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Date: 01-14-2022

Case Style:

Riana Buffin and Crystal Patterson V. City and County of San Francisco

Case Number: 20-15518

Judge: Kim McLane Wardlaw


On appeal from The United States District Court for the Northern District of California

Plaintiff's Attorney:

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Defendant's Attorney: 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-Appellee


SAN FRANCISCO, CA - Bail Law lawyer represented defendant with challenging 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.

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 prearraignment detainees’ inability to pay the state court’s preset mandatory bail amounts. Ultimately, 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 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
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
(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. Id. § 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
from San Francisco’s bail schedule, created by the San
Francisco Superior Court, appears below:
As this excerpt demonstrates, bail schedules list the criminal
charges that an individual might face and a corresponding
amount of bail for each offense. Id. § 1269b(e). But setting
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.
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
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
Cnty. 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.” Id.
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.1
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
1 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. Ins. Co. of N.Y. v. Chatham Cnty., 547 U.S.
189, 193 (2006) (citation omitted).
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—“[r]ather . . . 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
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.2 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.
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 v.
2 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).
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
Buffin, Patterson, and the Sheriff 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
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.
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.
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.
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.
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
“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 U.S. 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.” Id.
Thus, to the extent that the State argues that “[t]here is
no ‘attorneys’ fees’ exception to the Eleventh Amendment,”
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 v.
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 v.
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
Court, to the extent it enforced rather than made those rules,
would have been proper. Id. 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.
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.” Id. at 699. 4 An Ex Parte Young suit
4 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).
against a state officer in her official capacity is “for all
practical purposes, brought against the State.” Id. 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).’” Id. at 700 (quoting S. Rep. No. 94-1011, p. 5
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 (5th 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.”
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,
“[b]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.” Miller, 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,
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.; cf. 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. Id.
§§ 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
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. Id. 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—
in this particular context—the Sheriff acted for the State. Id.;
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 U.S. 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
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
That principle also sinks the State’s main line of attack
in this case. The State’s argument that the district court
“conflated the Sheriff’s 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
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.
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.6
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.
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.
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
7 Given our reasoning here, we need not determine what bearing, if
any, the “state policymaker” test under McMillian 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 McMillian merits inquiry plays
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 officialcapacity 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 justdismissed 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.
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.
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

Outcome: 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

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