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

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

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 OF AMICT CURIAE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA, AMERICAN TRUCKING

ASSOCIATIONS, INC., AND BUSINESS

ROUNDTABLE IN SUPPORT OF PETITIONER

KENTON J. SKARIN ERIC S. DREIBAND

JONES DAY Counsel of Record

77 W. Wacker Drive JONES DAY

Chicago, IL 60601 51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

esdreiband@jonesday.com

Counsel for Amici Curiae

(Additional counsel listed on inside front cover)

KATE COMERFORD TODD RICHARD PIANKA

WARREN POSTMAN AMERICAN TRUCKING

U.S. CHAMBER LITIGATION ASSOCIATIONS, INC.

CENTER, INC. 950 N. Glebe Road

1615 H Street, NW Arlington, VA 22203

Washington, DC 20062

Counsel for Amicus Curiae Counsel for Amicus Curiae

Chamber of Commerce of the American Trucking

United States of America Associations, Inc.

MARIA GHAZAL

BUSINESS ROUNDTABLE

300 New Jersey Avenue, NW,

Suite 800

Washington, DC 20001

Counsel for Amicus Curiae

Business Roundtable

TABLE OF CONTENTS

Page

p> F ts Sip, | , | ER urenneneeree ili

INTERESTS OF THE AMICI CURIAE.................... 1

SUMMARY OF ARGUMENT ....................ccceeeeeeeeeeees 2

f ESTE ETES ET ERLE oe OR a DO Ie Oa 5

I. CRST IS ENTITLED TO ATTORNEYS

FEES UNDER 42 U.S.C. § 2000e—5(k)........... 5

A. A party who obtains a favorable

judgment is a “prevailing party”

I ae I cciscccccciccsnsintintccecessees 6

B. CRST is a prevailing party under

CERES NR et AE aR 7

C. A prevailing defendant is entitled

to attorney’s fees if the plaintiffs

suit was “frivolous, unreasonable,

or without foundation.”....................0000. 8

D. The district court correctly

concluded that the EEOC’s illegal

conduct justified an attorney’s fee

II. THE EEOC SHOULD NOT BE

ALLOWED TO SIDESTEP ITS UTTER

FAILURE TO FOLLOW ITS

STATUTORY OBLIGATIONS ..........0.00.0.0.0.2. 14

A. Title VII’s text demands that the

EEOC complete an extensive

series of steps before it can sue.......... 14

‘3

TABLE OF CONTENTS

(continued)

Page

Title VII’s history and this

Court’s precedents further

emphasize the importance of

EEOC’s statutory obligations

gg ES 18

Section 2000e—5(k) authorizes

district courts to award a

reasonable attorney’s fee in

appropriate cases to prevent the

EEOC from abusing its authority ......23

Ill. MACH MINING PROVIDES NO

SUPPORT FOR THE EEOC HERE ............. 28

The EEOC incorrectly interprets

Mach Mining as mandating a

stay for any EEOC violation of

SESE a 28

The statutory text and Mach

Mining itself demonstrate that

the Court was speaking only of

iiinhthitainiexinibiuitincininiiatsiniannh 29

The EEOC’s interpretation is also

wrong because it is impossible for

the EEOC to act as the neutral

investigator once it has filed suit....... 32

EE tisennsiciininntimoniennnmntinnisineinnsstiti 34

TABLE OF AUTHORITIES

CASES

Albemarle Paper Co. v. Moody,

ee IIE siictieciintciinnssinietaiitisiniisienicinpinisdananii 9

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep't of Health & Human

Res.,

es I eicreinninsicidaiidiaintieiipciniaa easel 6, 7

Christiansburg Garment Co. v. EEOC,

Ee eee passim

EEOC v. Allegheny Airlines,

436 F. Supp. 1300 (W.D. Pa. 1977)....................... 27

EEOC v. Argo Distrib., LLC,

No. 04-cv-322-KS-MTP, 2007 WL

1031649 (S.D. Miss. Mar. 30, 2007,

aff'd, 555 F.3d 462 (5th Cir. Z009) ...................0.8. 27

EEOC v. Asplundh Tree Expert Co.,

340 F.3d 1256 (11th Cir. 2003) ............................. 27

EEOC v. Associated Dry Goods Corp.,

ee IE ceveienenitatidenmeiiiniiinesinnonn 17, 18, 26

EEOC v. Container Corp.,

352 F. Supp. 262 (M.D. Fla. 1972)........................ 27

EEOC v. CRST Van Expedited, Inc.,

No. 07-cv-95-LRR, 2009 WL 2524402

(N.D. Iowa Aug. 13, 2009)..................... 8, 12, 13, 34

EEOC v. CRST Van Expedited, Inc.,

679 F.3d 657 (8th Cir. 2012) ................ccccceees passim

EEOC v. E. Hills Ford Sales, Inc.,

445 F. Supp. 985 (W.D. Pa. 1978)....................04 27

TABLE OF AUTHORITIES

(continued)

EEOC v. El. DuPont de Nemours &

Co.,

373 F. Supp. 1321 (D. Del. 1974),

affd, 516 F.2d 1297 (3d Cir. 1975)............

EEOC v. Firestone Tire & Rubber Co.,

366 F. Supp. 273 (D. Md. 1973) ................

EEOC v. Hickey-Mitchell Co.,

507 F.2d 944 (8th Cir. 1974) ...............c0000

EEOC v. IBEW,

476 F. Supp. 341 (D. Mass. 1979)..............

EEOC v. Jillian’s of Indianapolis, IN,

Inc.,

279 F. Supp. 2d 974 (S.D. Ind. 2003)........

EEOC v. King’s Daughter's Hosp.,

1976 BL 450

(S.D. Miss. Jan. 12, 1976)................:c00000

EEOC v. Nat? Cash Register Co.,

405 F. Supp. 562 (N.D. Ga. 1975).............

EEOC v. Pet, Inc.,

612 F.2d 1001 (5th Cir. 1980)

EEOC v. Pierce Packing Co.,

669 F.2d 605 (9th Cir. 1982) .............00000

EEOC v. Sears, Roebuck & Co.,

650 F.2d 14 (2d Cir. 1981)..............:cccceeees

EEOC v. Shell Oil Co.,

ST Ue IEE excecnnovecsvensescssvececsnsensssees

Page(s)

TABLE OF AUTHORITIES

(continued)

Page(s)

EEOC v. Target Corp.,

No. 02-cv-146, 2007 WL 1461298

GE een 27

EEOC v. U.S. Pipe & Foundry Co.,

375 F. Supp. 237 (N.D. Ala. 1974) ...............cce00000- 27

EEOC v. W. Elec. Co.,

382 F. Supp. 787 (D. Md. 1974) .......................000 27

EEOC v. Westvaco Corp.,

372 F. Supp. 985 (D. Md. 1974) .................c00000e00e- 27

Fogerty v. Fantasy, Inc.,

TT a eRe ee em ee 9

Ford Motor Co. v. EEOC,

TT ae 16, 17, 31

Gen. Tel. Co. of the Northwest, Inc. v.

EEOC,

I I aaa 19

Hanrahan v. Hampton,

446 U.S. 754 (1980) (per curiam).....................0.000- 7

Hewitt v. Helms,

I alee 6

Indep. Fed'n of Flight Attendants v.

