FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO FERNANDEZ, 

Plaintiff-Appellant,

 v. 

23676-23726 MALIBU ROAD, LLC, 

a California Limited Liability 

Company; BUNGALOW LIGHTING 

AND DESIGN, INC., a California 

Corporation, 

Defendants-Appellees.

No. 22-55626 

D.C. No. 

2:21-cv-01163-

DMG-PVC 

OPINION

Appeal from the United States District Court

for the Central District of California

Dolly M. Gee, District Judge, Presiding

Argued and Submitted June 8, 2023

Pasadena, California

Filed July 26, 2023
2 FERNANDEZ V. 23676-23726 MALIBU RD., LLC

Before: Milan D. Smith, Jr. and Roopali H. Desai, Circuit 

Judges, and Carol Bagley Amon,* District Judge.

Opinion by Judge Roopali H. Desai

SUMMARY**

Americans with Disabilities Act / Attorneys’ Fees

The panel reversed and vacated the district court’s order 

awarding attorneys’ fees to defendants following the 

dismissal for lack of standing of an action under the 

Americans with Disabilities Act.

The panel held that, because the district court dismissed 

the plaintiff’s claim for lack of standing, it lacked 

jurisdiction to award fees under the Americans with 

Disabilities Act’s fee provision, 42 U.S.C. § 12205.

COUNSEL

Russell C. Handy (argued), Potter Handy LLP, San 

Francisco, California; Dennis Price, Center for Disability 

Access, San Francisco, California; for Plaintiff-Appellant.

* The Honorable Carol Bagley Amon, United States District Judge for 

the Eastern District of New York, sitting by designation.

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

been prepared by court staff for the convenience of the reader.
FERNANDEZ V. 23676-23726 MALIBU RD., LLC 3

Michele A. Dobson (argued), Law Offices of Michael A. 

Dobson, Long Beach, California, for Defendants-Appellees.

OPINION

DESAI, Circuit Judge:

Antonio Fernandez’s claim under the Americans with 

Disabilities Act (“ADA”) was dismissed for lack of 

standing. Thereafter, the district court considered and 

granted Malibu Road and Bungalow Lighting’s motion for 

attorneys’ fees under the ADA’s fee provision, 42 U.S.C. 

§ 12205. Mr. Fernandez did not appeal the dismissal of his 

ADA claim for lack of standing, but he appeals the award of 

attorneys’ fees, arguing that his lawsuit was not frivolous. 

However, the issue before us is not whether Mr. Fernandez’s 

claim was frivolous and therefore justified an award of fees, 

but rather whether there is a basis to award attorneys’ fees 

under the ADA’s fee provision after the underlying claim 

has been dismissed on jurisdictional grounds. We find that, 

because the district court dismissed Mr. Fernandez’s 

underlying ADA claim for lack of standing, the court did not 

have jurisdiction to award fees under the ADA’s fee 

provision. We reverse and vacate the award. 

BACKGROUND

Antonio Fernandez has paraplegia and uses a wheelchair 

for mobility. Mr. Fernandez sued defendants, a lighting and 

design store, alleging that he visited defendants’ store in 

November 2020 and that the store did not comply with the 

ADA and California’s Unruh Civil Rights Act because its 

aisles were too narrow. But in November 2020—in the 
4 FERNANDEZ V. 23676-23726 MALIBU RD., LLC

depths of the COVID-19 pandemic—defendants’ store was 

open to the public only by appointment. Defendants moved 

for summary judgment and, in support of their motion, 

submitted a declaration from the store’s owner, Kevin 

McEvoy, attesting that no client in a wheelchair had an 

appointment at the store in November 2020. In response, Mr. 

Fernandez did not submit any evidence showing that he

visited defendants’ store or had actual knowledge of any 

ADA violation, nor did he file a declaration contesting Mr. 

McEvoy’s declaration. Based on defendants’ uncontroverted 

evidence, the district court granted defendants’ motion for 

summary judgment on the ground that Mr. Fernandez lacked 

standing to sue under the ADA. Mr. Fernandez did not 

appeal the decision. 

Defendants then sought attorneys’ fees under the ADA’s 

fee provision, 42 U.S.C. § 12205, arguing that Mr. 

Fernandez’s claims were frivolous because he did not visit 

the store.

1 The district court agreed that Mr. Fernandez’s 

claims were frivolous and granted defendants reasonable 

attorneys’ fees. Mr. Fernandez challenges this finding, 

arguing that his lawsuit was not frivolous.

LEGAL STANDARD

A plaintiff must establish standing for each claim he

asserts in federal court. Spokeo, Inc. v. Robins, 578 U.S. 330, 

338–39 (2016). To demonstrate standing, a plaintiff must 

show (1) that he has “suffered an injury in fact,” (2) that the 

injury “is fairly traceable to the challenged conduct of the 

defendant,” and (3) that the injury would likely “be redressed 

by a favorable judicial decision.” Id. at 338. As a

1 Defendants did not seek fees under Rule 11 of the Federal Rules of 

Civil Procedure, or any other statute.
FERNANDEZ V. 23676-23726 MALIBU RD., LLC 5

fundamental tenet of the Constitution’s case-or-controversy 

requirement, the failure to establish standing deprives the 

court of subject matter jurisdiction, without which a court 

lacks authority to adjudicate the claim. See Friends of the 

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 180–81 (2000).

