” Buffin, 2016 WL 6025486, at *9. But the

Sheriff could possess that immunity only if she was being

sued in her official capacity as a state official. For in an

official-capacity suit, a defendant can claim only those

“forms of sovereign immunity that the entity” she represents

“may possess, such as the Eleventh Amendment.” Graham,

473 US. at 167. And only a state, its arms and

instrumentalities, and its officials (when sued in their official

capacities) enjoy that kind of immunity; the county does not.

Lewis, 137 S. Ct. at 1290-91; Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 690 & n.54 (1978). In other words, here the

Sheriff's successful assertion of Eleventh Amendment

immunity was a telltale sign that she was being sued as a

state official—i.e., an agent of the State—in her official

capacity.*

5 In this appeal, we do not review the accuracy of the district court’s

Eleventh Amendment analysis. Indeed, we likely lack jurisdiction on

that front, as the only order on appeal is the district court’s attorney’s

fees order. See Nutrition Distrib. LLC v. IronMag Labs, LLC, 978 F.3d

1068, 1072, 1081-82 (9th Cir. 2020) (recognizing the distinction

between issues concerning attorney’s fees and issues concerning the

underlying judgment). And even if we had jurisdiction, the State has not

disputed the district court’s merits holdings, meaning it has waived those

arguments. See Freedom from Religion Found., Inc. v. Chino Valley

Unif. Sch. Dist. Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per

24 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

That principle also sinks the State’s main line of attack

in this case. The State’s argument that the district court

“conflated the Sheriffs entitlement to immunity as a ‘state

actor’ with respect to damages, with the Sheriff’s purported

status as an agent of the State” entirely misunderstands the

import of an official-capacity defendant successfully

invoking Eleventh Amendment immunity. State of Cal.’s

Open. Br. 12. Indeed, we struggle to imagine a situation

where an official-capacity defendant, entitled to Eleventh

Amendment immunity from monetary relief, would not be

curiam). We therefore must assume that the Sheriff shared in the State’s

Eleventh Amendment immunity.

We do note, however, that the district court concluded the Sheriff

possessed Eleventh Amendment immunity in this suit based on its

McMillian analysis. We have doubts about whether that was the proper

analytical framework. The McMillian inquiry governs only whether

Buffin and Patterson had asserted a viable § 1983 claim against the

County. See generally Taylor v. Cnty. of Pima, 913 F.3d 930, 936-38

(9th Cir. 2019) (Graber J., concurring); see also Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 66 (1989) (“[T]he scope of the Eleventh

Amendment and the scope of § 1983 are [] separate issues.”).

Still, the district court’s Eleventh Amendment immunity conclusion

may have been correct on the theory that the Sheriff's Department acted

here as “an arm of the State” and that the Sheriff therefore worked for an

“arm of the State.” See, e.g., McNeil v. Cmty. Prob. Servs., LLC,

945 F.3d 991, 995 (6th Cir. 2019) (explaining that a Tennessee county

sheriff enforcing a bail schedule was an arm of the state because “[he]

commit[ted] an alleged constitutional violation by simply [] complying

with state mandates that afford no discretion”) (internal quotation marks

and citation omitted)); but see Ray v. Cnty. of L.A., 935 F.3d 703, 709

(9th Cir. 2019) (outlining our more traditional arm of the state analysis).

Or perhaps the Sheriff can be better thought of as serving the entity that

created the bail schedule—the San Francisco Superior Court, also an arm

of the State. See Greater L.A. Council on Deafness, Inc. v. Zolin,

812 F.2d 1103, 1110 (9th Cir. 1987), superseded by statute on other

grounds.

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 25

an agent of the State and thus a state official. Thus, the

district court correctly found that the Sheriff acted as a state

official for the purposes of this action, subjecting the State

to liability for attorney’s fees under § 1988.

C.

Nor will we reverse the district court’s award of

attorney’s fees because the State’s attorneys did not

represent the Sheriff throughout this case. Whether a county

employee is a state or local official turns on what capacity

he acts in when he enforces an unconstitutional law or

policy—not which legal office represents him in court.* And

it was the Office of the Attorney General that chose not to

represent the Sheriff or to intervene to defend the state bail

laws—despite knowing the Sheriff's position that the laws

were unconstitutional.

D.

California’s last defense is to turn to two decisions from

our sister circuits. See Brandon v. Guilford Cnty. Bd. of

Elections, 921 F.3d 194 (4th Cir. 2019); Venuti v. Riordan,

702 F.2d 6 (1st Cir. 1983). But neither case is on point here.

Venuti involved very different factual circumstances—

the challenged law was a discretionary licensing regime,

6 Although this consideration may be a factor in determining

whether the party is a state or local official, see Hutto, 437 U.S. at 699

(noting Arkansas’s representation of state prison officials sued in their

official capacity to illustrate the logic behind deeming such a suit as

effectively lying against the state), the ultimate determination of this

question turns on whether the party acted on behalf of a state or a local

government when enforcing an unconstitutional law or policy, see

Miller, 936 F.3d at 450.