Zipes,

I isan erieciemaresiniial 9, 10

Mach Mining, LLC v. EEOC,

| EEC Eeneree passim

Occidental Life Ins. Co. of Cal. v. EEOC,

I aiiiniciecatinaieieibiatteiitis passim

Patterson v. Am. Tobacco Co.,

535 F.2d 257 (4th Cir. 1976) .................cccccceeeceeeees 27

TABLE OF AUTHORITIES

(continued)

Page(s)

Sole v. Wyner,

I i ls 7

Tex. St. Teachers Ass’n v. Garland

Independent Sch. Dist.,

RoE 6

Young v. United Parcel Serv., Inc.,

I 25

STATUTES

MT EES eee nee noe passim

ia i a 19

EEN REE LE A TOONS. 17, 18

ae 17

I i laaclicialie 24

Equal Employment Opportunity Act of

1972, Pub. L. No. 92-261, 86 Stat. 107

I alanicezartlehcelh intial atatia iar ania ciccialiniailiainia 19

OTHER AUTHORITIES

a ieee 24

he MR ee 15

Ena LOEL eS 15

RE ee 17

5 RY RE eeeer en eeeen 16, 33

I inal eeesindaamtinndiniiad 17

Fk eee 16, 33

eer nearer 18

BO CPR. © 1602.26 ....a.cccecececesecoccesececeecesosseseseees 16, 33

ke BF 16, 33

vil

TABLE OF AUTHORITIES

(continued)

Page(s)

i cieeaaiiaee 18

I tt TIT its ccessneteadecpaninenapmpnmmanteennenumnnins 16

117 Cong. Rec. 31969 (1971) .........cc.cccccccssessscscerssseees 21

beg FE De 21

127 Come. Rec. SB106 (1971) ..........ccccccecscoesescesceseseees 21

117 Cong. Rec. 34116 (1971) .................cecccrcccesreseseees 22

eB en 21

I ta cemnteill 22

FS es 21

So eee 22

ee, 22

118 Cong. Rec. 1976 (1972) .........c.cecesossesesesseseeeseeeees 22

yg ...).ClU CE 20

Br. for the United States and the EEOC

as Amici Curiae,

Indep. Fed’n of Flight Attendants v.

Zipes, 491 U.S. 754 (1989)

(No. 88-780), 1989 WL 1127747 ................cccec0e0eee 10

Br. for the United States as Amicus

Curiae,

Young v. United Parcel Serv., Inc.,

135 S. Ct. 1338 (2015) (No. 12-1226),

SERED eee aR eo 25

Docket 279,

EEOC v. CRST Van Expedited, Inc.,

No. 07-cv-95-LRR

RS EET 8

vill

TABLE OF AUTHORITIES

(continued)

Dockets 381 & 381-1,

EEOC v. CRST Van Expedited, Inc.,

No. 07-cv-95-LRR

(N.D. Iowa Feb. 11, 2013)......................200

Rule 28(j) Letter,

EEOC v. Sterling Jewelers, Inc.,

No. 14-1782 (2d Cir. Apr. 30, 2015) .........

S.2515, 92d Cong. (Sept. 14, 1971) ............-..

Statement of EEOC Chair Jenny R.

Yang to Sen. Comm. on Health,

Educ., Labor & Pensions, May 19,

2015, http://www.help.senate.gov/

imo/media/ doc/Yang.pdf .......................00++

Statement of EEOC General Counsel P.

David Lopez to Sen. Comm. on

Health, Educ., Labor & Pensions,

May 19, 2015, http://www.help.

senate.gov/imo/media/doc/Lopez3.pdf.......

Page(s)

INTERESTS OF THE AMICI CURIA’

The Chamber of Commerce of the United States

of America is the world’s largest business federation.

It represents 300,000 direct members and indirectly

represents the interests of more than 3 million

companies and professional organizations of every

size, in every industry sector, and from every region

of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch,

and the courts. To that end, the Chamber regularly

files amicus curiae briefs in cases that raise issues of

concern to the nation’s business community.

American Trucking Associations, Inc. (ATA) is

the national association of the trucking industry,

comprising motor carriers, state trucking

associations, and national trucking conferences, and

was created to promote and protect the interests of

the national trucking industry. Its direct

membership includes approximately 2,000 trucking

companies and industry suppliers of equipment and

services; and in conjunction with its affiliated

organizations, ATA _ represents over 30,000

companies of every size, type, and class of motor

carrier operation. ATA regularly represents the

common interests of the trucking industry in courts

throughout the nation, including before this Court.

' All parties have consented to the filing of this brief. As

required by Rule 37.6, amici state that no counsel for a party

authored this brief in whole or in part, and no person other

than amici, their members, and their counsel made any

monetary contribution intended to fund the preparation or

submission of this brief.

The Business Roundtable (BRT) is an association

of chief executive officers of leading U.S. companies

that together have $7.2 trillion in annual revenues

and nearly 16 million employees. BRT member

companies comprise more than a quarter of the total

value of the U.S. stock market and pay more than

$230 billion in dividends to suareholders. The BRT

was founded on the belief that businesses should

play an active and effective role in the formation of

public policy, and participate in litigation as amici

curiae where, as here, significant business interests

are at stake.

SUMMARY OF ARGUMENT

This case presents the question of which party

should pay for undisputedly illegal conduct by the

government that injured a private organization.

The U.S. Equal Employment Opportunity

Commission (“EEOC”) is a federal law enforcement

agency that violated Title VII of the Civil Rights Act

of 1964 (“Title VII”) when it sued Petitioner CRST

Van Expedited, Inc. (““CRST”). It violated Title VII

because it filed a class action-like lawsuit against

CRST and sought relief for 67 individuals it first

identified after it filed suit. Title VII, however,

requires the EEOC to comply with a multi-step pre-

suit process before it can file suit, 42 U.S.C. § 2000e—

5(b) & (f)(1), and EEOC did nothing pre-suit with

regard to these 67 individuals.

Title VII’s pre-suit requirements mandate that

the EEOC investigate, evaluate, and conciliate

employment discrimination charges in an effort to

resolve Title VII disputes quickly, informally, and

privately to the fullest extent possible. § 2000e—5(b).

Only if the EEOC engages in the full process without

success may it initiate suit. See § 2000e—5(f)(1).

This framework, which is central to the entire

enforcement scheme created for Title VII, reflects

congressional goals of providing employers and

employees alike the opportunity to _ resolve

employment discrimination claims rapidly and

without expensive litigation.

The EEQOC’s failure to follow its pre-suit

statutory obligations eliminated any chance of pre-

suit resolution, resulted in years of unnecessary

litigation, and illegally forced the defendant-

petitioner, CRST Van Expedited, Inc. (“CRST”) to

incur millions of dollars in attorney’s fees and to

suffer reputational injury as well. Faced with the

EEOC’s statutorily improper “sue first, ask questions

later” approach, the district court properly exercised

its discretion in applying Title VII’s fee-shifting

provision, 42 U.S.C. § 2000e—5(k), to order the EEOC

to pay CRST’s fees.

Amici, as representatives of employers that face

EEOC investigations and attempt to conciliate with

the agency in an effort both to avoid litigation and to

redress any actual wrongdoing, are ideally situated

to speak to the impact of the EEOC’s shortcomings

and the propriety of the district court’s discretionary

award of fees in response to EEOC illegality.

First, Title VII grants broad discretion to district

courts to award a reasonable attorney's fee to a

prevailing party. Under this Court’s precedents, a

prevailing party is one who wins a final judgment

that has res judicata effect.

Under that standard, CRST is a prevailing party

because the district court entered judgment in its

favor after concluding that the EEOC wholly failed to

engage in its. statutorily-required pre-suit

obligations. The Eighth Circuit affirmed that

determination in relevant part back in 2012, and the

EEOC chose not to seek certiorari. As a result,

CRST has prevailed and is eligible for attorney’s

fees.

Second, this Court has explained that a district

court has discretion to award attorney’s ‘ees to

prevailing defendants if the court determines that

the plaintiffs action was “frivolous, unreasonable, or

without foundation.” Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 421 (1978). The district court

in this case acted well within its discretion when it

concluded that the EEOC’s actions violated this

standard; indeed, the court found that the EEOC

wholly ignored its statutory obligations and skipped

its pre-suit requirements with respect to the 67

claimants.

Third, the structure and history of Title VII

demonstrate that the statutory provisions the EEOC

violated here are central to the enforcement scheme

Congress enacted in hopes of resolving alleged Title

VII violations promptly and without litigation if

possible. That statutory framework envisions the

EEOC as an investigator and facilitator of

employment discrimination claims first, with

litigation following only as a last resort. By wholly

ignoring that framework, the EEOC both disobeyed

express congressional direction and deprived CRST

and the 67 claimants of the due-process-like

protections Congress implemented to resolve Title

VII claims more quickly and efficiently than the

years of costly litigation imposed here by the EEOC’s

failures.

