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310 Nebraska Reports

ABBOTT v. CITY OF BELLEVUE

Cite as 310 Neb. 496

Christopher Abbott et al., appellants, v. 

City of Bellevue, Nebraska, appellee.

___ N.W.2d ___

Filed December 3, 2021. No. S-20-700.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. Attorney Fees. Generally, a party may recover attorney fees and 

expenses in a civil action only if provided for by statute or if a recognized and accepted uniform course of procedure allows the recovery of 

attorney fees.

4. Civil Rights: Actions. A civil remedy is provided under 42 U.S.C. 

§ 1983 (2012) for deprivations of federally protected rights, statutory or 

constitutional, caused by persons acting under color of state law.

5. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision 

awarding or denying attorney fees will be upheld absent an abuse of 

discretion.

6. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

7. Federal Acts: Attorney Fees. A plaintiff is a prevailing party under 42 

U.S.C. § 1988 (2012) if the plaintiff obtains actual relief on the merits 

of his or her claim that alters the legal relationship between the parties 

by modifying the defendant’s behavior in a way that directly benefits 

the plaintiff.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/17/2021 08:08 AM CST
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ABBOTT v. CITY OF BELLEVUE

Cite as 310 Neb. 496

Appeal from the District Court for Sarpy County: Michael 

A. Smith, Judge. Affirmed in part as modified, and in part 

reversed and remanded for further proceedings.

Thomas P. McCarty and Gary L. Young, of Keating, O’Hara, 

Nedved & Peter, P.C., L.L.O., for appellants.

A. Bree Robbins, Bellevue City Attorney, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

After the City of Bellevue, Nebraska (City), increased the 

amount it regularly deducted from its police officers’ paychecks to fund their retirement plan, a group of officers and 

their union filed suit alleging that this action violated their 

rights under the U.S. and Nebraska Constitutions. With respect 

to some officers, the district court found that the City unconstitutionally impaired its contractual obligations. As a remedy, the 

district court ordered the City to insert certain language into 

the document governing the retirement plan. Those officers and 

their union appeal. They contend that the language the district 

court ordered the City to insert into the retirement plan will 

actually reduce their retirement benefits. They also argue that 

the district court erred by finding that they were not “prevailing part[ies]” for purposes of 42 U.S.C. § 1988 (2012) and thus 

not entitled to attorney fees and costs. We find these arguments 

have merit. We affirm in part as modified, and in part reverse 

and remand for further proceedings.

BACKGROUND

Earlier Dispute Over Retirement Benefits.

This is not the first time the City has found itself in litigation 

with its police officers over retirement benefits. The current 

dispute arises out of an attempt to resolve prior litigation, and 

thus, we begin our review of the relevant background there.
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ABBOTT v. CITY OF BELLEVUE

Cite as 310 Neb. 496

In 2009, the Bellevue Police Officers Association/Fraternal 

Order of Police Lodge No. 59 (BPOA) filed a lawsuit against 

the City in the Sarpy County District Court. The BPOA sought 

a declaration that a provision of a collective bargaining agreement between the BPOA and the City regarding retirement 

benefits was valid and enforceable.

In the provision at issue, the City agreed to provide its police 

officers retirement benefits that exceeded those described in 

the Police Officers Retirement Act (Retirement Act). See Neb. 

Rev. Stat. § 16-1001 et seq. (Reissue 2012 & Cum. Supp. 

2020). Then, as now, the Retirement Act required the establishment of a pension plan for police officers of cities of the 

first class such as the City. See § 16-1001. Both the officers 

and the City were required to make contributions to the pension plan described in the Retirement Act. See §§ 16-1005(1) 

and 16-1006. At the time it was enacted, the Retirement Act 

required officers to contribute 6 percent of their salary to a 

retirement account and the City to make a matching contribution. § 16-1005(1) (Reissue 1983). See 1983 Neb. Laws L.B. 

237, § 5. Upon retirement, the officer would receive the accumulated value of that account. §§ 16-1002(5), 16-1007(1), and 

16-1013(1) (Reissue 1983). See 1983 Neb. Laws L.B. 237, 

§§ 2, 7, and 13.

In the 2009 litigation, the City took the position that the portion of the collective bargaining agreement in which it agreed 

to provide officers retirement benefits exceeding those provided for in the Retirement Act was unenforceable. The City 

contended that the Retirement Act did not allow it to provide 

benefits other than those set forth in the Retirement Act.

The district court granted a motion for summary judgment 

filed by the BPOA. In its order, it found that the Retirement 

Act “simply sets forth the minimum benefits that a City of the 

First Class must provide to its police force. It does not prevent 

a city from offering additional benefits to officers.”

