                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 12 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-16416

                Plaintiff-Appellee,             D.C. No. 3:98-cv-00086-CRB

 v.
                                                MEMORANDUM*
MARIN ALLIANCE FOR MEDICAL
MARIJUANA and LYNETTE SHAW,

                Defendants-Appellants.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                          Submitted December 6, 2017**
                            San Francisco, California

Before: RAWLINSON and OWENS, Circuit Judges, and RICE,*** Chief District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
      Marin Alliance for Medical Marijuana and its founder Lynnette Shaw

(collectively, “MAMM”) appeal from the district court’s order denying MAMM’s

motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”). As the

parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The EAJA directs courts to award attorney’s fees to “a prevailing party” in

certain civil actions involving the United States, unless the government’s position

was “substantially justified” or “special circumstances make an award unjust.” 28

U.S.C. § 2412(d)(1)(A); Citizens for Better Forestry v. U.S. Dep’t of Agric., 567

F.3d 1128, 1131 & n.1 (9th Cir. 2009). A “prevailing party” is one that obtains a

“judicial imprimatur” on a “material alteration of the legal relationship of the

parties.” Citizens for Better Forestry, 567 F.3d at 1131–32 (emphasis omitted)

(quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and

Human Res., 532 U.S. 598, 604, 605 (2001)). “[A] favorable judicial statement of

law in the course of litigation that results in judgment against the [moving party]

does not suffice to render him a ‘prevailing party.’” Hewitt v. Helms, 482 U.S.

755, 763 (1987). Rather, the party seeking fees must point to a “judicial

pronouncement . . . which affects the behavior of” the opposing party. Id. at 761

(emphasis in original). This court reviews de novo a district court’s legal




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determination whether a litigant is a “prevailing party” and thus entitled to fees

under the EAJA. Citizens for Better Forestry, 567 F.3d at 1131.

       The district court did not err in concluding that MAMM is not a “prevailing

party” for purposes of an EAJA fee award. In its underlying merits order, the

district court denied MAMM’s motion to dissolve the 2002 permanent injunction

barring its business operations, but noted that a 2015 federal appropriations rider

effectively precluded the government from enforcing the injunction against

MAMM to the extent MAMM complied with applicable California law. While the

district court’s order suggests that enforcing either the injunction or federal law

against MAMM would violate the appropriations rider, it is not an “enforceable

entitlement” preventing the government from attempting to do so. Klamath

Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1031 (9th

Cir. 2009) (emphasis omitted) (“To receive what one sought is not enough to

prevail: the court must require one’s opponent to give it.”).

      The district court’s interpretation of the rider may “serve as a standard of

conduct to guide [government] officials in the future,” but it does not require the

“cessation of [government] action.” Hewitt, 482 U.S. at 759, 761; see also

Klamath, 589 F.3d at 1033 n.5 (finding no prevailing party status where “the

district court’s finding would not be judicially enforceable against the [defendant]

unless [the plaintiff] initiated further proceedings . . . and successfully invoked [a


                                           3
preclusion doctrine] to establish its entitlement to ‘some form of judicially-

sanctioned relief’” (quoting Citizens for Better Forestry, 567 F.3d at 1132)).

MAMM thus received no “judicial relief” and is not a “prevailing party” entitled to

fees under the EAJA. Hewitt, 482 U.S. at 759, 760.1

      AFFIRMED.




      1
         We deny MAMM’s motion requesting judicial notice, as the documents in
question shed no light on whether the district court’s merits order provided
MAMM an “enforceable entitlement” against the government. See Klamath, 589
F.3d at 1033 n.5.

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