A constitutional violation is routinely worth less in dollars than it costs to prove. A man held two days on a bad arrest, or cuffed hard enough to tear a rotator cuff, or denied a hearing he was owed, can have a genuine claim and modest damages. Litigating it against a public entity with insurance counsel on the other side eats hundreds of hours. On ordinary economics no lawyer takes that case, and nobody ever answers for the violation.
Congress fixed that in 1976 with the Civil Rights Attorney’s Fees Awards Act, now 42 U.S.C. § 1988(b). It is the reason these cases get filed. It is also, in several specific and entirely avoidable ways, where they fall apart.
The statute in one sentence
The operative language is short:
“In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 . . . the Religious Freedom Restoration Act of 1993 . . . the Religious Land Use and Institutionalized Persons Act of 2000 . . . title VI of the Civil Rights Act of 1964 . . . or section 12361 of title 34, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs . . . .”
Three words do nearly all the work. Discretion. Prevailing party. Reasonable.
Note what the sentence is not. On its face it is not a one-way street — a “prevailing party” can be a defendant, though the standard for that is a different animal, and I take it up below. And nothing here is automatic. The statute says “may.”
Who is a “prevailing party”
The generous formulation comes from Hensley v. Eckerhart, 461 U.S. 424 (1983): plaintiffs prevail “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Id. at 433. The Court called that “a generous formulation that brings the plaintiff only across the statutory threshold.” Id.
Then come the limits, and they are where the money goes.
You need a judgment or a consent decree, not a change of heart. Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), killed the “catalyst theory” — the notion that a plaintiff prevails when the lawsuit shames the defendant into voluntarily doing what the plaintiff wanted. The trouble, the Court said, is that the catalyst theory “allows an award where there is no judicially sanctioned change in the legal relationship of the parties,” and a defendant’s voluntary change “lacks the necessary judicial imprimatur on the change.” Id. at 605.
One precision point, because this gets stated loosely everywhere: Buckhannon’s holding was rendered under the fee provisions of the Fair Housing Amendments Act and the ADA, not § 1988. Id. at 610. The Court noted, though, that “[w]e have interpreted these fee-shifting provisions consistently,” id. at 603 n.4, and its analysis leans on § 1988 precedent from end to end. Courts apply it to § 1988, and so should you.
The Eighth Circuit ran Buckhannon at a § 1988 claim in Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990 (8th Cir. 2003), and the result ought to make any plaintiff’s lawyer read her own settlement papers twice. The parties settled. The district court held a Rule 23(e) fairness hearing, approved the settlement as “fair, reasonable, and adequate,” dismissed the case, and retained jurisdiction to enforce the agreement — but never incorporated its terms. The Eighth Circuit held that “[t]his review fails to impose the necessary ‘imprimatur’ on the agreement,” id. at 992, and that “the district court’s approval of the settlement agreement does not, by itself, create a consent decree, and the inmate class did not become a prevailing party under Buckhannon by this action of the trial court,” id. at 993. Over $300,000 in fees, reversed.
How a settlement is papered decides whether the fees survive it. That is not a drafting nicety. That is the case.
Nominal damages count, and may still buy nothing. Farrar v. Hobby, 506 U.S. 103 (1992), held “that a plaintiff who wins nominal damages is a prevailing party under § 1988.” Id. at 112. The Court then affirmed the denial of any fee at all, because when a plaintiff “recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, . . . the only reasonable fee is usually no fee at all.” Id. at 115. Those plaintiffs asked for $17 million and walked out with a dollar.
An injunction usually counts. Lefemine v. Wideman, 568 U.S. 1 (2012) (per curiam), reversed a holding that a plaintiff who won a permanent injunction but no damages was not a prevailing party. Id. at 4. It also shows how these doctrines interlock: the officers there had qualified immunity, which is exactly why there were no damages to win.
The lodestar, and why the fee need not track the damages
Hensley supplies the method courts still use: “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” 461 U.S. at 433. That product is the lodestar.
Rates are market rates, not cost. Blum v. Stenson, 465 U.S. 886 (1984), held that “reasonable fees” under § 1988 “are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Id. at 895. Legal aid and nonprofit counsel get paid what the market pays.