The BPOA and the City then entered into a settlement 

agreement covering certain officers. Under the settlement 
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Cite as 310 Neb. 496

agreement, covered officers would contribute 6 percent of their 

salary to their retirement account and the City would make a 

matching contribution. To any covered officer who retired after 

reaching 55 years of age and providing at least 25 years of 

service, the City agreed to pay either (1) the total sum of the 

officer’s retirement account or (2) a payment based upon a percentage of the officer’s compensation in his or her last 5 years 

preceding retirement, whichever is greater. In this opinion, 

we will refer to the first type of benefit mentioned above as a 

“defined contribution payment” and the second as a “defined 

benefit payment.”

In the case of every officer who has retired since the settlement agreement became effective, the value of the defined 

benefit payment has exceeded the value of the defined contribution payment. It has been the City’s practice to provide the 

defined benefit payment to retiring officers by distributing the 

officer’s retirement account to the officer and then making an 

additional payment equal to the difference between the value 

of the retirement account and the value of the defined benefit payment.

Amendments to Retirement Act 

and City’s Response.

After the parties entered into the settlement agreement, the 

Retirement Act was amended. The amendments increased the 

required contribution by both officers and cities from 6 percent 

to 61⁄2 percent effective October 1, 2013, and to 7 percent effective October 1, 2015. See § 16-1005(1) (Reissue 2012).

In response to the amendments to the Retirement Act, the 

Bellevue City Council adopted amendments to the City’s Police 

Retirement Plan and Trust (Retirement Plan). The amendments 

increased the contribution rates for both the officers and the 

City, so that they were the same as those set forth in the 

amendments to the Retirement Act. After the approval of the 

amendments to the Retirement Plan, the City increased deductions from officers’ paychecks and its corresponding matching 
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payments as provided in the amendments to the Retirement 

Plan.

After the City amended the Retirement Plan, when officers 

covered by the settlement agreement retired, the City continued 

its practice of paying the defined benefit payment by distributing the officer’s retirement account and then making an additional payment equal to the difference between the value of the 

retirement account and the defined benefit payment.

Current Lawsuit.

In 2017, the BPOA and a number of its officers filed a 

lawsuit against the City under 42 U.S.C. § 1983 (2012) and 

Nebraska’s Uniform Declaratory Judgments Act, Neb. Rev. 

Stat. § 25-21,149 et seq. (Reissue 2016). The lawsuit alleged 

that the City had violated the Contracts Clauses and Takings 

Clauses of the U.S. and Nebraska Constitutions by increasing 

the officers’ contribution rates without providing any corresponding benefit. In their operative complaint, the BPOA and 

its officers sought an order enjoining the City from continuing to make deductions from the officers’ salaries in excess of 

6 percent; an order directing the City to disgorge funds it had 

previously deducted from the officers’ salaries in excess of 

6 percent, along with any investment income earned on those 

funds; and declarations that the City had violated the Contracts 

and Takings Clauses of the U.S. and Nebraska Constitutions. 

The operative complaint also asserted that the BPOA and its 

officers were entitled to be awarded all damages arising out 

of the City’s actions and an award of costs and attorney fees 

pursuant to § 1988.

District Court’s Orders.

The parties eventually filed cross-motions for summary 

judgment. After a hearing, the district court issued an order 

in April 2020 in which it found that the motion of the BPOA 

and the officers should be granted in part. In its order, the district court, relying on prior cases from this court, stated that 

public employee retirement plans are contracts protected from 
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Cite as 310 Neb. 496

impairment by the Contracts Clauses of the U.S. and Nebraska 

Constitutions. See, Calabro v. City of Omaha, 247 Neb. 955, 

531 N.W.2d 541 (1995); Halpin v. Nebraska State Patrolmen’s 

Retirement System, 211 Neb. 892, 320 N.W.2d 910 (1982). 

The district court concluded that the officers’ rights under the 

settlement agreement were impaired by the City’s increased 

deductions from the officers’ salaries. The district court reasoned that after the increase in the officers’ contributions, the 

defined benefit payment the officers bargained for in the settlement agreement would have the same value, but would come at 

a higher cost to the officers.

Although the district court’s April 2020 order determined 

that the BPOA and its officers were entitled to some relief, 

it withheld entry of judgment. Rather than entering specific 

relief, the district court requested that counsel for the parties 

provide suggestions as to the relief they believed was appropriate in light of the district court’s findings.

In June 2020, after the parties submitted proposals as to 

appropriate relief, the district court issued another order. This 

order granted in part and denied in part the parties’ respective motions for summary judgment. It found in favor of the 

BPOA and the officers based on their Contracts Clause claim 

and ordered certain language inserted into the Retirement Plan. 

Without expressly ruling on the Takings Clause claim or the 

request for attorney fees, the district court ordered all remaining claims denied and dismissed.

The BPOA and the officers filed a timely motion to alter 

or amend in response to the district court’s June 2020 order. 

