Cite as: 532 U. S. 598 (2001)
Ginsburg, J., dissenting
V
As to our attorney's fee precedents, the Court correctly observes, "[w]e have never had occasion to decide whether the term 'prevailing party' allows an award of fees under the 'catalyst theory,' " and "there is language in our cases supporting both petitioners and respondents." Ante, at 603, n. 5. It bears emphasis, however, that in determining whether fee shifting is in order, the Court in the past has placed greatest weight not on any "judicial imprimatur," ante, at 605, but on the practical impact of the lawsuit.13 In
Maher v. Gagne, 448 U. S. 122 (1980), in which the Court held fees could be awarded on the basis of a consent decree, the opinion nowhere relied on the presence of a formal judgment. See supra, at 629; infra, at 642-643, n. 14. Some years
sis in original). The former cutoff, the Court has held, is impelled both by "plain language" requiring a legal "action" or "proceeding" antecedent to a fee award, and by "legislative history . . . replete with references to [enforcement] 'in suits,' 'through the courts' and by 'judicial process.' " North Carolina Dept. of Transp. v. Crest Street Community Council, Inc., 479 U. S. 6, 12 (1986) (citations omitted). The latter cutoff, requiring "a judgment in time," is not similarly impelled by text or legislative history.
The concurring opinion also states that a prevailing party must obtain relief "in the lawsuit." Ante, at 615, 618. One can demur to that elaboration of the statutory text and still adhere to the catalyst rule. Under the rule, plaintiff's suit raising genuine issues must trigger defendant's voluntary action; plaintiff will not prevail under the rule if defendant "ceases . . . [his] offensive conduct" by dying or going bankrupt. See ante, at 615. A behavior-altering event like dying or bankruptcy occurs outside the lawsuit; a change precipitated by the lawsuit's claims and demand for relief is an occurrence brought about "through" or "in" the suit.
13 To qualify for fees in any case, we have held, relief must be real. See Rhodes v. Stewart, 488 U. S. 1, 4 (1988) (per curiam) (a plaintiff who obtains a formal declaratory judgment, but gains no real "relief whatsoever," is not a "prevailing party" eligible for fees); Hewitt v. Helms, 482 U. S., at 761 (an interlocutory decision reversing a dismissal for failure to state a claim, although stating that plaintiff's rights were violated, does not entitle plaintiff to fees; to "prevail," plaintiff must gain relief of "substance," i. e., more than a favorable "judicial statement that does not affect the relationship between the plaintiff and the defendant").
641
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