Attorney's Fees: At the Intersection of Frivolous and Not

Unsuccessful plaintiffs in civil right cases may now breathe easier when it comes to awarding attorney's fees. As recently held in Fox v. Vice, plaintiffs will only be responsible for defendants' fees arising solely due to a frivolous claim. Non-frivolous cases, and mixed cases which would have incurred the same fees absent the frivolous claim, are exempt.

Although 42 U.S.C. §1988 explicitly allows the awarding of "a reasonable attorney's fee" to "the prevailing party" in various types of civil rights cases, the Supreme Court has to date focused primarily on granting fees to prevailing plaintiffs. When a plaintiff succeeds in a civil rights suit, he serves "as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per curiam). Thus, it is only logical that the defendant should be forced to cover the attorney's fee, as it was his conduct that created the need for legal action in the first place. This fee shifting serves a dual purpose: to reimburse the plaintiff for what it cost to vindicate his civil rights, and to further punish those who violate federal law.

§1988 has been interpreted to authorize fees to a prevailing defendant, but such fees are granted under a different standard. Congress sought "to protect defendants from burdensome litigation having no legal or factual basis," so a district court may only award attorney's fees to a defendant if the plaintiff's action is found to be frivolous. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420-421 (1978).

In the complicated real world, however, cases rarely fall so neatly into one category or the other: legitimate or frivolous. With Fox v. Vice, the Court has provided welcome guidance for those common cases that are a mix of the two. It held that §1988 allows a defendant to recover reasonable attorney's fees incurred because of, but only because of, a frivolous claim. Or, put another way, §1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim. Such a standard protects the defendant from frivolous lawsuits, but refuses to award fees for the expenses the defendant would have incurred anyway to defend against a non-frivolous claim.

The present case arose six years ago in Vinton, Louisiana, when Petitioner Ricky Fox challenged incumbent police chief Billy Ray Vice. In Fox's parlance, Vice utilized a number of "dirty tricks" in his campaign. Among those tricks was Vice's threat (via an anonymous letter) to publish damaging charges against Fox if he remained in the race. Vice also arranged for a third party to accuse Fox of using racial slurs, culminating in the filing of a criminal complaint against Fox, which was subsequently leaked to the press. Still, despite everything, Fox prevailed and was soon the new police chief.

Those "dirty tricks" during the election eventually led Vice to be convicted of criminal extortion for his conduct. But the matter was not over for him, as he also faced a civil suit brought by Fox. Fox filed in the Louisiana state court, asserting both state-law claims, such as defamation, and federal civil rights claims under 42 U.S.C. §1983, such as the interference with his right to seek public office. Vice (and the town of Vinton, which was also named as a defendant) removed the case to federal court on the basis of the civil rights claims.

Post-discovery, Vice moved for summary judgment on Fox's federal claims. At this point, even Fox himself admitted that his claims were "no[t] valid." The District Court rightly dismissed them with prejudice and declined to exercise supplemental jurisdiction over the state-law issues that remained, remanding the case back to state court. It also noted that the work performed by Vice's attorneys-such as trial preparation, legal research, and discovery-could be used in the state court proceedings.

Vice then filed a motion for attorney's fees under §1988, because Fox's federal claims were "baseless and without merit." He argued that his lawyers had to participate in five lengthy depositions and review countless records to properly defend him against all of the charges. Despite the on-going state-law proceedings, the district court granted the motion, awarding Vice fees for all of his attorneys' work and not bothering to separate out the work his attorneys had done on the two sets of claims. The Fifth Circuit affirmed.

In its June 6th opinion, however, the Supreme Court held differently. Since the charges all arose out of Vice's conduct during the campaign, and their proof or denial required the same set of facts, the Court conceded it was likely that Vice's attorneys would have conducted similar fact-gathering activities. Yet, the Court criticizes the District Court's decision to award full attorney's fees as failing to properly account for the overlap between the frivolous and non-frivolous claims. The District Court suggested that the close relationship between the federal and state claims supported Vice's recovery of all attorney's fees. It did not, as the Supreme Court orders, address whether the claims' interrelatedness meant that Vice would have incurred part or most of his fees even if Fox had asserted only the non-frivolous state-law claims.

And with that, the Court vacated and remanded the judgment, providing notice to all future litigants that defendants may not receive compensation for any fees they would have paid in the absence of frivolous claims.


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