Petitioners Brief — CRST Van Expedited, Inc. v. Equal Emp't Opportunity Comm'n, 136 S. Ct. 582 (2015) (No. 14-1375)

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No. 14-1375

IN THE

Supreme Court of the Anited States

CRST VAN EXPEDITED, INC.,

Petitioner,

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF FOR PETITIONER

JOHN H MATHIAS, JR.

JAMES T. MALYSIAK

JENNER & BLOCK LLP

353 N. Clark St.

Chicago, IL 60654

(312) 222-9350

January 19, 2016

PAUL M. SMITH

Counsel of Record

JESSICA RING AMUNSON

BENJAMIN M. EIDELSON*

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

psmith@jenner.com

*Not admitted in DC;

supervised by principals of the

Firm.

PARTIES TO THIS PROCEEDING

The only two parties to this proceeding are

identified in the case caption on the cover.

RULE 29.6 DISCLOSURE STATEMENT

Petitioner CRST Van Expedited, Inc. is the wholly

owned subsidiary of its parent corporation, CRST

International, Inc., which is a_ privately held

corporation. No publicly held corporation owns any of

CRST Van Expedited’s or CRST International’s stock.

TABLE OF CONTENTS

QUESTION PRESENTED .................cccccsccosceseeseneereeseneeees i

PARTIES TO THIS PROCEEDING .00......e.cccccsceseseees ii

RULE 29.6 DISCLOSURE STATEMENT................... iii

TABLE OF AUTHORITIES ..............:.cccscccceocecceseeseneeee vii

Te 1

rar ecereeneneenenensnssssenssconneaens 1

EE 4

A. Bhatwtory Back Mround ...2..ccccccccccccscceccsscrscesscsesseseess 4

Le 8

ne 8

2. EEOC Investigation And Prelimi

PYOCOOGINGE ...<ccccccccecreseeseeee hireecieneenennennns 9

3. District Court Litigation And

Discovery Proceedings ...............-ssseeeeseeeee 10

4. Dismissal For Failure To Satisfy Pre-

a 15

5. First Appeal And Remand.....................0000+« 18

6. Decision Under Review....................c-c-es-esee 20

SUMMARY OF ARGUMENT ....00........:c.cccccssssssssseseesees 22

ee 26

Il.

Neither Section 706(k) Nor This Court’s

Decision In Christiansburg Requires That A

Defendant Prevail “On The Merits” In Order

I oa icieniiiiaiiinnaiinieriiiiiniinrinemntmnei 26

A. Section 706(k) Authorizes An Award Of

Fees To Any “Prevailing Party.”.......................- 27

B. District Courts May Award Fees To

Prevailing Defendants Whether Or Not

They Prevail “On The Merits.” ...................cce0000+ 30

1. The Eighth Circuit’s Rule Has No

Basis In Section 706(k) And Conflicts

WER Cher tatiet i000 .cccceccccscsccssccscescsesessesecsess

2. Imposing A “Merits-Only” Restriction

On Attorney’s Fee Awards Would

Undermine The Policy Of Section

Pe ccenmenmannmntememnmenenen 37

Even If Section 706(k) Could Be Read To

Require That A Defendant Prevail “On The

Merits,” CRST Prevailed On The Merits

EE ee aoe 41

A. The Pre-Suit Requirements Are

Elements Of The EEOC’s Cause Of

pe ae reer ae a ne 42

B. The Pre-Suit Requirements Are Not

Claim-Processing Rules, But Are

Mandatory, Substantive Limitations On

Liability In Cases Brought By The

ade cncenssenecumsvsomsevsusmmensnenasssnesmmncsessscemsasemecseneety 48

C. The Pre-Suit Requirements Serve To

Limit The EEOC’s Enforcement

Authority To Potentially Meritorious

Claims, And Here The EEOC Admitted

That It Did Net First Determine

Whether Its Claims Were Potentially

I counscsiniantusnineciiniantiinnnatsibiiendiineemmenanaie 51

CIES ccccrnscessnnnsennnssenmnssenmseenamencesmnmemensemennsen 57

vii

TABLE OF AUTHORITIES

CASES

Airframe Systems, Inc. v. L-3

Communications Corp., 658 F.3d 100 (1st

Eau a ciantassiasintncneresnsceneinenintnnitmateaienenendaniateiesnsnees 47

Arbaugh v. Y & H Corp., 546 U.S. 500

—__ en NT 25, 42, 43, 46, 47

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

IIa Ta nennrnncsrenntenenmsennntttnubeiainanintinaaininntesniinsneemnnes 51

Brubaker v. City of Richmond, 943 F.2d 1363

IE HI i iintenstrensiecersiennestssonnneenanitimnmineinccenanetiat 34

Buckhannon Board & Care Home, Inc. v.

West Virginia Department of Health &

Human Resources, 532 U.S. 598 (2001) .23, 28, 29

Burlington Northern Railroad Co. v. Woods,

ee We ee hintiisaininiitiesencsitapicninsenbiiiininstinbentmatanss 34

C.W. v. Capistrano Unified School District,

784 F.3d 1237 (9th Cir. 2015)............c.ccccsecscsecereees 33

Christiansburg Garment Co. v. EEOC, 434

ee a cniiinsitinnercinnnninncaistonzaiinanisoniniiia passim

Cote v. James River Corp., 761 F.2d 60 (1st

outs Lie ccinsibinnanasintesiininnsieneniaisiiasinitininieiiacstinaniabeeednes 33

CTS Corp. v. Waldburger, 134 S. Ct. 2175

ETE ictieeiniveneninivesilaienmimeniemimenpenmenseneeds 50

RD 33-34

Dura Pharmaceuticals, Inc. v. Broudo, 544

SE 46

EEOC v. Agro Distribution, LLC, 555 F.3d

8 39

EEOC v. Asplundh Tree Expert Co., 340 F.3d

ee ee NE SE tecstentrirnnnnnennsentintcnetttmmmnnmenes 39

EEOC. v. Bellemar Parts Industries, Inc.,

868 F.2d 199 (6th Cir. 1989)............cccscsceeeesesceeees 36

EEOC v. General Electric Co., 5382 F.2d 359

Re Se iencetieenscescnsensetiiiicnntarieinianiininmninnnsened 6

EEOC v. New Prime, Inc., 42 F. Supp. 3d

Se Cn SN SE i icnintereninibeinensninconnnaniememenmens 9

EEOC v. Pierce Packing Co., 669 F.2d 605

Sn Mi eieiciettitinriarininnecndaseaiainiinaanienniamanuanmases 39

EEOC v. Propak Logistics, Inc., 746 F.3d 145

a GUI HEE asteicnnitninacnsinttierniceanensticiacmapeennteeannenanned 33

EEOC v. Shell Oil Co., 466 U.S. 54 (1984).......... 36, 37

Farrar v. Hobby, 506 U.S. 103 (1992) .........ccccseeseseree 28

Fermin v. National Home Life Assurance

Co., 15 F.3d 180 (5th Cir. 1994)... ecceeceseeees 34

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).....30, 32

Fox v. Vice, 131 S. Ct. 2205 (2011)............cceccccereeeereeee 41

General Telephone Co. of the Northwest, Inc.

v. EEOC, 446 U.S. 318 (1980).............ccc00e 6, 43, 52

Gerstein v. Pugh, 420 U.S. 103 (1975) ............cccceceeees 52

Hallstrom v. Tillamook County, 493 U.S. 20

iinet ta iniatace iain ieaiiteaeans 48, 49

Hamer v. Lake County, 819 F.2d 1362 (7th

St iin tscirinatiatiianstiaanitabieeeninaatinneiainiiuseniaediataanseiniteias 33

Henderson ex rel. Henderson v. Shinseki, 562

ee I sceiricicnattanriaainsinarieaniaceniaiatl 25, 48, 50

Hewitt v. Helms, 482 U.S. 755 (1987)............- 23, 28, 29

Holmes v. Securities Investor Protection

Corp., 503 U.S. 258 (1992)..........ssssssssssereeserseeeeees 46

Hutcherson v. Board of Supervisors of

Franklin County, 742 F.2d 142 (4th Cir.

Tia icrinssibseninninninmenneininanneininbiiueibiemimmeenen 33

Independent Federation of Flight Attendants

v. Zipes, 491 U.S. 754 (1989)......ccecceccessesseeseeeeeee 30

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) ............000 6, 7

Latin American Music Co. v. Media Power

Group, Inc., 705 F.3d 34 (1st Cir. 20193).............. 47

Lexmark International, Inc. v. Static Control

Components, Inc., 134 S. Ct. 1377

als chisteiniinetaieiia tide iilieeasintitiiieainiaieaiad 43, 44, 45

Ee eneree 43, 48, 49, 50, 54

Maher v. Gagne, 448 U.S. 122 (1980)............ceeceeeeeees 28

Marquart v. Lodge 837, International

Association of Machinists and Aerospace

Workers, 26 F.3d 842 (8th Cir. 1994)..........s00000 29

Martin v. Franklin Capital Corp., 546 U.S.

SD Ga cesscenecenemnnenesseenennmennnsssenssmesssesests 37

McDonnell Douglas Corp. v. Green, 411 U.S.

ee 52

Newman v. Piggie Park Enterprises, Inc., 390

re GP Gee cnnserenscssasnsssmensnsemacnsseennesssemmnss 26

Occidental Life Insurance Co. of California v.

EEOC, 432 U.S. 355 (1977)......ccscecsesesees 5, 6, 48, 51

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154

a 46, 47

Roadway Express, Inc. v. Piper, 447 U.S. 752

GEE ccnssnecscunsenennsnnnentenseninpmeneiinmnannneneaes 32

Sole v. Wyner, 551 U.S. 74 (2007) ..........ccccssceseseseceesees 28

Thompson v. North American Stainless, LP,

562 U.S. 170 (2011)............scssceseeeceeceees 25, 43, 44, 45

U.S. Steel Corp. v. United States, 519 F.2d 359

ee 36

United States v. Hayes, 555 U.S. 415 (2009)............. 46

United States v. Zucca, 351 U.S. 91 (1956)......... 19, 52

STATUTES

eT ee 46

eee 46

Re 1

a ais Be eee 4

42 U.S.C. § BOODS-A(R) ..0ccccecceccceccccccecsrccscersccsecsscssscsecsess 4

42 U.S.C. § 2000€-5(D) ..........ceccsseseeeees 2, 5, 24, 38, 48, 55

42 U.S.C. § 2000e5-(f)(1) ........ 3, 5, 17, 43, 44, 48, 54, 55

42 U.S.C. § 2000€-5(K) ........recererereseeserereees 1, 7, 22, 26, 36

ee i icticiterrtenntennnnnisnimnimninsieninmmenn 36

I eiicesicenssentnnrniiciiiaienicininenninaninsiiis 36

ess rccrccnenesnitencnnnniinamiinetieannicetiil 36

LF 8? * SOE 49

re iii cnstiiniininitnineiiiniennontnimnnanies 49

Civil Rights Act of 1964, Pub. L. No. 88-352,

ho 8 ee 5

Civil Rights Act of 1964, Pub. L. No. 88-352,

a 4 8 ee 5

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 4, 86 Stat. 103, 104.............. 6

Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 5, 86 Stat. 103, 107.............. 7

LEGISLATIVE MATERIALS

110 Cong. Rec. 6534 (1964) (statement of Sen.

ID cecensassntentunteenenniemmnnmcenanemennnmmennens 41

110 Cong. Rec. 13,668 (1964) (statement of

Be ectstnencsccctiniecenicnneiniinennseninennman 31

118 Cong. Rec. 588-89 (1972) (statement of

A, ID ieritencccctcnnenssetncctennennsstmiemmnmneress 38

118 Cong. Rec. 671 (1972) (statement of Sen.

Serr T TInt Uniicitiscinsiavctasentineipectniateesiinetinieesinentinnnionn 52

118 Cong. Rec. 7563 (1972) (statement of Rep.

Pe rnticsnenccnstestensitsiencmnnnitinnsiniemennnnensianmenienion 38

OTHER AUTHORITIES

Consent Decree, EEOC v. Gordon Trucking,

Inc., Case No. 3:04-cv-5646 (W.D. Wash.