Relevant to this appeal, they contended that the language the 

district court ordered the City to insert into the Retirement Plan 

contained conflicting descriptions of the City’s obligations 

in the event a current officer elected to receive the defined 

benefit payment upon retirement and also improperly reduced 

the amount a current officer would receive if he or she elected 

to receive the defined contribution payment. The BPOA and 

its officers also asked that the district court make “express 
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Cite as 310 Neb. 496

findings” regarding their “claims under 42 U.S.C. § 1983” and 

award them attorney fees and costs under § 1988.

In response to the motion to alter or amend, the district court 

issued an order in September 2020 that was substantially similar to its June 2020 order in nearly all relevant respects. The 

district court found that certain officers who had already retired 

were not entitled to relief. These officers have not appealed 

the district court’s denial of relief, and so we do not discuss 

them further.

As for the officers who had not yet retired (current officers), the district court, echoing the conclusions expressed in 

its previous orders, found that the increased deductions from 

the officers’ salaries impaired their rights under the Contracts 

Clauses. In the course of discussing the way in which the current officers were harmed by the increased contributions, the 

district court stated:

[I]f the employee were to choose the defined benefit 

option, the employee is damaged by having paid the 

higher contributions required under the Retirement Act 

amendments. The employee’s damages in that instance 

would be the sum of the higher employee contribution 

and the associated earnings on those contributions. The 

employee would be entitled to collect the applicable 

percentage of pay on retirement (the defined benefit). As 

contemplated by the agreement, the employee retirement 

account, less the damages as described in this paragraph, 

would belong to the City.

In a section of the order discussing the relief it would order, 

the district court stated that current officers who are eligible 

to receive the defined benefit payment upon retirement should 

also receive “his or her retirement contribution to the retirement 

account above 6 [percent] of his or her wages and any earnings 

associated with those contributions.” To accomplish this result, 

the district court accepted the City’s suggestion that it should 

order that certain language be inserted into the Retirement Plan. 

That language provided for the creation of separate accounts 

for (1) the current officers’ 6-percent contributions—account 
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ABBOTT v. CITY OF BELLEVUE

Cite as 310 Neb. 496

“EE012,” (2) the City’s 6-percent matching contributions—

account “ER012,” (3) the current officers’ contributions in 

excess of 6 percent—account “EE912,” and (4) the City’s 

matching contribution in excess of 6 percent—account 

“ER912.” That language also provided as follows:

If a Plaintiff vests in the defined benefit and retires 

under the Contract, he or she will receive the greater of:

1. His or her defined benefit under the Contract; or

2. The amounts contained within their “EE012” account 

and the amounts contained in his or her “ER012”. . . .

Regardless of whether a Plaintiff elects the defined 

benefit (#1 above) or the amounts in his or her account 

(#2 above), he or she will receive 100% of the funds in 

the “EE912” Account.

Where the defined benefit is greater and a Plaintiff 

retires under the Contract defined benefit, the City shall 

be liable for the difference between the defined benefit 

amount and the “EE012 . . . /ER012” accounts.

CALCULATION FOR MAY 9, 2011

DEFINED BENEFIT CALCULATION:

[Defined Benefit Amount]

– [EE012 + ER012]

= City Liability

In addition, the Plaintiff would also get to keep their 

“EE912” Account.

City receives 100% of their “ER912”Account.

(Emphasis and brackets in original.)

The September 2020 order included a paragraph regarding 

the request for attorney fees made by the BPOA and its officers. It observed that no officer that was a party to the case 

had retired and been deprived of a right under the settlement 

agreement. The district court then stated, “Given the contingent 

nature of that future possibility of damage, it is difficult to 

come to the conclusion that the [BPOA and the current officers] are the prevailing party.”
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ABBOTT v. CITY OF BELLEVUE

Cite as 310 Neb. 496

Finally, the district court ordered that “all remaining claims 

are denied and dismissed.”

The BPOA and the current officers filed a timely notice 

of appeal and petition to bypass. We granted the petition 

to bypass.

ASSIGNMENTS OF ERROR

The BPOA and the current officers assign 10 errors, but 

in our view, they can be fairly condensed and restated as follows: The district court erred by (1) ordering a remedy that 

will reduce the current officers’ defined benefit payments, 

(2) ordering a remedy that could reduce the current officers’ 

defined contribution payments below the minimum benefits 

required by the Retirement Act, (3) denying the request for 

attorney fees and costs on the grounds that the BPOA and the 

current officers were not “prevailing parties” under § 1988, (4) 

failing to find that the City violated § 1983, and (5) dismissing 

the BPOA and the current officers’ Takings Clause claims.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of 

law. Fuelberth v. Heartland Heating & Air Conditioning, 307 

Neb. 1002, 951 N.W.2d 758 (2020).

[2] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id.

ANALYSIS

Contracts Clause.

