(Slip Opinion) OCTOBER TERM, 2010 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

FOX v. VICE, AS EXECUTRIX OF THE ESTATE OF VICE, 

ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 10–114. Argued March 22, 2011—Decided June 6, 2011 

Claiming that he was subjected to dirty tricks during his successful

campaign to become the police chief of Vinton, La., petitioner Fox

filed a state-court suit against Vice, the incumbent chief, and the 

town (Vice, for short). Fox’s suit asserted both state-law claims, including defamation, and federal civil rights claims under 42 U. S. C.

§1983, including interference with Fox’s right to seek public office. 

Vice removed the case to federal court based on the §1983 claims. After discovery, he sought summary judgment on the federal claims,

which Fox conceded were not valid. The District Court accordingly 

dismissed them with prejudice and remanded the remaining claims 

to state court, noting that Vice’s attorneys’ work could be useful in 

the state-court proceedings. Vice then asked the federal court for attorney’s fees under §1988, submitting attorney billing records estimating the time spent on the entire suit, without differentiating between time spent on the now-dismissed federal claims and on the 

remaining state claims. The court granted the motion on the ground 

that Fox’s federal claims were frivolous, awarding Vice fees for all 

work his attorneys had performed in the suit. Although the state-law

allegations had not been found frivolous, the court did not require

Vice to separate out the work the attorneys had done on the two sets 

of claims. It also declined to reduce the fee award to reflect the surviving state-law claims, noting that both sides had focused on the

frivolous §1983 claims. The Fifth Circuit affirmed, rejecting Fox’s 

argument that every claim in a suit must be frivolous for the defendant to recover any fees, and agreeing with the District Court that 

the litigation had focused on the frivolous federal claims. 
2 FOX v. VICE 

Syllabus 

Held: 

1. When a plaintiff’s suit involves both frivolous and non-frivolous

claims, a court may grant reasonable fees to the defendant, but only

for costs that the defendant would not have incurred but for the frivolous claims. Pp. 5–11.

(a) Section 1988 allows the award of “a reasonable attorney’s fee” 

to “the prevailing party” in certain civil rights cases, including §1983

suits. While most of this Court’s §1988 decisions have concerned fees

to prevailing plaintiffs, §1988 also authorizes a fee award to a prevailing defendant “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Christiansburg Garment 

Co. v. EEOC, 434 U. S. 412, 421. Just as plaintiffs may receive fees

under §1988 even if they are not victorious on every claim, Hensley v. 

Eckerhart, 461 U. S. 424, 435, so too may a defendant be reimbursed

for costs under §1988 even if the plaintiff’s suit is not wholly frivolous, ibid., n. 10. The defendant is not entitled to fees arising from 

these non-frivolous charges, see Christiansburg, 434 U. S., at 420– 

421, but the presence of reasonable allegations does not immunize

the plaintiff against paying for the fees that his frivolous claims imposed. Pp. 5–7.

(b) The question then becomes how to allocate fees in a lawsuit

having both frivolous and non-frivolous claims. Congress’s purpose 

in enacting §1988—to relieve defendants of the burdens associated

with fending off frivolous litigation—points to the proper standard:

Section 1988 allows a defendant to recover reasonable attorney’s fees

incurred because of, but only because of, a frivolous claim; i.e., §1988 

permits the defendant to receive only the portion of his fees that he 

would not have paid but for the frivolous claim. A standard allowing

more expansive fee-shifting would furnish windfalls to some defendants, who would be relieved of normal litigation costs merely because the plaintiff’s suit also included frivolous claims. This “but-for” 

standard may, in some instances, allow compensation to a defendant 

for attorney work relating to both frivolous and non-frivolous claims, 

for instance, if the frivolous claim requires a lawyer to do more work 

because of the defendant’s greater financial exposure on that claim.

The dispositive question is not whether attorney costs at all relate to 

a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation. The answers to 

those inquiries will usually track each other, but when they diverge, 

it is the second one that matters. The determination of fees “should 

not result in a second major litigation.” Hensley, 461 U. S., at 437. 

The essential goal in shifting fees is to do rough justice, not to 

achieve auditing perfection. The trial court has wide discretion, but 

must apply the correct but-for standard. And the appeals court must 
Cite as: 563 U. S. ____ (2011) 3 

Syllabus 

determine whether the trial court asked and answered this but-for 

question, rather than some other. Pp. 7–11. 

