(1) The legislature intends that courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504.
814.245.Actions by state agencies.
Ch. 814: Court Costs, Fees, and Surcharges · Last amended 2003 · Last verified July 15, 2026
In one sentenceSection 814.245 lets an individual, small business, or small nonprofit corporation that beats a state agency in court or in judicial review recover costs, including capped attorney fees, unless the agency was substantially justified, and it excludes higher-income individuals and sets a process for applying, reporting, and penalizing frivolous requests.
Full Text of Section 814.245
(2) In this section:
(a) “Nonprofit corporation” has the meaning designated in s. 181.0103 (17).
(b) “Small business” means a business entity, including its affiliates, which is independently owned and operated, and which employs 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
(c) “Small nonprofit corporation” means a nonprofit corporation which employs fewer than 25 full-time employees.
(d) “State agency” does not include the citizens utility board.
(e) “Substantially justified” means having a reasonable basis in law and fact.
(3) Except as provided in s. 814.25, if an individual, a small nonprofit corporation or a small business is the prevailing party in any action by a state agency or in any proceeding for judicial review under s. 227.485 (6) and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
(4) In determining the prevailing party in actions in which more than one issue is contested, the court shall take into account the relative importance of each issue. The court shall provide for partial awards of costs under this section based on determinations made under this subsection.
(5) If the court awards costs under sub. (3), the costs shall include all of the following which are applicable:
(a) The reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the case and reasonable attorney or agent fees. The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that: 1. No expert witness may be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency which is the losing party. 2. Attorney or agent fees may not be awarded in excess of $150 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents, justifies a higher fee.
(b) Any other allowable cost specified under s. 814.04 (2).
(6) A party seeking an award under this section shall, within 30 days after final judgment in the action, submit to the clerk under s. 814.10 (1) an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. Section 814.10 applies for the procedure for taxation of costs, except that the clerk shall allow the state agency 15 working days to respond under s. 814.10 (3).
(8) An individual is not eligible to recover costs under this section if the person’s properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the action. This subsection applies whether the person files the tax return individually or in combination with a spouse.
(9) If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under s. 20.865 (1) (a), (g) or (q).
(10) Each state agency that is ordered to pay costs under this section or that recovers costs under sub. (11) shall report annually, as soon as is practicable after June 30, to the presiding officer of each house of the legislature the number, nature and amounts awarded, the claims involved in the action in which the costs were incurred, the costs recovered under sub. (11) and any other relevant information to aid the legislature in evaluating the effect of this section.
(11) If the court finds that the motion under sub. (3) is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the court must find one or more of the following:
(a) The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
(b) The party or the party’s attorney knew, or should have known, that the motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Plain-English Summary
Section 814.245 gives smaller litigants a real chance to recover costs when they take on a state agency and win. The legislature directs courts to look to federal case law interpreting the federal equal access to justice act as of November 20, 1985, when interpreting this section. Subsection (3) then sets the core rule: except as section 814.25 provides otherwise, if an individual, a small nonprofit corporation, or a small business prevails in an action brought by a state agency, or in judicial review under section 227.485(6), and moves for costs, the court must award them — unless the agency’s position was substantially justified or special circumstances would make an award unjust. The section defines a small business as one with 25 or fewer full-time employees or under five million dollars in gross annual sales, and a small nonprofit corporation as one with fewer than 25 full-time employees.
The costs available under subsection (5) reach beyond ordinary court costs: reasonable expert witness expenses, the cost of studies, analyses, engineering reports, tests, or projects necessary to prepare the case, and reasonable attorney or agent fees based on prevailing market rates. Two limits apply to those fees — expert witnesses cannot be paid more than the agency itself paid its own experts, and attorney or agent fees cannot exceed $150 per hour unless a cost-of-living increase or a special factor, such as the limited availability of qualified counsel, justifies more.
The section builds in several guardrails. Subsection (8) excludes an individual whose federal adjusted gross income was $150,000 or more in each of the three years before the action began, whether filed alone or jointly with a spouse. Subsection (6) requires an itemized application to the clerk within 30 days of final judgment, following section 814.10’s taxation procedure but giving the state agency 15 working days to respond. Subsection (7) lets the court reduce or deny an award if the prevailing party unduly delayed the case, and subsection (11) lets the agency recover its own costs if the court finds the cost motion frivolous — submitted in bad faith to harass the agency, or pursued without any reasonable basis in law or equity.
Frequently Asked Questions
Can a small business recover attorney fees after beating a state agency in court?
Yes, if it qualifies as a small business under section 814.245(2)(b) — 25 or fewer full-time employees, including affiliates, or under five million dollars in gross annual sales — and the court does not find the agency’s position substantially justified or an award unjust under section 814.245(3).
Is there a cap on the attorney fees a prevailing party can recover under this section?
Yes. Section 814.245(5)(a) caps attorney or agent fees at $150 per hour, unless the court finds that a cost-of-living increase or a special factor, such as limited availability of qualified attorneys or agents, justifies a higher fee.
Can a high-income individual recover costs from a state agency under this section?
No, not if their properly reported federal adjusted gross income was $150,000 or more in each of the three calendar or fiscal years immediately before the action began. Section 814.245(8) excludes that individual, whether they filed their return alone or with a spouse.
How long do I have to apply for costs after winning against a state agency?
Section 814.245(6) requires an itemized application to the clerk within 30 days after final judgment, following the taxation procedure in section 814.10, except the state agency gets 15 working days to respond instead of the usual period.
What happens if a court decides my motion for costs against a state agency was frivolous?
Section 814.245(11) allows the state agency to recover all reasonable costs of responding to the motion, but only if the court finds the motion was submitted in bad faith to harass the agency, or that the party or attorney knew or should have known it had no reasonable basis in law or equity.
Amendment History
History: 1985 a. 52; 1985 a. 182 s. 57; 1985 a. 332 s. 253; 1995 a. 27; 1997 a. 79, 133; 2003 a. 145.
Source & verification. Section text and official notes are
reproduced verbatim from the Wisconsin Statutes, published by the
Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026.
· Official source
Also known as: wisconsin equal access to justice actrecovering costs against a state agency wisconsinsmall business attorney fees state agency lawsuit814.245 substantially justifiedprevailing party costs against wisconsin agency