What is the test for apportioning attorney fees between the state and federal defendants?

Contrary to the plaintiffs' suggestion, Corder v. Gates, 947 F.2d 374 (9th Cir.1991) does not permit apportionment of fees only when the time expended against each defendant is disproportionate. Corder mandates apportionment in such situations, id. at 383, but it does not bar it in others. Apportionment is mandated in these situations in order to ensure that a defendant is not liable for a fee award greater than the actual fees incurred against that defendant. The usual cause of disproportionate fee awards is a

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The situation is not unlike the one in Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir.1981), in which one of the two defendants was immune to attorney fee awards. There, the plaintiff expended 75% of its time against a state defendant and 25% against a federal defendant, but the state defendant was liable for attorney fees and the federal defendant was not. In upholding the district court's order awarding the plaintiffs 75% and not 100% of their fees from the state defendants, we observed