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VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Ginsburg, J., dissenting
Pierce's could obtain a fee award if their suit acted as a "catalyst" for the change they sought, even if they did not obtain a judgment or consent decree.4 The Courts of Appeals found it "clear that a party may be considered to have prevailed even when the legal action stops short of final . . . judgment due to . . . intervening mootness." Grano v. Barry, 783 F. 2d 1104, 1108 (CADC 1986). Interpreting the term "prevailing party" in "a practical sense," Stewart v. Hannon, 675 F. 2d 846, 851 (CA7 1982) (citation omitted), federal courts across the country held that a party "prevails" for fee-shifting purposes when "its ends are accomplished as a result of the litigation," Associated Builders & Contractors v. Orleans Parish School Bd., 919 F. 2d 374, 378 (CA5 1990) (citation and internal quotation marks omitted).
In 1994, the Fourth Circuit en banc, dividing 6-to-5, broke ranks with its sister courts. The court declared that, in light of Farrar v. Hobby, 506 U. S. 103 (1992), a plaintiff could
4 Nadeau v. Helgemoe, 581 F. 2d 275, 279-281 (CA1 1978); GerenaValentin v. Koch, 739 F. 2d 755, 758-759 (CA2 1984); Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F. 2d 897, 910-917 (CA3 1985); Bonnes v. Long, 599 F. 2d 1316, 1319 (CA4 1979); Robinson v. Kimbrough, 652 F. 2d 458, 465-467 (CA5 1981); Citizens Against Tax Waste v. Westerville City School Dist. Bd. of Ed., 985 F. 2d 255, 257-258 (CA6 1993); Stewart v. Hannon, 675 F. 2d 846, 851 (CA7 1982); Williams v. Miller, 620 F. 2d 199, 202 (CA8 1980); American Constitutional Party v. Munro, 650 F. 2d 184, 187-188 (CA9 1981); J & J Anderson, Inc. v. Erie, 767 F. 2d 1469, 1474-1475 (CA10 1985); Doe v. Busbee, 684 F. 2d 1375, 1379 (CA11 1982); Grano v. Barry, 783 F. 2d 1104, 1108-1110 (CADC 1986). All twelve of these decisions antedate Hewitt v. Helms, 482 U. S. 755 (1987). But cf. ante, at 621, and n. 5 (Scalia, J., concurring) (maintaining that this Court's decision in Hewitt "improvidently suggested" the catalyst rule, and asserting that only "a few cases adopting the catalyst theory predate Hewitt"). Hewitt said it was "settled law" that when a lawsuit prompts a defendant's "voluntary action . . . that redresses the plaintiff's grievances," the plaintiff "is deemed to have prevailed despite the absence of a formal judgment in his favor." 482 U. S., at 760-761. That statement accurately conveyed the unanimous view then held by the Federal Circuits.
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