A constitutional violation is often worth less in dollars than it costs to prove. A person held for two days on a bad arrest, or handcuffed too hard, or denied a hearing they were owed, may have a real claim and modest damages. Litigating it against a public entity with insurance counsel can consume hundreds of hours. On ordinary economics, no lawyer takes that case and no one ever answers for the violation.
Congress addressed that in 1976 with the Civil Rights Attorney’s Fees Awards Act, now 42 U.S.C. § 1988(b). It is why these cases get brought at all. It is also, in several specific and avoidable ways, where they come apart.
What the statute says
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 in that sentence do nearly all the work. Discretion. Prevailing party. Reasonable.
Note also what it is not. It is not a one-way street on its face — a “prevailing party” can in principle be a defendant, though as discussed below the standard for that is very different. And it is not 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.
A judgment or a consent decree, not a change of heart. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), the Court rejected the “catalyst theory” — the idea that a plaintiff prevails when the lawsuit causes the defendant to voluntarily do what the plaintiff wanted. The problem, 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.
A precision point, because it matters and is often stated loosely: Buckhannon’s holding was rendered under the fee provisions of the Fair Housing Amendments Act and the ADA, not § 1988. Id. at 610. But the Court noted that “[w]e have interpreted these fee-shifting provisions consistently,” id. at 603 n.4, and its analysis rests on § 1988 precedent throughout. Courts apply it to § 1988.
The Eighth Circuit applied Buckhannon to a § 1988 claim in Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990 (8th Cir. 2003), and the result should give any plaintiff’s lawyer pause. 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 did not incorporate 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. A fee award of over $300,000 was reversed.
The lesson is procedural and unforgiving: how a settlement is papered determines whether fees are recoverable.
Nominal damages count — and may still be worth 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. But the Court affirmed the denial of any fee, 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. The plaintiffs there had sought $17 million and recovered one 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. That case is also a useful illustration of how these doctrines interlock: the officers there received qualified immunity, which is why there were no damages in the first place.
How the fee is calculated
Hensley supplies the method still used: “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 are paid what the market pays.
Enhancements above the lodestar are possible but disfavored. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), reaffirmed that enhancement is permitted “in extraordinary circumstances,” while holding that “there is a strong presumption that the lodestar is sufficient” and that factors already reflected in the lodestar cannot justify going above it. Id. at 546.
The single biggest downward pressure is results. Hensley: “the most critical factor is the degree of success obtained.” 461 U.S. at 436. And the Court warned that “[a] request for attorney’s fees should not result in a second major litigation.” Id. at 437.
Fees do not have to be proportionate to damages
This is the most important thing a client with a modest claim should know, and it is easy to get wrong in both directions.
In City of Riverside v. Rivera, 477 U.S. 561 (1986), the defendants argued that a fee award should be scaled to the damages recovered, on a contingency-fee 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 reason 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 and Farrar together and the actual rule appears. Proportionality is not a formula, but degree of success is the most critical factor in reasonableness. A modest but real recovery can support a substantial fee. A technical win that proves the plaintiff failed on what they actually sought may support none.
Four traps
Rule 68. 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. So a plaintiff who turns down an offer of judgment and then obtains a judgment no more favorable than the offer forfeits post-offer fees. In a fee-driven case that can be decisive, and Rule 68(a) permits the offer to be served at any time up to 14 days before trial — including before the plaintiff has the discovery needed to value the case.
Fee waivers in settlement. Evans v. Jeff D., 475 U.S. 717 (1986), upheld a consent decree that gave the plaintiff class the relief it sought 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. Defendants may therefore condition a good settlement on a fee waiver, putting counsel’s interest against the client’s.
Prevailing defendants. Fee-shifting is nominally symmetric and practically is not. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), allows 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), limited 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 — but the exposure is not zero, and a client should be told that.
Prisoner cases. If the plaintiff is confined 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 portion of any monetary judgment, “not to exceed 25 percent,” is applied to the fee award. § 1997e(d)(2). The effect is that a prisoner’s claim has to clear an economic hurdle no other § 1983 plaintiff faces, on top of every substantive obstacle in this series.
Why this matters in Minnesota
Section 1988 is federal and applies the same way in the District of Minnesota as anywhere else. Two Minnesota-specific points are worth adding.
First, fee shifting is not unique to federal civil rights law. Minnesota has its own fee-shifting provisions scattered across the code, including the private attorney general statute, and they do not all work like § 1988. Those are mapped in our survey of Minnesota fee-shifting statutes and treated in detail in the piece on Minn. Stat. § 8.31. A claim that has both a federal and a state theory may have two different fee routes with different requirements, and choosing between them is a real decision.
Second, § 1988(b) reaches actions to enforce § 1983 — which means the fee question depends on getting past 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. A case that fails those gates never reaches the fee statute.
The honest summary
Section 1988 is what makes it economically possible to litigate a small constitutional claim. It is not a promise. The fee is discretionary, it depends on prevailing in a way a court has sanctioned, it is measured against the degree of success, it can be lost to a Rule 68 offer, and it can be bargained away in the settlement that resolves the case. Anyone deciding whether to bring a claim should understand that the fee question is not an afterthought handled at the end. It shapes the case from the first pleading and the first settlement conversation.
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 often what makes a meritorious civil rights claim possible to bring 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.