FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LA ASOCIACION DE TRABAJADORES 

DE LAKE FOREST,

Plaintiff-Appellant,

and

NATIONAL DAY LABORER

ORGANIZING NETWORK,

Plaintiff-Appellant,

v.

No. 08-56564 CITY OF LAKE FOREST,

Defendant, D.C. No. 

8:07-cv-00250- and DOC-AN

DON BARNES, City of Lake

Forest’s Chief of Police Services,

in his individual and official

capacities; CHRIS THOMPSON,

Orange County Sheriff’s

Department law enforcement

officer, in his individual and

official capacities,

Defendants-Appellees. 

17451
LA ASOCIACION DE TRABAJADORES 

DE LAKE FOREST; NATIONAL DAY

LABORER ORGANIZING NETWORK,

Plaintiffs-Appellants,

v.

CITY OF LAKE FOREST,

Defendant,

and No. 09-55215

COUNTY OF ORANGE; JAY LEFLORE, D.C. No.

City of Lake Forest’s Chief of  8:07-cv-00250-

Police Services, in his individual DOC-AN

and official capacities; CHRIS

THOMPSON, Orange County OPINION

Sheriff’s Department law

enforcement officer, in his

individual and official capacities;

DON BARNES, City of Lake

Forest’s Chief of Police Services,

in his individual and official

capacities,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

June 8, 2010—Pasadena, California

Filed October 22, 2010

17452 ATLF v. CITY OF LAKE FOREST
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,

Circuit Judge, and Algenon L. Marbley, District Judge.*

Opinion by Judge Marbley

*The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation. 

ATLF v. CITY OF LAKE FOREST 17453
COUNSEL

Hector O. Villagra (argued) and Belinda Escobosa Helzer

(argued), ACLU Foundation of Southern California, Orange,

California; and Mark D. Rosenbaum and Peter J. Eliasberg,

ACLU Foundation of Southern California, Los Angeles, California, for the appellants.

S. Frank Harrell (argued) and Pancy Lin, Lynberg & Watkins,

Orange, California, for the appellees.

OPINION

MARBLEY, District Judge.

This appeal arises from a dispute between a nonprofit organization advocating on behalf of day laborers and local government officials over the enforcement of restrictions on

soliciting work on public sidewalks. The district court held

that plaintiffs lacked standing and were not entitled to attorney’s fees. We agree with the district court’s standing conclusion, but disagree with its resolution of the attorney’s fees

issue. We therefore AFFIRM in part, REVERSE in part, and

REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. THE PARTIES

Plaintiff National Day Laborer Organizing Network

(“NDLON”) is a nonprofit association consisting of a nationATLF v. CITY OF LAKE FOREST 17455
wide coalition of day laborers and agencies working with day

laborers to protect their ability to seek employment.

NDLON’s mission encompasses six broad program areas: (1)

promoting worker centers as the preferred public policy for

responding to day laborer concerns; (2) developing educational materials and organizing materials for member organizations; (3) helping day laborers defend their wage and hour

rates; (4) helping them defend their civil rights; (5) working

in partnerships with national organizations to effectuate comprehensive immigration reform; and (6) working on gender

equity among member organizations. NDLON’s office is

located in Los Angeles County.

Plaintiff La Asociación de Trabajadores de Lake Forest

(“ATLF”) is an unincorporated association of day laborers

regularly seeking work on public sidewalks in Lake Forest.

ATLF was formed in January 2007, in response to alleged

harassment by police officers. ATLF members have a common interest in learning about their rights and responsibilities,

and addressing issues such as police enforcement, community

relations, and wage and hour claims. Groups of ATLF members meet at least once a week, and all of the members meet

together occasionally to make decisions or plan activities.

Plaintiff Colectivo Tonantzin (“Colectivo”) is an unincorporated organization that was formed in July 2004 to protect

the interests of immigrant workers and their families in

Orange County. Colectivo works to ensure that workers and

their families receive equal protection under the law. The

organization engages in activities such as planning marches,

educating members and the public about relevant issues, and

working in gardens to produce food and to provide education

regarding food production and consumption. Colectivo members often visit the sidewalks where ATLF members seek

employment to provide support, counseling, and education.

Defendants include Orange County; the City of Lake Forest; Jay LeFlore, the City of Lake Forest’s Chief of Police

17456 ATLF v. CITY OF LAKE FOREST
Services, in his official and individual capacities; Don Barnes,

the City of Lake Forest’s Chief of Police Services, in his official and individual capacities; and Chris Thompson, an

Orange County Sheriff’s Department law enforcement officer,

in his official and individual capacities.1

B. FACTUAL BACKGROUND

ATLF alleges that, in January 2007, Orange County Sheriff’s Department (“OCSD”) deputies “ran all the day laborers

looking for work off the public sidewalks” at three intersections in Lake Forest. Two OCSD deputies informed day

laborers that they could not remain on the public sidewalk at

one of the intersections. The day laborers staged a protest on

January 20, 2007. An OCSD deputy told them that month that

it was illegal for them to be hired, and that if they did find

employment while on public property, deputies would pull

them out of the employers’ cars.

