1. When a plaintiff asserts both frivolous and nonfrivolous claims based on the same set of facts, can a court award the defendant attorneys’ fees for the frivolous claims under 42 U.S.C. § 1988, even though the defendant still has to defend against the nonfrivolous claims?
2. When a court awards a defendant attorneys’ fees under Section 1988 after dismissing a frivolous claim, must the court attempt to match the amount of the fees to the cost of defending the frivolous claim?
In 2005, Petitioner Ricky D. Fox ran for Police Chief of Respondent Vinton, Louisiana ("the Town"). During the campaign, Respondent Billy Ray Vice, the incumbent Police Chief, attempted to blackmail Fox and damage his public image. Fox won the election, but sued Vice and the Town for attempting to derail his campaign. Among Fox’s claims was a civil rights allegation under a federal statute, 42 U.S.C. § 1983. Following discovery in Fox’s civil case, Vice and the Town moved for summary judgment on the federal claim. Fox withdrew the claim, conceding that he failed to assert the required elements, but continued to pursue his state-based tort claims. The defendants then moved for attorneys’ fees under 42 U.S.C. § 1988, arguing that Fox’s federal claim was frivolous. The district court granted the defendants’ motion, and the Fifth Circuit affirmed on appeal. Fox argues that in a case with factually intertwined claims, a defendant must prevail over an entire lawsuit in order to receive attorneys’ fees. Vice and the Town, however, claim that nothing in Section 1988 prevents defendants from receiving attorneys’ fees for individual frivolous claims. The Supreme Court’s decision in this case will address Section 1988’s purpose of encouraging meritorious civil rights claims, while discouraging groundless claims.
Questions as Framed for the Court by the Parties
1. May a court award attorneys’ fees to a defendant under 42 U.S.C. § 1988 based on a voluntary dismissal of one claim in an action where the defendants must still defend against nonfrivolous claims that are factually intertwined?
2. May a court award defendants all of the attorneys’ fees they incurred in an action under § 1988 without any effort to isolate the fees attributable to the single dismissed claim?
In early 2005, Ricky D. Fox, a retired state trooper, announced his intention to run for Police Chief of his hometown of Vinton, Louisiana ("the Town"). This case arose from two incidents that occurred during Fox’s candidacy. First, incumbent Police Chief Billy Ray Vice sent Fox an "anonymous" blackmail letter threatening to expose alleged wrongdoings Fox committed as a trooper. Second, at Vice’s instigation, a third party accused Fox of uttering a racial slur during a local basketball game, then filed a false police report regarding the alleged utterance. Despite these incidents, Fox prevailed in the election.
After the election, in December 2005, Fox sued Vice and the Town in a Louisiana state courtalleging state causes of action and a claim that his federal civil rights were violated under 42 U.S.C. § 1983. In January 2006, Fox’s entire case was removed to federal district court on the basis of his federal cause of action. However, over the next year, Fox’s case largely sat dormant while the Federal Bureau of Investigation and the Louisiana State Police pursued separate criminal charges against Vice. In April 2007, Vice was convicted of extortion in state criminal court, and the parties resumed discovery in Fox’s civil case.
In September 2007, Vice and the Town moved for summary judgment, arguing that Fox’s civil rights claim had no basis in federal law. When Fox conceded that he had failed to properly assert a federal cause of action, the district court dismissed his federal claim and remanded the case to state court.
Vice and the Town next moved for attorneys’ fees pursuant to the Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988 ("the Act" or "Section 1988"), contending that Fox’s federal claim was frivolous and without foundation. The district court again granted the motion, and Fox appealed.
The United States Court of Appeals for the Fifth Circuit affirmed the grant of attorneys’ fees. The court noted that the federal circuits were split on whether defendants had to prevail over an entire lawsuit, and not just over individual claims, before seeking attorneys’ fees. Choosing to follow the majority rule, the court held that defendants need not prevail over an entire suit before moving for attorneys’ fees, but could recover the fees for individual frivolous claims. However, the court also cautioned that prevailing defendants were limited to only those fees that could be clearly traced to frivolous claims. Furthermore, the court noted that the determination of appropriate fees could not be accomplished according to precise rules or formulas.Rather, consistent with the language of Section 1988, the court stated that the assessment of proper attorneys’ fees was left to the discretion of district courts. Fox appealed to the Supreme Court, and certiorari was granted on November 1, 2010.
