Fox v. Vice, Fifth Circuit Case, Is Accepted For Review.
On November 1, 2010, the United States Supreme Court granted certiorari in Fox v. Vice, Case No. 10-114, a Fifth Circuit Court of Appeal decision that, in a 2-1 decision, upheld a fee award against a civil rights plaintiff and in favor of defendants where the federal court found a dismissed civil rights claim was frivolous in nature and where fees were awarded on all claims without segregating out fees for the frivolous as opposed to nonfrivolous claims.
The fee shifting provision is section 1988 of the Civil Rights Attorney’s Fees Awards Act of 1976. The High Court will consider both whether defendants can be awarded section 1988 fees when the plaintiff has also brought nonfrivolous claims and whether it is improper for a district judge to award defendants all of their attorney’s fees under the statute for the cost of defending against nonfrivolous claims that were intertwined with the alleged frivolous federal anchor claim.