At SCOTUS: Does EEOC owe $4 million in attorney fees?

EEOC brought a massive suit against CRST Van Expedited, Inc., claiming sexual harassment. The district court granted judgment for CRST as to 67 individuals because the EEOC had failed to engage in any form of pre-suit investigation, reasonable cause determination, or conciliation extending beyond the claims of just two alleged victims. The 8th Circuit affirmed. But after the district court awarded over $4 million in attorney fees against the EEOC, the 8th Circuit reversed. Now the US Supreme Court has said it will decide the issue. [Here's a later blog post: $4 million attorney’s fees brief filed at SCOTUS]

There's a statute. 42 U.S.C. § 2000e-5(k):

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.

It looks like CRST prevailed, but the 8th Circuit applies a rule limiting civil rights fee awards to cases involving rulings "on the merits." According to the 8th Circuit [Opinion], prevailing because the EEOC bungled its duty to perform pre-suit investigation and conciliation is not prevailing "on the merits."

You can check out the certiorari stage briefs: