Lead Opinion
Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge BYBEE.
OPINION
After he was forced out of his position as an Initial Appearance Hearing Officer for the Maricopa County Superior Court, Vernon Harris unsuccessfully sued the Superior Court and the other defendants for violations of, inter alia, his rights under Title VII of the Civil Rights Act and the Fourteenth Amendment. Defendants then sought substantial attorneys fees and costs from Harris, and were awarded over $125,000 in fees and costs by the district court. Harris challenges those awards. Our laws encourage individuals to seek relief for violations of their civil rights, and allow a defendant to recover fees and costs from a plaintiff in a civil rights case only “in exceptional circumstances” in which the plaintiffs claims are “frivolous, unreasonable or without foundation.” See Barry v. Fowler,
I
In February of 2000, Vernon Harris was appointed as an Initial Appearance Hearing Officer for the Maricopa County Superior Court. No employment contract was executed between Harris and the Superior Court, and by statute such Hearing Officers, also known as Commissioners, serve at the pleasure of the chief presiding judge of the court. See Ariz.Rev.Stat. § 12-213. In late 2000 or early 2001, allegations were made that Harris had engaged in inappropriate conduct towards female staff members, had asked his secretary to perform personal errands for him, and had performed his own duties inadequately. In January and February of 2001, Harris was placed on administrative leave, investigated, and, finally, given the option of resigning or being terminated. He chose to resign.
Harris, who is African American, then filed a charge with the Equal Employment Opportunity Commission in which he alleged that he had been discriminated against on account of his sex and his race, which the EEOC dismissed. In February of 2002, Harris filed a complaint in Maricopa County Superior Court, naming as defendants the State of Arizona, Maricopa County Superior Court, Maricopa County, and the Arizona Supreme Court. Defendants removed the case to federal court, at which point Harris filed an Amended Complaint in which he made the following ten claims against the defendants: (1) breach of contract; (2) breach of duty of good faith and fair dealing; (3) hostile and discriminatory work environment; (4) race discrimination; (5) false light/invasion of privacy; (6) wrongful termination in violation of public policy; (7) intentional or negligent infliction of emotional distress; (8) defamation; (9) violation of due process and equal protection under the law; and (10) intentional interference with a business relationship.
The parties then engaged in several years of discovery and legal maneuvering. Of note, in January 2003, Maricopa County was dismissed from the lawsuit on Harris’s motion, and in October 2005, defendants’ motion for judgment on the pleadings was granted with respect to Harris’s wrongful termination claim. In July 2006, after both Harris and the defendants filed summary judgment motions, the district court granted defendants summary judgment on the remaining claims in a sealed order. Harris appealed to this court and we affirmed in a memorandum disposition. Harris v.Super. Ct. of Ariz.,
Prior to our disposition of the appeal, defendants moved for attorneys fees in district court. The district court denied the motion without prejudice. After we denied Harris’s petition for rehearing of his appeal, defendants again moved in district court for attorneys fees, seeking $315,974.65 in fees under Arizona Revised Statutes §§ 12-341.0KA) and 41-148RJ) and 42 U.S.C. §§ 1988 and 2000e-5(k), non-taxable expenses of $53,533.66, and
In 2009, the district court granted in part and denied in part the fee motion, awarding defendants $85,514.84 in fees and $40,150.23 in non-taxable costs. It separated defendants’ claims into those it designated contracts-based, for which fees are available to prevailing defendants under Arizona Revised Statute § 12-341.01(A) so long as certain conditions apply; those it designated as federal civil rights claims, for which fees are available to prevailing defendants in very limited circumstances under 42 U.S.C. §§ 1988 and 2000e-5(k); and those it designated as state law claims sharing a common nucleus of operative facts with the federal civil rights claims. It determined that most of Harris’s basic civil rights claims, including his claims of disparate treatment, retaliation, and equal protection, were not frivolous, and thus that no attorneys fees were permissible for those claims. Similarly, it determined that his defamation and tortious interference claims were not frivolous, and awarded no fees on those claims. For Harris’s other claims it found fees to be appropriate.
Although the defendants were able to specifically attribute work amounting to only about $10,000 of attorneys fees to the claims for which the district court determined fees to be warranted, the district court calculated the amount attributable to these claims to be $171,104.84 by taking the $251,464.10 in “general fees” — fees that the defendants requested but that they were not able to allocate to any particular claim — and dividing them equally across the ten claims in Harris’s Amended Complaint, and then allocating to each claim for which it determined fees to be appropriate one-tenth of the total general fees. After calculating the amount of fees in this manner, the district court reduced the award by approximately half, to $85,514.84, in light of Harris’s financial hardship. With respect to expenses, the district court awarded a prorated amount of defendants’ requested expenses based on the ratio of contract-based claims (for which expenses are not available) to non-contract-based claims (for which, in the district court’s view, expenses were available). There was no reduction to the amount of expenses for financial hardship, however. Harris timely appealed.
