FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERNON HARRIS, 

Plaintiff-Appellant, No. 09-15833

v. D.C. No.

M  2:02-cv-00494- ARICOPA COUNTY SUPERIOR

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
COUNSEL

Cheri L. McCracken, Phoenix, Arizona, for the plaintiff-appellant.

1090 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 Appearance Hearing Officer for the Maricopa County Superior

Court, Vernon Harris unsuccessfully sued the Superior Court

and the other defendants for violations of, inter alia, his rights

under Title VII of the Civil Rights Act and the Fourteenth

Amendment. Defendants then sought substantial attorneys

fees and costs from Harris, and were awarded over $125,000

in fees and costs by the district court. Harris challenges those

awards. Our laws encourage individuals to seek relief for violations of their civil rights, and allow a defendant to recover

fees and costs from a plaintiff in a civil rights case only “in

exceptional circumstances” in which the 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 “attributable 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 quotation marks, alterations and citation omitted). Because the district 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 determinations 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

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1091
Superior Court. No employment contract was executed

between Harris and the Superior Court, and by statute such

Hearing Officers, also known as Commissioners, serve at the

pleasure of the chief presiding judge of the court. See Ariz.

Rev. Stat. § 12-213. In late 2000 or early 2001, allegations

were made that Harris had engaged in inappropriate conduct

towards female staff members, had asked his secretary to perform personal errands for him, and had performed his own

duties inadequately. In January and February of 2001, Harris

was placed on administrative leave, investigated, and, finally,

given the option of resigning or being terminated. He chose

to resign.

Harris, who is African American, then filed a charge with

the Equal Employment Opportunity Commission in which he

alleged that he had been discriminated against on account of

his sex and his race, which the EEOC dismissed. In February

of 2002, Harris filed a complaint in Maricopa County Superior Court, naming as defendants the State of Arizona, Maricopa County Superior Court, Maricopa County, and the

Arizona Supreme Court. Defendants removed the case to federal court, at which point Harris filed an Amended Complaint

in which he made the following ten claims against the defendants: (1) breach of contract; (2) breach of duty of good faith

and fair dealing; (3) hostile and discriminatory work environment; (4) race discrimination; (5) false light/invasion of privacy; (6) wrongful termination in violation of public policy;

(7) intentional or negligent infliction of emotional distress; (8)

defamation; (9) violation of due process and equal protection

under the law; and (10) intentional interference with a business relationship.

The parties then engaged in several years of discovery and

legal maneuvering. Of note, in January 2003, Maricopa

County was dismissed from the lawsuit on Harris’s motion,

and in October 2005, defendants’ motion for judgment on the

pleadings was granted with respect to Harris’s wrongful termination claim. In July 2006, after both Harris and the defen1092 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 connection 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 circumstances under 42 U.S.C. §§ 1988 and 2000e-5(k); and

those it designated as state law claims sharing a common

nucleus of operative facts with the federal civil rights claims.

It determined that most of Harris’s basic civil rights claims,

including his claims of disparate treatment, retaliation, and

equal protection, were not frivolous, and thus that no attorneys fees were permissible for those claims. Similarly, it

determined that his defamation and tortious interference

claims were not frivolous, and awarded no fees on those

claims. For Harris’s other claims it found fees to be appropriate.

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1093
Although the defendants were able to specifically attribute

work amounting to only about $10,000 of attorneys fees to the

claims for which the district court determined fees to be warranted, the district court calculated the amount attributable to

these claims to be $171,104.84 by taking the $251,464.10 in

“general fees” — fees that the defendants requested but that

they were not able to allocate to any particular claim — and

dividing them equally across the ten claims in Harris’s

Amended Complaint, and then allocating to each claim for

which it determined fees to be appropriate one-tenth of the

total general fees. After calculating the amount of fees in this

manner, the district court reduced the award by approximately

half, to $85,514.84, in light of Harris’s financial hardship.

