Harris v. Maricopa County Superior Court

applies only fed- procedure “vir- misconduct to judge’s reflects the rulings erroneous 4. habitual,” judges. See Judicial-Conduct Rule “arbitrary intentional eral tually based on from law” departure DISMISSED. with, or willful “disagreement judge’s to, This can law.” Id. indifference particu- a by pointing done to be

generally to commit judge continued

lar error repeatedly been correct- having after

even appeal.

ed on to pointed here hasn’t Complainant HARRIS, Plaintiff-Appellant, Vernon on that was reversed single decision even close He thus has come nowhere appeal. of disre pattern practice COUNTY SUPERIOR alleging to MARICOPA Supreme Court; COURT; judge either named Arizona garding the law Arizona, charges Defendants-Appel must dis These be complaint. his State 852(b)(1)(B). § lees. missed. See U.S.C. No. 09-15833. that the

Complainant alleges also and prej “series of biased judges issued a Appeals, United States Court of “collectively de rulings” that were udicial Ninth Circuit. deny meaningful access signed [him] Argued and March Submitted courts,” magistrate and that their in his with the defendants judge conspired 20, 2011. Filed Jan. rulings action. Adverse underlying Bivens In re conspiracy. bias or See prove

do Misconduct, 583 Complaint Judicial Cir.2009). And com

F.3d any proof to provided hasn’t other

plainant re See In allegations his of bias.

support Misconduct, 569 Complaint Judicial (9th Cir.2009). 1093, 1093 These

F.3d wholly

charges must also dismissed

unsupported. See U.S.C. 352(b)(1)(A)(iii); Rule

§ Judicial-Conduct

11(c)(1)(D). allegation judges that the

Complainant’s on failed to rule a motion

improperly must be dismissed complaint

amend his fact ruled magistrate judge

because motion, judge ruled and the district

on the motion to reconsider complainant’s See 28 U.S.C.

magistrate judge’s order. (b)(2). 352(b)(l)(A)(iii),

Complainant’s charges because staff must be dismissed

Katherine Baker Diane Born- scheuer, AZ, Scottsdale, for the defen- dants-appellees. HUG, JR.,

Before: PROCTER STEPHEN REINHARDT and JAY S. BYBEE, Judges. Circuit REINHARDT; Opinion by Judge Partial and Partial Concurrence Dissent by Judge BYBEE.

OPINION REINHARDT, Judge: Circuit After forced out he was of his position Appearance as an Hearing Initial Maricopa County Superior Officer for the Court, unsuccessfully Harris Vernon sued Superior Court and the other defen of, alia, dants for violations inter his Rights under Title VII of the Civil Act and the Fourteenth Amendment. Defendants sought attorneys then substantial fees and Harris, costs from were and awarded over $125,000 by costs fees and challenges court. Harris those awards. Our encourage laws individuals to seek relief rights, for violations their civil of and allow a defendant recover fees and costs from a plaintiff only in a civil case exceptional “in circumstances” which “frivolous, plaintiffs are claims unrea Barry sonable or without foundation.” See Fowler, 770, (9th Cir.1990) F.2d (internal marks, quotation citation omit ted); Christiansburg Garment Co. v. EEOC, 422, 412, 694, 434 U.S. 98 S.Ct. (1978). Moreover, L.Ed.2d McCracken, Phoenix, AZ, exclusively Cheri L. for “attributable frivo claims,” the plaintiff-appellant. by lous recoverable defen- court, at City removed the case to federal Corp. v. dants See Tutor-Saliba dant. of Cir.2006) 1055, point filed an Amended Com- Hailey, F.3d which Harris marks, (internal and alterations quotation following in which he made ten plaint omitted). (1) Because the district citation the defendants: breach impermissible (2) method contract; both used an duty good of breach of of and amount of fees determining (3) of and fair dis- dealing; faith hostile and claims for to be assessed (4) costs environment; criminatory race work erred appropriate, fees were and discrimination; (5) light/invasion of false to which of determinations as some (6) in viola- privacy; wrongful termination subject to a fee properly claims were (7) public intentional or policy; tion defendants, award we vacate the award distress; negligent infliction of emotional a new attorneys and remand for (8) (9) defamation; process violation due opinion. with this complies award law; equal protection and under the and

(10) intentional interference with a busi- I relationship. ness 2000, Harris was February In Vernon parties engaged then in several Appearance Hear- as an Initial appointed years discovery legal maneuvering. County Supe- ing Maricopa for the Officer note, County in January Maricopa Of was employment rior Court. No contract dismissed from the Harris’s was lawsuit on Superior between Harris and the executed motion, and in October defendants’ Court, Hearing statute such Offi- judgment pleadings motion for on the cers, Commissioners, serve also known as granted wrongful to Harris’s presiding judge chief pleasure at the of the July In after termination claim. court. 12-213. of the See Ariz.Rev.Stat. both Harris and the defendants filed sum early allegations late 2000 or were motions, mary judgment the district court engaged inappro- made that had Harris summary granted judgment conduct towards female staff mem- priate remaining in a claims sealed order. bers, had secretary perform asked his to af appealed Harris to this court and we him, per- errands for and had personal in a disposition. firmed memorandum In inadequately. his own duties formed v.Super. of Ariz., Fed.Appx. Harris Ct. January February and of Harris Cir.2008). (9th 719, 720-22 denied We leave, investigat- on administrative placed in attorneys defendants’ motion for fees ed, and, option resign- of finally, given in with the with appeal curred connection chose to ing being terminated. He explanation. out comment or resign. to disposition appeal, Prior our of the American, Harris, African then who is attorneys for fees in defendants moved charge Equal Employment filed a with the court. The district court denied district in he al- Opportunity which Commission we prejudice. the motion without After had been leged he discriminated petition rehearing for of race, denied Harris’s on of his sex and his account in appeal, again his defendants moved dis- February dismissed. In which EEOC fees, attorneys seeking court trict for complaint in Marico- Harris filed a of $315,974.65in under Arizona Revised Court, fees County as de- pa Superior naming 41-148RJ) 12-341.0KA) §§ Arizona, and Maricopa Statutes fendants State of 2000e-5(k), Court, §§ County, and 42 1988 and County Superior Maricopa U.S.C. $53,533.66, and expenses Defen- non-taxable of Supreme the Arizona Court. $85,514.84, light in preparation fees and costs for financial reasonable Harris’s petition. hardship. expenses, fee With to prorated awarded a amount court granted requested expenses defendants’ based motion, part part and denied the fee (for the ratio contract-based claims $85,514.84in awarding defendants fees and available) which expenses are not to non- $40,150.23 in It sepa- non-taxable costs. (for which, in contract-based claims it rated defendants’ claims into those des- view, expenses district court’s were avail- contracts-based, for ignated which fees able). There was no reduction prevailing under available defendants expenses hardship, amount of for financial 12-341.01(A) Arizona Revised Statute so timely appealed. however. Harris certain those it long apply; conditions claims, as federal designated civil II for fees are available to which very principal limited circumstances issues this case are 2000e-5(k); §§ legal under U.S.C. 1988 and in nature and therefore reviewed de it law designated and those as state claims novo. Corp. City See Tutor-Saliba sharing operative common nucleus of Hailey, 452 F.3d 1059-60 Cir. 2006); facts the federal Meds, civil claims. also Ramsey see Air L.L.C. Aviation, Inc., It 10, 13, determined most of Harris’s basic v. Cutter 198 Ariz. (2000). including claims of his P.3d 315 primary Harris’s chal treatment, retaliation, disparate equal lenge the methodology is to that the dis frivolous, protection, were not and thus trict court used to determine the amount attorneys that no permissible were of fees attributable to those claims for Similarly, those claims. it determined were appropriate. The remain his defamation and ing challenges tortious interference involve which claims frivolous, claims were and awarded no appropriately subject be the of fee awards. fees on those claims. Harris’s other For requested attorneys Defendants fees of claims found appropriate. fees to be $315,974.65. Some of this amount was al-

