At yesterday's oral argument in Fox v. Vice (No. 10-114), the Court considered the question of what attorneys' fees a prevailing defendant may receive under Section 1988, when a federal civil rights claim is deemed frivolous but it is intertwined with non-frivolous state-law claims.  At the end of the argument, it was not at all clear how the Court would rule "“ nor, for that matter, how much the two parties' proposed rules would be that different in the mine-run of cases.

Mr. Fox's attorney, Joshua Rosenkranz, began by urging the Court to hold that a defendant who prevails on a federal civil rights claim that is deemed frivolous should not receive any fees at all if the claim is intertwined with non-frivolous claims.  He reasoned that in such a case, the additional burdens imposed on the defendant by the frivolous civil rights claim are "minimal" and emphasized that his rule was consistent with Congress's concern in enacting Section 1988:  to avoid subjecting defendants to "burdensome" litigation.  Moreover, he argued, his bright-line rule would avoid imposing additional burdens on district courts by requiring them to parse fee applications to allocate fees.

However, it quickly became clear that there was little support for Rosenkranz's bright-line rule, and he moved on to his fall-back position:  a prevailing defendant can receive fees that would not have been incurred "but for" the inclusion of the frivolous federal claim.  Here he quickly ran into questions regarding the administrability of his proposed test, with the Chief Justice asking him about the "incredible burden" on the district court to go through billing records to determine what fees are attributable to the federal claim.  He also faced questions from Justice Sotomayor regarding the extent to which his "but for" test was different from the test announced by the Fifth Circuit in the decision; the lower court had indicated that prevailing defendants could receive fees "attributable exclusively" to the frivolous federal claim.  Rosenkranz acknowledged that the two tests were similar, but he contended that the court of appeals had in fact "applied a series of standards that bear no relation to the but-for test."  This response, however, prompted Justice Scalia to ask him why the case would be before the Supreme Court at all.

Appearing on behalf of the respondents, Mark Stancil urged the Court to adopt a test that would look at the prevailing defendant's "degree of overall success," and he emphasized the need to give the district court some discretion to determine the fees.  His rule, he noted, would address the Court's administrability concerns and would be more likely to avoid additional litigation over fees than Fox's "but for" test.  Stancil acknowledged that his proposed test was "very close" to the "but for" test, but he explained that it would include the additional requirement that the district court determine how important the federal civil rights claim was in relationship to the state claims.  Here, he explained, the fee award was appropriate because all of the federal litigation focused on the Section 1983 claim, to the exclusion of the state-law claims "“ which, he continued to insist, were not evident in the complaint.  However, he too ran into trouble with Justice Scalia, who asked him what principle of law the case would establish on his view of the relationship between the federal and state claims.

In his rebuttal, Rosenkranz disputed Stancil's depiction of the federal proceedings as focused solely on the Section 1983 claim.  He emphasized the district court's statement that the defendants were "not on notice that they needed to separately defend the state law claims" (emphasis added), and the extent to which the defendants' answers did include state law defenses.

At the end of the argument it was not at all clear how the Court would rule, other than that it was unlikely to adopt Fox's proposed bright-line rule.  Several Justices appeared skeptical of both sides' proposed rules, and two Justices "“ Justices Thomas and Breyer "“ asked no questions at all.

Posted in Fox v. Vice, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument recap: Choosing between “but for” and “fairly attributable”, SCOTUSblog (Mar. 23, 2011, 2:29 PM), http://www.scotusblog.com/2011/03/argument-recap-choosing-between-%e2%80%9cbut-for%e2%80%9d-and-%e2%80%9cfairly-attributable%e2%80%9d/