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