With respect to expenses, the district court awarded a prorated amount of defendants’ requested expenses based on the

ratio of contract-based claims (for which expenses are not

available) to non-contract-based claims (for which, in the district court’s view, expenses were available). There was no

reduction to the amount of expenses for financial hardship,

however. Harris timely appealed.

II

The principal issues in this case are legal in nature and

therefore reviewed de novo. See Tutor-Saliba Corp. v. City of

Hailey, 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 methodology that the district court used to determine the amount

of fees attributable to those claims for which fees were appropriate. 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

1094 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
claim, but instead was assigned to a category of “general

fees.” The district court divided these general fees equally

across the ten claims in Harris’s Amended Complaint, and

then for each claim for which it determined that fees were

appropriate, added the one-tenth of the general fees apportioned to that claim to the much smaller amount of fees the

defendants asserted were specifically attributable to the

defense of that claim. For instance, for the wrongful termination claim, which the district court determined was frivolous

simply by examining the Amended Complaint, and on which

the district court granted defendants judgment on the pleadings in March of 2005, 15 months before it reached its decision 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 specifically attributable to defending against that claim. 

[1] In a civil rights case, such as this one, the pro-rata allocation of general fees between claims for which a fee award

is appropriate and claims for which such an award is not

appropriate, based solely on the number of claims, is impermissible, for reasons that go to the heart of our civil rights

policy. Congress and the courts have long recognized that creating broad compliance with our civil rights laws, a policy of

the “highest priority,” requires that private individuals bring

their civil rights grievances to court. See Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968). Even when

unsuccessful, such suits provide an important outlet for

resolving grievances in an orderly manner and achieving nonviolent resolutions of highly controversial, and often inflammatory, 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

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1095
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, unreasonable, 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 promote 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 defendant bears the burden of establishing that the fees for which

it is asking are in fact incurred solely by virtue of the need to

defend against those frivolous claims. That is because here as

in cases involving attorneys fees generally, “[t]he burden of

establishing entitlement to an attorneys fees award lies solely

with the claimant.”

1 Trustees of Directors Guild of America1There is no reason to make an exception for defendants in civil rights

cases. Prevailing defendants seeking recovery of attorneys fees in civil

1096 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 frivolous claims) — would be to risk requiring a plaintiff to pay

defendants’ attorneys fees incurred in defeating his nonfrivolous 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 frivolous 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 various 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 difficult 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 defendants 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. 

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1097
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 necessary to defend against those claims for which such fees are

appropriate. See Ariz. Rev. Stat. § 12-341.01(B). Second, and

more important, even the claims designated as “contractsbased” by the district court allege violations of Harris’s civil

rights — Harris alleged that defendants breached their contract with him by discriminating against him — and Arizona

state policy with regard to attorneys fees for defendants in

civil rights cases is intended to be “equally protective” of

plaintiffs as is federal policy. See Sees v. KTUC, Inc., 148

Ariz. 366, 369 (Ariz. App. 1985). Thus, under Arizona law it

is impermissible to require a plaintiff to pay fees that a prevailing defendant incurred in whole or in part defending

against nonfrivolous civil rights claims. Id. It would make little 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 nonfrivolous 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 demonstrate 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 solicitude 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

1098 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 attributable specifically to the defense against the wrongful termination claim was a result of two different time entries for legal

research. One of those time entries was divided across four

claims (with one quarter of the fee associated with that time

entry allocated to each claim), including claims that the district court found were nonfrivolous. In other words, the fee

purportedly attributable specifically to 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 environment, defendants did not list any work that was not performed

for both frivolous and nonfrivolous claims. Such division of

fees for specific time entries is impermissible for exactly the

same reasons that a division of general fees across frivolous

and nonfrivolous claims is impermissible. To reiterate, the

only fees that may be awarded are those incurred for work

performed exclusively in order to provide a defense against

claims for which fees are permissible. If defendants do not

demonstrate that the work would not have been performed in

order to defend against the nonfrivolous civil rights, or to put

it differently, but for the need to defend against the frivolous

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1099
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 “intertwined” 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 Harris’s purportedly frivolous claims was substantially the same as that necessary to the defense against his nonfrivolous discrimination claims,

including disparate treatment, retaliation, and equal protection. Nevertheless, because Harris does not assert that his frivolous and nonfrivolous

claims were so intertwined as to make a fee award with respect to the frivolous 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. 

