Fox v. Vice

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.