Nahmod Law

Introduction

For background on attorney’s fees to prevailing plaintiffs in civil rights cases, please see my post of June 17, 2010.

I also address all aspects of attorney’s fees in Chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).

This post deals with attorney’s fees to prevailing defendants.

Fox v. Vice: How to Compute Fees for Prevailing Defendants

On June 6, 2011, the Supreme Court handed down Fox v. Vice, 131 S. Ct. — (2011),  a unanimous decision dealing with the question of how to compute fees awarded to a prevailing defendant where “the plaintiff asserted both frivolous and non-frivolous claims.”

The plaintiff, a challenger to the defendant, the former police chief whom plaintiff beat in an election, originally filed his § 1983 and state law claims in state court. Alleging dirty election tricks, the plaintiff’s § 1983 claims included interfering with the right to seek office, and the state claims included defamation. The defendant removed to federal court, where the district court, on summary judgment, dismissed the federal claims as frivolous and remanded the state law claims to the state court.

However, before the state law claims were adjudicated in state court, the prevailing defendant filed a § 1988 fees petition in federal court that did not distinguish between time spent on the frivolous (and dismissed) federal claims and time spend on the non-frivolous state law claims. The district court went on to award fees to the defendant without separating out the time spent on the federal and state law claims, and without reflecting the surviving state law claims. Thereafter, the Fifth Circuit affirmed.

Granting certiorari to address a circuit split, Justice Kagan, writing for the Court, declared: “We hold today that a court may grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not have incurred but for the frivolous claims.” It then reversed because the district court and Fifth Circuit had used a different and incorrect standard for awarding fees to the defendant. Read the rest of this entry »

Introduction

In recent Terms the Supreme Court has shown considerable interest in individual immunity doctrine involving qualified immunity–about which I blogged on January 25, 2011 and may 31, 2011–and absolute immunity–about which I blogged on August 21, 2009. See generally on individual immunities, my treatise CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 chapters 7 & 8 (4th ed. 2010)(CIVLIBLIT on Westlaw).

The Court’s interest in immunity doctrine will continue into the 2011 Term because, on March 21, 2011, the Court granted certiorari in Rehberg v. Paulk, No. 10-788, to review 611 F. 3d 828 (11^th Cir. 2010), which conferred absolute witness immunity on a district attorney’s chief investigator who had testified as a complaining witness before a grand jury.

(In connection with understanding Rehberg, note that the Supreme Court has consistently used a functional approach to individual immunities, meaning that immunity does not depend on job title but rather on the nature of the challenged conduct. Buckley v. Fitzsimmons, 509 U.S. 259 (1993)).

Rehberg v. Paulk and Witness Immunity

Rehberg involved a § 1983 Fourth and Fourteenth Amendment-based malicious prosecution damages action against, among others, a chief investigator in a district attorney’s office who, as a complaining witness, allegedly testified falsely before three different grand juries, each of which separately indicted the plaintiff on various charges subsequently dismissed. The Eleventh Circuit held that the chief investigator was absolutely immune from damages liability for his allegedly false testimony before the grand jury.

It also ruled that the chief investigator, together with the prosecutor who presented to the grand jury, was absolutely immune from damages liability for allegedly conspiring, pre-indictment, to make up and present the chief investigator’s false testimony to the grand jury.

In this latter regard, though, the Eleventh Circuit was careful to note that there was no allegation here that either of these defendants fabricated or planted any evidence to create probable cause. If there had been, the defendants would not receive absolute immunity, according to the court, because such conduct—investigating and gathering evidence—fell outside the prosecutor’s role as advocate. Read the rest of this entry »