II
The principal issues in this case are legal in nature and therefore reviewed de novo. See Tutor-Saliba Corp. v. City of Hailey,
Defendants requested attorneys fees of $315,974.65. Some of this amount was allocated to specific claims, but it was not possible for the defendants to so allocate the vast majority of the fees. Accordingly, $251,464.10 of the fee amount requested by defendants was not associated with any specific claim, but instead was assigned to a category of “general fees.” The district court divided these general fees equally across the ten claims in Harris’s Amended Complaint, and then for each claim for which it determined that fees were appropriate, added the one-tenth of the general fees apportioned to that claim to the much smaller amount of fees the defendants asserted were specifically attributable to the defense of that claim. For instance, for the wrongful termination claim, which the district court determined was frivolous
In a civil rights case, such as this one, the pro-rata allocation of general fees between claims for which a fee award is appropriate and claims for which such an award is not appropriate, based solely on the number of claims, is impermissible, for reasons that go to the heart of our civil rights policy. Congress and the courts have long recognized that creating broad compliance with our civil rights laws, a policy of the “highest priority,” requires that private individuals bring their civil rights grievances to court. See Newman v. Piggie Park Enterprises, Inc.,
In accordance with this objective, courts are permitted to award attorneys fees to prevailing plaintiffs as a matter of course, but are permitted to award attorneys fees to prevailing defendants under 42 U.S.C. §§ 1988 and 2000e-5(k), as well as A.R.S. § 41 — 1481(J), only “in exceptional circumstances,” Barry,
A civil rights case such as the instant one that contains both non-frivolous and frivolous claims presents the problem of allocating fees, among those claims. The proper allocation of attorneys fees among such claims, when a defendant seeks to recover fees, is both simple and obvious, at least in theory. Fees may be awarded only for frivolous claims, and a defendant bears the burden of establishing that the fees for which it is asking are in fact incurred solely by virtue of the need to defend against those frivolous claims. That is because here as in cases involving attorneys fees generally, “[t]he burden of establishing entitlement to an attorneys
Although some portion of the fees awarded to defendants by the district court — those associated with the claims that the district court deemed contraetsbased claims — were awarded under Arizona Revised Statute § 12-341.01 (A) rather than under the civil rights fee statutes discussed above, the same rule applies to those claims. First, § 12-341.01 itself makes clear that a fee award may not exceed the amount necessary to defend against those claims for which such fees are appropriate. See Ariz.Rev.Stat. § 12-341.01(B). Second, and more important, even the claims designated as “contraetsbased” by the district court allege violations of Harris’s civil rights — Harris alleged that defendants breached their contract with him by discriminating against him — and Arizona state policy with regard to attorneys fees for defendants in civil rights cases is intended to be “equally protective” of plaintiffs as is federal policy. See Sees v. KTUC, Inc.,
In determining its fee award, the district court relied on Cairns v. Franklin Mint,
The district court made an identical error with respect to awarding fees for work that the defendants asserted was specifically attributable to individual claims for which fees were permissible. In addition to impermissibly dividing the “general” fees across all claims, defendants in many instances divided fees for specific work entries among different claims. For example, the $60.95 in fees that were purportedly attributable specifically to the defense against the wrongful termination claim was a result of two different time entries for legal research. One of those time entries was divided across four claims (with one quarter of the fee associated with that time entry allocated to each claim), including claims that the district court found were nonfrivolous. In other words, the fee purportedly attributable specifically to plaintiffs frivolous wrongful termination consisted in part of work that was also done for the purpose of defending against nonfrivolous claims. Defendants had similar entries for the specific fees for other claims, and, for at least one claim, hostile work environment, defendants did not list any work that was not performed for both frivolous and nonfrivolous claims. Such division of fees for specific time entries is impermissible for exactly the same reasons that a division of general fees across frivolous and nonfrivolous claims is impermissible. To reiterate, the only fees that may be awarded are those incurred for work performed exclusively in order to provide a defense against claims for which fees are permissible. If defendants do not demonstrate that the work would not have been performed in order to defend against the nonfrivolous civil rights, or to put it differently, but for the need to defend against the frivolous claims, fees associated with that work cannot be awarded, even in part.
We next examine the district court’s decisions to award attorneys fees with respect to each of the claims for which it determined that fees were appropriate.