In February 2007, ATLF members called NDLON’s office

to complain about the harassment. In response, Veronica

Federovsky, NDLON’s West Coast Field Coordinator, began

meeting approximately once a week with ATLF members in

Lake Forest, despite the fact that ATLF is not one of

NDLON’s member organizations. Federovsky’s regular job

duties include providing technical support and training to

member organizations, helping them establish and operate

worker centers, assisting with local campaigns affecting day

laborers, and strengthening the organizational network on the

west coast. Due to the alleged harassment of ATLF members

in Lake Forest, Federovsky diverted approximately 20% of

the time and resources she would usually spend performing

her regular job duties to assisting ATLF members. 

1The original Complaint named several more defendants, including the

Mayor of Lake Forest, among others, but only five defendants remain at

this point. Claims against all other defendants were voluntarily dismissed.

ATLF v. CITY OF LAKE FOREST 17457
Almost every week, Federovsky would drive approximately 60 miles from her home in North Hollywood to Lake

Forest to meet with ATLF members, a drive that took

between one and a half and two hours. She spent two and a

half to three hours meeting with ATLF members, and then

drove approximately 50 miles back to NDLON’s office in Los

Angeles. The assistance she provided to ATLF members

included planning and participating in “know your rights”

presentations and copying and distributing literature for those

presentations. According to Chris Newman, the Legal Programs Director of NDLON, the loss of staff pay, time, and

expenses has “detracted from [NDLON’s] ability to serve [its]

member organizations and reduced the resources available to

conduct [NDLON’s] ordinary activities.” NDLON nonetheless chose to continue assisting ATLF members because it

feared that the practices allegedly engaged in by Lake Forest

police officers would spread to other areas and begin affecting

NDLON’s actual member organizations.

Plaintiffs filed their original Complaint on March 1, 2007,

seeking to block the enforcement of Section 5.06.020 of the

Lake Forest Municipal Code (“the Ordinance”). Lake Forest

then repealed the Ordinance, effective April 3, 2007, and

Plaintiffs filed a First Amended Complaint on April 19, 2007.

The district court granted them leave further to amend the

Complaint on June 19, 2007, and on November 27, 2007.

In late April 2007, after the Ordinance had been repealed,

OCSD deputies allegedly continued to harass day laborers.

Around that time, one deputy told a group of day laborers that

they could not look for work on public sidewalks and made

them leave. When an employer parked legally next to a group

of day laborers, a deputy told the employer he could not hire

the laborers and made the laborers leave. Plaintiffs alleged

that numerous other incidents of such harassment occurred in

2007 and 2008. 

17458 ATLF v. CITY OF LAKE FOREST
In late July 2008, Plaintiffs stipulated to the dismissal of

their claims against all Defendants except Sandra Hutchens,

Don Barnes, Jay LeFlore, and Chris Thompson. At the pretrial

conference, held August 11, 2008, Defendants raised the issue

of standing for the first time. The district court ordered Defendants to submit a brief on the standing issue by August 12,

2008, and Plaintiffs to respond by August 15, 2008. On

August 18, 2008, the district court held a hearing on the

standing issue, at which it converted the Defendants’ brief

into a motion for summary judgment, and granted that motion

pursuant to a tentative order the court had provided to the parties.2

 As a result of that decision, Plaintiffs NDLON and

Colectivo were dismissed from the case for lack of standing.

The remaining parties then agreed that a jury was not necessary, as the only remaining issue involved injunctive relief.

Later that day, ATLF and the Defendants reached a settlement. 

On September 17, 2008, NDLON appealed the district

court’s standing order. On November 14, 2008, pursuant to

the settlement agreement, ATLF filed a motion for attorney’s

fees.3 The district court denied that motion on January 28,

2009. On February 10, 2009, ATLF appealed the denial of

attorney’s fees.

II. JURISDICTION

The district court below had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. NDLON filed a timely interlocutory appeal of the district court’s order on standing on

September 17, 2008. The order on standing became appealable when the district court entered its subsequent order fully

2Plaintiffs’ counsel did not receive the tentative order until the morning

of the hearing, and was given a short time to review it before argument.

3While the Settlement Agreement stated that the parties disagreed as to

reasonable attorney’s fees and costs, it provided Plaintiffs with 90 days to

file a motion for such fees and costs. 

