Fox v. Vice, 131 S.Ct. 2205 (2011). The Civil Rights Act, 42 U.S.C. §1983, includes a fee-shifting provision, 42 U.S.C. §1988. Most often, it is a prevailing plaintiff who seeks fees under that provision. But section 1988 allows a prevailing defendant to seek a fee award where “the plaintiff’s action was frivolous, unreasonable, or without foundation.”
In this case, some of plaintiff’s claims were found to be frivolous while others were not. Justice Kagan, writing for a unanimous Court, held that defendant could get the reasonable fees “he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.” Thus, any fees for work that had the dual purpose of opposing both a frivolous and a non-frivolous claim is not compensable.
The Court noted that this rule differs from the rule applicable to plaintiffs’ attorneys’ fee requests. That is due to the “disparate legislative purposes” of Congress in permitting plaintiffs and defendants to seek fee-shifting, as Justice Kagan explained. “Congress authorized fees to plaintiffs to compensate them for the costs of redressing civil rights violations; accordingly, a plaintiff may receive fees for all work relating to the accomplishment of that result, even if ‘the plaintiff failed to prevail on every contention raised.’ Hensley [v. Eckerhart], 461 U.S. at 435. By contrast, Congress authorized fees to defendants to remove the burden associated with fending off frivolous claims; accordingly, a defendant may recover for fees that those claims caused him to incur.”
The Court rejected as “empty and amorphous” a proposed test that would have awarded defendants fees for all work “fairly attributable” to the frivolous claims. Instead, the Court adopted what it labeled a “but-for test,” under which a defendant may receive “only the portion of his fees that he would not have paid but for the frivolous claim.”
The Court’s decision is sound. Congress intended to limit and minimize fee awards to defendants, in order to avoid deterring civil rights suits by the threat that losing plaintiffs might have to compensate defendants for their fees. The Court’s “but-for” test strikes an appropriate balance that compensates defendants for the defense of frivolous claims but avoids giving defendants a “windfall,” as Justice Kagan correctly noted.
On a more general level, the Court emphasized that fee applications “should not result in a second major litigation,” and that “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time. And appellate courts must give substantial deference to these determinations,” in light of the trial court’s “superior understanding of the litigation.” This language may be very helpful to plaintiffs on their fee applications, since defendants sometimes seek to bog the courts down in time-entry-by-time-entry dissection of plaintiffs’ lodestar, a wasteful activity at best for already overburdened judges to perform.