A. Contracts Claims
Arizona Revised Statute § 12-341.01 provides that “[i]n any contested action arising out of a contract, express or implied, the court may award the successful party reasonable attorney fees” in order “to mitigate the burden of the expense of litigation to establish a just claim or a just defense.” Ariz.Rev.Stat. § 12-341.01(A), (B). It is not, however, a fee shifting statute; as the Arizona Supreme Court has stated, “[m]ere eligibility [under § 12-341.01(A) ] does not establish entitlement to fees.” Wagenseller v. Scottsdale Mem’l Hosp.,
Harris’s chief claim with regard to the fees for the claims for which the district court awarded fees under § 12-341.01(A) is that the claims did not “aris[e] out of a contract.” The proper inquiry for determining whether a claim “arisefs] out of a contract” is whether the “claim could not exist ‘but for’ the breach or avoidance of contract.” Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc.,
Here, Harris’s claims for breach of contract and the duty of good faith and fair dealing were explicitly premised on the existence of an implicit contract that
Fees were not appropriate at all under § 12-341.01 (A) for Harris’s due process claim. “To state a cognizable due process claim” Harris was required to show “a recognized liberty or property interest at stake.” Guzman v. Shewry,
B. State and federal civil rights statutes
In addition to the fees sought under § 12-341.01, defendants also sought fees under three civil rights statutes — Arizona Revised Statute § 41-1481(J) and 42 U.S.C. §§ 1988 and 2000e-5(k). Under Arizona Revised Statute § 41 — 1481(J), “the court may allow the prevailing party ... a reasonable attorney’s fee”; under 42 U.S.C. § 1988(b), “[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs”; and under 42 U.S.C. § 2000e-5(k), “[i]n any action or proceeding under [Title VII of the Civil Rights Act] the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee.” Fee awards to prevailing defendants under all three of these statutes are governed by the same standard: the court may award attorney’s fees only if it finds
The district court awarded fees for the following claims on the basis that they were frivolous, unreasonable, or without foundation: hostile work environment, false light/invasion of privacy, wrongful termination, and negligent or intentional infliction of emotional distress.
Hostile work environment based on gender and race
Although Harris made a single claim alleging that he had been subjected to a hostile work environment on account of his race and gender together, the district court treated this claim as two separate claims, one concerning race, one concerning gender. It found that Harris’s gender-based subclaim was frivolous because it was filed more than 300 days — -the time limit imposed by Title VII — after the last act of discrimination alleged by Harris that the district court categorized as gender-based. It did not determine that his race-based subclaim was untimely — it apparently categorized acts within the 300 day window as race based — but that instead it was frivolous because he did not allege severe and pervasive conduct based on his race, as would be required for relief under Title VII.
The district court erred in dividing the claim in two, and then treating half of it as frivolous because of Title VII’s statute of limitations and half as frivolous for a substantive reason. Harris claimed that his work environment was hostile because of discrimination against him as a black male, not that he was discriminated against as a male and then suffered separate discrimination as a black person. It is perfectly plausible that gender and race could together give rise to discrimination in the manner Harris alleged: he claimed that
Nevertheless, the district court did not err in determining that the hostile work environment claim as a whole was frivolous. A hostile work environment claim requires inter alia “that the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Pavon v. Swift Trans. Co., Inc.,
Although the court may not have erred in determining that the claim was frivolous, it nonetheless erred in awarding substantial fees to defendants on this claim. Almost every time entry in defendants’ fee petition for work related to the hostile work environment claim was also listed as related to some or all of Harris’s nonfrivolous discrimination claims. As we have already explained, in a civil rights action with multiple claims, only some of which are groundless, a defendant is entitled only to those fees attributable exclusively to defending against plaintiff’s frivolous claims. If the work is performed in whole or in part in connection with defending against any of plaintiffs claims for which fees may not be awarded, such work may not be included in calculating a fee award. Accordingly, the fees properly attributable to this claim, if any, would be quite minimal.
False Light/invasion of Privacy
The district court found Harris’s false light/invasion of privacy claim frivolous because as a “limited purpose public figure [Harris] had no privacy interest in the allegations against him.” A person employed by the government is only a “public official” with limited privacy interests when he holds a position that “has such apparent importance that the public has an independent interest” in his performance, “beyond the general public interest in the ... performance of all government employees.” Rosenblatt v. Baer,
The district court found that it was obvious that Harris was a public official of the relevant sort, as opposed to an ordinary government employee. Its only support for this conclusion, however, was a set of cases concerning law enforcement officers, who are presumptively public officials. See id. (“Police and other law enforcement personnel are almost always
Wrongful termination
To prevail on a wrongful termination claim under Arizona law, a plaintiff must demonstrate that an employment relationship was terminated in violation of a state statute that does not provide its own remedy for statutory violations. See Ariz. Rev.Stat. § 231-1501(3)(b); Taylor v. Graham County Chamber of Commerce,
Negligent or intentional infliction of emotional distress
The district court relied on an erroneous legal standard to reach its determination that Harris’s negligent infliction of emotional distress claim was frivolous. Arizona law requires that emotional distress “result[ ] in illness or bodily harm” in order to recover for negligent infliction of emotional distress. Keck v. Jackson,
This sufficiency is, perhaps, reflected in the fact that defendants did not seek judgment on the pleadings as to this claim. On that point, we note that it was unreasonable for the defendants to seek, and for the district court to grant, substantial attorney’s fees on the ground that Harris failed to plead a required element of his claim when defendants failed to challenge the pleading as insufficient at an earlier point in the proceedings.
