Opposing an attorney fees motion: how to defeat fee-shifting requests

You won (or partly won) the case, or perhaps you lost it on a procedural ground. Now the other side has filed a motion for attorney fees, and the number is large. Your response brief has to do two things at once: establish that the moving party is not entitled to fees at all, and, if the court reaches reasonableness, walk through the lodestar with enough precision to cut the number sharply. The American rule presumption against fee-shifting is your friend at the threshold; Hensley v. Eckerhart is your friend at the reasonableness stage.

Fee motions are won and lost in the response brief. The opening papers usually look reasonable on their face: a competent declaration, supporting time records, a brief explanation of the statutory or contractual hook. The response is where the entitlement theory gets pressure-tested and where individual time entries get attacked line by line. A response that does both jobs well, in the right order, routinely halves or eliminates fee awards.

The American rule sets the default

In the United States, the default rule is that each party bears its own attorney fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975), reaffirmed the American rule as the controlling presumption in federal court and held that fee-shifting requires explicit statutory or contractual authority. The Supreme Court has restated this presumption many times since.

The response brief should open by reminding the court that the burden is on the moving party to identify a specific exception to the American rule and to show that the exception applies. The exceptions are narrow:

1. A federal or state statute that explicitly authorizes fees in this category of case.
2. A contract between the parties that provides for fee-shifting.
3. A narrow set of judicially recognized equitable exceptions (common fund, bad faith, willful disobedience of a court order).

If the moving brief does not clearly identify the exception, point it out. Some fee motions cite the wrong statute. Some cite the right statute but invoke a subsection that does not apply to the prevailing party here. Some rely on contract language that, read closely, does not reach the claim litigated.

Prevailing-party status under Buckhannon

Most fee-shifting statutes condition fees on "prevailing party" status. The Supreme Court defined that term restrictively in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). To be a prevailing party, the litigant must have obtained a "judicially sanctioned change in the legal relationship of the parties." Id. at 605. A judgment on the merits or a court-ordered consent decree qualifies. A voluntary settlement, a voluntary change in the defendant's conduct, or a defendant's mooting of the case usually does not.

Buckhannon expressly rejected the catalyst theory under which a plaintiff could recover fees by showing that the lawsuit prompted the defendant to change its behavior. 532 U.S. at 605. The Court reasoned that "[a] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id.

The response brief should map the procedural history of the case onto Buckhannon's framework. Three common scenarios:

1. The moving party won a dispositive ruling on some but not all claims. Argue the limited scope of prevailing-party status.
2. The case settled. Argue that a private settlement, without a consent decree or court-retained jurisdiction, does not confer prevailing-party status under Buckhannon.
3. The case became moot. Argue that mootness eliminates the judicial imprimatur Buckhannon requires.

Where the moving party is a defendant claiming prevailing status because the plaintiff voluntarily dismissed, check the dismissal order carefully. Voluntary dismissals without prejudice often do not confer prevailing-party status, while dismissals with prejudice often do. The local circuit rule controls.

The Christiansburg standard for defendants in civil-rights cases

When a defendant in a civil-rights case seeks fees from the plaintiff, the standard is dramatically more demanding than the plaintiff's standard. The Supreme Court held in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), that a prevailing defendant in a Title VII case may recover fees only upon a finding that "the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Id. at 421.

Christiansburg warned against post-hoc reasoning: the fact that the plaintiff lost does not mean the claim was frivolous when filed. Id. at 421-22. The standard polices truly meritless suits, not suits that turned out to be losers. Lower courts have extended the Christiansburg standard to fee requests by defendants under most other civil-rights statutes, including 42 U.S.C. § 1988.

A response brief for a civil-rights plaintiff facing a defendant's fee motion should hammer Christiansburg. Walk through the claim's evolution: the pre-suit investigation, the legal theory's grounding in then-existing case law, the factual evidence that supported each element at the time of filing. A claim that survived a motion to dismiss is almost never frivolous within the meaning of Christiansburg. A claim that survived summary judgment but lost at trial is even more clearly non-frivolous.

The lodestar method: Hensley factors

When the moving party clears the entitlement bar, the court turns to the amount of fees. The dominant method in federal court and most state courts is the lodestar: reasonable hours multiplied by a reasonable rate. Hensley v. Eckerhart, 461 U.S. 424 (1983), set out the framework and identified the touchstones for both inputs.

On hours, Hensley requires the applicant to "exercise billing judgment" and exclude time that is "excessive, redundant, or otherwise unnecessary." 461 U.S. at 434. On rates, the question is the prevailing market rate for similar work by similarly qualified attorneys in the relevant community.

Hensley also addressed partial success. Where the plaintiff prevailed on some but not all claims, the court must consider whether the unsuccessful claims were related to the successful ones. Fees for time spent on unrelated unsuccessful claims should be excluded entirely. Fees for related unsuccessful claims may be awarded if the overall result justifies the time spent. 461 U.S. at 434-37.

The Supreme Court reinforced the lodestar framework in Perdue v. Kenny A., 559 U.S. 542 (2010), which held that enhancements above the lodestar are permitted only in "rare and exceptional" circumstances and require specific evidence justifying the enhancement. Id. at 552-53. Most enhancements requested under Perdue fail because the moving party cannot tie the requested multiplier to specific, objective factors not already reflected in the lodestar.

Common attack vectors on a fee request

A line-by-line attack on the fee request is the second half of the response brief. The standard attacks:

Duplicative billing

Multiple attorneys billing for the same task (attending the same meeting, drafting and re-drafting the same brief, both partner and associate reviewing the same document). Some duplication is unavoidable on complex matters, but routine duplication is excessive. Identify specific examples by date and timekeeper and ask for a percentage reduction.

