June 6, 2011
Attorney's Fees for Frivolous Claims
The Supreme Court ruled today in Fox v. Vice that defendants in civil rights actions are entitled to attorney's fees under 42 U.S.C. Sec. 1988 only for costs that the defendant would not have incurred but for any frivolous claims--those costs incurred because of, but only because of, a frivolous claim.
The case involved a suit in state court by a former candidate for chief of police against the then-incumbent and the town for state-law claims, including defamation, and federal civil rights claims under 42 U.S.C. Sec. 1983, including interference with the right to seek public office. The defendants removed the case to federal court and, after discovery, sought and won summary judgment on the federal claims. (The federal court sent the state claims back to state court, where they remain.) Both parties agreed that the federal claims were "no[t] valid."
The defendants moved for attorney's fees under Section 1988 (authorizing a court to award reasonable attorney's fees to the prevailing party, plaintiff or defendant, in certain civil rights cases). The district court granted attorney's fees on the basis that the federal claims were frivolous. The court awarded fees covering all of the defendants' attorneys' work, not just the work associated only with the federal claims, because the "various claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially the same facts." A divided Court of Appeals affirmed, deepening a split among the circuits on the question of how to calculate attorney's fees for a defendant when some claims are frivolous and some claims are non-frivolous.
A unanimous Supreme Court gave this answer:
Section 1988 allows a defendant to recover reasonable attorney's fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a 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.
Op. at 8. In this case, the defendants were not entitled to fees for attorney work on non-frivolous claims that overlapped with attorney work on frivolous claims:
In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying Section 1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.
Op. at 13.
The result means that civil rights plaintiffs who assert both frivolous and non-frivolous claims may have to pay attorney's fees only when the defendant can segregate out attorney work on the non-frivolous claims--where there's no overlap between the work on the two types of claims. This is a relatively plaintiff-friendly result, considering that some lower courts, including the lower courts here, would charge plaintiffs for attorney's fees for all defendant work on frivolous claims (including that work that the defendants' attorneys would have done to advance interrelated non-frivolous claims).
Justice Kagan wrote the plain-spoken, easy-to-read opinion, rife with hypothetical illustrations to show how the Court's rule will work. She emphasized the discretion that trial courts have in determining attorney's fee awards, and underscored the deference that appellate courts owe to those determinations, concluding with this hat-tip to the judge-as-umpire analogy: "A trial court has wide discretion when, but only when, it calls the game by the right rules."
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