620
VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Scalia, J., concurring
of language to produce prelitigation attorney's fees than to produce the decreeless attorney's fees that the dissent favors (though that may well be true). My point is that the departure from normal usage that the dissent favors cannot be justified on the ground that it establishes a regime of logical evenhandedness. There must be a cutoff of seemingly equivalent entitlements to fees—either the failure to file suit in time or the failure to obtain a judgment in time. The term "prevailing party" suggests the latter rather than the former. One does not prevail in a suit that is never determined.
The dissent's ultimate worry is that today's opinion will "impede access to court for the less well-heeled," post, at 623. But, of course, the catalyst theory also harms the "less well-heeled," putting pressure on them to avoid the risk of massive fees by abandoning a solidly defensible case early in litigation. Since the fee-shifting statutes at issue here allow defendants as well as plaintiffs to receive a fee award, we know that Congress did not intend to maximize the quantity of "the enforcement of federal law by private attorneys general," ibid. Rather, Congress desired an appropriate level of enforcement—which is more likely to be produced by limiting fee awards to plaintiffs who prevail "on the merits," or at least to those who achieve an enforceable "alteration of the legal relationship of the parties," than by permitting the open-ended inquiry approved by the dissent.4
4 Even the legislative history relied upon by the dissent supports the conclusion that some merit is necessary to justify a fee award. See post, at 636, n. 9 (citing a House Report for the proposition that fee-shifting statutes are " 'designed to give ['victims of civil rights violation'] access to the judicial process' " (emphasis added)); ibid. (citing a Senate Report: " '[I]f those who violate the Nation's fundamental laws are not to proceed with impunity,' " fee awards are necessary (emphasis added)). And for the reasons given by the Court, see ante, at 605, the catalyst theory's purported "merit test"—the ability to survive a motion to dismiss for failure to state a claim, or the absence of frivolousness—is scant protection for the innocent.
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