Oct. 4, 2004) (reprinted in ECF No. 150-5

Consent Decree, EEOC v. Swift

Transportation Co., Inc., Case No. 3:97-

cv-965 (D. Or. Oct. 28, 1998) (reprinted in

ECF No. 150-5 at 885)............ccsscee socsssssesssseserees

OPINIONS BELOW

The Eighth Circuit’s opinion (Pet. App. la) is

reported at 774 F.3d 1169 (8th Cir. 2014). The opinion of

the United States District Court for the Northern

District of Iowa (Pet. App. 33a) is unreported but is

available at 2013 U.S. Dist. LEXIS 107822 (N.D. Iowa

Aug. 1, 2013). The Eighth Circuit’s earlier opinion (Pet.

App. 86a) is reported at 679 F.3d 657 (8th Cir. 2012).

The district court’s earlier opinion (Pet. App. 164a) is

unreported but is available at 2009 U.S. Dist. LEXIS

71396 (N.D. Iowa Aug. 13, 2009).

JURISDICTION

The Eighth Circuit entered its judgment on

December 22, 2014, and denied petitioner’s timely

petition for rehearing en banc on February 20, 2015.

Petitioner filed a timely petition for certiorari on May

19, 2015, which this Court granted on December 4,

2015. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

Section 706(k) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(k), provides that:

In any action or proceeding under this

subchapter the court, in its discretion, may allow

the prevailing party, other than the Commission

or the United States, a reasonable attorney’s fee

(including expert fees) as part of the costs, and

the Commission and the United States shall be

liable for the costs the same as a private person.

Section 706 of Title VII, 42 U.S.C. § 2000e-5,

provides in pertinent part that:

(b) ... Whenever a charge is filed by or on behalf

of a person claiming to be aggrieved, . . . alleging

that an employer ... has engaged in an unlawful

employment practice, the Commission shall

serve a notice of the charge (including the date,

place and circumstances of the alleged unlawful

employment practice) on such employer...

(hereinafter referred to as the “respondent”)

within ten days, and shall make an investigation

thereof. ... If the Commission determines after

such investigation that there is not reasonable

cause to believe that the charge is true, it shall

dismiss the charge and promptly notify the

person claiming to be aggrieved and the

respondent of its action.... If the Commission

determines after such investigation that there is

reasonable cause to believe that the charge is

true, the Commission shall endeavor to eliminate

any such alleged unlawful employment practice

by informal methods of conference, conciliation,

and persuasion. ... The Commission shall make

its determination on reasonable cause as

promptly as possible and, so far as practicable,

not later than one hundred and twenty days

from the filing of the charge or, where applicable

under subsection (c) or (d) of this section, from

the date upon which the Commission is

authorized to take action with respect to the

charge.

(f)(1) If within thirty days after a charge is filed

with the Commission or within thirty days after

expiration of any period of reference under

subsection (c) or (d) of this section, the

Commission has been unable to secure from the

respondent a conciliation agreement acceptable

to the Commission, the Commission may bring a

civil action against any respondent not a

government, governmental agency, or political

subdivision named in the charge. ... If a charge

filed with the Commission pursuant to

subsection (b) of this section is dismissed by the

Commission, or if within one hundred and eighty

days from the filing of such charge or the

expiration of any period of reference under

subsection (c) or (d) of this section, whichever is

later, the Commission has not filed a civil action

under this section ..., or the Commission has

not entered into a conciliation agreement to

which the person aggrieved is a party, the

Commission ... shall so notify the person

aggrieved and within ninety days after the

giving of such notice a civil action may be

brought against the respondent named in the

charge (A) by the person claiming to be

aggrieved or (B) if such charge was filed by a

member of the Commission, by any person

whom the charge alleges was aggrieved by the

alleged unlawful employment practice.

STATEMENT

In the underlying litigation before the district court,

the Equal Employment Opportunity Commission

(EEOC) admitted that it had asserted 67 individual

claims of sexual harassment against CRST under Title

VII without first investigating the claims, determining

whether there was reasonable cause to believe them, or

attempting to conciliate them, as Title VII requires.

The district court therefore dismissed those claims, and

the Eighth Circuit affirmed. Based on those rulings,

which are no longer at issue, Petitioner sought, and the

district court awarded, attorney’s fees and costs

pursuant to Title VII and this Court’s decision in

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

(1978). The Eighth Circuit, however, reversed the fee

award based on that circuit’s rule that fee awards to

defendants require a resolution of the case “on the

merits.” As shown infra, there is no such limitation in

the statute or in this Court’s precedents. Nor would it

make sense to create one. And even if there were a

requirement that defendants prevail “on the merits” in

order to qualify for fees, such a rule would not bar the

award in this case.

A. Statutory Background

Title VII of the Civil Rights Act of 1964 prohibits

employment discrimination on the basis of race, color,

religion, sex, or national origin. 42 U.S.C. § 2000e-2.

Title VII also created the EEOC. Jd. § 2000e-4(a).

Title VII’s enforcement procedure begins when a

“person claiming to be aggrieved” by an “unlawful

employment practice” files a charge with the EEOC.

Id. § 2000e-5(b). The statute provides that the EEOC

“shall serve a notice of the charge” on the employer

(including “the date, place and circumstances of the

alleged unlawful employment practice”) and that the

EEOC “shall make an investigation.” Jd. If the EEOC

“determines after such investigation that there is not

reasonable cause to believe that the charge is true,” it

dismisses the charge and notifies the parties. Jd. The

individual claiming to be aggrieved may then sue the

employer in district court. Jd. § 2000e-5(f)(1). If,

however, the EEOC determines “that there is

reasonable cause to believe that the charge is true,” it

“shall endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion.” Jd. § 2000e-

5(b).

Under the 1964 Act, the EEOC had no authority to

bring suit if conciliation was unsuccessful. Rather,

“(tlhe failure of conciliation efforts terminated the

involvement of the EEOC.” Occidental Life Ins. Co. of

Cal. v. EEOC, 482 U.S. 355, 358-59 (1977). When

conciliation failed, the EEOC notified the individual

claiming to be aggrieved, and he or she could then bring

a civil action in district court. Jd.; see Civil Rights Act

of 1964, Pub. L. No. 88-352, § 706(e), 78 Stat. 241, 260.

The 1964 Act did, however, empower the Attorney

General to bring a civil action on behalf of the United

States if he or she had “reasonable cause to believe”

that an employer was intentionally “engaged in a

pattern or practice of resistance to the full enjoyment

of any of the rights secured by this title.” Jd. § 707(a),

78 Stat. at 261 (codified at 42 U.S.C. § 2000e-6(a)); see,

e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S.

324, 328-30 (1977).

In 1972, Congress modified the statute in two

significant respects. First, it authorized the EEOC to

bring a civil action against the employer named in a

charge if, after completing the above procedures, the

EEOC was “unable to secure from the respondent a

conciliation agreement acceptable to” it. Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-

261, § 4, 86 Stat. 103, 104 (codified at 42 U.S.C. § 2000e-

5(f)(1)). The amended Act thus established “an

integrated, multistep enforcement procedure

culminating in the EEOC’s authority to bring a civil

action in a federal court.” Occidental Life, 432 U.S. at

359. The EEOC must first investigate the charge; next

determine if there is reasonable cause to believe that it

is true; and then attempt to conciliate any credible

claims it identifies. See id. Only if the EEOC completes

these procedures and its conciliation efforts are

unsuccessful can it file suit based on those identified

claims. See id.’

' As this Court has noted, the courts of appeals have held that the

EEOC may litigate claims that it identifies in a reasonable

investigation of the original charge, even if those claims were not

raised in the charge itself. See Gen. Tel. Co. of the Nw., Inc. v.

EEOC, 446 U.S. 318, 331 (1980). This “reasonable investigation”

rule still requires that all claims be subject to an investigation, a

reasonable-cause determination, and a conciliation effort by the

EEOC before it brings suit. See, e.g., EEOC v. Gen. Elec. Co., 532

F.2d 359, 366 (4th Cir. 1976), cited in Gen. Tel. Co. of the Nw., Inc.,

446 U.S. at 331.

Second, while preserving the separate statutory

provision for “pattern or practice” actions, Congress

transferred that enforcement authority from the

Attorney General to the EEOC. Pub. L. No. 92-261, § 5,

86 Stat. at 107 (codified at 42 U.S.C. § 2000e-6(c), (e));

see Int’l Bhd. of Teamsters, 431 U.S. at 328 n.1. When it

brings a pattern-or-practice suit pursuant to the

separate statutory authorization in Section 707, the

EEOC “is not required to offer evidence that each

person for whom it will ultimately seek relief was a

victim of the employer’s discriminatory policy.” Int'l

Bhd. of Teamsters, 431 U.S. at 360. Rather, the EEOC’s

“burden is to establish a prima facie case that such a

policy existed. The burden then shifts to the employer

to defeat the prima facie showing of a pattern or

practice by demonstrating that the Government’s proof

is either inaccurate or insignificant.” Jd.

The statute has always provided, as ii does now,

that in any Title VII action, “the court, in its discretion,

may allow the prevailing party, other than the

Commission or the United States, a reasonable

attorney’s fee (including expert fees) as part of the

costs.” 42 U.S.C. §2000e-5(k). In Christiansburg

Garment Co. v. EEOC, 484 U.S. 412, 421 (1978), this

Court held that a district court may award an

attorney’s fee to a prevailing defendant under this

provision only “upon a finding that the plaintiff's action

was frivolous, unreasonable, or without foundation.”

B. Proceedings Below

1. Background

CRST is a family-owned long-distance trucking

company headquartered in Cedar Rapids, Iowa. JA

397a. CRST employs two-driver teams to transport

shipments throughout the nation on large tractor-

trailer trucks. /d.

Working conditions for CRST’s long-haul drivers

are unlike those for many jobs. The two-driver teams

spend up to twenty-two hours a day together operating

a large truck. The truck’s cab, with two front seats and

a two-bunk berth area, has both driving and living

functions. Trips may last up to twenty-one days, and

drivers usually spend no time with their families during

such trips. Access to restrooms and showers is limited.

Because drivers are continuously on the road, their

supervisors seldom see them working together. Jd. at

397a-398a.

CRST employs three categories of team drivers: (i)

trainees; (ii) lead drivers who provide the training; and

(iii) fully qualified co-drivers. All three categories of

drivers report to dispatchers. Jd. at 398a.

The EEOC interprets Title VII to require that

trucking companies compose their driver teams

without regard to sex. In 1997 and 2004, the EEOC

sued two trucking firms for implementing same-sex

assignment policies, seeking punitive damages. Both

cases were settled with consent decrees that “prohibit[]

the Company from preferring same-sex assignments of

drivers during training.” Consent Decree 5, EEOC v.

Gordon Trucking, Inc., Case No. 3:04-cv-5646 (W.D.

Wash. Oct. 4, 2004) (reprinted in ECF No. 150-5 at 124,

128); Consent Decree 5, EEOC v. + ° Transportation

Co., Inc., Case No. 3:97-cv-965 (D. Or. Oct. 28, 1998)

(reprinted in ECF No. 150-5 at 85, 89). The EEOC

recently prevailed in another challenge to a trucking

company’s same-sex driver team policy. EEOC v. New

Prime, Inc., 42 F. Supp. 3d 1201 (W.D. Mo. 2014). In

that case, the court agreed with the EEOC that such

policies are “facially discriminatory” and cannot be

justified by a concern to protect drivers from sexual

harassment. /d. at 1213-14.

