dissenting.
I am not unsympathetic with the argument of the appellant, whose pursuit of her Title VII rights contributed to her eventual success at arbitration, but who,' until now, was denied an award of attorney’s fees. Nonetheless, I am constrained both by the language of § 706(k) and by the Supreme Court’s recent decision in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), to dissent.
Section 706(k) provides that attorney’s fees may be awarded to the “prevailing party” in “any action or proceeding under” Title VII. In this circuit, the plaintiff1 is deemed to have prevailed if he or she “essentially succeeds in obtaining the relief” sought on the merits. Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979). Here, no one questions that Sullivan received the relief she was seeking. The obstacle she faces in this appeal — and which, I maintain, she fails to hurdle — is the fact that the relief was granted not in an action or proceeding under Title VII but rather in an arbitration proceeding conducted pursuant to a collective bargaining agreement, not pursuant to the statute.
The district court relied on New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), in holding that, because the arbitration proceeding was not an action or proceeding under Title VII, Sullivan was not entitled to an attorney’s fee award. In Gaslight Club, the Supreme Court concluded that state proceedings “to which the complainant was referred pursuant to the provisions of Title VII” were “proceedings” under that title for purposes of § 706(k). 447 U.S. at 71, 100 S.Ct. at 2034 (emphasis added). *453The district court viewed Gaslight Club as controlling, declaring that
the reason that Gaslight Club is an authority adverse, rather than favorable, to Sullivan is that Mr. Justice Blackmun’s opinion for the Court places great emphasis on the fact that the New York administrative and judicial proceedings were— not just functionally, but formally as well — an integral part of vindication of the Title VII claim. As Mr. Justice Blackmun’s opinion carefully explains, Title VII requires exhaustion of state anti-discrimination mechanisms as a predicate to the pursuit of federal enforcement mechanisms where the state processes are deemed adequate to vindicate Title VII’s objectives. . . . Since New York’s anti-discrimination mechanisms meet federal standards, New York’s administrative/judicial adjudicatory process is part and parcel of an “action or proceeding” under Title VII.
504 F.Supp. at 584 (emphasis added).
On appeal, Sullivan makes no claim that the arbitration proceeding here was “part and parcel of an ‘action or proceeding’ under Title VII.” She concedes that the arbitration was not “an integral part of vindication of the Title VII claim,” but argues, instead, that “her work on the federal case . . . brought about the successful arbitration.” Because of this, she argues, “she is the prevailing party in her [Title VII] lawsuit.” Brief of Appellant at 8. According to Sullivan, the district court was engaged in the wrong inquiry: “The court did not ask whether work in the federal case produced positive results elsewhere; instead it asked only whether the proceedings elsewhere can be deemed to be included in the federal action for fee award purposes.” Such an inquiry, she asserts, was irrelevant.
The majority accepts this contention by Sullivan. In so doing it relies on a line of cases, unrelated to Gaslight Club, which hold, in effect, that if the plaintiff’s Title VII lawsuit is a catalyst in achieving her objective, she is a “prevailing party” for purposes of § 706(k) whether or not the Title VII action proceeded to judgment. E. g., Morrison v. Ayoob, 627 F.2d 669 (3d Cir. 1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980). See also Robinson v. Kimbrough, 620 F.2d 468 (5th Cir. 1980); Criterion Club of Albany v. Commissioners of Dougherty County, 594 F.2d 118 (5th Cir. 1979).
Unfortunately for the plaintiff, none of the “catalyst” cases are dispositive in the present proceeding. On the whole, they address the situation in which the plaintiff’s suit itself motivates the defendants voluntarily to change their conduct. In Morrison v. Ayoob, supra, for example, the plaintiffs filed suit alleging that the district justices of Beaver County, Pennsylvania, had violated the right-to-counsel rule of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). While the action was pending, the defendants voluntarily began to comply with Argersinger. The court held that because the suit filed by the plaintiff was a material factor in bringing about the change in the defendant’s conduct, the plaintiff could be deemed the “prevailing party.” 627 F.2d at 671. Similarly, in Ross v. Horn, supra, this Court concluded that the chronology of events strongly suggested a causal relationship between the case at bar challenging the procedures used by the New Jersey Department of Labor and Industry to prevent fraud in the receipt of unemployment benefits and the new procedures voluntarily adopted by the Department, which effectively mooted the claims in the case. Judge Higginbotham, for a unanimous panel, stated that “[i]n assessing who is a prevailing party, we look to the substance of the outcome. If the new procedures, which provided much of the relief appellants had initially sought, were implemented as a result of this lawsuit, the appellants were prevailing parties. ... ” 598 F.2d at 1322. Other circuits have announced a similar formulation. See e. g., Robinson v. Kimbrough, supra at 476 (“plaintiffs may recover attorneys’ fees if their lawsuit is a substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior”) (emphasis added).