1100 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
of litigation to establish a just claim or a just defense.” Ariz.

Rev. Stat. § 12-341.01(A), (B). It is not, however, a fee shifting statute; as the Arizona Supreme Court has stated, “[m]ere

eligibility [under § 12-341.01(A)] does not establish entitlement to fees.” Wagenseller v. Scottsdale Mem’l Hosp., 710

P.2d 1025, 1049 (Ariz. 1985) (en banc). Instead, a court

deciding whether to award fees under the statute must consider the multifactor standard outlined in Associated Indemnity 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 contract.” 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, moreover, that a defendant is entitled to attorney’s fees if the plaintiff’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

3The Associated Indemnity factors are: “(1) whether the unsuccessful

party’s claim or defense was meritorious; (2) whether the litigation could

have been avoided or settled and the successful party’s efforts were completely superfluous in achieving the result; (3) whether assessing fees

against the unsuccessful party would cause an extreme hardship; (4)

whether the successful party prevailed with respect to all of the relief

sought; (5) whether the legal question presented was novel and whether

such claim or defense have previously been adjudicated in this jurisdiction; and (6) whether the award would discourage other parties with tenable claims or defenses from litigating or defending legitimate contract

issues for fear of incurring liability for substantial amounts of attorney’s

fees.” Wagenseller, 710 P.2d at 1049. 

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1101
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 awarding 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 liberty 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 liberty interest is implicated if the government levels a charge

against him that impairs his reputation for honesty or morality” (internal quotation marks and citations omitted))[; see also

Amended Complaint at 14; Response and Objection to

Motion for Attorney’s Fees at 15]. 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

4Defendants contend that Harris waived this argument by failing to raise

it below. Harris did suggest in district court that the only claims for which

1102 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
B. State and federal civil rights statutes

[8] In addition to the fees sought under § 12-341.01, defendants also sought fees under three civil rights statutes—

Arizona Revised Statute § 41-1481(J) and 42 U.S.C. §§ 1988

and 2000e-5(k). Under Arizona Revised Statute § 41-1481(J),

“the court may allow the prevailing party . . . a reasonable

attorney’s fee”; under 42 U.S.C. § 1988(b), “[i]n any action

or proceeding to enforce a provision of [42 U.S.C. § 1983],

the court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee as

part of the costs”; and under 42 U.S.C. § 2000e-5(k), “[i]n

any action or proceeding under [Title VII of the Civil Rights

Act] the court, in its discretion, may allow the prevailing

party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee.” Fee

awards to prevailing defendants under all three of these statutes are governed by the same standard: the court may award

attorney’s fees only if it finds 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

fees under § 12-341.01 might be appropriate were the breach of contract

and the breach of the covenant of good faith and fair dealing claims, but

he did not make his arguments regarding the due process claim explicitly

or clearly. In any case, “where an issue is purely legal, and the other party

would not be prejudiced, we can consider an issue not raised below.” Engquist v. Oregon, Dept. of Agriculture, 478 F.3d 985, 996 n.5 (9th Cir.

2007). The question of whether the due process claim arises from contract

is a “purely legal issue, the injection of which would not have caused the

parties to develop new or different facts,” International Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 790 F.2d

727, 732 -733 (9th Cir. 1986), and defendants do not contend that they

would be prejudiced by our considering it. 

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1103
concluding that, because a plaintiff did not ultimately prevail,

his action must have been unreasonable or without foundation.” 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

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 [Order at 12,] 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. [Order

at 28-29.] 

6The 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. 

1104 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
claim as two separate claims, one concerning race, one concerning gender. It found that Harris’s gender-based subclaim

was frivolous because it was filed more than 300 days — the

time limit imposed by Title VII — after the last act of discrimination alleged by Harris that the district court categorized as gender-based. It did not determine that his race-based

subclaim was untimely —it apparently categorized acts within

the 300 day window as race based — but that instead it was

frivolous because he did not allege severe and pervasive conduct based on his race, as would be required for relief under

Title VII. 

