Argument analysis: The EEOC’s new theory of attorney’s fees liability

When the Court granted certiorari in CRST Van Expedited v. EEOC, the case looked like a dispute over the Eighth Circuit’s theory that attorney’s fees can be awarded to victorious defendants only if they prevail “on the merits.” In Monday’s argument, both parties stepped away from the Eighth Circuit’s theory. The dispute blossomed into an examination of the EEOC’s newly minted legal theory, a question of whether the EEOC had waived the right to present its new theory, and a parsing of the district court record to determine whether CRST had obtained a judgment “with prejudice.”

Title VII of the Civil Rights Act of 1964 contains a provision (Section 706(k)) that gives district courts discretion to award attorney’s fees to the “prevailing party.” Monday’s argument gave the Court its first opportunity to consider what “prevailing party” means when a judgment is entered in favor of a defendant rather than a plaintiff.

Is it enough that the defendant simply got a judgment against the EEOC, as CRST contends? Must that judgment be one that precludes any further litigation, as the EEOC maintains?

Background

The reason for CRST’s victory in the district court was that the EEOC – prior to bringing its lawsuit against CRST – had not performed its statutory pre-suit duties to conduct separate investigations, reasonable cause determinations, or conciliation attempts as to the sixty-seven individuals on whose behalf the EEOC had sued. Rather than stay the proceeding to allow the EEOC to comply (the procedure recommended by the Court in its later decision in Mach Mining LLC v. EEOC), the district court entered an order dismissing the case as to the sixty-seven individual claimants and then awarded CRST its attorney’s fees. The Eighth Circuit reversed the attorney’s fees award due to its rule that a defendant must obtain a favorable decision “on the merits” in order to be a “prevailing party” under Section 706(k).

The case was argued against the background of two influential decisions. The Court’s 1978 decision in Christiansburg Garment Co. v. EEOC limited a prevailing defendant’s recovery of attorney’s fees to a case in which the plaintiff’s actions were “frivolous, unreasonable, or without foundation.” But Christiansburg gave no hint as to how to determine whether a defendant is a “prevailing party.” In 2001 Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources – dealing with whether a plaintiff qualified as a prevailing party – said that a plaintiff must obtain a “judicially sanctioned change in the legal relationship of the parties.”

The EEOC’s basic argument is that (1) a defendant becomes a “prevailing party” only by obtaining a court order that precludes further litigation, and (2) CRST did not meet this threshold requirement because the district court did not dismiss the case “with prejudice.” This argument would essentially apply the Buckhannon test to both defendants and plaintiffs.

CRST’s basic argument is that (1) the Buckhannon rule makes no sense as applied to defendants because they simply want to preserve the status quo, (2) CRST “prevailed” by simply winning the case (with or without prejudice), and (3) in any event it did win a dismissal with prejudice. In addition, CRST argues that the EEOC waived its new legal theory by not previously raising it during six years of litigation.

The EEOC’s new-found rule

Assistant to the Solicitor General Brian H. Fletcher, arguing for the EEOC, pressed the Court to adopt a rule that is essentially the reciprocal of Buckhannon‘s rule for plaintiffs – that a defendant becomes a “prevailing party” only by obtaining a judgment that bars further litigation. This would require the defendant to obtain a dismissal order that is “with prejudice.”

Paul M. Smith of Jenner & Block argued on behalf of CRST that a defendant who wins is a prevailing party without regard to the reason why the case was dismissed. This would render the prejudice/without prejudice distinction irrelevant.

Justice Sonia Sotomayor asked Fletcher why the Buckhannon rule should apply to defendants, saying that defendants want to preserve the status quo rather than change it. In reply, Fletcher pointed out that defendants want the status quo ratified by a judicial decision, and that every court that has considered the question has said the Buckhannon rule applies to defendants.

Chief Justice John Roberts seemed to lean toward CRST’s view that a win is a win regardless of how it comes about. The Chief Justice said defendants want to win; they are less interested in the grounds for winning. Justice Stephen Breyer said he favored a rule that is simple, consistent with the statutory language, and easy to administer. As he put it, “Now, maybe [the EEOC] can bring another case tomorrow; that’s another case. But they won this case.”

Justice Samuel Alito commented that CRST did obtain a “material alteration” in the relationship between the EEOC and it – “not as big a one as the defendant would like,” but nevertheless cause for the defendant to celebrate.

Did the EEOC waive its argument?

The EEOC’s argument first surfaced in its brief on the merits. Smith argued that the EEOC waived this new argument because it was never raised in the district court or in the Eighth Circuit during six years of litigation, and was not mentioned in the EEOC’s brief at the certiorari stage. Fletcher explained that the case was litigated within the framework of Eighth Circuit precedent, which included a case requiring a defendant to get a judgment “on the merits” in order to be a prevailing party. In addition, the EEOC’s argument falls well within the question presented in CRST’s petition for certiorari. Chief Justice Roberts seemed sympathetic to those arguments, but Justice Sotomayor mentioned the possibility of sending the case back to the Eighth Circuit to decide whether there was a waiver. And Justice Elena Kagan bemoaned the fact that lower courts have not had a chance to weigh in on this argument.

With or without prejudice

Smith delved deeply into the district court record to demonstrate that CRST actually did obtain a judgment with prejudice, which would satisfy the EEOC’s legal theory. The case was litigated over a six-year span and produced multiple district court orders and two appeals to the Eighth Circuit. An order in 2009 was the one that dismissed the claims on behalf of sixty-seven claimants, and this order did not mention “prejudice.” However, Smith pointed out, the EEOC clearly understood that the 2009 order “barred these claims from ever seeing the inside of a courtroom.” As evidence, Smith cited comments made by the district judge and the fact that the EEOC later filed a motion under Federal Rule of Civil Procedure 60 complaining that it was prevented from litigating the claims. Further, Smith cited a 2013 order in which the district court dismissed the entire case (which had included other claimants) “with prejudice.”

Fletcher presented a different view of the trial court record. He emphasized that the 2009 order said nothing about prejudice – one way or the other. He then patched together Federal Rule of Civil Procedure 41(b) and the Court’s 1961 Costello v. United States decision to reach the conclusion that the district court’s failure to mention “prejudice” in its dismissal order does not bar a second proceeding. Further, Fletcher put the 2013 dismissal in a different context. He pointed out that by that time all of the potential claimants (which had once numbered over a hundred) except one had been winnowed out of the case. Therefore, the district court’s order dismissing the case with prejudice referred solely to the one remaining claimant’s case and not to the sixty-seven cases that had been dismissed in 2009.

This extensive analysis of the district court’s record prompted Justice Sotomayor to suggest remanding the case for the lower courts to determine what it meant. She also opined that the district judge must have thought CRST was a prevailing party because she did award attorney’s fees.

Frivolous, unreasonable, or without foundation

The Court queried the parties about the details of the litigation, trying to tease out whether the EEOC’s actions were unreasonable under the Christiansburg test. However, there seemed to be little stomach for deciding the case on this basis because of the complexities involved. Also, it would be odd for the Court to address that issue because the Eighth Circuit had not considered it.

Conclusion

It seems clear that there is no support on the Court for the Eighth Circuit’s “on the merits” rule. The Justices’ questions and comments suggest that they will prefer a bright-line rule – either that (1) a defendant prevails by winning in any fashion or (2) a defendant must gain a dismissal with prejudice. If the Court adopts the EEOC’s proposal that a defendant prevails only by obtaining a dismissal with prejudice, we should expect the Court to remand for the lower courts to sort out whether or not the dismissal in this case was with prejudice.