Based on the EEOC’s requirements, CRST has

adopted a gender-neutral policy in composing its driver

teams. Consequently, women and men often drive

together. JA 401a. At the time of the events at issue,

14% of CRST’s drivers were women, which was “more

than three times as many women as an expert would

predict” based on “the availability of women in the

relevant labor market.” Jd. at 400a-401a.

2. EEOC Investigation and Preliminary

Proceedings

On December 1, 2005, Monika Starke, a CRST

driver, filed a Charge of Discrimination with the

EEOC, alleging two different incidents of sexual

harassment by two different male lead drivers. Pet.

App. 165a-166a. The EEOC undertook an investigation

of Ms. Starke’s allegations, and CRST voluntarily

provided a variety of requested information. Jd. at

167a-173a & n.6. Over the next several months, the

EEOC made additional requests for information about,

inter alia, other women who had driven with the

alleged harassers; other charges of harassment that

CRST had received from any government agency

within the past five years; and the driving histories of

all female drivers employed since 2005. Jd. at 171a-180a.

CRST voluntarily provided all of this information as

well. Jd. at 179a-180a.

On July 12, 2007, the EEOC issued a Letter of

Determination finding “reasonable cause to believe”

that CRST “subjected [Starke] to sexual harassment,”

and also that CRST “has subjected a class of employees

and prospective employees to sexual harassment.” JA

8lla. The parties tried and failed to conciliate Ms.

Starke’s claim. Pet. App. 183a. No other individual

claims were raised or discussed during the conciliation

process. When CRST inquired as to the purported

“class” identified in the EEOC’s Letter of

Determination, the EEOC responded that it “was not

able to provide names of all class members” or even “an

indication of the size of the class.” Jd. at 182a (quoting

JA 282a (Decl. of EEOC Investigator Bloomer)).

3. District Court Litigation and Discovery

Proceedings

On September 27, 2007, the EEOC filed a single-

count complaint under Section 706(f) of Title VII on

behalf of Ms. Starke and a class of “similarly situated”

but unidentified female employees of CRST. JA 783a-

809a. The EEOC sought injunctive relief and

compensatory and punitive damages for Ms. Starke and

* The EEOC subsequent!y made a reasonable-cause determination

with respect to one other individual charge of sexual harassment

filed by another CRST driver, Remcey Peeples. The EEOC

attempted to conciliate that claim in October 2007. JA 283a.

other women who had allegedly been sexually harassed

while they were employed by CRST. The complaint did

not make any allegations that CRST had engaged in a

“pattern or practice” of discrimination, and it did not

invoke Section 707 of Title VII. See id. at 792a-799a.

As the district court explained, neither the EEOC’s

Letter of Determination nor its complaint identified

any individual claimants other than Ms. Starke or

provided any “indication of how many ‘similarly

situated female employees’ the EEOC alleged to exist.”

Pet. App. 186a-187a. The court adopted a discovery

plan based on its impression that “the number of

allegedly aggrieved persons was relatively small.” Jd.

at 187a. In the course of discovery, however, “it became

clear that the EEOC did not know how many allegedly

aggrieved persons on whose behalf it was seeking

relief,” and that “the EEOC was using discovery to find

them.” Jd. at 188a. For example, between May and

September of 2008, the EEOC sent 2,730 letters to

former female employees of CRST soliciting them to

participate in the lawsuit. Jd.

Fearing that “this case would drag on for years as

the EEOC conducted wide-ranging discovery and

continued to identify allegedly aggrieved persons,” the

court set a deadline of October 15, 2008, for the EEOC

to identify all of the individuals whose claims it would

pursue in this case. Jd. at 188a-189a. Roughly one week

before the deadline, the EOC had identified 79 claims.

Id. at 189a. In the final days, however, the EEOC

began identifying large numbers of claims very quickly.

Id. at 190a. The EEOC ultimately named 270

individuals who had allegedly been sexually harassed

by male CRST drivers. Jd. at 189a.

Because the EEOC identified so many claims in

such a short period of time, CRST moved for an order

to show cause why the hastily identified claims should

not be dismissed on the ground that the EEOC could

not possibly have investigated them or adequately

determined their validity. In response, the EEOC

asserted that “[eJach class member named by the

EEOC ... has provided credible evidence of sexual

harassment.” JA 689a.° The EEOC also asserted that it

intended to litigate this matter as “a pattern or practice

case.” Id.

The district court accepted the EEOC’s

“represent[ation] to the court that ... it had a good-

faith belief that each and every one of the

approximately 270 women disclosed to CRST has an

actionable claim fcr sex discrimination.” /d. at 655a. But

the court warned the EEOC that if it later turned out

that its claims were not reasonably grounded, CRST

could file “an appropriate motion.” Jd. at 656a. The

district court also advised CRST that, “({clonsistent

with the EEOC’s representations to the court, CRST

may assume with some certainty that this is

approximately a 270-person pattern-or-practice case.”

Id. at 657a.

* The EEOC noted one exception: it had named 56 women with

whom it had not yet had “personal contact,” but as to whom it

nonetheless “ha[d] a good faith belief that they were likely victims

of sexual harassment.” JA 696a.

The number of claimants was reduced, however,

when the district court dismissed 99 of the EEOC’s

original 270 individual claims as a discovery sanction—

which the EEOC did not appeal—because the claimants

did not appear for their depositions. Pet. App. 192a.

The EEOC unilaterally dropped 18 other claims. That

left 154 claimants, each of whom CRST deposed.

After discovery closed, CRST moved for summary

judgment with respect to the EEOC’s contention that

CRST had engaged in a “pattern or practice” of

discrimination, as well as with respect to a majority of

the EEOC’s individual claims. JA 30a-34a.

In ruling on CRST’s pattern-or-practice motion, the

court emphasized that “[tJhe EEOC did not plead 4

violation of § 707, and the phrase ‘pattern or practice’—

a phrase with which the EEOC is familiar—appears

nowhere in the EEOC’s Complaint.” Jd. at 382a.

“(M]Juch confusion ha[d] ... crept into this case,”

however, through the EEOC’s repeated use of “pattern

or practice” terminology in its briefing, which raised

the concern that it was “pursuing matters in this case

that it did not plead or allege in [its] Complaint.” Jd.

The district court noted that it appeared “the EEOC is

attempting to have its cake and eat it too,” by

“attempting to avail itself of the Teamsters burden-

shifting framework yet still seek compensatory and

punitive damages under § 706.” Jd. at 383a.

The court explained that it would bypass the “cloud

of confusion” by simply assuming that the EEOC was

entitled to argue a “pattern or practice” theory of

liability. Jd. The court then rejected that theory on the

merits. In particular, the court found that CRST’s

written anti-harassment policy and its enforcement of

that policy satisfied Title VII’s requirements, id. at

429a-431a, and that the incidence of allegations of

sexual harassment at CRST was too low to suggest any

wrongful pattern or practice, id. at 43la-433a. The

court therefore concluded that the EEOC had not

established even a prima facie case of a pattern or

practice of tolerating sexual harassment. Jd. at 429a;

see id. at 433a (explaining that “the EEOC’s argument

boils down to little more than its bald assertions”). The

court therefore held that “[t]o the extent that the

EEOC asserts a ‘pattern or practice claim’ in this

litigation against CRST, such claim is dismissed with

prejudice.” Jd. at 442a.

The district court also granted summary judgment

to CRST with respect to 87 of the EEOC’s remaining

154 individual claims. Because CRST does not operate a

large common workplace, such as a factory or office,

each of the claims was based on unique facts, including

different female drivers, alleged harassers, trucks,

locations, times, and types of alleged harassment. The

grounds for the court’s summary judgment rulings

varied from claim to claim and included that the alleged

harassment was not severe or pervasive; that the

female drivers had not complained of harassment when

CRST could have acted to semedy it; that CRST had

adequately responded when it did receive timely

complaints; and that some claims were time-barred.‘

‘ The district court’s summary judgment rulings on the EEOC’s

individual claims are included in the Joint Appendix. See JA 312a-

346a (statute of limitations); JA 292a-31la (judicial estoppel); JA

223a-274a (interveners’ claims); JA 205a-222a (failure to report or

4. Dismissal For Failure To Satisfy Pre-Suit

Obligations

After the summary judgment rulings, 67 individual

claims remained. Although the EEOC’s class-wide

“pattern or practice” theory had been rejected, the

EEOC persisted in pressing these claimants’

allegations, seeking to “present separate claims for

each” at trial based on their particular facts. JA 348a

(EEOC’s Resistance to Mots. In Limine). CRST moved

to dismiss these claims on the ground that the EEOC

had not fulfilled its statutory obligations to investigate

the facts, determine whether there was reasonable

cause to believe that the complainants’ allegations were

true, and then, if so, attempt to conciliate their claims

before bringing suit on their behalf.

In response to CRST’s motion, the district court

required the EEOC to specify whether and when it had

investigated, found reasonable cause, and attempted to

conciliate each of the claims. Jd. at 278a-279a. In its

submission, the EEOC conceded that, with respect to

the “individual claim[s] of sex harassment” brought by

each of the remaining 67 women, it had made “no

separate investigation ... prior to litigation,” reached

“no separate Reasonable Cause Determination,” and

attempted “no separate conciliation.” Supp. App. 5-42.

effective CRST response to reported harassment); JA 186a-204a

(alleged harassment not severe or pervasive); JA 175a-185a (two

or more grounds).

* The EEOC also conceded that it did not investigate, find

reasonable cause, or attempt to conciliate any of the other claims

resolved on summary judgment, with the exception of its two

claims on behalf of Ms. Starke and Ms. Peeples. See JA 10la

However, the EEOC argued that, because it

investigated Ms. Starke’s charge of sexual harassment

against CRST and included an undefined “class of

employees” in its Letter of Determination for Ms.

Starke’s charge (as well as in another Letter for one

other individual charge), the EEOC was not required to

satisfy the pre-suit requirements for the hundreds of

other individual claims that it added in the course of

litigation.”

The district court rejected the EEOC’s argument.

As the court explained, the EEOC may pursue related

claims that emerge in its pre-suit investigation, even if

they are not raised in the original charge, as long as

these claims are “included in the reasonable cause

determination and subject to a conciliation proceeding.”

Pet. App. 199a (quoting EEOC v. Delight Wholesale

Co., 973 F.2d 664, 668-69 (8th Cir. 1992)). But, the court

held, the EEOC may not avoid those requirements by

including a “vague reference to a ‘class’ in the Letter of

Determination” and then projecting back into that

“class” hundreds of individual Section 706 claimants

whom it discovers later. Jd. at 21la-212a; see id. at 206a

n.21. In effect, the court concluded, the EEOC was

seeking to “bootstrap the investigation, determination

(EEOC Reply Br. in No. 13-3159 (8th Cir.)). CRST has not sought

to recover its fees with respect to the EEOC’s claims on behalf of

Ms. Peeples or Ms. Starke.

* The EEOC did not argue that it investigated a pattern-or-

practice claim against CRST, and the administrative record does

not reveal any investigation of such a claim. See ECF No. 244-2. As

noted below, the EEOC has disavowed any pattern-or-practice

claim in this case. See infra at 20.

and conciliation of the allegations of Starke and a

handful of other allegedly aggrieved persons into a

§ 706 lawsuit with hundreds of allegedly aggrieved

persons.” Jd. at 206a.

Based on the record, including the EEOC’s

administrative record of its investigation of Ms.

Starke’s charge, the district court found that the

“EEOC did not conduct any investigation of the specific

allegations of the allegedly aggrieved persons for whom

it seeks relief at trial before filing the Complaint—let

alone issue a reasonable cause determination as to

those allegations or conciliate them.” Id. at 204a.