[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. [See Amended

Complaint at 7.] It is perfectly plausible that gender and race

could together give rise to discrimination 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 combination 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 determining that the hostile work environment claim as a whole was

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1105
frivolous. A hostile work environment claim requires inter

alia “that the conduct was sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.” Pavon v. Swift Trans. Co.,

Inc., 192 F.3d 902, 908 (9th Cir. 1999). The discriminatory

conduct that Harris alleged fell short of meeting this condition, and Harris himself did not allege that the condition was

met. While Harris’s allegations of discrimination were sufficient 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 multiple claims, only some of which are groundless, a defendant is

entitled only to those fees attributable exclusively to defending against plaintiff’s frivolous claims. If the work is performed in whole or in part in connection with defending

against any of 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 public figure [Harris] had no privacy interest in the allegations

against him.” [Order at 15.] A person employed by the government is only a “public official” with limited privacy interests when he holds a position that “has such apparent

importance that the public has an independent interest” in his

performance, “beyond the general public interest in the . . .

1106 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 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. [Order at 15.] Its only support for this conclusion, however, was a set of cases concerning law enforcement officers, who are presumptively public

officials. See id. (“Police and other law enforcement personnel are almost always 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 judicial 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 “detailed” 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

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1107
any court. Rather than being frivolous, it performed the salutary function of giving a court the opportunity to address a

previously unanswered question.

Wrongful termination

[14] To prevail on a wrongful termination claim under Arizona law, a plaintiff must demonstrate that an employment

relationship was terminated in violation of a state statute that

does not provide its own remedy for statutory violations. See

Ariz. Rev. Stat. § 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 termination 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 district court did not err by determining that it was frivolous. See

Gibson, 561 F.3d at 929. Of course, the fees properly attributable to this claim, which placed on defendants only the burden 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 standard to reach its determination that Harris’s negligent infliction of emotional distress claim was frivolous. Arizona law

requires that emotional distress “result[ ] in illness or bodily

harm” in order to recover for negligent infliction of emotional

distress. Keck v. Jackson, 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 suffered any physical injury; instead he alleged only that he had

suffered “severe emotional distress.” [Order at 18-19.] “Bodily harm,” however, 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

1108 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
disturbances” unaccompanied by any physical injury, see

Monaco v. HealthPartners of Southern Arizona, 196 Ariz.

299, 303 (Ariz.App. Div. 2 1999). Accordingly, Harris’s invocation of “severe 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. [See Memorandum of Decision and Order, Oct. 7,

2005, p.8.] On that point, we note that it was unreasonable for

the defendants to seek, and for the district court to grant, substantial attorney’s fees on the ground that Harris failed to

plead a required element of his claim when defendants failed

to challenge the pleading as insufficient at an earlier point in

the proceedings. 

[17] The district court made a different but related error

with respect to Harris’s intentional infliction of emotional distress claim. The district court found this claim to be frivolous

because “Plaintiff allege[d] in his Amended Complaint that he

was falsely accused of sexual harassment, and that such allegations tarnished his reputation,” and it was clear from the

complaint that “this conduct was not sufficient to bring an

IIED claim,” which requires “extreme and outrageous” conduct by the defendants. [Order, Mar. 23, 2009 at 17-18.] 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.” [See Memorandum of Decision and Order,

Oct. 7, 2005, p. 8.] In Christianburg, 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

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1109
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

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 application. 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 Blanchard, 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 nontaxable expenses. Defendants sought $53,533.66 in nontaxable

expenses such as computerized legal research, factual investigation, and photocopying. The district court, noting that

expenses are not available under Arizona Revised Statute

§ 12-341.01, see Ahwatukee Custom Estates Mgmt. Ass’n,

Inc. v. Bach, 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 contract1110 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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

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 attorneys fees was appropriate. 