The district court made a different but related error with respect to Harris’s intentional infliction of emotional distress claim. The district court found this claim to be frivolous because “Plaintiff allege[d] in his Amended Complaint that he was falsely accused of sexual harassment, and that such allegations tarnished his reputation,” and it was clear from the complaint that “this conduct was not sufficient to bring an IIED claim,” which requires “extreme and outrageous” conduct by the defendants. Four years earlier, however, when deciding whether to grant the defendants judgment on the pleadings, the district court said of exactly the same claim, “Plaintiffs’ allegations regarding Defendants’ conduct, if true, may suffice for extreme and outrageous conduct.” In Christiansburg, the Supreme Court cautioned that district courts must “resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg,
IV
The district court also awarded defendants fees incurred in preparing their motion for attorneys fees. This court has held that fees can be recovered for preparing a motion for attorneys fees under 42 U.S.C. §§ 1988(b) and 2000e-5(k). See McGrath v. County of Nev.,
V
Harris also challenges the district court’s award of nontaxable expenses. Defendants sought $53,533.66 in nontaxable expenses such as computerized legal research, factual investigation, and photocopying. The district court, noting that expenses are not available under Arizona Revised Statute § 12-341.01, see Ahwatukee Custom Estates Mgmt. Ass’n, Inc. v. Bach,
Harris does not challenge the potential availability of expenses to a prevailing defendant as part of an attorney fee award under Arizona Revised Statute § 41-148KJ) and 42 U.S.C. §§ 1988 and 2000e-5(k). He does, however, correctly contend that expenses are recoverable only as “part of the award of attorney’s fees,” Harris v. Marhoefer,
Additionally, the district court erred in its equal division of expenses across claims. Again, because expenses are part of the attorneys fees award, they are recoverable only on the terms on which attorneys fees are recoverable. Thus, only those expenses are recoverable that the defendants can demonstrate were incurred solely with respect to frivolous claims and that would not have been incurred in whole or in part with respect to any of the nonfrivolous claims.
VI
Harris’s briefs are scattershot affairs containing numerous issues, many of which are insufficiently developed. Those issues that we have not previously addressed lack merit. Only one requires any discussion. Harris contends that because we denied defendants attorneys fees for his appeal of the dismissal of the underlying action, the district court was barred from awarding attorneys fees by the law of the case doctrine. Our prior decision not to award attorneys fees to defendants for Harris’s appeal of the district court’s award of summary judgment in favor of defendants included no determination that would bar an award of attorneys fees by the district court for the underlying case; we simply exercised our discretion and declined to award fees for work done on appeal. See Thomas v. Bible,
VII
For the reasons stated above, we vacate the award of attorneys fees and remand to the district court for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. There is no reason to make an exception for defendants in civil rights cases. Prevailing defendants seeking recovery of attorneys fees in civil rights cases do not, like prevailing plaintiffs, vindicate important federal policy or receive fees from a transgressor of federal law. Christiansburg,
. In Tutor-Saliba Corp. v. City of Hailey, we determined that where a plaintiff in a § 1983 action alleges multiple interrelated claims based on the same underlying facts, and some of those claims are frivolous and some are not, a court may award defendants attorneys fees with respect to the frivolous claims only when those claims are not "intertwined.” See
. The Associated Indemnity factors are: “(1) whether the unsuccessful party’s claim or defense was meritorious; (2) whether the litigation could have been avoided or settled and the successful party's efforts were completely superfluous in achieving the result; (3) whether assessing fees against the unsuccessful party would cause an extreme hardship; (4) whether the successful party prevailed with respect to all of the relief sought; (5) whether the legal question presented was novel and whether such claim or defense have previously been adjudicated in this jurisdiction; and (6) whether the award would discourage other parties with tenable claims or defenses from litigating or defending legitimate contract issues for fear of incurring liability for substantial amounts of attorney's fees.” Wagenseller,
. Defendants contend that Harris waived this argument by failing to raise it below. Harris did suggest in district court that the only claims for which fees under § 12-341.01 might be appropriate were the breach of contract and the breach of the covenant of good faith and fair dealing claims, but he did not make his arguments regarding the due process claim explicitly or clearly. In any case, “where an issue is purely legal, and the other party would not be prejudiced, we can consider an issue not raised below.” Engquist v. Oregon, Dept. of Agriculture, 478 F.3d 985, 996 n. 5 (9th Cir.2007). The question of whether the due process claim arises from contract is a “purely legal issue, the injection of which would not have caused the parties to develop new or different facts,” International Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc.,
. It also found that Harris had asserted a frivolous disparate impact claim, because Harris failed to identify an outwardly neutral practice with a disparate impact on a protected class. See Katz v. Regents of the Univ. of Cal.,
. The district court found that the defendants could seek attorneys fees for Harris’s pendant state law claims (in addition to his federal civil rights claims) under the civil rights fee statutes because these state law claims arose from a common nucleus of operative fact with a substantial federal claim. In order to reach that conclusion, the district court relied on a case from the Seventh Circuit, Munson v. Milwaukee Bd. of Sch. Dirs.,
. We note, additionally, that the expenses submitted by defendants were woefully lacking in detail. For instance, although the invoices from Investigative Research, Inc. submitted by defendants ran into the thousands of dollars, the claims for which these expenses were incurred were not identified, and nowhere in the application for expenses was there a description of the work performed by Investigative Research, Inc. other than the notation "for professional services rendered” on the invoice from the company. This showing falls short of the requirement that a party seeking to recover expenses submit a "task-based” statement in which it "identifies] each related nontaxable expense with particularity” so that such expenses can be verified. See District of Arizona, Local Rule of Civil Procedure 54.2(d), (e).