Although the BPOA and the current officers assign several errors, the issues on appeal are relatively narrow when 

compared to those presented to the district court. Notably, the 
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district court’s primary finding—that the City unconstitutionally impaired a contract—is not before us in this appeal. The 

BPOA and the current officers, unsurprisingly, do not assign 

error to that determination in their favor, and the City has not 

filed a cross-appeal challenging it either. While we therefore 

have no occasion to review the district court’s specific conclusion on this point, we take this opportunity to observe that 

in some of our prior Contracts Clause cases, including those 

upon which the district court relied, we appear not to have 

considered a distinction, recognized by other courts, between 

an unconstitutional contractual impairment and a mere contractual breach.

Article I, § 10, of the U.S. Constitution provides, “No 

State shall . . . pass any . . . Law impairing the Obligation of 

Contracts . . . .” Article I, § 16, of the Nebraska Constitution 

contains substantially similar language: “No . . . law impairing 

the obligation of contracts . . . shall be passed.”

The district court relied on precedent from this court in 

determining whether a contractual “impairment” had occurred. 

It cited language from Bauers v. City of Lincoln, 255 Neb. 

572, 583, 586 N.W.2d 452, 461 (1998), in which we, quoting 

an earlier opinion—Caruso v. City of Omaha, 222 Neb. 257, 

383 N.W.2d 41 (1986)—stated that to be an impairment, a 

change “‘must take something away and not work to the parties’ benefit.’” (Emphasis omitted.) In Caruso, we reasoned 

that the word “impair,” as it is used in the Contracts Clause 

of the U.S. Constitution, “requires no construction and may be 

given its ordinary meaning, which, according to the most basic 

dictionary definition, is ‘to make worse.’” 222 Neb. at 260, 

383 N.W.2d at 44, citing Webster’s Third New International 

Dictionary, Unabridged 1131 (1981). We offered no additional 

explanation.

To the extent we concluded in Caruso that the word “impair” 

should be given a plain language definition taken from a modern dictionary and, thus, that any action that makes the complaining party’s rights under a contract “worse” qualifies as 
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an impairment, that view appears to be an outlier. In several 

cases, federal courts of appeal have discussed the importance 

of distinguishing between governmental action that impairs a 

contract and governmental action that amounts to nothing more 

than a contractual breach. See, e.g., Pure Wafer Inc. v. Prescott, 

City of, 845 F.3d 943 (9th Cir. 2017); TM Park Ave. Associates 

v. Pataki, 214 F.3d 344 (2d Cir. 2000); Horwitz-Matthews, 

Inc. v. City of Chicago, 78 F.3d 1248 (7th Cir. 1996); Jackson 

Sawmill Co. v. United States, 580 F.2d 302 (8th Cir. 1978). 

As these courts have explained, “the distinction is crucial, not 

least because conflating the two concepts would risk making a 

federal constitutional case out of even the most garden variety 

public contract dispute, transforming the Contract Clause into 

a font of state contract law.” Pure Wafer Inc., 845 F.3d at 951. 

See, also, Horwitz-Matthews, Inc., 78 F.3d at 1250 (“[i]t would 

be absurd to turn every breach of contract by a state or municipality into a violation of the federal Constitution”).

So, according to those courts that have considered the 

matter, what is the line between a government’s breach of a 

contract and its impairment of a contractual obligation? The 

difference lies in whether the governmental entity has merely 

failed to perform a contract as promised or has gone further 

and enacted a law that prevents the other contracting party 

from pursuing ordinary contract remedies for such a failure. 

The former is a mere breach; the latter is an unconstitutional 

impairment. See, Pure Wafer Inc., 845 F.3d at 951 (“state 

action cannot be said to ‘impair’ the obligation of a contract 

so long as it leaves both parties free to obtain a court-ordered 

remedy (typically damages) in the event that either of them 

fails to perform as promised”); Crosby v. City of Gastonia, 635 

F.3d 634, 642 n.7 (2011) (“[i]f the offended party retains the 

right to recover damages for the breach, the Contracts Clause 

is not implicated; if, on the other hand, the repudiation goes 

so far as to extinguish the state’s duty to pay damages, it may 

be said to have impaired the obligation of contract”); TM Park 

Ave. Associates, 214 F.3d at 349 (“[i]f a contract is merely 
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ABBOTT v. CITY OF BELLEVUE

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breached and the duty to pay damages remains, then the 

obligation of the contract remains and there has been no 

impairment”); Horwitz-Matthews, Inc., 78 F.3d at 1251 (“[t]he 

essence . . . of a breach of contract is that it triggers a duty 

to pay damages for the reasonably foreseeable consequences 

of the breach. If the duty is unimpaired, the obligation of the 

contract cannot be said to have been impaired”).

Although an argument could be made that our opinion 

in Caruso v. City of Omaha, 222 Neb. 257, 383 N.W.2d 41 

(1986), adopted a definition of “impair” that did not account 

for the distinction between impairment and breach recognized 

by other courts, we need not determine today whether the 

Caruso definition should be reconsidered. As we have noted, 

the district court’s conclusion that the City unconstitutionally impaired the contract has not been challenged on appeal. 