2. The lower courts used an incorrect standard in awarding fees to 

Vice. The District Court’s analysis suggests that Vice’s attorneys 

would have done much the same work even if Fox had not brought 

his frivolous claims. The charges arose out of Vice’s conduct in the

campaign, and with respect both to the frivolous federal claims and to

the non-frivolous state-law claims, his “defense entailed proof or denial of essentially the same facts.” It thus seems likely that Vice’s attorneys would have, e.g., taken many of the same depositions. Although the District Court noted the usefulness of the attorneys’ work 

in defending against the state-law claims, it failed to take proper account of the overlap between the frivolous and non-frivolous claims.

Its reasoning—that the close relationship between the federal and 

state-law claims supported the award—cannot be squared with the 

congressional policy of sparing defendants from the costs only of 

frivolous litigation. Nor did the Fifth Circuit uphold the award on 

the proper ground. It seemed to think Vice could receive fees for any

work useful to defending against a frivolous claim, even if his lawyers 

would have done that work regardless. On this record, the case must 

be returned to the lower courts. Pp. 12–13. 

594 F. 3d 423, vacated and remanded. 

KAGAN, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 563 U. S. ____ (2011) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 10–114 

RICKY D. FOX, PETITIONER v. JUDY ANN VICE, AS

 EXECUTRIX OF THE ESTATE OF BILLY RAY VICE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 6, 2011]

 JUSTICE KAGAN delivered the opinion of the Court. 

Federal law authorizes a court to award a reasonable 

attorney’s fee to the prevailing party in certain civil rights 

cases. See 42 U. S. C. §1988. We have held that a defendant may receive such an award if the plaintiff’s suit is

frivolous. In this case, the plaintiff asserted both frivolous 

and non-frivolous claims. We hold today that a court may 

grant reasonable fees to the defendant in this circumstance, but only for costs that the defendant would not 

have incurred but for the frivolous claims. A trial court 

has wide discretion in applying this standard. But here 

we must vacate the judgment below because the court 

used a different and incorrect standard in awarding fees. 

I 

This case arises out of an election for chief of police in 

the town of Vinton, Louisiana. The candidates were petitioner Ricky Fox (the challenger) and respondent Billy Ray 

Vice (the incumbent).1 By Fox’s account, Vice resorted to 

—————— 

1Vice died during the course of this litigation. Pursuant to this 

Court’s Rule 35.1, we substituted the executor of his estate as respondent. 562 U. S. ___ (2011). But for the sake of clarity, we refer to the 
2 FOX v. VICE 

Opinion of the Court 

an assortment of dirty tricks to try to force Fox out of the 

race. In particular, Vice sent an anonymous letter to Fox 

threatening to publish damaging charges against him if he

remained a candidate. Vice also arranged for a third party 

to publicly accuse Fox of using racial slurs and then to file

a criminal complaint against Fox repeating those allegations. And when prosecutors ignored that faux complaint, 

Vice leaked it to the press. Yet all of these machinations 

failed; Fox won the election. And Vice got an even greater 

comeuppance: He was subsequently convicted of criminal 

extortion for his election-related conduct. 

Fox, however, chose not to let the matter rest; he filed 

this suit in Louisiana state court against Vice and the 

town of Vinton, also a respondent here. Fox’s complaint 

asserted both state-law claims, including defamation, and 

federal civil rights claims under 42 U. S. C. §1983, including interference with his right to seek public office. Vice 

and the town (Vice, for short) removed the case to federal 

court on the basis of the §1983 claims.

At the end of discovery in the suit, Vice moved for summary judgment on Fox’s federal claims. Fox conceded that 

the claims were “no[t] valid,” App. 169, and the District 

Court accordingly dismissed them with prejudice. In the 

same ruling, the court declined to exercise supplemental 

jurisdiction over the remaining state-law claims. Docket 

No. 2:06–cv–135 (WD La., Oct. 16, 2007), App. to Pet. for 

Cert. 38a–40a. The court instead remanded the now 

slimmed-down case to state court for adjudication. In 

doing so, the District Court observed that “[a]ny trial

preparation, legal research, and discovery may be used by

the parties in the state court proceedings.” Id., at 40a. 

