Opinion analysis: Attorney’s fees for frivolous claims

By Amy Howe
on Jun 7, 2011 at 1:29 pm

Yesterday in Fox v. Vice, the Court added another chapter to a lengthy legal battle arising out of the use of “dirty tricks” by a Louisiana police chief.  In a thirteen-page unanimous opinion by Justice Kagan, the Court held that when a civil rights lawsuit under Section 1983 includes both frivolous and non-frivolous claims, a court may award reasonable attorney’s fees to a defendant for costs that it would not have incurred but for the frivolous claims.  [Disclosure:  I served as a judge on a moot court for Joshua Rosencranz, counsel for the petitioner, but was not otherwise involved in the case.]

The controversy began back in 2005, when petitioner Ricky Fox challenged the incumbent police chief in Vinton, Louisiana, Billy Ray Vice.   Despite the use of what Fox describes as “dirty tricks” in the campaign for police chief, Fox won the election.  And although Vice was later convicted of criminal extortion for his conduct in the campaign, Fox also filed a lawsuit in state court against him, alleging both state-law claims such as defamation and federal civil rights claims.  (Vice has since died, but his estate is now a party to the case.)

Vice removed the case to federal court, where discovery followed.  Vice then filed a motion for summary judgment with regard to Fox’s federal claims, which at that point even Fox agreed were not valid.  The district court dismissed those claims with prejudice and remanded the case to state court; in so doing, it noted that the work done by Vice’s attorneys could be used to defend him against the remaining claims.

Vice next filed a motion seeking attorney’s fees under 42 U.S.C. § 1988.  The district court granted the motion and awarded Vice fees for all of the work that his attorneys had done in the case, even though Fox’s state-law claims remained ongoing in state court.  On appeal, the Fifth Circuit affirmed, agreeing with the district court that the litigation had focused on the frivolous federal claims.

Today the Court vacated the Fifth Circuit’s decision and remanded the case for further proceedings.  The Court began from the premise that prevailing defendants can receive attorney’s fees in civil rights cases when (among other things) a plaintiff’s claim is frivolous; such awards, the Court emphasized, are consistent with protecting defendants “from burdensome litigation having no legal or factual basis,” which was Congress’s purpose in enacting Section 1988.

The Court then turned to the much more difficult question presented by this case:  when a case involves a mix of intertwined frivolous and non-frivolous claims, how should courts allocate attorney’s fees for work that helps defend against both sets of claims?  The Court quickly rejected, without much discussion, Fox’s first line of argument – that a defendant who prevails on a federal civil rights claim that is deemed frivolous can never receive fees if the claim is intertwined with non-frivolous claims.   [You can read my recap of the oral argument here.]  However, the Court also rejected Vice’s argument that fees should be awarded for work that is “fairly attributable” to the frivolous claims, describing it as “an empty and amorphous test” that is “in truth no standard at all.”

Instead, the Court endorsed the standard that Rosencranz, on Fox’s behalf, had advanced as his fall-back standard at oral argument, the “but for” test:  “Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.”  Put another way, “if the defendant would have incurred [attorney’s fees] anyway, to defend against non-frivolous claims” – for example, a deposition addressing both frivolous and non-frivolous claims, which the attorney would have taken even if the frivolous claims were not included – “then a court has no basis for transferring the expense to the plaintiff.”  Such a test, the Court explained, is appropriate when “the defendant has never shouldered the burden that Congress, in enacting §1988, wanted to relieve.”

Having articulated the “but for” test, the Court went on to clarify that the test was not really a “but for” test in the sense that prevailing defendants cannot recover any costs related to a non-frivolous claim.  Rather, although the Court did not adopt the suggestion by Mark Stancil, who represented Vice, that courts should look at a prevailing defendant’s “overall degree of success,” it made clear that prevailing defendants may in some circumstances recover fees arising from work relating to both frivolous and non-frivolous claims – for example, when the frivolous claims prompt the removal of the case to federal court, thereby increasing the costs of the litigation, or when a defendant can demonstrate “that a frivolous claim involved a specialized area that reasonably caused him to hire more expensive counsel for the entire case.”   And, much as Stancil suggested, the Court gave district courts significant discretion to achieve what it described as “the essential goal in shifting fees”:  “to do rough justice.”

The Court then turned to the application of its new standard to the case before it.  It noted the likelihood that – as the district court suggested – Vice would have incurred many of the same legal fees even if Fox had not pressed the frivolous claims.  Because the district court’s decision, the Court emphasized, “failed to take proper account of this overlap between the frivolous and non-frivolous claims,” the Court sent the case back to the lower courts for further proceedings.    Given the Court’s opinion, it seems likely that Fox – although not the “prevailing defendant” – will fare significantly better when the fee award is recalculated.