The opinion
BOYCE F. MARTIN, JR., Circuit Judge,
concurring.
I concur in the majority opinion, but write separately to express my view that, on the record as it now stands, the district court’s award of attorney’s fees was unwarranted. Under the standard espoused in Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 419-22 , 98 S.Ct. 694, 699-701 , 54 L.Ed.2d 648 (1978), a defendant in a Fair Housing Act case may recover attorney’s fees if the plaintiffs’ action was either brought in subjective bad faith, or was frivolous, unreasonable, or groundless. On the facts as alleged by the plaintiffs, the couple had a colorable claim, and thus the action was not groundless. As there is no evidence to support an alternate finding of *588 subjective bad faith, I conclude that the court’s award of attorney’s fees to the defendants was an abuse of discretion.
Fair Housing contends that the district court was precluded from finding plaintiffs’ action to be groundless, and awarding attorney’s fees to Center Park on that basis, because the plaintiffs prevailed on Center Park’s motions for summary judgment and directed verdicts. This Court has stated previously that “we are at a loss to understand how a case that is strong enough to withstand a motion for judgment at the conclusion of the plaintiffs proofs can be considered ‘frivolous, unreasonable, or without foundation’ ” under Christiansburg. Haynie v. Ross Gear Div. of TRW, Inc., 799 F.2d 237, 242 (6th Cir.1986) (per curiam), vacated as moot, 482 U.S. 901 , 107 S.Ct. 2475 , 96 L.Ed.2d 368 (1987). Here, plaintiffs survived not only one motion for a directed verdict at the close of their evidence, but also a second directed verdict motion before the case was finally submitted to the jury.
Center Park, however, argues that the district court’s denial of these motions should not operate as a per se bar to its recovery of attorney’s fees. In this regard, Center Park notes that the First, Second, and Third Circuits have held that the denial of such motions does not necessarily preclude an award of attorney’s fees on the basis that the plaintiffs ease was frivolous, unreasonable, or groundless. See Sassower v. Field, 973 F.2d 75, 79 (2nd Cir.1992) (plaintiffs survival of directed verdict motion does not signify that case necessarily has merit); Foster v. My das Associates, 943 F.2d 139, 144 (1st Cir.1991) (denial of directed verdict motion, standing alone, not given “decretory significance” in determining whether defendants were entitled to attorney’s fees); Brown v. Borough of Chambersburg, 903 F.2d 274, 279 (3rd Cir. 1990) (“denial of a motion for a directed verdict does not, as a matter of law, foreclose consideration of a defendant’s later request for fees based on the frivolousness of the claim”). In Sassower , for example, the Second Circuit observed that a district court might deny a defendant’s motion for a directed verdict, although expressing the belief that no reasonable jury could find for the plaintiff, simply in order to have a jury verdict in the event that a court of appeals disagreed with the district court’s view of the merits. Sassower, 973 F.2d at 79 ; see also Brown, 903 F.2d at 279 (district court’s denial of directed verdict motions because it could correct any error after case went to jury, and because court did not have sufficient recollection of facts to rule on motions, did not foreclose finding that case was groundless).
Our decision in Haynie does not absolutely foreclose an award of attorney’s fees to a civil rights defendant after the plaintiff has prevailed on a motion for a directed verdict. In Haynie, there was no evidence of subjective bad faith, which is an independent basis for supporting a fee award, and there was no suggestion that the district court denied the defendant’s directed verdict motion for reasons approximating those described in Sas-sower or Brown . Our statement in Haynie that “we are at a loss to understand how a case that is strong enough to withstand a motion for judgment at the conclusion of the plaintiffs proofs can be considered ‘frivolous, unreasonable, or groundless’ ” merely reflects how we look at each case on its own facts. I agree with the First, Second, and Third Circuits that the denial of such a motion does not necessarily foreclose a subsequent finding that the plaintiffs case was groundless, given circumstances similar to those set forth in Sassower and Brown .
Here, the district court denied the defendants’ motion for summary judgment, stating that the plaintiffs had made out a prima facie ease. Although the district court did not say so, it may reasonably be inferred that the district court also submitted the case to the jury for that reason. This is not indicative of groundlessness. See Haynie, 799 F.2d at 242 .
In granting the motion for attorney’s fees, the district court erred in relying on the pretrial investigations conducted by Fair Housing and the United States Department of Housing and Urban Development. Negative or inconclusive results of an agency’s pretrial investigations, standing alone, are not sufficient proof of groundlessness to support an award of attorney’s fees to a civil *589 rights defendant. Stenseth v. Greater Fort Worth and Tarrant County Community Action Agency, 673 F.2d 842, 849 (5th Cir.1982). In the context of employment discrimination, for example, the Equal Employment Opportunity Commission often issues a “no reasonable cause” letter after investigating a claim, but the complaining party still has the right to bring an action. See, e.g., Hale v. Cuyahoga County Welfare Dept., 891 F.2d 604 (6th Cir.1989) (after receiving EEOC “no reasonable cause” letter, plaintiff brought action, prevailed in district court, was awarded attorney’s fees, and, although victory was reversed on appeal, was not assessed defendant’s attorney’s fees). As the Supreme Court observed in Christiansburg, 434 U.S. at 422 , 98 S.Ct. at 700 -01:
[T]he course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
In the present case, I believe that the district court impermissibly “engage[d] in post hoc reasoning by concluding that because [the] plaintiff did not ultimately prevail, [its] action must have been unreasonable or without foundation” at the outset, based on the agency’s investigative results. Id. Accordingly, insofar as the issue of groundlessness is concerned, I conclude that the district court erred in awarding attorney’s fees to Center Park.
Center Park also argues, in the alternative, that the fee award was appropriate because the plaintiffs brought their action in subjective bad faith. The district court made no findings in this regard. There is nothing in the record that demonstrates the plaintiffs did not believe that a discriminatory act had occurred. To find subjective bad faith sufficient to support an attorney’s fee award to a prevailing civil rights defendant, there must be strong evidence that the plaintiff was untruthful regarding the basic allegations necessary for the claim. See Sassower, 973 F.2d at 79 (attorney’s fees may be awarded to defendant after plaintiff loses on directed verdict motion if court finds plaintiffs testimony perjured regarding basic facts necessary to her claim); compare Haynie, 799 F.2d at 242 (plaintiffs suspect testimony on collateral matters not a ground for granting attorney’s fees to defendant) with Carrion v. Yeshiva University, 535 F.2d 722, 728 (2nd Cir.1976) (plaintiffs testimony offered to establish prima facie case was “unmitigated tissue of lies” warranting award of attorney’s fees to defendant).
Here, there is no evidence supporting an inference of subjective bad faith, on the part of the plaintiffs, with respect to the allegations of discrimination. The central issue at trial was whether Center Park’s motivations for its actions were non-diseriminatory, rather than whether the plaintiffs were credible in their account of the basic facts necessary to support their claim. I cannot escape concluding that plaintiffs did not bring their action in subjective bad faith, and that Center Park therefore is not entitled to recover its attorney’s fees. Finally, I wish to emphasize that there is no legal authority for the district court’s statement that a housing advocate, such as Fair Housing, should be placed at “equal risk” with defendants regarding liability for attorney’s fees. Under Christiansburg, the same standard applies to Fair Housing as to any other plaintiff in civil rights litigation. For these reasons, I believe that the district court’s award of attorney’s fees to Center Park, on the basis of the current record, was unjustified.