Enhancements above the lodestar exist and are disfavored. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), allowed enhancement “in extraordinary circumstances,” while holding that “there is a strong presumption that the lodestar is sufficient” and that factors already baked into the lodestar cannot justify climbing above it. Id. at 546.
The heaviest downward pressure is results. Hensley: “the most critical factor is the degree of success obtained.” 461 U.S. at 436. The Court also warned that “[a] request for attorney’s fees should not result in a second major litigation.” Id. at 437.
Now the point every client with a small claim needs, and the one that gets misstated in both directions. In City of Riverside v. Rivera, 477 U.S. 561 (1986), the defendants wanted the fee scaled to the damages, on a contingency model. The Court refused: “We reject the proposition that fee awards under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers.” Id. at 574. The reasoning was practical: “A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts.” Id. at 578.
Read Rivera against Farrar and the working rule shows itself. Proportionality is not a formula, but degree of success is still the most critical factor in reasonableness. A modest, real recovery can carry a substantial fee. A technical win that proves my client failed at what he actually came for can carry none.
Rule 68 is the trap I watch hardest
Federal Rule of Civil Procedure 68(d) provides: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Marek v. Chesny, 473 U.S. 1 (1985), held that because § 1988 makes attorney’s fees part of the “costs,” “such fees are subject to the cost-shifting provision of Rule 68.” Id. at 9.
Turn down an offer of judgment, take a judgment no better than the offer, and every post-offer hour is gone. In a fee-driven case that is the whole ballgame. Worse, Rule 68(a) lets the offer land at any time up to 14 days before trial — which in practice means it lands early, before the plaintiff has taken the depositions that would tell anyone what the case is worth. Defense counsel know precisely what they are doing when they serve one in month two.
Three more ways the fee disappears
Fee waivers written into the settlement. Evans v. Jeff D., 475 U.S. 717 (1986), upheld a consent decree handing the plaintiff class everything it asked for while requiring counsel to waive fees. The Court held “that the District Court has the power, in its sound discretion, to refuse to award fees.” Id. at 720. So a defendant may condition a good settlement on a fee waiver, which sets the lawyer’s interest against the client’s at the worst possible moment. Talk to the client about that before the mediation, not during it.
Prevailing defendants. Fee-shifting is symmetric on paper and lopsided in practice. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), gives a prevailing defendant 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. Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam), carried that standard into § 1983: “we can perceive no reason for applying a less stringent standard.” Id. at 14. And Fox v. Vice, 563 U.S. 826 (2011), confined such awards to “costs that the defendant would not have incurred but for the frivolous claims.” Id. at 829. Losing is not the same as being frivolous. The exposure is not zero either, and a client deserves to hear that in the first meeting.
Prisoner cases. If the plaintiff sits in a jail or prison, the Prison Litigation Reform Act rewrites the arithmetic. Under 42 U.S.C. § 1997e(d)(1), fees “shall not be awarded, except to the extent that” “the fee was directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title” and either “the amount of the fee is proportionately related to the court ordered relief for the violation” or “the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.” No award “shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of title 18 for payment of court-appointed counsel.” § 1997e(d)(3). A slice of any monetary judgment, “not to exceed 25 percent,” goes to the fee award. § 1997e(d)(2). A prisoner’s claim thus has to clear an economic hurdle no other § 1983 plaintiff faces, stacked on top of every substantive obstacle in this series.
Two Minnesota notes
Section 1988 is federal and works the same in the District of Minnesota as anywhere else. Two local points still belong in the analysis.
Fee shifting is not a federal monopoly. Minnesota scatters its own fee-shifting provisions across the code, the private attorney general statute among them, and they do not all behave like § 1988. I have mapped them in our survey of Minnesota fee-shifting statutes and worked one through in detail in the piece on Minn. Stat. § 8.31. A claim carrying both a federal and a state theory may carry two fee routes with different requirements, and picking between them is a real strategic choice, not a footnote.
Second, § 1988(b) reaches actions to enforce § 1983, so the fee question rides on the threshold questions that decide whether a § 1983 claim exists at all: who can be sued, whether the officer has qualified immunity, and whether a municipality’s own policy or custom caused the harm. Fail those gates and the fee statute never comes into view.
