Fox v. Vice: New Supreme Court Attorney’s Fees Decision
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.
At the outset, the Court pointed out it had previously observed that where a plaintiff prevailed on one claim but also asserted a frivolous claim, both the plaintiff and the defendant might be entitled to fees–“to the plaintiff to reflect the fees he incurred in bringing the meritorious claim; and to the defendant, to compensate for the fees he paid in defending against the frivolous one.” 131 S. Ct. at — (citing Hensley v. Eckerhart, 461 U.S. 424 (1983). The question was therefore one of allocation where there was a mix of frivolous and non-frivolous claims. The Court then reasoned that Congressional policy regarding fees awarded to prevailing defendants for frivolous claims required a standard under which fees were recoverable where incurred “because of, and only because of, a frivolous claim.”
This was a kind of but-for test, meaning that if the frivolous claim was responsible for the defendant’s attorney’s fees, a court could decide to shift them to the plaintiff. On the other hand, if the defendant would have incurred those fees anyway in order to defend against the non-frivolous claims, the fees should be borne by the defendant. According to the Court, this standard avoided a windfall to defendants who, under a more permissive standard, would be better off just because they faced frivolous claims as well as non-frivolous ones. “At the same time, the ‘but-for’ standard we require may in some cases allow compensation to a defendant for attorney work relating to both frivolous and non-frivolous claims.”
Finally, the Court applied its but-for standard to the case before it. The Court found that the district court, in awarding the fees requested by the defendant because of the parties’ “focus” in the litigation, not only failed to take account of the overlap between the frivolous and non-frivolous claims but also stood the proper analysis on its head. And the Fifth Circuit did not uphold the fees award on the proper basis either. Accordingly, the Court vacated and remanded.
Fox was a sound decision. In articulating its but-for test, the Court carefully and appropriately balanced the various interests involved in fee-shifting under § 1988 in light of Congressional policy governing prevailing parties in general and prevailing defendants in particular.
In this connection, it is worth noting Fox’s emphasis on a district court’s discretion in these matters: the Court observed that the goal in awarding attorney’s fees under § 1988 was not “auditing perfection” but rather “rough justice” for the parties. Thus, according to the Court, appellate courts should give appropriate deference to district courts and not engage in “appellate micromanagement.”