Vernon Harris v. Maricopa County Superior Court

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON HARRIS, 
Plaintiff-Appellant, No. 09-15833
v. D.C. No.
MARICOPA COUNTY SUPERIOR  2:02-cv-00494-
COURT; ARIZONA SUPREME COURT; SMM
STATE OF ARIZONA, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted
March 10, 2010—San Francisco, California
Filed January 20, 2011
Before: Procter Hug, Jr., Stephen Reinhardt and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Bybee
1085
1090 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
COUNSEL
Cheri L. McCracken, Phoenix, Arizona, for the plain-
tiff-appellant.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1091
Katherine Baker and Diane Bornscheuer, Scottsdale, Arizona,
for the defendants-appellees.
OPINION
REINHARDT, Circuit Judge:
After he was forced out of his position as an Initial Appear-
ance 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 vio-
lations 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 plaintiff’s claims are
“frivolous, unreasonable or without foundation.” See Barry v.
Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (internal quotation
marks, citation omitted); Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 422 (1978). Moreover, only fees “at-
tributable exclusively to plaintiff’s frivolous claims,” are
recoverable by a defendant. See Tutor-Saliba Corp. v. City of
Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006) (internal quota-
tion marks, alterations and citation omitted). Because the dis-
trict court both used an impermissible method of determining
the amount of fees and costs to be assessed for the claims for
which fees were appropriate, and erred in some of its determi-
nations as to which claims were properly subject to a fee
award to defendants, we vacate the award of attorneys fees
and remand for a new award that complies with this opinion.
I
In February of 2000, Vernon Harris was appointed as an
Initial Appearance Hearing Officer for the Maricopa County
1092 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 per-
form 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 Supe-
rior Court, naming as defendants the State of Arizona, Mari-
copa County Superior Court, Maricopa County, and the
Arizona Supreme Court. Defendants removed the case to fed-
eral court, at which point Harris filed an Amended Complaint
in which he made the following ten claims against the defen-
dants: (1) breach of contract; (2) breach of duty of good faith
and fair dealing; (3) hostile and discriminatory work environ-
ment; (4) race discrimination; (5) false light/invasion of pri-
vacy; (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 busi-
ness 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 ter-
mination claim. In July 2006, after both Harris and the defen-
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1093
dants 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., 278 Fed. Appx. 719, 720-22 (9th Cir. 2008). We
denied defendants’ motion for attorneys fees incurred in con-
nection with the appeal without comment or explanation.
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 §§ 12-341.01(A) and 41-1481(J)
and 42 U.S.C. §§ 1988 and 2000e-5(k), non-taxable expenses
of $53,533.66, and reasonable fees and costs for preparation
of the fee petition.
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 cir-
cumstances 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 attor-
neys 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 appropri-
ate.
1094 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 war-
ranted, 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 pro-
rated 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 dis-
trict 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, 452 F.3d 1055, 1059-60 (9th Cir. 2006); see also
Ramsey Air Meds, L.L.C. v. Cutter Aviation, Inc., 198 Ariz.
10, 13 (App. 2000). Harris’s primary challenge is to the meth-
odology that the district court used to determine the amount
of fees attributable to those claims for which fees were appro-
priate. The remaining challenges involve which claims may
appropriately be the subject of fee awards.
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
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1095
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 appor-
tioned 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 termina-
tion claim, which the district court determined was frivolous
simply by examining the Amended Complaint, and on which
the district court granted defendants judgment on the plead-
ings in March of 2005, 15 months before it reached its deci-
sion as to the other claims, the district court calculated the
amount of fees to be $25,207.36: $25,146.41 from general
fees and $60.95 from work that defendants asserted was spe-
cifically attributable to defending against that claim.
[1] In a civil rights case, such as this one, the pro-rata allo-
cation 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 imper-
missible, for reasons that go to the heart of our civil rights
policy. Congress and the courts have long recognized that cre-
ating 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., 390 U.S. 400, 402 (1968). Even when
unsuccessful, such suits provide an important outlet for
resolving grievances in an orderly manner and achieving non-
violent resolutions of highly controversial, and often inflam-
matory, disputes. Guaranteeing individuals an opportunity to
be heard in court instead of leaving them only with self-help
as the means of remedying perceived injustices creates respect
for law and ameliorates the injury that individuals feel when
they believe that they have been wronged because society
views them as inferior. Our system of awarding attorneys fees
in civil rights cases is in large part dedicated “to encouraging
1096 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
individuals injured by . . . discrimination to seek judicial
relief.” See id.[2] 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, 902 F.2d at 773 (9th Cir. 1990): prevailing defendants
may recover fees only for claims that are “frivolous, unrea-
sonable, or groundless.” Christiansburg Garment Co., 434
U.S. at 422. To put a finer point on it, a defendant is entitled
only to “the amount of attorneys fees attributable exclusively
to” a plaintiff’s frivolous claims. See Tutor-Saliba Corp., 452
F.3d at 1064 (quoting Quintana v. Jenne, 414 F.3d 1306,
1312 (11th Cir. 2005)); see also Fox v. Vice, 594 F.3d 423,
429 (5th Cir. 2010) (“a defendant is only entitled to attorneys’
fees for work which can be distinctly traced to a plaintiff’s
frivolous claims”). This policy was adopted expressly in order
to avoid discouraging civil rights plaintiffs from bringing
suits, and thus “undercut[ting] the efforts of Congress to pro-
mote the vigorous enforcement of” the civil rights laws.
Christiansburg Garment Co., 434 U.S. at 422.
[3] 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 defen-
dant 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 fees award lies solely
with the claimant.”1 Trustees of Directors Guild of America-
1
There is no reason to make an exception for defendants in civil rights
cases. Prevailing defendants seeking recovery of attorneys fees in civil
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1097
Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 427
(9th Cir. 2000) (citing Hensley v. Eckerhart, 461 U.S. 424,
437 n.12 (1983)). 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. To do otherwise — as when
a court simply divides a defendant’s total attorneys fees
equally across plaintiff’s frivolous and nonfrivolous claims
and attributes to the frivolous civil rights claims a pro-rata
share of those total fees (with no demonstration that such fees
were in fact incurred solely in order to defend against the friv-
olous claims) — would be to risk requiring a plaintiff to pay
defendants’ attorneys fees incurred in defeating his nonfrivo-
lous civil rights claims, an outcome barred by our precedent
and that of the Supreme Court. Unless a prevailing defendant
can establish that its attorneys would not have performed the
work involved except for the need to defend against the frivo-
lous claims (and thus would not have done the work in whole
or in part in order to defend against the nonfrivolous claims),
it is not entitled to the fees in question. Where, as here, the
plaintiff seeks relief for violation of his civil rights under vari-
ous legal theories based on essentially the same acts, and a
number of his claims are not frivolous, the burden on the
defendant to establish that fees are attributable solely to the
frivolous claims is from a practical standpoint extremely diffi-
cult to carry. That burden is not carried when the method of
allocation is that which was used either by defense counsel or
the court.
