Fox v. Vice

RESPONDENT:Judy Ann Vice, as executrix of the Estate of Billy Ray Vice, et al.
LOCATION: U.S. Court of Appeals for the Fifth Circuit

DOCKET NO.: 10-114
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 563 US 826 (2011)
GRANTED: Nov 01, 2010
ARGUED: Mar 22, 2011
DECIDED: Jun 06, 2011

E. Joshua Rosenkranz – for the petitioner
Mark T. Stancil – for the respondents
Mark T. Stancil – on behalf of the respondents

Facts of the case

In January 2005, Vinton, Louisiana Police Chief Billy Ray Vice, who was seeking re-election to his post, sent fellow candidate Ricky Fox an “anonymous” letter trying to blackmail him into dropping out of the race. A month later, someone accused Fox of uttering a racial slur and, at Vice’s instigation, filed a false police report regarding Fox’s alleged use of the term. Fox brought a civil rights suit against Vice and the town in state court in December 2005, asserting both state and federal claims, and the case was removed to federal court in January 2006. Separately, in April 2007, Vice was tried and found guilty of extortion in state criminal court for the anonymous letter. In 2007, in response to a motion filed by the defendants, Fox admitted that he had failed to properly present any federal cause of action, so the district court dismissed Fox’s federal claims with prejudice and remanded the remaining state law claims to state court. The district court then granted the defendants’ motion for attorneys’ fees, finding that Fox’s federal claims were frivolous, unreasonable and without foundation. Fox appealed the fee award to the U.S. Court of Appeals for the Fifth Circuit, and in a split decision the appeals court affirmed the district court’s order.


Can a court award attorneys’ fees to civil rights defendants based on a dismissal of a claim when the plaintiff has asserted other nonfrivolous claims?

Media for Fox v. Vice

Audio Transcription for Oral Argument – March 22, 2011 in Fox v. Vice

Audio Transcription for Opinion Announcement – June 06, 2011 in Fox v. Vice

Elena Kagan:

This case concerns the proper interpretation of a federal fee-shifting statute called Section 1988, which allows the courts to award a reasonable attorney’s fee to the prevailing party in certain civil rights lawsuits.

We have held in prior cases that the defendant may receive attorney’s fees under the statute if the suit against him was frivolous.

This case asks us to consider what happens when part of the suit but only part of the suit was frivolous.

Is the defendant entitled to any fees and if so, how should they be calculated?

The case arises out of an election for chief of police in the town of Vinton Louisiana.

The challenger Ricky Fox alleged that the incumbent Billy Ray Vice used an assortment of dirty tricks to try to force him out of the race.

Vice’s various machinations didn’t work.

Fox won the election and Vice was ultimately convicted of criminal extortion.

But Fox, the winner of the election, went on to sue Vice and he asserted both state law claims like defamation and also federal civil rights claims.

Vice, the defendant removed the case to federal court on the basis of the federal claims.

At the end of discovery, Fox, the plaintiff, admitted that his federal claims were not valid.

And the District Court dismissed them, remanding the case to the state court to resolve the remaining state law claims.

Vice once again remember the defendant sought attorney’s fees under Section 1988 on the grounds that Fox’s federal claims had been frivolous.

The District Court agreed with that and then granted Vice fees for all the work his attorneys had done on the suit, the entire suit, even though only Fox’s federal claims were frivolous and his state law claims had yet to be considered.

The Court of Appeals upheld that award.

We now reverse.

We presume that the federal claims here were frivolous and the state claims were not.

And we agree with the courts below that the defendant may receive some fees in a mixed suit like this one where only some of the plaintiff’s claims are frivolous.

But he is entitled only to the fees he paid because of frivolous claims alone.

He is not entitled the fees he would have paid anyway to defend against the nonfrivolous claims.

The test can be stated as a ‘but for’ rule.

He is entitled to the fees that he would not have paid but for the frivolous claims.

This test comes directly from Congress’ purpose in enacting the statute to relieve defendants of the burden associated with fending off frivolous litigation.

So if the defendant’s attorneys would have done the same work anyway, even if the frivolous claims had not been in the suit then fee-shifting is not allowed.

If it were, defendants would be relieved of some of the costs of defending against normal nonfrivolous litigation.

And Section 1988 was never intended to give defendants that kind of windfall.

The courts below failed to adopt — failed to apply this ‘but for’ test.

Fox’s suit involved frivolous federal claims and nonfrivolous state law claims, but all of them were closely related arising out of Vice’s conduct in the campaign and requiring proof of the same basic facts.

So even if Fox have filed only his state law claims, the nonfrivolous ones, it is likely that Vice’s attorneys would have done much the same work, would have taken the same depositions, review the same documents and so on.

And if that is so, Vice is not entitled to fees for that work.

Elena Kagan:

Because the courts below failed to analyze the issue in this way, we vacate the judgment below and remand the case for application of the proper standard.

The opinion of the Court is unanimous.