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VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Ginsburg, J., dissenting
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—or its equivalent, an acknowledgment by the defendant—of 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). Common-law 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.
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