ATLF v. CITY OF LAKE FOREST 17459
adjudicating the remaining issues. See Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897 (9th Cir.

2001) (“An interlocutory order becomes appealable when

final judgment is entered.”). The district court denied ATLF’s

motion for attorney’s fees on January 28, 2009. That order is

appealable under 28 U.S.C. § 1291.

III. ANALYSIS

A. NDLON’S ORGANIZATIONAL STANDING

1. Standard of Review

A district court’s decision regarding standing is reviewed

de novo. Fair Hous. of Marin v. Combs, 285 F.3d 899, 902

(9th Cir. 2002). Likewise, we review a district court’s grant

of summary judgment de novo. Oliver v. Keller, 289 F.3d

623, 626 (9th Cir. 2002).

2. Analysis

[1] The standing doctrine limits federal court jurisdiction.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It

is well established that the “irreducible constitutional minimum of standing” consists of these three elements: (1) injury

in fact; (2) causation; and (3) redressability. Id. at 560-61.

While the Lujan decision established the “irreducible constitutional minimum” test for standing in the context of an individual plaintiff, the same analysis is used to determine

whether an organizational plaintiff has standing in a particular

case. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378

(1982) (“In determining whether HOME has standing under

the Fair Housing Act, we conduct the same inquiry as in the

case of an individual.”). 

[2] An organization suing on its own behalf can establish

an injury when it suffered “both a diversion of its resources

and a frustration of its mission.” Combs, 285 F.3d at 905. It

17460 ATLF v. CITY OF LAKE FOREST
cannot manufacture the injury by incurring litigation costs or

simply choosing to spend money fixing a problem that otherwise would not affect the organization at all. See, e.g., Fair

Employment Council v. BMC Mktg. Corp., 28 F.3d 1268,

1276-77 (D.C. Cir. 1994). It must instead show that it would

have suffered some other injury if it had not diverted

resources to counteracting the problem. In Havens, for example, housing discrimination threatened to make it more difficult for HOME to counsel people on where they might live if

the organization didn’t spend money fighting it. 455 U.S. at

379. The organization could not avoid suffering one injury or

the other, and therefore had standing to sue. Cf. Smith v.

Pacific Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir.

2004) (organization “had . . . to divert its scarce resources

from other efforts”); El Rescate Legal Servs., Inc. v. Exec.

Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir. 1992)

(challenged policy “require[d] the organizations to expend

resources . . . they otherwise would spend in other ways”).

[3] In this case, NDLON failed to assert any factual allegations in its complaint that it was forced to divert resources to

help ATLF because of the defendants’ actions, and never

sought leave to add them.4 NDLON appeared to assert claims

against the defendants in the form of Declarations submitted

by Veronica Federovsky and Chris Newman, which were

proffered in conjunction with NDLON’s response to Defendants’ motion for summary judgment. What NDLON failed to

do, however, was to assert any factual allegations regarding

organizational standing in its complaint. “Ordinarily, a plaintiff opposing a motion for summary judgment on [a standing]

issue would have to support, with affidavits or other evidence,

4An organization may sue only if it was forced to choose between suffering an injury and diverting resources to counteract the injury. See BMC

Marketing Corp., 28 F.3d at 1277 (rejecting the idea that a plaintiff organization has standing to sue based solely on its own decision regarding

resources allocation, and requiring that the plaintiff be forced to divert

resources in order to avoid an injury caused by defendant’s conduct). 

ATLF v. CITY OF LAKE FOREST 17461
the factual allegations underlying the assertion of standing

because such allegations must ultimately be proven for a

plaintiff to prevail.” Fernandez v. Brock, 840 F.2d 622, 625-

26 (9th Cir. 1988) (citing Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91, 115 & n. 31 (1979)). Without making

any attempt to allege organizational standing in its complaint,

NDLON’s provision of affidavits and declarations supporting

organizational standing at the summary judgment stage is

ineffectual. 

It appears as though at the time NDLON filed its complaints (up to and including its Third Amended Complaint),

the organization intended to assert standing on behalf of its

members rather than on behalf of itself as an organization.

Various paragraphs in the complaint refer to NDLON’s members and the alleged violations of their First Amendment

rights. Nowhere in the complaint, however, does NDLON

assert a frustration of its purpose or diversion of its resources

that would allow the Court to conclude that NDLON had

pleaded organizational standing on its own behalf. By contrast, Colectivo did make such allegations, stating “Defendants’ chilling actions challenged in this case frustrate the

Colectivo’s mission and prompt the diversion of its limited

resources to organize, educate, and otherwise assist the day

laborers in Lake Forest.”

