OCTOBER TERM, 2000
Syllabus
BUCKHANNON BOARD & CARE HOME, INC., ET AL.
v. WEST
VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-1848. Argued February 27, 200l-Decided May 29, 2001
Buckhannon Board and Care Home, Inc., which operates assisted
living residences, failed an inspection by the West Virginia fire
marshal's office because some residents were incapable of
"self-preservation" as defined by state law. After receiving orders
to close its facilities, Buckhannon and others (hereinafter
petitioners) brought suit in Federal District Court against the
State and state agencies and officials (hereinafter respondents),
seeking declaratory and injunctive relief that the
"selfpreservation" requirement violated the Fair Housing Amendments
Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990
(ADA). Respondents agreed to stay the orders pending the case's
resolution. The state legislature then eliminated the
"self-preservation" requirement, and the District Court granted
respondents' motion to dismiss the case as moot. Petitioners
requested attorney's fees as the "prevailing party" under the FHAA
and ADA, basing their entitlement on 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. As the Fourth Circuit had previously
rejected the "catalyst theory," the District Court denied the
motion, and the Fourth Circuit affirmed.
Held: The "catalyst theory" is not a permissible basis
for the award of attorney's fees under the FHAA and ADA. Under the
"American Rule," parties are ordinarily required to bear their own
attorney's fees, and courts 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. Congress has employed the legal term of art "prevailing party"
in numerous statutes authorizing awards of attorney's fees. A
"prevailing party" is one who has been awarded some relief by a
court. See,
e. g., Hanrahan v.
Hampton, 446 U. S. 754, 758. Both
judgments on the merits and court-ordered consent decrees create a
material alteration of the parties' legal relationship and thus
permit an award. The "catalyst theory," however, allows an award
where there is no judicially sanctioned change in the parties'
legal relationship. A defendant's voluntary change in conduct,
although per-
599
haps accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial
imprimatur on the
change. The legislative history cited by petitioners is at best
ambiguous as to the availability of the "catalyst theory"; and,
particularly in view of the "American Rule," such history is
clearly insufficient to alter the clear meaning of "prevailing
party" in the fee-shifting statutes. Given this meaning, this Court
need not determine which way petitioners' various policy arguments
cut. pp. 602-610.
203 F.3d
819, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J.,
filed a concurring opinion, in which THOMAS, J., joined,
post, p. 610. GINSBURG, J., filed a dissenting opinion, in
which STEVENS, SOUTER, and BREYER, JJ., joined,
post, p.
622.
Webster J.
Arceneaux III argued the cause for
petitioners.
With him on the briefs was
Brian A. Glasser.
Beth S. Brinkmann argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were former
Solicitor General Waxman, Acting Solicitor General Underwood,
Assistant Attorney General Lee, Jeffrey P. Minear, Jessica Dunsay
Silver, and Kevin K. Russell.
David P. Cleek, Senior Deputy Attorney General of West
Virginia, argued the cause for respondents. With him on the brief
was
Darrell v:
McGraw, Jr., Attorney General.*
*Briefs of amici curiae urging reversal were filed for the
Friends of the Earth et al. by Bruce J. Terris, Carolyn Smith
Pravlik, and Sarah A. Adams; and for Public Citizen et al. by
Steven R. Shapiro, Harvey Grossman, Brian Wolfman, and Arthur B.
Spitzer.
Briefs of
amici curiae urging affirmance were filed for
the State of Maryland et al. by J.
Joseph Curran, Jr.,
Attorney General of Maryland, and
Maureen M. Dove and
Andrew H. Baida, Assistant Attorneys General, and by the
Attorneys General for their respective States as follows:
Bill Pryor of Alabama, Bill Lockyer of California, Ken Salazar
of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of
Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas,
Richard P. Ieyoub of Louisiana, Thomas F. Reilly of Massachusetts,
Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana,
Don Stenberg of Ne-
600
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
braska,
Philip T. McLaughlin of New Hampshire,
Michael F.
Easley of North Carolina,
Heidi
Heitkamp of North Dakota,
Betty D. Montgomery of Ohio,
W A. Drew Edmondson of Oklahoma,
Hardy Myers of
Oregon,
D. Michael Fisher of Pennsylvania,
Sheldon
Whitehouse of Rhode Island,
Charles M. Condon of South
Carolina,
Mark Barnett of South Dakota,
Paul G.
Summers of Tennessee,
John Cornyn of Texas,
Jan
Graham of Utah, and
Mark L. Earley of Virginia; for the
Alliance of Automobile Manufacturers, Inc., by
Charles A.
Newman and
Jerome H. Block; for Los Angeles County et
al. by
Elwood Lui and
Jeffrey S.
Sutton; for
the National Conference of State Legislatures et al. by
Richard
Ruda, James I. Crowley, Jacqueline G.
Cooper, and
Paul J.
Watford; and for the Pacific Legal Foundation
by
M. Reed Hopper.
601
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 reliefl that the "self-preservation" requirement
violated the Fair Housing Amendments Act of 1988 (FHAA), 102 Stat.
1619, 42 U. S. C. § 3601
et seq., and the Americans with
Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101
et seq.
Respondents agreed to stay enforcement of the cease-anddesist
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 S. 627, I 1998
W. Va. Acts 983-986 (amending regulations); H. R. 4200, 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. AI-
1 The original complaint also sought money damages, but
petitioners relinquished this claim on January 2, 1998. See App. to
Pet. for Cert. All. 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.
602
though most Courts of Appeals recognize the "catalyst theory," 3
the Court of Appeals for the Fourth Circuit rejected it in
S-l
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, 78 Stat. 259, 42 U. S. C. § 2000e5(k), the Voting Rights Act
Amendments of 1975, 89 Stat. 402, 42 U. S. C. § 1973l(e), and the
Civil Rights Attorney's
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, 546550 (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 (CAW 1994); Morris v. West Palm Beach,
194 F.3d
1203, 1207 (CAll 1999).
603
Fees Awards Act of 1976, 90 Stat. 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 <in
certain cases, the court will award attorney's fees to the
prevailing party>. - 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."
4 We have interpreted these fee-shifting provisions
consistently, see
Hensley v.
Eckerhart, 461 U. S. 424, 433, n. 7
(1983), and so approach the nearly identical provisions at issue
here.
5We have never had occasion to decide whether the term
"prevailing party" allows an award of fees under the "catalyst
theory" described above. Dictum 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 (TOG), 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.
604
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)).
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.
7We 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 dictum
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).
605
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 622 (opinion of
GINSBURG, J.) (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 621-622; see also
supra, at 603, 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
606
verdict, see
Hanrahan, 446 U. S., 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 633 (dissenting opinion). 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 627
(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 634 (internal
quotation marks and citation omitted).8
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
607
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, supra, at 756757, 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. 941011, 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 his-
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
608
tory 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 8-1
and 8-2).
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
support a theory of fee shifting untethered to a material
alteration in the legal relationship of the parties as defined by
our precedents.
609
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 (TOG), 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.
Ghesny, 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, supra, 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."
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).
610
SCALIA, J., concurring
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 627-628 (dissenting
opinion)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 feeshifting
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.
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.
611
"[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, 14
Stat. 528. See also Act of Mar. 3, 1887, ch. 359, § 15,24 Stat. 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)
612
SCALIA, J., concurring
costs were awarded for a reason that the catalyst theory would
support, but to day'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)).l The other state or state-law cases
the dis-
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 "on 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").
613
sent cites as awarding costs despite the absence of a judgment
all involve a judicial finding-or its equivalent, an acknowledgment
by the defendant-of the merits of plaintiff's case.2 Moreover, the
dissent cites
not a single case in
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 630 (GINSBURG, J., dissenting).
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,"
111 U. S., 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., Costs § 167,
p. 89 (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 Cty. v.
Fowler,
192 Ga. 35, 14 S. E. 2d 478 (1941), which, in one of the States
that considered settlement an acknowledgment
614
SCALIA, J., concurring
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 629, 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,"
ibid., 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 courtordered relief.
That is assuredly true. But it would be no
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.
615
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 633-634, 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,
invariablymeant 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
616
SCALIA, J., concurring
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
628-629, 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 622 (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 607-
617
608, 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 the 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 relationswould 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 633. 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.
3 The dissent incorrectly characterizes
Parham as
involving undifferentiated "findings or retention of jurisdiction,"
post, at 637, n. 11. In fact,
Parham involved a
finding that the 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
the 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.
618
SCALIA, J., concurring
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 604
(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 courtapproved 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 mean-
619
ing 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 634; 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 643
(concluding that a party should be deemed prevailing as a result of
a
"postcomplaint payment or change in conduct" (emphasis
added)). 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 639640.) My point is not
that it would take no more twisting
620
SCALIA, J., concurring
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 evenhandedness.
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
623. But, of course, the catalyst theory also harms the "less
wellheeled," 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
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 636, 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 605, 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.
621
III
The dissent points out that the catalyst theory has been
accepted by "the clear majority of Federal Circuits,"
ibid.
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 longstanding 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 Court of Appeals cases cited by the dissent,
post, at
627, 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 (CAlO 1994) (same);
Morris v.
West Palm
Beach, 194 F.3d
1203, 1207 (CAll 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 Ap-
5 That a few cases adopting the catalyst theory predate
Hewitt v.
Helms, 482 U. S. 755 (1987), see
post, at 625-626, 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 603-604, it is
unlikely that the catalyst theory would have achieved that
universality of acceptance by the Courts of Appeals upon which the
dissent relies.
622
peals 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, 3613(c)(2) (1994 ed. and Supp. V), 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.
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE SOUTER, and
JUSTICE BREYER join, dissenting.
The Court today holds that a plaintiff whose suit prompts the
precise relief she seeks does not "prevail," and hence cannot
obtain an award of attorney's fees, unless she also secures a court
entry memorializing her victory. The entry need not be a judgment
on the merits. Nor need there be any finding of wrongdoing. A
court-approved settlement will do.
The Court's insistence that there be a document filed in court-a
litigated judgment or court-endorsed settlementupsets
long-prevailing Circuit precedent applicable to scores of federal
fee-shifting statutes. The decision allows a defendant to escape a
statutory obligation to pay a plaintiff's counsel fees, even though
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. Concomitantly, the
Court's constricted
623
definition of "prevailing party," and consequent rejection of
the "catalyst theory," impede access to court for the less well
heeled, and shrink the incentive Congress created for the
enforcement of federal law by private attorneys general.
In my view, the "catalyst rule," as applied by the clear
majority of Federal Circuits, is a key component of the feeshifting
statutes Congress adopted to advance enforcement of civil rights.
Nothing in history, precedent, or plain English warrants the anemic
construction of the term "prevailing party" the Court today
imposes.
I
Petitioner Buckhannon Board and Care Home, Inc. (Buckhannon),
operates residential care homes for elderly persons who need
assisted living, but not nursing services. Among Buckhannon's
residents in October 1996 was 102-year-old Dorsey Pierce. Pierce
had resided at Buckhannon for some four years. Her daughter lived
nearby, and the care provided at Buckhannon met Pierce's needs.
Until 1998, West Virginia had a "self-preservation" rule
prohibiting homes like Buckhannon from accommodating persons unable
to exit the premises without assistance in the event of a fire.
Pierce and two other Buckhannon residents could not get to a fire
exit without aid. Informed of these residents' limitations, West
Virginia officials proceeded against Buckhannon for noncompliance
with the self-preservation rule. On October 18, 1996, three orders
issued, each commanding Buckhannon to "cease operating ... and to
effect relocation of [its] existing population within thirty (30)
days." App. 46-53.
Ten days later, Buckhannon and Pierce, together with an
organization of residential homes and another Buckhannon resident
(hereinafter plaintiffs), commenced litigation in Federal District
Court to overturn the cease-and-desist orders and the
self-preservation rule on which they rested. They sued the State,
state agencies, and 18 officials (hereinafter defendants) alleging
that the rule discriminated
624
against persons with disabilities in violation of the Fair
Housing Amendments Act of 1988 (FHAA), 42 U. s. C. § 3601
et
seq., and the Americans with Disabilities Act of 1990 (ADA), 42
U. s. C. § 12101
et seq. Plaintiffs sought an immediate
order stopping defendants from closing Buckhannon's facilities,
injunctive relief permanently barring enforcement of the
self-preservation requirement, damages, and attorney's fees.
On November 1, 1996, at a hearing on plaintiffs' request for a
temporary restraining order, defendants agreed to the entry of an
interim order allowing Buckhannon to remain open without changing
the individual plaintiffs' housing and care. Discovery followed. On
January 2, 1998, facing the state defendants' sovereign immunity
pleas, plaintiffs stipulated to dismissal of their demands for
damages. In February 1998, in response to defendants' motion to
dispose of the remainder of the case summarily, the District Court
determined that plaintiffs had presented triable claims under the
FHAA and ADA.
Less than a month after the District Court found that plaintiffs
were entitled to a trial, the West Virginia Legislature repealed
the self-preservation rule. Plaintiffs still allege, and seek to
prove, that their suit triggered the statutory repeal. After the
rule's demise, defendants moved to dismiss the case as moot, and
plaintiffs sought attorney's fees as "prevailing parties" under the
FHAA, 42 U. s. C. § 3613(c)(2), and the ADA, 42 U. s. C. §
12205.1
1 The FHAA provides: "In a civil action ... , the court, in its
discretion, may allow the prevailing party ... a reasonable
attorney's fee and costs." 42 U. S. C. § 3613(c)(2). Similarly, the
ADA provides: "In any action ..., the court ... , in its
discretion, may allow the prevailing party ... a reasonable
attorney's fee, including litigation expenses, and costs ... " 42
U. S. C. § 12205. These ADA and FHAA provisions are modeled on
other "prevailing party" statutes, notably the Civil Rights
Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988 (1994 ed.
and Supp. V). See H. R. Rep. No. 101-485, pt. 2, p. 140 (1991)
(ADA); H. R. Rep. No. 100-711, pp. 16-17, n. 20 (1988) (FHAA).