Vice then asked the federal court for an award of attorney’s fees under §1988, arguing that Fox’s federal claims 

were “baseless and without merit.” App. 198. Vice stated 

—————— 

respondent as Vice. 
Cite as: 563 U. S. ____ (2011) 3 

Opinion of the Court 

that his lawyers had had to participate in five lengthy 

depositions and review numerous records to defend

against Fox’s charges. Id., at 199. In support of his fee 

request, Vice submitted attorney billing records estimating the time spent on the whole suit, without differentiating between the federal and state-law claims. See Supp.

App. 8–67.

The District Court granted the motion for attorney’s fees 

on the ground that Fox’s federal claims were frivolous.

Although the state-law allegations had not been found 

frivolous (and indeed remained live), the court did not

require Vice to separate out the work his attorneys had

done on the two sets of claims. Docket No. 2:06–cv–135 

(WD La., Sept. 22, 2008), App. to Pet. for Cert. 28a. According to the court, such “segregation” was unnecessary 

because the “various claims arose out of the same transaction and were so interrelated that their prosecution or 

defense entailed proof or denial of essentially the same 

facts.” Ibid. (internal quotation marks omitted). Similarly, the court declined to reduce the fee award to reflect 

the surviving state-law claims. “[T]hroughout the litigation,” the court stated, both sides “focus[ed]” on Fox’s 

frivolous §1983 claims. Id., at 32a–33a. The court therefore concluded that Vice should receive all of the fees he 

reasonably incurred in defending the suit—a total of 

$48,681. Id., at 34a. 

A divided Court of Appeals affirmed. 594 F. 3d 423 

(CA5 2010). The majority first rejected Fox’s contention

that all claims in a suit must be frivolous for the defendant to recover any fees. That rule, the court explained,

would “‘allow plaintiffs to prosecute frivolous claims without consequenc[e]’” so long as they added a single nonfrivolous claim. Id., at 428 (quoting Tutor-Saliba Corp. v. 

Hailey, 452 F. 3d 1055, 1064 (CA9 2006)). The Court of 

Appeals then turned to the District Court’s decision that 

Vice was entitled to fees for all time thus far spent on the 
4 FOX v. VICE 

Opinion of the Court 

case, even though state-law claims remained unadjudicated. Repeating the trial court’s view that the whole 

litigation had focused on the frivolous federal claims, the 

Fifth Circuit upheld the fee award. See 594 F. 3d, at 428. 

Judge Southwick dissented. He agreed that Vice was

entitled to some reimbursement for fees. Id., at 430. But 

he thought the District Court had erred in declining to 

“allocate the fees separately between the successful claims 

and the unsuccessful” ones just because all of them were

“interrelated.” Ibid. “[W]hen some claims are dismissed 

as frivolous and others are not,” he stated, the defendants 

should receive fees only for “the legal work allocable solely

or dominantly to the dismissed” claims. Id., at 431. Because in this case “almost all of the defendant[s’] discovery 

and factual analysis would have been necessary even if no 

federal claims had been brought,” he concluded, the fee

award should have been much smaller. Ibid. 

The Fifth Circuit’s decision deepened a Circuit split 

about whether and to what extent a court may award fees 

to a defendant under §1988 when a plaintiff asserts both 

frivolous and non-frivolous claims.2 One Court of Appeals 

has forbidden any compensation unless all of the plaintiff’s 

claims are frivolous. See Balmer v. HCA, Inc., 423 F. 3d 

606, 617 (CA6 2005). Others have rejected this approach,

but struggled with how to allocate fees in a suit that involves a mix of frivolous and non-frivolous claims. Compare, e.g., 594 F. 3d 423 (CA5 2010) (opinion below), with 

Colombrito v. Kelly, 764 F. 2d 122, 132 (CA2 1985) (declining to award fees when the frivolous claim “added no

additional testimony or expense to the trial”). We granted 

—————— 

2The parties do not dispute for purposes of argument here that this

case involves both kinds of claims. The District Court deemed the 

federal claims frivolous, and Fox has not asked us to disturb that 

ruling. See Brief for Petitioner 26, and n. 2. The court remanded the 

state-law claims to state court, and Vice has assumed in this Court that 

they are not frivolous. See Brief for Respondents 8, n. 5. 
Cite as: 563 U. S. ____ (2011) 5 

Opinion of the Court 

certiorari to resolve these questions. 562 U. S. ___ (2010). 