We thus proceed to consider the various assignments of error 

raised by the BPOA and the current officers.

District Court’s Remedy for 

Defined Benefit Payments.

The BPOA and the current officers first argue that while 

the district court correctly found that the City’s actions had 

impaired its contractual obligations, the district court’s remedy 

for that violation will actually result in a reduction of their 

defined benefit payments. The BPOA and the current officers 

claim that the district court’s order shows that it intended to 

order a remedy that would result in officers entitled to the 

defined benefit payment receiving both the defined benefit 

payment amount and the return of their contributions in excess 

of 6 percent of their salaries, along with all associated earnings 

on those excess contributions. According to the BPOA and the 

current officers, however, the language of the district court’s 

order will result in the current officers’ receiving far less.

The City does not dispute that the district court intended to 

ensure that the current officers would receive both the defined 

benefit payment amount and the sum of their contributions 
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exceeding 6 percent and the associated earnings on those contributions. Neither does the City contend that such a remedy 

would be erroneous. The City argues instead that the district 

court’s order, read in context, does direct that the current officers will receive both the defined benefit payment amount and 

the return of their excess contributions and associated earnings 

on those contributions. The sole dispute on appeal then boils 

down to whether the district court’s order actually accomplishes what all agree was its correct intention.

The BPOA and the current officers contend that two different parts of the district court’s final order are in conflict with 

its statement that upon retirement, the current officers should 

receive both the defined benefit payment and the sum of their 

contributions in excess of 6 percent and associated earnings 

on those contributions. First, they point to the district court’s 

statement that “[a]s contemplated by the [settlement] agreement, the employee retirement account, less the damages as 

described in this paragraph, would belong to the City.” Second, 

they direct us to the formula the district court ordered the City 

to insert into the Retirement Plan to calculate what a current 

officer who elects the defined benefit payment will receive 

upon retirement. The BPOA and the current officers observe 

that the formula directs that if the current officers elect the 

defined benefit payment upon retirement, the City is to be 

liable to pay them the difference between the defined benefit 

payment amount and the sum of the amounts in the EE012 

and ER012 accounts and to provide them their EE912 account, 

which would contain their contributions in excess of 6 percent 

and associated earnings on those contributions.

We do not view the district court’s statement that the 

employee retirement account “would belong to the City” as 

inconsistent with its stated intention that the current officers 

should receive their defined benefit payment and the return 

of their contributions in excess of 6 percent along with associated earnings on those contributions. In the context of the 

paragraph in which it appears, we understand that statement to 
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communicate merely that if the City pays an officer the defined 

benefit payment amount and returns his or her contributions in 

excess of 6 percent along with the associated earnings on those 

contributions, it is not also obligated to distribute to that officer 

the amounts that have accrued in his or her retirement account 

as a result of the 6-percent contributions.

The district court’s defined benefit payment formula, however, strikes us as problematic. Under the formula, an officer 

eligible for the defined benefit would receive only the return 

of his or her contributions in excess of 6 percent, the earnings 

associated on those contributions, and the difference between 

the defined benefit payment and the amounts in his or her 

EE012 and ER012 accounts. Under the formula, the officer 

would not receive an amount equal to the defined benefit payment and the return of his or her contributions in excess of 

6 percent and the earnings associated on those contributions.

The BPOA and the current officers suggest that while the 

formula the district court ordered the City to insert into the 

Retirement Plan will not function as intended, it can be easily 

fixed. They point out that if the formula was changed to make 

clear that in addition to receiving the difference between the 

defined benefit payment amount and the amounts in the EE012 

account and ER012 account, an officer would also receive the 

amounts in the EE912, EE012, and ER012 accounts, the officer 

would receive an amount equal to the defined benefit payment 

and the return of his or her excess contributions and any associated investment income.

At oral argument, the City conceded that the BPOA and the 

current officers’ proposed modification of the formula would 

not result in any harm to the City. The City argued only that 

in light of the rest of the district court’s order, the modification was unnecessary. We find it significant, however, that the 

district court ordered the City to insert the formula into the 

Retirement Plan. We see no reason not to dispel any future confusion as to the amount a current officer electing the defined 

benefit payment will receive by modifying the district court’s 
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order so that the formula the City is ordered to insert into the 

Retirement Plan provides as follows:

[Defined Benefit Amount]

– [EE012 + ER012]

= City Liability

In addition, the Plaintiff would also get to keep their 

“EE012,” “ER012,” and “EE912” Accounts.

City receives 100% of their “ER912” Account.

District Court’s Remedy for Defined 

Contribution Payments.

The BPOA and the current officers next argue other language the district court ordered the City to insert into the 

Retirement Plan would result in an unlawful reduction of 

benefits in the event an officer elects to receive the defined 

contribution payment. The language at issue directs that if 

an officer vested in the defined benefit retires, he or she will 

receive the greater of the defined benefit or “[t]he amounts 

contained within their ‘EE012’ account and the amounts contained in his or her ‘ER012’ [account].” The BPOA and the 

current officers contend that by not also including the City’s 

contributions in excess of 6 percent in the defined contribution 

payment amount, an officer who elects to receive the defined 

contribution payment will receive less than the Retirement 

Act guarantees.