Concurrence Opinion
concurring in the judgment in part, but mostly dissenting:
In Tutor-Saliba Corp. v. City of Hailey,
The majority joins the short side of an existing circuit split that is currently before the Supreme Court. The First, Fifth, Seventh, and Eleventh Circuits have held that defendants in civil rights cases may recover attorney’s fees even when the plaintiffs frivolous claims are intertwined with nonfrivolous claims. See Ward v. Hickey,
Although, as I explain, I concur in the judgment in part, I respectfully disagree with the majority’s reasoning and the bulk of its judgment.
I
Vernon Harris held an at-will position as an Initial Appearance Hearing Officer (or Commissioner) with Maricopa County Superior Court. Within five months of his appointment, Harris was under investigation for complaints that he had engaged in inappropriate conduct toward female staff
Harris then brought suit against the Superior Court, the Arizona Supreme Court, and Maricopa County (collectively, “Maricopa County”). He accused the defendants of various forms of breach of contract, wrongful termination, infliction of emotional distress, violation of privacy, race discrimination, and hostile work environment based on race or gender. All ten of his claims were eventually dismissed, we affirmed that judgment, and the defendants sought attorney’s fees under Arizona and U.S. law. The defendants sought roughly $316,000 in fees with almost $54,000 in costs. The district court awarded attorney’s fees under Arizona law for two and a half claims based on contract. Of the remaining seven and a half civil rights claims, the district court found that all were non-meritorious, but only four were frivolous. Faithfully following Christiansburg, the district court held that Maricopa County could only recover fees on Harris’s frivolous claims. The court reduced the fees requested by the County by apportioning time between the compensable and non-compensable claims. In an exercise of its equitable discretion, the district court further decided that it would not award fees for a frivolous disparate impact claim because it was sufficiently related to disparate treatment and retaliation claims, which, although not meritorious, were not frivolous. Using the lodestar method, the court calculated the fees, with various adjustments, at about $171,000. The court declined to enhance the lodestar and then reduced the lodestar by roughly 50 percent because of the plaintiffs financial hardship, although finding that “some award of attorney’s fees is necessary to serve as a deterrent, or to ensure that future defendants and the courts are not saddled with frivolous and unsuccessful claims.” Ultimately, the court awarded the defendants $85,500 in attorney’s fees and $40,150.53 in costs. The attorney’s fees represent about 27 percent of the fees requested.
II
The majority opinion errs in multiple ways, but in this way first: it flatly misstates the standard of review and then applies the wrong standard all the way down. We have long held that we review the district court’s determination of attorney’s fees for abuse of discretion. See Tutor-Saliba Corp.,
Rather, de novo review is the standard for a narrow range of legal issues that help define the scope of the district court’s discretion. As the Supreme Court explained the standard: the district court “necessarily has discretion in making” the determination about how to calculate the attorneys’ fee award, but that this discretion “must be exercised in light of the considerations we have identified.” Hensley,
Whatever these “elements” may be, it is clear that the method of fee calculation is not such an element and that the proper standard of review is for abuse of discretion. See Hensley,
Ill
The majority establishes a new rule for prevailing defendants who seek attorney’s fees in cases in which at least one claim is based on the civil rights laws. I have two objections. First, I generally object to the majority, in effect, double counting the burden successful defendants must bear. Second, I specifically object to the “but for” test the majority creates.