II 

Our legal system generally requires each party to bear

his own litigation expenses, including attorney’s fees, regardless whether he wins or loses. Indeed, this principle 

is so firmly entrenched that it is known as the “American 

Rule.” See Alyeska Pipeline Service Co. v. Wilderness 

Society, 421 U. S. 240, 247 (1975). But Congress has

authorized courts to deviate from this background rule in

certain types of cases by shifting fees from one party to

another. See Burlington v. Dague, 505 U. S. 557, 562 

(1992) (listing federal fee-shifting provisions). 

The statute involved here, 42 U. S. C. §1988, allows the

award of “a reasonable attorney’s fee” to “the prevailing 

party” in various kinds of civil rights cases, including suits 

brought under §1983. Most of our decisions addressing

this provision have concerned the grant of fees to prevailing plaintiffs. When a plaintiff succeeds in remedying a

civil rights violation, we have stated, he serves “as 

a ‘private attorney general,’ vindicating a policy that 

Congress considered of the highest priority.” Newman v. 

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

(per curiam). He therefore “should ordinarily recover an 

attorney’s fee” from the defendant—the party whose misconduct created the need for legal action. Christiansburg 

Garment Co. v. EEOC, 434 U. S. 412, 416 (1978) (internal 

quotation marks omitted). Fee shifting in such a case at

once reimburses a plaintiff for “what it cos[t] [him] to

vindicate [civil] rights,” Riverside v. Rivera, 477 U. S. 561, 

577–578 (1986) (internal quotation marks omitted), and 

holds to account “a violator of federal law,” Christiansburg, 434 U. S., at 418. 

In Christiansburg, we held that §1988 also authorizes a

fee award to a prevailing defendant, but under a different 

standard reflecting the “quite different equitable consid-
6 FOX v. VICE 

Opinion of the Court 

erations” at stake. Id., at 419. In enacting §1988, we

stated, Congress sought “to protect defendants from burdensome litigation having no legal or factual basis.” Id., 

at 420. Accordingly, §1988 authorizes a district court to

award attorney’s fees to a defendant “upon a finding that

the plaintiff’s action was frivolous, unreasonable, or without foundation.” Id., at 421; see also Kentucky v. Graham, 

473 U. S. 159, 165, n. 9 (1985). 

These standards would be easy to apply if life were like 

the movies, but that is usually not the case. In Hollywood,

litigation most often concludes with a dramatic verdict 

that leaves one party fully triumphant and the other 

utterly prostrate. The court in such a case would know 

exactly how to award fees (even if that anti-climactic scene

is generally left on the cutting-room floor). But in the real 

world, litigation is more complex, involving multiple 

claims for relief that implicate a mix of legal theories and

have different merits. Some claims succeed; others fail. 

Some charges are frivolous; others (even if not ultimately 

successful) have a reasonable basis. In short, litigation is 

messy, and courts must deal with this untidiness in

awarding fees. 

Given this reality, we have made clear that plaintiffs

may receive fees under §1988 even if they are not victorious on every claim. A civil rights plaintiff who obtains

meaningful relief has corrected a violation of federal law 

and, in so doing, has vindicated Congress’s statutory purposes. That “result is what matters,” we explained in 

Hensley v. Eckerhart, 461 U. S. 424, 435 (1983): A court 

should compensate the plaintiff for the time his attorney

reasonably spent in achieving the favorable outcome, even 

if “the plaintiff failed to prevail on every contention.” Ibid. 

The fee award, of course, should not reimburse the plaintiff for work performed on claims that bore no relation to

the grant of relief: Such work “cannot be deemed to have

been expended in pursuit of the ultimate result achieved.” 
Cite as: 563 U. S. ____ (2011) 7 

Opinion of the Court 

Ibid. (internal quotation marks omitted). But the presence of these unsuccessful claims does not immunize a 

defendant against paying for the attorney’s fees that the

plaintiff reasonably incurred in remedying a breach of his

civil rights.

Analogous principles indicate that a defendant may 

deserve fees even if not all the plaintiff’s claims were

frivolous. In this context, §1988 serves to relieve a defendant of expenses attributable to frivolous charges. The 

plaintiff acted wrongly in leveling such allegations, and 

the court may shift to him the reasonable costs that those

claims imposed on his adversary. See Christiansburg, 434 

U. S., at 420–421. That remains true when the plaintiff’s

suit also includes non-frivolous claims. The defendant, of 

course, is not entitled to any fees arising from these nonfrivolous charges. See ibid. But the presence of reasonable allegations in a suit does not immunize the plaintiff 

against paying for the fees that his frivolous claims 

imposed.

Indeed, we have previously said exactly this much. In 

Hensley, we noted the possibility that a plaintiff might 

prevail on one contention in a suit while also asserting an 

unrelated frivolous claim. In this situation, we explained, 

a court could properly award fees to both parties—to the 

plaintiff, to reflect the fees he incurred in bringing the

meritorious claim; and to the defendant, to compensate for

the fees he paid in defending against the frivolous one.

See 461 U. S., at 435, n. 10. We thus made clear that a 

court may reimburse a defendant for costs under §1988 

even if a plaintiff’s suit is not wholly frivolous. Feeshifting to recompense a defendant (as to recompense a 

plaintiff) is not all-or-nothing: A defendant need not show 

that every claim in a complaint is frivolous to qualify for 

fees. 

The question then becomes one of allocation: In a lawsuit involving a mix of frivolous and non-frivolous claims, 
8 FOX v. VICE 

Opinion of the Court 

what work may the defendant receive fees for? Vice concedes, as he must, that a defendant may not obtain compensation for work unrelated to a frivolous claim. Brief 

for Respondents 42, n. 13. Similarly, we think Fox would 

have to concede (once he has lost the argument that the 

presence of any non-frivolous claim precludes a fee award) 

that the defendant may receive reasonable fees for work 

related exclusively to a frivolous claim. The question in

dispute concerns work that helps defend against nonfrivolous and frivolous claims alike—for example, a deposition eliciting facts relevant to both allegations. 

Vice proposes authorizing the trial court to award fees

for work that is “fairly attributable” to the frivolous portion of the lawsuit. See, e.g., Tr. of Oral Arg. 41, 45. But 

that standard is in truth no standard at all. The very

question under consideration is: What fees may be fairly 

attributed to frivolous claims under §1988? To answer 

“Those that are fairly attributable to frivolous claims” is 

just to restate this question. And that non-response response would leave to each and every trial court not only

the implementation, but also the invention, of the applicable legal standard. We do not think trial courts would 

appreciate that lack of guidance. And yet more important,

we do not think such an empty and amorphous test would

ensure that all fee awards to defendants comport with

Congress’s purpose in enacting §1988.

That congressional policy points to a different and more 

meaningful standard: Section 1988 allows a defendant to 

recover reasonable attorney’s fees incurred because of, but 

only because of, a frivolous claim. Or what is the same 

thing stated as a but-for test: Section 1988 permits the

defendant to receive only the portion of his fees that he

would not have paid but for the frivolous claim. Recall 

that the relevant purpose of §1988 is to relieve defendants

of the burdens associated with fending off frivolous litigation. See supra, at 5–6. So if a frivolous claim occasioned 
Cite as: 563 U. S. ____ (2011) 9 

Opinion of the Court 

the attorney’s fees at issue, a court may decide that the

defendant should not have to pay them. But if the defendant would have incurred those fees anyway, to defend 

against non-frivolous claims, then a court has no basis 

for transferring the expense to the plaintiff. Suppose, for

example, that a defendant’s attorney conducts a deposition

on matters relevant to both a frivolous and a non-frivolous 

claim—and more, that the lawyer would have taken and 

committed the same time to this deposition even if the 

case had involved only the non-frivolous allegation. In 

that circumstance, the work does not implicate Congress’s 

reason for allowing defendants to collect fees. The defendant would have incurred the expense in any event; he has 

suffered no incremental harm from the frivolous claim. In 

short, the defendant has never shouldered the burden that 

Congress, in enacting §1988, wanted to relieve. The basic 

American Rule thus continues to operate.3 

A standard allowing more expansive fee-shifting would 

furnish windfalls to some defendants, making them better

off because they were subject to a suit including frivolous 

claims. For under any more permissive test, the simple 

presence of a frivolous claim would allow the court to shift 

—————— 

3The test set out here differs from the one we adopted in Hensley v. 