26 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

rather than a discretion-less bail regime—and its holding has

no bearing here: it unremarkably affirmed that a district

court can assess § 1988 attorney’s fees against municipal

agencies that enforce an unconstitutional state law through a

discretionary licensing regime. See Venuti, 702 F.2d at 8;

see also Venuti v. Riordan, 521 F. Supp. 1027, 1031

(D. Mass. 1981) (explaining that the unconstitutional state

law “delegate[d] complete discretion to [municipal]

licensing authorities”). Brandon, meanwhile, principally

demonstrates that a county body’s enforcement of an

unconstitutional state law is not a “special circumstance[]”

that justifies denying plaintiffs’ attorney’s fees under

§ 1988. See 921 F.3d at 201. It never considered whether

that county body or its officials were agents, arms, or

representatives of the state or what such a conclusion would

mean in the § 1988 context.

In sum, the district court’s merits ruling dictated the

conclusion that the Sheriff was a state official sued in her

official capacity.’

7 Given our reasoning here, we need not determine what bearing, if

any, the “state policymaker” test under AfcMillian has on sovereign

immunity inquiries under the Eleventh Amendment or on determinations

of whether an official-capacity suit targets a state official or a local

official. This case does not raise, and we do not here decide, whether an

official-capacity suit against a hypothetical “state policymaker” under

McMillian who is not entitled to Eleventh Amendment immunity from

monetary relief would constitute an official-capacity suit against a “state

official.” See Goldstein v. City of Long Beach, 715 F.3d 750, 751 (9th

Cir. 2013) (summarizing the McMillian § 1983 merits inquiry as

determining whether a government official “acts as a local or a state

official” in a particular context). But see Hafer, 502 U.S. at 25

(suggesting perhaps that a state official sued in his official capacity

should have access to Eleventh Amendment immunity); Graham,

473 U.S. at 167 (same). To the extent the M/cM/illian merits inquiry plays

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 27

IV.

At oral argument, we independently probed whether the

State had the necessary “notice and [] opportunity to

respond” to Buffin and Patterson’s claims for this official-

capacity suit to “be treated as a suit against the [State].”

Graham, 473 U.S. at 166. Having carefully reviewed the

procedural history and the timing of the district court’s

merits rulings, we conclude that it did.

To start, the State’s attorneys had sufficient notice that

Buffin and Patterson brought an official-capacity suit against

a state official. The operative complaint targeted the Sheriff

in her official capacity. Moreover, because the State and the

Attorney General were parties at the motion to dismiss stage,

they knew that the district court ruled that the Sheriff acted

on behalf of the State and thus accorded her Eleventh

Amendment immunity from damages. For the reasons we

have already discussed, all this put the State on sufficient

notice that the Sheriff could be found liable as a state official

in her official capacity.

The State also had multiple opportunities to respond and

participate in this litigation, even after the district court’s key

rulings. Notably, the district court found the Sheriff acted

for the State and was entitled to its Eleventh Amendment

damages immunity at the same time as and in the same order

that it dismissed the California Attorney General from this

case. After those three rulings issued, the State Attorney

General’s Office actually considered rejoining the case. It

even told the plaintiffs and the district court that the just-

dismissed Attorney General would seek to intervene, and the

any role, the district court’s ruling on that issue would only further

buttress our conclusion that the Sheriff was a state official.

28 BUFFIN V. CITY & CTY. OF SAN FRANCISCO

district court granted her leave to file a motion to that effect.

Ultimately, however, the California Attorney General chose

not to take that opportunity.

Then, when it came time to discuss the issue of

attorney’s fees, the City Attorney’s Office invited the

Attorney General’s Office to join those discussions, but the

State declined this invitation, too. And when the parties filed

their suggestion that the State pay nearly $1,950,000 in

attorney’s fees, the district court invited the State to submit

a brief regarding that award (which the State finally did).

In short, the State “received notice and an opportunity to

respond.” Graham, 473 U.S. at 166; cf Idaho v. Coeur

d'Alene Tribe of Idaho, 521 U.S. 261, 269 (1997) (“When

suit is commenced against state officials, even if they are

named and served as individuals, the State itself will have a

continuing interest in the litigation whenever state policies

or procedures are at stake.”). We are therefore satisfied that

this official-capacity suit against the Sheriff may properly be

treated as a suit against the State.

V.

Despite the State’s apprehension, our holding here does

not mean that the State will need “to intervene to defend the

[S]tate’s interests every time a local official is sued for

purportedly enforcing state law.” State of Cal.’s Open. Br.

13. We simply affirm that a county official who enjoys

Eleventh Amendment damages immunity and acts as a

discretion-less instrument of the State is a state official. If

plaintiffs prove that such an official acted unconstitutionally

at the State’s command—as the Sheriff did here—the State

can face § 1988 fees liability.

BUFFIN V. CITY & CTY. OF SAN FRANCISCO 29

Because the State has not contested the amount of the

district court’s attorney’s fees award or whether Buffin and

Patterson otherwise merit such an award, we AFFIRM the

district court’s order assessing $1,950,000 in attorney’s fees

against the State of California. Our stay of the district

court’s order requiring the State to post bond will be

LIFTED when the mandate issues.