[4] Although some portion of the fees awarded to defen-
dants by the district court — those associated with the claims
rights cases do not, like prevailing plaintiffs, vindicate important federal
policy or receive fees from a transgressor of federal law. Christiansburg,
434 U.S. at 418. Whether the general rule, imposing the burden on the
proponent of a fee petition, applies to civil rights plaintiffs, however, is a
question that we need not resolve in this case.
1098 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
that the district court deemed contracts-based 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 nec-
essary 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 “contracts-
based” by the district court allege violations of Harris’s civil
rights — Harris alleged that defendants breached their con-
tract 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., 148
Ariz. 366, 369 (Ariz. App. 1985). Thus, under Arizona law it
is impermissible to require a plaintiff to pay fees that a pre-
vailing defendant incurred in whole or in part defending
against nonfrivolous civil rights claims. Id. It would make lit-
tle sense to allow a prevailing defendant to recover all or a
portion of such fees simply because a plaintiff included a
contracts-based claim in his complaint in addition to his non-
frivolous civil rights claims. Accordingly, the only fees that
may be attributed to Harris’s contracts claims for purposes of
§ 12.341.01(A) are those that the defendants are able to dem-
onstrate would not have been incurred but for the inclusion of
those claims in the complaint. Thus it was error for the district
court to attribute to each of the contracts claims a tenth of the
“general” fees, with no demonstration that the work involved
was actually performed solely in order to defeat those claims.
In determining its fee award, the district court relied on
Cairns v. Franklin Mint, 292 F.3d 1139, 1157 (9th Cir. 2002),
in which this court allowed an apportionment of general fees
among claims. Cairns, however, was not a civil rights case,
and thus did not implicate our longstanding policy of solici-
tude for civil rights plaintiffs, and our insistence that they be
required to reimburse defendants only for fees incurred in
defense against “exceptional[ly]” unwarranted claims. See
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1099
Barry, 902 F.2d at 773. Additionally, the general fees in this
case were more than ninety percent of the total attorneys fees
the court found reimbursable, a factor apparently not present
in Cairns. Our other case cited by defendants in support of the
district court’s methodology also did not concern fees to
defendants in a civil rights case. See, e.g., Hudson v. Moore
Bus. Forms, Inc., 898 F.2d 684 (9th Cir. 1990) (concerning
sanctions under Rule 11).
[5] 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 attribut-
able specifically to the defense against the wrongful termina-
tion 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 dis-
trict court found were nonfrivolous. In other words, the fee
purportedly attributable specifically to plaintiff’s 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 environ-
ment, 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
1100 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
claims, fees associated with that work cannot be awarded,
even in part.2
III
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
2
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 452
F.3d at 1063-64. We determined that the claims in that case were not “in-
tertwined” because they were “distinct” in that “the merits of each claim
could easily be evaluated separately,” in significant part because the facts
were both simple and undisputed; and the claims were argued separately
throughout the case. Id. at 1064. The circumstances in this case are quite
different. The facts are neither undisputed nor simple, and the research
required to evaluate and develop arguments with respect to many of Har-
ris’s purportedly frivolous claims was substantially the same as that neces-
sary to the defense against his nonfrivolous discrimination claims,
including disparate treatment, retaliation, and equal protection. Neverthe-
less, because Harris does not assert that his frivolous and nonfrivolous
claims were so intertwined as to make a fee award with respect to the friv-
olous claims inappropriate, we do not reach that issue here and express no
view as to which if any of Harris’s frivolous claims might be exempted
from reimbursement of defendants’ fees under Tutor-Saliba. In cases in
which particular frivolous claims are determined to be intertwined with
nonfrivolous claims, the Tutor-Saliba approach may make it unnecessary
to examine the particular work performed to the extent required under the
rules set forth above, if at all. In contrast, where the Tutor-Saliba approach
is not applicable, it will be necessary to apply the principles enumerated
herein.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1101
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 shift-
ing statute; as the Arizona Supreme Court has stated, “[m]ere
eligibility [under § 12-341.01(A)] does not establish entitle-
ment to fees.” Wagenseller v. Scottsdale Mem’l Hosp., 710
P.2d 1025, 1049 (Ariz. 1985) (en banc). Instead, a court
deciding whether to award fees under the statute must con-
sider the multifactor standard outlined in Associated Indem-
nity Corporation v. Warner, 143 Ariz. 567 (Ariz. 1985).3
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 con-
tract.” The proper inquiry for determining whether a claim
“arise[s] 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., 198 Ariz. 10, 15
(Ariz.App. Div. 1, 2000); see also A.H. By and Through
White v. Arizona Property and Cas. Ins. Guar. Fund, 190
Ariz. 526, 529 (1997) (en banc). It is well established, more-
over, that a defendant is entitled to attorney’s fees if the plain-
tiff’s claims arise out of an alleged contract that is proven not
to exist. See Chevron U.S.A. Inc. v. Schirmer, 11 F.3d 1473,
1480 (9th Cir. 1993).
[6] Here, Harris’s claims for breach of contract and the
3
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 com-
pletely 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 jurisdic-
tion; and (6) whether the award would discourage other parties with tena-
ble claims or defenses from litigating or defending legitimate contract
issues for fear of incurring liability for substantial amounts of attorney’s
fees.” Wagenseller, 710 P.2d at 1049.
1102 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
duty of good faith and fair dealing were explicitly premised
on the existence of an implicit contract that the district court
found did not exist, and thus were eligible for a fee award
under A.R.S. § 12-341.01. Additionally, while different courts
might reasonably reach different determinations as to whether
a fee award was appropriate under the Associated Indemnity
factors, we see no abuse of discretion in the district court’s
decision to award fees for these two claims. As we explained
above, however, because this is a civil rights case, in award-
ing such fees, the district court must under Arizona law
include only fees for legal work that was not performed in
whole or in part in order to defend against the nonfrivolous
civil rights claims. See Sees, 148 Ariz. at 369. Thus, the award
of fees in connection with this claim must be vacated as well.
