Cite as: 532 U. S. 598 (2001)
Scalia, J., concurring
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
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