Rather, “(t]he record shows that the EEOC wholly

abandoned its statutory duties as to the remaining 67

allegedly aggrieved persons in this case.” Jd. The court

noted, for example, that the EEOC did not “interview

any witnesses or subpoena any documents to determine

whether any of the[] allegations were true.” Jd. at 205a.

None of the alleged harassers was ever interviewed.

Accordingly, the court barred the EEOC from

pursuing its remaining 67 claims, dismissed the

EEOC’s complaint, and entered judgment for CRST.

Id. at 215a-216a.’ The district court also awarded CRST

$4,004,371 in attorney’s fees and $463,071 in expenses,

in addition to taxable costs. JA 174a. The court

" Although the EEOC’s claims were dismissed, Title VII provided

all 67 individuals the right to pursue their own claims in their own

names. See 42 U.S.C. § 2000e-5(f)(1). Three of the 67 individuals

filed sexual harassment charges against CRST and intervened in

the EEOC’s action to assert their own claims through their own

counsel. Those three claims survived the dismissal of the EEOC’s

claims on their behalf. See Pet. App. 194a n.18.

determined that such an award of attorney’s fees was

appropriate under Christiansburg “because the

EEOC’s actions in pursuing this lawsuit were

unreasonable, contrary to the procedure outlined by

Title VII and imposed an unnecessary burden upon

CRST and the court.” Jd. at 143a. The court further

found that “({aJn award of fees is necessary to guarantee

that Title VII’s procedures are observed in a manner

that maximizes the potential for ending discriminatory

practices without litigation in federal court.” 7d.

Although the court “ma[de] no finding as to whether

the trial attorneys for the EEOC acted in bad faith,” it

noted that “higher-level attorneys” at the EEOC had

made sensational public statements accusing CRST of

“rampant sexual harassment” even though the EEOC

had not investigated its own claims. Jd. at 143a n.4; see

Pet. App. 214a n.25 (same).

&. First Appeal And Remand

The EEOC did not appeal the district court’s

pattern-or-practice ruling, including the court’s finding

that the EEOC did not establish even a prima facie

case that CRST engaged in a pattern or practice of

tolerating sexual harassment. The EEOC likewise did

not appeal the dismissal of 99 of its claims as a

discovery sanction for failing to make those claimants

available for deposition. And the EEOC did not appeal

the court’s grants of summary judgment with respect

to 47 of its other individual claims.

The EEOC did, however, appeal 40 of the 87

individual grants of summary judgment, as well as the

award of fees and costs. The Eighth Circuit affirmed 38

of the 40 grants of summary judgment, but reversed as

to the other two, which concerned the individual claims

that the EEOC brought on behalf of Monika Starke and

Tillie Jones. Pet. App. 155a-156a. Because those two

claims were remanded to the district court, there was

no final judgment in place, and the Eighth Circuit

accordingly vacated the district court’s award of fees

and costs without prejudice. Jd. at 156a.

The EEOC also appealed the dismissal of the 67

claims for failure to satisfy Title VII’s pre-suit

requirements. The Eighth Circuit affirmed the

dismissal, agreeing both that the EEOC had “wholly

failed” to satisfy Title VII’s pre-suit requirements and

that dismissal was a permissible remedy under the

circumstances. Jd. at 115a-116a. The EEOC did not

seek review from this Court of the Eighth Circuit’s

holding on either point.

On remand, the EEOC withdrew its claim on behalf

of Ms. Jones ecause, under the law of the case, its

failure to investigate, find reasonable cause, and

attempt to conciliate her claim barred further litigation.

The parties then settled the EEOC’s claim on behalf of

Ms. Starke and jointly moved to dismiss the case. The

court entered a new final judgment dismissing the case

with prejudice. JA 115a-119a.

CRST then renewed its petition for an award of

attorney’s fees and costs. Drawing on nearly six years

of experience with the case and the parties, and

evaluating that experience in light of this Court’s

guidance in Christiansburg, the district court again

found that the EEOC’s pursuit of its claims was

unreasonable. Pet. App. 64a. The court awarded CRST

$4,189,296 in attorney’s fees, $413,387 in out-of-pocket

expenses, and $91,758 in taxable costs. Pet. App. 84a-

85a.

6. Decision Under Review

The EEOC appealed the fee award to the Eighth

Circuit. The EEOC contended that, because it had

obtained a settlement regarding Ms. Starke, it was the

prevailing party. The EEOC argued alternatively that,

even if the EEOC had not prevailed, CRST was not

entitled to a fee award because CRST was not a

prevailing party either and the Christiansburg test was

not satisfied. The EEOC also contended that the

district court should not have awarded fees to CRST

for successfully litigating the “pattern-or-practice

issue,” in part because “EEOC’s one-count complaint

does not include a ‘pattern-or-practice claim.” JA 113a

& n.18. The EEOC expressly disavowed that it had

brought any pattern-or-practice claim and explained

that it had merely sought to “use a pattern-or-practice

method of proof” to support its individual claims on

behalf of the various claimants under Section 706. Jd. at

1l4a.

The Eighth Circuit rejected the EEOC’s contention

that it was the prevailing party. Pet. App. 17a-18a. The

court vacated the district court’s fee award with

respect to 84 of the individual claims resolved on

summary judgment, however, because the district

court “did not make particularized findings of

frivolousness, unreasonableness, or groundlessness as

to each individual claim.” Jd. at 28a. The Eighth Circuit

remanded these claims to the district court to make

such individualized determinations. It also held that,

“to the extent that the district court’s order awarded

attorneys’ fees to CRST based on a purported pattern-

or-practice claim,” the court had erred because “the

EEOC did not allege that CRST was engaged in ‘a

pattern or practice’ of illegal sex-based discrimination

or otherwise plead a violation of Section 707 of Title

VII.” Jd. at 17a-18a (quotation marks omitted).

Finally, in the ruling under review here, the Eighth

Circuit reversed the fee award with respect to the 67

claims dismissed because of the EEOC’s failure to

satisfy Title VII’s pre-suit requirements. The EEOC

had argued that the district court’s dismissal of these

claims did not “constitute a ruling on the merits,” and

that consequently CRST “cannot be a prevailing party

with respect to those claims.” /d. at 18a. The Eighth

Circuit agreed, holding that the dismissal of those

claims “does not constitute a ruling on the merits,” and

that “[tJherefore, CRST is not a prevailing party as to

these claims.” Jd. at 23a-24a. The court also held that

CRST could not satisfy the Christiansburg standard

for the same reason: “[P]roof that a plaintiff's case is

frivolous, unreasonable, or groundless is not possible

without a judicial determination of the plaintiff's case

on the merits.” Jd. at 18a (quoting Marquart v. Lodge

837, Int'l Ass'n of Machinists & Aerospace Workers, 26

F.3d 842, 852 (8th Cir. 1994)).

CRST petitioned for rehearing en banc, which was

denied on February 20, 2015. Jd. at 218a. On December

4, 2015, this Court granted CRST’s petition for

certiorari.

SUMMARY OF ARGUMENT

Section 706(k) authorizes district courts to award

attorney’s fees to the “prevailing party” in a Title VII

case and “entrust({s] the effectuation of the statutory

policy to the discretion of the district courts.”

Christiansburg, 434 U.S. at 416; see 42 U.S.C. § 2000e-

5(k). That discretion is limited by this Court’s decision

in Christiansburg, which permits a fee award to a

prevailing defendant only if the plaintiffs lawsuit was

“frivolous, unreasonable, or without foundation.” 434

U.S. at 421.

The’ district court concluded’ that the

Christiansburg standard was satisfied in this case

because the EEOC “wholly abandoned” its statutory

obligation to investigate the allegations at issue here,

determine whether they were supported by

“reasonable cause,” and attempt conciliation before

bringing suit. Pet. App. 204a. As the district court

recognized, that failure rendered the EEOC’s claims

unreasonable because the EEOC had not followed the

pre-suit administrative procedure required by Title

VII and had instead placed “an unnecessary burden

upon CRST and the court.” JA 143a. The district court

also concluded that a fee award to CRST was

“necessary to guarantee that Title VII’s procedures are

observed in a manner that maximizes the potential for

ending discriminatory practices without litigation in

federal court.” Jd.

The Eighth Circuit agreed that the EEOC “wholly

failed to satisfy its statutory pre-suit obligations” in

this case. Pet. App. 115a-116a. But the court reversed

the award of fees on the ground that fee awards are

available only when a defendant prevails “on the

merits,” and CRST had not prevailed “on the merits”

here. That holding is doubly erroneous. Fee awards to

prevailing defendants are not limited to cases that are

decided “on the merits,” and in any event, a dismissal

based on the EEOC’s failure to satisfy Title VII's pre-

suit requirements is properly viewed as a ruling “on the

merits” of the EEOC’s case.

1. The Eighth Circuit’s rule that a prevailing

defendant may recover fees only when a case is decided

“on the merits” has no basis in the statute, conflicts

with this Court’s decision in Christiansburg, and

severely undermines the policy of Section 706(k). As an

initial matter, there can be no doubt that a defendant

who secures a dismissal with prejudice, as CRST did

here, is a “prevailing party.” As this Court has

explained, the prototypical “prevailing party” is a

“party in whose favor a judgment is rendered.”

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Health & Human Res., 5382 U.S. 598, 603 (2001)

(quotation marks omitted). While a plaintiff must

obtain “relief on the merits of his claim” to prevail,

Hewitt v. Helms, 482 U.S. 755, 760 (1987), such a

requirement cannot logically apply to defendants, who,

by definition, have no claims and seek no relief.

There is no basis for excluding all defendants who

prevail on purportedly “non-merits” grounds from the

statutory authorization for fee awards. The

Christiansburg standard aims to protect defendants

from the costs of unreasonable lawsuits without unduly

deterring plaintiffs from seeking their day in court. In

essence, Christiansburg promises plaintiffs that they

will not have to pay the defendant’s fees, even if they

lose, so long as their decision to bring suit was

“reasonable” in the first place. 434 U.S. at 422. As lower

courts applying Christiansburg have _ repeatedly

recognized, that decision to litigate can be unreasonable

for many reasons that do not bear on the ultimate

merits of the claims—including, for example, when the

suit is obviously time-barred or moot. Awarding fees in

such cases is entirely consistent with Christiansburg’s

letter and logic.

By contrast, categorically denying fees in such cases

would frustrate the congressional policy choice

embodied in Section 706(k): to ensure that plaintiffs

who impose unnecessary and unreasonable litigation

costs on defendants will bear the costs of their own

choices. If, as the EEOC contends, CRST prevailed on

“non-merits” grounds in this case, that only confirms

that Congress’s concerns are fully engaged in “non-

merits” cases. CRST thoroughly litigated all 67 claims

at issue here, including taking the deposition of each

claimant, even though the EEOC ultimately admitted

that it had not investigated or found “reasonable cause”

to believe that the claimants’ allegations of sexual

harassment were “true” before bringing suit. 42 U.S.C.

§ 2000e-5(b). Congress conditioned the EEOC’s power

to sue upon satisfaction of its pre-suit responsibilities—

thereby making federal courts a last, rather than first,

resort—in order to avoid burdening defendants and

courts with avoidable litigation costs of this kind.

Congress could not plausibly have intended to preclude

a fee award, which is itself a backstop protection for

defendants shouldered with unreasonable litigation

costs, when the EEOC violates these statutory

safeguards. Such a rule would leave the EEOC free to

disregard its pre-suit responsibilities with impunity

and to attempt to coerce settlement of uninvestigated,

unevaluated, and unconciliated claims through the

threatened or actual imposition of massive litigation

expense in federal courts.

2. Even if Congress intended Section 706(k) to limit

defendants’ fee awards to cases decided “on the

merits,” which it did not, this case would still qualify.

