The Supreme Court Orders Lower Courts To Apportion Fee Claims Between Frivolous and Non-Frivolous Claims

The U.S. Supreme Court’s recent decision in Fox v. Vice established the method of determining the amount of attorney’s fees a defendant is entitled to under 42 U.S.C. § 1988 when a mix of frivolous and non-frivolous claims are filed against him or her under 42 U.S.C. § 1983.

In Fox, the plaintiff brought suit against the defendant based on the defendant’s attempt to sabotage the plaintiff’s campaign for chief of police. The plaintiff asserted state law claims for defamation, and federal civil rights claims under Section 1983 alleging the defendant interfered with his right to seek public office. The defendant removed the case to federal court only to have the plaintiff concede that the federal civil rights claims were invalid.

The defendant asked the federal court for attorney’s fees arguing he expended a significant amount of time and money defending against the plaintiff’s charges. However, the billing records the defendant submitted did not differentiate between the time spent on the frivolous federal claims and the non-frivolous state law claims.

The District Court granted the defendant attorney’s fees for all of the work done by his attorneys on the ground that the plaintiff’s federal claims were frivolous. The Fifth Circuit affirmed the District Court’s decision “deepening a Circuit Split” about how to determine which attorney’s fees a defendant is entitled to in situations such as this. The U.S. Supreme Court put the question to rest deciding that Section 1988 permits the defendant to receive only the fees he or she would not have paid but for the frivolous claims. As a result, the Court vacated the Circuit Court’s judgment and remanded the case for judgment consistent with its decision.
The Court based its decision on Congress’s intent to remove the burden associated with defending against frivolous claims when it enacted Section 1988. The Court reasoned that a standard allowing more expansive fee-shifting would result in some defendants being better off because they were subject to frivolous claims. A defendant may receive attorney’s fees for work done on the non-frivolous claims simply because that work was also useful in defending against the frivolous claims.
The court also pointed out that there are situations where its but-for test may result in a defendant receiving attorney’s fees for work useful in both the frivolous and non-frivolous claims. For example, where the defendant’s attorney did work that was useful in defending against both charges solely to insulate the defendant from exposure to damages resulting from the frivolous charge, the court may shift fees.

Also, as in Fox, when a frivolous federal claim results in additional expenses incurred due to removal to federal court, the court may shift fees even if that work pertained to both the frivolous and non-frivolous claims.

Finally, the Court emphasized that the courts should not become “green-eyeshade accountants” in determining the extent of attorney’s fees in these situations. “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.”

Comment: this case is significant as it is likely to be followed in other fee-shifting cases. If you wish to recover attorney fees, you would need to prepare detailed time records showing what time was spent defending the frivolous claims and what time was spent defending non-frivolous claims. The problem is that few attorneys prepare time records that are that detailed. Also, the court may not agree that a particular claim is frivolous. Thus, the lawyers will be required to do some green eyeshade work in preparing fee petitions.

Edward X. Clinton, Jr.

Thanks to our law clerk Pat Bushell for help on this blog entry.

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