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Ninth Circuit: Prevailing Civil Rights Defendant Entitled to Recover Attorney Fees Only with Respect to Work Attributable Exclusively to Frivolous Claims
A divided Ninth Circuit panel has held that, in a civil rights action with multiple claims, only some of which are groundless, a prevailing defendant is entitled to recover only those attorney fees and costs attributable exclusively to defending against plaintiff's frivolous claims. Moreover, the burden of establishing such entitlement rests entirely with the claimant. In other words, the only fees and/or expenses civil rights defendants can recover are those they can demonstrate were incurred solely with respect to frivolous claims, i.e., not with respect to any of the non-frivolous claims, either in whole or in part.
In a strongly worded dissent, Circuit Judge Jay S. Bybee pointed out that the majority holding is at odds with four of the five other circuits to have considered the issue. The First, Fifth, Seventh, and Eleventh Circuits all have held, contrary to the Ninth Circuit, that defendants in civil rights cases may recover attorney's fees even when the plaintiff's frivolous claims are intertwined with non-frivolous claims. Only the Sixth Circuit, which has held that a prevailing defendant may not recover any fees when a plaintiff raises even one non-frivolous claim, has embraced a rule similar to the Ninth Circuit's. The Supreme Court is expected to resolve the circuit split soon; it has granted a writ of certiorari in the Fifth Circuit case, Fox v. Vice, 594 F.3d 423 (5th Cir. 2010), cert. granted, 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114). See: Harris v. Maricopa County Superior Court, 631 F.3d 963 (9th Cir. 2011).
In a strongly worded dissent, Circuit Judge Jay S. Bybee pointed out that the majority holding is at odds with four of the five other circuits to have considered the issue. The First, Fifth, Seventh, and Eleventh Circuits all have held, contrary to the Ninth Circuit, that defendants in civil rights cases may recover attorney's fees even when the plaintiff's frivolous claims are intertwined with non-frivolous claims. Only the Sixth Circuit, which has held that a prevailing defendant may not recover any fees when a plaintiff raises even one non-frivolous claim, has embraced a rule similar to the Ninth Circuit's. The Supreme Court is expected to resolve the circuit split soon; it has granted a writ of certiorari in the Fifth Circuit case, Fox v. Vice, 594 F.3d 423 (5th Cir. 2010), cert. granted, 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114). See: Harris v. Maricopa County Superior Court, 631 F.3d 963 (9th Cir. 2011).
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Related legal cases
Harris v. Maricopa County Superior Court
| Year | 2011 |
|---|---|
| Cite | 631 F.3d 963 (9th Cir. 2011) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |
Fox v. Vice
| Year | 2010 |
|---|---|
| Cite | 594 F.3d 423 (5th Cir. 2010) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |
Fox v. Vice
| Year | 2010 |
|---|---|
| Cite | 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114) |
| Level | Supreme Court |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |