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Published by: Charlton Butler on Aug 27, 2011
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“In order to qualify as a prevailing party, a plaintiff must have succeeded on
the merits of at least some of its claims.” Parks Sch. of Bus., Inc. v. Symington, 51
F.3d 1480, 1489 (9th Cir. 1995); see also Sole v. Wyner, 127 S. Ct. 2188, 2194
(2007); Hewitt v. Helms, 482 U.S. 755, 759-60 (1987); Cummings v. Connell, 402
F.3d 936, 946 (9th Cir. 2005). “In short, a plaintiff ‘prevails’ when actual relief on


the merits of [the plaintiff’s] claim materially alters the legal relationship between
the parties by modifying the defendant’s behavior in a way that directly benefits
the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); see also Sole, 127 S.
Ct. at 2194; Tex. Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-
92 (1989); Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803,
806 (9th Cir.), amended by 410 F.3d 531 (9th Cir. 2005) (order); Friend v.
, 72 F.3d 1386, 1389 (9th Cir. 1995) (order). “Success is [also]
measured . . . in terms of the significance of the legal issue on which the plaintiff
prevailed and the public purpose the litigation served.” Morales v. City of San
, 96 F.3d 359, 365 (9th Cir. 1996), amended by 108 F.3d 981 (9th Cir. 1997)
(order); see also Hashimoto v. Dalton, 118 F.3d 671, 678 (9th Cir. 1997).

This change of status must be “legally sanctioned” in the form of a judgment
or consent decree; voluntary changes in behavior are insufficient. See Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res.
, 532 U.S. 598,
604-05 (2001); see also Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th
Cir. 2002) (explaining that a “preliminary injunction issued by a judge carries all
the ‘judicial imprimatur’ necessary to satisfy Buckhannon.”); Labotest, Inc. v.
, 297 F.3d 892, 895 (9th Cir. 2002) (holding that “a plaintiff who obtains a
court order incorporating an agreement that includes relief the plaintiff sought in
the lawsuit is a prevailing party entitled to attorney’s fees under 42 U.S.C.
§ 1988.”).

A plaintiff who wins only nominal damages may be a prevailing party under
§ 1988. See Farrar, 506 U.S. at 112; Benton v. Or. Student Assistance Comm’n,
421 F.3d 901, 904 (9th Cir. 2005); Cummings, 402 F.3d at 946; Friend, 72 F.3d at
1390; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 1994). If the plaintiff
sought compensatory damages, and only received nominal damages, however, an
attorney’s fee award may be inappropriate. See Farrar, 506 U.S. at 115; Benton,
421 F.3d at 904-06; Cummings, 402 F.3d at 946-47; Romberg v. Nichols, 48 F.3d
453, 455 (9th Cir. 1994); Wilcox, 42 F.3d at 554-55.

Where the plaintiff sought primarily injunctive relief, the lack of a monetary
judgment does not mean that the plaintiff is not a prevailing party. See Friend,
72 F.3d at 1390; see also Gerling Global Reinsurance Corp., 400 F.3d at 806
(holding that plaintiffs were prevailing parties because they obtained “all of the
relief they sought in their lawsuit – a permanent injunction”); Watson, 300 F.3d at


1095-96 (explaining that a plaintiff who obtains a preliminary injunction but fails
to prevail on his or her other claims is a prevailing party for purposes of § 1988
because relief in the form of a permanent injunction had become moot). However,
a plaintiff is not a prevailing party if the “achievement of a preliminary injunction
. . . is reversed, dissolved, or otherwise undone by the final decision in the same
case.” Sole, 127 S. Ct. at 2195.

Where a declaratory judgment affects the behavior of the defendant towards
the plaintiff, it is sufficient to serve as the basis for an award of fees. See Rhodes v.
, 488 U.S. 1, 4 (1988) (per curiam). “[A] favorable judicial statement of
law in the course of litigation,” however, is insufficient “to render [the plaintiff] a
‘prevailing party.’” Hewitt v. Helms, 482 U.S. 755, 763 (1987); see also Farrar,
506 U.S. at 110.

Where the plaintiff is successful on only some claims, the court must
determine whether the successful and unsuccessful claims were related. See Tutor-
Saliba Corp. v. City of Hailey
, 452 F.3d 1055, 1063 (9th Cir. 2006); Dang v.
, 422 F.3d 800, 812-13 (9th Cir. 2005); O’Neal v. City of Seattle, 66 F.3d
1064, 1068 (9th Cir. 1995). If the claims are unrelated, then the fee award should
not include time spent on unsuccessful claims; if the claims are related, “then the
court must . . . [determine] the ‘significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended.’” O’Neal, 66 F.3d at 1068-
69 (citations omitted); see also Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir.
2003). “Claims are related where they involve ‘a common core of facts’ or are
‘based on related legal theories.’ ‘[T]he test is whether relief sought on the
unsuccessful claim is intended to remedy a course of conduct entirely distinct and
separate from the course of conduct that gave rise to the injury upon which the
relief granted is premised.’” O’Neal, 66 F.3d at 1069 (quoting Odima v. Westin
Tucson Hotel
, 53 F.3d 1484, 1499 (9th Cir. 1995)); see also Thomas v. City of
, 410 F.3d 644, 649 (9th Cir. 2005); Webb, 330 F.3d at 1168-69.

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