Section 1988 was "patterned upon the
625
Finding no likelihood that West Virginia would reenact the
self-preservation rule, the District Court agreed that the State's
action had rendered the case moot. Turning to plaintiffs'
application for attorney's fees, the District Court followed Fourth
Circuit precedent requiring the denial of fees unless termination
of the action was accompanied by a judgment, consent decree, or
settlement.2 Plaintiffs did not appeal the mootness determination,
and the Fourth Circuit affirmed the denial of attorney's fees. In
sum, plaintiffs were denied fees not because they failed to achieve
the relief they sought. On the contrary, they gained the very
change they sought through their lawsuit when West Virginia
repealed the self-preservation rule that would have stopped
Buckhannon from caring for people like Dorsey Pierce.3
Prior to 1994, every Federal Court of Appeals (except the
Federal Circuit, which had not addressed the issue) concluded that
plaintiffs in situations like Buckhannon's and
attorney's fees provisions contained in Titles II and VII of the
Civil Rights Act of 1964, 42 U. S. C. §§2000a-3(b) and 2000e-5(k),
and §402 of the Voting Rights Act Amendments of 1975, 42 U. S. C. §
1973l(e)." Hensley v.
Eckerhart, 461 U. S. 424, 433, n. 7
(1983) (citing
Hanrahan v.
Hampton, 446 U. S. 754, 758, n. 4
(1980)
(per curiam)). In accord with congressional intent,
we have interpreted these fee-shifting provisions consistently
across statutes. The Court so observes. See
ante, at 603, n.
4. Notably, the statutes do not mandate fees, but provide for their
award "in [the court's] discretion."
2 On plaintiffs' motion, the District Court sanctioned
defendants under Federal Rule of Civil Procedure 11 for failing
timely to notify plaintiffs "that the proposed [repeal of the
self-preservation rule] was progressing successfully at several
stages ... during the pendency of [the] litigation." App. 144. In
their Rule 11 motion, plaintiffs requested fees and costs totaling
$62,459 to cover the expense of litigating after defendants became
aware, but did not disclose, that elimination of the rule was
likely. In the alternative, plaintiffs sought $3,252 to offset fees
and expenses incurred in litigating the Rule 11 motion. The
District Court, stating that "the primary purpose of Rule 11 is to
deter and not to compensate," awarded the smaller sum. App.
147.
3 Pierce remained a Buckhannon resident until her death on
January 3,1999.
626
GINSBURG, J., dissenting
Pierce's could obtain a fee award if their suit acted as a
"catalyst" for the change they sought, even if they did not obtain
a judgment or consent decree.4 The Courts of Appeals found it
"clear that a party may be considered to have prevailed even when
the legal action stops short of final ... judgment due to ...
intervening mootness."
Grano v.
Barry, 783 F.2d
1104, 1108
(CADC 1986). Interpreting the term
"prevailing party" in "a practical sense,"
Stewart v.
Hannon, 675 F.2d
846, 851
(CA7 1982) (citation omitted), federal courts
across the country held that a party "prevails" for fee-shifting
purposes when "its ends are accomplished as a result of the
litigation,"
Associated Builders &
Contractors v.
Orleans Parish School Bd., 919 F.2d
374, 378
(CA5 1990) (citation and internal quotation
marks omitted).
In 1994, the Fourth Circuit en banc, dividing 6-to-5, broke
ranks with its sister courts. The court declared that, in light of
Farrar v.
Hobby, 506 U. S. 103 (1992), a
plaintiff could
4
Nadeau v.
Helgemoe, 581 F.2d
275, 279-281
(CA1 1978);
GerenaValentin v.
Koch, 739 F.2d
755, 758-759
(CA2 1984);
Institutionalized
Juveniles v.
Secretary of Pub. Welfare, 758 F.2d
897, 910-917
(CA3 1985); Bonnes v.
Long,
599 F.2d
1316, 1319
(CA4 1979);
Robinson v.
Kimbrough, 652 F.2d
458, 465-467
(CA5 1981);
Citizens Against Tax
Waste v.
Westerville City School Dist. Bd. of Ed.,
985 F.2d
255, 257-258
(CA6 1993); Stewart v.
Hannon,
675 F.2d
846, 851
(CA7 1982);
Williams v.
Miller,
620 F. 2d 199, 202
(CA8 1980);
American
Constitutional Party v.
Munro, 650 F. 2d 184, 187-188
(CA9 1981);
J &
J Anderson, Inc. v.
Erie, 767 F.2d
1469, 1474-1475 (CA1O 1985);
Doe v.
Busbee,
684 F.2d
1375, 1379 (CAll
1982); Grano v.
Barry, 783 F.2d
1104, 1108-1110 (CADC 1986). All
twelve of these
decisions antedate
Hewitt v.
Helms, 482 U. S. 755 (1987). But
cf.
ante, at 621, and n. 5 (SCALIA, J., concurring)
(maintaining that this Court's decision in
Hewitt
"improvidently suggested" the catalyst rule, and asserting that
only "a few cases adopting the catalyst theory predate
Hewitt").
Hewitt said it was "settled law" that when a lawsuit prompts a
defendant's "voluntary action ... that redresses the plaintiff's
grievances," the plaintiff "is deemed to have prevailed despite the
absence of a formal judgment in his favor." 482 U. S., at 760-761.
That statement accurately conveyed the unanimous view then held by
the Federal Circuits.
627
not become a "prevailing party" without "an enforceable
judgment, consent decree, or settlement."
S-l and S-2 v.
State Bd. of Ed. of N. c.,
21 F.3d
49, 51 (1994). As the Court today acknowledges, see
ante, at 603, n. 5, and as we have previously observed, the
language on which the Fourth Circuit relied was dictum:
Farrar "involved no catalytic effect"; the issue plainly
"was not presented for this Court's decision in
Farrar." Friends
of Earth, Inc. v.
Laidlaw Environmental Services (TOG),
Inc., 528 U. S.
167, 194 (2000).
After the Fourth Circuit's en banc ruling, nine Courts of
Appeals reaffirmed their own consistently held interpretation of
the term "prevail." 5 On this predominant view, "[sJecuring an
enforceable decree or agreement may evidence prevailing party
status, but the judgment or agreement simply embodies and enforces
what is sought in bringing the lawsuit .... Victory can be achieved
well short of a final judgment (or its equivalent) .... "
Marbley v.
Bane, 57
The array of federal-court decisions applying the catalyst rule
suggested three conditions necessary to a party's qualification as
"prevailing" short of a favorable final judgment or consent decree.
A plaintiff first had to show that the defendant provided "some of
the benefit sought" by the lawsuit.
Wheeler v.
Towanda
Area School Dist., 950 F.2d
128, 131 (CA3 1991). Under most Circuits' precedents, a
plaintiff had to demonstrate as well that the suit stated a genuine
claim, i.
e., one that was at least "colorable," not
"frivolous, unreasonable, or groundless."
Grano, 783 F. 2d,
at 1110 (internal
5 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 Auth.,
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 (CAW 1994); Morris v. West Palm Beach,
194 F.3d
1203, 1207 (CAll 1999).
