NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBEL A. AFEWERKI, No. 19-56486

Plaintiff-Appellee, D.C. No. 2:14-cv-07132-RGK-JPR v.

ANAYA LAW GROUP, MEMORANDUM*

Defendant-Appellant,

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted December 11, 2020** Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.

Anaya Law Group (“ALG”) appeals a district court order granting Robert

Afewerki’s (“Afewerki”) motion for attorney’s fees and costs under the Fair Debt

* 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 Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and an order denying

ALG’s motion for reconsideration of the fee order. Because the parties are

familiar with the facts and procedural history of the case, we recite only those facts

necessary to decide this appeal. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

In the proceedings below, Afewerki moved for attorney’s fees and costs

under the FDCPA. ALG opposed the motion, arguing that the check it had

tendered to Afewerki after the district court entered judgment on its order granting

Afewerki fees, but before the prior appeal, constituted an accord and satisfaction

under California Commercial Code § 3311. The district court rejected that

argument. It reasoned that our prior decision in Afewerki v. Anaya Law Grp., 779

F. App’x 449 (9th Cir. 2019), required it to reinstate Afewerki’s original fee award

of $83,299.00 and his original cost award of $3,008.91. ALG filed a motion for

reconsideration, which the district court denied.

In doing so, the district court explained that ALG did not raise a sufficient

basis for reconsideration because the district court had addressed ALG’s accord

and satisfaction defense when it granted Afewerki’s fee motion. The district court

also noted that even if it were to reconsider its fee order, ALG’s defense failed

because there was no “meeting of the minds” between ALG and Afewerki. This

appeal followed.

2 ALG first argues that the district court erred in reading our prior mandate as

foreclosing ALG’s accord and satisfaction defense. We review de novo a district

court’s compliance with our mandate. United States v. Kellington, 217 F.3d 1084,

1092 (9th Cir. 2000). “A district court that has received the mandate of an

appellate court cannot vary or examine that mandate for any purpose other than

executing it.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).

But “when a [district] court is confronted with issues that the remanding court

never considered, the ‘mandate[] require[s] respect for what the higher court

decided, not for what it did not decide.’” Id. (emphasis in original) (quoting

Kellington, 217 F.3d at 1093).

Here, we never considered ALG’s accord and satisfaction defense in the

prior appeal. We therefore agree with ALG that the district court erred in

concluding that ALG’s defense was foreclosed by our mandate. Nevertheless, we

hold that the district court properly awarded fees to Afewerki and denied ALG’s

motion for reconsideration, because ALG’s accord and satisfaction defense fails on

the merits.

As an initial matter, ALG asserted its defense under the wrong law. The

parties briefed extensively on the accord and satisfaction defense under California

Commercial Code § 3311. But Afewerki sought fees under the FDCPA, so federal

law applies. See Klein v. City of Laguna Beach, 810 F.3d 693, 702 (9th Cir. 2016)

3 (“Erie does not compel federal courts to apply state law to a federal claim.”)

(citation omitted); see also Modzelewski v. Resolution Trust Corp., 14 F.3d 1374,

1379 (9th Cir. 1994) (“[S]ince we address federal, not state claims, the federal

common law of attorney’s fees, and not [state] law, is the relevant authority.”).

ALG’s arguments relating to its accord and satisfaction defense under California

law are irrelevant to this dispute.

Applying federal law, we conclude that ALG’s accord and satisfaction

defense fails. In United States v. Houghton, the Supreme Court held that “where a

judgment is appealed on the ground that the damages awarded are inadequate,

acceptance of payment of the amount of the unsatisfactory judgment does not,

standing alone, amount to an accord and satisfaction of the entire claim.” 364 U.S.

310, 312 (1960). Here, ALG can only point to the check that purportedly satisfied

ALG’s obligations to Afewerki under the district court’s judgment.

Moreover, nothing in the record suggests that the parties agreed to

extinguish Afewerki’s right to appeal. In Milicevic v. Fletcher Jones Imports, Ltd.,

we explained that “[t]he usual rule in the federal courts is that payment of a

judgment does not foreclose an appeal.” 402 F.3d 912, 915 (9th Cir. 2005)

(citations omitted). “Unless there is some contemporaneous agreement not to

appeal, implicit in a compromise of the claim after judgment, and so long as, upon

reversal, restitution can be enforced, payment of the judgment does not make the

4 controversy moot.” Id. (citations omitted). Here, there was no contemporaneous

agreement not to appeal. Afewerki filed the notice of the prior appeal two months

before depositing the check from ALG. We agree with the district court’s finding

that this undercuts any contention that the parties “had reached a genuine

compromise that the $1,770.00 payment would be considered full satisfaction of

the judgment.”

The district court’s judgment awarding attorney’s fees and costs to Afewerki

is AFFIRMED. The district court should credit $1,770.00 against ALG’s

obligations to Afewerki. Afewerki may also seek the attorney’s fees and costs he

incurred in litigating his fees and costs on this appeal. See Orange Blossom Ltd.

P’ship v. S. Cal. Sunbelt Developers, Inc. (In re S. Cal. Sunbelt Developers, Inc.),

608 F.3d 456, 463 (9th Cir. 2010). We REMAND to the district court for a

determination of the amount.

5