Finally, the EEOC cannot avoid responsibility for

its illegal conduct by incorrectly asserting that a

single sentence in last term’s decision in Mach

Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015),

mandated that a stay is the only proper remedy for

EEOC failures to comply with all _pre-suit

obligations. Mach Mining dealt only with the final of

several steps in the pre-suit process that the EEOC

violated here, and the Court merely noted that a

district court may exercise its discretion to stay a

case for sixty days “to obtain voluntary compliance”

with Title VII. § 2000e-5(f)(1). That reference is

nothing more than an indication that a court

possesses discretionary authority to stay a case for

conciliation proceedings and does not mandate a “do-

over” for the EEOC when it fails to engage in any of

its pre-suit obligations. The EEOC significantly

over-reads Mach Mining and the statutory text that

Mach Mining cited.

ARGUMENT

I. CRST IS ENTITLED TO ATTORNEY'S FEES

UNDER 42 U.S.C. § 2000e—5(k).

Under a straightforward application of statutory

text and this Court’s precedents, the district court

properly applied its broad discretion to award CRST

attorney's fees in light of the EEOC’s indisputable

violation of Title VII. Title VII authorizes a court “in

its discretion” to award “a reasonable attorney’s fee”

to a “prevailing party.” § 2000e—5(k). A prevailing

party includes any party that has obtained a final

judgment with res judicata effect; in other words the

ultimate winner of a suit. And this Court has

explained that when a Title VII defendant prevails, a

district court may award fees against a plaintiff so

long as it concludes “in its discretion” that the

plaintiffs suit was “frivolous, unreasonable, or

without foundation.” Christiansburg, 434 U.S. at

421. CRST satisfied both requirements in this case.

A. A party who obtains a favorable judgment is

a “prevailing party” under § 2000e—5(k).

As to the first requirement under § 2000e—5(k), a

party that obtains a final judgment with res judicata

effect is a “prevailing party.” This Court on

numerous occasions has interpreted the term

“prevailing party” in the context of federal fee-

shifting provisions, which are “interpreted .. .

consistently” with one another. See Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep't of Health &

Human fes., 532 U.S. 598, 602 & 603 n.4 (2001)

(citing § 2000e—5(k) and other examples). In

interpreting such statutes, this Court has defined

prevailing party as one “in whose favor a judgment

is rendered, regardless of the amount of damages

awarded.” Jd. (quoting Black’s Law Dictionary 1145

(7th ed. 1999)). At other times it has elaborated on

the prevailing party inquiry as requiring a “legal

victor[y],” Hewitt v. Helms, 482 U.S. 755, 760 (1987),

and explained that a party prevails if it can point to

“a resolution of the dispute which changes the legal

relationship between” or causes a “material

alteration of the legal relationship of the parties.”

Tex. St. Teachers Ass'n v. Garland Independent Sch.

Dist., 489 U.S. 782, 792-93 (1989).

In applying these principles, it is the fact of

judgment—that a party won—that matters, not the

basis on which judgment was entered, and this Court

has never suggested otherwise. In the context of a

prevailing defendant, it matters not whether

judgment is entered because a plaintiff falls short on

an element of his substantive claim, lacks standing,

fails to satisfy a statute of limitations or repose,

disregards statutory pre-suit requirements, or

violates some other required provision. In any of

these scenarios the defendant is the “party in whose

favor a judgment is rendered,” Buckhannon, 532 U.S.

at 603 (citation omitted), because the case has ended

in defendant’s favor with res judicata effect against

the plaintiff. Said another way, the defendant is the

“ultimate winner” of the case. See id. at 642 n.14

(Ginsburg, J., dissenting). A final judgment victory

is far from the kind of “transient victory at the

threshold of an action” that this Court has cautioned

fails to establish prevailing party status. Sole v.

Wyner, 551 U.S. 74, 78 (2007); see also, e.g,

Hanrahan v. Hampton, 446 U.S. 754 (1980) (per

curiam) (reversing attorney's fee award because

reversal of directed verdict established only that

respondents were entitled to a new trial, not that

they were prevailing parties). Instead, a defendant

is a prevailing party under § 2000e—5(k) and similar

fee provisions when the plaintiff “leaves the

courthouse emptyhanded,” Sole, 551 U.S. at 78, and

can no longer pursue the same claims due to a

judicial determination.

B. CRST is a prevailing party under § 2000e—

5(k).

CRST is just such a prevailing party. There is no

dispute that it is the “ultimate winner” who obtained

a judgment in its favor. In 2009 the district court

dismissed EEOC’s suit against CRST in full, noting

“THAT Plaintiff Equal Employment Opportunity

Commission takes nothing and this action is

dismissed.” Docket 279, HKEOC v. CRST Van

Expedited, Inc., No. 07-cv-95-LRR (N.D. Iowa Oct. 1,

2009); see also EEOC v. CRST Van Expedited, Inc.,

No. 07-cv-95-LRR, 2009 WL 2524402, at *16 (N.D.

lowa Aug. 13, 2009) (order explaining judgment). In

2012 the Eighth Circuit affirmed that dismissal in

relevant part, agreeing with the district court that

“the EEOC wholly failed to satisfy its statutory pre-

suit obligations.” EEOC v. CRST Van Expedited,

Inc., 679 F.3d 657, 677 (8th Cir. 2012).

After the Eighth Circuit denied rehearing and

rehearing en banc, id. at 658, the EEOC chose not to

petition for certiorari. The district court then

entered judgment in favor of CRST on the claims of

the 67 individuals at issue in this case. See Dockets

381 & 381-1, CRST Van Expedited, Inc., No. 07-cv-

95-LRR (Feb. 11, 2013). That judgment dismissed

EEOC’s claims with prejudice and thus had res

judicata effect. Under those facts, CRST is a

prevailing party in this litigation for purposes of

§ 2000e—5(k).

C. A prevailing defendant is entitled to

attorneys fees if the plaintiffs suit was

“frivolous, unreasonable, oor without

foundation.”

Once a party prevails in litigation, § 2000e—5(k)

authorizes the district to award attorney’s fees “in its

discretion.” A prevailing defendant is entitled to fees

if the district court concludes “that the plaintiffs

action was frivolous, unreasonable, or without

foundation, even though not brought in subjective

bad faith.” CAristiansburg, 434 U.S. at 421.2

In adopting this standard, the Court balanced a

need for effective Title VII enforcement with

congressional goals “to deter the bringing of lawsuits

without foundation,” “to discourage frivolous suits,”

and “to diminish the likelihood of unjustified suits

being brought.” Jd. at 420 (citations and footnotes

omitted). It ultimately concluded that Congress in

enacting § 2000e—5(k) “wanted to protect defendants

from burdensome litigation having no legal or factual

basis.” Christiansburg, 434 U.S. at 420.

One obvious way for a_ lawsuit to be

“unreasonable” or “without foundation” occurs when

the government itself violates the law and

correspondingly injures a private person or

organization. This kind of case presents the same

type of situation addressed in Christiansburg, where

this Court explained that a district court should

ordinarily award a reasonable attorney's fee to a

prevailing plaintiff because the prevailing plaintiff

has established that the defendant is “a violator of

federal law.” Jd. at 418; see also Indep. Fed’n of

Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989)

(“In every lawsuit in which there is a prevailing Title

VII plaintiff there will also be a losing defendant who

2 Prevailing plaintiffs, by contrast, are presumed to be

entitled to attorney's fees in all but special circumstances. See,

e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 415 (1975);

but see Fogerty v. Fantasy, Inc., 510 U.S. 517, 535-39 (1994)

(Thomas, J., concurring in the judgment) (Christiansburg

incorrectly applied a more stringent standard to prevailing

defendants by “mistakenly castfing] aside the statutory

language to give effect to equitable considerations’).

has committed a legal wrong.”). In effect, a plaintiff

who prevails in a Title VII case typically

demonstrates unreasonable behavior by proving that

the defendant violated the law.

