The US Supreme Court [official website; JURIST news archive] unanimously ruled [opinion, PDF] on Monday in Fox v. Vice [Cornell LII backgrounder; JURIST report] that it is improper to award defendants the full amount of attorney's fees incurred while defending non-frivolous claims along with a frivolous claim. 42 USC § 1988 [text] permits courts to award defendants attorney's fees for defending against a frivolous claim, even when the plaintiff also asserts non-frivolous claims. The court interpreted § 1988 as permitting the defendant to receive "only the portion of his fees that he would not have paid but for the frivolous claim." In 2005, petitioner Ricky Fox sued Billy Ray Vice for defamation and interfering with his right to seek public office when Fox ran for police chief of Vinton, Louisiana against incumbent Vice. Fox ultimately won the election despite Vice's attempts to upset Fox's campaign, but asserted both state-law and federal claims against Vice. The US District Court for the Western District of Louisiana [official website] granted Vice's motion for summary judgment of the federal claims on the basis that the claims were frivolous, and subsequently declined to exercise supplemental jurisdiction over the residual state-law claims. The district court granted Vice attorney's fees for the entire action without separating out the work the attorney completed for the viable state-law claims, and the US Court of Appeals for the Fifth Circuit [official website] affirmed [opinion, PDF]. In her opinion, Justice Elena Kagan articulated the standard:
Our legal system generally requires each party to bear his own litigation expenses, including attorney's fees, regardless whether he wins or loses. Indeed, this principle is so firmly entrenched that it is known as the "American Rule." [...] That remains true when the plaintiff's suit also includes non-frivolous claims. The defendant, of course, is not entitled to any fees arising from these non-frivolous charges. But the presence of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous claims imposed.Because the district court failed to follow this standard, the court accordingly vacated the judgment of the appeals court and remanded the case for further consistent proceedings.
The Supreme Court ultimately adopted a "but for" test for determining precisely the fees for which a losing party is responsible. In other words, a prevailing defendant may receive fees that would not have been incurred "but for" having to defend against the additional federal claim or claims. During oral arguments [transcript, PDF] the justices discussed the merits of the "but for" test. The lower court had applied the "attributable exclusively" test, whereby prevailing defendants could receive those fees exclusively attributable to the frivolous federal claim. Counsel for the petitioner Fox argued that the lower court decision violated Congress' intention "to protect defendants from the lying or the vexatious plaintiff who shouldn't be in court at all." Counsel for the respondent Vice argued that the federal statute rightly allows for defendants to receive attorney's fees from plaintiffs, even if the plaintiff wins the case, if the plaintiff filed any frivolous claims.