Although the specific claims, defendants were able to located to but it was not specifically amounting possible attribute work for the defendants to so allocate $10,000 of attorneys about fees to the majority the vast of the Accordingly, fees. $251,464.10 for which the district court deter- of the fee requested by amount warranted, mined fees to be the district any defendants was not associated with claim, court calculated the specific amount attributable to but instead to assigned was $171,104.84 by these claims to be taking “general a of category fees.” The $251,464.10 “general the fees”—fees court general equally divided these fees that the defendants requested but that across the ten claims Harris’s Amended they not any par- were able to Complaint, allocate to and then for each claim for ticular claim—and dividing equally them appro- it determined that fees were across the ten claims in priate, Harris’s Amended the one-tenth general added of the Complaint, and then to each allocating apportioned fees to that claim much to the claim which it for determined fees to be smaller amount of fees the as- defendants appropriate one-tenth general specifically of the total serted were to the attributable instance, fees. After calculating the amount of fees that claim. defense of For for manner, in this the claim, district court reduced termination wrongful which the half, the award approximately to district court determined was frivolous prevailing plaintiffs Com- to as a matter examining the Amended fees of simply by course, which the district plaint, permitted and on but are to award attor- judgment on granted defendants neys prevailing fees to under defendants March of 15 months pleadings in 2000e-5(k), §§ 1988 42 U.S.C. and as well as to it reached decision before 1481(J), “in only exception- as A.R.S. 41— claims, court calculated other circumstances,” Barry, al 902 F.2d at 773 $25,207.36: fees amount of to be Cir.1990): may $25,146.41 and general from fees $60.95 only fees for that are “frivo- recover was that defendants asserted from work unreasonable, lous, or groundless.” Chris- defending attributable specifically Co., at tiansburg Garment 434 U.S. claim. against that it, put point 694. To a finer S.Ct. only is entitled to “the amount defendant case, rights such as this In a civil attorneys exclusively attributable one, general fees pro-rata allocation of Tu- plaintiff’s to” a claims. See frivolous fee award is claims for which a between Corp., 452 tor-Saliba F.3d at 1064 (quoting an and claims for which such appropriate Jenne, Quintana v. solely on appropriate, based award is (11th Cir.2005)); Vice, see v. also Fox claims, impermissible, the number is (5th Cir.2010) (“a 423, 429 F.3d defendant go to of our civil that the heart reasons only attorneys’ entitled fees for work Congress and the courts rights policy. distinctly plain- which can be traced to a recognized creating broad long have laws, claims”). rights our compliance policy with civil tiffs frivolous This “highest requires policy priority,” adopted expressly in order to avoid dis- bring their civil private individuals couraging bring- from to court. See Newman rights grievances suits, “undercutting] and thus the ef- ing Inc., Enterprises, 390 U.S. Piggie Park Congress vigorous promote forts of 400, 402, 964, 19 L.Ed.2d 1263 88 S.Ct. of’ the civil enforcement laws. (1968). unsuccessful, Even when such Co., Christiansburg Garment 434 U.S. at important an outlet for re provide suits 422, 98 S.Ct. orderly manner grievances an solving achieving resolutions of and non-violent A civil case such as the controversial, inflammato and often highly one that both instant contains non-frivo disputes. Guaranteeing individuals ry, presents and frivolous claims lous to be heard in court instead opportunity fees, problem allocating among those leaving self-help them proper attorneys claims. allocation of remedying injustices perceived means of among such when a defendant respect for law ameliorates the creates fees, simple to recover is both seeks they that individuals feel when be injury obvious, in theory. least Fees have they wronged been because lieve only for and a awarded frivolous sys them as Our society views inferior. bears the of establishing defendant burden awarding attorneys fees in civil tem of asking are that the fees for which it is in large in dedicated “to rights part cases is solely the by fact incurred virtue of need by ... dis encouraging injured individuals against those frivolous to defend claims. judicial relief.” See id. crimination to seek in involving That is because here as cases attorneys generally, fees burden of “[t]he objective, this

In accordance with attorneys attorneys to an establishing award entitlement permitted courts are to by with the claimant.”1 which was solely fees award lies used either defense counsel Trustees Directors Guild America- or the court. Tise, Producer Pension Plans v. Benefits some Although portion of the (9th Cir.2000) (citing by fees awarded to defendants Eckerhart, Hensley v. 461 U.S. 437 n. court—those associated with the claims (1983)). 1933, 76 L.Ed.2d 40 103 S.Ct. that the district court deemed contraets a must Accordingly, defendant demon based awarded Ari claims—were under for which it strate that the work asserts (A) § zona Revised 12-341.01 Statute rath that it is entitled to fees would not have er than rights under the civil fee statutes performed been for the inclusion of the above, applies discussed the same rule to complaint. in frivolous claims To do First, § those claims. 12-341.01 itself court simply otherwise—as when a divides makes clear that fee may a award attorneys a equally defendant’s total fees necessary exceed the amount to defend plaintiffs across frivolous and nonfrivolous against those claims for which such fees claims to the and attributes frivolous civil are appropriate. § 12- See Ariz.Rev.Stat. rights pro-rata claims a share of those 341.01(B). Second, and more important, (with total fees no demonstration such even the designated as “contraets solely fees were in fact in incurred order by based” court allege viola claims)— against to defend the frivolous rights tions of Harris’s civil al requiring plaintiff would be to risk a pay to —Harris leged that defendants breached their con attorneys defendants’ fees in incurred de by tract with him discriminating against feating rights claims, civil his nonfrivolous policy him—and Arizona regard state an our precedent outcome barred attorneys to fees for defendants in civil that of the Court. Supreme pre Unless a rights cases “equally is intended to be vailing defendant can establish that its at protective” of as policy. is federal torneys have performed would not Inc., KTUC, 366, 369, See Sees v. 148 Ariz. work except involved for the need to de Thus, (and P.2d 859 (Ariz.App.1985). under against fend the frivolous claims thus Arizona law impermissible require it is would not have done work whole or plaintiff pay fees that a part prevailing in order defend de fendant claims), part incurred in or in nonfrivolous is not whole de entitled to Where, here, fending against in question. rights fees nonfrivolous civil plaintiff seeks relief for violation claims. Id. It make little of his civil would sense to rights legal under allow a prevailing various theories based defendant to recover all acts, essentially or portion simply the same and a of such number because a frivolous, his claims are not the burden included a contracts-based claim on the defendant to establish that complaint fees are his in addition to his non- solely attributable to the frivolous claims is frivolous civil claims. Accordingly, practical standpoint from a extremely diffi fees that be attributed to carry. cult to That burden is not carried Harris’s contracts claims for purposes of 12.341.01(A) when the method of allocation is that are those that the defen- 1. exception There is no make Christiansburg, reason to law. 434 U.S. at 98 S.Ct. rule, Prevailing defendants in civil cases. general imposing Whether the recovery seeking attorneys proponent burden petition, on the of a fee not, do like cases however, applies rights plaintiffs, to civil is a plaintiffs, important policy vindicate federal question that we resolve in need not this case. transgressor or receive fees from a of federal specific not divided for would instances fees work are able to demonstrate dants the inclusion among incurred for For have been entries different claims. ex- it was complaint. in the Thus claims those pur- the in fees that were ample, $60.95 attribute to the district court to error for to the portedly specifically attributable de- a tenth of the contracts claims each of the against wrongful fense termination fees, that no “general” with demonstration claim was a result of two different time actually performed involved was work legal for One of entries research. those in to defeat those claims. solely order was across four time entries divided claims award, determining its the dis In fee (with quarter one of the fee associated Franklin relied Cairns v. trict court entry that time allocated to each with (9th Cir.2002), Mint, claim), including that claims apportion in which this court allowed found were nonfrivolous. other claims. general among fees ment of words, fee purportedly attributable Cairns, however, was not a civil wrongful to frivolous specifically case, long not our implicate and thus did part in of work termination consisted that civil of solicitude for standing policy for purpose defending was also done they be our insistence that plaintiffs, and claims. against nonfrivolous Defendants only for required to reimburse defendants specific had similar entries for the fees for against “excep in fees incurred defense and, claims, claim, one other for least See Bar tionally]” unwarranted claims. environment, hostile work defendants did Additionally, the ry, F.2d at 773. any performed work not not list that was than general in this case were more fees for both frivolous and nonfrivolous claims. attorneys of the fees ninety percent total specific division of for time Such fees en- reimbursable, ap a factor court found impermissible exactly the tries is for same in Our oth parently present not Cairns. general reasons that division of fees support er cited defendants in case across frivolous and nonfrivolous claims is did methodology court’s also reiterate, only To impermissible. not fees to in a civil concern defendants that be awarded are those incurred See, e.g., Moore case. Hudson v. performed exclusively in order Forms, Inc., for work 898 F.2d 684 Cir. Bus. 1990) provide against a defense claims (concerning sanctions under Rule If do permissible. fees are defendants 11). would not demonstrate the work have The district court made an identical er- in performed order to defend been ror for work respect awarding fees rights, put or to the nonfrivolous specifi- defendants asserted differently, but for the need to defend claims for cally attributable individual claims, fees against the frivolous associat- permissible. In addition which fees were awarded, that work ed with cannot be even “general” to impermissibly dividing the many in part.2 across all defendants Corp. Hailey, City we F.3d at We determined In Tutor-Saliba See 452 1063-64. were not that where a in a that the claims that case "inter- determined alleges multiple they interrelated claims twined” because were “distinct” action facts, easily underlying and some "the merits of each claim could based on the same separately,” significant part and some are evaluated be- of those claims frivolous not, attorneys simple and may award the facts both undis- a court cause were argued separately were puted; to the frivolous claims fees with throughout the case. Id. at 1064. cir- those claims are not "intertwined.” when 974

