Under 42 U.S.C. § 1988, a federal court can order the losing side in certain civil rights cases to pay the winner’s reasonable attorney’s fees. The rule on 42 USC 1988 attorney fees applies only when the underlying case enforces one of the civil rights statutes Congress named in the section, and only when the plaintiff qualifies as a “prevailing party.” Fees are not automatic. You win the case first, then file a separate motion for fees, and the court decides the amount using a structured calculation.
Which Civil Rights Lawsuits Qualify
Section 1988 lists the statutes whose enforcement can trigger a fee award. A case built on a law that is not on this list cannot use § 1988 to shift fees.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights
- Section 1983, covering suits against state and local officials who violate constitutional rights under color of law.
- Section 1981, on racial discrimination in contracting.
- Section 1981a, on compensatory and punitive damages for intentional discrimination under Title VII and the ADA.
- Section 1982, on the equal right to buy, sell, lease, and inherit property.
- Sections 1985 and 1986, on civil rights conspiracies and failure to prevent them.
- Title VI of the Civil Rights Act of 1964, on race, color, or national origin discrimination in federally funded programs.
- Title IX of the Education Amendments of 1972, on sex discrimination in federally funded education.
- The Religious Freedom Restoration Act of 1993.
- The Religious Land Use and Institutionalized Persons Act of 2000.
Each statute has its own elements. Winning the merits is a prerequisite to a fee application, not a substitute for one.
Qualifying as a Prevailing Party
You cannot recover fees unless you are a “prevailing party,” which the Supreme Court has defined as someone who obtains a court-sanctioned change in the legal relationship between the parties. A judgment on the merits qualifies. So does a consent decree, because it carries the court’s enforcement authority even without any admission of liability.2Justia U.S. Supreme Court Center. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)
What does not qualify matters just as much. In Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources (2001), the Court rejected the “catalyst theory.” If your lawsuit pressures the defendant to change its behavior voluntarily, and the defendant makes the change without a court order, you have not prevailed for fee purposes. Private settlements that are never entered as a court order usually produce the same result.
Preliminary Injunctions Do Not Count
In Lackey v. Stinnie (2025), plaintiffs won a preliminary injunction, and the case then became moot when the legislature repealed the challenged law. The Supreme Court held that a preliminary injunction is “temporary success at an intermediary stage,” not the enduring, judicially sanctioned change in legal relationship that prevailing-party status requires.3Supreme Court of the United States. Lackey v. Stinnie, 604 U.S. ___ (2025)
Nominal Damages Usually Yield No Fees
A plaintiff who wins only nominal damages, such as $1, is technically a prevailing party. But in Farrar v. Hobby (1992), the Supreme Court said that when nominal damages result from a failure to prove the elements of a monetary claim, “the only reasonable fee is usually no fee at all.” The degree of success is the most important factor in setting the amount.4Library of Congress. Farrar v. Hobby, 506 U.S. 103 (1992)
How the Fee Amount Is Calculated
Federal courts use the “lodestar” method the Supreme Court adopted in Hensley v. Eckerhart (1983): reasonable hours multiplied by a reasonable hourly rate. The result carries a strong presumption of reasonableness.5Justia U.S. Supreme Court Center. Hensley v. Eckerhart, 461 U.S. 424 (1983)
Judges scrutinize both sides. On hours, they cut duplicated effort, excessive time on routine tasks, and work that was unnecessary. On rates, they look at what lawyers of comparable skill and experience charge for similar civil rights work in the relevant geographic market. Experienced lead attorneys in major metropolitan areas may see rates of $400 to $700 or more per hour, with junior associates and paralegals billed at lower rates.
Related and Unrelated Claims
If you win on some claims and lose on others, the court divides the hours by relationship. Hours spent on unsuccessful claims built on entirely different facts and legal theories are excluded, as if they were a separate lawsuit. But when all the claims share a common core of facts or related legal theories, the court looks at the overall result rather than parsing hours claim by claim.