On March 4, 2011, the Supreme Court ordered additional briefing regarding the death of Respondent Billy Ray Vice in August 2010. Under Supreme Court Rule 35.1, if a party dies after the filing of an appeal with the Court, a representative must be named in his place. If a representative is not named within 6 months of the party’s death, there is a possibility that the case will be dismissed. However, the Supreme Court also instructed the parties to discuss the effects of Supreme Court Rule 35.3, which relates to suit against a public officer and does not result in dismissal.
Under 42 U.S.C. § 1988 ("the Act" or "Section 1988"), courts have the discretion to award the prevailing parties to litigation reasonable attorneys’ fees as part of the costs. This practice is known as "fee-shifting." In this case, the Supreme Court will address two fee-shifting questions that have split the federal circuit courts. The first is under what circumstances a prevailing defendant in a 42 U.S.C. § 1983 civil rights claim may seek relief under the fee-shifting provision of Section 1988. The second is how to calculate those fees where the facts of an eligible, nonfrivolous claim are intertwined with the facts of a separate ineligible claim.
On March 4, 2011, the Supreme Court ordered additional briefing on the effects of the August 2010 passing of Billy Ray Vice, and the failure to list a representative for him under Supreme Court Rule 35.1. There is a possibility that the Court will dismiss the case under this rule and decline to address the Questions Presented.
The Distinction between Prevailing Plaintiffs and Defendants under Section 1988
Ricky Fox argues that Section 1988's fee-shifting provision applies to prevailing defendants differently than to plaintiffs. While acknowledging that the provision is not exclusive to plaintiffs, Fox notes that the Supreme Court has provided that prevailing plaintiffs should regularly be awarded attorneys’ fees, whereas prevailing defendants should benefit from fee-shifting only where the plaintiff’s motive was vexatious, or the claim was frivolous. Fox also points to another case in which the Supreme Court explained that the varying equitable situations of the parties justify this difference in treatment. Fox notes that, unlike plaintiffs in civil rights actions, defendants are not in court to protect the public interest. Fox also points out that defendants who lose civil rights actions are officially lawbreakers, whereas losing plaintiffs have merely failed to prove their case.
On the other hand, Billy Ray Vice and the Town argue that Congress did not intend for Section 1988 to maximize plaintiffs’ incentive to bring civil rights claims. Rather, Congress’s purpose was to create a balance between encouraging meritorious claims and discouraging groundless ones. Vice acknowledges that defendants must meet a higher burden to receive attorneys’ fees under Section 1988. However, Vice also notes that the Supreme Court declined to assume that Congress set the bar as high as proving the plaintiff brought the case in bad faith. Vice argues that, because Fox’s claim did not include elements necessary for a valid Section 1983 claim, the claim was frivolous, and the fee-shifting appropriate. To establish the claim’s frivolous nature, Vice points to Fox’s own admission that he could not prove that Vice acted "under color of law," or that the Town had a "municipal policy or custom" that caused Fox’s injury.
Awarding Attorneys’ Fees in Factually Intertwined Cases
Though Fox agrees with the frivolousness aspect of the fee-shifting test, he argues that the defendant must prove that the entire lawsuit was frivolous before receiving attorneys’ fees. Fox explains that this is consistent with Congress’s intention, as evidenced by multiple Senators’ use of the word "suits" or lawsuits—as opposed to "claims" or "pleadings"—during floor discussions of Section 1988. Here, Fox contends that, despite pleading several claims, he had essentially filed a single, indivisible civil suit. Additionally, relying on Christiansburg, Fox argues that Vice’s work during discovery cannot be burdensome where the same work expended to defend the Section 1983 claim would have been done to defend the state law claims. Moreover, Fox notes that an allegation dismissed for legal insufficiency, as Fox’s was, is not necessarily frivolous for that reason alone. Therefore, Fox cautions that the bar for a finding of frivolity must be set high, or the threat of hindsight bias could discourage private citizens from bringing civil rights claims.
