Attorneys’ Fees For The Prevailing Defendant in Federal Civil Rights Cases?



By: Claudia D. Orr 


Don’t get too excited. Theoretically that is possible under 42 U.S.C. § 1988, which provides courts with the discretion to award reasonable attorneys’ fees to the “prevailing party”.  However, in a curt, one page opinion, the US Supreme Court just dashed the hopes of employers throughout the land when it re-affirmed the very high standard for the award: the plaintiff’s claims must be “frivolous, unreasonable, or without foundation.” James v. City of Boise, Idaho, 136 S. Ct. 685, 686 (2016)(citing, Hughes v. Rowe, 449 U.S. 5 (1980)).

But, what I found more interesting is the route this case took to the Supreme Court. It began in a lower state court in Idaho and worked its way up to the Idaho Supreme Court. The state supreme court provided lip service to the Hughes decision but then basically declared that, while the US Supreme may have authority to limit the discretion of lower federal courts,” it can’t boss around state courts!  And, with that, it awarded the prevailing employer its attorneys’ fees in a case that had been brought under a federal civil rights law.

The US Supreme court granted certiorari, agreeing to hear the case. It then began by emphasizing that this case involved a federal civil rights statute and it is its responsibility to say what federal law means and, once it has spoken, it is the duty of all courts to respect that ruling. It then quoted a 200 year old Supreme Court decision which explained that if state courts are permitted to ignore the Supreme Court’s decisions, federal laws would never have precisely the same meaning in any two states. The nine federal justices then declare that the Idaho Supreme Court is bound by its prior decision in Hughes and reversed and remanded the case back to Idaho Supreme Court “for further proceedings not inconsistent with this opinion.” (Emphasis added.)

The take away? Once the Supremes have spoken, it is the law of the land and an employer is faced with a very high standard when arguing for its attorneys’ fees as the prevailing party.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at or at (313) 983-4863. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. February 2016.