The pre-suit requirements that the EEOC failed to

satisfy here are elements of its statutory cause of

action, comparable in form and function to other

conditions in Title VII that the Court has already

recognized as such. See Thompson v. N. Am. Stainless,

LP, 562 U.S. 170 (2011) (limitation of private right of

action to plaintiffs who are “aggrieved”); Arbaugh v. Y

& H Corp. 546 U.S. 500 (2006) (numerosity

requirement for a covered “employer”’). Moreover,

unlike claim-processing rules that “seek to promote the

orderly progress of litigation,” Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011), Title

VII’s__ pre-suit requirements are _ substantive,

mandatory conditions that determine whether a court

may hold an employer liable in a case brought by the

EEOC at all. Indeed, a central purpose of the pre-suit

requirements is to prevent the EEOC from litigating

eases that it has not first screened for merit and

determined there is “reasonable cause” to pursue. The

EEOC’s claims were dismissed in this case because the

EEOC failed, inter alia, to first determine whether the

allegations that it intended to litigate had sufficient

merit to warrant requiring CRST to defend itself in

court. In all of these senses, the district court decision

goes directly to “the merits” of the EEOC’s case.

ARGUMENT

I. Neither Section 706(k) Nor This Court’s

Decision In Christiansburg Requires That A

Defendant Prevail “On The Merits” In Order

To Be Awarded Fees.

In order to obtain an award of attorney’s fees in a

Title VII case, a litigant must clear two hurdles. First,

it must qualify as a “prevailing party” within the

meaning of the statute. 42 U.S.C. § 2000e-5(k). Second,

because the statute provides only that the court “may”

award fees to the prevailing party, a prevailing party

must also establish that a fee award is warranted in its

case. This Court has held that, under Section 706(k), “a

prevailing plaintiff ordinarily is to be awarded

attorney’s fees in all but special circumstances.”

Christiansburg, 434 U.S. at 417; see Newman v. Piggie

Park Enters., Inc., 390 U.S. 400, 402 (1968). A district

court may award fees to a prevailing defendant,

however, only “upon a finding that the plaintiff's action

was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith.”

Christiansburg, 434 U.S. at 421.

In this case, the Eighth Circuit imposed a new third

hurdle for a defendant to clear, holding that no

attorney’s fees could be awarded with respect to the

claims at issue because they were not resolved “on the

merits.” Specifically, it held both that CRST was “not a

prevailing party as to these claims” because there was

no “ruling on the merits,” Pet. App. 23a (emphasis

added), and, additionally, that the Christiansburg

standard could not be satisfied “without a judicial

determination of the plaintiff's case on the merits,” id.

at 18a (quoting Marquart, 26 F.3d at 852). The Eighth

Circuit erred in imposing this third hurdle, which has

no basis in the statute or this Court’s cases and

subverts the congressional policy providing for fee

awards to defendants in appropriate cases.

A. Section 706(k) Authorizes An Award Of Fees

To Any “Prevailing Party.”

Section 706(k), like many other fee-shifting statutes,

authorizes an award of attorney’s fees to “the

prevailing party.” 42 U.S.C. § 2000e-5(k). The Eighth

Circuit’s conclusion that only some defendants who win

judgments in their favor have “prevailed” is contrary to

the ordinary meaning of the word and its traditional

legal significance.

Indeed, it is not clear that the EEOC itself defends

the Eighth Circuit’s singular definition of a “prevailing

party” in this Court. In the court below, the EEOC

urged that CRST could not be a “prevailing party”

under circuit precedent without securing a judgment

“on the merits.” See JA 105a-112a. The Eighth Circuit

agreed. Pet. App. 23a. In its Brief in Opposition to

Certiorari, however, the EEOC casts its victory below

as an application of Christiansburg—with no mention

of the threshold “prevailing party” inquiry—and

defends the decision solely on that ground. See Brief in

Opposition 8, 10.

In any event, the Eighth Circuit’s limitation of the

definition of a “prevailing” defendant to one that

prevails “on the merits” is untenable. The paradigm of

a “prevailing party” is “[a] party in whose favor a

judgment is rendered.” Buckhannon Bd. & Care

Home, Inc., 532 U.S. at 603 (quoting Black’s Law

Dictionary 1145 (7th ed. 1999)). There is no question

that the district court rendered judgment in favor of

CRST with respect to the claims at issue here. See Pet.

App. 215a-216a. Accordingly, CRST is the “prevailing

party” with respect to those claims.

To be sure, this Court has often held that a plaintiff

is not a “prevailing party” unless it obtains “at least

some relief on the merits of [its] claim.” Hewitt, 482

U.S. at 760. The most familiar form of “relief on the

merits” is a favorable judgment, see Farrar v. Hobby,

506 U.S. 103, 112-13 (1992), although other forms of

victory can also suffice, see Maher v. Gagne, 448 U.S.

122, 129 (1980) (upholding fee award where plaintiffs

settled and obtained a consent decree); cf. Buckhannon

Bd. & Care Home, Inc., 532 U.S. at 605 (explaining that

“(a] defendant’s voluntary change in conduct, although

perhaps accomplishing what the plaintiff sought to

achieve by the lawsuit,” does not suffice for prevailing

party status). Some relief “on the merits” is necessary

for a plaintiff to prevail because the “touchstone of the

prevailing party inquiry” is whether there has been a

“material alteration of the legal relationship of the

parties.” Sole v. Wyner, 551 U.S. 74, 82 (2007)

(quotation marks omitted). In other words, a plaintiff

cannot “prevail” without prevailing “on the merits”

because there is no other way for a plaintiff to secure “a

court-ordered ‘chang{e] [in] the legal relaticnship” with

the defendant. Buckhannon Bd. & Care Home, Inc.,

532 U.S. at 604 (quoting Texas State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)

(brackets in original)).

Things look different from the other side of the

courtroom. The defendant is not seeking “relief on the

merits of [any] claim,” Hewitt, 482 U.S. at 760, and the

only change in the legal relationship that a defendant

wants is a dismissal, with prejudice, of the plaintiffs

ease. Such a dismissal is “the stuff of which legal

victories are made” for the defense bar. IZd.

Accordingly, there is no logical basis for excluding

defendants who prevail by obtaining a dismissal with

prejudice, albeit on purportedly “non-merits” grounds,

from the category of “prevailing defendants.”

The Eighth Circuit itself has recognized that if it

used the “material alteration” standard that applies to

plaintiffs, a defendant who wins a dismissal with

prejudice on non-merits grounds “would technically be

a prevailing party.” Marquart v. Lodge 837, Int’l Ass’n

of Machinists & Aerospace Workers, 26 F.3d 842, 851

(8th Cir. 1994). However, the court nonetheless

adopted a “very narrow” definition of a “prevailing

defendant” based on its sense of “the public policy

conception of the role of the judiciary.” Jd. at 851-52. In

so doing, the court purported to follow “lessons learned

from” this Court’s decision in Christiansburg. Id. at

850.

Christiansburg, however, adopted a rule of

“treating prevailing plaintiffs and defendants

differently,” not defining those categories differently at

the threshold. Fogerty v. Fantasy, Inc., 510 U.S. 517,

523 (1994) (emphasis added); see Christiansburg, 434

U.S. at 421; see also Indep. Fed’n of Flight Attendants

v. Zipes, 491 U.S. 754, 759 (1989) (explaining that “in

Christiansburg Garment we held that even though the

term ‘prevailing party’ in § 706(k) does not distinguish

between plaintiffs and defendants, the principle [that a

prevailing plaintiff should ordinarily recover fees]

would not be applied to a prevailing defendant”

(emphasis added; citation omitted)). Accordingly, there

was no basis for the Eighth Circuit to impose an

additional requirement for a defendant to qualify as a

“prevailing party.”

B. District Courts May Award Fees To

Prevailing Defendants Whether Or Not They

Prevail “On The Merits.”

Because a defendant who obtains a judgment in its

favor is plainly a “prevailing party,” the central issue in

this case is whether a district court has discretion to

award fees to such a prevailing defendant when the

decision rests on “non-merits” grounds. Nothing in the

statute or in Christiansburg favors stripping judges of

that discretion, which would serve only to undermine

the important policy objectives of Section 706(k).

1. The Eighth Circuit’s Rule Has No Basis

In Section 706(k) And Conflicts With

Christiansburg.

By its terms, Section 706(k) imposes no categorical

restrictions on which prevailing parties may be

awarded fees. Congress “entrust[ed] the effectuation of

the statutory policy to the discretion of the district

courts.” Christiansburg, 434 US. at 416. In

Christiansburg, this Court explained that equitable

considerations nonetheless counsel different standards

with respect to plaintiffs and defendants. Because the

private plaintiff is “the chosen instrument of Congress”

to vindicate the critical policies of Title VII—and

because the defendant against whom fees are awarded

is, by definition, “a violator of federal law”—attorneys’

fees are awarded to prevailing private plaintiffs “in all

but special circumstances.” Id. at 417-18. Fee awards to

prevailing defendants, by contrast, are warranted only

“upon a finding that the plaintiff's action was frivolous,

unreasonable, or without foundation,” although the

court need not find “subjective bad faith.” Jd. at 421.

As the Court explained in Christiansburg, this

standard effectuates Congress’s commitments to

“protect[ing] defendants from burdensome litigation

having no legal or factual basis” and “deter[ring] the

bringing of lawsuits without foundation,” id. at 420

(quoting 110 Cong. Rec. 13,668 (1964) (statement of

Sen. Lausche)), while also ensuring that the prospect of

an adverse fee award will not undercut “vigorous

enforcement of the provisions of Title VII,” id. at 422.

Although the Court considered standards that would

make fee awards available to defendants in even fewer

cases, it squarely rejected them. Shifting the balance

further in favor of plaintiffs, the Court concluded,

would “distort” the adversarial process, giving

plaintiffs “substantial incentives to sue, while

foreclosing to the defendant the possibility of

recovering his expenses in resisting even a groundless

action.” Id. at 419. As the Court noted, “many

defendants in Title VII claims are small- and moderate-

size employers for whom the expense of defending even

a frivolous claim may become a strong disincentive to

the exercise of their legal rights.” Jd. at 422 n.20.

The Christiansburg standard thus reflects this

Court’s considered accommodation of the competing

interests that Congress sought to protect in Section

706(k). See Roadway Exp., Inc. v. Piper, 447 U.S. 752,

762 (1980) (“[Christiansburg’s] distinction advances the

congressional purpose to encourage suits by victims of

discrimination while deterring frivolous litigation.”).

Under the terms of that compromise, a defendant may

recover the costs of defending itself only when it was

unreasonable for the plaintiff to require the defendant

to do so. See Christiansburg, 434 U.S. at 421-22. Put the

other way, plaintiffs deciding whether to bring suit can

rest assured that they will not have to pay the

defendant’s fees if they lose, so long as they have

“reasonable ground[s] for bringing suit” in the first

place. Id. at 422; see id. at 422 n.20 (directing district

courts to determine “the reasonableness of the

[plaintiffs] litigation efforts”); id. at 421, 422 (directing

district courts to consider whether the “action” that the

plaintiff brought was frivolous, unreasonable, or

groundless).

The logic of Christiansburg dictates its scope. As

the Court’s opinion made clear, Christiansburg raised

the bar for fee awards to defendants in order to ensure

that plaintiffs with viable claims would not be deterred

from seeking their day in court. See id. at 422; see also

Fogerty, 510 U.S. at 524. When a lawsuit has no

reasonable chance of success, however, this principle

has no application. And that is true regardless of why

the lawsuit is legally untenable. What matters, in short,

is the reasonableness of the decision to litigate, because

that is the decision Congress and the Court sought to

insulate from undue deterrence.

As courts have repeatedly recognized, that decision

can be unreasonable for many reasons unrelated to the

ultimate merits of the plaintiffs claims. See, e.g., C.W. v.