[7] 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 lib-
erty or property interest at stake.” Guzman v. Shewry, 552
F.3d 941, 953 (9th Cir. 2009) (internal quotation marks and
citation omitted). Harris alleged that defendants deprived him
of a property interest in continued employment, a claim
apparently based on contract, but also alleged a liberty interest
in being free from defamation. See id. at 955 (“A person’s lib-
erty interest is implicated if the government levels a charge
against him that impairs his reputation for honesty or morali-
ty” (internal quotation marks and citations omitted)). While
the asserted property interest relied on the alleged contract,
the liberty interest did not. Accordingly, Harris’s due process
claim was not dependent on the existence of a contract: it
could have advanced merely on the asserted liberty interest.
Thus, fees were not available under § 12-341.01 for the due
process claim.4
4
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
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1103
B. State and federal civil rights statutes
[8] In addition to the fees sought under § 12-341.01, defen-
dants also sought fees under three civil rights statutes—
Arizona Revised Statute § 41-1481(J) and 42 U.S.C. §§ 1988and 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] Com-
mission or the United States, a reasonable attorney’s fee.” Fee
awards to prevailing defendants under all three of these stat-
utes are governed by the same standard: the court may award
attorney’s fees only if it finds that “the plaintiff’s action was
frivolous, unreasonable, or without foundation, even though
not brought in subjective bad faith.” Christiansburg Garment
Co, 434 U.S. at 421; Hughes v. Rowe, 449 U.S. 5, 14 (1980);
Sees, 714 P.2d at 862. “In determining whether this standard
has been met, a district court must assess the claim at the time
the complaint was filed, and must avoid post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail,
his action must have been unreasonable or without founda-
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.” Eng-
quist 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 Machin-
ists and Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 790 F.2d
727, 732 -733 (9th Cir. 1986), and defendants do not contend that they
would be prejudiced by our considering it.
1104 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
tion.” Tutor-Saliba Corp., 452 F.3d at 1060 (quotation marks
omitted).
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.5 For each of these claims,
Harris challenges the district court’s determination that fees
were appropriate.6
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 con-
cerning gender. It found that Harris’s gender-based subclaim
was frivolous because it was filed more than 300 days — the
5
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., 229 F.3d 831, 835 (9th Cir. 2000). Harris’s Amended Complaint,
however, includes no disparate impact claim; it appears that he did not
properly plead the elements of the claim because he did not make the
claim in the first place. It is, however, not necessary to explore why the
district court identified and passed judgment on a claim absent from the
Complaint, as in the end it awarded no fees with respect to it.
6
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., 969
F.2d 266, 271-72 (7th Cir. 1992). Whether fees are available to defendants
for such claims under § 1988 and the other civil rights fee statutes is an
open question in our Circuit. We do not address it here because Harris
failed to challenge the district court’s decision on this point. Accordingly,
our discussion of these claims should not be read as an endorsement of
Munson’s reasoning or of the district court’s conclusion.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1105
time limit imposed by Title VII — after the last act of dis-
crimination alleged by Harris that the district court catego-
rized 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 con-
duct based on his race, as would be required for relief under
Title VII.
[9] 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 plau-
sible that gender and race could together give rise to discrimi-
nation in the manner Harris alleged: he claimed that false
sexual harassment allegations were made against him and that
action was taken on these false charges because of the combi-
nation of his race and gender. Prejudiced individuals have
long promulgated a pernicious image of black men as sexual
predators; a view that they do not hold with respect to men of
other racial backgrounds or with respect to black women. See,
e.g., Powell v. State of Alabama, 287 U.S. 45 (1932). Courts,
moreover, have properly shown solicitude for claims based on
the intersection of different categories of discrimination. See
Jefferies v. Harris Co. Community Action Ass’n, 615 F.2d
1025, 1032 (5th Cir. 1980) (“discrimination against black
females [could] exist even in the absence of discrimination
against black men or white women”).
[10] Nevertheless, the district court did not err in determin-
ing 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.,
1106 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
Inc., 192 F.3d 902, 908 (9th Cir. 1999). The discriminatory
conduct that Harris alleged fell short of meeting this condi-
tion, and Harris himself did not allege that the condition was
met. While Harris’s allegations of discrimination were suffi-
cient to make out a prima facie case of disparate treatment
under Title VII, they were obviously insufficient for a hostile
work environment claim.
[11] 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 multi-
ple claims, only some of which are groundless, a defendant is
entitled only to those fees attributable exclusively to defend-
ing against plaintiff’s frivolous claims. If the work is per-
formed in whole or in part in connection with defending
against any of plaintiff’s 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
[12] The district court found Harris’s false light/invasion
of privacy claim frivolous because as a “limited purpose pub-
lic 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, “be-
yond the general public interest in the . . . performance of all
government employees.” Rosenblatt v. Baer, 383 U.S. 75, 86
(1966). Under Arizona law, such a public official cannot sue
for false light invasion of privacy if the publication about
which he complains relates to his performance of his public
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1107
duties. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.
335, 343 (Ariz., 1989).
[13] 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 con-
clusion, however, was a set of cases concerning law enforce-
ment officers, who are presumptively public officials. See id.(“Police and other law enforcement personnel are almost
always classified as public officials.”). Such cases are an
insufficient basis on which to conclude that the issue raised by
Harris — whether a hearing officer or similar low level judi-
cial officer is so important a public employee that the public’s
interest in him is “beyond the general public interest in the . . .
performance of all government employees” — has been
answered “clearly by . . . precedent,” as the district court was
required to do before deeming the false light claim in this case
frivolous. See Gibson, 561 F.3d at 929. Even in cases that do
not involve civil rights, we have been extremely hesitant to
find claims meritless; the bar is higher still when considering
the claims of a plaintiff seeking vindication of his civil rights.
See Taylor AG Indus. v. Pure Gro, 54 F.3d 555, 563 (9th Cir.
1995) (finding that a claim was not “wholly without merit”
despite negative cases from seven other circuits and the
Supreme Court because no case in this circuit had so held);
see also Hughes v. Rowe, 449 U.S. 5, 16 & n.13 (1980) (the
fact that a petitioner’s claims, even where they failed to state
a claim on which relief could be granted, warranted the “de-
tailed” consideration of a seven page district court opinion
indicated that they were not frivolous). Harris’s false light
claim did not in any way approach the level of futility
required to treat its outcome as obvious and the claim as being
without merit; instead, it presented a question that, so far as
we are aware, has not been previously answered by any court.
Rather than being frivolous, it performed the salutary function
of giving a court the opportunity to address a previously unan-
swered question.
1108 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
Wrongful termination
[14] To prevail on a wrongful termination claim under Ari-
zona 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. § 23-1501(3)(b); Taylor v. Graham County
Chamber of Commerce, 33 P.3d 518, 521-26 (Ariz. Ct. App.