In fact, the government has taken this very

position. In Zipes, the government argued that

“those who violate federal law should redress those

whose rights have been violated.” Br. for the United

States and the EEOC as Amici Curiae, Zipes, 491

U.S. 754 (No. 88-780), 1989 WL 1127747, at *12. It

further told this Court that “[a]n award of fees .. .

serves the equitable purpose of redressing a wrong,

and of deterring similar wrongs in the future.” Jd. at

*6.

In the same way, a defendant who prevails

against the government when the government

violates the law in a Title VII case prevailed because

the government committed a “legal wrong” and is a

“violator of federal law.” Christiansburg, 434 U.S. at

418. A district court may exercise its broad

discretion in such cases and award a reasonable

attorney’s fee to the defendant.

D. The district court correctly concluded that

the EEOC’s illegal conduct justified an

attorney's fee award.

The EEOC is the on/y proven lawbreaker in this

case. The district court properly awarded a

reasonable attorney's fee to CRST.

Title VII requires the EEOC to undertake

detailed, specific steps before it may initiate

litigation, including receiving a charge of

discrimination; providing notice of the charge to the

respondent within ten days of its filing; investigating

the charge; making a determination about whether

there is reasonable cause to believe the charge is

true; and attempting to resolve any violation through

informal methods of conference, conciliation, and

persuasion. See § 2000e—5(b) & (f)(1). In this case,

the EEOC indisputably and utterly failed to comply

with the mandatory pre-suit investigation,

reasonable cause, and conciliation requirements with

respect to the 67 individuals at issue. As a result,

the EEOC comes to this Court as a judicially-

determined law-breaker. And its violations were

egregious. The EEOC violated multiple steps of Title

VII’s pre-suit process, filed a massive class action

lawsuit against CRST without even identifying or

investigating any of the 67 individuals, blasted

CRST with an inflammatory press release about

serious civil rights violations, dragged CRST through

years of unnecessary litigation, wasted the scarce

resources of the federal courts, and forced CRST to

spend millions of dollars to defend itself. CRST

should not have to foot the bill for the government’s

misconduct.

The Eighth Circuit’s 2012 decision upholding in

relevant part the district court’s dismissal recognized

that “the EEOC wholly failed to satisfy its statutory

pre-suit obligations.” CRST Van Expedited, 679 F.3d

at 677. It “did not investigate the specific allegations

of any of the 67 allegedly aggrieved persons .. . until

after the Complaint was filed,” and made no

reasonable cause determination. /d. at 676-77. Asa

result, the court concluded that “[a]bsent an

investigation and reasonable cause determination

apprising the employer of the charges lodged against

it, the employer has no meaningful opportunity to

conciliate.” Jd. That is as clear a finding that the

EEOC violated Title VII as anyone could ask.

The Eighth Circuit’s decision further illustrated

the EEOC’s overreach. It explained that its “review

of the undisputed facts demonstrates that the EEOC

was ‘using discovery in the resulting lawsuit as a

fishing expedition to uncover more violations.” /d.

(quoting EEOC v. Dillards, Inc., No. 08-cv-1780-IEG

(PCL), 2011 WL 2784516, at *7 (S.D. Cal. July 14,

2011)). This conclusion was clearly correct, for the

court elsewhere noted that the EEOC “did not

identify any of the 67 allegedly aggrieved persons as

members of the Letter of Determination’s ‘class’ until

after it filed the Complaint” and even told CRST

prior to filing its complaint “that it did not know” the

size of the class. /d. at 673. As a result, the court

explained that there is “a clear and important

distinction between facts gathered during the scope

of an investigation and facts gathered during the

discovery phase of an already-filed lawsuit.” Jd. at

675.

The district court opinion underlying the Eighth

Circuit's decision was even more pointed in

explaining the illegality of EEOC’s conduct under

Title VII. It held that “[t]he record shows that the

EEOC wholly abandoned its statutory duties as to

the remaining 67 allegedly aggrieved persons in this

case.” CRST Van Expedited, 2009 WL 2524402, at

*16; see also id. at *19 (“EEOC did not investigate,

issue a reasonable cause determination[,] or

conciliate the claims of the 67 allegedly aggrieved

persons”). The district court observed that long after

EEOC filed its suit, it “sent 2,000 letters to former

CRST female employees to solicit their participation

in this lawsuit” and subsequently “sent another 730

solicitation letters to former CRST female

employees.” /d. at *9. The EEOC did “not make a

reasonable cause determination as to the specific

allegations of any of the 67 allegedly aggrieved

persons prior to filing the Complaint,” and the dates

of alleged violations about 27 of the 67 individuals at

issue postdate the EEOC’s reasonable cause

determination that formed the basis for its suit. Jd.

at *16. In other words, the alleged actions

underlying those 27 individuals’ assertions had not

even occurred before the EEOC concluded that

reasonable cause existed as to a handful of other,

unrelated individuals. And as to 38 of the remaining

40 individuals, “the EEOC admits that it was not

even aware of their allegations until after the filing

of the Complaint. The EEOC used discovery in the

instant lawsuit to find them.” Jd; see also CRST

Van Expedited, 679 F.3d at 673-74 (these specific

findings “undisputed”).

The district court thus concluded that the EEOC

was attempting to “bootstrap the investigation,

determination[,] and conciliation of the allegations of

[Charging Party Monica] Starke and a handful of

other allegedly aggrieved persons into a [§ 2000e—5]

lawsuit with hundreds of allegedly aggrieved

persons.” CRST Van Expedited, 2009 WL 2524402,

at *16. It termed EEOC’s actions an attempt “to

perfect an end-run around Title VII’s statutory

prerequisites to suit” and worried that the EEOC’s

actions, if allowed, “might avoid administrative

proceedings for the vast majority of allegedly

aggrieved persons.” /d. at *16, *18. Such a result

would “ratify a ‘sue first, ask questions later’

litigation strategy on the part of the EEOC, which

would be anathema to Congressional intent.” Id. at

*19 (emphasis added).

These conclusions are not in dispute before this

Court; they are the facts of this case that must be

accepted as true. The district court properly

exercised its discretion when it awarded a reasonable

attorney’s fee to CRST.

Il. THE EEOC SHOULD NOT BE ALLOWED TO

SIDESTEP ITS UTTER FAILURE TO FOLLOW

ITS STATUTORY OBLIGATIONS.

The EEOC should not be allowed to dodge the

district court’s decision to award a _ reasonable

attorney’s fee by suggesting that its indisputably

illegal behavior amounted to little more than an

inadvertent “fail[ure] to sufficiently investigate and

conciliate.” Br. in Opp. 9. The failure here was not

one of “sufficiency.” Rather, the EEOC wholly

abandoned Title VII’s mandatory, multi-step pre-suit

enforcement scheme when it did nothing about the

67 claimants until it filed suit and used discovery to

identify them. If the EEOC had investigated the 67

claimants pre-suit—as Congress required it to do—

the EEOC and CRST may well have settled these

matters privately and quickly to the satisfaction of

the claimants, CRST, and the public interest.

Instead, the claimants received nothing; EEOC’s

Title VII violation forced CRST to expend several

million dollars to defend itself; and the EEOC’s

multi-year litigation about the 67 claimants wasted

its own taxpayer-funded resources and the scarce

resources of the federal courts.

A. Title VII's text demands that the EEOC

complete an extensive series of steps before it

can sue.

The text and history of Title VII’s pre-suit

requirements indicate that the EEOC’s obligations to

engage in the charge, investigation, reasonable

cause, and conciliation process are central to the

statutory scheme enacted by Congress. “In pursuing

the goal of bringing employment discrimination to an

end, Congress chose cooperation and voluntary

compliance as its preferred means.” Mach Mining,

135 S. Ct. at 1651 (citations and quotations omitted).

To that end, Congress intended that litigation would

be a last resort, not EEOC’s first step. EEOC cannot

jump over its statutory obligations and then seek to

characterize its violations as technicalities to avoid

paying for them.

Title VII “sets forth ‘an integrated, multistep

enforcement procedure” intended to enable the

EEOC “to detect and remedy instances of

discrimination.” EEOC v. Shell Oil Co., 466 U.S. 54,

62 (1984) (quoting Occidental Life Ins. Co. of Cal. v.