The City counters that the language to which the BPOA and 

the current officers object is merely a correct application of 

the settlement agreement. It contends that if a current officer 

retires under the settlement agreement, he or she “ha[s] no 

right to the Retirement Act benefits.” Brief for appellee at 19.

We find it unnecessary to determine whether the Retirement 

Act requires the City to include its contributions in excess 

of 6 percent in calculating the defined contribution payment 

amount. For other reasons we will explain, we find the district court’s order should be modified to remove the language 

in question.
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First, the amount the current officers would be entitled to 

receive if they elected the defined contribution payment was 

not at issue in this case. The operative complaint alleged only 

that the City’s increased withholding from the officers’ salaries 

was unconstitutional. The district court was not required to 

determine how an officer’s defined contribution payment would 

be calculated in order to resolve those constitutional claims.

Not only was the calculation of the defined contribution 

payment not at issue in the case, it appears unlikely it will ever 

amount to anything more than a theoretical dispute between the 

parties. Recall that under the settlement agreement, an officer 

receives the defined contribution payment only if it exceeds 

the defined benefit payment. But as noted above, in the case 

of every officer who has retired since the settlement agreement 

became effective, the value of the defined benefit payment has 

exceeded the value of the defined contribution payment. Both 

parties also agree on appeal that it is unlikely the amounts 

in any current officer’s retirement account will ever exceed 

the defined benefit payment. Finally, even if at some point in 

the future, the value of a current officer’s retirement account 

approaches the defined benefit payment such that there is a live 

controversy between the parties as to how the defined contribution payment should be calculated, nothing would preclude 

either party from seeking a judicial determination of that issue 

at that time.

In essence, the district court entered a declaration as to how 

the defined contribution payment should be calculated despite 

no party requesting such a declaration and the agreement of 

both parties that it is unlikely that such a calculation will ever 

be necessary. This court has long held that declaratory and 

injunctive relief should not be issued to adjudicate hypothetical or speculative situations which may never come to pass. 

See, e.g., Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 

(2017). We find the district court erred by addressing the issue 

and therefore modify the district court’s order by removing the 

following language:
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If a Plaintiff vests in the defined benefit and retires 

under the Contract, he or she will receive the greater of:

1. His or her defined benefit under the Contract; or

2. The amounts contained within their “EE012” account 

and the amounts contained within his or her “ER012”. 

The vesting schedule shall be as outlined in the Contract. 

(Emphasis in original.)

Attorney Fees and Costs.

The BPOA and the current officers next contend that the 

district court erred by denying their request for attorney fees 

and costs under § 1988 on the grounds that they were not, for 

purposes of that statute, “prevailing parties.”

[3,4] Generally, a party may recover attorney fees and 

expenses in a civil action only if provided for by statute or if 

a recognized and accepted uniform course of procedure allows 

the recovery of attorney fees. Melanie M. v. Winterer, 290 

Neb. 764, 862 N.W.2d 76 (2015). Section 1988(b), however, 

provides that in “any action or proceeding to enforce a provision of [§] 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.” Section 1983 provides a 

civil remedy for deprivations of federally protected rights, statutory or constitutional, caused by persons acting under color of 

state law. Schaeffer v. Frakes, 306 Neb. 904, 947 N.W.2d 714 

(2020). The BPOA and the current officers brought their claims 

based on the U.S. Constitution under § 1983.

[5,6] Although a trial court’s decision awarding or denying 

attorney fees is generally reviewed for an abuse of discretion, 

see McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 

202, 959 N.W.2d 251 (2021), whether a plaintiff was a prevailing party is a legal question. See Jenkins v. State of Mo., 127 

F.3d 709 (8th Cir. 1997). An appellate court independently 

reviews questions of law decided by a lower court. Stone 

Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903 

(2021). We will thus independently review the district court’s 

determination that the BPOA and the current officers were 
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not prevailing parties. See, also, id. at 973, 962 N.W.2d at 

907 (“‘district court by definition abuses it discretion when it 

makes an error of law’”), quoting Koon v. United States, 518 

U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996).

The district court found that the BPOA and the current 

officers were not prevailing parties, because they had not yet 

retired and elected to receive the defined benefit payment. 

The district court reasoned that until an officer did these two 

things, he or she had not suffered any damage as a result of 

the City’s actions. The district court concluded that the BPOA 

and the current officers could not be prevailing parties if they 

had not yet been damaged and there was only a possibility of 

future damage.

