The right of a prevailing party to recover statutory attorney fees pursuant to the Civil Rights Attorney’s Fees Awards Act (42 U.S.C. §1988(b)) is a vital aspect of §1983 civil rights litigation. Although most Supreme Court decisions concerning statutory fees have focused on fee awards to prevailing plaintiffs, at the end of its last term the Supreme Court rendered an important decision concerning the right of prevailing defendants in §1983 actions to recover statutory attorney fees. In Fox v. Vice,1 the Court unanimously held that a prevailing defendant in a §1983 action may recover §1988 fees when a plaintiff asserts both frivolous and non-frivolous claims, but only the fees “that the defendant would not have incurred but for the frivolous claims.” Justice Elena Kagan wrote the opinion for the Court.
Law Driven by Public Policy
Section 1988 provides that in actions brought under §1983 (as well as in other enumerated civil rights actions), a court “in its discretion” may grant the “prevailing party…a reasonable attorney’s fee….”2 The Supreme Court recognizes that “Section 1988 serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights.”3 As the Court put it in Fox, “When a plaintiff succeeds in remedying a civil rights violation, …he serves ‘as a “private attorney general,” vindicating a policy considered of the highest priority.’”4