2001). Harris identified as the only bases for his wrongful ter-
mination claim a federal statute and an Arizona statute that
provides it own remedy for a statutory violation. Because the
result of such a patently inadequate claim is obvious, the dis-
trict court did not err by determining that it was frivolous. See
Gibson, 561 F.3d at 929. Of course, the fees properly attribut-
able to this claim, which placed on defendants only the bur-
den of examining the basic legal requirements for such a
claim, which are set forth on the face of the statute, would
unquestionably be quite small.
Negligent or intentional infliction of emotional distress
[15] The district court relied on an erroneous legal stan-
dard to reach its determination that Harris’s negligent inflic-
tion 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, 593 P.2d 668, 669 (Ariz. 1979).
According to the district court, Harris’s claim was frivolous
because he failed to allege in his complaint that he had suf-
fered any physical injury; instead he alleged only that he had
suffered “severe emotional distress.” “Bodily harm,” how-
ever, is a broader concept under Arizona law than might be
suggested by the common usage of the term. In particular, it
comprehends “substantial, long-term emotional disturbances”
unaccompanied by any physical injury, see Monaco v. Health-
Partners of Southern Arizona, 196 Ariz. 299, 303 (Ariz.App.
Div. 2 1999). Accordingly, Harris’s invocation of “severe
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1109
emotional distress” in his complaint appears sufficient as a
matter of pleading.
[16] 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, substan-
tial 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.
[17] The district court made a different but related error
with respect to Harris’s intentional infliction of emotional dis-
tress 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 alle-
gations 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” con-
duct 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 Chris-
tianburg, 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, 434 U.S. at 421-22.
Here, the district court appears to have succumbed to the very
understandable temptation of which the Supreme Court
warned. The fee award as to this claim cannot stand on the
ground asserted by the district court.
IV
[18] The district court also awarded defendants fees
incurred in preparing their motion for attorneys fees. This
1110 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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., 67 F.3d 248, 253
(9th Cir. 1995) (§ 1988(b)); Manhart v. City of Los Angeles,
Dept. of Water and Power, 652 F.2d 904, 909 (9th Cir. 1981)
(§ 2000e-5(k)). Similarly, Arizona law supports the recovery
of attorneys fees for the preparation of a successful fee appli-
cation. See generally Schweiger v. China Doll Rest., Inc., 673
P.2d 927, 931-32 (Ariz. Ct. App. 1983). Such awards are, of
course, subject to the same reasonableness determination as
all other attorneys fees awards, including considering the
results obtained by the party seeking the award. See Blan-
chard, 489 U.S. 91 n.5. On remand, the district court shall
evaluate whether fees for defendants’ fee motion are still
proper in light of this opinion, and the amount of fees that
ultimately should be awarded, if any.
V
Harris also challenges the district court’s award of nontax-
able expenses. Defendants sought $53,533.66 in nontaxable
expenses such as computerized legal research, factual investi-
gation, 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, 973 P.2d 106, 109 (Ariz. 1999), awarded
expenses for the claims that it designated as not arising from
a contract. Because defendants did not break down their
expenses on a claim by claim basis, the district court simply
“pro-rated” defendants’ expenses: by the district court’s
count, two and one-half of Harris’s ten claims were contract-
based, and seven and one-half were not, so the district court
awarded defendants 75% of the expenses that they reported.
[19] Harris does not challenge the potential availability of
expenses to a prevailing defendant as part of an attorney fee
award under Arizona Revised Statute § 41-1481(J) and 42
U.S.C. §§ 1988 and 2000e-5(k). He does, however, correctly
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1111
contend that expenses are recoverable only as “part of the
award of attorney’s fees,” Harris v. Marhoefer, 24 F.3d 16,
19 (9th Cir 1994), and thus that defendants may recover their
out-of-pocket expenses only with respect to claims for which
attorney’s fees were recoverable — in other words, Harris’s
frivolous claims, and not simply all of his non-contractual
claims. The district court, accordingly, erred by awarding
expenses with respect to claims for which no award of attor-
neys fees was appropriate.
[20] Additionally, the district court erred in its equal divi-
sion 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 dem-
onstrate 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.7 Defendants’
expense petition, which does not allocate defendants’ substan-
tial expenses to the claims for which they were incurred, is
plainly insufficient.
VI
Harris’s briefs are scattershot affairs containing numerous
issues, many of which are insufficiently developed. Those
7
We note, additionally, that the expenses submitted by defendants were
woefully lacking in detail. For instance, although the invoices from Inves-
tigative Research, Inc. submitted by defendants ran into the thousands of
dollars, the claims for which these expenses were incurred were not identi-
fied, and nowhere in the application for expenses was there a description
of the work performed by Investigative Research, Inc. other than the nota-
tion “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 “identif[ies] 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).
1112 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 dis-
missal 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, 983 F.2d 152, 154 (9th Cir. 1993).
VII
For the reasons stated above, we vacate the award of attor-
neys fees and remand to the district court for further proceed-
ings consistent with this opinion.
VACATED AND REMANDED
BYBEE, Circuit Judge, concurring in the judgment in part,
but mostly dissenting:
In Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9th
Cir. 2006), we held that “attorney’s fees may be awarded to
a defendant in a [civil rights] action when frivolous claims are
joined with claims that are not frivolous.” Id. at 1063. What
we gave in Tutor-Saliba, we take away today.
The majority holds that civil rights cases trigger an addi-
tional level of scrutiny of defendant’s claims to attorney’s
fees—scrutiny beyond requiring them to prove that the plain-
tiff’s claims were “frivolous, unreasonable, or without foun-
dation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978). Relying entirely upon its own conception of “civil
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1113
rights policy,” the majority fabricates a new rule: “In a civil
rights case, such as this one, the pro-rata allocation of general
fees . . . is impermissible.” Maj. Op. at 1095; see also id. at
1098. Henceforth, a defendant may not recover attorney’s fees
unless it can prove that “fees would not have been [incurred]
but for the inclusion of non frivolous claims.” Id. at 1097
(emphasis added). The majority has so whittled away at
defendants’ right to receive attorney’s fees that defendants
should reconsider whether any recovery is possible. See Maj.
Op. at 1097 (“the burden on the defendant to establish that
fees are attributable solely to the frivolous claims is from a
practical standpoint extremely difficult to carry”). I disagree
with this double bonus to civil rights plaintiffs because it is
extralegal and counterproductive, not only for reasons that
“go to the heart of our civil rights policy,” id., but for reasons
that go to the heart of the administration of justice.
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
plaintiff’s frivolous claims are intertwined with nonfrivolous
claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993); Fox
v. Vice, 594 F.3d 423 (5th Cir. 2010), cert. granted, 131 S. Ct.
505 (Nov. 1, 2010) (No. 10-114); Curry v. A.H. Robins Co.,
775 F.2d 212 (7th Cir. 1985); Quintana v. Jenne, 414 F.3d
1306 (11th Cir. 2005); Head v. Medford, 62 F.3d 351 (11th
Cir. 1995). The one clear outlier is the Sixth Circuit, which
has adopted a rule that a prevailing defendant may not recover
attorney’s fees if the plaintiff has raised even one nonfrivo-
lous claim. See Balmer v. HCA, Inc., 423 F.3d 606, 616-l7
(6th Cir. 2005). The majority does not agree outright with any
of these circuits—thus enabling the split—but its position is
closest to the Sixth Circuit’s plainly unreasonable rule. We
can anticipate further guidance from the Court when it
1114 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
decides Fox, a case in which it recently granted a writ of certio-
rari.1
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 Appear-
ance Hearing Officer (or Commissioner) with Maricopa
County Superior Court. Within five months of his appoint-
ment, Harris was under investigation for complaints that he
had engaged in inappropriate conduct toward female staff and
using court staff for his personal correspondence. After the
Superior Court determined that Harris had violated the canons
of judicial ethics and engaged in unprofessional conduct, the
Superior Court gave him the option of resigning or being
fired. He resigned.
Harris then brought suit against the Superior Court, the Ari-
zona 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 discrimina-
tion, 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
1
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?
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1115
$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 fol-
lowing 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 appor-
tioning 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 frivo-
lous 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 adjust-
ments, at about $171,000. The court declined to enhance the
lodestar and then reduced the lodestar by roughly 50 percent
because of the plaintiff’s 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.” Ulti-
mately, the court awarded the defendants $85,500 in attor-
ney’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., 452 F.3d at
1059. This standard applies to all aspects of our review,
including review of the district court’s decision to award fees
under Arizona state law, Chevron U.S.A. Inc. v. Schirmer, 11
F.3d 1473, 1480 (9th Cir. 1993); the district court’s decision
that particular claims are “groundless” or “unreasonable”
under state law, Cairns v. Franklin Mint Co., 292 F.3d 1139,
1116 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
1156 (9th Cir. 2002); the district court’s decision to award
fees under § 1988, Benton v. Oregon Student Assistance
Com’n, 421 F.3d 901, 904 (9th Cir. 2005); the district court’s
decision that constitutional claims are frivolous, Tutor-Saliba
Corp., 452 F.3d at 1061; the district court’s decision to award
fees for the preparation of the motion for attorney’s fees,
McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir.
1995); and the district court’s decision concerning the manner
in which to calculate the awarded fees, Hensley v. Eckerhart,
461 U.S. 424, 433-34 (1983); Cairns, 292 F.3d at 1156-57.
Despite our clear precedent, the majority is unwilling to
give way to the district court on anything: “[t]he principal
issues in this case are legal in nature and therefore reviewed
de novo.” Maj. Op. at 1094. The majority apparently derives
this de novo standard of review from what has become boiler-
plate language in attorney’s fees opinions: “Elements of legal
analysis and statutory interpretation that figure into the district
court’s attorney’s fees decision are reviewable de novo.”
Tutor-Saliba Corp., 452 F.3d at 1059, quoting Richard S. v.
Department of Developmental Services of State of California,
317 F.3d 1080, 1086 (9th Cir. 2003), citing Fischer v. SJB-
P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000), citing Corder
v. Gates, 104 F.3d 247, 249 (9th Cir. 1996), quoting Kilgour
v. City of Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995), quot-
ing Cabrales v. County of Los Angeles, 935 F.2d 1050, 1051
(9th Cir. 1991), quoting Hall v. Bolger, 768 F.2d 1148, 1150
(9th Cir. 1985). We have never cited the boilerplate as a stan-
dalone standard of review in attorney’s fees cases.
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 deter-
mination about how to calculate the attorneys’ fee award, but
that this discretion “must be exercised in light of the consider-
ations we have identified.” Hensley, 461 U.S. at 437. Our
cases demonstrate that we have reviewed certain issues in fee
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1117
awards de novo when they relate to some “element[ ] of legal
analysis.” Cabrales, 935 F.2d at 1052 (reviewing the district
court’s denial of fees based on its decision that it was legally
precluded from awarding fees); see also, e.g., Hall, 768 F.2d
at 1150, 1151 (reviewing the district court’s holding that sov-
ereign immunity did not preclude it from awarding interest on
attorney’s fees).
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 Hens-
ley, 461 U.S. at 432; Cairns, 292 F.3d at 1156-57.
III
The majority establishes a new rule for prevailing defen-
dants 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 attor-
ney’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 “friv-
olous, unreasonable, or . . . foundation[less]” claims. Chris-
tiansburg, 434 U.S. at 421. Thus, “expressly in order to avoid
discouraging civil rights plaintiffs from bringing suits, and
1118 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
thus undercutting the efforts of Congress to promote the vig-
orous enforcement of the civil rights laws,” Maj. Op. at 1096
(internal quotations omitted), after Christiansburg, defendants
unlike plaintiffs—can only recover their attorneys costs in
exceptional circumstances, for frivolous claims.
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 reward-
ing plaintiffs for raising groundless and frivolous litigation
against cash-strapped defendants like Maricopa County, who
must then spend their limited funds defending against unrea-
sonable 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 litiga-
tion. See Munson v. Milwaukee Bd. of Sch. Directors, 969
F.2d 266, 269 (7th Cir. 1992) (“[W]hen a civil rights suit is
lacking in any legal or factual basis . . . , an award of fees to
the defendant is clearly appropriate to deter frivolous filings
and to ensure that the ability of the courts to remedy civil
rights violations is not restricted by dockets crowded with
baseless litigation.”) (alterations in original) (citations omit-
ted). Finally, the majority’s decision diminishes legitimate
civil rights claims by suggesting that we cannot even distin-
guish between nonfrivolous and outright frivolous claims and
that anyone filing a civil rights claim may play by a different
set of rules from everyone else.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1119
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, Sev-
enth, and Eleventh Circuits have held that prevailing defen-
dants must be allowed to recoup the cost of defending against
frivolous civil rights claims, even if those claims are interre-
lated with nonfrivolous ones.