[7] The district court’s focus on whether the BPOA and the 

current officers had suffered damages was misplaced. Guided 

by precedent from the U.S. Supreme Court, we have said that 

a plaintiff is a prevailing party under § 1988 if the plaintiff 

obtains actual relief on the merits of his or her claim that alters 

the legal relationship between the parties by modifying the 

defendant’s behavior in a way that directly benefits the plaintiff. 

See Melanie M., supra, citing Lefemine v. Wideman, 568 U.S. 

1, 133 S. Ct. 9, 184 L. Ed. 2d 313 (2012). In the same case, 

again citing U.S. Supreme Court precedent, we recognized that 

an injunction or a declaratory judgment will usually satisfy the 

prevailing party test. See Melanie M., supra, citing Lefemine, 

supra. The prevailing party inquiry is thus not focused on 

whether the plaintiff has suffered damages or obtains a damages award, but whether the plaintiff has obtained relief from 

the court that alters the parties’ legal relationship and requires 

the defendant to modify its behavior.

The BPOA and the current officers qualify as prevailing parties under the test we recited in Melanie M. The district court 

found that the City unconstitutionally impaired a contract. 

As a remedy, it ordered the City to insert language into the 

Retirement Plan. That language required the City to separate 

the officers’ and the City’s contributions into various accounts 
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and to return officers’ contributions in excess of 6 percent, 

along with any associated investment earnings to those officers who retire and elect to receive the defined benefit. The 

addition of this language precludes the City from continuing 

to use officers’ contributions in excess of 6 percent to fund its 

defined benefit payment obligations. Any current officer who 

retires and elects to receive the defined benefit payment will 

receive more from the City as a result of the district court’s 

order. While the district court did not award damages to the 

BPOA and the current officers, its order required the City to 

modify its behavior and altered the legal relationship between 

the parties.

The City says little about the Melanie M. test and, instead, 

asserts that the district court was correct in finding that the 

BPOA and the current officers were not prevailing parties for a 

number of other reasons. As we will explain, we find no merit 

to these arguments.

The City first contends that the BPOA and the current officers do not qualify as prevailing parties, because the issue on 

which they prevailed was not significant and they were not 

awarded the relief sought in their operative complaint. In support of this argument, the City relies on language from Hensley 

v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 

(1983). In that case, the U.S. Supreme Court stated that one 

“typical formulation” of the prevailing party test was that 

plaintiffs could be considered a prevailing party if “they succeed on any significant issue in litigation which achieves some 

of the benefit the parties sought in bringing suit.” Id., 461 U.S. 

at 433 (internal quotation marks omitted).

The City’s claim that the BPOA and the current officers did 

not succeed on a significant issue requires little discussion. 

The City offers nothing beyond a conclusory assertion that the 

BPOA and the current officers did not prevail on a significant 

issue, and in any event, we disagree that the district court’s 

finding of an unconstitutional impairment of contract could be 

fairly characterized as insignificant.
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The City fares no better with its argument that the BPOA 

and the current officers do not qualify as prevailing parties 

because the district court did not order the relief requested. 

Here, the City’s argument is that because the remedy ordered 

by the district court was not the precise relief requested by the 

BPOA and the current officers in their operative complaint, 

they did not achieve the benefit sought in bringing suit under 

Hensley, supra. The City is correct that the operative complaint 

requested that the district court enter an order enjoining the 

City from deducting funds from the current officers’ salaries in 

excess of 6 percent and requiring the City to immediately disgorge prior excess contributions. The City is also correct that 

the district court did not order that relief. The City is incorrect, 

however, that to be a prevailing party, a plaintiff must receive 

the precise relief requested.

The language from Hensley upon which the City relies 

does not require that plaintiffs obtain the relief they sought in 

bringing suit; it requires they achieve “some of the benefit . . . 

sought in bringing suit.” 461 U.S. at 433 (internal quotation 

marks omitted) (emphasis supplied). Furthermore, the notion 

that a plaintiff must obtain the precise relief sought in order to 

be a prevailing party is at odds with the well-recognized principle that “the prevailing party inquiry does not turn on the magnitude of the relief obtained.” Farrar v. Hobby, 506 U.S. 103, 

114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). Although the 

degree of a plaintiff’s success bears on how much the plaintiff 

should be awarded as a reasonable fee, that question is separate 

from the threshold determination of whether the plaintiff is a 

prevailing party. See id.

Consistent with the language from Hensley, supra, and the 

prevailing party jurisprudence generally, other courts have 

recognized that a plaintiff qualifies as a prevailing party if it 

obtains actual relief in its favor even if the relief granted does 

not mirror the relief sought. See St. John’s Organic Farm v. 

Gem County Mosquito, 574 F.3d 1054, 1059 (9th Cir. 2009) 

(explaining that “the relief achieved need not be of precisely 
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the same character as the relief sought in the complaint, but 

it must require defendants to do something they otherwise 

would not have been required to do”); J.O. ex rel. C.O. v. 

