Government Liability Update

A Plaintiff May Obtain Attorney Fees under 42 U.S.C. section 1988 for Work Done by the Plaintiff's Attorney Spouse

In Rickley v. County, published August 19, 2011, the Ninth Circuit Court of Appeals ruled that a plaintiff is entitled to claim attorney fees under 42 U.S.C. section 1988 for work on civil rights cases performed by the plaintiff's attorney spouse.  The court held that authority denying attorney fees to pro se plaintiffs, and to attorney-parents who represent their children in special education cases, did not apply to attorney-spouses as a category.  The court further ruled that determining whether an attorney with a particular relationship to the plaintiff is sufficiently independent and detached for fee purposes should be done categorically, rather than situation-by-situation.

Prevailing Defendant in Section 1983 Case May Recover Only Fees Incurred Solely Because of Frivolous Claims

In Fox v. Vice, published June 6, 2011, the U.S. Supreme Court resolved a split between the circuits concerning the standard for awarding a defendant attorney fees under 42 USC section 1988 for defending a 42 USC section 1983 civil rights suit in which some, but not all, of the claims are frivolous.  In a unanimous opinion, the court concluded that "a defendant may recover the reasonable attorney's fees he expended solely because of the frivolous allegations.  And that is all."  If the defendant would have paid any of the fees in the absence of the frivolous claims, the defendant cannot recover those fees.

The opinion also urged courts to do "rough justice" by taking into account their overall sense of a suit, and using estimates, in calculating attorney fees, rather than becoming "green-eyeshade accountants."

Court Awarding Attorney Fees against Public Entity Defendant May Not Use Entity's Financial Condition or Plaintiff's Pro Bono Representation as Negative Multipliers

In Rogel v. Lynwood Redevelopment Agency, published May 2, 2011, the Second District Court of Appeal, Division 8, reversed as miscalculated a private-attorney-general attorney fee award against the defendant redevelopment agency.  The appellate court held that in applying a lodestar analysis to the fee award, the trial court erred in reducing the award on the ground that it would be “better” for less money to be paid to the prevailing parties for their attorneys' fees so as to leave the agency with more money for its ongoing governmental operations.  The appellate court also faulted the trial court for reducing the award on the ground that much of the plaintiffs' attorneys' work was done pro bono. 

Defendant Awarded Fees under Federal Civil Rights Statute May Recover only Fees Incurred Because of Frivolous Claims

In Harris v. Maricopa County Superior Court, published January 20, 2011, the Ninth Circuit reversed an award of attorney fees to a prevailing defendant under 42 U.S.C. section 1988 and Arizona state law.  The court held that the means of calculating a fee award are reviewed de novo. Defendants are entitled to fee awards under section 1988 only if the plaintiff's claims are frivolous, unreasonable, and without foundation; and only fees attributable to the frivolous claims are recoverable.  In this case, in which the court held some of the plaintiff's claims frivolous and others reasonable, the district court apportioned the fees defendants incurred for all claims evenly among the claims, and awarded those apportioned to the frivolous claims.  The Ninth Circuit majority held that doing so was error.  The court may award the defendant only the fees that defendants would not have incurred but for the frivolous claims.  The defendant has the burden of proving such fees.  If the defendant fails to carry the burden as to a particular fee, the defendant does not receive that fee.

The dissent opines that this burden of proof makes the already hard to obtain award of defense fees under 42 U.S.C. section 1988 impermissibly difficult.  The dissenting judge argues that the standard of review should be abuse of discretion.  He also points out that the majority's position conflicts with that of other circuits.