[20] Additionally, the district court erred in its equal division of expenses across claims. Again, because expenses are

part of the attorneys fees award, they are recoverable only on

the terms on which attorneys fees are recoverable. Thus, only

those expenses are recoverable that the defendants can demonstrate were incurred solely with respect to frivolous claims

and that would not have been incurred in whole or in part with

respect to any of the nonfrivolous claims.7 Defendants’

expense petition, which does not allocate defendants’ substan7We note, additionally, that the expenses submitted by defendants were

woefully lacking in detail. For instance, although the invoices from Investigative Research, Inc. submitted by defendants ran into the thousands of

dollars, the claims for which these expenses were incurred were not identified, and nowhere in the application for expenses was there a description

of the work performed by Investigative Research, Inc. other than the notation “for professional services rendered” on the invoice from the company.

This showing falls short of the requirement that a party seeking to recover

expenses submit a “task-based” statement in which it “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). 

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1111
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

issues that we have not previously addressed lack merit. Only

one requires any discussion. Harris contends that because we

denied defendants attorneys fees for his appeal of the dismissal of the underlying action, the district court was barred

from awarding attorneys fees by the law of the case doctrine.

Our prior decision not to award attorneys fees to defendants

for Harris’s appeal of the district court’s award of summary

judgment in favor of defendants included no determination

that would bar an award of attorneys fees by the district court

for the underlying case; we simply exercised our discretion

and declined to award fees for work done on appeal. See

Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993).

VII

For the reasons stated above, we vacate the award of attorneys fees and remand to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED

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.

1112 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
The majority holds that civil rights cases trigger an additional level of scrutiny of defendant’s claims to attorney’s

fees—scrutiny beyond requiring them to prove that the plaintiff’s claims were “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

421 (1978). Relying entirely upon its own conception of “civil

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 nonfrivolous claim. See Balmer v. HCA, Inc., 423 F.3d 606, 616-l7

(6th Cir. 2005). The majority does not agree outright with any

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1113
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

decides Fox, a case in which it recently granted a writ of certiorari.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 Appearance Hearing Officer (or Commissioner) with Maricopa

County Superior Court. Within five months of his appointment, Harris was under investigation for complaints that he

had engaged in inappropriate conduct toward female staff 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 Arizona Supreme Court, and Maricopa County (collectively,

“Maricopa County”). He accused the defendants of various

forms of breach of contract, wrongful termination, infliction

of emotional distress, violation of privacy, race discrimination, and hostile work environment based on race or gender.

1The 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? 

1114 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
All ten of his claims were eventually dismissed, we affirmed

that judgment, and the defendants sought attorney’s fees

under Arizona and U.S. law. The defendants sought roughly

$316,000 in fees with almost $54,000 in costs. The district

court awarded attorney’s fees under Arizona law for two and

a half claims based on contract. Of the remaining seven and

a half civil rights claims, the district court found that all were

non-meritorious, but only four were frivolous. Faithfully following Christiansburg, the district court held that Maricopa

County could only recover fees on Harris’s frivolous claims.

The court reduced the fees requested by the County by apportioning time between the compensable and non-compensable

claims. In an exercise of its equitable discretion, the district

court further decided that it would not award fees for a frivolous disparate impact claim because it was sufficiently related

to disparate treatment and retaliation claims, which, although

not meritorious, were not frivolous. Using the lodestar

method, the court calculated the fees, with various adjustments, at about $171,000. The court declined to enhance the

lodestar and then reduced the lodestar by roughly 50 percent

because of the 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.” Ultimately, the court awarded the defendants $85,500 in attorney’s fees and $40,150.53 in costs. The attorney’s fees

represent about 27 percent of the fees requested.

II

The majority opinion errs in multiple ways, but in this way

first: it flatly misstates the standard of review and then applies

the wrong standard all the way down. We have long held that

we review the district court’s determination of attorney’s fees

for abuse of discretion. See Tutor-Saliba Corp., 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

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1115
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,

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 boilerplate 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. SJBP.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), quoting 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 standalone 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 determination about how to calculate the attorneys’ fee award, but

1116 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
that this discretion “must be exercised in light of the considerations we have identified.” Hensley, 461 U.S. at 437. Our

cases demonstrate that we have reviewed certain issues in fee

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 sovereign 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 Hensley, 461 U.S. at 432; Cairns, 292 F.3d at 1156-57.