628
quotation marks and citation omitted). Plaintiff finally had to
establish that her suit was a "substantial" or "significant" cause
of defendant's action providing relief.
Williams v.
Leatherbury, 672 F.2d
549, 551
(CA5 1982). In some Circuits, to make this
causation showing, plaintiff had to satisfy the trial court that
the suit achieved results "by threat of victory," not "by dint of
nuisance and threat of expense."
Marbley, 57 F. 3d, at
234-235; see also
Hooper v.
Demeo, Inc., 37 F.3d
287, 293
(CA7 1994) (to render plaintiff "prevailing
party," suit "must have prompted the defendant ... to act or cease
its behavior based on the strength of the case, not 'wholly
gratuitously' "). One who crossed these three thresholds would be
recognized as a "prevailing party" to whom the district court, "in
its discretion,"
supra, at 624625, n. 1, could award
attorney's fees.
Developed over decades and in legions of federal-court
decisions, the catalyst rule and these implementing standards
deserve this Court's respect and approbation.
II A
The Court today detects a "clear meaning" of the term prevailing
party,
ante, at 610, that has heretofore eluded the large
majority of courts construing those words. "Prevailing party," to
day's opinion announces, means "one who has been awarded some
relief by the court,"
ante, at 603. The Court derives this
"clear meaning" principally from Black's Law Dictionary, which
defines a "prevailing party," in critical part, as one "in whose
favor a judgment is rendered,"
ibid. (quoting Black's Law
Dictionary 1145 (7th ed. 1999)).
One can entirely agree with Black's Law Dictionary that a party
"in whose favor a judgment is rendered" prevails, and at the same
time resist, as most Courts of Appeals have, any implication that
only such a party may prevail. In prior cases, we have not
treated Black's Law Dictionary as preclu-
629
sively definitive; instead, we have accorded statutory terms,
including legal "term[s] of art,"
ante, at 603 (opinion of
the Court);
ante, at 616 (SCALIA, J., concurring), a
contextual reading. See,
e. g., Pioneer Investment Services
Co. v.
Brunswick Associates Ltd. Partnership, 507 U. S. 380, 395396, n.
14 (1993) (defining "excusable neglect," as used in Federal Rule of
Bankruptcy Procedure 9006(b)(1), more broadly than Black's defines
that term);
United States v.
Rodgers, 466 U. S. 475, 479-480
(1984) (adopting "natural, nontechnical" definition of word
"jurisdiction," as that term is used in 18 U. S. C. § 1001, and
declining to confine definition to "narrower, more technical
meanings," citing Black's). Notably, this Court did not refer to
Black's Law Dictionary in
Maher v.
Gagne, 448 U. S. 122 (1980),
which held that a consent decree could qualify a plaintiff as
"prevailing." The Court explained:
"The fact that [plaintiff] prevailed through a settlement rather
than through litigation does not weaken her claim to fees. Nothing
in the language of [42 U. S. C.] § 1988 conditions the District
Court's power to award fees on full litigation of the issues or on
a judicial determination that the plaintiff's rights have been
violated." Id., at 129.
The spare "prevailing party" language of the fee-shifting
provision applicable in
Maher, and the similar wording of
the fee-shifting provisions now before the Court, contrast with
prescriptions that so tightly bind fees to judgments as to exclude
the application of a catalyst concept. The Prison Litigation Reform
Act of 1995, for example, directs that fee awards to prisoners
under § 1988 be "proportionately related to the
court ordered
relief for the violation." 110 Stat. 1321-72, as amended, 42 U.
S. C. § 1997e(d)(1)(B)(i) (1994 ed., Supp. V) (emphasis added).
That statute, by its express terms, forecloses an award to a
prisoner on a catalyst theory. But the FHAA and ADA fee-shifting
prescriptions, modeled
630
on 42 U. S. C. § 1988 unmodified, see
supra, at 624-625,
n. 1, do not similarly staple fee awards to "court ordered relief."
Their very terms do not foreclose a catalyst theory.
B
It is altogether true, as the concurring opinion points out,
ante, at 610-611, that litigation costs other than
attorney's fees traditionally have been allowed to the "prevailing
party," and that a judgment winner ordinarily fits that
description. It is not true, however, that precedent on costs calls
for the judgment requirement the Court ironly adopts today for
attorney's fees. Indeed, the first decision cited in the concurring
opinion,
Mansfield, C. &
L. M. R. Co. v.
Swan, 111 U.
S. 379 (1884), see
ante, at 611, tugs against the
restrictive rule to day's decision installs.
In
Mansfield, plaintiffs commenced a contract action in
state court. Over plaintiffs' objections, defendants successfully
removed the suit to federal court. Plaintiffs prevailed on the
merits there, and defendants obtained review here. See 111 U. S.,
at 380-381. This Court determined, on its own motion, that federal
subject-matter jurisdiction was absent from the start. Based on
that determination, the Court reversed the lower court's judgment
for plaintiffs. Worse than entering and leaving this Courthouse
equally "emptyhanded,"
ante, at 614 (concurring opinion),
the plaintiffs in
Mansfield were stripped of the judgment
they had won, including the "judicial finding ... of the merits" in
their favor,
ante, at 613 (concurring opinion). The
Mansfield plaintiffs did, however, achieve this small
consolation: The Court awarded them costs here as well as below.
Recognizing that defendants had "prevail[ed]" in a "formal and
nominal sense," the
Mansfield Court nonetheless concluded
that "[i]n a true and proper sense" defendants were "the losing and
not the prevailing party." 111 U. S., at 388.
While
Mansfield casts doubt on the present majority's
"formal and nominal" approach, that decision does not con-
631
sider whether costs would be in order for the plaintiff who
obtains substantial relief, but no final judgment. Nor does
"a
single case" on which the concurring opinion today relies,
ante, at 613 (emphasis in original).6 There are, however,
enlightening analogies. In multiple instances, state high courts
have regarded plaintiffs as prevailing, for costs taxation
purposes, when defendants' voluntary conduct, mooting the suit,
provided the relief that plaintiffs sought.7 The con-
6 The Baltimore, 8 Wall. 377 (1869), featured in the
concurring opinion, see
ante, at 611, does not run the
distance to which that opinion would take it. In
The
Baltimore, there was a judgment in one party's favor. See 8
Wall., at 384. The Court did not address the question whether costs
are available absent such a judgment.
The Baltimore's
"incident to the judgment" language, which the concurrence
emphasizes,
ante, at 611 (citing 8 Wall., at 388, 390),
likely related to the once-maintained rule that a court without
jurisdiction may not award costs. See
Mayor v.
Cooper,
6 Wall. 247, 250-251 (1868). That ancient rule figured some
years later in
Mansfield, C. &
L. M. R. Co. v.
Swan, 111 U.
S. 379 (1884); the Court noted the "universally recognized rule
of the common law" that, absent jurisdiction, a "court can render
no judgment for or against either party, [and therefore] cannot
render a judgment even for costs."