EEOC, 432 U.S. 355, 359 (1977)). That process does

not begin with the filing of a complaint in federal

court. Rather, “the EEOC is required by law to

refrain from commencing a civil action until it has

discharged its administrative duties.” Occidental

Life, 432 U.S. at 368.

Those duties are extensive and begin with the

filing of a charge by or on behalf of an allegedly

aggrieved party, see § 2000e—5(b), or by an EEOC

Commissioner acting on the party’s behalf. «See 29

C.F.R. §§ 1601.7, 1601.11. Once a charge is filed, the

EEOC must issue a notice to the accused entity (or

“respondent”) within ten days. § 2000e—5(b); see also

29 C.F.R. §§ 1601.7-1601.14; Occidental Life, 432

U.S. at 359. At that point, EEOC is statutorily

required to conduct an investigation into the charge.

§ 2000e—5(b). If it “determines after such

investigation that there is not reasonable cause to

believe that the charge is true,” it must dismiss the

charge and notify the parties. § 2000e—5(b); 29

C.F.R. § 1601.19(a).

If the EEOC does find reasonable cause, it must

issue a reasonable cause notice to the parties.

§ 2000e—5(b); 29 C.F.R. § 1601.21(b). It must then

“endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion.” § 2000e—

5(b); 29 C.F.R. § 1601.24. As this Court noted last

term, the EEQOC’s conciliation obligation “is

mandatory, not precatory” and “serves as a necessary

precondition to filing a lawsuit.” Mach Mining, 135

S. Ct. at 1651. Additionally, conference, conciliation,

and persuasion “necessarily involve communication

between parties, including the exchange of

information and views.” /d. at 1652.

Only if the EEOC engages in each of these

preceding steps and is “unable to secure from the

respondent a conciliation agreement acceptable to

the Commission” may it issue a failure of conciliation

notice and finally bring suit. § 2000e—5(f)(1); 29

C.F.R. §§ 1601.25 & 1601.27; see also Occidental

Life, 432 U.S. at 359 (pre-suit process “culminat{es]

in the EEOC’s authority to bring a civil action”). In

fact, unless EEOC’s “attempt to conciliate has

failed,” the EEOC may not file a claim against the

employer. Mach Mining, 135 S. Ct. at 1651.

Congress designed these pre-suit obligations to

provide procedural protections to employers and to

ensure that “the victim of job discrimination” does

not suffer due to “lengthy delays that too often

attend Title VII litigation.” Ford Motor Co. v. EEOC,

458 U.S. 219, 221 (1982). Such a victim “needs work

that will feed a family and restore self-respect. A job

is needed—now.” Jd. Each step in Title VII's

statutory scheme up to the point of suit thus

functions as an opportunity to resolve Title VII

allegations without litigation, reflecting Title VII's

“statutory goal” of “maximum possible reliance upon

voluntary conciliation and administrative resolution

of claims.” HEOC v. Associated Dry Goods Corp., 449

U.S. 590, 602 (1981). The “overriding goal is not to

promote the employment of lawyers but to correct

discriminatory practices quickly and effectively.”

Shell Oil, 466 U.S. at 90 (O’Connor, J., concurring in

part and dissenting in part).

Reflecting this goal of avoiding litigation if at all

possible, Title VII and the EEOC’s procedural

regulations both empower and _ require the

investigation and remediation of alleged employment

discrimination, promptly and efficiently. To enable

the EEOC to investigate charges, Title VII

authorizes the EEOC to compel production of

witnesses, documents, and other information to the

extent that information “is relevant to the charge

under investigation.” § 2000e—8(a); see also § 2000e—

9; 29 C.F.R. §§ 1601.15-1601.17; Shel/ Oil, 466 U.S.

at 63-64. And at any time during the pre-suit

process, the EEOC “may encourage the parties to

settle the charge on terms that are mutually

agreeable.” 29 C.F.R. § 1601.20. Accord EEOC

Compl. Manual § 15 (explaining negotiated

settlement process prior to reasonable cause

determination).

In addition, Congress codified additional

protections to foster pre-suit resolution of Title VII

charges. Title VII requires the EEOC to treat

charges, investigations, reasonable cause

determinations, and conciliation proceedings as

strictly confidential. See § 2000e—5(b) (charge “shall

not be made public by the Commission”); § 2000e—

8(e) (same, investigation); 29 C.F.R. § 1601.22 (same,

charge and_ investigation); § 2000e—5(b) (in

conciliation, “[nJothing said or done during and as a

part of such informal endeavors may be made public”

by EEOC or used in evidence in subsequent

proceedings.); see also 29 C.F.R. § 1601.26(a) (same);

Associated Dry Goods, 449 U.S. at 598-604

(prohibition on disclosure prevents employees filing

discrimination charge from seeing employer

information unrelated to their own employment).

These confidentiality protections “ensure candor”

and “thereby enhance[] the prospects for agreement”

without litigation. Mach Mining, 135 S. Ct. at 1649,

1655. Congress took these _ confidentiality

requirements so seriously that any violation by an

EEOC officer or employee is punishable by up to a

year in prison and a fine of up to $1,000. §§ 2000e—

5(b) & 2000e—8(e).

B. Title VII's history and this Court’s

precedents further emphasize the importance

of EEOC’s statutory obligations prior to suit.

This extensive set of EEOC statutory obligations

prior to suit is no accident. Rather, Title VII’s multi-

step enforcement scheme is central to the EEOC

structure created by Congress in 1964 and

reconfirmed in 1972 when Congress authorized the

EEOC to sue in its own name. See generally

Occidental Life, 432 U.S. at 358-72; Shel/ Oil 466

U.S. at 62-82. As enacted in 1964, “Title VII limited

the EEOC’s function to investigation of employment

discrimination charges and informal methods of

conciliation and _ persuasion. The failure of

conciliation efforts terminated the involvement of the

EEOC.” Occidental Life, 432 U.S. at 358-59.

Under the 1964 version of Title VII, the EEOC

had no litigation authority at all, for “when it

originally enacted Title VII, Congress hoped to

encourage employers to comply voluntarily with the

act.” Shell Oil, 466 U.S. at 77. Congress vested

litigation authority in “the charging party, or other

person aggrieved by the allegedly unlawful practice,”

Occidental Life, 432 U.S. at 359, and limited the

Attorney General to intervening in cases of “general

public importance” and to filing alleged “pattern or

practice” cases. §§ 2000e—5(e); 2000e-6 (1964).

Accord Gen. Tel. Co. of the Northwest, Inc. v. EEOC,

446 U.S. 318, 327 (1980).

Congress moved away from the voluntary

compliance model in 1972 when it granted the EEOC

litigation authority as part of the Equal Employment

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.

107 (1972). In doing so, however, Congress “did not

abandon its wish that violations of the statute could

be remedied without resort to the courts, as is

evidenced by its retention in 1972 of the requirement

that the Commission, before filing suit, attempt to

resolve disputes through conciliation.” She// Oil, 466

U.S. at 78. As Representative Perkins explained in

introducing the Conference Report that accompanied

the House of Representatives’ version of the 1972

amendments:

The conferees contemplate that the

Commission will continue to make every

effort to conciliate as is required by

existing law. Only if conciliation proves

impossible do we expect the

Commission to bring action in Federal

district court.

118 Cong. Rec. 7563 (1972). In other words,

Congress retained the charge, investigation,

reasonable cause, and conciliation requirements that

were previously the sole actions the EEOC could

take. Congress added a final step in that process—

litigation—that the EEOC could only pursue after it

satisfied the pre-suit requirements of § 2000e—5.

Congress’ decision to grant the EEOC litigation

authority and to retain Title VII’s multi-step pre-suit

process was a compromise that came after several

members of the House and Senate expressed concern

about granting the EEOC too much prosecutorial

power. See Occidental Life, 432 U.S. at 361 (“The

dominant Title VII battle in [1972] was over what

kind of additional enforcement powers should be

granted to the EEOC.”). Initial drafts of the 1972

bill contemplated that EEOC employees would serve

as investigators, prosecutors, and administrative law

judges (“ALJs”). See S.2515, 92d Cong. § 4(a) (as

introduced to the Senate Sept. 14, 1971). EEOC

ALJs would have been granted authority to issue

cease-and-desist orders. Such orders would have

been reviewed on a deferential basis by courts. /d.