In Ward, 996 F.2d 448, the First Circuit expressly held that
the interrelatedness of frivolous and nonfrivolous claims may
not be used as a reason to deny attorney’s fees to prevailing
plaintiffs in civil rights cases. Id. at 455. The circuit court
reversed the district court’s denial of attorney’s fees because
of the lower court’s “reliance on the interrelated claims doc-
trine,” a doctrine that enables a court to grant a fee award “in-
clud[ing] fees for work performed on unsuccessful claims if
that party’s unsuccessful claims are interrelated to the suc-
cessful claims by a common core of facts or related legal the-
ories.” Id. The First Circuit held that the district court had
improperly relied on the doctrine, denying all fees to the pre-
vailing defendants and allowing “frivolous civil rights claims
[to] waste judicial resources that would otherwise be used for
legitimate claims.” Id. The First Circuit concluded: “[A] dis-
trict court should not deny fees for defending frivolous claims
merely because calculation would be difficult.” Id. at 455-56.
The circuit court remanded to the district court for recalcula-
tion. Id. at 456.
When presented with the question of an attorneys’ fee
award for interrelated frivolous and nonfrivolous civil rights
claims, the Fifth Circuit agreed with the First Circuit. In Fox
v. Vice, 594 F.3d 423 (5th Cir. 2010), cert. granted, 131 S. Ct.
505 (Nov. 1, 2010) (No. 10-114), the Fifth Circuit held that
“a defendant does not have to prevail over an entire suit in
order to recover attorney’s fees for frivolous § 1983 claims”
1120 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
because requiring otherwise “would undermine the intent of
Congress to allow plaintiffs to prosecute frivolous claims
without consequences merely because those claims were
joined with additional non-frivolous claims.” Id. at 428 (quot-
ing Tutor-Saliba Corp., 452 F.3d at 1064 (quoting Quintana,
414 F.3d at 1312)) (internal quotation marks omitted). Quot-
ing from our opinion in Tutor-Saliba Corp., the Fifth Circuit
noted, “[s]uch a rule would also make a defendant’s entitle-
ment to attorney’s fees ‘depend not upon a district court’s
review of the merits of a plaintiff’s § 1983 claims, but upon
how a plaintiff chose to draft his complaint.’ ” Id. at 428-29
(quoting Tutor-Saliba Corp., 452 F.3d at 1064).
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, 775 F.2d 212, the Seventh Circuit affirmed a
district court decision granting fees to prevailing defendants
in a civil rights case, even though the claims for which the
defendants merited fees were interrelated with other claims
“which might not properly be characterized as frivolous.” Id.
at 220. The Seventh Circuit reasoned that such fees were mer-
ited because “to be a prevailing party under § 1988, a party
need not prevail on all issues if a significant one is resolved
in its favor.” Id. (alteration, quotation marks, and citations
omitted).
Likewise, the Eleventh Circuit has repeatedly held that pre-
vailing 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,
414 F.3d at 1312; Head, 62 F.3d 351. In Quintana, the Elev-
enth Circuit affirmed the district court’s decision to award
fees for a claim of retaliation, which the court had found was
frivolous, but reversed the district court’s decision to award
fees for a claim of discrimination, which the court had found
to be not frivolous. The Eleventh Circuit made clear, how-
ever, that it was not holding “that a civil rights defendant may
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1121
receive attorney’s fees for an unsuccessful claim that is not
frivolous” because “[s]uch a holding would frustrate the goal
of Congress that the provisions of Title VII be enforced vigor-
ously.” Quintana, 414 F.3d at 1312.2 Rather, in Quintana, the
Eleventh Circuit relied upon its own precedent in Head,
which established that it was the province of the district court
to “properly . . . weigh and assess the amount of attorney’s
fees realistically attributable solely and exclusively to the
plaintiff’s” frivolous claims. 62 F.3d at 356. Thus, in the
Eleventh Circuit it is well established that although prevailing
defendants may not recover the costs of defending against
nonfrivolous civil rights claims, they must recover the costs
of defending against frivolous ones, which apportionment the
district courts are equipped to make, even in cases in which
the compensable claims are interrelated with non-
compensable ones.
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 circum-
stances such as those presented to us today. In fact, so have
we. See Tutor-Saliba Corp., 452 F.3d at 1064. In holding to
the contrary, the majority has rejected our own precedent, as
well as the reasoning of a majority of other circuits.3
2
Based upon the Eleventh Circuit’s reasoning, on remand the district
court conducted a pro rata calculation—“split[ting] a majority of the bill-
ing 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.
3
The only circuit holding to the contrary is the Sixth Circuit, and it bars
such awards outright. Balmer v. HCA, Inc., 423 F.3d 606, 616-l7 (6th Cir.
2005) (“[I]n this circuit attorneys’ fees may not be awarded to defendants
where the plaintiff has asserted at least one non-frivolous claim”). The
1122 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
Inasmuch as the majority opinion imposes an additional
burden on prevailing defendants in civil rights cases—beyond
that imposed by Christiansburg and in contravention of our
precedent and the majority of circuits—I respectfully dis-
agree.
B
Once prevailing defendants have carried their heavy burden
of establishing that plaintiff’s claims are frivolous, they
should be entitled to attorney’s fees on the same basis as pre-
vailing 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, 292 F.3d 1139, we held that a district court may
make a pro rata allocation of general fees. We affirmed the
district court’s decision to make two pro rata allocations: first,
as between publicity and trademark claims, and second, as
among the trademark claims. As to the first allocation, the dis-
trict court found that because the right of publicity claim was
held on interlocutory appeal while the trademark claims
required full litigation, it was more appropriate to allocate
one-quarter of the general fees to the publicity claim and
Second Circuit’s rule is more ambiguous and may be specific to the case.
See Colombrito v. Kelly, 764 F.2d 122, 132 (2d Cir. 1985) (“Since the
[§ 1983 and § 1985(3)] claims were closely intertwined and since the con-
tinuation of the § 1983 claim past discovery had only scant effect on the
time and other resource costs of the litigation, the defendants would not
be entitled to an award of fees even if the continuation of the § 1983 past
discovery were frivolous.”). We noted Colombrito in Tutor-Saliba Corp.
and rejected it in favor of the Eleventh Circuit’s reasoning in Quintana.
See 452 F.3d at 1063-64.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1123
three-quarters to the trademark claims. Id. at 1158. As to the
second allocation, the district court found that because one of
the three trademark claims was unreasonable and was there-
fore not recoverable, id. at 1156, it was appropriate to reduce
the trademark claim fee allocation by about one-third, or
thirty percent. Id. at 1156. The district court then reduced the
award based on other equitable considerations. Id. at 1158-59.