Id., at 387. Receding
from that rule, the Court awarded costs, even upon dismissal for
lack of jurisdiction, because "there is a judgment or final order
in the cause dismissing it for want of jurisdiction."
Ibid.;
see
U. S.
Bancorp Mortgage Co. v.
Bonner Mall
Partnership, 513
U. S. 18,21 (1994).
7 See,
e. g., Board of Ed. of Madison Cty. v.
Fowler, 192 Ga. 35, 36, 14 S. E. 2d 478, 479 (1941)
(mandamus action dismissed as moot, but costs awarded to plaintiffs
where "the purposes of the mandamus petition were accomplished by
the subsequent acts of the defendants, thus obviating the necessity
for further proceeding");
Baldwin v.
Chesapeake &
Potomac Tel. Co., 156 Md. 552, 557, 144 A. 703, 705 (1929)
(costs awarded to plaintiff after trial court granted defendant's
demurrer and plaintiff's appeal was dismissed "based on an act of
[defendant] performed after ... entry of the appeal"; dismissal
rendered "it unnecessary to inquire into the merits of the suit");
Ficklen v.
Danville, 146 Va. 426, 438, 132 S. E. 705,
706 (1926) (costs on appeal awarded to plaintiffs, even though
trial court denied injunctive relief and high court dismissed
appeal due to mootness, because plaintiffs achieved the "equivalent
to ... 'substantially prevailing'" in "gain[ing] all they sought by
the appeal"); cf.
Scatcherd v.
Love, 166 F. 53, 55,
56 (CA6 1908) (although "there was no judgment against the
defendant
632
curring OpInIOn labors unconvincingly to distinguish these
state-law cases.8 A similar federal practice has been observed in
cases governed by Federal Rule of Civil Procedure 54(d), the
default rule allowing costs "to the prevailing party unless the
court otherwise directs." See 10 C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 2667, pp. 187-188 (2d ed.
1983) (When "the defendant alters its conduct so that plaintiff's
claim [for injunctive relief] becomes moot before judgment is
reached, costs may be allowed [under Rule 54(d)] if the court finds
that the changes
upon the merits," defendant "acknowledged its liability ... by
paying to the plaintiff the sum of $5,000," rendering plaintiff the
"successful party" entitled to costs);
Talmage v.
Monroe, 119 P. 526 (Cal. App. 1911) (fees awarded to
petitioner after court issued "alternative writ" directing
respondent either to take specified action or to show cause for not
doing so, and respondent chose to take the action).
8 The concurrence urges that
Baldwin is inapposite
because it was an action
"in equity," and equity courts
could award costs as the equities required.
Ante, at 612
(emphasis in original). The catalyst rule becomes relevant,
however, only when a party seeks relief of a sort traditionally
typed
equitable, i.
e., a change of conduct, not
damages. There is no such thing as an injunction
at law, and
therefore one cannot expect to find long-ago plaintiffs who quested
after that mythical remedy and received voluntary relief. By the
concurrence's reasoning, the paucity of precedent applying the
catalyst rule to "prevailing parties" is an artifact of nothing
more "remarkable,"
ante, at 614, than the historic
law-equity separation.
The concurrence notes that the other cited cases "all involve a
judicial finding--{)r
its equivalent, an acknowledgment by the
defendant--{)f the merits of plaintiff's case."
Ante, at
613 (emphasis added). I agree. In
Fowler and
Scatcherd, however, the "acknowledgment" consisted of
nothing more than the defendant's voluntary provision to the
plaintiff of the relief that the plaintiff sought. See also,
e.
g., Jeffersonville R. R. Co. v.
Weinman, 39 Ind. 231
(1872) (costs awarded where defendant voluntarily paid damages; no
admission or merits judgment);
Wagner v.
Wagner, 9
Pa. 214 (1848) (same);
Hudson v.
Johnson, 1 Va. 10
(1791) (same). Commonlaw courts thus regarded a defendant's
voluntary compliance, by settlement or otherwise, as an
"acknowledgment ... of the merits" sufficient to warrant treatment
of a plaintiff as prevailing. But cf.
ante, at 604, n. 7
(opinion of the Court). One can only wonder why the concurring
opinion would not follow the same practice today.
633
were the result, at least in part, of plaintiff's litigation.")
(citing,
inter alia, Black Hills Alliance v.
Regional
Forester, 526 F. Supp. 257 (SD 1981)).
In short, there is substantial support, both old and new,
federal and state, for a costs award, "in [the court's]
discretion,"
supra, at 625, n. 1, to the plaintiff whose
suit prompts the defendant to provide the relief plaintiff
seeks.
C
Recognizing that no practice set in stone, statute, rule, or
precedent, see
infra, at 643, dictates the proper
construction of modern civil rights fee-shifting prescriptions, I
would "assume ... that Congress intends the words in its enactments
to carry 'their ordinary, contemporary, common meaning.'"
Pioneer, 507 U. S., at 388 (defining "excusable neglect")
(quoting
Perrin v.
United States, 444 U. S. 37, 42 (1979)
(defining "bribery")); see also,
e. g., Sutton v.
United
Air Lines, Inc., 527 U. S. 471, 491 (1999)
(defining "substantially" in light of ordinary usage);
Rutledge v.
United States, 517 U. S. 292, 299-300,
n. 10 (1996) (similarly defining "in concert"). In everyday use,
"prevail" means "gain victory by virtue of strength or superiority:
win mastery: triumph." Webster's Third New International Dictionary
1797 (1976). There are undoubtedly situations in which an
individual's goal is to obtain approval of a judge, and in those
situations, one cannot "prevail" short of a judge's formal
declaration. In a piano competition or a figure skating contest,
for example, the person who prevails is the person declared winner
by the judges. However, where the ultimate goal is not an arbiter's
approval, but a favorable alteration of actual circumstances, a
formal declaration is not essential. Western democracies, for
instance, "prevailed" in the Cold War even though the Soviet Union
never formally surrendered. Among television viewers, John F.
Kennedy "prevailed" in the first debate with Richard M. Nixon
during the 1960 Presidential contest, even though moderator Howard
K. Smith
634
GINSBURG, J., dissenting
never declared a winner. See T. White, The Making of the
President 1960, pp. 293-294 (1961).
A lawsuit's ultimate purpose is to achieve actual relief from an
opponent. Favorable judgment may be instrumental in gaining that
relief. Generally, however, "the judicial decree is not the end but
the means. At the end of the rainbow lies not a judgment, but some
action (or cessation of action) by the defendant .... "
Hewitt v.
Helms, 482 U. S. 755, 761
(1987). On this common understanding, if a party reaches the
"sought-after destination," then the party "prevails" regardless of
the "route taken."
Hennigan v.
Ouachita Parish School
Bd., 749 F.2d
1148, 1153 (CA51985).
Under a fair reading of the FHAA and ADA provisions in point, I
would hold that a party "prevails" in "a true and proper sense,"
Mansfield, 111 U. S., at 388, when she achieves, by
instituting litigation, the practical relief sought in her
complaint. The Court misreads Congress, as I see it, by insisting
that, invariably, relief must be displayed in a judgment, and
correspondingly that a defendant's voluntary action never suffices.
In this case, Buckhannon's purpose in suing West Virginia officials
was not narrowly to obtain a judge's approbation. The plaintiffs'
objective was to stop enforcement of a rule requiring Buckhannon to
evict residents like centenarian Dorsey Pierce as the price of
remaining in business. If Buckhannon achieved that objective on
account of the strength of its case, see
supra, at 628-if it
succeeded in keeping its doors open while housing and caring for
Ms. Pierce and others similarly situated-then Buckhannon is
properly judged a party who prevailed.
III
As the Courts of Appeals have long recognized, the catalyst rule
suitably advances Congress' endeavor to place private actions, in
civil rights and other legislatively defined areas, securely within
the federal law enforcement arsenal.
635
The catalyst rule stemmed from modern legislation extending
civil rights protections and enforcement measures. The Civil Rights
Act of 1964 included provisions for fee awards to "prevailing
parties" in Title II (public accommodations), 42 U. S. C. §
2000a-3(b), and Title VII (employment), § 2000e-5(k), but not in
Title VI (federal programs). The provisions' central purpose was
"to promote vigorous enforcement" of the laws by private
plaintiffs; although using the two-way term "prevailing party,"
Congress did not make fees available to plaintiffs and defendants
on equal terms.
Christiansburg Garment Co. v.
EEOC,
434 U. S. 412,
417, 421 (1978) (under Title VII, prevailing plaintiff qualifies
for fee award absent "special circumstances," but prevailing
defendant may obtain fee award only if plaintiff's suit is
"frivolous, unreasonable, or without foundation").
Once the 1964 Act came into force, courts commenced to award
fees regularly under the statutory authorizations, and sometimes
without such authorization. See
Alyeska Pipeline Service Co.
v.
Wilderness Society, 421 U. S. 240, 262,
270-271, n. 46 (1975). In
Alyeska, this Court reaffirmed the
"American Rule" that a court generally may not award attorney's
fees without a legislative instruction to do so. See id., at 269.
To provide the authorization
Alyeska required for fee awards
under Title VI of the 1964 Civil Rights Act, as well as under
Reconstruction Era civil rights legislation, 42 U. S. C. §§
1981-1983, 1985, 1986 (1994 ed. and Supp. V), and certain other
enactments, Congress passed the Civil Rights Attorney's Fees Awards
Act of 1976, 42 U. S. C. § 1988 (1994 ed. and Supp. V).
As explained in the Reports supporting § 1988, civil rights
statutes vindicate public policies "of the highest priority," S.
Rep. No. 94-1011, p. 3 (1976) (quoting
Newman v.
Piggie
Park Enterprises, Inc., 390 U. S. 400, 402 (1968)
(per curiam)), yet "depend heavily upon private
enforcement," S. Rep. No. 94-1011, at 2. Persons who bring
meritorious civil rights claims, in this light, serve as "private
attorneys
636
636 BUCKHANNON BOARD & CARE HOME, INC.
v. WEST
VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES
general."
Id., at 5; H. R. Rep. No. 94-1558, p. 2 (1976).
Such suitors, Congress recognized, often "cannot afford legal
counsel."
Id., at 1. They therefore experience "severe
hardshi[pJ" under the "American Rule."
Id., at 2. Congress
enacted § 1988 to ensure that nonaffluent plaintiffs would have
"effective access" to the Nation's courts to enforce civil rights
laws.
Id., at 1.9 That objective accounts for the
fee-shifting provisions before the Court in this case,
prescriptions of the FHAA and the ADA modeled on § 1988. See
supra, at 624-625, n. 1.
Under the catalyst rule that held sway until today, plaintiffs
who obtained the relief they sought through suit on genuine claims
ordinarily qualified as "prevailing parties," so that courts had
discretion to award them their costs and fees. Persons with limited
resources were not impelled to "wage total law" in order to assure
that their counsel fees would be paid. They could accept relief, in
money or of another kind, voluntarily proffered by a defendant who
sought to avoid a recorded decree. And they could rely on a judge
then to determine, in her equitable discretion, whether counsel
fees were warranted and, if so, in what amount.10
9See H. R. Rep. No. 94-1558, at 1 ("Because a vast majority of
the victims of civil rights violations cannot afford legal counsel,
they are unable to present their cases to the courts .... [This
statute] is designed to give such persons effective access to the
judicial process .... "); s. Rep. No. 94-1011, at 2 ("If private
citizens are to be able to assert their civil rights, and if those
who violate the Nation's fundamental laws are not to proceed with
impunity, then citizens must have the opportunity to recover what
it costs them to vindicate these rights in court."), quoted in part
in
Kay v.
Ehrler, 499 U. S. 432, 436, n. 8
(1991). See also
Newman v.
Piggie Park Enterprises,
Inc., 390 U. S.
400, 401-402 (1968)
(per curiam) ("When the Civil Rights
Act of 1964 was passed, it was evident that enforcement would prove
difficult and that the Nation would have to rely in part upon
private litigation as a means of securing broad compliance with the
law .... [Congress] enacted the provision for counsel fees ... to
encourage individuals injured by racial discrimination to seek
judicial relief .... ").
10 Given the protection furnished by the catalyst rule,
aggrieved individuals were not left to worry, and wrongdoers were
not led to believe, that
637
Congress appears to have envisioned that very prospect.
The Senate Report on the 1976 Civil Rights Attorney's Fees
Awards Act states: "[F]or purposes of the award of counsel fees,
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, at 5 (emphasis added). In support,
the Report cites cases in which parties recovered fees in the
absence of any court-conferred relief.ll
strategic maneuvers by defendants might succeed in averting a
fee award. Cf.
ante, at 608 (opinion of the Court). Apt here
is Judge Friendly's observation construing a fee-shifting statute
kin to the provisions before us:
"Congress clearly did not mean that where [a Freedom of
Information Act] suit had gone to trial and developments made it
apparent that the judge was about to rule for the plaintiff, the
Government could abort any award of attorney fees by an eleventh
hour tender of the information."
Vermont Low Income Advocacy
Council v.
Usery, 546 F.2d
509, 513
(CA2 1976) (interpreting 5 U. S. C. §
552(a)(4)(E), allowing a complainant who "substantially prevails"
to earn an attorney's fee); accord,
Cuneo v.
Rumsfeld, 553 F.2d
1360, 1364 (CADC 1977).
11 See S. Rep. No. 94-1011, at 5 (citing
Kopet v.
Esquire Realty Co., 523 F. 2d 1005, 1008-1009
(CA2
1975) (partner sued his firm for release of documents, firm
released the documents, court awarded fees because of the release,
even though the partner's claims were "dismissed for lack of
subject matter jurisdiction"), and
Thomas v.
Honeybrook
Mines, Inc., 428 F. 2d 981, 984, 985 (CA3 1970) (union
committee twice commenced suit for pension fund payments, suits
prompted recovery, and court awarded fees even though the first
suit had been dismissed and the second had not yet been
adjudicated)).
The Court features a case cited by the House as well as the
Senate in the Reports on § 1988,
Parham v.
