BUCKHANNON BOARD & CARE HOME, INC. v. WESTVIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES


TOP

Opinion

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Chief Justice Rehnquist delivered the opinion of the Court.

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.

Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16–5H–1, 16–5H–2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, §14.07(1) (1995) (same). On October 28, 1997, after receiving cease and desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief 1 that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102Stat. 1619, 42 U. S. C. §3601 et seq ., and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq .

Respondents agreed to stay enforcement of the cease and desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see H. R. 4200, I 1998 W. Va. Acts 983–986 (amending regulations); S. 627, II 1998 W. Va. Acts 1198–1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. 2

Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U. S. C. §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. §12205 (“[T]he court … , in its discretion, may allow the prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the “catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S–1 and S–2 v. State Bd. of Ed. of N. C. , 21 F. 3d 49, 51 (1994) (en banc) (“A person may not be a ‘prevailing party’ … except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 203 F. 3d 819 (CA4 2000).

To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000) , and now affirm.

In the United States, parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975) . Under this “American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994) . Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964, 78Stat. 259, 42 U. S. C. §2000e–5(k), the Voting Rights Act Amendments of 1975, 89Stat. 402, 42 U. S. C. §1973 l (e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U. S. 1, 43–51 (1985) (Appendix to opinion of Brennan, J., dissenting). 4

In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . — Also termed successful party .” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. 5

In Hanrahan v. Hampton, 446 U. S. 754, 758 (1980) (per curiam) , we reviewed the legislative history of §1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987) . We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992) . 6

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U. S. 122 (1980) . Although a consent decree does not always include an admission of liability by the defendant, see, e.g. , id. , at 126, n. 8, it nonetheless is a court-ordered “chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792 (1989) (citing Hewitt , supra, at 760–761, and Rhodes v. Stewart, 488 U. S. 1, 3–4 (1988) (per curiam) ). 7 These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U. S., at 792–793; see also Hanrahan , supra , at 757 (“[I]t seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal ” (emphasis added)).

We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan , supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post , at 1 (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior cases in approving the “catalyst theory.” See post , at 11–12; see also supra , at 4–5, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings . We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e.g. , Farrar , supra , at 112, or obtained a court-ordered consent decree, Maher , supra , at 129–130—we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan , supra , at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “ judicial relief,” Hewitt , supra , at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudicial “alteration of actual circumstances.” Post , at 13. While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not . . . groundless.” Post , at 7 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post , at 13 (internal quotation marks and citation omitted). 8

Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney’s Fees Awards Act supports a broad reading of “prevailing party” which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party”—the term actually used in the statute. Since we resorted to such history in Garland , 489 U. S., at 790, Maher , 448 U. S., at 129, and Hanrahan , 446 U. S., at 756–757, however, we do likewise here.

The House Report to §1988 states that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits, ” H. R. Rep. No. 94–1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94–1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co. , 433 F. 2d 421 (1970), indicate Congress’ intent to adopt the “catalyst theory.” 9 We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic , 511 U. S., at 819; see also Hanrahan, supra, at 758 (“[O]nly when a party has prevailed on the merits of at least some of his claims … has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94–1558, at 8)).

Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive cases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence ( e.g. , whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S–1 and S–2 ).

Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U. S. 717, 734 (1986) , and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. 10 Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U. S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)).

We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) , and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawn[ed] a second litigation of significant dimension,” Garland , 489 U. S., at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced “three thresholds” test required by the “catalyst theory”—whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant’s change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post , at 6–7—it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U. S. 557, 566 (1992) .

Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska , 421 U. S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. §3613(c)(2), and ADA, 42 U. S. C. §12205.

The judgment of the Court of Appeals is

Affirmed.


Notes

1 The original complaint also sought money damages, but petitioners relinquished this claim on January 2, 1998. See App. to Pet. for Cert. A11.

2 The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147.

3 See, e.g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546–550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski Cty. School Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951–952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999).

4 We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U. S. 424, n. 7 (1983), and so approach the nearly identical provisions at issue here.

5 We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dicta in Hewitt v. Helms, 482 U. S. 755, 760 (1987) , alluded to the possibility of attorney’s fees where “voluntary action by the defendant … affords the plaintiff all or some of the relief … sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 194 (2000) . Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid.

6 However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115–116.

7 We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dicta ignores that Maher only “held that fees may be assessed … after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U. S. 717, 720 (1986) . Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994) .

8 Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , that case involved costs, not attorney’s fees. “[B]y the long established practice and universally recognized rule of the common law . . . the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule ‘has long been that attorney’s fees are not ordinarily recoverable,’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967) ). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e.g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here—they lost and their opponents won on the only litigated issue—so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics.

9 Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action … seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429–430, it did so only after finding that the defendant had acted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maher v. Gagne, 448 U. S. 122 (1980) , the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents.

10 Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974) . Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977) .


TOP

Opinion

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Chief Justice Rehnquist delivered the opinion of the Court.

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.

Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16–5H–1, 16–5H–2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, §14.07(1) (1995) (same). On October 28, 1997, after receiving cease and desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief 1 that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102Stat. 1619, 42 U. S. C. §3601 et seq ., and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq .

Respondents agreed to stay enforcement of the cease and desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see H. R. 4200, I 1998 W. Va. Acts 983–986 (amending regulations); S. 627, II 1998 W. Va. Acts 1198–1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. 2

Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U. S. C. §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. §12205 (“[T]he court … , in its discretion, may allow the prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the “catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S–1 and S–2 v. State Bd. of Ed. of N. C. , 21 F. 3d 49, 51 (1994) (en banc) (“A person may not be a ‘prevailing party’ … except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 203 F. 3d 819 (CA4 2000).

To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000) , and now affirm.

In the United States, parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975) . Under this “American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994) . Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964, 78Stat. 259, 42 U. S. C. §2000e–5(k), the Voting Rights Act Amendments of 1975, 89Stat. 402, 42 U. S. C. §1973 l (e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U. S. 1, 43–51 (1985) (Appendix to opinion of Brennan, J., dissenting). 4

In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . — Also termed successful party .” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. 5

In Hanrahan v. Hampton, 446 U. S. 754, 758 (1980) (per curiam) , we reviewed the legislative history of §1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987) . We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992) . 6

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U. S. 122 (1980) . Although a consent decree does not always include an admission of liability by the defendant, see, e.g. , id. , at 126, n. 8, it nonetheless is a court-ordered “chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792 (1989) (citing Hewitt , supra, at 760–761, and Rhodes v. Stewart, 488 U. S. 1, 3–4 (1988) (per curiam) ). 7 These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U. S., at 792–793; see also Hanrahan , supra , at 757 (“[I]t seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal ” (emphasis added)).

We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan , supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post , at 1 (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior cases in approving the “catalyst theory.” See post , at 11–12; see also supra , at 4–5, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings . We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e.g. , Farrar , supra , at 112, or obtained a court-ordered consent decree, Maher , supra , at 129–130—we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan , supra , at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “ judicial relief,” Hewitt , supra , at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudicial “alteration of actual circumstances.” Post , at 13. While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not . . . groundless.” Post , at 7 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post , at 13 (internal quotation marks and citation omitted). 8

Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney’s Fees Awards Act supports a broad reading of “prevailing party” which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party”—the term actually used in the statute. Since we resorted to such history in Garland , 489 U. S., at 790, Maher , 448 U. S., at 129, and Hanrahan , 446 U. S., at 756–757, however, we do likewise here.

The House Report to §1988 states that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits, ” H. R. Rep. No. 94–1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94–1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co. , 433 F. 2d 421 (1970), indicate Congress’ intent to adopt the “catalyst theory.” 9 We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic , 511 U. S., at 819; see also Hanrahan, supra, at 758 (“[O]nly when a party has prevailed on the merits of at least some of his claims … has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94–1558, at 8)).

Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive cases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence ( e.g. , whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S–1 and S–2 ).

Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U. S. 717, 734 (1986) , and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. 10 Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U. S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)).

We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) , and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawn[ed] a second litigation of significant dimension,” Garland , 489 U. S., at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced “three thresholds” test required by the “catalyst theory”—whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant’s change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post , at 6–7—it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U. S. 557, 566 (1992) .

Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska , 421 U. S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. §3613(c)(2), and ADA, 42 U. S. C. §12205.

The judgment of the Court of Appeals is

Affirmed.


Notes

1 The original complaint also sought money damages, but petitioners relinquished this claim on January 2, 1998. See App. to Pet. for Cert. A11.

2 The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147.

3 See, e.g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546–550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski Cty. School Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951–952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999).

4 We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U. S. 424, n. 7 (1983), and so approach the nearly identical provisions at issue here.

5 We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dicta in Hewitt v. Helms, 482 U. S. 755, 760 (1987) , alluded to the possibility of attorney’s fees where “voluntary action by the defendant … affords the plaintiff all or some of the relief … sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 194 (2000) . Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid.

6 However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115–116.

7 We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dicta ignores that Maher only “held that fees may be assessed … after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U. S. 717, 720 (1986) . Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994) .

8 Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , that case involved costs, not attorney’s fees. “[B]y the long established practice and universally recognized rule of the common law . . . the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule ‘has long been that attorney’s fees are not ordinarily recoverable,’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967) ). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e.g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here—they lost and their opponents won on the only litigated issue—so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics.

9 Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action … seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429–430, it did so only after finding that the defendant had acted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maher v. Gagne, 448 U. S. 122 (1980) , the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents.

10 Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974) . Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977) .


TOP

Opinion

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Chief Justice Rehnquist delivered the opinion of the Court.

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.

Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16–5H–1, 16–5H–2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, §14.07(1) (1995) (same). On October 28, 1997, after receiving cease and desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief 1 that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102Stat. 1619, 42 U. S. C. §3601 et seq ., and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq .

Respondents agreed to stay enforcement of the cease and desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see H. R. 4200, I 1998 W. Va. Acts 983–986 (amending regulations); S. 627, II 1998 W. Va. Acts 1198–1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. 2

Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U. S. C. §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. §12205 (“[T]he court … , in its discretion, may allow the prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the “catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S–1 and S–2 v. State Bd. of Ed. of N. C. , 21 F. 3d 49, 51 (1994) (en banc) (“A person may not be a ‘prevailing party’ … except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 203 F. 3d 819 (CA4 2000).

To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000) , and now affirm.

In the United States, parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975) . Under this “American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994) . Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964, 78Stat. 259, 42 U. S. C. §2000e–5(k), the Voting Rights Act Amendments of 1975, 89Stat. 402, 42 U. S. C. §1973 l (e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U. S. 1, 43–51 (1985) (Appendix to opinion of Brennan, J., dissenting). 4

In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . — Also termed successful party .” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. 5

In Hanrahan v. Hampton, 446 U. S. 754, 758 (1980) (per curiam) , we reviewed the legislative history of §1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987) . We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992) . 6

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U. S. 122 (1980) . Although a consent decree does not always include an admission of liability by the defendant, see, e.g. , id. , at 126, n. 8, it nonetheless is a court-ordered “chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792 (1989) (citing Hewitt , supra, at 760–761, and Rhodes v. Stewart, 488 U. S. 1, 3–4 (1988) (per curiam) ). 7 These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U. S., at 792–793; see also Hanrahan , supra , at 757 (“[I]t seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal ” (emphasis added)).

We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan , supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post , at 1 (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior cases in approving the “catalyst theory.” See post , at 11–12; see also supra , at 4–5, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings . We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e.g. , Farrar , supra , at 112, or obtained a court-ordered consent decree, Maher , supra , at 129–130—we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan , supra , at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “ judicial relief,” Hewitt , supra , at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudicial “alteration of actual circumstances.” Post , at 13. While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not . . . groundless.” Post , at 7 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post , at 13 (internal quotation marks and citation omitted). 8

Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney’s Fees Awards Act supports a broad reading of “prevailing party” which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party”—the term actually used in the statute. Since we resorted to such history in Garland , 489 U. S., at 790, Maher , 448 U. S., at 129, and Hanrahan , 446 U. S., at 756–757, however, we do likewise here.

The House Report to §1988 states that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits, ” H. R. Rep. No. 94–1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94–1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co. , 433 F. 2d 421 (1970), indicate Congress’ intent to adopt the “catalyst theory.” 9 We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic , 511 U. S., at 819; see also Hanrahan, supra, at 758 (“[O]nly when a party has prevailed on the merits of at least some of his claims … has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94–1558, at 8)).

Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive cases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence ( e.g. , whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S–1 and S–2 ).

Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U. S. 717, 734 (1986) , and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. 10 Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U. S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)).

We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) , and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawn[ed] a second litigation of significant dimension,” Garland , 489 U. S., at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced “three thresholds” test required by the “catalyst theory”—whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant’s change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post , at 6–7—it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U. S. 557, 566 (1992) .

Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska , 421 U. S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. §3613(c)(2), and ADA, 42 U. S. C. §12205.

The judgment of the Court of Appeals is

Affirmed.


Notes

1 The original complaint also sought money damages, but petitioners relinquished this claim on January 2, 1998. See App. to Pet. for Cert. A11.

2 The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147.

3 See, e.g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546–550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski Cty. School Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951–952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999).

4 We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U. S. 424, n. 7 (1983), and so approach the nearly identical provisions at issue here.

5 We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dicta in Hewitt v. Helms, 482 U. S. 755, 760 (1987) , alluded to the possibility of attorney’s fees where “voluntary action by the defendant … affords the plaintiff all or some of the relief … sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 194 (2000) . Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid.

6 However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115–116.

7 We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dicta ignores that Maher only “held that fees may be assessed … after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U. S. 717, 720 (1986) . Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994) .

8 Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , that case involved costs, not attorney’s fees. “[B]y the long established practice and universally recognized rule of the common law . . . the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule ‘has long been that attorney’s fees are not ordinarily recoverable,’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967) ). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e.g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here—they lost and their opponents won on the only litigated issue—so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics.

9 Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action … seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429–430, it did so only after finding that the defendant had acted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maher v. Gagne, 448 U. S. 122 (1980) , the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents.

10 Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974) . Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977) .


TOP

Opinion

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Chief Justice Rehnquist delivered the opinion of the Court.

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.

Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16–5H–1, 16–5H–2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, §14.07(1) (1995) (same). On October 28, 1997, after receiving cease and desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief 1 that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102Stat. 1619, 42 U. S. C. §3601 et seq ., and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq .

Respondents agreed to stay enforcement of the cease and desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see H. R. 4200, I 1998 W. Va. Acts 983–986 (amending regulations); S. 627, II 1998 W. Va. Acts 1198–1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. 2

Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U. S. C. §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. §12205 (“[T]he court … , in its discretion, may allow the prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the “catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S–1 and S–2 v. State Bd. of Ed. of N. C. , 21 F. 3d 49, 51 (1994) (en banc) (“A person may not be a ‘prevailing party’ … except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 203 F. 3d 819 (CA4 2000).

To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000) , and now affirm.

In the United States, parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975) . Under this “American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994) . Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964, 78Stat. 259, 42 U. S. C. §2000e–5(k), the Voting Rights Act Amendments of 1975, 89Stat. 402, 42 U. S. C. §1973 l (e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U. S. 1, 43–51 (1985) (Appendix to opinion of Brennan, J., dissenting). 4

In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . — Also termed successful party .” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. 5

In Hanrahan v. Hampton, 446 U. S. 754, 758 (1980) (per curiam) , we reviewed the legislative history of §1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987) . We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992) . 6

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U. S. 122 (1980) . Although a consent decree does not always include an admission of liability by the defendant, see, e.g. , id. , at 126, n. 8, it nonetheless is a court-ordered “chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792 (1989) (citing Hewitt , supra, at 760–761, and Rhodes v. Stewart, 488 U. S. 1, 3–4 (1988) (per curiam) ). 7 These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U. S., at 792–793; see also Hanrahan , supra , at 757 (“[I]t seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal ” (emphasis added)).

We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan , supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post , at 1 (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior cases in approving the “catalyst theory.” See post , at 11–12; see also supra , at 4–5, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings . We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e.g. , Farrar , supra , at 112, or obtained a court-ordered consent decree, Maher , supra , at 129–130—we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan , supra , at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “ judicial relief,” Hewitt , supra , at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudicial “alteration of actual circumstances.” Post , at 13. While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not . . . groundless.” Post , at 7 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post , at 13 (internal quotation marks and citation omitted). 8

Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney’s Fees Awards Act supports a broad reading of “prevailing party” which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party”—the term actually used in the statute. Since we resorted to such history in Garland , 489 U. S., at 790, Maher , 448 U. S., at 129, and Hanrahan , 446 U. S., at 756–757, however, we do likewise here.

The House Report to §1988 states that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits, ” H. R. Rep. No. 94–1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94–1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co. , 433 F. 2d 421 (1970), indicate Congress’ intent to adopt the “catalyst theory.” 9 We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic , 511 U. S., at 819; see also Hanrahan, supra, at 758 (“[O]nly when a party has prevailed on the merits of at least some of his claims … has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94–1558, at 8)).

Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive cases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence ( e.g. , whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S–1 and S–2 ).

Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U. S. 717, 734 (1986) , and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. 10 Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U. S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)).

We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) , and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawn[ed] a second litigation of significant dimension,” Garland , 489 U. S., at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced “three thresholds” test required by the “catalyst theory”—whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant’s change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post , at 6–7—it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U. S. 557, 566 (1992) .

Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska , 421 U. S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. §3613(c)(2), and ADA, 42 U. S. C. §12205.

The judgment of the Court of Appeals is

Affirmed.


Notes

1 The original complaint also sought money damages, but petitioners relinquished this claim on January 2, 1998. See App. to Pet. for Cert. A11.

2 The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147.

3 See, e.g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546–550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski Cty. School Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951–952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999).

4 We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U. S. 424, n. 7 (1983), and so approach the nearly identical provisions at issue here.

5 We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dicta in Hewitt v. Helms, 482 U. S. 755, 760 (1987) , alluded to the possibility of attorney’s fees where “voluntary action by the defendant … affords the plaintiff all or some of the relief … sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 194 (2000) . Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid.

6 However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115–116.

7 We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dicta ignores that Maher only “held that fees may be assessed … after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U. S. 717, 720 (1986) . Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994) .

8 Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , that case involved costs, not attorney’s fees. “[B]y the long established practice and universally recognized rule of the common law . . . the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule ‘has long been that attorney’s fees are not ordinarily recoverable,’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967) ). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e.g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here—they lost and their opponents won on the only litigated issue—so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics.

9 Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action … seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429–430, it did so only after finding that the defendant had acted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maher v. Gagne, 448 U. S. 122 (1980) , the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents.

10 Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974) . Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977) .


TOP

Opinion

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Chief Justice Rehnquist delivered the opinion of the Court.

Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.

Buckhannon Board and Care Home, Inc., which operates care homes that provide assisted living to their residents, failed an inspection by the West Virginia Office of the State Fire Marshal because some of the residents were incapable of “self-preservation” as defined under state law. See W. Va. Code §§16–5H–1, 16–5H–2 (1998) (requiring that all residents of residential board and care homes be capable of “self-preservation,” or capable of moving themselves “from situations involving imminent danger, such as fire”); W. Va. Code of State Rules, tit. 87, ser. 1, §14.07(1) (1995) (same). On October 28, 1997, after receiving cease and desist orders requiring the closure of its residential care facilities within 30 days, Buckhannon Board and Care Home, Inc., on behalf of itself and other similarly situated homes and residents (hereinafter petitioners), brought suit in the United States District Court for the Northern District of West Virginia against the State of West Virginia, two of its agencies, and 18 individuals (hereinafter respondents), seeking declaratory and injunctive relief 1 that the “self-preservation” requirement violated the Fair Housing Amendments Act of 1988 (FHAA), 102Stat. 1619, 42 U. S. C. §3601 et seq ., and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, 42 U. S. C. §12101 et seq .