The fee question starts at the first pleading
Section 1988 is what makes a small constitutional claim economically possible to litigate. It is not a promise. The fee is discretionary. It requires prevailing in a way a court has actually sanctioned. It gets measured against the degree of success. It can be wiped out by a Rule 68 offer served before discovery, and it can be traded away in the settlement that ends the case.
So treat it as a live issue from the first draft of the complaint and the first settlement conversation, not as a form motion filed after the verdict. By the time the fee petition goes in, the answer has usually already been decided by choices made months earlier.
Madgett Law, LLC litigates civil rights and police misconduct claims in Minnesota state and federal court, including matters in which a statute shifts attorney’s fees to the losing party. Fee shifting is frequently the only reason a meritorious civil rights claim can be brought at all. Send us a message or call 612-470-6529.
Sources: 42 U.S.C. § 1988(b) and 42 U.S.C. § 1997e(d), full current text retrieved from the Office of the Law Revision Counsel, uscode.house.gov (each page states “Text contains those laws in effect on August 1, 2026”). The § 1988(b) block quotation begins at the subsection’s first word (“In”) and ends at “as part of the costs”; the internal ellipses mark omitted bracketed U.S. Code parallel citations for the named statutes, and the closing ellipsis marks the omitted judicial-officer proviso. The § 1997e(d) quotations are from paragraphs (1), (2), and (3) as identified in text. Case authorities: Hensley v. Eckerhart, 461 U.S. 424, 433, 436, 437 (1983) (prevailing-party formulation and “generous formulation”; lodestar; “the most critical factor is the degree of success obtained”; “should not result in a second major litigation”). Blum v. Stenson, 465 U.S. 886, 895 (1984) (prevailing market rates regardless of private or nonprofit counsel). Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546 (2010) (“extraordinary circumstances”; “strong presumption that the lodestar is sufficient”). Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 603 n.4, 605, 610 (2001) — the holding at 610 is expressly rendered “under the FHAA, 42 U.S.C. § 3613(c)(2), and ADA, 42 U.S.C. § 12205,” which is why the article says so rather than describing it as a § 1988 holding; footnote 4 (“We have interpreted these fee-shifting provisions consistently”) is cited to 603 following the Buckhannon dissent’s own reference to “ante, at 603, n. 4.” Farrar v. Hobby, 506 U.S. 103, 112, 115 (1992) (nominal damages confer prevailing-party status; “the only reasonable fee is usually no fee at all”). Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per curiam) (injunction conferred prevailing-party status; the officers had received qualified immunity, at 3). City of Riverside v. Rivera, 477 U.S. 561, 574, 578 (1986) (rejecting mandatory proportionality; the “rule of proportionality” passage). Fed. R. Civ. P. 68(a) and 68(d), quoted from the current rule text at law.cornell.edu/rules/frcp/rule_68 (rule as amended through Mar. 26, 2009, eff. Dec. 1, 2009); Marek v. Chesny, 473 U.S. 1, 9 (1985) (§ 1988 fees are Rule 68 “costs” — note that Marek quotes the pre-2007 restyled text of the Rule, so the current text is quoted here from the Rule itself rather than from the opinion). Evans v. Jeff D. ex rel. Johnson, 475 U.S. 717, 720 (1986) (discretion to refuse fees where the settlement waives them). Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (prevailing-defendant standard, stated there for Title VII). Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (carrying that standard to § 1983: “we can perceive no reason for applying a less stringent standard”). Fox v. Vice, 563 U.S. 826, 829 (2011) (“but for the frivolous claims”). Eighth Circuit: Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 992, 993 (8th Cir. 2003) (Rule 23(e) approval of a settlement, without incorporation of its terms, is not a consent decree and does not confer prevailing-party status under Buckhannon; fee and expense award reversed). Supreme Court opinions were read from the Caselaw Access Project archive of the United States Reports (static.case.law); the Eighth Circuit opinion from the same archive’s Federal Reporter, Third Series. Reporter volume and page come from the archive’s structured citation metadata; every pin cite above was located in star-paginated text. This article is general legal information about federal law, not legal advice; reading it does not create an attorney–client relationship, and no fee award or outcome is promised or implied. Whether fees are recoverable in any particular case depends on the statute invoked, the relief obtained, and how the case is resolved.