§ 4(a) (proposed subsection (k) noting “substantial

evidence” standard in federal courts).

Members of both Houses of Congress decried

giving the EEOC cease-and-desist power. They

warned that such power was dangerous, contrary to

constitutional due process. protections, and

downright un-American.

For example, Senator Dominick cautioned that

the proposed cease-and-desist process would

“harken[{] back to the ‘Star Chamber’ proceedings

outlawed in England more than 300 years ago. That

is, the EEOC would, in effect, become investigator,

prosecutor, trial judge and judicial review board—all

before you ever got to the Court of Appeals!” 117

Cong. Rec. 40290 (1971). Representative Martin

objected that “[t]he committee bill . . . would set up

this five-man EEOC board to be the investigator, the

prosecutor, the judge, and the jury of these cases. An

employer would be considered guilty until he proves

himself innocent. . . . This is a very, very dangerous

piece of legislation.” 117 Cong. Rec. 31959 (1971).

Representative Broomfield agreed, warning that

cease-and-desist authority “would be similar to

letting policemen arrest, try, and punish citizens on

the street at the point of a gun.” 117 Cong. Rec.

32106 (1971). And Representative Ashbrook

observed that the “real purpose of granting

additional powers for the EEOC is to give it more

authority than it deserves or should properly have,”

while expressing concern that the agency would use

its “blackjack authority” to force employers to comply

with its whims. 117 Cong. Rec. 32101 (1971).

Adding to these concerns about allowing the

EEOC to act with “czar-like powers of policeman,

prosecutor, judge and jury,” 118 Cong. Rec. 732

(1972) (statement of Sen. Brock), was a perception by

some that the EEOC was far from a neutral

decisionmaker that could be trusted to render fair

judgments. Senator Saxbe worried that EEOC

officials “tend to have an ax to grind. They are

people who are very zealous.” 118 Cong. Rec. 731

(1972). Senator Allen explained that “[t]he

Commission . . . has not been and is not now the

impartial agency it was supposed to be and as

charged to be by law” and stated that the EEOC “has

been a rabid advocate of its own preconceived ideas.”

118 Cong. Rec. 932 (1972); see also 118 Cong. Rec.

1657 (1972) (statement of Sen. Ervin) (“virtually all”

of the EEOC commissioners to date “were men who

were psychologically incapable of holding the scales

of justice evenly, because they were so biased in

favor of the policy of the bill that they could not

appraise impartially the truth involved in the

proceedings”); see also 118 Cong. Rec. 1976 (1972)

(statement of Sen. Ervin) (EEOC should not be given

“autocratic power” because it “has ordinarily been

staffed in the past . . . by crusaders for a cause”).

These concerns and others like them led to the

introduction and eventual passage of substitute bills

in both the House and the Senate. The revised bill

authorized the EEOC “to file federal-court actions

rather than conduct its own hearings and issue

cease-and desist orders” following conciliation.

Occidental Life, 432 U.S. at 363 (House bill); zd. at

363-64 (same; Senate bill). As Senator Dominick

explained at an early stage in the proceedings, this

approach properly balanced “the need to give EEOC

enforcement powers and the rights of those charged

with violations of the law” by “provid[ing] a

combination of the expertise of the EEOC in

investigating, processing, and conciliating unfair

employment cases with the expertise and

independence of the Federal courts.” 117 Cong. Rec.

34116 (1971).

In establishing this framework, Congress sought

to avoid creating an EEOC that would function as

investigator, prosecutor, judge, fact-finder, and

appellate tribunal. It therefore retained the original

pre-suit obligations and required that litigation

would ensue only after the EEOC satisfied each step

of the process and only after a resolution proved

impossible.

C. Section 2000e—5(k) authorizes district courts

to award a reasonable attorneys fee in

appropriate cases to prevent the EEOC from

abusing its authority.

Allowing the EEOC to violate its charge,

investigation, reasonable cause, and conciliation

requirements with impunity would have the

practical effect of leaving “compliance with the law”

“in the Commission’s hands alone.” Mach Mining,

135 S. Ct. at 1652. This Court last term recognized

that a lack of judicial review over the EEOC’s

conciliation obligations would render the conciliation

requirement a nullity. Jd. at 1652-53. That same

concern applies with equal force to Title VII’s fee

provision. Unless defendants subject to the EEOC’s

illegal behavior have recourse to § 2000e—5(k), the

EEOC will continue to impose substantial costs on

defendants who never should have been sued in the

first place. As Mach Mining recognized, “legal lapses

and violations occur, and especially so when they

have no consequence.” 135 S. Ct. at 1652-53; cf also

Shell Oil, 466 U.S. at 90 (O’Connor, J., concurring in

part and dissenting in part) (“Experience teaches

that Government administrative agency

investigations can be prone to abuse’).

That recognition is particularly relevant here.

The EEOC asserts that it can violate its Title VII

obligations with impunity, impose millions of dollars

in costs and attorney’s fees as well as significant

reputational harm on a defendant yet avoid any

consequences for its illegal behavior. Despite the

EEOC’s insistence that Title VII gives it a free pass

to violate the law, § 2000e~-5(k) recognizes that

defendants should not bear the financial burden of

the EEOC’s illegal misconduct. See Christiansburg,

434 U.S. at 422 n.20 (“expense of defending even a

frivolous claim may become a strong disincentive to

the exercise of [defendants’] legal rights”).

The EEOC’s violation of § 2000e—5(b)’s

requirements in this case is even worse because

Congress vested the EEOC with authority to enforce

Tile VII and express authority to issue “suitable

procedural regulations.” § 2000e—-12(a). EEOC

exercised that authority, see 29 C.F.R. § 1601.1, et

seq., and its regulations implementing § 2000e-5’s

procedural requirements both bind the EEOC and

demonstrate its awareness of Title VII’s mandatory

pre-suit requirements. See Shel/ Oil, 466 U.S. at 67

(EEOC’s procedural regulations “binding on the

Comm)ssion”). Accordingly, when, as in this case,

the EEOC violates Title VII and imposes millions of

dollars in legal fees on defendants, it should not and

cannot escape responsibility for its actions.

If anything, the EEOC should be held to a higher

standard based on its role as enforcer of Title VII.

Indeed, Christiansburg explained that when

considering whether to award attorney’s fees against

the EEOC, “a district court may consider distinctions

between the Commission and private plaintiffs in

determining the reasonableness of the Commission’s

litigation efforts.” 434 U.S. at 422 n.20. Unlike a

private plaintiff, who in most situations presumably

lacks legal training of any kind, the EEOC is

statutorily charged with responsibility for enforcing

Title VII. And, EEOC routinely touts its experience

and asks this Court and other courts to defer to its

interpretations of Title VII. See, eg, Br. for the

United States as Amicus Curiae, Young v. United

Parcel Serv., Inc., 135 S. Ct. 1338 (2015) (No. 12-

1226), 2014 WL 4536939, at *26-*29 (arguing for

Skidmore deference to the EEOC’s interpretation of

Title VII); Young, 135 S. Ct. at 1351-52 (declining to

give deference because the EEOC promulgated

interpretation only’ recently and _ because

interpretation was inconsistent with prior

government litigating positions). It is entirely

reasonable to expect EEOC to remain aware of its

legal obligations and to accept the consequences

when it ignores them. In fact, the EEOC just last

year told a Senate committee that its “statutory

authority does not contemplate or permit” a strategy

of “suing first, and asking questions later.”

Statement of EEOC General Counsel P. David Lopez

to Sen. Comm. on Health, Educ., Labor & Pensions

at 6, May 19, 2015, http://www.

help.senate.gov/imo/media/doc/Lopez3.pdf; see also

Statement of EEOC Chair Jenny R. Yang to Sen.

Comm. on Health, Educ., Labor & Pensions at 2,

May 19, 2015, http://www.help.senate.gov/imo/media/

doc/Yang.pdf (litigation is “last resort”).