Respondents agreed to stay enforcement of the cease and desist orders pending resolution of the case and the parties began discovery. In 1998, the West Virginia Legislature enacted two bills eliminating the “self-preservation” requirement, see H. R. 4200, I 1998 W. Va. Acts 983–986 (amending regulations); S. 627, II 1998 W. Va. Acts 1198–1199 (amending statute), and respondents moved to dismiss the case as moot. The District Court granted the motion, finding that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments. 2

Petitioners requested attorney’s fees as the “prevailing party” under the FHAA, 42 U. S. C. §3613(c)(2) (“[T]he court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee and costs”), and ADA, 42 U. S. C. §12205 (“[T]he court … , in its discretion, may allow the prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs”). Petitioners argued that they were entitled to attorney’s fees under the “catalyst theory,” which posits that a plaintiff is a “prevailing party” if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. Although most Courts of Appeals recognize the “catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S–1 and S–2 v. State Bd. of Ed. of N. C. , 21 F. 3d 49, 51 (1994) (en banc) (“A person may not be a ‘prevailing party’ … except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”). The District Court accordingly denied the motion and, for the same reason, the Court of Appeals affirmed in an unpublished, per curiam opinion. Judgt. order reported at 203 F. 3d 819 (CA4 2000).

To resolve the disagreement amongst the Courts of Appeals, we granted certiorari, 530 U. S. 1304 (2000) , and now affirm.

In the United States, parties are ordinarily required to bear their own attorney’s fees—the prevailing party is not entitled to collect from the loser. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975) . Under this “American Rule,” we follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Key Tronic Corp. v. United States, 511 U. S. 809, 819 (1994) . Congress, however, has authorized the award of attorney’s fees to the “prevailing party” in numerous statutes in addition to those at issue here, such as the Civil Rights Act of 1964, 78Stat. 259, 42 U. S. C. §2000e–5(k), the Voting Rights Act Amendments of 1975, 89Stat. 402, 42 U. S. C. §1973 l (e), and the Civil Rights Attorney’s Fees Awards Act of 1976, 90Stat. 2641, 42 U. S. C. §1988. See generally Marek v. Chesny, 473 U. S. 1, 43–51 (1985) (Appendix to opinion of Brennan, J., dissenting). 4

In designating those parties eligible for an award of litigation costs, Congress employed the term “prevailing party,” a legal term of art. Black’s Law Dictionary 1145 (7th ed. 1999) defines “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . — Also termed successful party .” This view that a “prevailing party” is one who has been awarded some relief by the court can be distilled from our prior cases. 5

In Hanrahan v. Hampton, 446 U. S. 754, 758 (1980) (per curiam) , we reviewed the legislative history of §1988 and found that “Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims.” Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U. S. 755, 760 (1987) . We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U. S. 103 (1992) . 6

In addition to judgments on the merits, we have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees. See Maher v. Gagne, 448 U. S. 122 (1980) . Although a consent decree does not always include an admission of liability by the defendant, see, e.g. , id. , at 126, n. 8, it nonetheless is a court-ordered “chang[e] [in] the legal relationship between [the plaintiff] and the defendant.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792 (1989) (citing Hewitt , supra, at 760–761, and Rhodes v. Stewart, 488 U. S. 1, 3–4 (1988) (per curiam) ). 7 These decisions, taken together, establish that enforceable judgments on the merits and court-ordered consent decrees create the “material alteration of the legal relationship of the parties” necessary to permit an award of attorney’s fees. 489 U. S., at 792–793; see also Hanrahan , supra , at 757 (“[I]t seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal ” (emphasis added)).

We think, however, the “catalyst theory” falls on the other side of the line from these examples. It allows an award where there is no judicially sanctioned change in the legal relationship of the parties. Even under a limited form of the “catalyst theory,” a plaintiff could recover attorney’s fees if it established that the “complaint had sufficient merit to withstand a motion to dismiss for lack of jurisdiction or failure to state a claim on which relief may be granted.” Brief for United States as Amicus Curiae 27. This is not the type of legal merit that our prior decisions, based upon plain language and congressional intent, have found necessary. Indeed, we held in Hewitt that an interlocutory ruling that reverses a dismissal for failure to state a claim “is not the stuff of which legal victories are made.” 482 U. S., at 760. See also Hanrahan , supra, at 754 (reversal of a directed verdict for defendant does not make plaintiff a “prevailing party”). A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties.

The dissenters chide us for upsetting “long-prevailing Circuit precedent.” Post , at 1 (emphasis added). But, as Justice Scalia points out in his concurrence, several Courts of Appeals have relied upon dicta in our prior cases in approving the “catalyst theory.” See post , at 11–12; see also supra , at 4–5, n. 5. Now that the issue is squarely presented, it behooves us to reconcile the plain language of the statutes with our prior holdings . We have only awarded attorney’s fees where the plaintiff has received a judgment on the merits, see, e.g. , Farrar , supra , at 112, or obtained a court-ordered consent decree, Maher , supra , at 129–130—we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict, see Hanrahan , supra , at 759, or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by “ judicial relief,” Hewitt , supra , at 760 (emphasis added). Never have we awarded attorney’s fees for a nonjudicial “alteration of actual circumstances.” Post , at 13. While urging an expansion of our precedents on this front, the dissenters would simultaneously abrogate the “merit” requirement of our prior cases and award attorney’s fees where the plaintiff’s claim “was at least colorable” and “not . . . groundless.” Post , at 7 (internal quotation marks and citation omitted). We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief. Post , at 13 (internal quotation marks and citation omitted). 8

Petitioners nonetheless argue that the legislative history of the Civil Rights Attorney’s Fees Awards Act supports a broad reading of “prevailing party” which includes the “catalyst theory.” We doubt that legislative history could overcome what we think is the rather clear meaning of “prevailing party”—the term actually used in the statute. Since we resorted to such history in Garland , 489 U. S., at 790, Maher , 448 U. S., at 129, and Hanrahan , 446 U. S., at 756–757, however, we do likewise here.

