The Supreme Court has unanimously reversed and remanded an attorney fee award to defendant under 42 U.S.C. § 1988. The district court had dismissed meritless federal claims and remanded non-frivolous state law claims to state court. Defendant asked the federal court for attorney’s fees under §1988, for time spent on the entire suit, without differentiating between time spent on the dismissed federal claims and on the remaining state claims. After finding the federal claims were frivolous the district court awarded defendant for all work the attorneys had performed in the suit. The Fifth Circuit affirmed (2-1, Southwick, J. dissenting). The High Court opinion written by Justice Kagan holds:
In a suit of this kind, involving both frivolous and non-frivolous claims, a defendant may re- cover the reasonable attorney’s fees he expended solely because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant may not receive compensation for any fees that he would have paid in the absence of the frivolous claims.