III Harris’s chief claim with re gard to the fees the for claims for which We next examine the district court’s de- court awarded fees under attorneys fees cisions to award with re- 12-341.01(A) § is that the claims did not spect claims for which to each of the appropriate. determined that fees were out of a proper “aris[e] contract.” The inquiry determining whether a claim A. Contracts Claims “arisefs] out of a is contract” whether the § Arizona Statute 12- Revised “claim could not exist ‘but for’ the breach provides any “[i]n 341.01 contested or avoidance of Ramsey contract.” Air contract, arising express action out of a or Meds, Aviation, Inc., L.L.C. v. Cutter 198 implied, the court award the success 10, 15, Ariz. 1, (Ariz.App. P.3d 315 Div. party attorney ful reasonable fees” in or 2000); By see also A.H. and Through der mitigate “to of the expense the burden v. Property White Arizona and Cas. Ins. litigation just to establish claim or a Fund, 526, 529, Guar. Ariz. 950 P.2d just § defense.” Ariz.Rev.Stat. 12- (1997) (en banc). It is well estab 341.01(A), (B). not, however, It is a fee lished, moreover, that a defendant is enti statute; shifting the Arizona Supreme as tled to if the stated, Court has eligibility “[m]ere [under alleged claims arise out of an contract that 12-341.01(A) not establish ] does entitle proven not to See Chevron exist. U.S.A. ment Wagenseller to fees.” v. Scottsdale Schirmer, Inc. v. Mem’l Hosp., 147 Ariz. 710 P.2d Cir.1993). banc). (1985) (en Instead, a court deciding whether to award fees under the Here, claims for Harris’s breach

statute must consider multifactor stan duty good contract and faith and dard outlined Associated Indemnity Warner, fair Corporation dealing explicitly premised 143 Ariz. were (Ariz.1985).3 P.2d 1181 implicit existence of an contract quite cumstances in case are approach this different. where the appli- Tutor-Saliba is not cable, undisputed The facts simple, necessary are neither apply nor it will princi- be required and the ples research to evaluate and enumerated herein. develop arguments respect many with purportedly Harris's frivolous claims was sub- “(1) Indemnity 3. The Associated factors are: stantially necessary the same to the party’s whether the unsuccessful claim or de- against defense meritorious; (2) his nonfrivolous discrimina- litiga- fense was whether the claims, treatment, including disparate tion re- tion could avoided have been or settled and taliation, Nevertheless, equal protection. party's completely successful efforts were result; because Harris assert superfluous does not that his achieving (3) frivo- lous and claims were nonfrivolous so inter- assessing whether the unsuccess- twined as respect party to make a fee award with ful hardship; would cause extreme (4) inappropriate, the frivolous claims party prevailed we do not whether the successful express reach (5) that issue here and no sought; view as to all the relief any to which if legal presented of Harris's question frivolous claims whether the was nov- might exempted from el reimbursement of and whether claim or such defense have previously defendants' fees Tutor-Saliba. adjudicated jurisdic- under In cases been this tion; particular (6) in which frivolous claims are deter- whether award would dis- mined to be courage intertwined with parties nonfrivolous other with tenable claims or approach may litigating defending Tutor-Saliba defenses legiti- make from it unnecessary particular to examine the incurring work mate contract fear of issues for lia- performed required bility to the extent under attorney's for substantial amounts of above, contrast, rules set forth if at Wagenseller, all. fees.” P.2d at 1049.

