ALR: Right of Plaintiffs Winning Preliminary Injunction to Attorney’s Fees Under 42 U.S.C.A. § 1988(b)

March 20, 2014

CourtroomIn 42 U.S.C.A. § 1988(b), Congress created an exception to the “American Rule” that each party ordinarily must pay its own attorney’s fees. Section 1988(b) provides that in civil rights actions brought under 42 U.S.C.A. § 1983, “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.” The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner that Congress sought to promote in the fee statute.

A material alteration in the parties’ legal relationship occurs when the plaintiff has succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit. This standard requires that a plaintiff receive at least some relief on the merits of his or her claim before the plaintiff can be said to prevail.

The court in Kansas Judicial Watch v. Stout, 653 F.3d 1230, 81 A.L.R. Fed. 2d 573 (10th Cir. 2011), cert. denied, 132 S. Ct. 1715, 182 L. Ed. 2d 253 (2012), held that a political action committee and candidates for elective offices of a Kansas district court judge who challenged the constitutionality of the provisions of Kansas Code of Judicial Conduct limiting campaign activity by judicial candidates were “prevailing parties” entitled to attorney’s fees in a § 1983 action, where they secured a preliminary injunction that afforded some of the relief sought in the complaint.

This annotation collects and discusses all of the cases which addressed the right of plaintiffs that have obtained a preliminary injunction to attorney’s fees under 42 U.S.C.A. § 1988.

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