In Buckhannon Board and Care Home Inc. v. West Virginia Dept. of Health and Human Resources, a 5-4 Court majority that included Scalia and Thomas dealt a harsh blow to victims of civil rights violations and to other claimants in cases in which a successful plaintiff may recover attorneys’ fees. The majority ruled that a plaintiff is a “prevailing party” and may recover such fees only if the plaintiff has been awarded relief by a court, not if the plaintiff achieved the desired result by producing a settlement or other out-of-court change in the defendant’s conduct. This decision effectively put an end to the “catalyst theory,” which had been the law in every federal circuit that had considered the issue except for the 4th U.S. Circuit Court of Appeals. Under that theory, a plaintiff was considered a prevailing party, and thus entitled to fees, if the plaintiff could show that the plaintiff’s lawsuit was the “catalyst” for changing the defendant’s conduct. The majority opinion, written by Chief Justice Rehnquist, provoked a harsh dissent by Justice Ginsburg in which Justices Breyer, Stevens and Souter joined. In that dissent, Justice Ginsburg stated that the Court’s “constricted definition of ‘prevailing party,’ and consequent rejection of the ‘catalyst theory,’ [would] impede access to the court for the less well-heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general.”
Although Justices Scalia and Thomas joined the majority opinion in its entirety, they also issued a separate concurrence, written by Scalia, in which they expressed the preference for a rule that sometimes denies attorneys’ fees “to the plaintiff with a solid case whose adversary slinks away on the eve of judgment” over one that “sometimes rewards the plaintiff with a phony claim.” The latter rule, they wrote, would cause the law to be an instrument of wrong by “exacting the payment of attorney’s fees to the extortionist” (emphasis added), apparently the manner in which they view some civil rights plaintiffs. They went even further, stating that since “monetary settlements and consent decrees can be extorted as well" (emphasis added), they now had “doubt” about even continuing the existing rule permitting attorneys’ fees to be awarded to plaintiffs who achieve relief through court-approved settlements and consent decrees. Were that extreme view to command a majority of the Court, the impact on victims of discrimination and other claimants, and on the judicial system itself, would be even greater. Indeed, there would be little incentive for plaintiffs to settle cases, resulting in needlessly protracted litigation.