The Civil Rights Attorney’s Fees Award Act of 1976, 42 USC §1988(b), authorizes courts to award reasonable attorney’s fees to “the prevailing party” in actions brought under, inter alia, 42 USC §1983. Prevailing §1983 plaintiffs are presumptively entitled to fees, almost as a matter of course.1 The Supreme Court recognizes that §1988 fees are an “integrate part”2 of “the arsenal of remedies available to combat violations of civil rights….”3 In fact, in some cases §1988 fee awards have been greater than plaintiff’s merits relief.4 “Because damages awards do not reflect fully the public benefits enhanced by civil rights litigation, Congress did not intend for fees in civil rights cases…to depend on obtaining substantial monetary relief.”5
The Supreme Court has instructed the lower federal courts that a §1988 fee application “should not result in a second major litigation.”6 Nevertheless, §1988 fee applications frequently do result in exactly that, “a second major litigation.” This is not surprising because the stakes can be high and fee applications can generate difficult, intricate issues.
Prevailing Party
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