On June 6, 2011, the Supreme Court decided Fox v. Vice, No. 10-114, holding in a § 1983 case that when a plaintiff's suit involves both frivolous and nonfrivolous claims, a court may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.

After winning an election to become police chief of Vinton, Louisiana, plaintiff Fox sued the incumbent and the town for violation of 42 U.S.C. § 1983, alleging that they subjected him to dirty tricks during the campaign. Plaintiff also raised a number of state law claims, including defamation.

Defendants removed the case to federal court and then brought summary judgment on the federal claims, which plaintiff conceded were not valid. The district court dismissed the federal claims, remanded the remaining claims to state court, and then awarded defendants fees under 42 U.S.C. § 1988 for all work their attorneys had performed in the suit. Even though the state-law allegations had not been found frivolous, the court did not require defendants to separate out the work the attorneys had done on the two sets of claims. The Fifth Circuit affirmed, agreeing with the district court that the litigation had focused on the frivolous federal claims.

The Supreme Court vacated and remanded, holding that under 1988, a defendant is not entitled to fees arising from nonfrivolous charges. The Court held that in allocating fees in a lawsuit having both frivolous and nonfrivolous claims, the proper standard is to allow the defendant to recover reasonable attorneys' fees incurred because of, but only because of, a frivolous claim. The dispositive question is not whether attorney costs at all relate to a nonfrivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation.

The Court held that because the district court's analysis suggested that defendants' attorneys would have done much the same work even if plaintiff had not brought his frivolous claims, its fee award should have taken proper account of the overlap.

Justice Kagan delivered the opinion for a unanimous Court.

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