Block billing

Time entries that lump multiple tasks into a single block of time with no breakdown by task. Block billing makes it impossible for the court to assess whether the time was reasonable. Many courts apply a percentage reduction (often 10% to 30%) when block billing is pervasive. Cite the specific entries by date and ask for a category-wide reduction.

Vague time entries

Entries that describe the work in unhelpfully general terms ("review documents," "conference re strategy," "work on brief"). The applicant has the burden of showing that the time was reasonably expended on the litigation. Vague entries do not carry that burden. The response should compile a list of vague entries and ask the court to disallow them or reduce them.

Excessive hours

Total hours that are disproportionate to the work product or to comparable cases. Compare the hours billed to the length of the brief, the number of depositions, the number of motions filed, the complexity of the issues. Where hours are obviously excessive, identify the specific time periods and propose a reduction.

Unreasonable rates

Rates that exceed the prevailing market rate for similar work in the forum community. Submit a declaration or cite recent fee awards setting market rates for comparable attorneys. The applicant's burden is to justify the requested rate; if the supporting affidavits are conclusory, the court can reduce the rate to the established market level.

Unsuccessful claims under Hensley

Time spent on claims the moving party did not win must be carefully assessed under the Hensley framework. Where the moving party brought multiple claims and prevailed on only some, identify the time entries that relate to the losing claims and ask for an exclusion or proportional reduction.

Pre-suit administrative work

Time spent on administrative tasks (intake, conflict checks, retainer negotiations) is generally not compensable. Some statutes also exclude pre-suit work that did not directly advance the litigation. Comb the pre-filing entries for non-litigation work.

Travel time and clerical work

Many courts disallow or reduce travel time, especially where local counsel was available. Clerical work (filing, scheduling, document copying) is generally not compensable at attorney rates and often not at all.

The offer-of-judgment trap under Marek

Where the case proceeded under Federal Rule 68 (or an analogous state rule), the defendant may have made an offer of judgment that limits or shifts post-offer fees. Marek v. Chesny, 473 U.S. 1 (1985), held that when a plaintiff rejects a Rule 68 offer and ultimately recovers less than the offer, the plaintiff cannot recover post-offer fees under a fee-shifting statute that defines "costs" to include attorney fees. Id. at 9-11.

If the moving party is a civil-rights plaintiff who rejected a Rule 68 offer, check the recovery against the offer. If the recovery is less, Marek eliminates post-offer fees, which can dramatically reduce the award. Conversely, if you represent the defendant who made the Rule 68 offer and the plaintiff is now seeking post-offer fees, Marek is your first line of attack.

How to brief the opposition

The response brief should have a clean two-part structure:

Introduction

One or two paragraphs identifying who the moving party is, what fees they are seeking, why they are not entitled, and, in the alternative, why the requested amount is excessive.

Part one: entitlement

This section asks whether the moving party can recover fees at all. Address (in order):

1. The American rule presumption.
2. The specific statute or contract relied upon, and why it does or does not apply.
3. Prevailing-party status under Buckhannon.
4. If the moving party is a defendant in a civil-rights case, the Christiansburg frivolousness standard.
5. Any procedural bars (untimely motion, failure to comply with local rules).

Part two: reasonableness

This section assumes (without conceding) entitlement and attacks the amount. Address (in order):

1. The lodestar framework under Hensley and Perdue.
2. Rate reductions, with supporting market evidence.
3. Hour reductions, by category (duplicative, block-billed, vague, excessive, clerical).
4. Reductions for unsuccessful claims under Hensley.
5. Reductions under Marek for post-offer fees, if applicable.
6. The proper final amount, with arithmetic.

A reasonableness section that gives the court a concrete alternative number is far more persuasive than one that simply criticizes the moving party's request. The court has to enter some number. Give it a defensible one.

Conclusion

Ask the court to deny the motion in full. In the alternative, identify the maximum amount you could accept and explain the calculation.

Common errors that sink fee oppositions

Skipping the entitlement analysis. Plaintiffs and defendants often jump straight to attacking time entries. The entitlement analysis is the cleaner win. A motion that fails at the threshold need not reach reasonableness at all.

Generalized objections instead of line-item attacks. "The hours are excessive" is not an argument. "The 23.7 hours billed on June 4-5 for 'document review' included clerical document organization that should not have been billed at $850/hour" is an argument. Specificity wins.

Failing to submit supporting evidence on rates. When you challenge the requested hourly rate, the court needs evidence of the prevailing market rate. A declaration from a local practitioner, recent fee awards in the same district, or a fee survey can all do the work. A bare assertion that the rate is too high carries no weight.

Forgetting about post-judgment fees. Some fee statutes allow the fee applicant to recover fees-on-fees for the time spent litigating the fee motion itself. Argue against that recovery where the moving party's positions are unreasonable.

The bottom line

An opposition to a fee motion succeeds when the brief: invokes the American rule presumption, scrutinizes prevailing-party status under Buckhannon, applies the Christiansburg standard where the moving party is a civil-rights defendant, and walks the court through the Hensley lodestar with specific, line-item attacks on rates and hours. It fails when the opposition concedes entitlement without analysis or attacks the fees in generalities.

Fee motions are math problems wrapped in a legal theory. The legal theory determines whether fees are available at all. The math determines how much. A response that addresses both, in the right order, with citations to the controlling Supreme Court authority, almost always moves the number in the direction the responding party needs.