614
VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES 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 court-ordered 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.
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