Under 42 U.S.C. § 1988, a court may order the losing side in certain federal civil rights cases to pay the winning side’s reasonable attorney fees. The award is discretionary, it goes only to a “prevailing party,” and it applies only to the specific civil rights statutes Congress listed. Several court-made rules and one major statutory carve-out for prisoner cases sharply limit what a winning plaintiff actually collects.
Which Cases Qualify
Section 1988 authorizes fee awards only in actions to enforce specific federal laws. The covered statutes include Sections 1981, 1981a, 1982, 1983, 1985, and 1986 of Title 42; Title VI of the Civil Rights Act of 1964; Title IX; the Religious Freedom Restoration Act; and the Religious Land Use and Institutionalized Persons Act. Section 1983 claims, which cover deprivations of federal rights by anyone acting under government authority, are the most frequently litigated and include most police misconduct, prison conditions, and public-school First Amendment cases.
One boundary matters at the outset: the United States itself cannot recover fees as a prevailing party under this statute, even when a federal agency wins a covered civil rights case.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights
Who Counts as a Prevailing Party
Fees go only to a “prevailing party,” and courts read that phrase narrowly. A plaintiff qualifies by obtaining an enforceable judgment on the merits or a court-ordered consent decree. The requirement is a judicial act that materially changes the legal relationship between the parties in the plaintiff’s favor.2Justia. Buckhannon Board and Care Home Inc v West Virginia Department of Health and Human Resources
A defendant’s voluntary change in behavior does not count, even if the plaintiff gets exactly what the lawsuit asked for. The Supreme Court rejected that “catalyst theory” in Buckhannon Board & Care Home v. West Virginia Department of Health and Human Resources (2001). A plaintiff whose lawsuit pressures an agency to change its policy but whose case is then dismissed as moot walks away with no fees.2Justia. Buckhannon Board and Care Home Inc v West Virginia Department of Health and Human Resources
Nominal Damages
Winning one dollar in nominal damages technically makes you a prevailing party. But in Farrar v. Hobby (1992), the Supreme Court held that when a plaintiff’s success is purely technical, the reasonable fee may be zero. A judge can explain why the victory is too small to warrant any fee and decline to award one.3Legal Information Institute. Farrar v Hobby, 506 US 103 (1992)
When a Winning Defendant Can Collect
The statute is deliberately one-sided. A prevailing plaintiff receives fees as a matter of course unless special circumstances would make the award unjust. A prevailing defendant faces a much higher bar: under Christiansburg Garment Co. v. EEOC (1978), fees are available only when the plaintiff’s claim was frivolous, unreasonable, or without foundation. A case that simply failed on the merits is not enough.4Legal Information Institute. Christiansburg Garment Co v Equal Employment Opportunity Commission
Self-Represented Litigants
If you represent yourself, you cannot recover attorney fees under § 1988, even if you are a licensed attorney. The Supreme Court settled this in Kay v. Ehrler (1991), reasoning that the statute exists to encourage litigants to hire counsel. Non-lawyer pro se litigants are likewise ineligible.5Legal Information Institute. Kay v Ehrler, 499 US 432 (1991)
How the Fee Is Calculated
Courts use the lodestar method: hours reasonably spent on the case, multiplied by a reasonable hourly rate. That product is the presumptive fee. Most adjustments go downward.
The Hourly Rate
The rate must reflect prevailing market rates in the community where the case was litigated. In Blum v. Stenson (1984), the Supreme Court held that attorneys from nonprofit legal organizations and legal aid offices receive the same market rate as private lawyers with comparable skill and experience. The applicant proves the rate through affidavits from other practitioners in the same market.6Justia. Blum v Stenson, 465 US 886 (1984)
Paralegal and Support Staff Time
Work by paralegals, law clerks, and recent law graduates can be billed separately at market rates rather than folded into attorney overhead. In Missouri v. Jenkins (1989), the Supreme Court held that where the local practice is to bill paralegal time separately, § 1988 compensates that time at market rates.7Justia. Missouri v Jenkins, 491 US 274 (1989)
Partial Success
If a plaintiff wins on some claims and loses on others, the fee award should reflect only the successful claims. Under Hensley v. Eckerhart (1983), degree of success is the most critical factor. Hours spent on unrelated unsuccessful claims are excluded entirely. Where all claims share a common set of facts, courts have more flexibility, but limited success produces a proportionally limited fee.8Justia. Hensley v Eckerhart, 461 US 424 (1983)
Upward adjustments above the lodestar are rare. Courts have recognized the possibility in extraordinary cases, but in practice the lodestar is treated as the ceiling.