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 impossibility of making
an exact apportionment [between compensable and non-
compensable claims] does not relieve the district court of its
duty to make some attempt to adjust the fee award in an effort
to reflect an apportionment.’ ” Id. at 1157 (quoting Gracie v.
Gracie, 217 F.3d 1060, 1070 (9th Cir. 2000)). Relying
expressly upon that affirmation, the district court here did
what the Cairns district court did—it used its discretion to
divide pro rata the unspecified general fee money among the
various claims, to “reflect an apportionment” as a starting
point for further equitable accommodations. Id.The majority opinion argues that Cairns is not relevant—
and is therefore not precedential—because Cairns “was not a
civil rights case, and thus did not implicate our longstanding
policy of solicitude for civil rights plaintiffs, and our insis-
tence that they be required to reimburse defendants only for
fees incurred in defense against ‘exceptional[ly]’ unwarranted
claims.” Maj. Op. at 1098. This argument is smoke and mir-
rors. Although Cairns was not a civil rights case, it was a
Lanham Act case, which, like civil rights cases, allows pre-
vailing 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, 292
1124 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
F.3d at 1156 (quoting Avery Dennison Corp. v. Sumpton, 189
F.3d 868, 881 (9th Cir. 1999) (quoting Stephen W. Boney, Inc.
v. Boney Servs., Inc., 127 F.3d 821, 827 (9th Cir. 1997))).
Though this language differs slightly from that applicable to
civil rights cases—the Lanham Act affords fees for claims
that are “groundless, unreasonable, vexatious, or pursued in
bad faith,” id., where only claims that are “frivolous, unrea-
sonable, or without foundation” can give rise to attorney’s
fees for defendants in civil rights cases, Christiansburg, 434
U.S. at 421—the difference does not seem to be meaningful
for purposes of distinguishing Cairns from civil rights cases.
In my view, Cairns should control our discussion here.
We get into this discussion about Cairns and the allocation
of general fees, of course, because the defendants did not pro-
vide claim-specific documentation for all of their fees. Defen-
dants 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, 234 F.3d
415, 427 (9th Cir. 2000) (“The burden of establishing entitle-
ment to an attorney’s fees award lies solely with the claim-
ant.”) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 n.12
(1983) (emphasis added)). But unlike the majority, who
believes such a responsibility grows out of civil rights policy
considerations and therefore may affect plaintiffs and defen-
dants differently, I recognize that this burden is always
imposed on the fee claimant, whether plaintiff or defendant.
Although this case may not require that we decide what a
plaintiff’s burden for documentation would be, see Maj. Op.
at 1096-97 n.1, the majority seizes this reprieve to impose an
asymmetrical burden on defendants. It adopts an unprece-
dented, burdensome “but for” documentation rule: “Accord-
ingly, a defendant must demonstrate that the work for which
it asserts that it is entitled to fees would not have been per-
formed but for the inclusion of the frivolous claims in the
complaint.” Maj. Op. at 1097 (emphasis added). The majority
itself expressly acknowledges that, under its punishingly strict
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1125
formulation of the principle, “the burden on the defendant . . .
is from a practical standpoint extremely difficult to carry.”
Maj. Op. at 1097. This heightened burden on defendants orig-
inates with the majority. It does not grow out of the relevant
statutory language or case law, neither of which indicate that
—except for the Christiansburg exception to what kinds of
claims merit fees for defendants—plaintiffs and defendants
are to be treated differently in their application for fee awards.
42 U.S.C. § 1988; Trustees of Directors Guild of America-
Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 427
(9th Cir. 2000). For this reason, I disagree with the majority
opinion insofar as it imposes a documentation burden on the
defendants that would not be applied likewise to a prevailing
plaintiff.
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 “con-
1126 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
tested 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, 694 P.2d
1181, 1184 (Ariz. 1985), the district court awarded the defen-
dants attorney’s fees for two and a half claims it determined
arose out of contract: (1) breach of contract; (2) breach of
covenant of good faith and fair dealing; and (3) the due pro-
cess property interest half of count nine in Plaintiff’s
Amended Complaint. It found that the contract claims were
frivolous because Harris did not have a contract. The due pro-
cess claim was similarly infirm because Harris was an at-will
employee and thus lacked a potential property interest in his
employment.
The majority agrees that the contract claims are frivolous
but vacates the award anyway. Maj. Op. at 1102. It reasons
that “under Arizona law it is impermissible to require a plain-
tiff to pay fees that a prevailing defendant incurred in whole
or in part defending against nonfrivolous civil rights claims.”
Maj. Op. at 1098 (citing Sees v. KTUC, Inc., 714 P.2d 859,
862 (Ariz. App. 1985)). The problem with this statement is
that it is false. The majority has conflated its own, new civil
rights attorney’s fees rule with Arizona’s contractual claims
attorney’s fees rule. The Sees case deals with fees under ARS
§ 41-1481(J) and ARS § 12-341.01(C), neither of which are
contract-related attorney’s fees provisions. Here, the Superior
Court sought—and the district court awarded—fees for
contract-based claims under ARS § 12-341.01(A) (emphasis
added), which was not at issue in Sees and was not there bur-
dened with the civil rights policies at issue in Sees. Therefore,
all of the majority’s cites to Sees in its contract claims analy-
sis are inapposite. In relying upon Sees, the majority has pro-
jected its own new civil rights rule onto Arizona contract law.
There is no precedent in Arizona for the majority’s move.
The majority also vacates the due process claim award
because the plaintiff may have referenced a “liberty interest
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1127
in being free from defamation” in addition to his “property
interest in continued employment.” Maj. Op. at 1102-03 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 major-
ity 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., 452 F.3d at 1061; Cairns, 292 F.3d at
1156.
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 sta-
tus recognized by state law,” for it to be successful. As we
made clear in Wenger v. Moore, 282 F.3d 1068, 1074 (9th
Cir. 2002), “injury to reputation standing alone does not vio-
late the Due Process Clause of the Fourteenth Amendment
. . . . Rather, due process protections apply only if a plaintiff
is subjected to ‘stigma plus.’ ” Stigma plus requires that the
allegedly defamatory statement have been “made in connec-
tion with the termination of employment or the alteration of
some right or status recognized by state law.” Id. In other
words, Harris needed both evidence of defamation and evi-
dence that he was terminated or otherwise experienced an
alteration in some “right or status recognized by law.” Here,
Harris was not terminated; he resigned. Therefore, Harris
must have been relying upon the “alteration of some right or
status recognized by state law” language for his liberty inter-
est due process claim. In this case, Harris could not identify
what he was relying upon as a “right or status recognized by
state law.” The majority doesn’t identify one either. For my
part, I cannot think of what “right or status recognized by
state law” the plaintiff’s liberty interest due process claim
would rest on, other than the alleged contract. Because the
plaintiff’s liberty interest due process claim must have relied
1128 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
upon his alleged right to employment, the district court did
not abuse its discretion in lumping together the plaintiff’s
property and liberty interest due process claims, identifying
them as being contract-based, and awarding fees for them
under § 12-341.01(A). I would affirm the attorney’s fees
awarded under ARS § 12-341.01(A).