Southwestern
Bell Tel. Co., 433 F.2d
421 (CA8 1970). The Court deems
Parham consistent
with its rejection of the catalyst rule, alternately because the
Eighth Circuit made a "finding that the defendant had acted
unlawfully," and because that court ordered the District Court to
"'retain jurisdiction over the matter ... to insure the continued
implementation of the [defendant's] policy of equal employment
opportunities.'''
Ante, at 607, n. 9 (quoting 433 F. 2d, at
429). Congress did not fix on those factors, however: Nothing in
either Report suggests that judicial findings or retention of
jurisdiction is essential to an award of fees. The courts in
Kopet and
Thomas awarded fees based on claims as to
which they neither made "a finding" nor "retain[ed] jurisdic-
638
The House Report corroborates: "[A]fter a complaint is filed, a
defendant might voluntarily cease the unlawful practice.
A court
should still award fees even though it might conclude, as a
matter of equity, that
no formal relief, such as an
injunction, is needed." H. R. Rep. No. 94-1558, at 7 (emphases
added). These Reports, Courts of Appeals have observed, are hardly
ambiguous. Compare
ante, at 607-608 ("legislative history
... is at best ambiguous"), with,
e. g.,
Dunn v.
The Florida Bar, 889 F.2d
1010, 1013 (CAll 1989) (legislative history "evinces a clear
Congressional intent" to permit award "even when no formal judicial
relief is obtained" (internal quotation marks omitted));
Robinson v.
Kimbrough, 652 F.2d
458, 465
(CA5 1981) (same);
American Constitutional
Party v.
Munro, 650 F.2d
184, 187
(CA9 1981) (Senate Report "directs" fee award
under catalyst rule). Congress, I am convinced, understood that"
'[v]ictory' in a civil rights suit is typically a practical, rather
than a strictly legal matter."
Exeter-West Greenwich Regional
School Dist. v.
Pontarelli, 788 F.2d
47, 51
(CA1 1986) (citation omitted).
IV
The Court identifies several "policy arguments" that might
warrant rejection of the catalyst rule. See
ante, at
608-610. A defendant might refrain from altering its conduct,
fearing liability for fees as the price of voluntary action. See
ante, at 608. Moreover, rejection of the catalyst rule has
limited impact: Desisting from the challenged conduct will not
render a case moot where damages are sought, and even when the
plaintiff seeks only equitable relief, a defendant's voluntary
cessation of a challenged practice does not render the case moot
"unless it is 'absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.'"
Ante,
at 609 (quoting
Friends of Earth, Inc., 528
tion." (It nonetheless bears attention that, in line with the
Court's description of
Parham, a plaintiff could qualify as
the "prevailing party" based on a finding or retention of
jurisdiction.)
639
u. S., at 189). Because a mootness dismissal is not easily
achieved, the defendant may be impelled to settle, negotiating fees
less generous than a court might award. See
ante, at 609.
Finally, a catalyst rule would "require analysis of the defendant's
subjective motivations," and thus protract the litigation.
Ibid.
The Court declines to look beneath the surface of these
arguments, placing its reliance, instead, on a meaning of
"prevailing party" that other jurists would scarcely recognize as
plain. See
ante, at 603. Had the Court inspected the "policy
arguments" listed in its opinion, I doubt it would have found them
impressive.
In opposition to the argument that defendants will resist change
in order to stave off an award of fees, one could urge that the
catalyst rule may lead defendants promptly to comply with the law's
requirements: the longer the litigation, the larger the fees.
Indeed, one who knows noncompliance will be expensive might be
encouraged to conform his conduct to the legal requirements before
litigation is threatened. Cf. Hylton, Fee Shifting and Incentives
to Comply with the Law, 46 Vand. L. Rev. 1069, 1121 (1993) ("fee
shifting in favor of prevailing plaintiffs enhances both incentives
to comply with legal rules
and incentives to settle
disputes"). No doubt, a mootness dismissal is unlikely when
recurrence of the controversy is under the defendant's control.
But, as earlier observed, see
supra, at 636, why should this
Court's feeshifting rulings drive a plaintiff prepared to accept
adequate relief, though out-of-court and unrecorded, to litigate on
and on? And if the catalyst rule leads defendants to negotiate not
only settlement terms but also allied counsel fees, is that not a
consummation to applaud, not deplore?
As to the burden on the court, is it not the norm for the judge
to whom the case has been assigned to resolve fee disputes
(deciding whether an award is in order, and if it is, the amount
due), thereby clearing the case from the calendar? If factfinding
becomes necessary under the catalyst
640
rule, is it not the sort that "the district courts, in their
factfinding expertise, deal with on a regular basis"?
Baumgartner v.
Harrisburg Housing Auth., 21 F.3d
541, 548
(CA3 1994). Might not one conclude overall, as
Courts of Appeals have suggested, that the catalyst rule "saves
judicial resources,"
Paris v.
Department of Housing and
Urban Development, 988 F.2d
236, 240
(CA1 1993), by encouraging "plaintiffs to
discontinue litigation after receiving through the defendant's
acquiescence the remedy initially sought"?
Morris v.
West
Palm Beach, 194 F.3d
1203, 1207 (CAll 1999).
The concurring opinion adds another argument against the
catalyst rule: That opinion sees the rule as accommodating the
"extortionist" who obtains relief because of "greater strength in
financial resources, or superiority in media manipulation, rather
than
superiority in legal merit." Ante, at 617, 618
(emphasis in original). This concern overlooks both the character
of the rule and the judicial superintendence Congress ordered for
all fee allowances. The catalyst rule was auxiliary to fee-shifting
statutes whose primary purpose is "to promote the vigorous
enforcement" of the civil rights laws.
Christiansburg Garment
Co., 434 U. S., at 422. To that end, courts deemed the
conduct-altering catalyst that counted to be the substance of the
case, not merely the plaintiff's atypically superior financial
resources, media ties, or political clout. See
supra, at
628. And Congress assigned responsibility for awarding fees not to
automatons unable to recognize extortionists, but to judges
expected and instructed to exercise "discretion." See
supra,
at 624-625, n. 1. So viewed, the catalyst rule provided no berth
for nuisance suits, see
Hooper, 37 F. 3d, at 292, or "thinly
disguised forms of extortion,"
Tyler v.
Corner Constr.
Corp., 167 F.3d
1202, 1206 (CA8 1999) (citation omitted)P
12 The concurring opinion notes, correctly, that "[t]here 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."
Ante, at 620 (empha-
641
V
As to our attorney's fee precedents, the Court correctly
observes, "[w]e have never had occasion to decide whether the term
'prevailing party' allows an award of fees under the 'catalyst
theory,'" and "there is language in our cases supporting both
petitioners and respondents."
Ante, at 603, n. 5. It bears
emphasis, however, that in determining whether fee shifting is in
order, the Court in the past has placed greatest weight not on any
"judicial
imprimatur," ante, at 605, but on the practical
impact of the lawsuit.13 In
Maher v.