What You Cannot Recover: Expert Fees
Expert witness fees catch most plaintiffs off guard. In West Virginia University Hospitals v. Casey (1991), the Supreme Court held that expert fees are not part of a “reasonable attorney’s fee” and cannot be shifted under § 1988’s general provision.9Justia. West Virginia University Hospitals v Casey, 499 US 83 (1991)
Congress responded by adding subsection (c), but it applies only to cases enforcing Sections 1981 and 1981a. In those actions, involving racial discrimination in contracts or intentional employment discrimination, a court may include expert fees in the attorney fee award. For every other qualifying statute, including Section 1983, expert fees remain non-recoverable through fee-shifting.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights A police misconduct plaintiff whose expert witness bills $20,000 absorbs that cost regardless of the outcome.
Fee Limits in Prisoner Cases
The Prison Litigation Reform Act imposes special restrictions on top of the normal § 1988 framework:
- The attorney’s hourly rate cannot exceed 150% of the rate paid to court-appointed counsel under the Criminal Justice Act.
- The total fee award cannot exceed 150% of the monetary judgment the prisoner wins.
- A portion of the prisoner’s own judgment, up to 25%, must be applied to pay the fee award before the defendant pays the remainder. The Supreme Court held in Murphy v. Smith (2018) that this offset is not optional; courts must apply as much of the judgment as necessary, up to that ceiling.10Justia. Murphy v Smith, 583 US (2018)
A prisoner who wins a $10,000 judgment can lose $2,500 of it to attorney fees, despite the general purpose of § 1988 to shift those costs onto the defendant. The rate and 150% caps are codified in the PLRA.11Office of the Law Revision Counsel. 42 USC 1997e – Suits by Prisoners
Filing the Fee Motion
Federal Rule of Civil Procedure 54(d)(2) sets the mechanics. The motion is due no later than 14 days after entry of judgment, unless a statute or court order provides otherwise. Missing that window generally waives the right to fees, no matter how strong the underlying claim.12Office of the Law Revision Counsel. Federal Rules of Civil Procedure – Rule 54 – Judgment; Costs
The motion must include contemporaneous billing records showing the specific work performed, when, and for how long. Vague entries invite reductions. Courts regularly cut hours they find excessive, duplicative, or inadequately documented. The applicant also submits declarations from local practitioners to support the requested rate. The opposing side can challenge hours, rate, or both.
How Rule 68 Offers Cut Off Fees
Defendants often use Rule 68 offers of judgment to stop the plaintiff’s fees from accumulating. If the plaintiff rejects a formal written offer and later obtains a judgment no more favorable than the offer, the plaintiff must pay the costs incurred after the offer date.13Legal Information Institute. Federal Rules of Civil Procedure Rule 68 – Offer of Judgment
In Marek v. Chesny (1985), the Supreme Court held that because § 1988 treats attorney fees as part of costs, a plaintiff who rejects a Rule 68 offer and does worse at trial cannot recover any attorney fees incurred after the date of the offer. Pre-offer fees remain recoverable; post-offer fees vanish.14Justia. Marek v Chesny, 473 US 1 (1985) A well-timed offer early in the case can force the plaintiff to choose between a low settlement and the risk of losing months or years of future fees.
Interest on the Fee Award
Once a court enters a fee award, post-judgment interest begins accruing under 28 U.S.C. § 1961. The rate is tied to the weekly average one-year constant maturity Treasury yield for the calendar week before the judgment date, compounded annually, running until the award is paid.15Office of the Law Revision Counsel. 28 USC 1961 – Interest For large awards in complex litigation, the interest alone can grow substantial while an appeal is pending.