975 omitted)). exist, marks and While did not and citations the court found a fee under relied on property for award asserted interest the eligible thus were while Additionally, contract, liberty alleged § 12-341.01. the interest A.R.S. did might reasonably reach courts process different due Accordingly, not. Harris’s as to a whether different determinations was on the dependent claim not existence under the Asso- appropriate fee was award of a contract: it could have advanced factors, we no abuse Indemnity see ciated merely liberty on the asserted interest. in the district court’s decision of discretion Thus, § fees under 12- were not available these two claims. As we to award fees for for claim.4 process 341.01 the due however, above, this is a explained because case, fees, awarding in the rights civil such B. State civil and federal statutes under law in- district court must Arizona legal work that not only fees for clude the fees sought In addition to part or in to performed in whole order 12-341.01, § also sought under defendants nonfrivolous against defend under three civil statutes —Ari Sees, Ariz. 714 148 at claims. See 41-1481(J) § zona Revised Statute 42 Thus, the award of fees P.2d 859. 2000e-5(k). §§ U.S.C. 1988 and Under claim with this must be vacated connection 1481(J), § Arizona Revised Statute 41— as well. prevailing “the court may party allow fee”; attorney’s ... a under 42 reasonable at appropriate Fees were 1988(b), pro § or any U.S.C. action “[i]n (A) for § all 12-341.01 Harris’s due under ceeding provision [42 a of enforce U.S.C. cognizable “To state a due process claim. discretion, 1983], court, may § in its process required claim” Harris was prevailing party, allow the other than the liberty recognized property “a or show States, attorney’s United a reasonable fee Shewry, interest at stake.” Guzman v. costs”; 42 part of the and under U.S.C. (9th Cir.2009) (internal F.3d 2000e-5(k), any proceed § action or omitted). “[i]n and citation quotation marks Rights the Civil ing [Title under VII of alleged deprived that defendants Harris discretion, court, may allow Act] interest property him in continued [Equal other than the prevailing party, apparently claim employment, a based Employment Opportunity] Commission or contract, alleged a interest liberty also but States, attorney’s a reasonable the United from defamation. See id. being free (“A fee.” Fee awards to defendants liberty impli interest is person’s gov all these statutes under three of government charge levels a cated if the the court erned the same standard: impairs reputation his him (internal if it only morality” award finds honesty quotation or Oregon, Agriculture, Dept. waived this Defendants contend Harris Cir.2007). by failing question to raise it Harris argument below. n. 5 suggest court that did in district process claim arises from whether the due fees under 12-341.01 issue, for which injection “purely legal contract might appropriate were the breach of con parties have caused would not good of the covenant of tract and the breach facts,” develop new different International or dealing he did not faith and fair Workers, Aerospace Ass’n Machinists and regarding pro arguments due his make Inc., Airlines, F.2d AFL-CIO Aloha case, clearly. any explicitly cess claim (9th Cir.1986), -733 do purely legal, and the other “where an issue is prejudiced by they would be not contend that prejudiced, party not be we can consid would considering it. our Engquist v. er not raised below.” an issue frivolous, that “the action was to a hostile work on account environment foundation, unreasonable, gender together, even of his race and or without the dis- trict court sepa- treated this claim as two brought subjective bad though not claims, race, rate Co., concerning one one con- Christiansburg faith.” Garment cerning gender. It that 694; Rowe, found Harris’s Hughes v. U.S. at 98 S.Ct. gender-based subclaim was frivolous be- 5, 14, 101 S.Ct. 66 L.Ed.2d U.S. cause it was days filed more than 300 Sees, (1980); “In P.2d at 862. —-the imposed by time limit Title VII —after the determining whether this standard has last act of discrimination alleged by Harris met, a district court must been assess the that the categorized district court gen- as filed, the complaint claim at the time der-based. It did not determine that his post reasoning by and must avoid hoc con- race-based untimely ap- subclaim was that, a cluding because did not —it parently categorized acts within the 300 ultimately prevail, his action must have day window as race based—but that in- been without unreasonable or foundation.” stead it was frivolous because he did not Corp., (quo- 452 F.3d at 1060 Tutor-Saliba allege pervasive severe and conduct based omitted). tation marks race, on his as required would be for relief The district court awarded fees for the under Title VII. on the following they basis that The district court in dividing erred frivolous, unreasonable, were or without two, claim in and treating then half of it as environment, foundation: hostile work frivolous because of Title VII’s statute of light/invasion privacy, false wrongful limitations and half as frivolous for a sub- termination, negligent or intentional stantive reason. Harris claimed that his infliction of emotional distress.5 For each work environment was hostile because of claims, challenges these Harris the dis- against male, discrimination him as a black trict court’s determination that fees were not that he against was discriminated as a appropriate.6 male separate and then suffered discrimi- Hostile work gen- environment based on nation person. black It is perfectly der and race plausible that gender and race could to- Although single Harris made a gether give rise to discrimination in the claim that alleging subjected he had been alleged: manner Harris he claimed that claims) 5. It also found rights that Harris had asserted a under the civil fee claim, disparate impact frivolous because statutes because these state law claims arose identify outwardly Harris failed to neutral operative from a common nucleus of fact with practice disparate impact protect- with a on a a substantial federal claim. In order to reach Regents ed class. See Cal., v. the Univ. Katz conclusion, the district court relied aon (9th Cir.2000). 229 F.3d Har- Circuit, case from Seventh Munson however, Complaint, ris's Amended includes Dirs., Milwaukee Bd. Sch. claim; disparate impact appears no that he (7th Cir.1992). 271-72 Whether fees are properly plead did not the elements of the available to defendants for such claims under claim because he did not make the claim in 1988 and the other civil fee statutes is, however, place. necessary first It open question is an in our Circuit. We do not explore why the district court identified address it here because failed Harris to chal- passed judgment on a claim absent from lenge the district court’s decision on this Complaint, as in the end it awarded no point. Accordingly, our discussion of these respect fees with to it. claims should not be read as an endorsement reasoning The district court found that the defendants of Munson's or of the district attorneys pendant could seek fees for Harris’s court's conclusion. (in state law claims addition to his federal allegations false harassment were related to or all of Harris’s sexual some nonfrivo- lous made him and action was tak discrimination claims. As we have charges already explained, in en on these false because of the a civil action gender. Prej multiple only his race and with some of combination of long promulgated groundless, udiced have a defendant is individuals entitled pernicious image of black men as sexual to those fees attributable exclusively to they defending predators; against plaintiff’s a view do not hold frivolous If men of other back claims. performed racial the work is whole in grounds part to black women. or in with defending or connection See, Alabama, against any v. e.g., Powell State 287 of claims for which of (1932). 55, 45, awarded, may U.S. 77 L.Ed. may 53 S.Ct. not be such work moreover, Courts, properly calculating have shown not be in a fee included award. Accordingly, properly solicitude for claims based on the intersec the fees attributable claim, any, quite to this if categories tion of of would be mini- different discrimina mal. tion. v. Harris See Co. Commu Jefferies Ass’n, 1025, 1032 nity 615 F.2d Action Light/invasion Privacy False Cir.1980) (“discrimination against black fe The district court found Har in the exist even absence of males[could] privacy ris’s false light/invasion claim discrimination against black white men or frivolous because as a “limited purpose women”). public figure privacy had no inter [Harris] in the allegations against est him.” A Nevertheless, the district court person employed by government is determining did in that not err the hostile only a “public official”with limited privacy a work environment claim as whole was interests position when he holds a that work frivolous. A hostile environment apparent importance “has such that claim alia “that requires inter the conduct public has interest” independent an in his sufficiently pervasive was severe to al performance, “beyond general public ter of the employ the conditions victim’s interest in performance the ... all gov ment an abusive working and create environment.” Baer, ernment v. employees.” Rosenblatt Co., Inc., Pav on Trans. Swift 669, 75, 86, 383 U.S. 86 S.Ct. L.Ed.2d (9th Cir.1999). 902, F.3d (1966). law, Under Arizona such a that discriminatory alleged conduct Harris public for false light official cannot sue condition, meeting fell this short of publication invasion of if privacy the about allege did not Harris himself that the con complains perform which he relates to his allegations dition was met. While Harris’s ance of his public duties. Godbehere v. of discrimination were sufficient to make Inc., Newspapers, Phoenix 162 Ariz. a prima disparate out facie case of treat 1989). (Ariz., 783 P.2d 781 VII, they obviously ment under Title were work insufficient for a hostile environment found The district court that claim. public was that Harris was obvious offi sort, opposed of the Although the have erred cial relevant to an ordinary government in that claim Its determining employee. only was frivo- lous, conclusion, however, in awarding support it nonetheless erred for this was a sub- law concerning stantial fees to defendants this claim. set cases enforcement officers, every entry public Almost time fee offi presumptively defendants’ who are (“Police other petition for work related to hostile cials. See law en id. always work claim was forcement are almost personnel environment also listed as officials.”). provide Such cases state statute that does not its own public classified as remedy statutory basis on which to con insufficient violations. See Ariz. by 231-1501(3)(b); the issue raised Harris— Taylor clude Rev.Stat. v. Gra hearing whether a officer or similar low Commerce, County ham Chamber judicial important pub level officer is so (2001). Ariz. 33 P.3d 521-26 public’s lic interest employee Harris identified as the bases for his him “beyond general public interest wrongful termination claim a federal stat government ... of all performance ute and an Arizona statute that provides it “clearly employees” been answered remedy statutory own for a violation. Be —has precedent,” ... as the district court patently cause the result of such a inade required deeming to do before obvious, quate claim is the district court light false claim in this case frivolous. See by determining did not err it was Gibson, at 561 F.3d 929. Even cases Gibson, frivolous. See rights, that do not involve civil we have course, Of the fees properly attributable to extremely been hesitant to find claims claim, placed only this on defendants meritless; higher the bar is still when the burden of examining legal the basic considering the claims of a plaintiff seek claim, requirements for such a which are ing rights. vindication of his civil Tay See statute, set forth on the face of the would Indus, Pure-Gro, 555, lor AG v. 54 F.3d unquestionably quite be small. (9th Cir.1995) (finding claima “wholly despite without merit” nega Negligent or intentional emo- infliction of tive cases from seven other circuits and tional distress Supreme Court because no case in this The district court relied on an held); circuit had so see Hughes also legal erroneous standard to reach its de Rowe, 5, 16 13, 101 173, 449 U.S. & n. S.Ct. termination that negligent Harris’s inflic (1980) (the 66 L.Ed.2d 163 fact that a tion of emotional distress claim was frivo petitioner’s they even where failed lous. Arizona requires law that emotional to state a claim on which relief could be bodily distress in illness or harm” “result[ ] granted, warranted the “detailed” consid negligent order to recover for infliction a page eration of seven district court opin Jackson, of frivolous). emotional distress. Keck v. they ion indicated that were not 114, (1979). 668, 122 Ariz. 593 P.2d light Harris’s false claim in any did not court, According to the district way Harris’s approach futility the level of required claim was frivolous to treat its outcome because he failed to as obvious and the allege in merit; instead, complaint claim his that he had being as without it suffered that, any physical injury; presented question alleged instead he so far as we are aware, has not that he had previously been suffered “severe emotion answered harm,” by any frivolous, however, court. al being “Bodily Rather than distress.” ais performed it salutary concept function broader giv of under Arizona law than ing opportunity a court the might suggested by to address a usage common previously question. unanswered of the term. particular, comprehends “substantial, long-term emotional distur Wrongful termination unaccompanied by any bances” physical prevail injury, To on a see Monaco v. wrongful termi HealthPartners of law, Arizona, 299, 303, nation claim under Arizona a plaintiff Southern 196 Ariz. 1999). must that an employment (Ariz.App. demonstrate re P.2d 735 Div. 2 Accord lationship was ingly, terminated violation of a Harris’s invocation of “severe emo- appears IV complaint in his distress” tional pleading. a matter of sufficient The district also awarded in preparing fees incurred their is, sufficiency perhaps, reflected This attorneys motion for fees. This court has judg- did not seek that defendants the fact prepar that fees can be recovered for held claim. On as to this pleadings on the ment attorneys a motion for fees under 42 ing it was unreason- we note that point, 1988(b) 2000e-5(k). §§ U.S.C. See seek, and for the the defendants to able for Nev., County 67 F.3d McGrath v. attor- grant, court to substantial district Cir.1995) (§ 1988(b)); Manhart v. that Harris failed ground ney’s fees on City Angeles, Dept. Los Water and his claim element of plead required (9th Cir.1981) Power, challenge failed to when defendants (§ 2000e-5(k)). Similarly, Arizona law point at an earlier as insufficient pleading recovery attorneys supports the fees for proceedings. in the preparation applica of a successful fee generally Schweiger tion. See v. China a differ district court made The Rest., Inc., Ariz. 673 P.2d Doll Har ent but related error (1983). are, 931-32 Such awards infliction of emotional dis intentional ris’s course, subject to the same reasonableness court found this tress claim. attorneys all determination as other because “Plaintiff al claim to be frivolous awards, including considering the results Complaint that he lege[d] in his Amended by party seeking the the award. obtained harassment, falsely of sexual accused Blanchard, 489 91 n. 5. On re See U.S. tarnished his allegations that and such mand, the district court shall evaluate the com and it was clear from reputation,” fees for defendants’ fee motion whether conduct was not sufficient plaint that “this proper light opinion, are still of this and claim,” requires an IIED bring ultimately amount of fees that should outrageous” by conduct “extreme and awarded, any. if earlier, however, years defendants. Four grant the defen deciding when whether V the dis judgment pleadings, on the dants claim, challenges also the district exactly Harris trict court said of the same expenses. of nontaxable De- Defen court’s award allegations regarding “Plaintiffs’ $53,533.66 in nontaxable conduct, true, sought fendants may if suffice for dants’ computerized legal re- expenses such as outrageous conduct.” extreme search, investigation, photo- cau factual Christiansburg, Supreme Court court, noting that copying. The district courts must “resist tioned district not available under Arizona engage expenses temptation to understandable 12-341.01, that, § Ahwatuk- Revised Statute see by concluding be post reasoning hoc Ass’n, Inc. v. Mgmt. ee Estates ultimately prevail, Custom cause a did Bach, Ariz. 973 P.2d action must have been unreasonable his (1999), expenses awarded for the claims Christiansburg, 434 foundation.” without Here, designated arising as not from a 421-22, 98 S.Ct. U.S. did not Because defendants succumbed contract. appears court to have by a claim expenses their of break down very temptation understandable to the basis, simply “pro- claim the district warned. Supreme which the Court by the dis- expenses: rated” defendants’ cannot stand on as to this claim fee award count, two and one-half of trict court’s court. by asserted ground contract-based, incurred, claims were they Harris’s ten the claims for which were not, plainly and seven and one-half were so insufficient. district court awarded defendants 75% of VI they expenses reported. Harris’s briefs are scattershot af challenge po Harris does not issues, fairs containing many numerous availability tential expenses prevail to a insufficiently which are developed. Those ing part attorney defendant as of an fee issues that we previously have not ad award under Arizona Revised Statute Only dressed lack merit. requires any one 41-148KJ) §§ and 42 U.S.C. 1988 and discussion. Harris contends that because 2000e-5(k). does, however, correctly He we denied attorneys defendants fees for expenses contend that are recoverable appeal his of the dismissal underly of the “part fees,” attorney’s of the award of action, ing the district court was barred Marhoefer, Harris v. 24 F.3d awarding attorneys from by the law of Cir.1994), and thus that the case doctrine. prior Our decision not recover their out-of-pocket expenses only attorneys to award fees to defendants for respect

