42 U.S.C. § 1988: Civil Rights Attorney’s Fees, Lodestar, and Costs

Under 42 U.S.C. § 1988, attorney fees can be shifted to the losing side in specified civil rights cases, so a person whose constitutional or statutory civil rights have been violated does not have to absorb the full cost of enforcing them. Congress added this fee-shifting provision in 1976 as a deliberate exception to the American rule that each side pays its own lawyer.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights The theory is that people who successfully sue over civil rights violations act as private enforcers of federal law, and the fee award is what makes that role economically possible.2United States Department of Justice. Civil Resource Manual 220 – Attorney’s Fees

Which Cases Qualify

Section 1988(b) does not cover every civil rights lawsuit. It lists specific statutes, and if your claim is not brought under one of them, § 1988 does not apply. The list includes:

  • 42 U.S.C. § 1983, the workhorse statute for suing state and local officials who violate constitutional rights.
  • 42 U.S.C. § 1981 (racial discrimination in contracts) and § 1981a (damages for intentional employment discrimination).
  • 42 U.S.C. § 1982 (equal property rights), § 1985 (civil rights conspiracies), and § 1986 (failure to prevent such conspiracies).
  • Title VI of the Civil Rights Act of 1964, which prohibits race, color, and national origin discrimination in federally funded programs.3U.S. Department of Justice. Title VI of the Civil Rights Act of 1964
  • Title IX of the Education Amendments of 1972, which bars sex discrimination in education programs receiving federal funds.4U.S. Department of Education. Title IX and Sex Discrimination
  • The Religious Land Use and Institutionalized Persons Act (RLUIPA).5U.S. Department of Justice. Religious Land Use and Institutionalized Persons Act of 2000
  • The Religious Freedom Restoration Act (RFRA), though after City of Boerne v. Flores, RFRA only reaches federal actors, not state or local ones.

The statute also references 34 U.S.C. § 12361, the civil remedy for gender-motivated violence, but the Supreme Court struck down that private cause of action in United States v. Morrison (2000), so the reference has little practical force.6Office of the Law Revision Counsel. 34 USC 12361 – Civil Rights

One boundary to note: § 1988 does not authorize a fee award against a judge for actions taken in a judicial capacity unless the judge clearly acted outside their jurisdiction.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights Suing a judge over a ruling is not a path to fees.

Who Counts as a Prevailing Party

Fees go to the “prevailing party,” and the Supreme Court has read that phrase strictly. You prevail when a court grants enduring relief on the merits that materially alters the legal relationship between you and the defendant. A judgment in your favor qualifies. So does a court-approved consent decree that binds the defendant to change its conduct.7Legal Information Institute. Lackey v Stinnie

What does not qualify is often more important. In Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, the Court rejected the “catalyst theory.” If the defendant voluntarily changes its behavior to moot your lawsuit and no court order is entered, you have not prevailed, even if your suit is what pushed the change.8Legal Information Institute. Buckhannon Board and Care Home Inc v West Virginia Department of Health and Human Resources

The Court narrowed the definition again in 2025. In Lackey v. Stinnie, plaintiffs had won a preliminary injunction, but the case went moot before final judgment. The Court held that a “transient victory” on a preliminary injunction does not confer prevailing-party status, even when outside events make the temporary relief effectively permanent. The relief must be conclusive as a judicial matter, not just as a practical one.7Legal Information Institute. Lackey v Stinnie

Different Standards for Plaintiffs and Defendants

The rules are deliberately asymmetric. A prevailing plaintiff ordinarily gets fees unless special circumstances would make an award unjust. That is the default, and courts follow it as a matter of course.

A prevailing defendant faces a much higher bar. Under Christiansburg Garment Co. v. EEOC, a defendant can recover fees only if the plaintiff’s suit was frivolous, unreasonable, or without foundation. The Court warned judges against hindsight reasoning: losing a hard case is not the same as filing a baseless one, and the fact that a plaintiff ultimately lost does not, by itself, support a fee award against them.9Legal Information Institute. Christiansburg Garment Co v Equal Employment Opportunity Commission

Two Traps That Catch Plaintiffs

Two well-established rules surprise many civil rights plaintiffs.

The first is settlement fee waivers. In Evans v. Jeff D., the Supreme Court held that a defendant can condition a settlement offer on the plaintiff giving up statutory attorney fees. The Court reasoned that banning such waivers would deter settlements, because defendants would be less generous on the merits if the fee exposure could not be capped. In practice, this puts your lawyer in a bind: accept excellent relief for you and take nothing, or hold out and risk the offer.

The second is self-representation. Under Kay v. Ehrler, a pro se litigant cannot recover attorney fees under § 1988, even if that litigant is a licensed attorney. The statute exists to help plaintiffs hire competent, independent counsel; paying someone to represent themselves would cut against that purpose.10Legal Information Institute. Kay v Ehrler

How the Fee Is Calculated

Federal courts use the “lodestar” method: reasonable hours multiplied by a reasonable hourly rate. The product is presumed to be the reasonable fee.11U.S. Department of Labor. Determining Reasonable Hourly Rate – Recent Decisions and Evolving Issues

The Hourly Rate

Reasonable means the market rate charged by attorneys of similar experience and skill for comparable work in the relevant geographic area. To support a requested rate, an attorney typically submits their own declaration describing their background along with declarations from other local practitioners confirming that the rate is in line with what the market pays for similar civil rights work.