Instead of owning up to its shortcomings, the

EEOC claims that a determination of the

unreasonableness of its behavior “depends on an

assessment of the merits of the plaintiffs claims for

relief.” Br. in Opp. 10. That statement is wrong. Of

course, there is no doubt that the EEOC could

behave unreasonably if it brought a suit that lacked

any basis in fact. But Christiansburg did not hold,

nor is it reasonable to posit, that the government

should pay attorney fees only if it unreasonably

asserts misconduct that never occurred. If anything,

it is even more unreasonable for the EEOC to bring

claims it has no statutory right to bring due to its

decision to skip multiple statutory preconditions to

suit. As this Court explained years ago in rejecting

another EEOC attempt to avoid a Title VII

requirement it did not like, “the Commission’s

argument is merely one of administrative

convenience, and such convenience cannot override

the prohibitions in the statute.” Associated Dry

Goods, 449 U.S. at 604. The EEOC’s misplaced

“merits” argument assumes that it can ignore its

statutory obligations, file a suit illegally, impose the

costs of years of litigation on defendants, and then

escape responsibility by suggesting that it mught

have had a case if it had bothered to act as the law

requires. Stripped of its rhetoric, that argument

does not exonerate the EEOC; it illustrates the

EEOC’s unreasonableness.

Similarly, the EEOC elsewhere asserts that its

disregard of the law was reasonable “because the

district court’s decision in this case was the first to

impose” a requirement that the EEOC investigate,

issue reasonable cause findings, and conciliate with

each individual claimant. Br. in Opp. 20. That

assertion is false. Prior to the EEOC’s filing of this

lawsuit, courts in at least nine circuits, including the

Eighth Circuit, had dismissed all or significant parts

of EEOC cases when the EEOC violated its pre-suit

obligations.’ It is not surprising that so many courts

have held the EEOC to its pre-suit obligations

because those obligations have remained the same

since 1972. And, even if the EEOC dubiously claims

that it could not understand the clear import of its

statutory obligations under § 2000e—5(b), courts had

repeatedly informed it of its obligations. It just chose

to ignore them. Given this, the district court

properly exercised its discretion to determine that

the EEOC was a “violator of federal law,”

3 See, e.g., First Circuit—ZEOC v. IBEW, 476 F. Supp. 341,

346-48 (D. Mass. 1979); Second Circuit—EEOC v. Sears,

Roebuck & Co., 650 F.2d 14, 18-19 (2d Cir. 1981); Third

Cireuit—EEOC v. E. Hills Ford Sales, Inc., 445 F. Supp. 985,

987-88 (W.D. Pa. 1978); EEOC v. Allegheny Airlines, 436 F.

Supp. 1300, 1303, 1307 (W.D. Pa. 1977); EEOC v. EI. DuPont

de Nemours & Co., 373 F. Supp. 1321, 1332, 1334 (D. Del. 1974),

affd, 516 F.2d 1297 (3d Cir. 1975); Fourth Circuit— Patterson v.

Am. Tobacco Co., 535 F.2d 257, 271-72 (4th Cir. 1976); EEOC v.

W. Elec. Co., 382 F. Supp. 787, 793-95 (D. Md. 1974); EEOC v.

Westvaco Corp., 372 F. Supp. 985, 992-94 (D. Md. 1974); EEOC

v. Firestone Tire & Rubber Co., 366 F. Supp. 273, 278 (D. Md.

1973); Fifth Circuit—ZEOC v. Argo Distrib., LLC, No. 04-cv-

322-KS-MTP, 2007 WL 1031649, at *3 (S.D. Miss. Mar. 30,

2007, aff'd, 555 F.3d 462 (5th Cir. 2009); EEOC v. Pet, Inc., 612

F.2d 1001, 1002 (5th Cir. 1980) (per curiam); Seventh Circuit—

EEOC v. Target Carp., No. 02-cv-146, 2007 WL 1461298, at *3-

*4 (E.D. Wis. May 16, 2007); EEOC v. Jillian’s of Indianapolis,

IN, Inc., 279 F. Supp. 2d 974, 978-85 (S.D. Ind. 2003); Eighth

Cireuit—EZEOC v. Hickey-Mitchell Co., 507 F.2d 944, 947-49

(8th Cir. 1974); Ninth Circuit—EEOC v. Pierce Packing Co..

669 F.2d 605, 609 (9th Cir. 1982); Eleventh Circuit—FZOC v.

Asplundh Tree Expert Co., 340 F.3d 1256, 1259-61 (11th Cir.

2003); EEOC v. Nat? Cash Register Co., 405 F. Supp. 562, 564-

67 (N.D. Ga. 1975); EEOC v. King’s Daughter’s Hosp., 1976 BL

450, at *6-*7 (S.D. Miss. Jan. 12, 1976); EEOC v. U.S. Pipe &

Foundry Co., 375 F. Supp. 237, 241-48 (N.D. Ala. 1974); EEOC

v. Container Corp., 352 F. Supp. 262, 266 (M.D. Fla. 1972).

Christiansburg. 434 U.S. at 418, and that CRST was

entitled to reasonable attorney’s fee.

Ill. MACH MINING PROVIDES NO SUPPORT

FOR THE EEOC HERE

Last term, Mach Mining resoundingly reaffirmed

the importance of conciliation proceedings under

§ 2000e—5(b). There, the Court rejected the EEOC’s

argument that its total failure to conciliate could not

be reviewed, explaining that “Congress rarely

intends to prevent courts from enforcing its

directives to federal agencies.” Mach Mining, 135 S.

Ct. at 1651. In spite of this rebuke, EEOC has

subsequently seized upon a single sentence at the

end of Mach Mining to assert that this Court

somehow limited the relief courts can provide, even

in cases like the present involving undisputed EEOC

violations of Title VII. The EEOC’s assertion

misconstrues the statutory text of § 2000e—5(f)(1),

misinterprets Mach Mining, and relies on an

inaccurate sleight-of-hand regarding the different

roles EEOC has at different points in its pre-suit

obligations under § 2000e—5(b).

A. The EEOC incorrectly interprets Mach

Mining as mandating a stay for any EEOC

violation of Title VII.

The sentence on which the EEOC places such

weight states:

Should the court find in favor of the

employer, the appropriate remedy is to

order the EEOC to undertake the

mandated efforts to obtain voluntary

compliance. See § 2000e—5(f)(1)

(authorizing a stay of a Title VII action

for that purpose).

Mach Mining, 135 S. Ct. at 1656.

The EEOC has since over-read this single

sentence as applying far beyond the conciliation

context in which it was made. It has asserted,

including in this case, that Mach Mining limits

judicial power for violation of any of EEOC’s

statutory pre-suit obligations to ordering a “do-over”

and that neither dismissal nor a fee award can ever

be appropriate, regardless of the EEOC’s misconduct.

See Br. in Opp. 12 n.2 (asserting that “the Court

recognized [in Mach Mining] that the appropriate

remedy for the EEOC’s failure to fulfill a pre-suit

condition is to give the EEOC the opportunity to

fulfill that condition, not to dismiss the case

outright”); see also, e.g., Rule 28(j) Letter at *1-*2,

EEOC v. Sterling Jewelers, Inc., No. 14-1782 (2d Cir.

Apr. 30, 2015), (EEOC arguing that Mach Mining's

stay reference applied to failure to investigate).

Thus, the EEOC asserts that a stay is the only

remedy a court can impose in its discretion for any

violation of § 2000e—5(b)’s charge, investigation,

reasonable cause, or conciliation requirements. The

EEOC is wrong.

B. The statutory text and Mach Mining itself

demonstrate that the Court was speaking

only of conciliation.

Each phrase of the statutory text of the stay

provision undercuts the EEOC’s position. The

statute states:

Upon request, the court may, in its

discretion, stay further proceedings for

not more than sixty days pending...

further efforts of the Commission to

obtain voluntary compliance.

§ 2000e—5(f)(1).

By its terms, § 2000e—5(f)(1) requires a “request”

by one of the parties. A court then “may, in its

discretion, stay further proceedings,” but the statute

limits any stay to “not more than sixty days.” Jd.