with to claims for which appeal Harris’s of the district court’s words, fees were recoverable—in other summary judgment award of in favor of Harris’s frivolous and not simply defendants included no determination that all of his non-contractual claims. The dis would bar an attorneys award of by court, trict accordingly, erred awarding case; the district court for the underlying expenses to claims for which we simply exercised our discretion and attorneys no award of appropri fees was declined to award fees for work done on ate. appeal. Bible, See Thomas v. (9th Cir.1993). 152, 154 Additionally, the district court equal erred expenses division of VII Again, across claims. because expenses above, For the reasons stated we vacate part attorneys award, are of the they fees attorneys the award of fees and remand to recoverable on the terms on the district court for further proceedings which attorneys fees are recoverable. consistent with opinion. this Thus, only expenses those are recoverable that the defendants can demonstrate were VACATED AND REMANDED. solely respect incurred with to frivolous BYBEE, Judge, Circuit concurring in claims and that would not have been in the judgment part, in but mostly in part curred whole or in with dissenting: any of the nonfrivolous claims.7 Defen expense petition, dants’ which does not Corp. City Tutor-Saliba v. Hailey, (9th allocate expenses defendants’ substantial Cir.2006), 452 F.3d 1055 we held that note, additionally, 7. We expenses professional notation "for services rendered” by woefully submitted defendants were lack- company. on the invoice from the This show- instance, ing although detail. in For the in- ing requirement falls short of the party that a Research, Investigative voices from Inc. sub- seeking expenses to recover submit a "task- mitted defendants ran into the thousands based” statement in which it "identifies] dollars, the claims for which these ex- expense particu- each related nontaxable identified, penses were incurred were not larity” expenses so that such can be verified. application nowhere in expenses for Arizona, See District of Local Rule of Civil description performed by there a of the work 54.2(d), (e). Procedure Research, Investigative Inc. other than the Seventh, and Eleventh Circuits have held may be awarded to de “attorney’s fees rights] action frivo in civil in a when cases [civil fendant joined with claims that are claims are attorney’s lous recover fees even when the gave we Id. at 1063. What not frivolous.” plaintiffs frivolous claims are intertwined Tutor-Saliba, today. The away we take with nonfrivolous claims. See Ward v. trig holds that civil cases majority (1st Cir.1993); Hickey, 996 F.2d 448 Fox scrutiny level of of defen ger an additional (5th Vice, Cir.2010), v. 594 F.3d 423 cert. — attorney’s scrutiny dant’s U.S. -, granted, 131 S.Ct. fees— that the beyond requiring prove them to (2010); Curry v. A.H. L.Ed.2d 369 Robins “frivolous, claims were unreason (7th Co., Cir.1985); Quintana 775 F.2d able, foundation.” Christians or without (11th Jenne, Cir.2005); F.3d 1306 EEOC, burg Co. v. 434 U.S. Garment (11th Medford, Head v. 62 F.3d 351 Cir. (1978). 54 L.Ed.2d 648 98 S.Ct. 1995). The one clear outlier is the Sixth entirely upon conception its own Relying Circuit, adopted which has a rule that a majority fabri rights policy,” of “civil may not recover at defendant case, “In a new rule: a civil cates if torney’s has raised even one, pro-rata allocation of as this such one nonfrivolous claim. See Balmer v. Maj. impermissible.” ... general fees HCA, Inc., 606, 616-17 Cir. 971; also id. at 1098. Hence Op. at see 2005). majority not agree The does out forth, may not recover attor a defendant any of these right with circuits—thus en it that “fees ney’s prove fees unless can abling split position is closest —but [incurred] not have been would plainly to the Sixth Circuit’s unreasonable at of non frivolous claims.” Id. inclusion anticipate can guidance rule. We further added). majority has (emphasis Fox, from the Court when decides a case away right so whittled defendants’ recently granted a writ which it of cert that defendants receive iorari.1 any recovery is should reconsider whether (“the I I Maj. Op. Although, explain, at 972 burden concur possible. See part, respectfully disagree to establish that fees are I judgment on the defendant solely majority’s reasoning to the frivolous claims is bulk attributable with the extremely practical standpoint from a diffi judgment. of its disagree I with this double carry”). cult to rights plaintiffs to civil because it is

bonus I only extralegal counterproductive, and “go to the heart of our for reasons position Vernon Harris held an at-will id., rights policy,” but for reasons (or Hearing Appearance Initial Officer go to the heart of the administration Commissioner) Maricopa County Su- justice. perior Court. Within five months of his investiga- appointment, Harris was under majority joins the short side of an

The engaged that he currently complaints be- tion for had existing split circuit that is First, Fifth, inappropriate conduct toward female staff Supreme Court. The fore improper all presented Is it to award defendants issues in Fox are 1. The two attorney’s they incurred in attorney’s 1. Can defendants be awarded 1988, § an action under where the fees § in an based on fees under action claim, spent defending were nonfrivolous plain- where the a dismissal of a that were intertwined with the interrelated and tiff has asserted other claim? frivolous nonfrivolous claims? attorney’s that “some award of personal court staff for his cor- fees is using and Superior After the Court respondence. deterrent, necessary to serve as a or to that Harris had violated the determined ensure that future defendants and judicial engaged in canons of ethics and courts are not saddled with frivolous and conduct, Superior unprofessional Court Ultimately, unsuccessful claims.” resigning being him the or gave option $85,500 court awarded the defendants resigned. fired. He $40,150.53 attorney’s fees and costs. brought Harris then suit attorney’s represent The about Court, Superior Supreme the Arizona percent requested. of the fees Court, Maricopa County (collectively, “Maricopa County”). He accused the de- II fendants of various forms of breach of termination, contract, wrongful infliction of majority opinion in multiple errs distress, privacy, violation of emotional ways, way flatly but in this first: mis discrimination, race and hostile work envi- states the standard of review and then gender. All ronment based on race ten applies wrong way standard all the dismissed, eventually of his claims were we long down. We have held that we review judgment, affirmed that and the defen- the district court’s determination of attor sought attorney’s dants fees under Arizona ney’s fees abuse discretion. See law. The sought U.S. Corp., Tutor-Saliba 452 F.3d at 1059. $316,000 roughly in fees with almost applies aspects This standard to all of our $54,000in costs. The district court award- review, including review of the district ed fees under Arizona law for a half court’s decision to two and claims based on contract. award fees under Ari remaining Of the seven and a half civil law, zona state Chevron U.S.A. Inc. v. the district court found that Schirmer, (9th 11 F.3d Cir. non-meritorious, all were only four 1993); the district court’s decision that were Faithfully following frivolous. Chris- particular “groundless” claims are or “un tiansburg, the district court held Mar- law, reasonable” under state Cairns icopa County could recover fees on Co., Franklin Mint 292 F.3d Harris’s frivolous claims. The court re- (9th Cir.2002); the district court’s decision duced the fees requested by County by to award fees under Benton v. apportioning time between compensa- Com’n, Oregon Student Assistance non-compensable ble and claims. In an Cir.2005); F.3d discretion, equitable exercise the dis- decision that court’s constitutional claims trict court further decided that it would frivolous, Corp., Tutor-Saliba not award fees for a disparate frivolous 1061; the district court’s decision to impact claim sufficiently because it was preparation award fees for the of the mo disparate related to treatment and retalia- fees, attorney’s tion for McGrath v. Coun claims, which, tion although not meritori- Nevada, (9th 248, ty 67 F.3d 253 Cir. of ous, Using were not frivolous. the lode- 1995); and the district court’s con decision method, fees, star the court calculated the cerning the manner in which to calculate adjustments, with various at about fees, Eckerhart, Hensley awarded v. $171,000. The court declined to enhance 424, 433-34, 1933, 461 U.S. 103 S.Ct. 76 the lodestar and then reduced the lodestar (1983); Cairns, 40 by roughly L.Ed.2d 292 F.3d at percent plain- 50 because of the hardship, tiffs financial although finding 1156-57.

