Cite as: 506 U. S. 103 (1992)
O'Connor, J., concurring
p. 6 (1976) ("This bill creates no startling new remedy—it only meets the technical requirements that the Supreme Court has laid down if the Federal courts are to continue the practice of awarding attorneys' fees which had been going on for years prior to the Court's [Alyeska] decision"). That practice included the denial of fees to plaintiffs who, although technically prevailing parties, had achieved only de minimis success. See, e. g., Tatum v. Morton, 386 F. Supp. 1308, 1317-1319 (DC 1974) (fees denied where plaintiffs recovered $100 each); see also Mills v. Electric Auto-Lite Co., 396 U. S. 375, 392, 396 (1970) (under judge-made fee-shifting rule for shareholder actions that benefit the corporation, no fees are available if the only benefit achieved is merely " 'technical in its consequence' " (quoting Bosch v. Meeker Cooperative Light & Power Assn., 257 Minn. 362, 366, 367, 101 N. W. 2d 423, 426, 427 (1960))); cf. Ruckelshaus v. Sierra Club, 463 U. S. 680, 688, n. 9 (1983) ("[W]e do not mean to suggest that trivial success on the merits, or purely procedural victories, would justify an award of fees under statutes setting out the 'when appropriate' standard"). And although Congress did not intend to restore every detail of pre-Alyeska practice, see West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 97-98 (1991), the practice of denying fees to Pyrrhic victors is one it clearly intended to preserve. Section 1988 expressly grants district courts discretion to withhold attorney's fees from prevailing parties in appropriate circumstances: It states that a court "may" award fees "in its discretion." 42 U. S. C. § 1988. As under pre-Alyeska practice, the occurrence of a purely technical or de minimis victory is such a circumstance. Chimerical accomplishments are simply not the kind of legal change that Congress sought to promote in the fee statute.
Indeed, § 1988 contemplates the denial of fees to de mini-mis victors through yet another mechanism. The statute only authorizes courts to award fees "as part of the costs." 42 U. S. C. § 1988. As a result, when a court denies costs, it
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