Argument preview: Attorneys’ fees for prevailing defendants

By Amy Howe
on Mar 22, 2011 at 6:39 am

42 U.S.C. § 1988 authorizes courts to award reasonable attorneys’ fees to prevailing parties in civil rights litigation.  In Hensley v. Eckerhart (1983), the Court held that prevailing defendants can generally recover their fees only when “the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.”   Today, in Fox v. Vice (No. 10-114), the Court will hear oral argument regarding whether a defendant can recover fees for a federal civil rights claim that is determined to be frivolous, when the defendant has not prevailed on other state-law claims arising from the same set of facts and conduct.  [Disclosure:  I served as a judge on a moot court for counsel to the petitioner, but I did not represent either a party or an amicus in this case.]

This case has its roots in a campaign by the petitioner, Ricky Fox, to replace Billy Ray Vice as the chief of police for his hometown of Vinton, Louisiana.  Vice responded with conduct that included extortion and a fabricated complaint by a drug dealer (whom Vice had helped to gain release from jail) that Fox had used racist language.  However, Fox was eventually elected, and Vice was subsequently convicted of extortion.

Fox later filed a lawsuit in Louisiana state court against Vice, two police officers, and the town, alleging both constitutional violations and state-law tort claims.  The defendants removed the case to federal court, and discovery ensued.  After the defendants filed a motion for summary judgment on Fox’s federal civil rights claim, Fox filed – and the district court granted – a motion to dismiss that claim and remand the case back to state court for a trial on his state-law claims.

The defendants then filed a motion to receive reimbursement for their attorneys’ fees for Fox’s federal claim – which, they contended, was frivolous.  The district court agreed that the defendants were “prevailing parties” for purposes of Section 1988, and it concluded that they were entitled to fees because the federal claim was “vexatious, frivolous, or otherwise without merit.”  While acknowledging that the defendants had not prevailed on the state-law tort claims, it emphasized that both parties had “focus[ed]” on the federal civil rights claim.  Moreover, the court concluded that the defendants had not sought attorneys’ fees “related to the defense of the state law claims remanded for decision.”  It awarded the defendants approximately $54,000 in fees.

On appeal, a divided panel of the Fifth Circuit affirmed.  The panel majority agreed that Fox’s federal civil rights claim was factually related to his state-law claims, but it reasoned that rejecting fee requests like the defendants’ “would defeat the purpose of ever recognizing defendants as ‘prevailing parties,’ which is to ‘protect defendants from burdensome litigation having no legal or factual basis.”  Moreover, the court explained, when claims are interrelated, fees should be awarded only for “work which can be distinctly traced to a plaintiff’s frivolous claims.”  In this case, the court continued, the district court did not abuse its discretion in making the attorneys’ fee award insofar as (among other things) the defendants did not seek fees for time spent on the state-law claims.

Fox filed a petition for certiorari, which the Court granted on November 1, 2010.  On March 18, 2011, the Court granted a motion to substitute Judy Vice, as the executrix of her husband’s estate, for Billy Ray Vice, who died in August 2010.

In his brief on the merits, Fox begins by arguing that the defendants in his case are not entitled to any fees at all.  He emphasizes the extent to which his federal civil rights claim was intertwined with his surviving state-law claims:  “Because all the legal claims were founded on the same facts, the defense counsel would have needed to perform the same work whether or not the federal claim had been in the case.”  Thus, an award of attorneys’ fees on the federal civil rights claim would be contrary to the purpose of such an award – protecting defendants from “burdensome litigation” – because no such burden existed.  Fox also warns that requiring plaintiffs to pay attorneys’ fees in cases such as his  “could have devastating consequences to the enforcement of federal law and to the progress of the law,” as the prospect of paying fees for a federal claim could cause plaintiffs to decline to press the claim altogether. Moreover, requiring plaintiffs to pay fees for frivolous claims unfairly punishes the client, when the client’s attorney is the one responsible for selecting legal theories of relief; Rule 11, Fox asserts, “is a much more suitable vehicle for protecting defendants where a frivolous federal claim is factually intertwined with other viable claims.”

Fox then argues in the alternative that even if the defendants are entitled to some fees in his case, the award was too generous, as they are only entitled to fees that are “directly and exclusively attributable to a frivolous claim—fees that would not have been incurred but for the inclusion of the claim.”  This rule is also consistent with Congress’s intent to protect defendants from “burdensome litigation.”  Fox acknowledges that the Fifth Circuit identified this rule as the correct one, but he contends that the lower court then misapplied it.

In their brief on the merits, the defendants (respondents here) urge the Court to adopt the same rule for prevailing defendants that it already applies to prevailing plaintiffs and hold that a defendant can obtain fees even if he does not prevail on the entire lawsuit.  Such a holding, the defendants contend, is supported by both the text of Section 1988 – which refers only to “prevailing parties” – and the history of the statute.  Moreover, such a rule will not have the chilling effect that Fox predicts because of the high bar required to meet the standard for “frivolousness”; however, the defendants caution the Court, Fox’s rule would encourage frivolous federal claims, which can still “take a heavy toll on defendants.”

The defendants next reject Fox’s alternative “but for” formula to compute fee awards.  District courts should not be required to parse fees on a claim-by-claim basis; rather, “the district court should focus on the significance of the overall success in relation to the hours reasonably worked.”  But in any event, the defendants emphasize, Fox has conceded that the Fifth Circuit applied his “but for” rule, and he now disputes only the manner in which the court applied that test to his case.  In light of this concession, as well as what the defendants characterize as Fox’s extensive focus on the question whether his federal claim was in fact frivolous, the defendants ask the Court in the alternative to dismiss the case as improvidently granted.