In response, Vice argues that Congress did not intend partial success to be an obstacle to recovery. First, Vice suggests that, as the Supreme Court has cautioned, Fox should hesitate to rely on "isolated statements" from Senate floor discussions. Moreover, Vice points to the House Report on Section 1988 as a more reliable source. Second, Vice refers to Hensley, which defined a prevailing plaintiff as one who succeeds on any significant issue. This case, Vice argues, does not bar recovery of attorneys’ fees for individual claims in a lawsuit, and therefore eliminates the distinction between partially prevailing plaintiffs and partially prevailing defendants. Finally, Vice contends that Fox’s hindsight-bias fears are overblown, as lower courts are aware of the potential for such bias, and courts of appeal do not hesitate to reverse district courts that inadvertently employ hindsight reasoning.
Calculating a Reasonable Attorneys’ Fee
In the alternative, Fox argues that, even if Vice is entitled to some fees, the decision to award all fees from the entire lawsuit was incorrect. First, Fox contends that the district court relied on an incorrect rule. Specifically, the district court magistrate judge found that no segregation of fees was necessary where the facts were interrelated and the claims "arose out of the same transaction." Fox argues that factual interrelatedness is an argument against fee-shifting, not a reason to shift all fees. Second, Fox argues that the magistrate judge incorrectly characterized the complaint as strictly federal. Fox suggests that the mistake likely arose from the fact that, except for the federal claim, Fox’s lawyer submitted factual pleadings for the state claims as Louisiana law allows. Finally, Fox agrees with the rule the Fifth Circuit set forth, that fee-shifting should be limited to attorneys’ fees "distinctly traced to a plaintiff’s" frivolous claims. However, Fox suggests that the Fifth Circuit misapplied the rule. Fox contends that the effect of the ruling creates "an unfair windfall" for Vice, where Fox is the true victim. Moreover, the Supreme Court stated that a plaintiff should not receive all legal fees expended where he "prevails on only one of several intertwined claims." Fox argues that partially prevailing defendants in similar circumstances should fare no better.
Vice offers three counterarguments. First, Vice points to the text of Section 1988, noting that it does not mention that fee-shifting must only occur where the time expended can be isolated exclusively to the federal claim. In fact, the statute has been interpreted to vest discretion in the district court to determine a "reasonable fee." Second, Vice argues that the fees in this case were exclusive to the federal claim. Indeed, Vice suggests that Fox’s excuse—that the state claims were overlooked because they were submitted as factual pleadings—is dubious. Finally, Vice argues that Fox’s arguments suggest that the Supreme Court should dismiss the writ of certiorari as improvidently granted. Because Fox agrees that the Fifth Circuit stated the correct rule in allocating fees, Vice argues that the first question presented is unchallenged. Thus, Vice claims that Fox merely wants the Supreme Court to revisit the facts and reapply the rule. Vice suggests that the Supreme Court does not typically visit such fact-driven matters, and should be reluctant to do so now. As to the second question, Vice alleges that Fox has reframed it. Instead of focusing on the propriety of the award, Vice argues that Fox has changed the argument into a discussion concerning the level of effort a judge must expend on isolating the frivolous and nonfrivolous claims in calculating the fee-shift. This is not the same question as the one the Supreme Court agreed to hear, Vice contends, and therefore the writ of certiorari should be withdrawn.
This case involves the interpretation and application of the Civil Rights Attorneys’ Fees Award Act of 1976 ("the Act" or "Section 1988"). Subsection 1988(b) allows victorious litigants in certain federal actions to recover their attorneys’ fees. However, while all victorious plaintiffs are potentially entitled to such fees, prevailing defendants may recover fees only when a plaintiff’s claim is deemed frivolous, unreasonable, or groundless. Here, Petitioner Ricky D. Fox contends that the district court erred in making him pay attorneys’ fees after dismissing as frivolous his federal claim against Respondents Billy Ray Vice and the Town of Vinton ("the Town"). Fox argues that because the frivolous federal claim was factually intertwined with his nonfrivolous state claims, the respondents incurred no additional costs in defending against the federal claim. Vice and the Town, however, contend that the Act holds plaintiffs liable for any and all frivolous claims, regardless of whether such claims arise from the same set of facts as nonfrivolous claims. The Act was enacted, Vice and the Town argue, partially in order to deter plaintiffs from bringing groundless federal suits.