The Hours

Judges scrutinize every entry. Time that looks excessive, duplicative, or unrelated to the successful claims gets cut. Vague entries like “research” or “trial prep” are routinely reduced because the court cannot tell whether the time was well spent. Contemporaneous records, in tenth-of-an-hour increments, with each task described, are the standard. Sloppy records lose fees.

Partial Success

Winning some claims and losing others does not guarantee a full award. Under Hensley v. Eckerhart, when a plaintiff obtains only partial success, the fee should reflect what is reasonable in light of the results obtained. The court can strike hours spent on unsuccessful claims or simply reduce the total. The Supreme Court called the degree of success “the most critical factor.”12Library of Congress. Hensley v Eckerhart 461 US 424

Enhancements Above the Lodestar

Enhancements are rare. In Perdue v. Kenny A., the Court reaffirmed a strong presumption that the lodestar is the correct fee and put the burden on the applicant to produce specific evidence that it was inadequate to attract competent counsel. Quality of representation and results obtained are generally already reflected in the rate and hours, so invoking them again for a multiplier amounts to double-counting. The narrow openings are situations where the attorney’s true market value is not captured by the rate, where the case required an extraordinary outlay over an unusually long period, or where payment was seriously delayed.13Legal Information Institute. Perdue v Kenny A

Expert Fees and Other Costs

Attorney fees are the main recovery under § 1988, but not the only one. Section 1988(c) allows expert witness fees to be included in the award, but only in cases brought under §§ 1981 or 1981a. For every other statute § 1988 covers, expert fees are not recoverable through the statute.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights This surprises people bringing § 1983 excessive-force claims who assumed the expert bill would be part of the tab: it is not.

Separately, 28 U.S.C. § 1920 lets any prevailing party in federal court tax certain standard costs:

  • Clerk and marshal fees, including the current $350 civil filing fee.14Office of the Law Revision Counsel. 28 USC 1914 – District Court Filing and Miscellaneous Fees
  • Printed or electronically recorded transcripts necessarily obtained for use in the case.
  • Printing and witness fees.
  • Copies necessarily obtained for use in the case.
  • Compensation for court-appointed experts and interpreters as approved by the court.15Office of the Law Revision Counsel. 28 USC 1920 – Taxation of Costs

Taxes on Your Fee Award

The tax side of a fee award catches many plaintiffs off guard. In Commissioner v. Banks, the Supreme Court held that when a litigation recovery is taxable income, the whole recovery counts as the plaintiff’s income, including the portion paid directly to the attorney under a contingent-fee agreement. You can owe tax on money that never lands in your account.16Legal Information Institute. Commissioner of Internal Revenue v Banks

Congress softened that result through 26 U.S.C. § 62(a)(20), which gives an above-the-line deduction for attorney fees and court costs in cases involving “unlawful discrimination.” The deduction survived the Tax Cuts and Jobs Act of 2017 and covers a broad set of claims, including those under §§ 1981, 1983, and 1985, plus Title VII, the ADA, the ADEA, the Fair Housing Act, and the FMLA. It is capped at the amount of the judgment or settlement included in gross income for the year.17Office of the Law Revision Counsel. 26 USC 62 – Adjusted Gross Income Defined

The catch is that not every civil rights claim fits the § 62(e) definition of “unlawful discrimination.” A § 1983 excessive-force claim, for instance, is a constitutional claim that may not slot cleanly into that category. If it doesn’t, the fee portion of your recovery may be taxable with no offsetting deduction, and the resulting bump in adjusted gross income can also push you out of income-based credits. Talk to a tax professional before you settle.

Filing the Motion and Collecting

Federal Rule of Civil Procedure 54(d)(2) requires a fee motion to be filed no later than 14 days after entry of final judgment, unless a statute or court order says otherwise.18Legal Information Institute. Federal Rules of Civil Procedure Rule 54 Many districts modify the timeline through local rules, so check the specific court before judgment enters. Missing the deadline can waive the fee entirely.

The motion needs to present the billing records in an organized format with the underlying time entries attached, a declaration from the attorney describing experience and justifying the requested rate, and supporting affidavits from other local practitioners. The opposing side gets to challenge hours and rate; sometimes the court holds an evidentiary hearing. The judge then enters an order fixing the dollar amount, and that order is enforceable as part of the judgment.

Once entered, the award accrues post-judgment interest under 28 U.S.C. § 1961 at the weekly average one-year Treasury yield for the week before judgment, computed daily and compounded annually.19Office of the Law Revision Counsel. 28 USC 1961 – Interest On a large award, the interest gives a foot-dragging defendant a real reason to pay.