Gagne, 448 U. S. 122 (1980), in
which the Court held fees could be awarded on the basis of a
consent decree, the opinion nowhere relied on the presence of a
formal judgment. See
supra, at 629;
infra, at
642-643, n. 14. Some years
sis in original). The former cutoff, the Court has held, is
impelled both by "plain language" requiring a legal "action" or
"proceeding" antecedent to a fee award, and by "legislative history
... replete with references to [enforcement] 'in suits,' 'through
the courts' and by 'judicial process.'''
North Carolina Dept. of
Transp. v.
Crest Street Community Council, Inc.,
479 U. S. 6, 12
(1986) (citations omitted). The latter cutoff, requiring "a
judgment in time," is not similarly impelled by text or legislative
history.
The concurring opinion also states that a prevailing party must
obtain relief
"in the lawsuit." Ante, at 615, 618. One can
demur to that elaboration of the statutory text and still adhere to
the catalyst rule. Under the rule, plaintiff's suit raising genuine
issues must trigger defendant's voluntary action; plaintiff will
not prevail under the rule if defendant "ceases ... [his] offensive
conduct" by dying or going bankrupt. See
ante, at 615. A
behavior-altering event like dying or bankruptcy occurs outside the
lawsuit; a change precipitated by the lawsuit's claims and demand
for relief is an occurrence brought about "through" or "in" the
suit.
13 To qualify for fees in any case, we have held, relief must be
real. See
Rhodes v.
Stewart, 488 U. S. 1, 4 (1988)
(per curiam) (a plaintiff who obtains a formal declaratory
judgment, but gains no real "relief whatsoever," is not a
"prevailing party" eligible for fees);
Hewitt v.
Helms, 482 U. S., at 761 (an interlocutory decision
reversing a dismissal for failure to state a claim, although
stating that plaintiff's rights were violated, does not entitle
plaintiff to fees; to "prevail," plaintiff must gain relief of
"substance," i.
e., more than a favorable "judicial
statement that does not affect the relationship between the
plaintiff and the defendant").
642
later, in
Hewitt v.
Helms, 482 U. S. 755 (1987), the
Court suggested that fees might be awarded the plaintiff who
"obtain[ed] relief without [the] benefit of a formal judgment."
Id., at 760. The Court explained: "If the defendant, under
the pressure of the lawsuit, pays over a money claim before the
judicial judgment is pronounced," or "if the defendant, under
pressure of [a suit for declaratory judgment], alters his conduct
(or threatened conduct) towards the plaintiff," i.
e.,
conduct "that was the basis for the suit, the plaintiff will have
prevailed."
Id., at 761. I agree, and would apply that
analysis to this case.
The Court posits a "'merit' requirement of our prior cases."
Ante, at 606.
Maher, however, affirmed an award of
attorney's fees based on a consent decree that "did not purport to
adjudicate [plaintiff's] statutory or constitutional claims." 448
U. S., at 126, n. 8. The decree in
Maher "explicitly stated
that 'nothing [therein was] intended to constitute an admission of
fault by either party.'"
Ibid. The catalyst rule, in short,
conflicts with none of "our prior hold
ings," ante, at
605.14
14 The Court repeatedly quotes passages from
Hanrahan v.
Hampton, 446 U. S., at 757-758, stating that to "prevail,"
plaintiffs must receive relief "on the merits."
Ante, at
603, 604, 608. Nothing in
Hanrahan, however, declares that
relief "on the merits" requires a "judicial
imprimatur."
Ante, at 605. As the Court acknowledges,
Hanrahan
concerned an interim award of fees, after plaintiff succeeded in
obtaining nothing more than reversal of a directed verdict. See
ante, at 605. At that juncture, plaintiff had obtained no
change in defendant's behavior, and the suit's ultimate winner
remained undetermined. There is simply no inconsistency between
Hanrahan, denying fees when a plaintiff might yet obtain no
real benefit, and the catalyst rule, allowing fees when a plaintiff
obtains the practical result she sought in suing. Indeed, the
harmony between the catalyst rule and
Hanrahan is suggested
by
Hanrahan itself; like
Maher v.
Gagne,
448 U. S. 122,
129 (1980),
Hanrahan quoted the Senate Report recognizing
that parties may prevail "through a consent judgment
or
without formally obtaining relief." 446 U. S., at 757 (quoting S.
Rep. No. 94-1011, at 5) (emphasis added).
Hanrahan also
selected for citation
643
***
The Court states that the term "prevailing party" in feeshifting
statutes has an "accepted meaning."
Ante, at 608. If that is
so, the "accepted meaning" is not the one the Court today
announces. It is, instead, the meaning accepted by every Court of
Appeals to address the catalyst issue before our 1987 decision in
Hewitt, see
supra, at 626, n. 4, and disavowed since
then only by the Fourth Circuit, see
supra, at 627, n. 5. A
plaintiff prevails, federal judges have overwhelmingly agreed, when
a litigated judgment, consent decree, out-of-court settlement, or
the defendant's voluntary, postcomplaint payment or change in
conduct in fact affords redress for the plaintiff's substantial
grievances.
When this Court rejects the considered judgment prevailing in
the Circuits, respect for our colleagues demands a co-
the influential elaboration of the catalyst rule in
Nadeau v.
Helgemoe, 581
The Court additionally cites
Texas State Teachers Assn.
v.
Garland Independent School Dist., 489 U. S. 782 (1989),
which held, unanimously, that a plaintiff could become a
"prevailing party" without obtaining relief on the "central issue
in the suit."
Id., at 790.
Texas State Teachers
linked fee awards to a "material alteration of the legal
relationship of the parties," id., at 792-793, but did not say, as
the Court does today, that the change must be "court-ordered,"
ante, at 604. The parties' legal relationship does change
when the defendant stops engaging in the conduct that furnishes the
basis for plaintiff's civil action, and that action, which both
parties would otherwise have litigated, is dismissed.
The decision with language most unfavorable to the catalyst
rule,
Farrar v.
Hobby, 506 U. S. 103 (1992),
does not figure prominently in the Court's opinion-and for good
reason, for
Farrar "involved no catalytic effect." See
ante, at 603, n. 5 (quoting
Friends of Earth, Inc. v.
Laidlaw Environmental Services (TOG), Inc., 528 U. S. 167, 194 (2000)
(internal quotation marks omitted));
supra, at 627.
Farrar held that a plaintiff who sought damages of $17
million, but received damages of $1, was a "prevailing party"
nonetheless not entitled to fees. 506 U. S., at 113-116. In
reinforcing the link between the right to a fee award and the
"degree of success obtained,"
id., at 114 (quoting
Hensley v.
Eckerhart, 461 U. S., at 436),
Farrar's
holding is consistent with the catalyst rule.
644
gent explanation. Today's decision does not provide one. The
Court's narrow construction of the words "prevailing party" is
unsupported by precedent and unaided by history or logic. Congress
prescribed fee-shifting provisions like those included in the FHAA
and ADA to encourage private enforcement of laws designed to
advance civil rights. Fidelity to that purpose calls for
court-awarded fees when a private party's lawsuit, whether or not
its settlement is registered in court, vindicates rights Congress
sought to secure. I would so hold and therefore dissent from the
judgment and opinion of the Court.
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