III

The majority establishes a new rule for prevailing defendants who seek attorney’s fees in cases in which at least one

claim is based on the civil rights laws. I have two objections.

First, I generally object to the majority, in effect, double

counting the burden successful defendants must bear. Second,

I specifically object to the “but for” test the majority creates.

A

I disagree that prevailing defendants’ ability to recoup

attorney’s fees in civil rights cases should be burdened

beyond that called for by existing case law. Section 1988

itself does not distinguish between the right of prevailing

plaintiffs and that of prevailing defendants to recover attorney’s fees. 42 U.S.C. § 1988(b) (“In any action or proceeding

to enforce [civil rights laws], the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee”)

(emphasis added). For pro-civil rights policy reasons, the

Supreme Court later restricted prevailing defendants’ access

to attorney’s fees, allowing them only for the defense of “frivHARRIS v. MARICOPA COUNTY SUPERIOR COURT 1117
olous, unreasonable, or . . . foundation[less]” claims. Christiansburg, 434 U.S. at 421. Thus, “expressly in order to avoid

discouraging civil rights plaintiffs from bringing suits, and

thus undercutting the efforts of Congress to promote the vigorous 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 meritless, but frivolous, they are entitled to attorney’s fees on the

same basis as everyone else. There is no justification in

§ 1988 for imposing a double burden on defendants. And we

should not apply the Supreme Court’s policy considerations

where it has not, including to our review of the manner in

which district courts allocate fees. When we do so, we hamper

the district court’s ability to make equitable decisions to

accommodate the on-the-ground realities of litigation with

which we are much less familiar. In addition, we risk rewarding plaintiffs for raising groundless and frivolous litigation

against cash-strapped defendants like Maricopa County, who

must then spend their limited funds defending against unreasonable claims. We risk straining the capacities of defendants

to prevent and redress real civil rights grievances. Even our

own policy interests are not served by hindering the district

court’s ability to require plaintiffs like Harris to bear the costs

of clogging our courts with groundless and frivolous litigation. See Munson v. Milwaukee Bd. of Sch. Directors, 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 omitted). Finally, the majority’s decision diminishes legitimate

civil rights claims by suggesting that we cannot even distinguish between nonfrivolous and outright frivolous claims and

1118 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
that anyone filing a civil rights claim may play by a different

set of rules from everyone else.

Our decision here conflicts with the decisions of at least

four other circuits. Although these cases have acknowledged

that the difficulty of calculating attorneys’ fee awards in cases

in which frivolous and nonfrivolous civil rights claims are

intertwined, they concluded that defendants are not precluded

from receiving an award. Accordingly, the First, Fifth, Seventh, and Eleventh Circuits have held that prevailing defendants must be allowed to recoup the cost of defending against

frivolous civil rights claims, even if those claims are interrelated with nonfrivolous ones.

In Ward, 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 doctrine,” a doctrine that enables a court to grant a fee award “includ[ing] fees for work performed on unsuccessful claims if

that party’s unsuccessful claims are interrelated to the successful claims by a common core of facts or related legal theories.” Id. The First Circuit held that the district court had

improperly relied on the doctrine, denying all fees to the prevailing 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] district 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 recalculation. 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.

