Since early on after passage of the civil rights laws, the rule has been that in order to encourage persons to seek relief for violations of their civil rights, prevailing plaintiffs could be awarded their fees and costs as a matter of course. However, fees and costs could be awarded to prevailing defendants only in "exceptional cases."
See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). The Ninth Circuit recently discussed the split that currently exists in the circuits on just how that rule should be implemented. Several circuits have held that defendants may recover attorneys' fees for frivolous claims by plaintiffs even when those claims are intertwined with meritorious claims. One circuit has held that a defendant may not recover even for frivolous claims so long as the plaintiff has raised at least one nonfrivolous claim.
See Harris v. Maricopa County Super. Ct., No. 09-15833, 2011 WL 167040, at *23 (9th Cir. Jan. 20, 2011) (Bybee, J., concurring in the judgment in part, but mostly dissenting) (and cases cited). In
Harris, the Ninth Circuit adopted neither view in its entirety. Rather, the court held that only fees which are
exclusively attributable to a plaintiff's frivolous claims are recoverable.
Id. at *11. The court explained that civil rights cases which contain both kinds of claims present allocation problems, although the proper allocation, at least in theory, is simply to award fees only for frivolous claims but to place the burden on the defendant to show that the fees it seeks were incurred solely because of the need to defend against the frivolous claims. The court reasoned that anything else, such as just prorating the fees, would risk requiring a plaintiff to pay for fees incurred in defeating his or her nonfrivolous claims—particularly where a plaintiff asserts various legal theories, all based on essentially the same facts. The dissent characterized the majority's rule as unreasonably imposing an "additional level of scrutiny" for defendants. As the dissent pointed out, whoever is right in this now three-way split, further guidance can be anticipated soon since the Supreme Court has accepted certiorari in a recovery-of-fees case from the Fifth Circuit. Watch for the upcoming decision in
Fox v. Vice, 594 F.3d 423 (5th Cir.),
cert. granted, 131 S. Ct. 505 (2010) (No. 10-114).
