Cite as: 532 U. S. 598 (2001)
Ginsburg, J., dissenting
Congress appears to have envisioned that very prospect. The Senate Report on the 1976 Civil Rights Attorney's Fees Awards Act states: "[F]or purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S. Rep. No. 94-1011, at 5 (emphasis added). In support, the Report cites cases in which parties recovered fees in the absence of any court-conferred relief.11
strategic maneuvers by defendants might succeed in averting a fee award. Cf. ante, at 608 (opinion of the Court). Apt here is Judge Friendly's observation construing a fee-shifting statute kin to the provisions before us: "Congress clearly did not mean that where [a Freedom of Information Act] suit had gone to trial and developments made it apparent that the judge was about to rule for the plaintiff, the Government could abort any award of attorney fees by an eleventh hour tender of the information." Vermont Low Income Advocacy Council v. Usery, 546 F. 2d 509, 513 (CA2 1976) (interpreting 5 U. S. C. § 552(a)(4)(E), allowing a complainant who "substantially prevails" to earn an attorney's fee); accord, Cuneo v. Rumsfeld, 553 F. 2d 1360, 1364 (CADC 1977).
11 See S. Rep. No. 94-1011, at 5 (citing Kopet v. Esquire Realty Co., 523 F. 2d 1005, 1008-1009 (CA2 1975) (partner sued his firm for release of documents, firm released the documents, court awarded fees because of the release, even though the partner's claims were "dismissed for lack of subject matter jurisdiction"), and Thomas v. Honeybrook Mines, Inc., 428 F. 2d 981, 984, 985 (CA3 1970) (union committee twice commenced suit for pension fund payments, suits prompted recovery, and court awarded fees even though the first suit had been dismissed and the second had not yet been adjudicated)).
The Court features a case cited by the House as well as the Senate in the Reports on § 1988, Parham v. Southwestern Bell Tel. Co., 433 F. 2d 421 (CA8 1970). The Court deems Parham consistent with its rejection of the catalyst rule, alternately because the Eighth Circuit made a "finding that the defendant had acted unlawfully," and because that court ordered the District Court to " 'retain jurisdiction over the matter . . . to insure the continued implementation of the [defendant's] policy of equal employment opportunities.' " Ante, at 607, n. 9 (quoting 433 F. 2d, at 429). Congress did not fix on those factors, however: Nothing in either Report suggests that judicial findings or retention of jurisdiction is essential to an award of fees. The courts in Kopet and Thomas awarded fees based on claims as to which they neither made "a finding" nor "retain[ed] jurisdic-
637
Page: Index Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 NextLast modified: October 4, 2007