In its brief supporting the petitioner, the Liberty Institute and other libertarian advocacy groups ("Liberty Institute") argue that the district court’s decision—and the Fifth Circuit’s affirmation—will discourage future private plaintiffs from pursuing meritorious civil rights claims. According to the Liberty Institute, since civil rights actions are already complex, lengthy, and unpredictable affairs, the risk of also having to pay a defendant’s attorneys’ fees would discourage private plaintiffs from commencing their claims. Moreover, the Liberty Institute contends that forcing plaintiffs to pay such fees mid-litigation, as Fox was forced to do, further compounds plaintiffs’ unwillingness to pursue less-than-perfect civil rights actions.
In addition to deterring meritorious civil rights actions, the American Civil Liberties Union and other public interest organizations ("ACLU") argue that the Fifth Circuit’s decision could discourage creativity in the formulation of new legal arguments. The ACLU contends that, when faced with the threat of paying attorneys’ fees, civil rights plaintiffs will avoid risky innovative arguments and instead adopt only well-established legal theories. In the ACLU’s view, this decrease in creativity could, in turn, lead to stagnation in the common law. Additionally, the ACLU argues that the Fifth Circuit’s decision could result in an overall increase in litigation. Under the Fifth Circuit’s rule, the ACLU contends, plaintiffs would hesitate to abandon weak claims for fear that the claims would be considered frivolous, and defendants would litigate for attorneys’ fees whenever a weak claim is actually abandoned.
In support of the respondents, Arkansas and sixteen other states ("Arkansas") argue that the Fifth Circuit’s decision will help states combat the high toll of frivolous civil rights litigation. Arkansas points out that state officials—often the target of civil rights suits—are defended using public funds. The risk of paying attorneys’ fees, Arkansas asserts, will filter out frivolous civil rights claims, and thus ease the burden on state budgets.Furthermore, contrary to the ACLU’s position, Arkansas argues that the petitioner’s interpretation of Section 1988, rather than the Fifth Circuit’s interpretation, will lead to increased litigation. According to Arkansas, Fox’s interpretation would encourage plaintiffs to fill their complaints with as many claims as possible in the hope that, if one claim is found to be frivolous, the existence of other nonfrivolous claims would prevent the payment of attorneys’ fees.
Further bolstering Arkansas’s argument, the National Conference of State Legislatures and other government organizations ("NCSL") note that federal civil rights claims can be far more expensive to defend than ordinary state claims. The NCSL observes that federal civil rights claims are often removed to federal court, and are thus subject to more extensive and time-consuming procedures. The increased costs of defending federal claims, the NCSL points out, ultimately harm taxpayers, who subsidize the states’ litigation expenses. Finally, noting the profusion of frivolous civil rights claims nationwide, the NCSL emphasizes Section 1988’s importance in curbing groundless claims. The NCSL argues that the risk of paying attorneys’ fees forces plaintiffs to realistically evaluate weak claims before seeking remedies in the courts.
The Supreme Court’s decision in this case will resolve incongruent interpretations of the fee-shifting provision of Section 1988. Fox argues that a defendant can recover attorneys’ fees in a case with factually intertwined claims only when the defendant prevails over the entire lawsuit. Any other result, Fox argues, would discourage private plaintiffs from bringing claims and assisting in the policing of federal civil rights law. Vice and the Town, on the other hand, claim that, under Section 1988, a defendant’s partial success over a single frivolous claim is not an obstacle to recovery of attorneys’ fees. Moreover, Vice argues that because Fox has essentially agreed with the Fifth Circuit’s formulation of the fee-shifting rule, the Supreme Court should dismiss the writ of certiorari as improvidently granted.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
• Section 1983 Blog: Attorneys’ Fees in Civil Rights Cases: A Brief Summary (Sept. 1, 2009)
• Crime & Federalism: Sec. 1988/Attorneys’ Fees Case (July 19, 2005)