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1119
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”

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 (quoting Tutor-Saliba Corp., 452 F.3d at 1064 (quoting Quintana,

414 F.3d at 1312)) (internal quotation marks omitted). Quoting from our opinion in Tutor-Saliba Corp., the Fifth Circuit

noted, “[s]uch a rule would also make a defendant’s entitlement 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 merited 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 prevailing defendants must be able to recover fees associated

with the defense of frivolous civil rights claims, even if those

claims are interrelated with nonfrivolous ones. See Quintana,

414 F.3d at 1312; Head, 62 F.3d 351. In Quintana, the Eleventh 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

1120 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
fees for a claim of discrimination, which the court had found

to be not frivolous. The Eleventh Circuit made clear, however, that it was not holding “that a civil rights defendant may

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 vigorously.” 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 noncompensable 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 circumstances 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

2Based upon the Eleventh Circuit’s reasoning, on remand the district

court conducted a pro rata calculation—“split[ting] a majority of the billing entries in half because defense counsel spent an equal amount of time

in defending against both Plaintiff’s [nonfrivolous] claims (Counts I and

II) and [frivolous] claims (Counts [III] and IV)”—which stood without

appeal. Quintana v. Jenne, Report and Recommendation on Defendant’s

Motion for Attorney’s Fees and Additional Costs, 0:00-cv-07878, Doc.

138 at 2 (S.D. Fla. Dec. 29, 2005), adopted by 0:00-cv-07878, Doc. 139

(S.D. Fla. Jan. 27, 2006). I suggest that this sort of pro rata calculation was

well within the district court’s discretion in Quintana, as it is here. 

3The 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.

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1121
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 disagree.

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 prevailing plaintiffs. The manner in which the district court

awards fees to parties who are entitled to fees for some

claims, but not other claims, is committed to the district

court’s sound discretion. In general, a district court does not

abuse its discretion when it makes a pro rata allocation of

fees. The majority’s new “but for” rule has never been our

rule.

In Cairns, 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 district court found that because the right of publicity claim was

held on interlocutory appeal while the trademark claims

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

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 continuation 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. 

1122 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
required full litigation, it was more appropriate to allocate

one-quarter of the general fees to the publicity claim and

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 therefore 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 noncompensable 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 insistence 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 mirrors. Although Cairns was not a civil rights case, it was a

Lanham Act case, which, like civil rights cases, allows prevailing defendants to be reimbursed for attorney’s fees only

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1123
“in exceptional cases,” meaning cases that are “groundless,

unreasonable, vexatious, or pursued in bad faith.” Cairns, 292

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, unreasonable, 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 provide claim-specific documentation for all of their fees. Defendants do have a responsibility to “establish[ ] entitlement to an

attorney’s fees’ award.” Trustees of Directors Guild of

America-Producer Pension Benefits Plans v. Tise, 234 F.3d

415, 427 (9th Cir. 2000) (“The burden of establishing entitlement to an attorney’s fees award lies solely with the claimant.”) (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 defendants 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 unprecedented, burdensome “but for” documentation rule: “Accordingly, a defendant must demonstrate that the work for which

it asserts that it is entitled to fees would not have been performed but for the inclusion of the frivolous claims in the

1124 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
complaint.” Maj. Op. at 1097 (emphasis added). The majority

itself expressly acknowledges that, under its punishingly strict

formulation of the principle, “the burden on the defendant . . .

is from a practical standpoint extremely difficult to carry.”

Maj. Op. at 1097. This heightened burden on defendants originates 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 AmericaProducer 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.

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1125
A

Under Arizona law, ARS § 12-341.01(A), courts can award

“reasonable attorney fees” to the prevailing party in a “contested action arising out of a contract.” Based on this state

statute and the seven factors identified by the Arizona

Supreme Court as being relevant to such a discretionary

award, see Associated Indem. Corp. v. Warner, 694 P.2d

1181, 1184 (Ariz. 1985), the district court awarded the defendants 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 process 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 process 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 plaintiff 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 burdened with the civil rights policies at issue in Sees. Therefore,

all of the majority’s cites to Sees in its contract claims analysis are inapposite. In relying upon Sees, the majority has pro1126 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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

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 majority misstates both the standard of review and the law. We are

reviewing for abuse of discretion, and when the issue involves

such questions as whether a claim is frivolous and whether the

plaintiff even contested it, the issue is not “purely legal.” See

Tutor-Saliba Corp., 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 status 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 violate 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 connection 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 evidence 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 interest due process claim. In this case, Harris could not identify

what he was relying upon as a “right or status recognized by

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1127
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

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 intentional 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

4Although equal protection is listed here as one claim, it actually represents one half of count nine in Harris’s First Amended Complaint. 

