                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      AUG 26 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


 SCOTT TEUTSCHER, an individual,                 No. 13-56411

             Plaintiff - Appellee,               D.C. No. 5:06-cv-01208-RHW-OP

    and
                                                 MEMORANDUM *
 RIVERSIDE SHERIFFS’ ASSOCIATION,

             Defendant - Appellee,

  and

 RIVERSIDE SHERIFFS’ ASSOCIATION
 LEGAL DEFENSE TRUST; et al.,

             Defendants,

    v.

 WILLIAM NATHANIEL WOODSON, III,

             Intervenor - Appellant.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
    SCOTT TEUTSCHER, an individual,                 No. 13-56659

                Plaintiff - Appellee,               D.C. No. 5:06-cv-01208-RHW-OP

      v.

    RIVERSIDE SHERIFFS’ ASSOCIATION,

                Defendant - Appellant.

                      Appeal from the United States District Court
                           for the Central District of California
                    Robert H. Whaley, Senior District Judge, Presiding

                          Argued and Submitted January 5, 2016
                                  Pasadena, California

Before: M. SMITH, WATFORD, and FRIEDLAND, Circuit Judges.

           Intervenor-Appellant William N. Woodson, III, appeals from the district

court’s order denying his motion for leave to intervene to seek a fee award directly

from Defendant, Riverside Sheriffs’ Association (“RSA”). We address the district

court’s judgment in favor of Plaintiff Scott Teutscher against RSA in a

concurrently filed opinion. We now affirm the district court’s denial of

Woodson’s motion. 1



1
  Per Woodson’s unopposed request, this court takes judicial notice of two
unpublished orders on statutory attorney’s fees under California law in a different
action, Alvarado v. Fed. Express Corp., No. C04-0098 (N.D. Cal. June 5, 2008),
and Alvarado v. Fed. Express Corp., No. C04-0098 (N.D. Cal. Jan. 9, 2009), and
this court’s unpublished memorandum disposition affirming the district court’s

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      Woodson represented Teutscher in an employment dispute with RSA from

2005 until February 2013, when Woodson filed an ex parte application to withdraw

as counsel of record. The district court granted Woodson’s motion over

objections by RSA and Teutscher, and Teutscher obtained new counsel who

successfully represented him through trial on his wrongful and retaliatory

discharge claims under state law and his retaliatory discharge claim under section

510 of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1140. After Teutscher declined to seek attorney’s fees and costs for

Woodson’s work on the case under section 502(g)(1) of ERISA, 29 U.S.C.

§ 1132(g)(1), Woodson sought to intervene in order to seek fees from RSA on his

own behalf. Because we agree with the district court that a fee award under

ERISA’s discretionary fee-shifting provision belongs to the client rather than to his

attorney, we affirm.

      It is well-settled that a federal fee-shifting statute that bestows a

discretionary fee award on a “party” vests the right to attorney’s fees solely in that

party, not in the party’s attorney. See, e.g., Astrue v. Ratliff, 560 U.S. 586, 591-98


judgment denying counsel standing to seek fees in that case, Alvarado v. Fed.
Express Corp., Nos. 09-15415, 09-15417 (9th Cir. May 26, 2011).

                                           3
(2010) (holding that the prevailing litigant, rather than her lawyer, is entitled to

fees under the fee-shifting provision of the Equal Access to Justice Act, 28 U.S.C.

§ 2412(d)(1)(A)); Venegas v. Mitchell, 495 U.S. 82, 89 (1990) (“[W]e have already

rejected the argument that the entitlement to a § 1988 award belongs to the

attorney rather than the plaintiff.”); Evans v. Jeff D., 475 U.S. 717, 730 (1986)

(holding that “the language of [42 U.S.C. § 1988], 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” (footnote omitted)); Image Tech. Serv., Inc. v. Eastman Kodak Co.,

136 F.3d 1354, 1357 (9th Cir. 1998) (“Any fee award in an antitrust case goes to

the successful plaintiff, not to plaintiff’s counsel.”). ERISA is such a statute. See

29 U.S.C. § 1132(g)(1) (providing that “the court in its discretion may allow a

reasonable attorney’s fee and costs of action to either party”) (emphasis added).

We have also held that “[u]nless the statute specifies payment to the litigant’s

attorney, payment to the attorney is not assumed.” United States v. Kim, 806 F.3d

1161, 1173 (9th Cir. 2015) (quoting United States v. $186,416.00, 642 F.3d 753,

756 (9th Cir. 2011)). Woodson fails to point to any language in ERISA giving a

party’s attorney the power to demand fees for himself from the opposing side, and

                                           4
we have identified none.

      Woodson advances several arguments in an attempt to overcome these

settled principles, none of which are availing. First, his reliance on the California

Supreme Court decision in Flannery v. Prentice, 28 P.3d 860 (Cal. 2001), is

misplaced because, as the district court recognized, it was a state court decision

interpreting a state statute. Indeed, Flannery acknowledged that it was parting

ways with federal cases that “have recognized the right of the client, rather than the

attorney, to seek, recover, or waive statutory fees.” Id. at 864. Woodson also

relies on our decision in United States ex rel. Virani v. Jerry M. Lewis Truck Parts

& Equip., Inc., 89 F.3d 574 (9th Cir. 1996), abrogation recognized by United

States v. Kim, 806 F.3d 1161, 1174 (9th Cir. 2015), in which we held that once a

fee application is made, the “client himself is not entitled to keep the fees which

are measured by and paid on account of the attorneys’ services.” Id. at 577. But

Virani itself recognized that only the plaintiff “has the power to demand that the

defendant pay the fees of the plaintiff’s attorney,” id. at 578, and, regardless, the

part of its holding on which Woodson relies has since been abrogated, see Kim,

806 F.3d at 1174 (recognizing that “Ratliff abrogated Virani”).

      Finally, Woodson relies on our decision in Venegas v. Skaggs, 867 F.2d 527

                                           5
(9th Cir. 1989), aff’d sub nom. Venegas v. Mitchell, 490 U.S. 82 (1990), to argue

that the court erred in denying him permissive intervention. This reliance is

misplaced, because in Venegas we permitted an attorney to intervene solely to

impose a lien on his client’s judgment pursuant to a contingent-fee contract with

his client, not to collect fees directly from the opposing side. Our holding here

does not prevent Woodson from similarly attempting to collect his fees directly

from Teutscher. See Venegas v. Mitchell, 495 U.S. at 90 (explaining that a federal

fee-shifting statute “controls what the losing defendant must pay, not what the

prevailing plaintiff must pay his lawyer”).

      Because Woodson had no right to seek attorney’s fees from RSA, and

because that was the sole ground on which he sought to intervene, the district court

properly denied his motion. See Willard v. City of Los Angeles, 803 F.2d 526, 527

(9th Cir. 1986).

      AFFIRMED.




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