A
I disagree that prevailing defendants’ ability to recoup attorney’s fees in civil rights cases should be burdened beyond that called for by existing case law. Section 1988 itself does not distinguish between the right of prevailing plaintiffs and that of prevailing defendants to recover attorney’s fees. 42 U.S.C. § 1988(b) (“In any action or proceeding to enforce [civil rights laws], the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee”) (emphasis added). For pro-civil rights policy reasons, the Supreme Court later restricted prevailing defendants ’ access to attorney’s fees, allowing them only for the defense of “frivolous, unreasonable, or ... foundation[less]” claims. Christiansburg,
Once defendants have shouldered the extraordinary burden of demonstrating that plaintiffs’ claims were not just merit-less, but frivolous, they are entitled to attorney’s fees on the same basis as everyone else. There is no justification in § 1988 for imposing a double burden on defendants. And we should not apply the Supreme Court’s policy considerations where it has not, including to our review of the manner in which district courts allocate fees. When we do so, we hamper the district court’s ability to make equitable decisions to accommodate the on-the-ground realities of litigation with which we are much less familiar. In addition, we risk rewarding plaintiffs for raising groundless and frivolous litigation against cash-strapped defendants like Maricopa County, who must then spend their limited funds defending against unreasonable claims. We risk straining the capacities of defendants to prevent and redress real civil rights grievances. Even our own policy interests are not served by hindering the district court’s ability to require plaintiffs like Harris to bear the costs of clogging our courts with groundless and frivolous litigation. See Munson v. Milwaukee Bd. of Sch. Directors,
Our decision here conflicts with the decisions of at least four other circuits. Although these cases have acknowledged that the difficulty of calculating attorneys’ fee awards in cases in which frivolous and nonfrivolous civil rights claims are intertwined, they concluded that defendants are not precluded from receiving an award. Accordingly, the First, Fifth, Seventh, and Eleventh Circuits have held that prevailing defendants must be allowed to recoup the cost of defending against frivolous civil rights claims, even if those claims are interrelated with nonfrivolous ones.
In Ward,
When presented with the question of an attorneys’ fee award for interrelated frivo
The Seventh Circuit has adopted a similar position on fee awards for interrelated frivolous and nonfrivolous civil rights claims. In what may be the earliest circuit opinion on this issue, Curry,
Likewise, the Eleventh Circuit has repeatedly held that prevailing defendants must be able to recover fees associated with the defense of frivolous civil rights claims, even if those claims are interrelated with nonfrivolous ones. See Quintana,
Each of these circuits — the First, Fifth, Seventh, and Eleventh — allow prevailing defendants to recover the costs of defending against frivolous civil rights claims under circumstances such as those presented to us today. In fact, so have we. See Tutor-Saliba Corp.,
Inasmuch as the majority opinion imposes an additional burden on prevailing defendants in civil rights cases — beyond that imposed by Chñstiansburg and in contravention of our precedent and the majority of circuits — I respectfully disagree.
B
Once prevailing defendants have carried their heavy burden of establishing that plaintiffs claims are frivolous, they should be entitled to attorney’s fees on the same basis as prevailing plaintiffs. The manner in which the district court awards fees to parties who are entitled to fees for some claims, but not other claims, is committed to the district court’s sound discretion. In general, a district court does not abuse its discretion when it makes a pro rata allocation of fees. The majority’s new “but for” rule has never been our rule.
In Cairns,
In Cairns, we held that this divvying— including the district court’s decision to divide unspecified general fee money into two parts, because there were two categories of claims, and then to divide one of those halves into three parts, because there were three sub-claims — was not an abuse of the district court’s discretion to apportion fees on a claim-by-claim basis. Indeed, we “cautioned.... that ‘the impos
The majority opinion argues that Caims is not relevant — and is therefore not precedential — because Caims “was not a civil rights case, and thus did not implicate our longstanding policy of solicitude for civil rights plaintiffs, and our insistence that they be required to reimburse defendants only for fees incurred in defense against ‘exceptionally]’ unwarranted claims.” Maj. Op. at 973. This argument is smoke and mirrors. Although Caims was not a civil rights case, it was a Lanham Act case, which, like civil rights cases, allows prevailing defendants to be reimbursed for attorney’s fees only “in exceptional cases,” meaning cases that are “groundless, unreasonable, vexatious, or pursued in bad faith.” Cairns,
We get into this discussion about Caims and the allocation of general fees, of course, because the defendants did not provide claim-specific documentation for all of their fees. Defendants do have a responsibility to “establish[] entitlement to an attorney’s fees’ award.” Trustees of Directors Guild of America-Producer Pension Benefits Plans v. Tise,
Although this case may not require that we decide what a plaintiffs burden for documentation would be, see Maj. Op. at 972 n.l, the majority seizes this reprieve to impose an asymmetrical burden on defendants. It adopts an unprecedented, burdensome “but for” documentation rule: “Accordingly, a defendant must demonstrate that the work for which it asserts that it is entitled to fees would not have been performed but for the inclusion of the frivolous claims in the complaint.” Maj. Op. at 972 (emphasis added). The majority itself expressly acknowledges that, under its punishingly strict formulation of the principle, “the burden on the defendant ... is from a practical standpoint extremely difficult to carry.” Maj. Op. at 972. This heightened burden on defendants originates with the majority. It
I recognize that awarding a party fees despite its failure to provide claim-specific documentation risks allowing that party to be reimbursed for non-compensable claims. But this is a problem that affects both plaintiffs and defendants within the civil rights context (and without). And, for that reason, as it is one with which district courts are repeatedly confronted, I would defer to the district court’s discretion to determine that the fees awarded in this case were an appropriate measure of the work done defending the compensable claims.