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, 940 F.2d 1561, 1572 (9th Cir. 1991); Sees,
714 P.2d at 862. There are eight claims here: (1) hostile work
environment; (2) race discrimination; (3) false light/invasion
of privacy; (4) wrongful termination; (5) negligent and inten-
tional infliction of emotional distress; (6) defamation; (7)
equal protection4; and (8) tortious interference with a business
relationship. In addition, Maricopa County requested fees for
the work required to file its motion for attorney’s fees. I will
address each of these nine fee requests in turn.
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 1105 (citing
Powell v. State of Alabama, 287 U.S. 45 (1932), and Jefferies
v. Harris Co. Community Action Ass’n, 615 F.2d 1025, 1032
(5th Cir. 1980)). The majority’s disagreement with the district
4
Although equal protection is listed here as one claim, it actually repre-
sents one half of count nine in Harris’s First Amended Complaint.
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1129
court’s treatment of this claim is another example of the
majority’s failure to remember its task: review for abuse of
discretion the district court’s determination of the frivolous-
ness of the plaintiff’s claims. Ultimately our disagreement on
this point is irrelevant, however, because the majority con-
cedes that even as transmogrified, the plaintiff’s claim was
frivolous. As to the frivolousness of the claim, I agree, for the
reasons offered by the district court.
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
“[a]lmost 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 dis-
crimination claims,” the district court improperly awarded
fees. Maj. Op. at 1106. 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., 452 F.3d at 1063-64; Cairns, 292
F.3d at 1157. It is only because the majority has created a
new, nearly impossible hurdle for Maricopa County that it
reverses the award. But under any fair reading of our prior
law, the district court did exactly what it should have and
there was no abuse of discretion.
2
Like the majority, I do not think it was an abuse of discre-
tion for the district court not to award fees for the race dis-
crimination claim.
1130 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 cor-
rect 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 plain-
tiff to claim that, as a hearing officer, Harris was not a limited
interest public figure where such a claim had never before
been decided by a relevant court. I agree with the majority
that the award for the false light/invasion of privacy claim
should be vacated.
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 1108 (“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 award-
ing 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 Plaintiff’s 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 superior understand-
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1131
ing of the litigation and the desirability of avoiding frequent
appellate review of what essentially are factual matters.” 461
U.S. at 437. Though the majority might have made a different
decision, it was not an abuse of discretion for the district court
to award equal fees to this as to the other fee-recoverable
claims.
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 dis-
tress claim, the majority is wrong—the district court did not
apply “an erroneous legal standard” by requiring that emo-
tional distress “result in illness or bodily harm in order to
recover for negligent infliction of emotional distress.” Maj.
Op. at 1108 (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, 593 P.2d 668, 669 (Ariz. 1979); Ball v.
Prentice, 781 P.2d 628, 630 n.1 (Ariz. App. 1989). Second,
the majority relies upon Monaco v. HealthPartners of South-
ern Arizona, 196 Ariz. 299, 303 (Ariz. App. 1999), for the
proposition that “ ‘substantial, long-term emotional distur-
bances’ unaccompanied by any physical injury” can give rise
to an NIED claim. Maj. Op. at 1108-09. The majority mis-
reads Monaco. The plaintiff in Monaco suffered physical
manifestations of his anxiety, including profound trouble
sleeping, teeth grinding, and nightmares, and was diagnosed
with post-traumatic stress disorder. Id. at 303. More impor-
tantly, Arizona cases subsequent to Monaco have required a
showing of bodily harm for an NIED claim under Arizona
state law, just as the district court said was required. See Loza
v. American Heritage Life Ins. Co., 2010 WL 716322, at *6
(D. Ariz. Feb. 25, 2010) (“To establish a claim for negligent
infliction of emotional distress, [the plaintiff] must prove
1132 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
physical injury.”); State Farm Mutual Automobile Insurance
Co. v. Connolly, 212 Ariz. 417, 423 (Ariz. App. 2006) (“[T]he
plaintiff in a negligent infliction of emotional distress action
must prove not just emotional distress, but a physical injury
that results from the emotional distress”). As the district court
found in this case, the plaintiff only alleged “general claims
of ‘severe emotional distress.’ ” These general and unsubstan-
tiated allegations do not meet Arizona’s standard for a show-
ing of emotional distress, and it was not an abuse of discretion
for the district court to find the NIED claim frivolous and
award fees.
With respect to the intentional infliction of emotional dis-
tress (“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 suf-
ficient as it was based solely on allegations, which “Arizona
courts have typically found [are] alone not enough to consti-
tute” 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 1109. 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 out-
rageous 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 rea-
soning” the Supreme Court cautioned against in Christians-
burg. 434 U.S. at 421-22 (italics omitted). Therefore,
although I agree with the majority that the IIED award should
be vacated, I would remand with instructions that, if the dis-
trict court wanted to reinstate the award for this claim, it
should explain the apparent divergence in its holdings and
why, its earlier holding notwithstanding, the plaintiff’s claim
HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1133
was sufficiently frivolous as to merit attorney’s fees. See Hen-
sley, 461 U.S. at 437 (“It remains important . . . for the district
court to provide a concise but clear explanation of its reasons
for the fee award.”).
6-8
It was not an abuse of discretion for the district court to
find that the defamation, equal protection, and tortious inter-
ference 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, enti-
tled 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 discre-
tion. With respect to the expenses awarded, I believe the dis-
trict court must make adjustments for the false light/invasion
of privacy and intentional infliction of emotional distress, for
reasons I have explained.
1134 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
I disagree with the majority’s decision to reverse the dis-
trict court’s pro rata allocation based on the majority’s novel
“but for” award rule. Because I disagree with the majority that
the district court’s pro rata allocation is invalid, I also dis-
agree with the majority that the district court’s pro rata alloca-
tion of expenses is invalid. I would find that the district court
did not abuse its discretion by using a pro rata allocation of
expenses, though, as discussed, it abused its discretion by
awarding expenses to the defendants for work defending two
claims that were not fee recoverable.
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.