ANALYSIS

The district court lacked jurisdiction to award defendants 

attorneys’ fees under the ADA’s fee provision after it 

dismissed Mr. Fernandez’s underlying ADA claim for lack 

of standing. The court concluded that Mr. Fernandez did not 

have standing to bring his disability discrimination claim 

because he did not submit any evidence showing that he 

either (1) encountered or (2) had actual knowledge of any 

ADA violation, as necessary to establish an injury under the 

ADA. See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041–44 

(9th Cir. 2008). Mr. Fernandez did not appeal that ruling and 

consequently failed to establish standing. 

If a plaintiff fails to establish standing, a court has “no 

jurisdiction to hear the case.” Skaff v. Meridien N. Am.

Beverly Hills, LLC, 506 F.3d 832, 837 (9th Cir. 2007) (per 

curiam). And “[a] court that lacks jurisdiction at the outset 

of a case lacks the authority to award attorneys’ fees.” Id.;

cf. Diamond v. Charles, 476 U.S. 54, 69–71 (1986) (holding 

that a party’s interest in a fee award is by itself insufficient 

to confer standing). “An exception to this rule exists where 

the statute under which a party seeks attorney’s fees contains 

an independent grant of jurisdiction,” Latch v. United 

States, 842 F.2d 1031, 1033 (9th Cir. 1988) (per curiam), or 

where a court imposes sanctions under Rule 11, see Branson 

v. Nott, 62 F.3d 287, 293 (9th Cir. 1995), abrogation on 
6 FERNANDEZ V. 23676-23726 MALIBU RD., LLC

other grounds recognized in Amphastar Pharms. Inc. v. 

Aventis Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017).

Because the ADA’s fee provision does not 

independently confer jurisdiction and defendants did not 

move for fees under any other rule or statute, the district 

court lacked the authority to award fees under the ADA once 

it dismissed Mr. Fernandez’s claim for lack of standing. The 

ADA differs from statutes this court has found 

independently confer jurisdiction to award fees or costs. For 

example, statutes that authorize courts to order “the payment 

of just costs” when a suit is dismissed for lack of jurisdiction, 

28 U.S.C. § 1919, or require “payment of just costs . . . 

including attorney fees” when a case was wrongfully 

removed to federal court, 28 U.S.C. § 1447(c), provide an 

independent basis for awarding costs or fees even if the court 

lacks jurisdiction over the merits of the underlying action, 

Branson, 62 F.3d at 293 n.10. But both § 1919 and § 1447(c) 

explicitly state that fees can be awarded when the court lacks 

jurisdiction over the underlying case, and both statutes are 

exclusively non-substantive—they give the parties no rights 

outside of litigation. In re Knight, 207 F.3d 1115, 1117 (9th 

Cir. 2000).

By contrast, the ADA is primarily substantive and states 

only that the court “may allow the prevailing party . . . a 

reasonable attorney’s fee.” 42 U.S.C. § 12205. The statute 

says nothing about permitting such awards when a case is 

dismissed on jurisdictional grounds. This court has

implicitly recognized that fees cannot be awarded under the 

ADA when the underlying case was dismissed for lack of 

standing. See, e.g., Skaff, 506 F.3d at 837 (stating in dicta 

that the district court could not award fees under the ADA if 

the underlying case was dismissed for lack of standing); 

D’Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 
FERNANDEZ V. 23676-23726 MALIBU RD., LLC 7

1036 (9th Cir. 2008) (finding that the district court needed to 

consider the issue of standing sua sponte because, if the 

plaintiff did not have standing, the district court would not 

have authority to award attorneys’ fees under the ADA). 

Today we make explicit what we have implicitly 

recognized in our prior decisions to provide litigants and 

courts with clarity regarding the ADA’s fee provision. A

court that dismisses an ADA claim for lack of standing also 

lacks jurisdiction to award attorneys’ fees under the ADA’s 

fee provision, 42 U.S.C. § 12205. Under these 

circumstances, Rule 11 provides an avenue for defendants to 

seek fees against plaintiffs who bring frivolous lawsuits. 

Compare Summers v. Teichert & Son, Inc., 127 F.3d 1150, 

1154 (9th Cir. 1997) (stating that a court must find “that the 

plaintiff’s action was frivolous, unreasonable, or without 

foundation” to award a defendant fees under the ADA

(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 

412, 421 (1978)), with Fed. R. Civ. P. 11 (permitting 

sanctions when a party’s legal arguments are frivolous or its

factual contentions lack evidentiary support). 

Because we reverse the district court’s award of 

attorneys’ fees for lack of jurisdiction, we do not decide 

whether Mr. Fernandez’s claim was frivolous.

REVERSED and VACATED.