And the sole purpose of such a requested, time-

limited stay is for “further efforts of the Commission

to obtain voluntary compliance.” Jd. Section 2000e-

5(f)(1) does not authorize a court to “stay further

proceedings” for any purpose other than an attempt

“to obtain voluntary compliance”—i.e., for conciliation

purposes. The EEOC’s interpretation of Mach

Mining is in conflict with several requirements that

flow from this statutory text.

First, without any request, the stay provision

does not even apply. The EEOC is therefore wrong

when it asserts that a stay is the mandatory remedy

for a violation of its pre-suit obligations.

Second, the statute indicates that “the court

may, in its discretion” grant a stay. /d. Contrary to

the EEOC’s assertions, that language indicates that

a stay is subject to a court’s wide discretion to

fashion appropriate remedies and implicitly leaves

open other avenues of relief.

Third, § 2000e—5(f)(1) limits any stay to “not

more than _ sixty days.” However, pre-suit

investigations almost always take far longer than

sixty days, rendering application of the stay

provision to such requirements illogical. Occidental

Life recognized that there is no statute of limitations

for filing suit under Title VII, either in the statute or

by reference to comparable state limitations periods.

432 U.S. at 360-72. The EEOC’s investigative

process can take years. See, e.g., id. at 358 (charge

formally filed with the EEOC on March 9, 1971 but

suit not filed until February 22, 1974); Ford Motor,

458 U.S. at 221-23 (charges filed in June and July

1971 but suit not filed until July 1975). In this case,

the charge was filed December 1, 2005, and EEOC

filed suit on September 27, 2007. See CRST Van

Expedited, 679 F.3d at 666, 668. These already

lengthy timelines do not even include the possibility

of a dispute during investigation, which could add

additional litigation over EEOC’s right to compel

production of information. She// Oi/ is instructive in

this regard. There, the EEOC’s chair issued a charge

on September 27, 1979. The parties disputed EEOC’s

authority; EEOC issued a subpoena; and this Court

issued its decision about the subpoena dispute on

April 2, 1984, before the EEOC decided whether to

issue a reasonable cause determination. She// Oil,

466 U.S. at 54, 57.

In other words, it makes no sense to interpret

§ 2000e—5(f)(1)’s sixty-day time limit as applying to

investigations because that time period provides

inadequate time for an investigation.

Fourth and most critically, § 2000e—5(f)(1)’s stay

provision applies only for “further efforts of the

Commission to obtain voluntary compliance.”

(emphasis added). That language is an express

reference to conciliation, not to EEOC’s independent

charge, investigation, and reasonable cause duties.

As a result of this statutory structure and text, it

is no surprise that Mach Mining itself does not make

the sweeping statement EEOC claims it made. As

noted, Mach Mining involved only conciliation, the

last step before litigation in Title VII’s “overall

enforcement structure [of] a sequential series of

steps beginning with the filing of a charge with the

EEOC.” Occidental Life, 432 U.S. at 372. See Mach

Mining, 135 S. Ct. at 1650 (noting charge,

investigation, and reasonable cause determination

and recognizing that petitioner asserted only “that

the EEOC had failed to ‘conciliate in good faith’ prior

to filing suit”). Regardless whether a stay is proper

following the EEOC’s failure to comply with its

statutory duty to conciliate, Mach Mining simply had

no reason to reach more broadly io other,

independent statutory pre-suit duties and does not

address them. Instead, Mach Mining hews closely to

the statutory text of § 2000e—5(f)(1). Even the

sentence the EEOC over-reads references only

“efforts to obtain voluntary compliance,” 135 S. Ct. at

1656, a carefully-cabined statement clearly limited to

conciliation.

For all of these reasons, EEOC is wrong when it

claims that a stay under § 2000e—5(f)(1) is always

“the appropriate remedy for the EEOC’s failure to

fulfill a pre-suit condition.” Br. in Opp. 12 n.2.

C. The EEOC’s interpretation is also wrong

because it is impossible for the EEOC to act

as the neutral investigator once it has filed

suit.

Beyond the EEOC’s atextual reading of § 2000e—

5(f(1) and Mach Mining, a stay cannot be the

exclusive remedy for EEOC pre-suit statutory

violations because there is no way for the EEOC to

act as a neutral investigator once it has prematurely

concluded that a Title VII respondent is a

lawbreaker and filed suit. Critical differences in the

relationship between the EEOC and Title VII

respondents at different stages in the pre «uit

process raise due process concerns with pretending

that EEOC can go back in time once it has moved

from neutral investigator to adversary.

As already noted, § 2000e—5(b) sets out several

different phases in an EEOC action. At the charge,

investigation, and reasonable cause stages, the Title

VII respondent stands accused of Title VII violations,

and the EEOC functions as a neutral investigator of

the allegations and facts. If the EEOC concludes

after its investigation that there is no reasonable

cause to believe a violation occurred, it simply

dismisses the charge and notifies the parties.

§ 2000e—5(b); 29 C.F.P. § 1601.19(a).

However, the EEOC’s role changes dramatically

if it “determines after such investigation that there is

reasonable cause to believe that the charge is true,”

§ 2000e—5(b), and issues a reasonable cause notice.

29 C.F.R. § 1601.21(a)-(b). At that point, the EEOC

is no longer neutral; instead, “the matter assume[{s]

the form of an adversary proceeding.” Shel/ Oil, 466

U.S. at 68. The EEOC assumes a prosecutorial

function and seeks to remedy what it regards as a

violation of the law. Said another way, a reasonable

cause determination triggers the EEOC’s obligation

to engage in “informal methods of conference,

conciliation, and persuasion” with a_ goal of

“endeavor[ing] to eliminate” the violation it believes

occurred. § 2000e—5(b); 29 C.F.R § 1601.24. And if

the EEOC is “unable to secure from the respondent a

conciliation agreement acceptable” to it, it may so

declare and bring suit. § 2000e—5(f)(1); 29 C.F.R.

§ 1601.25.

Once the EEOC has proceeded past the

reasonable cause determination, it is working “to

eliminate any such alleged unlawful employment

practice.” § 2000e—5(b). There is a substantial due

process and fundamental fairness problem with

pretending that the EEOC could reopen (or initiate

in the first instance) a new, unbiased investigation.

That problem only grows once the EEOC files suit

and begins actively litigating against a defendant.

The district court in its merits review of this case

recognized these challenges. It was aware of its

authority, whether inherent or under § 2000e—5(f)(1),

to stay the proceeding in response to EEOC’s legal

violations, for it noted that “might have stayed the

instant action for further conciliation in lieu of

dismissal.” CRST Van Expedited, 2009 WL 2524402,

at *19 n.24. But it recognized that a stay was

improper when the EEOC had “wholly abdicated its

role in the administrative process.” Jd. And the

Eighth Circuit affirmed that decision in 2012,

explaining that “contrary to the EEOC’s contention,

the district court did not abuse its discretion in

opting to dismiss, rather than stay, the EEOC’s

complaint.” CRST' Van Expedited, 679 F.3d at 677.

EEOC again chose to let the Eight Circuit’s mandate

issue on that ruling. It cannot rely on any argument

to the contrary in its attempt to avoid paying fees

now.

CONCLUSION

For the reasons stated above and by Petitioner,

the decision below should be reversed.

Respectfully submitted,

KENTON J. SKARIN ERIC S. DREIBAND

JONES DAY_. Counsel of Record

77 W. Wacker Drive JONES DAY

Chicago, IL 60601 51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

esdreiband@jonesday.com

KATE COMERFORD TODD RICHARD PIANKA

WARREN POSTMAN AMERICAN TRUCKING

U.S. CHAMBER ASSOCIATIONS, INC.

LITIGATION CENTER, INC. 950 N. Glebe Road

1615 H Street, NW Arlington, VA 22203

Washington, DC 20062

MARIA GHAZAL

BUSINESS ROUNDTABLE

300 New Jersey Avenue, NW

Suite 800

Washington, DC 20001

Counsel for Amici Curiae

JANUARY 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.