Upward Adjustments Are Rare
In Perdue v. Kenny A. (2010), the Supreme Court held that enhancements above the lodestar are permitted only in “rare” and “extraordinary” circumstances where the base calculation fails to capture something that legitimately bears on the fee. The Court identified three narrow situations: where the hourly rate formula fails to capture the attorney’s true market value, where exceptionally prolonged litigation created extraordinary out-of-pocket costs, and where an unusual delay in payment justifies a time-value adjustment. The applicant bears the burden of proving the enhancement is necessary with specific evidence.6Justia U.S. Supreme Court Center. Perdue v. Kenny A., 559 U.S. 542 (2010)
Your Contingency Agreement Does Not Cap the Award
A private contingency agreement between you and your lawyer does not limit what the court can award under § 1988. In Blanchard v. Bergeron (1989), the Supreme Court held that the lodestar calculation controls, and the private arrangement is at most one factor the court may consider.7Justia U.S. Supreme Court Center. Blanchard v. Bergeron, 489 U.S. 87 (1989)>
What Can Shrink or Block the Fee
Rule 68 Offers of Judgment
A defendant can serve a formal offer of judgment under Federal Rule of Civil Procedure 68. If you reject it and later obtain a result less favorable than the offer, costs incurred after the offer are shifted to you. In Marek v. Chesny (1985), the Supreme Court held that because § 1988 defines attorney’s fees as “part of the costs,” your post-offer attorney’s fees are subject to Rule 68’s cost-shifting. Turning down a reasonable offer and doing worse at trial can cost you the fees your lawyer accrues from that point forward.8Justia U.S. Supreme Court Center. Marek v. Chesny, 473 U.S. 1 (1985)
Fee Waivers in Settlement
Defendants may legally condition a settlement offer on the plaintiff waiving statutory attorney’s fees. In Evans v. Jeff D. (1986), the Supreme Court held that Congress did not make fee awards nonnegotiable, and prohibiting fee waivers could discourage settlements. The district court retains discretion to approve or reject a settlement, but the waiver itself is not improper.9Justia U.S. Supreme Court Center. Evans v. Jeff D., 475 U.S. 717 (1986)
Prisoner Cases
The Prison Litigation Reform Act, at 42 U.S.C. § 1997e(d), caps fees in cases brought by incarcerated plaintiffs. Fees must be “directly and reasonably incurred in proving an actual violation” and proportionate to the court-ordered relief. When damages are awarded, up to 25% of the judgment is applied toward the fee, and the total fee cannot exceed 150% of the monetary judgment. The hourly rate is capped at 150% of the rate paid to court-appointed criminal defense counsel under 18 U.S.C. § 3006A, well below prevailing civil rights rates.10Office of the Law Revision Counsel. 42 USC 1997e – Suits by Prisoners
Pro Se Litigants Cannot Recover
In Kay v. Ehrler (1991), the Supreme Court held that a pro se litigant cannot recover attorney’s fees under § 1988, even if the litigant is a licensed attorney. The statute is designed to encourage victims of civil rights violations to retain independent counsel, and awarding fees for self-representation would work against that purpose.11Justia U.S. Supreme Court Center. Kay v. Ehrler, 499 U.S. 432 (1991)
When a Winning Defendant Can Get Fees From You
Section 1988 says “the prevailing party” may recover fees, which technically includes defendants. The standard is deliberately lopsided. Under Christiansburg Garment Co. v. EEOC (1978), a prevailing defendant may recover fees only when the plaintiff’s action was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” A case that simply fell short on the evidence does not expose the plaintiff to a fee award.12Legal Information Institute. Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978)
Expert Witness Fees
Section 1988(c) allows expert witness fees to be included in a fee award, but only for actions brought under § 1981 or § 1981a. For cases under the other covered statutes, expert costs are not recoverable through § 1988(c), though other cost rules may reach them.1Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights
Filing the Fee Motion
The fee application is a separate motion under Federal Rule of Civil Procedure 54(d)(2). Unless a statute or court order provides otherwise, the motion must be filed no later than 14 days after entry of judgment. Missing that deadline can permanently forfeit the right to recover.13Office of the Law Revision Counsel. 28 USC App, Federal Rules of Civil Procedure – Rule 54. Judgment; Costs
The motion must specify the judgment it relates to, identify the statute entitling the movant to fees, and state the amount sought or a fair estimate. If the court directs, it must also disclose the terms of any fee agreement. The opposing party can then challenge hours and rates, and the judge may hold an evidentiary hearing if the billing records are disputed.
What to Include in the Application
Courts expect contemporaneous, itemized billing records. Each entry should identify who did the work, describe the specific task, and record exact time. Vague entries like “research” or “phone call” invite reductions. Judges routinely cut hours for entries too thin to evaluate.
Support the requested rate with declarations from local attorneys familiar with market rates for comparable civil rights work, and submit credentials for lead counsel showing experience and specialization. Separate time spent on successful claims from time on unrelated unsuccessful ones. Itemize out-of-pocket litigation expenses, including filing fees and deposition costs, for reimbursement.