The Supreme Court held that, for civil rights lawsuits involving both frivolous and non-frivolous claims, a defendant may recover reasonable attorney’s fees only for costs that the defendant would not have incurred but for the frivolous claims. Fox v. Vice, No. 10-114, 2011 WL 2175211 (June 6, 2011). Justice Kagan wrote for a unanimous Court.
After defeating Billy Ray Vice in an election for police chief of Vinton, La., Ricky Fox filed suit against him and the town, alleging defamation and other state-law claims and federal civil rights claims under 42 U.S.C. § 1983 that included interference with his right to seek public office. Following discovery in the trial at the District Court of the Western District of Louisiana, Fox conceded that his federal claims were not valid. Finding these claims frivolous, the District Court awarded all of Vice’s attorneys’ fees under 42 U.S.C. § 1988 for both the frivolous federal claims and the state claims that had not been ruled frivolous. The fees were awarded for both sets of claims because the claims were “interrelated” such that they “entailed proof or denial of essentially the same facts,” and because the “focus” of the litigation was on the federal claims. The Fifth Circuit affirmed in a divided judgment.
The Supreme Court vacated and remanded the District Court’s judgment, resolving a Circuit split as to how attorney’s fees for defendants are to be handled under 42 U.S.C. § 1988 when both frivolous and non-frivolous claims are involved in a federal civil rights suit. The Supreme Court articulated a “but-for” standard: “the defendant [may] receive only the portion of his fees that he would not have paid but for the frivolous claim.” The Court reasoned that this standard prevents defendants from receiving “windfalls” if the suit happens to include frivolous claims. It stated that district courts have “wide discretion” and need only “to do rough justice, not to achieve auditing perfection” in applying this standard.
The Supreme Court found that the District Court erred in accounting for fees based on interrelatedness and focus, and that the Court of Appeals erred in allowing “any work useful to defending against a frivolous claim, even if lawyers would have done that work regardless.” Citing different policy goals for defendants’ and plaintiffs’ fees, the opinion noted the contrast with the test that it laid out in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983), which allows a plaintiff to recover fees under § 1988 for both (non-frivolous) unsuccessful as well as successful claims.