IV
After jerry-rigging the law and applying an unstatutory documentation rule against the prevailing defendants, the majority applies microscopic scrutiny to the district court’s decision. Although I disagree with the majority’s effort to nickel-and-dime to death defendants’ award, I do agree that two of the district court’s actions deserve remand. I present my claim-specific concerns and concurrences below. I address the contract claims first and then the civil rights claims.
A
Under Arizona law, ARS § 12-341.01(A), courts can award “reasonable attorney fees” to the prevailing party in a “contested action arising out of a contract.” Based on this state statute and the seven factors identified by the Arizona Supreme Court as being relevant to such a discretionary award, see Associated Indem. Corp. v. Warner,
The majority agrees that the contract claims are frivolous but vacates the award anyway. Maj. Op. at 975. It reasons that “under Arizona law it is impermissible to require a plaintiff to pay fees that a prevailing defendant incurred in whole or in part defending against nonfrivolous civil rights claims.” Maj. Op. at 972 (citing Sees v. KTUC, Inc.,
The majority also vacates the due process claim award because the plaintiff may have referenced a “liberty interest in being free from defamation” in addition to his “property interest in continued employment.” Maj. Op. at 975 n.4. I say “may have” because the majority acknowledges that Harris did not contest the due process award “explicitly or clearly,” but decides to reach out for these issues anyway because the “issue is purely legal.” Id. Here, again, the majority misstates both the standard of review and the law. We are reviewing for abuse of discretion, and when the issue involves such questions as whether a claim is frivolous and whether the plaintiff even contested it, the issue is not “purely legal.” See Tutor-Saliba Corp.,
In any event, the majority ignores or fails to acknowledge that even Harris’s liberty interest due process claim required proof of an employment contract, or some other “right or status recognized by state law,” for it to be successful. As we made clear in Wenger v. Monroe,
B
With respect to the civil rights claims, I agree with the majority that the fee awards for the federal civil rights claims under 42 U.S.C. § 1988, 42 U.S.C. § 2000e-5(k), and ARS § 41-1481(J) can be construed under a common standard. See Hewitt v. Joyner,
1
I disagree that it was an abuse of discretion for the district court to divide Harris’s hostile work environment claim into two claims: one relating to his race and one relating to his gender. The majority transmogrifies these tort claims into a unified race-and-gender theory, for which it cites a 1932 Supreme Court case and a 1980 Fifth Circuit case — neither of which was ever cited by the plaintiff. Maj. Op. at 977-78 (citing Powell v. State of Alabama,
I disagree, however, with the majority’s decision to vacate the hostile work environment fee award despite its agreement that the claim was frivolous. Here, the majority employs its novel “but for” award requirement, holding that because “[ajlmost every time entry in defendants’ fee petition for work related to the hostile work environment claim was also listed as related to some or all of Harris’s nonfrivolous discrimination claims,” the district court improperly awarded fees. Maj. Op. at 977. But the unfairness of the majority’s new rule is manifest here. Maricopa County has satisfied its heavy Christiansburg duty and shown that Harris’s claims are not only non-meritorious, but frivolous. That entitles it to attorney’s fees on the same basis as if it had been a prevailing civil rights plaintiff. The only remaining question is how to apportion the attorney’s fees, and as to that question, we had previously approved the method the district court employed. See Tutor-Saliba Corp.,
2
Like the majority, I do not think it was an abuse of discretion for the district court not to award fees for the race discrimination claim.
3
I agree with the majority that whether a hearing officer is a public official was a novel question under Arizona state law and that, at the outset of the litigation, it was not clear from existing precedent that the plaintiff should have known he did not have an enforceable privacy interest. The majority is correct to point out that none of the case law relied upon by the district court as to this holding relates to low-level judicial officers; rather, it all relates to law enforcement officials. Although the district court’s reasoning about why a hearing officer is a limited purpose public figure may be sound, I agree with the majority that it was not frivolous for the plaintiff to claim that, as a hearing officer,
4
I agree with both the district court and the majority that the wrongful termination claim was frivolous for the reasons articulated by the district court. Unlike the majority, however, I would not direct the district court to change its methodology in calculating the wrongful-termination-related portion of the fee award. Maj. Op. at 978 (“Of course, the fees properly attributable to this claim ... would unquestionably be quite small.”). I am persuaded that, by its discussion of Cairns, the district court acknowledged the potential problem with awarding the same amount of fees for two claims that were litigated to different extents and properly exercised its discretion: “While the fees were not allocated equally between the claims in Cairns, the Court finds that Defendants’ equal allocation between Plaintiffs ten claims is appropriate in this case.” As Hensley makes clear, “the district court has discretion in determining the amount of a fee award,” which discretion “is appropriate in view of the district court’s superi- or understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.”
