Supreme Court Establishes Standard For Defendants Seeking Attorneys’ Fees

For Frivolous Civil Rights Claims

On June 6, 2011, the United States Supreme Court held in Fox v. Vice that a defendant in a federal civil rights lawsuit may recover its attorneys’ fees for time spent defending against frivolous claims in lawsuits asserting both frivolous and non-frivolous claims, but only to the extent that the defendant would not have incurred such fees but for the frivolous claims.

The case arose out of an election for chief of police in Vinton, Louisiana. Following the election, in which Ricky Fox defeated incumbent Billy Ray Vice, Fox filed a civil lawsuit in Louisiana state court against Vice and the City of Vinton alleging that Vice had engaged in a series of “dirty tricks” aimed at forcing Fox to withdraw from the race. Fox’s complaint asserted both state law claims, including defamation, and federal civil rights claims under 42 U.S.C. § 1983, including interference with his right to seek public office. The defendants removed the case to federal district court based on Fox’s § 1983 claims.

Following discovery, which included a series of lengthy depositions, the defendants moved for summary judgment on Fox’s federal claims. Fox conceded his federal claims were “not valid,” and the district court summarily dismissed the federal claims and remanded the remaining state law claims to the state court. Thereafter, the defendants filed a motion with the district court to recover their attorneys’ fees under 42 U.S.C. § 1988, which the Supreme Court has construed in actions to enforce certain civil rights statutes as authorizing an award of attorneys’ fees to a defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” The district court granted the motion and permitted the defendants to recover their attorneys’ fees in their entirety, notwithstanding that Fox’s state law claims survived. The district court reasoned that the fees need not be separated because the “claims arose out of the same transaction and were so interrelated that their prosecution or defense entailed proof or denial of essentially same facts.” A divided Fifth Circuit Court of Appeals affirmed the district court’s decision.

In an opinion authored by Justice Kagan, the Supreme Court unanimously vacated and remanded the Fifth Circuit’s decision. The issues before the Court were whether and to what extent a court may award attorneys’ fees to a defendant under § 1988 when a plaintiff asserts both frivolous and non-frivolous claims in a single suit. The Court answered the first question in the affirmative, relying on its analogous decision in Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). In Hensley, the Court held a plaintiff is entitled to an award of attorneys’ fees for work deemed to have been expended in pursuit of the ultimate result achieved but not for work that bore no relation to the grant of relief. Thus, the Court held in Fox, a defendant is similarly entitled under § 1988 to recover expenses attributable to frivolous claims but is not entitled to fees arising from non-frivolous claims. The mere presence of non-frivolous claims, the Court held, does not shield a plaintiff from paying attorneys’ fees under § 1988 for charges imposed by his frivolous claims.

The Court’s remaining task, therefore, was to articulate a standard for determining the attorneys’ fees in cases involving frivolous and non-frivolous claims which may be fairly attributed to the frivolous claims. It did so by adopting a “but-for” test, holding that “§ 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.” In other words, the question is not whether attorneys’ fees in any way relate to a non-frivolous claim, but instead whether the fees would have been incurred in the absence of the frivolous allegations. Where they would not have been incurred, the Court held, they are recoverable under § 1988.

What does Fox mean for employers? Before the Court’s ruling, employers in some jurisdictions were unable to recover their attorneys’ fees in civil rights cases involving frivolous claims unless all of a plaintiff’s claims were frivolous, and even in those jurisdictions where attorneys’ fees were recoverable where some of the claims were not frivolous, the courts struggled to distinguish those fees to which defendants were entitled from those to which they were not. Fox provides a clear standard by which awards of attorneys’ fees in such cases will be allocated, and some guidance as to how employers can maximize their potential fee awards. Because an employer may only recover those fees that it would not have incurred “but-for” the frivolous claims, and the Court in Fox emphasized that the goal in shifting fees is to “do rough justice,” employers will maximize their ability to recover their attorneys’ fees by identifying frivolous claims as early as possible in the litigation and ensuring that the billing entries regarding work done on those claims is recorded, to the extent possible, separately from the work done on non-frivolous claims.

© 2011 Kiesewetter Wise Kaplan Prather, PLC