Eckerhart, 461 U. S. 424, 435 (1983), to govern fee awards to plaintiffs

in cases involving both successful and unsuccessful claims. See supra, 

at 6–7. That difference reflects the disparate legislative purposes we 

have recognized in the two settings. See Christiansburg Garment Co. v. 

EEOC, 434 U. S. 412, 419–420 (1978); supra, at 5–6. Congress authorized fees to plaintiffs to compensate them for the costs of redressing

civil rights violations; accordingly, a plaintiff may receive fees for all 

work relating to the accomplishment of that result, even if “the plaintiff

failed to prevail on every contention raised.” Hensley, 461 U. S., at 435. 

By contrast, Congress authorized fees to defendants to remove the

burden associated with fending off frivolous claims; accordingly, a 

defendant may recover for fees that those claims caused him to incur.

In each context, the standard for allocating fees in “mixed” cases 

matches the relevant congressional purpose. 
10 FOX v. VICE 

Opinion of the Court 

to the plaintiff some of the costs of defending against 

regular, non-frivolous charges. So two defendants (call

them Vice and Rice) could face identical non-frivolous

allegations, but because Vice also confronted a frivolous 

claim, he might end by paying less than Rice to his attorneys. The chance assertion—for Vice, the downright lucky

assertion—of the frivolous claim could relieve him not only

of the incremental costs of that claim but also of costs that 

he, like Rice, would have had to pay in its absence. Section 1988 provides no warrant for that peculiar result; 

that statute was “never intended to produce windfalls” for 

parties. See Farrar v. Hobby, 506 U. S. 103, 115 (1992) 

(internal quotation marks omitted).

At the same time, the “but-for” standard we require may

in some cases allow compensation to a defendant for attorney work relating to both frivolous and non-frivolous

claims. Suppose, for example, that a plaintiff asserts one 

frivolous and one non-frivolous claim, but that only the 

frivolous allegation can legally result in a damages award. 

If an attorney performs work useful to defending against 

both, but did so only because of the defendant’s monetary

exposure on the frivolous charge, a court may decide to

shift fees. Or similarly, imagine that the frivolous claim 

enables removal of the case to federal court, which in 

turn drives up litigation expenses. Here too, our standard 

would permit awarding fees for work relevant to both 

claims in order to reflect the increased costs (if any) of the

federal forum. And frivolous claims may increase the cost

of defending a suit in ways that are not reflected in the 

number of hours billed. If a defendant could prove, for

example, that a frivolous claim involved a specialized area 

that reasonably caused him to hire more expensive counsel for the entire case, then the court may reimburse the 

defendant for the increased marginal cost. As all these 

examples show, the dispositive question is not whether 

attorney costs at all relate to a non-frivolous claim, but 
Cite as: 563 U. S. ____ (2011) 11 

Opinion of the Court 

whether the costs would have been incurred in the absence of the frivolous allegation. The answers to those 

inquiries will usually track each other, but when they 

diverge, it is the second that matters. 

We emphasize, as we have before, that the determination of fees “should not result in a second major litigation.” 

Hensley, 461 U. S., at 437. The fee applicant (whether a 

plaintiff or a defendant) must, of course, submit appropriate documentation to meet “the burden of establishing

entitlement to an award.” Ibid. But trial courts need not, 

and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is 

to do rough justice, not to achieve auditing perfection. So 

trial courts may take into account their overall sense of a 

suit, and may use estimates in calculating and allocating 

an attorney’s time. And appellate courts must give substantial deference to these determinations, in light of “the

district court’s superior understanding of the litigation.” 

Ibid.; see Webb v. Dyer County Bd. of Ed., 471 U. S. 234, 

244 (1985). We can hardly think of a sphere of judicial

decisionmaking in which appellate micromanagement has

less to recommend it. 