Orange Tp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002) 

(“[t]he relief need not be the exact relief requested as long 

as it goes toward achieving the same goal”); Fast v. School 

Dist. of City of Ladue, 728 F.2d 1030, 1033 (8th Cir. 1984) 

(en banc) (“[i]n determining who is a ‘prevailing party’ for fee 

purposes, the important thing is what relief was awarded on 

the facts and the law, not what relief was expressly requested 

by the pleadings”).

The City also argues that the district court’s prevailing party 

decision was correct because the BPOA and the current officers 

were not successful on a § 1983 claim. The City appears to 

believe that when the district court dismissed all claims it had 

not specifically addressed, it dismissed the BPOA and the current officers’ sole § 1983 claim as meritless. This is incorrect. 

There is no such thing as a stand-alone § 1983 claim. Section 

1983 is a vehicle “for vindicating federal rights elsewhere 

conferred.” Kendall v. City of Chesapeake, Va., 174 F.3d 437, 

440 (4th Cir. 1999) (internal quotation marks omitted). See, 

also, Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 

617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979) (“one cannot go 

into court and claim a ‘violation of § 1983’—for § 1983 by 

itself does not protect anyone against anything”). The BPOA 

and the current officers used § 1983 to allege that the City 

had violated the Contracts Clause and Takings Clause of the 

federal Constitution. By finding that the City unconstitutionally impaired a contract, the district court granted the BPOA 

and the current officers relief on a claim brought under § 1983. 

See Calabro v. City of Omaha, 247 Neb. 955, 531 N.W.2d 541 

(1995) (finding that plaintiffs prevailed on § 1983 claim alleging violation of federal Contracts Clause).

In the course of arguing that the BPOA and the current officers did not prevail on their § 1983 claim, the City also claims 

that the BPOA and the current officers failed to demonstrate 
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all that the U.S. Supreme Court has held a party must show in 

order to obtain relief against a municipality on a claim brought 

under § 1983. See, e.g., Monell v. New York City Dept. of 

Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 

(1978). This, however, is not an argument that the BPOA and 

the current officers did not prevail on a claim brought under 

§ 1983, but, rather, an argument that they should not have 

prevailed on such a claim. If the City had filed a cross-appeal, 

we would have authority to take up the question of whether the 

district court erred by finding that the City unconstitutionally 

impaired a contract. See Wasikowski v. Nebraska Quality Jobs 

Bd., 264 Neb. 403, 648 N.W.2d 756 (2002). Because the City 

did not file a cross-appeal, however, the only question before us 

is whether the BPOA and the current officers prevailed on their 

§ 1983 claim in the district court. That question is answered 

by analyzing the relief the district court actually awarded, not 

by second-guessing whether that decision was correct. See, 

Dahlem v. Board of Educ. of Denver Public Schools, 901 F.2d 

1508 (10th Cir. 1990); Bishop v. Committee on Professional 

Ethics, Etc., 686 F.2d 1278 (8th Cir. 1982). Considering the 

relief the district court awarded, we find that the BPOA and 

the current officers were prevailing parties and that the district 

court made a legal error by finding otherwise.

Although we find that the BPOA and the current officers 

were prevailing parties in the district court, this alone does not 

mean that they were entitled to an award of attorney fees and 

costs. The determination of whether a plaintiff is a prevailing 

party is a threshold determination that the party is eligible for 

an award of fees under § 1988. See Hensley v. Eckerhart, 461 

U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). And while 

the U.S. Supreme Court has held that a prevailing plaintiff 

“should ordinarily recover an attorney’s fee unless special 

circumstances would render such an award unjust,” id., 461 

U.S. at 429 (internal quotation marks omitted), the decision of 

whether and to what extent to award attorney fees was committed in this instance to the discretion of the district court. 
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See § 1988. We therefore remand the cause to the district court 

for it to reconsider that question on the existing record and in 

light of our determination that the BPOA and the current officers qualified as prevailing parties.

Remaining Assignments of Error.

The remaining assignments of error asserted by the BPOA 

and the current officers require little analysis. They claim 

that the district court erred by dismissing their claims brought 

under § 1983 and their claims that the City violated the Takings 

Clauses of the U.S. and Nebraska Constitutions.

As we have explained above, the district court did not dismiss all of the § 1983 claims asserted by the BPOA and the current officers. It found merit to the claim brought under § 1983 

that the City had unconstitutionally impaired a contract.

The district court did dismiss the Takings Clause claims 

asserted by the BPOA and the current officers, but at oral 

argument, their counsel acknowledged that if they obtained the 

relief they were seeking regarding the district court’s remedy 

and its finding that they were not prevailing parties, it was not 

necessary for us to determine whether the district court erred 

by dismissing their Takings Clause claims. Accordingly, we 

will not examine that issue.

CONCLUSION

Because we find that the district court erred as set forth 

herein, we affirm in part as modified, and in part reverse and 

remand for further proceedings.

Affirmed in part as modified, and in part reversed 

and remanded for further proceedings.