The House Report to §1988 states that “[t]he phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits, ” H. R. Rep. No. 94–1558, p. 7 (1976), while the Senate Report explains that “parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief,” S. Rep. No. 94–1011, p. 5 (1976). Petitioners argue that these Reports and their reference to a 1970 decision from the Court of Appeals for the Eighth Circuit, Parham v. Southwestern Bell Telephone Co. , 433 F. 2d 421 (1970), indicate Congress’ intent to adopt the “catalyst theory.” 9 We think the legislative history cited by petitioners is at best ambiguous as to the availability of the “catalyst theory” for awarding attorney’s fees. Particularly in view of the “American Rule” that attorney’s fees will not be awarded absent “explicit statutory authority,” such legislative history is clearly insufficient to alter the accepted meaning of the statutory term. Key Tronic , 511 U. S., at 819; see also Hanrahan, supra, at 758 (“[O]nly when a party has prevailed on the merits of at least some of his claims … has there been a determination of the ‘substantial rights of the parties,’ which Congress determined was a necessary foundation for departing from the usual rule in this country that each party is to bear the expense of his own attorney” (quoting H. R. Rep. No. 94–1558, at 8)).

Petitioners finally assert that the “catalyst theory” is necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney’s fees. They also claim that the rejection of the “catalyst theory” will deter plaintiffs with meritorious but expensive cases from bringing suit. We are skeptical of these assertions, which are entirely speculative and unsupported by any empirical evidence ( e.g. , whether the number of suits brought in the Fourth Circuit has declined, in relation to other Circuits, since the decision in S–1 and S–2 ).

Petitioners discount the disincentive that the “catalyst theory” may have upon a defendant’s decision to voluntarily change its conduct, conduct that may not be illegal. “The defendants’ potential liability for fees in this kind of litigation can be as significant as, and sometimes even more significant than, their potential liability on the merits,” Evans v. Jeff D., 475 U. S. 717, 734 (1986) , and the possibility of being assessed attorney’s fees may well deter a defendant from altering its conduct.

And petitioners’ fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant’s change in conduct will not moot the case. 10 Even then, it is not clear how often courts will find a case mooted: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks and citations omitted). If a case is not found to be moot, and the plaintiff later procures an enforceable judgment, the court may of course award attorney’s fees. Given this possibility, a defendant has a strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and costs. Cf. Marek v. Chesny, 473 U. S., at 7 (“[M]any a defendant would be unwilling to make a binding settlement offer on terms that left it exposed to liability for attorney’s fees in whatever amount the court might fix on motion of the plaintiff” (internal quotation marks and citation omitted)).

We have also stated that “[a] request for attorney’s fees should not result in a second major litigation,” Hensley v. Eckerhart, 461 U. S. 424, 437 (1983) , and have accordingly avoided an interpretation of the fee-shifting statutes that would have “spawn[ed] a second litigation of significant dimension,” Garland , 489 U. S., at 791. Among other things, a “catalyst theory” hearing would require analysis of the defendant’s subjective motivations in changing its conduct, an analysis that “will likely depend on a highly factbound inquiry and may turn on reasonable inferences from the nature and timing of the defendant’s change in conduct.” Brief for United States as Amicus Curiae 28. Although we do not doubt the ability of district courts to perform the nuanced “three thresholds” test required by the “catalyst theory”—whether the claim was colorable rather than groundless; whether the lawsuit was a substantial rather than an insubstantial cause of the defendant’s change in conduct; whether the defendant’s change in conduct was motivated by the plaintiff’s threat of victory rather than threat of expense, see post , at 6–7—it is clearly not a formula for “ready administrability.” Burlington v. Dague, 505 U. S. 557, 566 (1992) .

Given the clear meaning of “prevailing party” in the fee-shifting statutes, we need not determine which way these various policy arguments cut. In Alyeska , 421 U. S., at 260, we said that Congress had not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” To disregard the clear legislative language and the holdings of our prior cases on the basis of such policy arguments would be a similar assumption of a “roving authority.” For the reasons stated above, we hold that the “catalyst theory” is not a permissible basis for the award of attorney’s fees under the FHAA, 42 U. S. C. §3613(c)(2), and ADA, 42 U. S. C. §12205.

The judgment of the Court of Appeals is

Affirmed.


Notes

1 The original complaint also sought money damages, but petitioners relinquished this claim on January 2, 1998. See App. to Pet. for Cert. A11.

2 The District Court sanctioned respondents under Federal Rule of Civil Procedure 11 for failing to timely provide notice of the legislative amendment. App. 147.

3 See, e.g., Stanton v. Southern Berkshire Regional School Dist., 197 F. 3d 574, 577, n. 2 (CA1 1999); Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546–550 (CA3 1994); Payne v. Board of Ed., 88 F. 3d 392, 397 (CA6 1996); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski Cty. School Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995); Beard v. Teska, 31 F. 3d 942, 951–952 (CA10 1994); Morris v. West Palm Beach, 194 F. 3d 1203, 1207 (CA11 1999).

4 We have interpreted these fee-shifting provisions consistently, see Hensley v. Eckerhart, 461 U. S. 424, n. 7 (1983), and so approach the nearly identical provisions at issue here.

5 We have never had occasion to decide whether the term “prevailing party” allows an award of fees under the “catalyst theory” described above. Dicta in Hewitt v. Helms, 482 U. S. 755, 760 (1987) , alluded to the possibility of attorney’s fees where “voluntary action by the defendant … affords the plaintiff all or some of the relief … sought,” but we expressly reserved the question, see id., at 763 (“We need not decide the circumstances, if any, under which this ‘catalyst’ theory could justify a fee award”). And though the Court of Appeals for the Fourth Circuit relied upon our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , in rejecting the “catalyst theory,” Farrar “involved no catalytic effect.” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 194 (2000) . Thus, there is language in our cases supporting both petitioners and respondents, and last Term we observed that it was an open question here. See ibid.

6 However, in some circumstances such a “prevailing party” should still not receive an award of attorney’s fees. See Farrar v. Hobby, supra, at 115–116.

7 We have subsequently characterized the Maher opinion as also allowing for an award of attorney’s fees for private settlements. See Farrar v. Hobby, supra, at 111; Hewitt v. Helms, supra, at 760. But this dicta ignores that Maher only “held that fees may be assessed … after a case has been settled by the entry of a consent decree.” Evans v. Jeff D., 475 U. S. 717, 720 (1986) . Private settlements do not entail the judicial approval and oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual settlement will often be lacking unless the terms of the agreement are incorporated into the order of dismissal. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 (1994) .