1128 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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

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 frivolousness of the plaintiff’s claims. Ultimately our disagreement on

this point is irrelevant, however, because the majority concedes 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 discrimination 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.

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1129
2

Like the majority, I do not think it was an abuse of discretion for the district court not to award fees for the race discrimination claim.

3

I agree with the majority that whether a hearing officer is

a public official was a novel question under Arizona state law

and that, at the outset of the litigation, it was not clear from

existing precedent that the plaintiff should have known he did

not have an enforceable privacy interest. The majority is correct to point out that none of the case law relied upon by the

district court as to this holding relates to low-level judicial

officers; rather, it all relates to law enforcement officials.

Although the district court’s reasoning about why a hearing

officer is a limited purpose public figure may be sound, I

agree with the majority that it was not frivolous for the plaintiff to claim that, as a hearing officer, 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 awarding the same amount of fees for two claims that were litigated

to different extents and properly exercised its discretion:

1130 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
“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.”

[E.R. 25.] 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

understanding 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 feerecoverable 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 distress claim, the majority is wrong—the district court did not

apply “an erroneous legal standard” by requiring that emotional distress “result in illness or bodily harm in order to

recover for negligent infliction of emotional distress.” Maj.

Op. at 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 Southern Arizona, 196 Ariz. 299, 303 (Ariz. App. 1999), for the

proposition that “ ‘substantial, long-term emotional disturbances’ unaccompanied by any physical injury” can give rise

to an NIED claim. Maj. Op. at 1108-09. The majority misreads 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 imporHARRIS v. MARICOPA COUNTY SUPERIOR COURT 1131
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

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 unsubstantiated allegations do not meet Arizona’s standard for a showing 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 distress (“IIED”) claim, I agree with the majority that it was an

abuse of discretion for the district court to find that the IIED

claim was frivolous, but I disagree as to why. The district

court found the IIED claim frivolous because “the Plaintiff

knew or should have known that his IIED claim” was not sufficient as it was based solely on allegations, which “Arizona

courts have typically found [are] alone not enough to constitute” an IIED. But, as the majority notes, the district court

itself had ruled in an earlier part of the litigation that the

alleged conduct could be “extreme and outrageous,” as is

required for an IIED claim. Maj. Op. at 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 outrageous conduct” to holding that “Plaintiff knew or should

have known that his IIED claim was frivolous”—the district

court’s fee determination reads like the kind of “post hoc reasoning” the Supreme Court cautioned against in Christians1132 HARRIS v. MARICOPA COUNTY SUPERIOR COURT
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 district 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

was sufficiently frivolous as to merit attorney’s fees. See Hensley, 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 interference with a business relationship claims were not frivolous

and did not merit fee awards. I agree with the majority that,

as to these determinations, the district court’s decision should

stand.

9

I strongly disagree with the majority’s decision to vacate

the award for the defendants’ preparation of their motion for

fees. Maricopa County is plainly a prevailing defendant, entitled to fees under Arizona and U.S. statutes and the Court’s

opinion in Christiansburg. I would affirm the district court’s

fee motion award in full.

C

The final money award at issue is the partial award of

expenses to the defendants. Because ARS § 12-341.01(A)

does not provide for expenses on the contract-based claims,

and because the district court determined that 2.5 of the

claims were contract-based, the district court did not award 25

percent of the defendants’ expenses. I agree with the majority

that this decision to exclude expenses for the contract-based

HARRIS v. MARICOPA COUNTY SUPERIOR COURT 1133
claims was supported by law and was not an abuse of discretion. With respect to the expenses awarded, I believe the district court must make adjustments for the false light/invasion

of privacy and intentional infliction of emotional distress, for

reasons I have explained.

I disagree with the majority’s decision to reverse the district 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 disagree with the majority that the district court’s pro rata allocation 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.

1134 HARRIS v. MARICOPA COUNTY SUPERIOR COURT