983 preclude awarding it from majori nity did precedent, the our clear Despite fees). attorney’s way to the district interest on unwilling give ty is principal issues anything: “[t]he court on be, may “elements” it is these Whatever in nature and there legal in this case calculation that the method of fee clear Maj. at 970. Op. novo.” reviewed de fore proper an element and that the not such derives this de majority apparently The review is for abuse of discre- standard of from what has of review novo standard 432, Hensley, 461 U.S. at 103 tion. See attorney’s in boiler-plate language become Cairns, 1933; 292 F.3d at 1156-57. S.Ct. analysis legal “Elements of opinions: fees figure that statutory interpretation and Ill attorney’s fees de court’s into the district Tutor- de novo.” cision are reviewable a new rule for majority establishes 1059, quoting F.3d at Corp., 452 Saliba prevailing attorney’s defendants who seek Developmen Department v. Richard S. of in in which at least one claim is fees cases California, 317 State tal Services of of the civil laws. I have two based on (9th Cir.2003), 1080, citing F.3d 1086 First, object objections. generally I to the Inc., 1115, 214 F.3d Fischer v. SJB-P.D. effect, majority, counting in double Gates, (9th Cir.2000), citing v. Corder 1118 defendants must bear. burden successful 247, Cir.1996), quoting 104 F.3d Second, object I to the specifically “but Pasadena, 53 F.3d Kilgour v. City of majority for” test the creates. (9th Cir.1995), Cabrales v. quoting F.2d County Angeles, Los A (9th Cir.1991), Bolger, quoting Hall disagree prevailing I defendants’ (9th Cir.1985). 1148, 1150 We 768 F.2d attorney’s in ability to civil recoup a stan boilerplate never cited the have beyond rights cases should be burdened attorney’s in standard of review dalone by existing case law. that called for Sec- cases. distinguish does not be- tion 1988 itself Rather, review is the standard de novo right prevailing plaintiffs tween range legal help issues that for narrow prevailing that of defendants to recover scope of the district court’s dis- define 1988(b) (“In attorney’s fees. U.S.C. Supreme explained As the Court cretion. to enforce any proceeding [civil action or the district court the standard: “necessari- discretion, laws], court, in making” the determi- ly has discretion ... prevailing party allow the a rea- how to calculate the attor- nation about fee”) added). attorney’s (emphasis sonable award, neys’ this discretion fee reasons, the Su- pro-civil rights policy For the consider- light “must be exercised later restricted preme Court Hensley, 461 ations we have identified.” ’ fees, al- access to cases at 103 S.Ct. 1933. Our U.S. lowing them for the defense of “frivo- have reviewed certain demonstrate we lous, unreasonable, ... founda- they awards de novo when issues fee Christiansburg, claims. tion[less]” legal analy- to some “element[ ] relate Thus, “expressly (review- U.S. at 98 S.Ct. 694. Cabrales, sis.” discouraging to avoid order court’s denial of fees based ing the district suits, thus un- bringing from precluded legally on its decision that it was also, Hall, dercutting Congress pro- the efforts of fees); e.g., awarding from see the vigorous enforcement of civil mote the (reviewing at the dis- 768 F.2d (internal laws,” Maj. Op. at 971 sovereign rights immu- holding trict court’s that omitted), Christiansburg, ing rights may play by a civil claim after quotations only re- plaintiffs everyone defendants unlike different set of rules from else. —can exceptional in attorneys cover their costs Our decision here conflicts with the deci- circumstances, for frivolous claims. sions of at least four other circuits. Al- have shouldered the Once defendants though acknowledged these cases have extraordinary demonstrating of burden difficulty calculating attorneys’ that just were not merit- plaintiffs’ that claims in fee awards cases which frivolous and frivolous, less, they are entitled to rights nonfrivolous civil claims are inter- every- attorney’s fees on the same basis as twined, they concluded that defendants are justification in one else. There is no precluded receiving not from an award. a double burden on imposing 1988 for First, Fifth, Seventh, Accordingly, apply defendants. And we should not have that prevailing Eleventh Circuits held Supreme policy Court’s considerations recoup defendants must be allowed to not, including where it has to our review of defending against cost of civil frivolous in which district courts allo- the manner rights if in- even those claims are so, hamper cate fees. When we do we terrelated with nonfrivolous ones. ability equitable to make district court’s decisions to accommodate the on-the- Ward, In 996 F.2d the First Circuit ground litigation realities of with which we expressly held the interrelatedness of addition, are much less familiar. we frivolous and nonfrivolous claims rewarding raising risk for deny attorney’s be used as a reason to fees groundless litigation against and frivolous prevailing plaintiffs rights civil cases. cash-strapped Maricopa defendants like Id. at circuit 455. The court reversed the County, spend who must then their limited district court’s denial of defending against funds unreasonable because of the lower court’s “reliance on straining capacities claims. risk We doctrine,” the interrelated claims a doc- prevent defendants to and redress real trine that grant enables court to a fee rights grievances. poli- civil Even our own “includ[ing] per- award fees for work cy by hindering interests are not served formed on if par- unsuccessful claims ability require plain- the district court’s ty’s unsuccessful claims are interrelated to clog- tiffs like Harris to bear the costs of by the successful claims a common core ging groundless our courts with and frivo- facts or legal related theories.” Id. The litigation. lous See Munson v. Milwaukee First Circuit held that the district court Directors, Bd. Sch. doctrine, improperly had relied on the de- (7th Cir.1992) (“[W]hen rights a civil suit is nying all ..., lacking any legal or factual basis an allowing “frivolous civil claims award of fees to the defendant clearly judicial waste resources that would [to] appropriate to deter filings frivolous and to legitimate otherwise be used for claims.” ability ensure that of the courts to Id. The First Circuit concluded: dis- “[A] remedy civil violations is not re- deny trict court should not fees for defend- stricted dockets crowded with baseless ing merely frivolous claims because calcu- (alterations (cita- litigation.”) original) lation would be difficult.” at Id. 455-56. omitted). Finally, tions majority’s de- The circuit court remanded to the district cision legitimate diminishes recalculation. Id. by suggesting that we cannot even distinguish presented question between with the nonfrivolous and out- When right anyone fil- attorneys’ frivolous claims and fee award for interrelated frivo-

985 claims, that rights Seventh Circuit reasoned such fees and nonfrivolous lous “to be a prevailing with the First were merited because agreed Fifth Circuit Vice, § party party pre- under a need not In Fox v. 594 F.3d Circuit. — U.S. -, Cir.2010), significant 131 vail on all issues if a one is granted, cert. (2010), (alteration, quo- resolved in its favor.” Id. L.Ed.2d 369 S.Ct. omitted). marks, tation that “a defendant does and citations Fifth Circuit held an entire suit in prevail have to over not Likewise, the Eleventh Circuit has re- for frivo attorney’s to recover fees order peatedly prevailing held that defendants requiring § 1983 claims” because oth lous must be able to recover fees associated “would undermine the intent of erwise with the defense of frivolous civil plaintiffs prosecute to Congress to allow claims, if claims even those are interrelat- consequences frivolous claims without Quintana, ones. ed nonfrivolous See joined merely those claims were because Head, 1312; 414 F.3d at In F.3d 351. non-frivolous claims.” Id. with additional Quintana, the Eleventh Circuit affirmed (quoting Corp., Tutor-Saliba at 428 court’s decision award fees Quintana, (quoting at 1064 414 F.3d F.3d retaliation, for a claim of which the court 1312)) (internal quotation marks omit at frivolous, had found was but reversed the ted). Quoting opinion from our in Tutor district court’s decision award fees for a noted, the Fifth Circuit Corp., Saliba discrimination, claim of which the court a rule also make a defen would “[s]uch had found to be not frivolous. The Elev- attorney’s dant’s entitlement fees ‘de clear, however, enth Circuit made that it upon not a district court’s review of pend holding was not “that a civil rights defen- merits of a may attorney’s dant receive for an upon how a chose to draft his unsuccessful claim that is not frivolous” ” Tu complaint.’ (quoting Id. at 428-29 holding because a would frustrate “[s]uch 1064). 452 F.3d at Corp., tor-Saliba that goal Congress provisions Quin- adopted vigorously.” a simi- Title VII be enforced The Seventh Circuit has tana, Rather, Quin- awards for interrelated F.3d at 1312.2 position lar on fee tana, upon the Eleventh Circuit relied frivolous and nonfrivolous civil Head, may precedent the earliest circuit own which established claims. what issue, it Curry, province on this was the of the district opinion ... “properly weigh a court to and assess the Seventh Circuit affirmed realistically the amount of granting court decision fees to case, solely exclusively and to the in a civil even attributable defendants plaintiffs” frivolous claims. 62 F.3d at though the claims for which the defendants Thus, in fees were interrelated with other the Eleventh Circuit merited although prevailing might properly claims “which be char- well established not recover the costs of acterized as frivolous.” Id. 220. The upon and Recommendation on Defendant’s Motion 2. Based the Eleventh Circuit’s reason- Costs, ing, Attorney's on remand the district court conducted Fees and Additional "splitting] majority pro 0:00-cv-07878, (S.D.Fla. rata at 2 Doc. 138 Dec. calculation — billing entries in half because defense 0:00-cv-07878, 29, 2005), adopted by Doc. spent equal counsel amount time (S.D.Fla. 2006). suggest Jan. I defending against Plaintiff's [nonfrivo- both pro rata calculation was well this sort of (Counts II) [frivolous] claims I and lous] Quin- court's discretion in within the district IV)” (Counts stood [III] —which tana, as it is here. Quintana Jenne, appeal. Report without rights majority’s nonfrivolous civil tion of fees. The new “but for” defending against claims, the costs of rule has never been our they must recover rule. ones, ap- defending against frivolous Cairns, In 292 F.3d that a we held portionment district courts may pro district court make a rata alloca- make, even cases which equipped to general tion of fees. affirmed the We compensable claims are interrelated pro district court’s decision to make two ones. non-compensable first, rata allocations: publicity as between First, Fifth, circuits—the Each of these claims, second, and trademark and Seventh, prevailing and Eleventh —allow among the trademark claims. As to the defendants to recover the costs of defend- allocation, first the district court found ing frivolous civil claims un- right that because the claim publicity presented der such as those circumstances interlocutory appeal was held on while the fact, today. have to us In so we. See trademark full required litigation, claims it at In Corp., Tutor-Saliba 452 F.3d 1064. appropriate one-quar- was more to allocate holding contrary, majority to the has general ter of the publicity fees to the rejected precedent, our own as well as the three-quarters claim and to the trademark reasoning majority of a of other circuits.3 at claims. Id. 1158. As to the second allocation, the district court found that be- majority opinion impos-