8 Although the dissenters seek support from Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , that case involved costs, not attorney’s fees. “[B]y the long established practice and universally recognized rule of the common law . . . the prevailing party is entitled to recover a judgment for costs,” id., at 387, but “the rule ‘has long been that attorney’s fees are not ordinarily recoverable,’ ” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 257 (1975) (quoting Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967) ). Courts generally, and this Court in particular, then and now, have a presumptive rule for costs which the Court in its discretion may vary. See, e.g., this Court’s Rule 43.2 (“If the Court reverses or vacates a judgment, the respondent or appellee shall pay costs unless the Court otherwise orders”). In Mansfield, the defendants had successfully removed the case to federal court, successfully opposed the plaintiffs’ motion to remand the case to state court, lost on the merits of the case, and then reversed course and successfully argued in this Court that the lower federal court had no jurisdiction. The Court awarded costs to the plaintiffs, even though they had lost and the defendants won on the jurisdictional issue, which was the only question this Court decided. In no ordinary sense of the word can the plaintiffs have been said to be the prevailing party here—they lost and their opponents won on the only litigated issue—so the Court’s use of the term must be regarded as a figurative rather than a literal one, justifying the departure from the presumptive rule allowing costs to the prevailing party because of the obvious equities favoring the plaintiffs. The Court employed its discretion to recognize that the plaintiffs had been the victims of the defendants’ legally successful whipsawing tactics.

9 Although the Court of Appeals in Parham awarded attorney’s fees to the plaintiff because his “lawsuit acted as a catalyst which prompted the [defendant] to take action … seeking compliance with the requirements of Title VII,” 433 F. 2d, at 429–430, it did so only after finding that the defendant had acted unlawfully, see id., at 426 (“We hold as a matter of law that [plaintiff’s evidence] established a violation of Title VII”). Thus, consistent with our holding in Farrar, Parham stands for the proposition that an enforceable judgment permits an award of attorney’s fees. And like the consent decree in Maher v. Gagne, 448 U. S. 122 (1980) , the Court of Appeals in Parham ordered the District Court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” 433 F. 2d, at 429. Clearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties as defined by our precedents.

10 Only States and state officers acting in their official capacity are immune from suits for damages in federal court. See, e.g., Edelman v. Jordan, 415 U. S. 651 (1974) . Plaintiffs may bring suit for damages against all others, including municipalities and other political subdivisions of a State, see Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977) .


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.


TOP

Concurrence

BUCKHANNON BOARD AND CARE HOME, INC., et al., PETITIONERS v. WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES et al.

on writ of certiorari to the united states court of appeals for the fourth circuit


[May 29, 2001]

Justice Scalia , with whom Justice Thomas joins, concurring.

I join the opinion of the Court in its entirety, and write to respond at greater length to the contentions of the dissent.

I

“Prevailing party” is not some newfangled legal term invented for use in late-20th-century fee-shifting statutes. “[B]y the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs … .” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387 (1884) .

“Costs have usually been allowed to the prevailing party, as incident to the judgment, since the statute 6 Edw. I, c. 1, §2, and the same rule was acknowledged in the courts of the States, at the time the judicial system of the United States was organized. . . .

“Weighed in the light of these several provisions in the Judiciary Act [of 1789], the conclusion appears to be clear that Congress intended to allow costs to the prevailing party, as incident to the judgment . . . .” The Baltimore, 8 Wall. 377, 388, 390 (1869).

The term has been found within the United States Statutes at Large since at least the Bankruptcy Act of 1867, which provided that “[t]he party prevailing in the suit shall be entitled to costs against the adverse party.” Act of Mar. 2, 1867, ch. 176, §24, 14Stat. 528. See also Act of Mar. 3, 1887, ch. 359, §15, 24Stat. 508 (“If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue”). A computer search shows that the term “prevailing party” appears at least 70 times in the current United States Code; it is no stranger to the law.

At the time 42 U. S. C. §1988 was enacted, I know of no case, state or federal, in which—either under a statutory invocation of “prevailing party,” or under the common-law rule—the “catalyst theory” was enunciated as the basis for awarding costs. Indeed, the dissent cites only one case in which (although the “catalyst theory” was not expressed) costs were awarded for a reason that the catalyst theory would support, but today’s holding of the Court would not: Baldwin v. Chesapeake & Potomac Tel. Co. , 156 Md. 552, 557, 144 A. 703, 705 (1929), where costs were awarded because “the granting of [appellee’s] motion to dismiss the appeal has made it unnecessary to inquire into the merits of the suit, and the dismissal is based on an act of appellee performed after both the institution of the suit and the entry of the appeal.” And that case is irrelevant to the meaning of “prevailing party,” because it was a case in equity . While, as Mansfield observed, costs were awarded in actions at law to the “prevailing party,” see 111 U. S., at 387, an equity court could award costs “as the equities of the case might require,” Getz v. Johnston , 145 Md. 426, 433, 125 A. 689, 691 (1924). See also Horn v. Bohn , 96 Md. 8, 12–13, 53 A. 576, 577 (1902) (“The question of costs in equity cases is a matter resting in the sound discretion of the Court, from the exercise of which no appeal will lie”) (internal quotation marks and citation omitted). 1 The other state or state-law cases the dissent cites as awarding costs despite the absence of a judgment all involve a judicial finding—or its equivalent, an acknowledgement by the defendant—of the merits of plaintiff’s case. 2 Moreover, the dissent cites not a single case in which this Court—or even any other federal court applying federal law prior to enactment of the fee-shifting statutes at issue here—has regarded as the “prevailing party” a litigant who left the courthouse emptyhanded. If the term means what the dissent contends, that is a remarkable absence of authority.

That a judicial finding of liability was an understood requirement of “prevailing” is confirmed by many statutes that use the phrase in a context that presumes the existence of a judicial ruling. See, e.g. , 5 U. S. C. §1221(g)(2) (“[i]f an employee . . . is the prevailing party . . . and the decision is based on a finding of a prohibited personnel practice”); §1221(g)(3) (providing for an award of attorney’s fees to the “prevailing party,” “regardless of the basis of the decision”); §7701(b)(2)(A) (allowing the prevailing party to obtain an interlocutory award of the “relief provided in the decision”); 8 U. S. C. §1324b(h) (permitting the administrative law judge to award an attorney’s fee to the prevailing party “if the losing party’s argument is without reasonable foundation in law and fact”); 18 U. S. C. §1864(e) (1994 ed., Supp. V) (allowing the district court to award the prevailing party its attorney’s fee “in addition to monetary damages”).

The dissent points out, post , at 8–9, that the Prison Litigation Reform Act of 1995 limits attorney’s fees to an amount “ ‘proportionately related to the court ordered relief for the violation.’ ” This shows that sometimes Congress does explicitly “tightly bind fees to judgments,” post , at 8, inviting (the dissent believes) the conclusion that “prevailing party” does not fasten fees to judgments. That conclusion does not follow from the premise. What this statutory provision demonstrates, at most , is that use of the phrase “prevailing party” is not the only way to impose a requirement of court-ordered relief. That is assuredly true. But it would be no more rational to reject the normal meaning of “prevailing party” because some statutes produce the same result with different language, than it would be to conclude that, since there are many synonyms for the word “jump,” the word “jump” must mean something else.

