Majority Acknowledges Tough Burden Resulting to Defense Under Its “But For” Documentation Test, Drawing a Sharp Dissent from Circuit Judge Bybee.
The next Ninth Circuit decision is an interesting one for defendants seeking fees in civil rights cases. It involves a situation where there were multiple claims, some based on civil rights, some on contract, and some on state law theories. The district judge, in essence, based a fee award on a pro-rata allocation of fees on the number of claims that were comparatively speaking found to be frivolous in nature, reduced by a financial hardship factor (a factor typically recognized in civil rights case fee reduction matters). This pro-rata allocation methodology drew a reversal by the Ninth Circuit, although there was a strong dissent by Circuit Judge Bybee.
In Harris v. Maricopa County Superior Court, Case No. 09-15833 (9th Cir. Jan. 20, 2011) (for publication), the district judge awarded defendants fees of $85,514.84 and non-taxable costs of $40,150.23 (out of a defense request of $315,974.65 in fees and $ 53,533.66 in costs). However, the district judge basically used a formulaic approach of dividing fees equally across the total 10 claims and then allocating to each claim for which he determined fees to be appropriate one-tenth of the total general fees, reduced by a financial hardship factor.
The majority in this opinion did not like this approach, utlizing instead a “but for” documentation test (that is the dissent’s characterization of the majority test). This test means that the defense must establish that attorneys would not have performed the work involved except for the need to exclusively defend against the frivolous claims, even if the work was needed to defend against nonfrivolous claims. Even the majority acknowledged that “the burden on the defendant to establish that fees are attributable solely to the frivolous claims is from a practical standpoint extremely difficult to carry.”
Circuit Judge Bybee, mainly in dissent, did not like this “but for” test at all. He basically believed that the circuit was really siding with an “outlier” decision from the Sixth Circuit (don’t you just love that word) that said a prevailing defendant may not recover fees if the plaintiff has raised even one nonfrivolous claim, running against four other circuits allowing for apportionment in a hybrid frivolous-nonfrivolous case. Judge Bybee believed the court was applying a de novo rather than proper abuse of discretion standard of review which improperly disregarded the district court’s pro rata allocation methodology. He also believed the new “but for” test would make it all but impossible for the defense to apportion fees in a mixed-bag case.
Lots more reading of interest for anyone interested in this area, but we hope that this capsulized version of a 40 page-plus opinion got the job done!
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