Inasmuch as the one cause of the three trademark claims es an additional burden on prevailing de- was unreasonable and was therefore not beyond fendants in civil cases— recoverable, id. at it appropriate imposed by Chñstiansburg and in contra- to reduce the trademark claim fee alloca- precedent majority vention of our and the one-third, thirty percent. tion about respectfully disagree. of circuits—I Id. at 1156. The then re- duced the award equitable based on other B considerations. Id. 1158-59. Once defendants have carried Cairns, heavy their burden establishing In we divvying— held this frivolous, they including claims are should the district court’s decision to be entitled to fees on the same unspecified general money divide fee into prevailing plaintiffs. basis as The parts, catego- manner two because there were two claims, in which the district court awards fees to ries of and then to divide one of parties who are entitled to fees for parts, some those halves into three because claims, but not other is committed there were three sub-claims—was not an to the district court’s sound In discretion. abuse of the district discretion to court’s general, district court does not apportion claim-by-claim abuse its fees on a basis. Indeed, discretion pro when makes a rata alloca- impos- we “cautioned.... that ‘the only holding contrary circuit to the twined and since the continuation of the Circuit, the Sixth and it bars such awards § past discovery 1983 claim had scant HCA.,Inc., outright. Balmer v. 423 F.3d effect on the time and other resource costs of ("[I]n Cir.2005) 616-17 this circuit attor- litigation, the defendants would not be neys’ may not be awarded to defendants entitled to an award of even if con- where the has asserted at least one past discovery § tinuation of the were claim”). non-frivolous The Second Circuit’s frivolous.”). We noted Colombrito in Tutor- ambiguous specific rule is more and be Corp. rejected Saliba and it in favor Kelly, to the case. See Colombrito Quintana. reasoning Eleventh Circuit’s (2d Cir.1985) ("Since [§ See 452 F.3d at 1063-64. 1985(3)] closely were inter- apportionment meaningful purposes distinguish- sibility making exact non-eompensa compensable ing my Caims from civil cases. [between view, does not relieve the district claims] ble Caims should control our discussion duty attempt to make some court of its here. in an effort to reflect adjust the fee award getWe into this discussion about Caims ” (quoting at 1157 apportionment.’ an Id. fees, general and the allocation of Gracie, 1060, 217 1070 v. F.3d Gracie course, because the defendants did not Cir.2000)). upon that Relying expressly claim-specific documentation for provide affirmation, court here did all of their fees. Defendants do have a district court did—it used what Caims responsibility to entitlement “establish[] unspec rata the pro its discretion to divide attorney’s to an fees’ award.” Trustees general money among ified fee the various Directors Guild America-Producer apportionment” to “reflect an as a Tise, Pension Plans v. Benefits equitable for further accom starting point (9th Cir.2000) (“The 415, 427 burden of modations. Id. establishing attorney’s entitlement to an majority argues that Caims opinion The claimant.”) solely fees award lies with the prec not relevant —and is therefore not Eckerhart, (citing Hensley 424, v. 461 U.S. edential —because Caims “was not civil 12, 1933, 437 n. 103 76 S.Ct. L.Ed.2d 40 case, rights implicate and thus did not our (1983) added)). (emphasis But unlike the of solicitude for civil longstanding policy majority, who responsibili- believes such a rights plaintiffs, and our insistence that ty grows rights policy out of civil consider- they required to reimburse defendants may plaintiffs ations and therefore affect only for fees incurred in defense differently, and defendants I recognize ‘exceptionally]’ unwarranted claims.” always imposed this burden is on the Maj. Op. argument at This is smoke claimant, fee whether or defen- Although and mirrors. Caims was not a dant. case, case, rights civil it was a Lanham Act Although require this case not

which, cases, like pre civil allows plaintiffs we decide what a burden for vailing defendants to be reimbursed for be, Maj. Op. documentation would see at cases,” only exceptional “in n.l, majority reprieve 972 seizes this meaning “groundless, un cases that are impose asymmetrical an burden on defen- reasonable, vexatious, pursued or bad adopts unprecedented, dants. It bur- Cairns, (quoting faith.” 292 F.3d at 1156 densome “but for” documentation rule: Avery Corp. Sumpton, Dennison v. 189 “Accordingly, defendant must demon- (9th Cir.1999) 868, F.3d (quoting 881 Ste strate that the for work asserts Servs., Inc., Boney, Boney Inc. v. phen W. that it is entitled to fees would not have (9th Cir.1997))). 127 Though F.3d performed been for the inclusion of the language slightly this differs from that complaint.” Maj. frivolous claims applicable to civil cases—the Lan added). majori- atOp. (emphasis ham Act affords fees for claims that, ty expressly acknowledges itself un- unreasonable, vexatious, “groundless, or id., punishingly der its strict formulation of faith,” pursued in bad where principle, “frivolous, unreasonable, “the burden the defen- claims that are practical standpoint dant ... is from a give can without foundation” rise to attor extremely carry.” Maj. ney’s Op. difficult to fees for defendants cases, heightened 972. This burden on defen- Christiansburg, 434 U.S. at majority. It originates S.Ct. 694 — the difference does not seem to dants with the to the in a statutory attorney prevailing party fees” of the relevant grow out does law, neither of which language arising or case “contested action out of a con- except for the Christians- indicate tract.” Based on this state statute and the that — kinds of claims exception to what burg identified the Arizona Su- seven factors merit fees for being relevant to such a preme defendants — Court differently treated are to be award, discretionary see In- Associated fee awards. U.S.C. application their Warner, Corp. dem. 143 Ariz. 1988; Directors Guild Trustees (1985), the P.2d Pension America-Producer Benefits attorney’s awarded the defendants fees for Tise, F.3d Cir. Plans two and a half claims it determined arose 2000). reason, disagree I with For this (1) (2) contract; of contract: breach of out imposes insofar as it a majority opinion the good breach of covenant of faith and fair on the defendants documentation burden (3) dealing; process property the due to a applied that not be likewise would half of count nine in Plaintiffs interest prevailing plaintiff. Complaint. It found that the Amended awarding party a recognize I that contract claims were frivolous because provide despite claim-specific its failure to Harris did not have a contract. The due allowing party that to documentation risks similarly claim was infirm because process non-compensable for reimbursed employee Harris was an at-will and thus problem a that affects claims. But this is in potential property lacked a interest his within the both and defendants employment. (and without). And, rights context for civil reason, it with as is one which district majority agrees The the contract confronted, I repeatedly courts are would the claims are frivolous but vacates award defer to the district court’s discretion to Maj. anyway. Op. at 975. It reasons that in determine that the fees awarded this impermissible “under Arizona law it is an measure of the appropriate case were require pay pre- fees that a defending compensable work done vailing defendant incurred in whole or in claims. part defending against nonfrivolous civil Maj. Op. (citing claims.” at 972 IV KTUC, Inc., Sees v. 148 Ariz. 714 P.2d law jerry-rigging applying After (1985)). problem The with this unstatutory rule documentation majority statement is that is false. The defendants, majority ap- own, has conflated its new civil at- scrutiny plies microscopic to the district torney’s fees rule with contractu- Arizona’s I Although disagree court’s decision. attorney’s al claims fees rule. The Sees majority’s effort to nickel-and-dime to § case deals with fees under ARS 41- award, I agree death defendants’ do 1481(J) 12-341.01(C), § and ARS neither of the district court’s actions deserve two are which contract-related my I present claim-specific remand. con- Here, provisions. Superior Court cerns and concurrences below. I address sought the district court awarded— —-and the contract then claims first and the civil fees for contract-based claims under ARS rights claims. 12-341.01('A) added), (emphasis § A was not at issue in Sees and was not there at law, rights policies burdened with the civil Under Arizona 12- ARS 341.01(A), Therefore, majori- courts can all of the award “reasonable issue Sees. ty*s to Sees in its contract claims both evidence defamation and cites evidence relying upon analysis inapposite. that he was terminated or expe- otherwise Sees, majority projected its own has rienced an “right alteration some or contract rule onto Arizona Here, new recognized by status law.” Harris for precedent law. There is no Arizona terminated; resigned. he There- majority’s move. fore, Harris must relying upon have been right the “alteration of or some status majority pro- also vacates the due recognized by state law” language his plaintiff may claim award because the cess liberty process interest due claim. In this “liberty being referenced a interest in have case, identify Harris could not what he was free from defamation” addition his relying upon “right or status recog- employ- interest in continued “property majority nized state law.” The Maj. Op. say “may n.4. I doesn’t ment.” identify my part, one either. For I majority acknowledges have” cannot because “right think of what process recognized that Harris did not contest the due status by state the “explicitly clearly,” plaintiffs liberty award or but decides to law” interest on, claim anyway process reach out for these issues because due would rest other Here, purely Id. legal.” alleged the “issue is than the contract. Because the again, majority the misstates both the liberty process interest due standard review and law. We are upon alleged claim must have relied his discretion, reviewing for abuse of and right to employment, the district court did questions when the issue involves such not its discretion in lumping togeth- abuse a claim whether is frivolous and whether plaintiffs property er the liberty and inter- it, plaintiff even contested the issue is claims, process est due identifying them as “purely legal.” See Tutor-Saliba contract-based, being awarding and 1061; Cairns, Corp., 452 F.3d at 292 F.3d 12-341.01(A). § for them under I would at 1156. attorney’s affirm the fees awarded under 12-341.01CA). §ARS event, majority

In any ignores acknowledge to that even Harris’s fails

liberty process required interest due claim B contract, employment of an or some proof to the civil I With “right by other or status recognized state agree majority with the the fee law,” for it to be As we made successful. for the federal civil awards Monroe, 1068, Wenger clear v. 282 F.3d § 42 under U.S.C. U.S.C. (9th Cir.2002), “injury reputation to 41-1481(J) 2000e-5(k), § and can ARS standing alone does not violate the Due be construed under a common standard. of the Process Clause Fourteenth Amend- Joyner, See Hewitt 940 F.2d Rather, ... process protections ment. due (9th Cir.1991); Sees, 714 P.2d at 862. apply only subjected if a ” (1) eight There are claims here: hostile plus.’ Stigma plus requires that ‘stigma (2) environment; discrimination; work race defamatory allegedly statement have (3) (4) light/invasion privacy; false been “made in connection with the termi- (5) termination; wrongful negligent and employment or the alteration of nation distress; intentional infliction of emotional right recognized by some or status state (6) (7) defamation; words, equal protection4; law.” Id. In other Harris needed Although equal protection nine in Harris's First Amended Com- is listed here as count claim, actually represents plaint. one it one half of Maj. at 977. (8) improperly Op. awarded fees. business interference tortious majority’s new addition, But the unfairness of Maricopa Coun- relationship. County Maricopa is manifest here. required to rule the work ty requested fees for duty heavy Christiansburg I will has satisfied attorney’s fees. file its motion for that Harris’s claims are not in and shown requests nine fee each of these address non-meritorious, only frivolous. That turn. attorney’s entitles it to fees on same if it had been a basis as only remaining ques- rights plaintiff. The that it was an abuse of discre- disagree I apportion tion is how to divide Harris’s for the district court tion fees, question, previ- had and as to we claim into two environment hostile work ously method the district approved the his race and one relating claims: one employed. Corp., See Tutor-Saliba majority tran- gender. The relating to his Cairns, 1063-64; 292 F.3d at tort claims into a unified smogrifies these majority 1157. It is because the has theory, for which it cites a race-and-gender new, nearly impossible created a hurdle Fifth Supreme Court case and 1980 County that it Maricopa reverses of which was ever Circuit case—neither any reading But fair of our award. under Maj. Op. at 977-78 plaintiff. cited law, exactly the district court did prior Alabama, (citing Powell v. State was no what should have there (1932), 77 L.Ed. 158 U.S. 53 S.Ct. abuse of discretion. Community v. Harris Co. Jefferies Ass’n, 1025, F.2d Action 615 1032 2 Cir.1980)). majority’s disagreement The court’s treatment of this majority, with the district Like the I do not think it was example majority’s of the claim is another an for the district court abuse of discretion failure to remember its task: review for not to award fees for the race discrimina- of discretion the district court’s de- abuse tion claim.