But the trial court must apply the correct standard, and

the appeals court must make sure that has occurred. See 

Perdue v. Kenny A., 559 U. S. ___, ___ (2010) (slip op., at 

14) (“Determining a ‘reasonable attorney’s fee’ is a matter 

that is committed to the sound discretion of a trial judge, 

. . . but the judge’s discretion is not unlimited”); Cf. Koon 

v. United States, 518 U. S. 81, 100 (1996) (“A district court

by definition abuses its discretion when it makes an error

of law”). That means the trial court must determine 

whether the fees requested would not have accrued but for 

the frivolous claim. And the appeals court must determine

whether the trial court asked and answered that question,

rather than some other. A trial court has wide discretion 

when, but only when, it calls the game by the right rules. 
12 FOX v. VICE 

Opinion of the Court 

III 

The task remains of applying these principles to the fee

award Vice received. The District Court’s analysis suggests that Vice’s attorneys would have done much the

same work even if Fox had not brought his frivolous

claims. As noted earlier, see supra, at 3, the court acknowledged that Fox’s federal and state-law claims were 

“interrelated,” App. to Pet. for Cert. 28a (internal quotation marks omitted). The charges “arose out of the same 

transaction”—Vice’s conduct in the campaign—and their

“defense entailed proof or denial of essentially the same

facts.” Ibid. (internal quotation marks omitted). It therefore seems likely that Vice’s attorneys would at least have 

conducted similar fact-gathering activities—taken many of 

the same depositions, produced and reviewed many of the 

same documents, and so forth. Indeed, the District Court 

highlighted the usefulness of the attorneys’ work to defending against the state-law claims: In its order remanding those claims, the court noted that the “trial preparation, legal research, and discovery” done in the federal 

court could “be used by the parties in the state court proceedings.” Id., at 40a. 

The District Court’s decision to award full attorney’s

fees to Vice failed to take proper account of this overlap 

between the frivolous and non-frivolous claims. Rather 

than apply the but-for standard we have set out, the court 

indicated that the paramount factor was the parties’ “focus” in the litigation. Id., at 33a. The court did not address whether the “interrelated[ness]” of the claims meant

that Vice would have incurred part or most of his fees even

if Fox had asserted only the non-frivolous state-law

claims. To the contrary, the court suggested that the close 

relationship between the federal and state-law claims 

supported Vice’s request to recover all of his attorney’s

fees. See id., at 28a; supra, at 3. That reasoning stands

the appropriate analysis on its head. It cannot be squared 
Cite as: 563 U. S. ____ (2011) 13 

Opinion of the Court 

with the congressional policy of sparing defendants from

the costs of frivolous litigation.

Nor did the Court of Appeals uphold the award of fees

on the ground that we would require. The majority articulated a standard that, taken alone, might be read as consistent with our opinion; according to the court, a defendant should receive fees for “work which can be distinctly 

traced to a plaintiff’s frivolous claims.” 594 F. 3d, at 429. 

But the court seemed to think that its test permitted

awarding Vice fees for any work useful to defending 

against a frivolous claim, even if lawyers would have done

that work regardless. Indeed, this very point divided the 

majority and the dissent. Judge Southwick objected to the

fee award on the ground that “almost all [of] the defendant[s’] discovery and factual analysis would have been

necessary even if no federal claims had been brought.” Id., 

at 431. But the majority never responded to that argument or otherwise engaged this crucial question. The 

majority instead merely reiterated the District Court’s 

reasoning that the parties had principally “focus[ed]” on

the §1983 allegations. That finding, as we have explained,

is irrelevant if Vice’s attorneys would have performed the 

same work to defend against the state-law claims. 

On this record, we must return the case to the lower 

courts. See, e.g., Perdue, 559 U. S., at ___–___ (slip op., at

12–15); Pennsylvania v. Delaware Valley Citizens’ Council 

for Clean Air, 478 U. S. 546, 566–568 (1986); Hensley, 461 

U. S., at 438–440. In a suit of this kind, involving both

frivolous and non-frivolous claims, a defendant may recover the reasonable attorney’s fees he expended solely 

because of the frivolous allegations. And that is all. Consistent with the policy underlying §1988, the defendant 

may not receive compensation for any fees that he would

have paid in the absence of the frivolous claims. We therefore vacate the judgment of the Court of Appeals and

remand the case for further proceedings consistent with 

this opinion. 

It is so ordered.