It is undoubtedly true, as the dissent points out by quoting a nonlegal dictionary, see post , at 12–13, that the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art. It has traditionally—and to my knowledge, prior to enactment of the first of the statutes at issue here, invariably —meant the party that wins the suit or obtains a finding (or an admission) of liability. Not the party that ultimately gets his way because his adversary dies before the suit comes to judgment; not the party that gets his way because circumstances so change that a victory on the legal point for the other side turns out to be a practical victory for him; and not the party that gets his way because the other side ceases (for whatever reason) its offensive conduct. If a nuisance suit is mooted because the defendant asphalt plant has gone bankrupt and ceased operations, one would not normally call the plaintiff the prevailing party. And it would make no difference, as far as the propriety of that characterization is concerned, if the plant did not go bankrupt but moved to a new location to avoid the expense of litigation. In one sense the plaintiff would have “prevailed”; but he would not be the prevailing party in the lawsuit. Words that have acquired a specialized meaning in the legal context must be accorded their legal meaning.

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States , 342 U. S. 246, 263 (1952) .

The cases cited by the dissent in which we have “not treated Black’s Law Dictionary as preclusively definitive,” post , at 8, are inapposite. In both Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U. S. 380 (1993) , and United States v. Rodgers, 466 U. S. 475 (1984) , we rejected Black’s definition because it conflicted with our precedent. See Pioneer , supra , at 395–396 n. 14; Rodgers , supra , at 480. We did not, as the dissent would do here, simply reject a relevant definition of a word tailored to judicial settings in favor of a more general definition from another dictionary.

II

The dissent distorts the term “prevailing party” beyond its normal meaning for policy reasons, but even those seem to me misguided. They rest upon the presumption that the catalyst theory applies when “ the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint,” post , at 1 (emphasis added). As the dissent would have it, by giving the term its normal meaning the Court today approves the practice of denying attorney’s fees to a plaintiff with a proven claim of discrimination, simply because the very merit of his claim led the defendant to capitulate before judgment. That is not the case. To the contrary, the Court approves the result in Parham v. Southwestern Bell Tel. Co ., 433 F. 2d 421 (CA8 1970), where attorney’s fees were awarded “after [a] finding that the defendant had acted unlawfully,” ante , at 9, and n. 9. 3 What the dissent’s stretching of the term produces is something more, and something far less reasonable: an award of attorney’s fees when the merits of plaintiff’s case remain unresolved—when, for all one knows, the defendant only “abandon[ed] the fray” because the cost of litigation—either financial or in terms of public relations—would be too great. In such a case, the plaintiff may have “prevailed” as Webster’s defines that term—“gain[ed] victory by virtue of strength or superiority,” see post , at 12. But I doubt it was greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit , that Congress intended to reward.

It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent’s outcome and the Court’s: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney’s fees to some plaintiffs who are no less “deserving” of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist.

It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney’s fees in cases resolved through such mechanisms. See ante , at 5–6 (citing cases). Our decision that the statute makes plaintiff a “prevailing party” under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980) , and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) ( Scalia , J.) (opining that “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail” (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit . There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit . Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term “prevailing party” (and the potential injustice that Maher produces) beyond what the normal meaning of that term in the litigation context can conceivably support.

The dissent points out that petitioners’ object in bringing their suit was not to obtain “a judge’s approbation,” but to “stop enforcement of a [West Virginia] rule,” post, at 13; see also Hewitt , supra , at 761. True enough. But not even the dissent claims that if a petitioner accumulated attorney’s fees in preparing a threatened complaint, but never filed it prior to the defendant’s voluntary cessation of its offending behavior, the wannabe-but-never-was plaintiff could recover fees; that would be countertextual, since the fee-shifting statutes require that there be an “action” or “proceeding,” see 42 U. S. C. §3613(d); §1988(b) (1994 ed., Supp. V)—which in legal parlance (though not in more general usage) means a lawsuit . See post , at 23 (concluding that a party should be deemed prevailing as a result of a “ postcomplaint payment or change in conduct”). Does that not leave achievement of the broad congressional purpose identified by the dissent just as unsatisfactorily incomplete as the failure to award fees when there is no decree? Just as the dissent rhetorically asks why (never mind the language of the statute) Congress would want to award fees when there is a judgment, but deny fees when the defendant capitulates on the eve of judgment; so also it is fair for us to ask why Congress would want to award fees when suit has been filed, but deny fees when the about-to-be defendant capitulates under the threat of filing. Surely, it cannot be because determination of whether suit was actually contemplated and threatened is too difficult. All the proof takes is a threatening letter and a batch of timesheets. Surely that obstacle would not deter the Congress that (according to the dissent) was willing to let district judges pursue that much more evasive will-o’-the-wisp called “catalyst.” (Is this not why we have district courts?, asks the dissent, post , at 19.) My point is not that it would take no more twisting of language to produce prelitigation attorney’s fees than to produce the decreeless attorney’s fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical even handedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term “prevailing party” suggests the latter rather than the former. One does not prevail in a suit that is never determined.

The dissent's ultimate worry is that today’s opinion will “impede access to court for the less well-heeled,” post , at 1. But, of course, the catalyst theory also harms the “less well-heeled,” putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of “the enforcement of federal law by private attorneys general,” ibid . Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail “on the merits,” or at least to those who achieve an enforceable “alteration of the legal relationship of the parties,” than by permitting the open-ended inquiry approved by the dissent. 4

III

The dissent points out that the catalyst theory has been accepted by “the clear majority of Federal Circuits,” post , at 2. But our disagreeing with a “clear majority” of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts. See, e.g. , McNally v. United States , 483 U. S. 350, 365 (1987) ( Stevens , J., dissenting) (the Court’s decision contradicted “[e]very court to consider” the question).

The dissent’s insistence that we defer to the “clear majority” of Circuit opinion is particularly peculiar in the present case, since that majority has been nurtured and preserved by our own misleading dicta (to which I, unfortunately, contributed). Most of the Circuit Court cases cited by the dissent, post , at 6, and n. 5, as reaffirming the catalyst theory after our decision in Farrar v. Hobby, 506 U. S. 103 (1992) , relied on our earlier opinion in Hewitt . See Marbley v. Bane , 57 F. 3d 224, 234 (CA2 1995) (relying on Hewitt to support catalyst theory); Payne v. Board of Ed. , 88 F. 3d 392, 397 (CA6 1996) (same); Baumgartner v. Harrisburg Housing Auth ., 21 F. 3d 541, 548 (CA3 1994) (explicitly rejecting Farrar in favor of Hewitt ); Zinn v. Shalala , 35 F. 3d 273, 274–276 (CA7 1994) (same); Beard v. Teska , 31 F. 3d 942, 950–952 (CA10 1994) (same); Morris v. West Palm Beach , 194 F. 3d 1203, 1207 (CA11 1999) (same). Deferring to our colleagues’ own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. 5 Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not “disrespect,” but a most becoming (and well-deserved) humility.