Capistrano Unified Sch. Dist., 784 F.3d 1237, 1247-48

(9th Cir. 2015) (upholding attorney’s fee award under

Christiansburg because the “outcome [was]

predetermined” by the defendant’s “Eleventh

Amendment immunity”); EEOC v. Propak Logistics,

Inc., 746 F.3d 145, 152 (4th Cir. 2014) (upholding

attorney’s fee award under Christiansburg because

“the EEOC’s lawsuit effectively was moot at its

inception”); Hamer v. Lake Cty., 819 F.2d 1362, 1370

(7th Cir. 1987) (upholding attorney’s fee award under

Christiansburg because the plaintiffs’ suit was clearly

barred by the Tax Injunction Act); Hutcherson v. Bd. of

Sup’rs of Franklin Cty., 742 F.2d 142, 146 (4th Cir.

1984) (same); Cote v. James River Corp., 761 F.2d 60, 61

(ist Cir. 1985) (holding that attorney’s fee award was

warranted under Christiansburg because “it became

unreasonable to continue litigation” when the plaintiff

learned her claim was certainly “time-barred”); see also

Davidson v. Culver City, 159 F. App’x 756, 759 (9th Cir.

2005) (upholding attorney’s fee award under

Christiansburg because “the result should have been

obvious from the inception of this litigation ... . [g]jiven

the applicability of res judicata”); DeLeon v. Haltom

City, 113 F. App’x 577, 578 (5th Cir. 2004) (upholding

attorney’s fee award under Christiansburg because the

defendant was “unequivocally protected from liability

by absolute judicial immunity”).

In fact, Christiansburg itself involved a barrier to

suit far afield from the merits of any allegation of

discrimination or sexual harassment—and the Court’s

treatment of that barrier is irreconcilable with the

Eighth Circuit’s interpretation of the Court’s decision.

In Christiansburg, the EEOC notified the charging

party that its conciliation efforts had failed and that she

had a right to sue the employer in federal court, but she

did not do so. In 1972, almost two years after the

EEOC sent that right-to-sue letter, Congress amended

Title VII to authorize the EEOC to enforce the statute

through litigation, and also permitted such suits with

respect to any “charges pending with the Commission”

on the effective date of the amendment.

Christiansburg, 434 U.S. at 414 (citation omitted). The

EEOC brought suit on behalf of the charging party, but

the district court dismissed the action because the

charge had not been pending on the relevant date. Jd.

* Courts similarly do not observe a “merits-only” restriction in

other areas where the reasonableness of the decision to litigate is

at issue. See, e.g., Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7

(1987) (explaining that Rule 38 of the Federal Rules of Appellate

Procedure “affords a court of appeals plenary discretion to assess

‘just damages’ in order to penalize an appellant who takes a

frivolous appeal”); Brubaker v. City of Richmond, 943 F 2d 1363,

1385 (4th Cir. 1991) (approving Rule 11 sanctions for knowingly

pursuing a claim that is time-barred); Fermin v. Nat'l Home Life

Assurance Co., 15 F.3d 180, 1994 WL 24922, at *2 (5th Cir. 1994)

(unpublished table decision) (approving Rule 11 sanctions for

knowingly pursuing a claim that is barred by res judicata).

The defendant then requested an award of fees. The

district court held that such an award was not justified

because “the Commission’s action in bringing the suit

cannot be characterized as unreasonable or meritless,”

and the court of appeals affirmed. /d. at 415 (citation

omitted).

After clarifying the standard for fee awards to

prevailing defendants, this Court affirmed the denial of

fees as well. The Court explained that by asking

whether “the Commission’s action in bringing the suit

could ... be characterized as unreasonable or

meritless,” the district court had correctly “focused on

the standards we have discussed.” Jd. at 423 (citation

omitted). In particular, the Court noted the district

court’s holding that the “Commission’s statutory

interpretation of § 14 of the 1972 amendments was not

frivolous.” Id. at 423-24 (citation omitted). Of course, if

the Christiansburg inquiry were limited to the merits

of the discrimination or harassment claim, the

plausibility of the EEOC’s statutory analysis regarding

the timeliness question would have been irrelevant.

The fact that the Court approved the district court’s

approach is thus a powerful indication that

Christiansburg does not require a showing that the

EEOC’s case was unreasonable “on the merits” in

order for a prevailing defendant to win a fee award.

Christiansburg also precludes any suggestion that

defendants are eligible for fee awards only when they

actually have been cleared of charges of discrimination.

As the Court explained, one of the two court of appeals

decisions from which it drew the operative standard

involved “a defendant that had successfully resisted a

Commission demand for documents.” Christiansburg,

434 US. at 421 (citing U.S. Steel Corp. v. United States,

519 F.2d 359 (3d Cir. 1975)). Such disputes involving

EEOC investigations are plainly “proceeding{s] under

this subchapter [i.e., Title VII],” for which fee awards

are available. 42 U.S.C. § 2000e-5(k); see id. §§ 2000e-8,

2000e-9. But the defendant who prevails against a

demand for documents has not been exonerated of the

underlying charge of discrimination.

The underlying merits of a discrimination or

harassment charge are not even relevant in

proceedings regarding the EEOC’s use of its

investigatory powers. See 42 U.S.C. § 2000e-8(a)

(granting the EEOC “access to ... any evidence of any

person being investigated or proceeded against that

relates to unlawful employment practices covered by

[Title VII) and is relevant to the charge under

investigation”); see also EEOC v. Shell Oil Co., 466

U.S. 54, 65 (1984) (explaining the conditions for

enforcement of an EEOC administrative subpoena).

The fact that both Section 706(k) and Christiansburg

encompass such proceedings confirms that neither

Congress nor the Court intended to limit defendant fee

awards to cases where allegations of discrimination are

resolved “on the merits.” To the contrary, such a

restriction would effectively nullify Congress’s choice

to apply Section 706(k) to “any action or proceeding

under” Title VII, 42 U.S.C. § 2000e-5(k) (emphasis

added). See, e.g., EEOC v. Bellemar Parts Indus., Inc.,

868 F.2d 199, 200 (6th Cir. 1989) (holding that the

defendant was entitled to fees under Christiansburg

because “the action filed by the EEOC to enforce its

subpoena in district court was groundless”).

2. Imposing A “Merits-Only” Restriction On

Attorney’s Fee Awards Would Undermine

The Policy Of Section 706(k).

“When applying fee-shifting statutes,” this Court

“discern[{s] the limits on a district court’s discretion” by

looking to “the large objectives of the relevant Act.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 139-40

(2005) (quotation marks omitted). The objective of Title

VII's allowance for fee awards to defendants is “to

protect defendants from burdensome litigation having

no legal or factual basis.” Christiansburg, 434 U.S. at

420. Accordingly, grafting a merits-only restriction

onto the Christiansburg test would be appropriate only

if defending litigation that is unreasonable on non-

merits grounds could not be burdensome or costly to

the defendant. But that is not the case.

This case illustrates the point as well as any could.

The EEOC contends that CRST did not prevail “on the

merits” when it secured a dismissal of the 67 claims at

issue here. As explained below, that is incorrect. See

infra Part II. But if this case is indeed an example of

“non-merits” adjudication, that only confirms that the

policy rationale animating Section 706(k) applies just as

forcefully to “non-merits” cases as to “merits” cases.

When in 1972 Congress authorized the EEOC to

enforce Title VII through litigation, Congress retained

the pre-suit requirements as a compensating limitation

on the exercise of the EEOC’s enforcement power. See

Shell Oil Co., 466 U.S. at 78. Specifically, the pre-suit

requirements—investigation, reasonable cause

determination, and conciliation—serve to prevent the

EEOC from imposing unjustified costs and disruption

on an employer, either by litigating uninvestigated or

unevaluated claims or by litigating without first

attempting settlement. By establishing these threshold

duties as a necessary foundation for any subsequent

lawsuit, Congress sought to ensure that the EEOC’s

litigation authority would be limited to “legitimate,

unreconcilable disputes,” and would only “take over at

the level where conciliations fail.” 118 Cong. Rec. 588-

89 (1972) (statement of Sen. Dominick); see id. at 7563

(statement of Rep. Perkins) (explaining that, despite its

litigating authority, the EEOC would “continue to

make every effort to conciliate as is required by

existing law”).

Here, CRST incurred millions of dollars in fees and

expenses to defend against—and ultimately defeat—

claims that were “without” the “foundation” that the

statute requires. Christiansburg, 434 U.S. at 421. The

EEOC put CRST to the expense of litigating these 67

claims, including depositions of the 67 claimants, even

though it had not first investigated them, found

“reasonable cause to believe” that they were “true,” or

attempted to conciliate them with CRST. 42 U.S.C.

§ 2000e-5(b). That is precisely what Congress sought to

avoid. In fact, both the pre-suit requirements and the

fee-shifting provision have the common purpose of

avoiding this result, for each serves to shield employers

from the costs of unnecessary litigation. It would be

anomalous if the fee-shifting remedy—a mechanism to

protect defendants from the costs of unreasonable

litigation—were categorically unavailable when the

EEOC disregards the very statutory provisions that

seek to protect defendants from unreasonable

litigation. Two circuits have rejected that result, and a

third has endorsed their position. See EEOC v.

Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th

Cir. 2003); EEOC v. Pierce Packing Co., 669 F.2d 605,

609 (9th Cir. 1982); see also EEOC v. Agro

Distribution, LLC, 555 F.3d 462, 469 (5th Cir. 2009).

Prohibiting fee awards to defendants under the

circumstances presented here would invite the EEOC

to shift the administrative costs of fulfilling its own

statutory obligations to defendants and federal courts,

using discovery and motion practice as substitutes for

the pre-suit process required by Congress. Indeed, that

is precisely what happened in this case. See Pet. App

188a (explaining that the EEOC did not know “on

whose behalf it was seeking relief’ and “was using

discovery to find them”); JA 143a (finding fee award

warranted because, inter alia, the EEOC’s strategy of

pursuing this litigation “contrary to the procedure

outlined by Title VII” had “imposed an unnecessary

burden upon CRST and the court”). The Eighth

Circuit’s holding gives the EEOC license to bring

uninvestigated, unexamined, and unconciliated claims

directly to court—leaving it to the defendant and the

district judge to sort plausible from baseless claims—

secure in the knowledge that the EEOC will not foot

the bill because there is no fee-shifting for such “non-

merits” dispositions. Likewise, the holding below

endorses an EEOC strategy of attempting to coerce

settlements from employers’ by ffiling an

unsubstantiated allegation that a “class” of claimants

exists without ever investigating if that is in fact true.

Indeed, under the Eighth Circuit’s rule, there is no

disincentive to such conduct by the EEOC other than

expense of its own time and effort. The docket entries

in this case demonstrate the extraordinary investment

of time and judicial resources required of a district

court when the EEOC bypasses the statutory pre-suit

requirements. JA 1a-98a.

Although these dynamics are particularly acute

when the EEOC does not satisfy its pre-suit

obligations, they also arise in other contexts that may

not go to the ultimate merits of the underlying claim.

District courts should be free to determine that a

plaintiff should pay the defendant’s costs of litigating

claims that were, for example, clearly barred by res

judicata, a statute of limitations, or an ironclad

immunity. See supra at 33-34 (collecting cases). When

these dispositive flaws in the plaintiffs case are not

apparent to the defendant at the outset of litigation, the

defendant may incur substantial expenses defending a

futile lawsuit, as CRST did here. A district court may

appropriately conclude that the plaintiffs decision to

litigate such claims was unreasonable—particularly if

the plaintiff is a sophisticated litigant, such as the

EEOC, that is well-acquainted with its obligations both

before and after filing suit. See Christiansburg, 434

U.S. at 422 n.20 (explaining that “a district court may

consider distinctions between the Commission and

private plaintiffs in determining the reasonableness of

the Commission’s litigation efforts”).