5
I disagree with the majority as to the negligent infliction of emotional distress claim, but I agree as to the intentional infliction of emotional distress claim.
With respect to the negligent infliction of emotional distress claim, the majority is wrong — the district court did not apply “an erroneous legal standard” by requiring that emotional distress “result in illness or bodily harm in order to recover for negligent infliction of emotional distress.” Maj. Op. at 978 (internal citations omitted). It is the majority that has misstated Arizona law. First, as the district court pointed out, Arizona has long required proof of illness or bodily harm. See Keck v. Jackson, 122 Ariz. 114,
With respect to the intentional infliction of emotional distress (“IIED”) claim, I agree with the majority that it was an abuse of discretion for the district court to find that the IIED claim was frivolous, but I disagree as to why. The district court found the IIED claim frivolous because “the Plaintiff knew or should have known that his IIED claim” was not sufficient as it was based solely on allegations, which “Arizona courts have typically found [are] alone not enough to constitute” an IIED. But, as the majority notes, the district court itself had ruled in an earlier part of the litigation that the alleged conduct could be “extreme and outrageous,” as is required for an IIED claim. Maj. Op. at 979. This casts doubt on the district court’s later determination that the claim was frivolous. Without an explanation of why it changed its position' — from holding that “Plaintiffs’ allegations regarding Defendants’ conduct, if true, may suffice for extreme and outrageous conduct” to holding that “Plaintiff knew or should have known that his IIED claim was frivolous”' — the district court’s fee determination reads like the kind of “post hoc reasoning” the Supreme Court cautioned against in Christiansburg,
6-8
It was not an abuse of discretion for the district court to find that the defamation, equal protection, and tortious interference with a business relationship claims were not frivolous and did not merit fee awards. I agree with the majority that, as to these determinations, the district court’s decision should stand.
9
I strongly disagree with the majority’s decision to vacate the award for the defendants’ preparation of their motion for fees. Maricopa County is plainly a prevailing defendant, entitled to fees under Arizona and U.S. statutes and the Court’s opinion in Christiansburg. I would affirm the district court’s fee motion award in full.
C
The final money award at issue is the partial award of expenses to the defendants. Because ARS § 12-341.01(A) does not provide for expenses on the contract-based claims, and because the district court determined that 2.5 of the claims were contract-based, the district court did not award 25 percent of the defendants’ expenses. I agree with the majority that this decision to exclude expenses for the contract-based claims was supported by law and was. not an abuse of discretion. With respect to the expenses awarded, I believe the district court must make adjustments for the false light/invasion of privacy and intentional infliction of emotional distress, for reasons I have explained.
V
In sum, the majority makes two critical errors: First, it reviews the “principal issues” in this case under a de novo standard of review, when it should have reviewed all of the appealed issues for abuse of discretion; and second, it creates a new, nearly insurmountable hurdle for prevailing defendants to seek fees. Despite some agreement with the majority as to the claim-by-claim analysis — i.e., I would vacate the awards for the false light/invasion of privacy and IIED claims, remand the expenses award for recalculation — I vigorously dissent from the remainder of the judgment. I would thus affirm the judgment in large measure.
. The two issues presented in Fox are
1. Can defendants be awarded attorney’s fees under § 1988 in an action based on a dismissal of a claim, where the plaintiff has asserted other interrelated and nonfrivolous claims?
2. Is it improper to award defendants all of the attorney’s fees they incurred in an action under § 1988, where the fees were spent defending nonfrivolous claims that were intertwined with the frivolous claim?
. Based upon the Eleventh Circuit’s reasoning, on remand the district court conducted a pro rata calculation — "splitting] a majority of the billing entries in half because defense counsel spent an equal amount of time in defending against both Plaintiff's [nonfrivolous] claims (Counts I and II) and [frivolous] claims (Counts [III] and IV)” — which stood without appeal. Quintana v. Jenne, Report and Recommendation on Defendant’s Motion for Attorney's Fees and Additional Costs, 0:00-cv-07878, Doc. 138 at 2 (S.D.Fla. Dec. 29, 2005), adopted by 0:00-cv-07878, Doc. 139 (S.D.Fla. Jan. 27, 2006). I suggest that this sort of pro rata calculation was well within the district court's discretion in Quintana, as it is here.
. The only circuit holding to the contrary is the Sixth Circuit, and it bars such awards outright. Balmer v. HCA., Inc.,
. Although equal protection is listed here as one claim, it actually represents one half of count nine in Harris's First Amended Complaint.