* * *

The Court today concludes that a party cannot be deemed to have prevailed, for purposes of fee-shifting statutes such as 42 U. S. C. §§1988(c)(2), unless there has been an enforceable “alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper basis for departing from that normal meaning. Congress is free, of course, to revise these provisions—but it is my guess that if it does so it will not create the sort of inequity that the catalyst theory invites, but will require the court to determine that there was at least a substantial likelihood that the party requesting fees would have prevailed.


Notes

1 The jurisdiction that issued Baldwin has used the phrase “prevailing party” frequently (including in equity cases) to mean the party acquiring a judgment. See Getz v. Johnston, 145 Md. 426, 434, 125 A. 689, 691–692 (1924) (an equity decision noting that “ [O]n reversal, following the usual rule, the costs will generally go to the prevailing party, that is, to the appellant” (internal quotation marks and citation omitted)). See also, e.g., Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974) (“Md. Rule 604a provides: ‘Unless otherwise provided by law, or ordered by the court, the prevailing party shall be entitled to the allowance of court costs, which shall be taxed by the clerk and embraced in the judgment’ ”); Fritts v. Fritts, 11 Md. App. 195, 197, 273 A. 2d 648, 649 (1971) (“We have viewed the evidence, as we must, in a light most favorable to appellee as the prevailing party below”); Chillum-Adelphi Volunteer Fire- Dept., Inc. v. Button & Goode, Inc., 242 Md. App. 509, 516, 219 A. 2d 801, 805 (1966) (“At common law, an arbitration award became a cause of action in favor of the prevailing party”); Burch v. Scott, 1829 WL 1006, *15 (Md. Ct. App., Dec. 1829) (“[T]he demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite”).

2 Our decision to award costs in Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884) , does not “tu[g] against the restrictive rule today’s decision installs,” post, at 9. Defendants had removed the case to federal court, and after losing on the merits, sought to have us vacate the judgment because the basis for removal (diversity of citizenship) was absent. We concluded that because defendants were responsible for the improper removal in the first place, our judgment’s “effect [was] to defeat the entire proceeding which they originated and have prosecuted,” id., at 388. In other words, plaintiffs “prevailed” because defendants’ original position as to jurisdiction was defeated. In Ficklen v. Danville, 146 Va. 426, 438–439 132 S. E. 705, 706 (1926), appellants were deemed to have “substantially prevail[ed]” on their appeal because appellees “abandoned their contention made before the lower court,” i.e., “abandoned their intention and desire to rely upon the correctness of the trial court’s decree.” In Talmage v. Monroe, 119 P. 526 (Cal. App. 1911), costs were awarded after the defendant complied with an alternative writ of mandamus; it was the writ, not the mere petition, which led to defendant’s action. Scatcherd v. Love, 166 F. 53 (CA6 1908), Wagner v. Wagner, 9 Pa. 214 (1848), and other cases cited by the dissent represent a rule adopted in some States that by settling a defendant “acknowledged his liability,” Scatcherd, supra, at 56; see also Wagner, supra, at 215. That rule was hardly uniform among the States. Compare 15 C. J. 89, §167 (1918) (citing cases from 13 States which hold that a “settlement is equivalent to a confession of judgment”), with id., at 89–90, §168, and n. a (citing cases from 11 States which hold that under a settlement “plaintiff cannot recover costs,” because “ [c]osts . . . can only follow a judgment or final determination of the action ” (internal quotation marks and citation omitted)). I do not think these state cases (and Scatcherd, a federal case applying state law) justify expanding the federal meaning of “prevailing party” (based on a “confession of judgment” fiction) to include the party accepting an out-of-court settlement—much less to expand it beyond settlements, to the domain of the “catalyst theory.” The only case cited by the dissent in which the conclusion of acknowledgment of liability was rested on something other than a settlement is Board of Ed. of Madison County v. Fowler, 192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the states that considered settlement an acknowledgment of liability, analogized compliance with what had been sought by a mandamus suit to a settlement. This is a slim reed upon which to rest the broad conclusion of a catalyst theory.

3 The dissent incorrectly characterizes Parham as involving an undifferentiated “finding or retention of jurisdiction,” post, at 17, n. 11. In fact, Parham involved a finding that defendant had discriminated, and jurisdiction was retained so that that finding could be given effect, in the form of injunctive relief, should the defendant ever backslide in its voluntary provision of relief to plaintiffs. Jurisdiction was not retained to determine whether there had been discrimination, and I do not read the Court’s opinion as suggesting a fee award would be appropriate in those circumstances. The dissent notes that two other cases were cited in Senate legislative history (Parham is cited in legislative history from both the Senate and House) which it claims support the catalyst theory. If legislative history in general is a risky interpretive tool, legislative history from only one legislative chamber—and consisting of the citation of Court of Appeals cases that surely few if any Members of Congress read—is virtually worthless. In any event, Kopet v. Esquire Realty Co., 523 F. 2d 1005 (CA2 1975), does not support the catalyst theory because defendant’s voluntary compliance was not at issue. Fees were awarded on the dubious premise that discovery uncovered some documents of potential use in other litigation, making this more a case of an award of interim fees. Thomas v. Honeybrook Mines, 428 F. 2d 981 (CA3 1970), is also inapposite. There, the question was whether counsel for union members whose fruitless efforts to sue the union had nonetheless spurred the union to sue the employer, should be paid out of a fund established by the union’s victory. Whether the union members were “prevailing parties” in the union suit, or whether they were entitled to attorney’s fees as “prevailing parties” in the earlier suit against the union, was not even at issue.

4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 15, n. 9 (citing a House Report for the proposition that fee-shifting statutes are “ ‘designed to give [‘victims of civil rights violation’] access to the judicial process’ ” (emphasis added)); ibid. (citing a Senate Report: “ ‘[I]f those who violate the Nation’s fundamental laws are not to proceed with impunity,’ ” fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante at 6–7, the catalyst theory’s purported “merit test”—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.

5 That a few cases adopting the catalyst theory predate Hewitt v. Helms, 482 U. S. 755 (1987) , see post, at 5, and n. 4, is irrelevant to my point. Absent our dicta in Hewitt, and in light of everything else we have said on this topic, see ante, at 5–6, it is unlikely that the catalyst theory would have achieved that universality of acceptance by the Courts of Appeals upon which the dissent relies.