It would be better for everyone, not least the

courts, if avoidable and unreasonable litigation

expenses were never generated at all. But when they

are, the legislative plan directs that they should be paid

by the party responsible for them. That plan is

grounded in considerations of both fairness and

deterrence. See Fox v. Vice, 131 S. Ct. 2205, 2214 (2011)

(explaining that fee-shifting is appropriate because

“(t]he plaintiff acted wrongly” and “the court may shift

to him the reasonable costs that [his] claims imposed on

his adversary” (citing Christiansburg, 434 U.S. at 420-

21)); Christiansburg, 434 U.S. 420 (explainin~ ‘hat fee-

shifting “serve[s] ... ‘to diminish the li iihood of

unjustified suits being brought” (quoting 110 Cong.

Rec. 6534 (statement of Sen. Humphrey))). Those

statutory objectives of achieving both fairness and

deterrence are fully implicated in cases like this one,

whether or not the district court’s dismissal constitutes

a ruling on “the merits.”

Il. Even If Section 796(k) Could Be Read To

Require That A Defendant Prevail “On The

Merits,” CRST Prevailed On The Merits

Here.

Because CRST won a dismissal with prejudice of

the 67 claims involved here, it prevailed in the only

sense this Court has ever required as a condition of a

fee award: it secured a material court-ordered change

in the parties’ legal relationship. For the reasons set

out above, any further requirement that the dismissal

be “merits-based” would be misguided. If such a

requirement did exist, however, CRST’s victory in this

case would readily satisfy it. The pre-suit requirements

that the EEOC failed to atisfy in this case are

elements of its statutory cause of action; they are

substantive, mandatory conditions on liability; and they

serve to ensure that the EEOC does not litigate cases

without first investigating claims “on the merits” and

determining that there is a reasonable legal and factual

basis for pursuing them.

A. The Pre-Suit Requirements Are Elements Of

The EEOC’s Cause Of Action.

Neither the Eighth Circuit nor the EEOC has

questioned the premise that, if satisfaction of the pre-

suit requirements is an “element” of the EEOC’s cause

of action, a dismissal on that ground qualifies as a ruling

on the merits. See Pet. App. 20a; JA 106a-107a. Because

the pre-suit requirements do form elements of the

EEOC’s case, CRST prevailed on the merits here when

it defeated these 67 claims by demonstrating that the

EEOC did not investigate, find reasonable cause for, or

attempt to conciliate any of these claims as required by

the statute.

That conclusion follows directly from this Court’s

cases. First, the Court has already recognized that the

“element([s] of a plaintiffs claim for relief’ under Title

VII extend beyond the ultimate question whether the

alleged discrimination has occurred. Arbaugh, 546 U.S.

at 509. In Arbaugh, the Court held that Title VII’s

numerosity requirement—the definition of an

“employer” as an entity with 15 or more employees—

does not circumscribe a court’s jurisdiction, but rather

forms “a substantive ingredient of a Title VII claim.”

Id. at 503.

Just like the numerosity requirement, the

conditions set out in Section 706(b) should also be

treated as a “substantive ingredient of a Title VII

claim.” Jd. There is no basis for drawing any distinction:

neither provision limits the court’s jurisdiction; neither

goes to the “merits” in the narrow sense of whether the

complainant’s allegations of discrimination are true; and

the EEOC must establish both to prove its case. See

Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1656

(2015) (explaining that a “sworn affidavit from the

EEOC stating that it has performed the obligations”

will usually suffice with respect to the conciliation

requirement).

This Court’s cases concerning private-plaintiff suits

also strongly indicate that satisfaction of the three pre-

suit requirements forms an “element” of the EEOC’s

case. As the Court has recognized, Title VII confers

distinct rights of action on the EEOC and on private

plaintiffs. See Gen. Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318, 325-26 (1980); 42 U.S.C. § 2000e-5(f)(1)

(providing that under certain circumstances, “the

Commission may bring a civil action,” and under other

circumstances, “a civil action may be brought . . . by the

person claiming to be aggrieved”). The Court has

specifically held that Title VII’s cause of action for a

“person claiming to be aggrieved” incorporates the

zone-of-interests test into the definition of “aggrieved.”

Thompson, 562 U.S. at 177-78 (quotation marks

omitted). And, as the Court recently clarified, when a

right to sue is circumscribed by the zone-of-interests

test, “the zone-of-interests test ... is an element of the

cause of action under the statute.” Lexmark Int'l, Inc.

v. Static Control Components, Inc., 134 S. Ct. 1377,

1391 n.6 (2014); see id. at 1387-88.

Suppose, then, that a private plaintiff brings suit

under Title VII, but the court determines that he or

she is not “aggrieved” within the meaning of the

statute. To use the example set forth in this Court’s

decision in Thompson v. North American Stainless,

LP, suppose that a shareholder “sue[s} a company for

firing a valuable employee for racially discriminatory

reasons,” alleging “that the value of his stock decreased

as a consequence.” 562 U.S. at 177. Under Thompson,

that lawsuit would be dismissed because the

shareholder is not “aggrieved” within the meaning of

Section 706(f). Jd. And, under Lexmark, that dismissal

would necessarily qualify as merits-based: the plaintiff

failed to satisfy an element of the applicable cause of

action. 134 S. Ct. at 1391 n.6. That result makes perfect

sense. Since a viable private-plaintiff case requires both

an “aggrieved” employee and a covered “employer,” it

is not surprising that both would equally be elements of

the relevant cause of action under Title VII.

The question here is no different. Just as Congress

permitted a private plaintiff to sue only if he or she is

“aggrieved,” it permitted the EEOC to sue only if it has

investigated, found reasonable cause, and “has been

unable to secure from the respondent a conciliation

agreement acceptable to” it. 42 U.S.C. § 2000e-5(f)(1).

There is no reason why the former “aggrieved”

requirement should qualify as an “element”—as it

necessarily does under this Court’s cases—but the

latter pre-suit requirement, which appears in parallel

form in the same statutory subsection, should not. In a

private-plaintiff case, the zone-of-interests test

measures whether “Congress intended to permit the

suit” brought by the plaintiff. Thompson, 562 U.S. at

178 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,

399 (1987)). In the case of an action brought by the

EEOC, that same question is answered by the pre-suit

requirements. The two limitations on the statutory

causes of action are thus analogous in both form and

function. Each requires some initial filtering depending

upon the private or governmental nature of the

plaintiff. Accordingly, satisfaction of the pre-suit

requirements is a necessary element of the EEOC’s

case.

The Eighth Circuit explained its contrary holding

on three grounds. First, it noted that the pre-suit

requirements “do not distinguish which employers are

subject to Title VII or whether an employer has

violated Title VII.” Pet. App. 23a. As this Court’s

analysis of the zone-of-interests test indicates,

however, that definition of an “element” is incompatible

with settled law. Indeed, it is common for the elements

of a cause of action to include not only facts establishing

that the defendant has violated a statute, but also

others that determine whether the plaintiffs suit

against the defendant will lie. See, e.g., Lexmark, 134 8S.

Ct. at 1390 (observing that “federal causes of action in a

variety of contexts ... incorporate a requirement of

proximate causation”). In a securities fraud case, for

example, the plaintiff must prove not only that the

defendant violated the Securities Exchange Act, but

also that “the act or omission of the defendant alleged

to violate [the Act] caused the loss for which the

plaintiff seeks to recover damages.” 15 U.S.C. § 78u-

4(b)(4); see Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

342 (2005). A private RICO plaintiff likewise must

prove not only that the defendant violated the statute,

but also that the plaintiff was “injured in [its] business

or property by reason of [the] violation.” 18 U.S.C.

§ 1964(c). This Court has always characterized such

conditions as “elements,” even though, by their own

terms, they are not necessary to establish a violation of

the statute. See, e.g., Dura, 544 U.S. at 341-42; Holmes

v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 285 (1992)

(O’Connor, J., concurring) (describing RICO’s “business

or property” requirement as among “the elements of a

private cause of action under RICO”); see also United

States v. Hayes, 555 U.S. 415, 422 (2009) (defining

“element” as “{a] constituent part of a claim that must

be proved for the claim to succeed” (quoting Black’s

Law Dictionary 558 (8th ed. 2004)).

Second, the Eighth Circuit drew an analogy to Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). Its

decision finds no support in Reed, however. In Reed,

this Court determined that the Copyright Act’s

registration requirement “does not restrict a federal

court’s subject-matter jurisdiction.” Jd. at 157. The

Court based its analysis on Arbaugh, which similarly

concluded that Title VII’s numerosity requirement

does not “affect{] federal-court subject-matter

jurisdiction.” 546 U.S. at 503. After explaining why the

criteria set out in Arbaugh, Reed entertained the

counterargument “[tJhat the numerosity requirement

in Arbaugh could be considered an element of a Title

VII claim, rather than a prerequisite to initiating a

lawsuit,” and rejected the proffered distinction as

immaterial to the jurisdictional question. 559 U.S. at

165-66 (emphasis added). Reed thus did not even affirm

the accuracy of this hypothetical distinction between an

element of a cause of action and a “prerequisite” to a

lawsuit, let alone establish its relevance for purposes of

a fee award.”

Finally, the Eighth Circuit declined to treat

satisfaction of the pre-suit requirements as an element

because these conditions apply when the EEOC brings

“any lawsuit, not just a sexual-harassment lawsuit.”

Pet. App. 22a. But that point is refuted by Arbaugh.

The numerosity requirement—the Eighth Circuit’s

paradigm of a Title VII element, see id. 20a-23a—also

applies to all Title VII litigation, not only to sexual

harassment suits. Yet, as all agree, numerosity is “a

substantive ingredient of a Title VII claim for relief.”

Arbaugh, 546 U.S. at 502. Nothing in this Court’s cases

suggests that satisfaction of the pre-suit requirements

should be treated any differently.

. Moreover, the First Circuit has held that, under Reed,

registration is an element of the plaintiffs cause of action under

the Copyright Act. Latin Am. Music Co. v. Media Power Grp.,

Inc., 705 F.3d 34, 42-43 (1st Cir. 2013); Airframe Sys., Inc. v. L-3

Commce’ns Corp., 658 F.3d 100, 105 (1st Cir. 2011).

B. The Pre-Suit Requirements Are Not Claim-

Processing Rules, But Are Mandatory,

Substantive Limitations on Liability In Cases

Brought By The EEOC.

Even if it were not considered an “element” of the

EEOC’s cause of action, satisfaction of Title VII's pre-

suit requirements would remain a mandatory and

substantive condition of a defendant’s liability, and

accordingly should be deemed a “merits” issue in any

sense relevant to a fee award.

Unlike ordinary claim-processing rules that “seek to

promote the orderly progress of litigation,” Henderson,

562 U.S. at 435, Title VII’s pre-suit requirements

cireumscribe the range of cases in which the EEOC

may pursue litigation at all. Specifically, the statute

mandates that the EEOC “shall make an

investigation,” and, if it finds reasonable cause, “shall

endeavor” to conciliate with the employer. 42 U.S.C.

§ 2000e-5(b) (emphasis added). As the Court observed

in Mach Mining, “(that language is mandatory, not

precatory.” 135 S. Ct. at 1651. Only if conciliation fails

“may” the EEOC bring a civil action. 42 U.S.C. § 2000e-

5(f)(1); see Occidental Life, 482 U.S. at 368 (“[Tyhe

EEOC is required by law to refrain from commencing a

civil action until it has discharged its administrative

duties.”). Accordingly, a court is barred from holding a

defendant liable to the EEOC unless these “necessary

precondition[s]” are satisfied. Mach Mining, 135 S. Ct.

at 1651.

In Hallstrom v. Tillamook County, 493 U.S. 20

(1989), this Court considered an analogous restriction

on a statutory cause of action in the Resource

Conservation and Recovery Act (RCRA). RCRA

provides for citizen suits, but only if they are brought

at least sixty days after giving notice of the violation to

the government and the alleged violator. 42 U.S.C.