[4] Given its inadequate pleading regarding organizational

standing, NDLON may not effectively amend its Complaint

by raising a new theory of standing in its response to a motion

for summary judgment. See Wasco Prods., Inc. v. Southwall

Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“Simply put,

summary judgment is not a procedural second chance to flesh

out inadequate pleadings.” (Internal quotation marks omitted).

We therefore affirm the district court’s decision that NDLON

lacks standing to pursue its claims.

17462 ATLF v. CITY OF LAKE FOREST
B. ATTORNEY’S FEES

1. Standard of Review

We review a district court’s decision to deny attorney’s

fees for an abuse of discretion. Labotest, Inc. v. Bonta, 297

F.3d 892, 894 (9th Cir. 2002). In conducting that analysis,

“[e]lements of legal analysis and statutory interpretation that

figure into the district court’s attorney’s fees decision are

reviewed de novo,” and “[f]actual findings underlying the district court’s decision are reviewed for clear error.” Richard S.

v. Dep’t of Dev. Servs., 317 F.3d 1080, 1086 (9th Cir. 2003).

We review a district court’s determination regarding “prevailing party” status de novo, as “[t]he question of whether a

judgment has materially altered the legal relationship of the

parties is a legal one.” V.S. ex rel. A.O. v. Los Gatos-Saratoga

Joint Union High Sch. Dist., 484 F.3d 1230, 1232-33 (9th Cir.

2007).

2. Analysis

[5] A court may award a reasonable attorney’s fee to a

party that prevails under § 1983. See 42 U.S.C. § 1988(b). Litigation that results in an enforceable settlement agreement can

confer “prevailing party” status on a plaintiff. See, e.g., Carbonell v. I.N.S., 429 F.3d 894, 899 (9th Cir. 2005) (“We have

. . . found that a litigant prevailed when he entered into a

legally enforceable settlement agreement.”). In determining

whether a settlement agreement confers prevailing party status on a plaintiff, we have used a three-part test, looking at:

“(1) judicial enforcement; (2) material alteration of the legal

relationship between the parties; and (3) actual relief on the

merits of [the plaintiff’s] claims.” Saint John’s Organic Farm

v. Gem County Mosquito Abatement Dist., 574 F.3d 1054,

1059 (9th Cir. 2009).

[6] There is no doubt here that the settlement agreement at

issue here is judicially enforceable: the district court explicitly

ATLF v. CITY OF LAKE FOREST 17463
retained jurisdiction over the case for five years to enforce the

agreement. See id. (“The Agreement specifically provided

that its terms would be enforceable by the district court.”).

When “the district court [has] placed its stamp of approval on

the relief obtained, that relief has the necessary judicial imprimatur to qualify a plaintiff as a prevailing party.” Carbonell,

429 F.3d at 901 (alteration in original) (internal quotation

marks omitted). 

Nor is there any doubt that the legal relationship between

the parties was materially altered by the agreement. First,

while everything Appellees are required to do as a result of

the settlement agreement is couched in terms of existing policies, Appellees were not necessarily subject to the jurisdiction

of a federal court for violating those policies until the settlement agreement was signed. See Saint John’s, 574 F.3d at

1059. (“[E]ven if the Agreement required [the defendant] to

do only what it was already doing, it was undisputed that [the

defendant’s] behavior became legally required rather than

voluntary as a result of the Agreement.”). Second, ATLF can

now simply move to enforce the settlement agreement rather

than having to bring a new action to defend its members. 

[7] Finally, Appellants received “actual relief” on the merits of their claims. To do so, “a plaintiff must receive some

actual relief that serves the goals of the claim in his or her

complaint.” Id. While some relief is required, “an extremely

small amount of relief is sufficient to confer prevailing party

status.” Id. at 1059-60. Here, Appellants received relief in the

form of a judicially enforceable agreement requiring Appellees to adhere to policies respecting day laborers and their

First Amendment rights, relief ATLF sought in its complaint.

Cf. Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1120 (9th Cir.

2000) (“According to Fischer’s complaint, the goal of his

ADA claim was to obtain an injunction that would force the

Inn to change its alleged policy and practice of denying access

to people who use service dogs. In the end that is exactly what

he achieved.”).

17464 ATLF v. CITY OF LAKE FOREST
[8] Because ATLF has achieved “prevailing party” status,

it is entitled to an award of attorney’s fees.

IV. CONCLUSION

The district court properly held that NDLON lacked organizational standing to pursue its claims, and its decision in that

regard is AFFIRMED. The district court erred, however, in

denying ATLF’s request for attorney’s fees. Its decision on

the attorney’s fees issue is REVERSED, and the case is

REMANDED for further proceedings consistent with this

opinion.

Each party shall bear its own costs.

ATLF v. CITY OF LAKE FOREST 17465