618
VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Scalia, J., concurring
It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent's outcome and the Court's: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney's fees to some plaintiffs who are no less "deserving" of them than others who receive them, and a rule that causes the law to be the very instrument of wrong—exacting the payment of attorney's fees to the extortionist.
It is true that monetary settlements and consent decrees can be extorted as well, and we have approved the award of attorney's fees in cases resolved through such mechanisms. See ante, at 604 (citing cases). Our decision that the statute makes plaintiff a "prevailing party" under such circumstances was based entirely on language in a House Report, see Maher v. Gagne, 448 U. S. 122, 129 (1980), and if this issue were to arise for the first time today, I doubt whether I would agree with that result. See Hewitt v. Helms, 482 U. S. 755, 760 (1987) (Scalia, J.) (opining that "[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail" (emphasis added)). But in the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit. There is at least some basis for saying that the party favored by the settlement or decree prevailed in the suit. Extending the holding of Maher to a case in which no judicial action whatever has been taken stretches the term "prevailing party" (and the potential injustice that Maher produces) beyond what the normal mean-
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