termination of the of the frivolousness Ultimately disagree- our

plaintiffs claims. irrelevant, however, point ment on this is majority I that a agree with the whether that majority because the concedes even as official a hearing public officer is a was transmogrified, the claim was question novel under Arizona state law and frivolous. As to the frivolousness of the that, at it litigation, the outset of the claim, agree, by I for the reasons offered that existing precedent not clear from the the district court. plaintiff should have known he did not however, majority’s privacy I The disagree, with the have enforceable interest. majority point to vacate the hostile work environ- is correct to out that none decision agreement upon by law relied the district despite ment fee award its that the case Here, major- holding the claim was court as to this relates to low-level frivolous. officers; rather, judicial it all relates to ity employs its novel “but for” award re- “[ajlmost Although the quirement, holding that because law enforcement officials. entry reasoning why about a every peti- time defendants’ fee district court’s hearing purpose public tion officer is a limited for work related the hostile work sound, agree I with the figure may environment claim was also listed as relat- be not frivolous for the majority ed to some or all of Harris’s nonfrivolous that was officer, claims,” that, hearing discrimination the district court to claim claim, I public agree not a limited interest as to the intentional Harris was infliction of emotional distress claim. a claim had never before figure where such agree court. I by decided relevant been negligent With to the infliction award for the majority with claim, majority of emotional distress claim should lighVinvasion privacy false wrong apply district court did not —the vacated. be legal by requiring “an erroneous standard” “result in emotional distress illness or bodily negli harm order to recover for gent Maj. infliction of emotional distress.” the district court and agree I with both (internal omitted). Op. at 978 citations It majority wrongful termination that the majority is the that has misstated Arizona the reasons articu- claim was frivolous for First, pointed law. as the district court court. by lated Unlike out, long required proof Arizona has however, I majority, would not direct the bodily harm. Keck v. illness See Jack change methodology court to son, 122 Ariz. 593 P.2d wrongful-termination-relat- calculating the Prentice, (1979); Ball v. 162 Ariz. Maj. Op. at portion ed of the fee award. (1989). Second, P.2d 630 n. (“Of course, properly the fees attribut- majority upon relies Monaco v. Health- unquestion- claim ... would able to this Arizona, Partners Southern 196 Ariz. small.”). I ably quite persuaded am 299, 303, (Ariz.App.1999), 995 P.2d 735 Cairns, that, by its discussion of the dis- “ ‘substantial, proposition long- acknowledged potential trict court term unaccompa emotional disturbances’ the same amount problem awarding injury” any physical give nied can rise litigated that were of fees for two claims Maj. Op. to an NIED claim. at 978-79. properly extents and exercised different majority misreads Monaco. The its discretion: “While the fees were plaintiff in Monaco physical suffered man equally allocated between the claims anxiety, including pro ifestations his Cairns, finds that Defendants’ Court found teeth sleeping, grinding, trouble Plaintiffs ten equal allocation between nightmares, diagnosed and was with post- in this case.” As appropriate claims is traumatic stress disorder. Id. at clear, Hensley makes “the district court importantly, P.2d 735. More Arizona determining the amount has discretion subsequent required eases to Monaco have award,” appro- “is of a fee which discretion showing bodily a harm for an NIED priate superi- in view of the district court’s law, just claim under Arizona state as the understanding litigation of the and the required. district court said was See Loza desirability avoiding frequent appellate Co., Heritage v. American Ins. Life factual mat- essentially review of what (D.Ariz. Feb.25, 2010) 716322, at *6 WL at 103 S.Ct. 1933. ters.” 461 U.S. (“To negligent establish a claim for inflic Though majority might have made a distress, plaintiff] tion of emotional [the decision, it not an abuse of different prove physical injury.”); must State Farm court to award discretion for district Mutual Automobile Insurance Co. v. Con equal fees to this as to the other fee- 417, 423, 212 Ariz. nolly, P.3d recoverable claims. (“[T]he in a (Ariz.App.2006) plaintiff negli gent infliction of distress action emotional distress, prove just not but must emotional majority injury from disagree physical I with the as to the that results distress”). the district court negligent infliction of emotional distress emotional As to merit fees. See case, only alleged lous as found in this Hensley, emotional dis- 461 U.S. at 103 S.Ct. 1933 claims of ‘severe “general ” (“It and unsubstantiat- general important These ... for the district tress.’ remains Arizona’s stan- do not meet allegations expla- ed provide court to a concise but clear distress, award.”). emotional showing for a dard for the fee nation of its reasons of discretion for not an abuse and was the NIED claim court to find

the district 6-8 fees. frivolous and award for the It was not an abuse of discretion infliction to the intentional With defamation, that the district court to find (“IIED”) claim, I of emotional distress equal protection, and tortious interference majority that it was an agree with the relationship with a claims were business court to for the district abuse of discretion not merit fee awards. not frivolous and did frivolous, claim was find that the IIED that, agree majority I with the as to these The district court why. I as to disagree determinations, the district court’s decision the IIED claim frivolous because found should stand. Plaintiff knew or should have known “the IIED claim” was not sufficient as that his solely allegations, it was based majority’s I strongly disagree with the typically have found [are]

“Arizona courts for decision to vacate the award the defen- to constitute” an IIED. enough alone not notes, But, preparation of their motion for fees. majority dants’ as the part County plainly in an earlier Maricopa court itself had ruled defendant, litigation alleged conduct entitled to fees under Arizona outrageous,” could be “extreme and as is opinion statutes and the and U.S. Court’s Maj. Op. IIED claim. required for an Christiansburg. I would affirm the dis- on the 979. This casts doubt trict court’s fee motion award in full. claim court’s later determination explanation

was frivolous. Without C why holding it changed position' —from money The final award at issue is the allegations regarding De- that “Plaintiffs’ expenses award of to the defen- partial conduct, true, may fendants’ if suffice for 12-341.01(A) dants. Because ARS does outrageous conduct” to hold- extreme provide expenses on the contract- ing that “Plaintiff knew or should have claims, based and because the district known that his IIED claim was frivo- court determined that 2.5 of the claims lous”'—the district court’s fee determina- contract-based, were the district court did “post hoc rea- tion reads like the kind percent of the not award 25 defendants’ soning” Supreme Court cautioned majority I expenses. agree with the at 421- against Christiansburg, 434 U.S. omitted). expenses this decision to exclude (italics There- 98 S.Ct. supported by contract-based claims was fore, majority I although agree with law and not an abuse of discretion. vacated, I that the IIED award should be was. awarded, I expenses With to the that, with instructions if the would remand make ad- believe must to reinstate the district court wanted claim, justments light/invasion for the false it explain award for this should and intentional infliction of emo- privacy apparent divergence holdings distress, I have ex- tional for reasons why, holding notwithstanding, its earlier sufficiently plained. claim frivo- majority’s I with the decision to disagree America, UNITED STATES of pro court’s rata alloca-

reverse the district Plaintiff-Appellee, majority’s on the novel “but tion based I disagree award rule. Because for” majority pro that the district court’s LIU, CHEN Defendant- CHIANG invalid, I disagree rata allocation is also Appellant. majority that the district court’s with the No. 09-10136. pro expenses rata allocation of is invalid.

I find that the district court did not would Appeals, United States Court of by rata using pro abuse its discretion Ninth Circuit. expenses, though, allocation of as dis- cussed, it award- abused its discretion Argued Aug. and Submitted 2010. expenses to the for work ing defendants Filed Jan. defending two claims that were not fee recoverable.

V sum, majority makes two critical First, it “principal

errors: reviews the is-

sues” in this case under a de novo stan- review, when it

dard should have re- appealed

viewed all of the issues for abuse discretion; second, new, creates

nearly prevail- insurmountable hurdle for

ing Despite seek fees. some

agreement majority with the as to the

claim-by-claim analysis i.e., I would va- —

cate the awards for the light/invasion false privacy and IIED remand

expenses vigor- award for recalculation —I

ously dissent from the remainder of the I

judgment. judg- would thus affirm the large

ment in measure.

Case Details

Case Name: Harris v. Maricopa County Superior Court

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 20, 2011

Citation: 631 F.3d 963

Docket Number: 09-15833

Court Abbreviation: 9th Cir.