§ 6972(a)(1)(A), (b)(1). Applying the statutory language

according to its terms, this Court held that the

provision is “a mandatory, not optional, condition

precedent for suit,” and that it binds plaintiffs and

courts alike. Hallstrom, 493 U.S. at 26. As the Court

explained, the notice-and-delay requirements create an

opportunity for a prospective defendant to “bring itself

into complete compliance with the Act and thus ...

render unnecessary a citizen suit”—a policy that would

be “frustrated” if the Court did not give “full effect to

the words of the statute” and “preserve[] the

compromise struck by Congress.” Jd. at 29 (internal

quotation marks omitted). The Court therefore

concluded that the notice-and-delay requirements “are

mandatory conditions” that “a district court may not

disregard . . . at its discretion.” Jd. at 31.”

Pre-suit conditions of this kind are not procedural

formalities that determine how litigation unfolds, but

categorical restrictions Congress has imposed on

whether litigation (and hence liability) are permitted in

the first place. In RCRA, Congress confined

defendants’ legal exposure to cases in which, despite

notice, they persisted in violation of the statute. In

” See also United States v. Zucca, 351 U.S. 91, 100 (1956) (holding

that filing an affidavit of good cause is a mandatory prerequisite in

denaturalization proceedings); Mach Mining, 135 S. Ct. at 1651-52

(comparing Title VII’s pre-suit requirements to the conditions

precedent at issue in Hallstrom and Zucca).

Title VII, it limited EEOC enforcement action to cases

in which an investigation has been conducted,

reasonable cause has been found, and conciliation has

been tried and failed. The point of these administrative

requirements is not to “promote the orderly progress”

of an inevitable lawsuit, Henderson, 562 U.S. at 435—

such as by forcing plaintiffs to bring their claims within

a certain period—but to preclude some unwarranted or

unnecessary lawsuits from ever being brought at all. It

is in this sense that the pre-suit requirements “serve[]

a substantive mission.” Mach Mining, 135 S. Ct. at

1654. By circumscribing the universe of cases in which

an employer may be held liable to the EEOC in court,

they aim to “to ‘eliminate’ unlawful discrimination from

the workplace” in the most efficient manner possible.

Id. (quoting 42 U.S.C. § 2000e-5(b)).

This Court’s cases concerning time bars also offer

an instructive comparison. The apt analogy for the pre-

suit requirements is a statute of repose. As the Court

recently explained, such statutes differ from procedural

rules like statutes of limitations that are amenable to

tolling. They are inflexible and substantive restrictions

that “can be said to define the scope of the cause of

action, and therefore the liability of the defendant.”

CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2187 (2014).

Such non-negotiable prerequisites, whether time bars

or conditions precedent, are surely “procedural” in one

sense of the word. But they ultimately determine

whether the defendant can be held liable to the plaintiff

under the terms of the statute, see id., and therefore go

to the merits of the claim.

C. The Pre-Suit Requirements Serve To Limit

The EEOC’s Enforcement Authority To

Potentially Meritorious Claims, And Here

The EEOC Admitted That It Did Not First

Determine Whether Its Claims Were

Potentially Meritorious.

The pre-suit requirements go to the merits in yet

another sense. Taken together, they form “an

integrated, multistep enforcement procedure” that

limits the EEOC’s litigation authority to investigated

claims with potential merit, and then further to those

that cannot readily be settled on terms acceptable to

the EEOC. Occidental Life, 482 U.S. at 359.

Compliance with this scheme is a “merits” issue

because a core function of the scheme is to investigate

and test cases for merit before authorizing the EEOC

to sue.

In this way the pre-suit requirements resemble

other threshold determinations that require an early

assessment of the merits of a case. Such rules rest on

the recognition that litigation is costly and that these

costs should not be imposed without good cause. For

example, defendants can move to dismiss for failure to

state a claim, which helps to ensure that “a plaintiff

with a largely groundless claim” may not undertake

expansive discovery “with the right to do so

representing an in terrorem increment of the

settlement value.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 558 (2007) (internal quotation marks omitted). In

criminal cases, a “judicial determination of probable

cause” serves an analogous function as “a prerequisite

to extended restraint of liberty following arrest.”

Gerstein v. Pugh, 420 US. 103, 114 (1975). In

denaturalization proceedings, the Court has likewise

insisted on “a preliminary showing of good cause”

before imposing the “serious consequences” that attend

the proceeding itself. United States v. Zucca, 351 U.S.

91, 99-100 (1956). A failure to satisfy any of these

sufficient-cause thresholds is a failure to show that the

case has sufficient merit to proceed.

In the case of a lawsuit brought by the EEOC under

Title VII, Congress added another such threshold: the

EEOC must ensure through an administrative

investigation that there is reasonable cause for the

complainant’s charges before filing suit on his or her

behalf. That requirement is readily explained by the

legislative history of the 1972 Act, which reflects

pronounced concern about “pit[ting] the overwhelming

financial strength and manpower of the Federal

Government” against employers who would “bear the

full economic brunt of defending themselves.” 118

Cong. Rec. 671 (1972) (statement of Sen. Gambrell).

Although Congress rejected the most radical measures

to address this concern, such as subsidizing defendants’

attorney’s fees in routine cases, see id., it did decide to

limit EEOC enforcement—unlike private enforcement,

see McDonnell Douglas Corp. v. Green, 411 U.S. 792,

798 (1973)—to cases where the EEOC has first

investigated and found reasonable cause. See Gen. Tel.

Co. of the Nw., 446 U.S. at 325 (“The 1972 amendments

... expanded the EEOC’s enforcement powers by

authorizing the EEOC to bring a civil action in federal

district court against private employers reasonably

suspected of violating Title VII.” (emphasis added)).

In this case, the district court’s determination,

affirmed by the Eighth Circuit, that the EEOC “wholly

abandoned” its pre-suit obligations amounts to a ruling

that, rather than investigating and determining

whether the claims were potentially meritorious, the

EEOC shifted the burden to CRST to show that they

were not. The EEOC “did not interview any witnesses

or subpoena any documents to determine whether any

of [the claimants’) allegations were true.” Pet. App.

107a. None of the alleged harassers was interviewed

with respect to any claim. Nor did the EEOC make

reasonable-cause determinations as to the 67 claims at

issue here. Jd. In fact, in 27 of the 67 cases, the alleged

harassment had not yet occurred when the EEOC

issued its Letter of Determination. Jd. In 38 of the

remaining 40 cases, “the EEOC admits that it was not

even aware of the[] allegations until after the filing of

the Complaint”; the EEOC had instead “used discovery

in the instant lawsuit to find them.” Jd. at 108a.

Because the prescribed statutory pre-suit process—

including a threshold determination of reasonable

cause—defines the claims that the EEOC is entitled to

litigate, the EEOC did not have a “reasonable ground

for bringing suit” with respect to these 67 claims.

Christiansburg, 434 U.S. at 422.

Faced with the rare case in which the EEOC

“wholly abdicated its role in the administrative

process,” Pet. App. 213a n.24, the district court

reasonably concluded that dismissal with prejudice and

an award of attorney’s fees were warranted. The court

noted that, in a less egregious case, it “might have

stayed” the case rather than dismissing the defective

claims. Jd. Here, however, “dismissal [was] a severe

but appropriate remedy” to avoid “ratify[ing] a ‘sue

first, ask questions later’ litigation strategy on the part

of the EEOC.” Id. at 214a.

The Eighth Circuit affirmed the dismissal. It

explained that Title VII vest. che district court with

“discretion” to decide whether to stay proceedings,

Pet. App. 115a (quoting 42 U.S.C. § 2000e-5(f)(1)), and

concluded that the district court had properly deemed

dismissal a “severe but appropriate remedy” in this

case, id. (quotation marks omitted). That holding—

which is not before the Court (and as to which the

EEOC chose not to seek review by this Court)—is fully

consistent with the Court’s recent decision in Mach

Mining. In Mach Mining, the Court explained that,

when a district court resolves a “limited dispute” over

the adequacy of conciliation in favor of the employer,

“the appropriate remedy is to order the EEOC to

undertake the mandated efforts to obtain voluntary

compliance.” 135 S. Ct. at 1656. The Court in Mach

Mining addressed only the conciliation requirement,

however; it did not consider a sweeping failure by the

EEOC, as here, to investigate, find reasonable cause,

and attempt conciliation. Mach Mining did not purport

to divest district courts of their remedial discretion in

that or any other circumstance. Indeed, the Court

explained its holding about the “appropriate remedy” in

a failure-to-conciliate case by pointing to the provision

of Title VII that “authoriz[es] a stay of a Title VII

action for that purpose,” i.e., for the purpose of

renewed conciliation. Id.; see 42 U.S.C. § 2000e-5(f)(1)

(authorizing district courts to stay proceedings for up

to sixty days “pending ... further efforts of the

Commission to obtain voluntary compliance”). In this

case, by contrast, the EEOC did not just sue without

attempting to “obtain voluntary compliance.” 42 U.S.C.

§ 2000e-5(f)(1). It failed to undertake any investigation

or assessment of the 67 claims at issue here, suing

before it had any basis to conclude even that they were

claims worth conciliating. See 42 U.S.C. § 2000e-5(b)

(directing the EEOC to attempt conciliation “{i]f the

Commission determines after ... investigation that

there is reasonable cause to believe that the charge is

true”).

In any event, as the district court explained, the

effect of a stay under the circumstances presented here

would simply be to “ratify” the EEOC’s statutory

violation. Pet. App. 214a. It would mean that, if the

EEOC fails to investigate and find reasonable cause

before bringing suit, it can always do so at some later

defendant has done that work through extensive

discovery and numerous summary judgment motions).

It would substantially increase the EEOC’s leverage to

coerce settlement of uninvestigated, unevaluated, and

unconciliated claims if the defendant has to bear the

additional costs of a “do over.” This result would

effectively undo Congress’s decision to impose

threshold requirements before the EEOC may bring

suit, and would instead require the defendant to bear

the costs of the EEOC’s statutory violation.

** *

The Eighth Circuit and the EEOC would have

courts distinguish among the many ways in which a

defendant may prevail, selecting out those that go to

“the merits” of the EEOC’s case in order to determine

whether a fee award is permissible. This approach will

require courts to craft new rules to determine and

explain the proper treatment of various types of claim-

processing rules, conditions precedent, pleading

standards, immunity defenses, and limitations on

statutory coverage. The near certainty of inconsistent

results counsels against starting down this path at all.

If the Court does develop a new jurisprudence of

“merits-related” victories for fee-shifting purposes,

hewever, CRST’s victory here would qualify under any

reasonable standard. Establishing that the EEOC has

statutory authorization to sue is a necessary “element”

of its claim; the restrictions represent mandatory and

substantive limitations on the range of cases in which

employers may be liable to the EEOC; a central

purpose of the pre-suit conditions is to set a merits-

based threshold for initiating litigation; and the district

court concluded that the EEOC had not satisfied that

threshold requirement (or the others) before litigating

these claims.

In the end, this case presents a simple dilemma. If

the dismissal in this case goes to “the merits,” the

Eighth Circuit erred in applying its own “merits-only”

rule to deny CRST a fee award. And if the dismissal in

this case does not go to “the merits,” then it

demonstrates that the Eighth Circuit’s “merits-only”

rule cannot be squared with the core policy of Title

VII’s fee-shifting provision. In either event, the

decision below should be reversed.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

JOHN H MATHIAS, JR. PAUL M.SMITH

JAMES T. MALYSIAK Counsel of Record

JENNER & BLOCK LLP JESSICA RING AMUNSON

353 N. Clark St. BENJAMIN M. EIDELSON*

Chicago, IL 60654 JENNER & BLOCK LLP

(312) 222-9350 1099 New York Ave., NW

Suite 900

Washington, DC 20001

(202) 639-6000

psmith@jenner.com

*Not admitted in DC; supervised

by principals of the Firm.

January 19, 2016

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.