*454It is important to emphasize the rationale underlying Mitchell, Ross, and the other “catalyst” cases. In such situations, the defendants, faced with the prospect of Title VII litigation, have three choices: they can litigate, risking an unfavorable judgment; they can accede to a consent decree; or they can spontaneously modify their conduct so as to moot the lawsuit. Clearly, if the parties choose to litigate, attorney’s fees are available, under § 706(k), to the prevailing party. A similar result ensues if the parties negotiate a settlement in which the plaintiff receives the relief he or she seeks. See Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). Mitchell and Ross merely applied § 706(k) to the situation in which the defendants chose not to litigate or to settle the lawsuit, but voluntarily decided, in response to the lawsuit, to alter their discriminatory behavior. The cases are thus consistent with the expression of congressional intent found in the legislative history of the Civil Rights Attorneys’ Fees Awards Act of 1976, S.Rep.No. 94-1011, 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Ad.News 5908, 5912: “[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” (emphasis added). As Congress recognized, the plaintiff’s institution of a lawsuit can evoke several responses from his or her adversary; as long as the plaintiff obtains the relief sought as a result of the lawsuit, no specific form of relief is required.
In Sullivan’s case, in contrast, the plaintiff obtained relief, not in her Title VII action, but in a separate, formal arbitration proceeding. The Title VII lawsuit did not motivate the employer voluntarily to change its employment practices; apparently, the employer was willing to litigate the claim. If anything, Sullivan’s federal claim motivated the union — not the employer — to take action and to press Sullivan’s grievance at arbitration. It was the favorable arbitration award, not the filing of the Title VII lawsuit, that compelled the employer to change its conduct.
While there may be a causal link here, in my view it is simply too attenuated to warrant a holding, by this Court, that Sullivan prevailed in an “action or proceeding under [Title VII].” It must be stressed that § 706(k) is an exception to the general “American” rule that each party pay its own attorney’s fee. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Thus, though we may construe this civil rights statute broadly, we are limited by its terms: “In any action or proceeding under [Title VII] the court ... may allow the prevailing party ... a reasonable attorney’s fee.... ” As Gaslight Club made clear — and as Sullivan concedes — the arbitration proceeding under which Sullivan prevailed is not an “action or proceeding” under Title VII. Nonetheless, the majority today holds that a plaintiff who pursues her rights under both Title VII and her union contract, and who prevails under the latter, is entitled to a counsel fee under § 706(k) of Title VII if the Title VII lawsuit “encourages” the union to fulfill its duty to represent fairly its aggrieved member, and if the union uses the work product of plaintiff’s Title VII counsel in successfully pursuing plaintiff’s contract claim. In stretching § 706(k) to accommodate this scenario, the majority has, I fear, twisted both the language of the statute and Congress’ stated intent in enacting the fee-shifting provision of Title VII.
I am not unmindful of what might appear to be unfairness in not awarding plaintiff an attorney’s fee. Sullivan’s counsel obviously performed valuable services that should not go unrecognized. Nor will they; Sullivan, who obtained the relief she sought in the arbitration, should — like most parties subject to the American rule — pay for her own counsel’s efforts. Nor am I unaware of the fact that, under the ruling proposed here, counsel in future Title VII cases may hesitate to provide assistance to unions concurrently processing grievances through arbitration. But the result advocated by the majority is fraught with an even more disturbing implication: the burgeoning of un*455necessary litigation in the federal courts. Because of today’s ruling, employees aggrieved by discriminatory practices may well file Title VII claims as an adjunct to already-initiated arbitration proceedings simply to ensure the eventual award of a counsel fee.
The Supreme Court has admonished us several times in the last several years to use the specific language in statutes enacted by the Congress when such language is, as here, clear on its face.2 And in Alyeska Pipeline, supra, the Court expressly declared that it is the responsibility of Congress, not of the courts, to expand the availability of attorney’s fee awards. From my perspective, the majority today has not simply interpreted a statute; it has rewritten the law.
Accordingly, I respectfully dissent.
. This discussion does not address the question whether a prevailing defendant is entitled to attorney’s fees in a case such as the one at hand. See Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).
. See, e. g., United States v. Rutherford, 442 U.S. 544, 555, 99 S.Ct. 2470, 61 L.Ed.2d 68 (1979) (“Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy. See Anderson v. Wilson, 289 U.S. 20, 27, 53 S.Ct. 417, 77 L.Ed. 1004 (1933). Only when a literal construction of a statute yields results so manifestly unreasonable that they could not fairly be attributed to congressional design will an exception to statutory language be judicially implied. See TV A v. Hill, [437 U.S. 153, 187, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)].”).