SCOTUS Argument preview: Does the EEOC owe $4.7 million in attorney’s fees?

SCOTUSblog just published my preview of oral arguments in CRST Van Expedited, Inc. v. EEOC, the case in which the 8th Circuit said CRST could not recover nearly $4.7 million in attorney's fees from the EEOC. Here's a brief summary: History: EEOC sued on behalf of scores of employees claiming the CRST violated Title VII. The district court dismissed the EEOC's claims as to 67 individuals because the EEOC had not first investigated the claims, made reasonable cause determinations, or attempted conciliation as to each of the 67 individuals.

Attorney's fees: The district court awarded CRST its attorney's fees. The 8th Circuit reversed, saying CRST was not a "prevailing party" because there was never a judgment "on the merits" of the EEOC's claims.

Certiorari granted: The US Supreme Court granted certiorari to consider "Whether a dismissal of a Title VII case, based on the Equal Employment Opportunity Commission’s total failure to satisfy its pre-suit investigation, reasonable cause, and conciliation obligations, can form the basis of a attorney’s fee award to the defendant under 42 U.S.C. § 2000e-5(k)."

Forget about the 8th Circuit's reasoning: Neither the EEOC nor CRST has any use for the 8th Circuit's reasoning. Both sides have framed up their own legal theories.

EEOC's legal theory: In order for CRST to be a "prevailing party" CRST has to have obtained an order of dismissal "with prejudice" – a dismissal with res judicata effect. CRST got a dismissal without prejudice (so EEOC could have cured its lapse and returned to court), so CRST is not a "prevailing party."

CRST calls foul: CRST says the EEOC has waived this “entirely new theory” in a “stunning about-face” because it was never raised during six years of litigation.

CRST's legal theory: Defendants "prevail" when they get a judgment that gives a plaintiff no relief. That judgment need not be "on the merits" and need not be with prejudice. In essence, a win is a win.

What's in the record? Here's a surprise for the Court. CRST and EEOC don't agree on what their trial record says about whether CRST got judgment with or without prejudice. This disagreement popped up in the past five weeks during final briefing. I can almost smell the Court dismissing the writ of certiorari as improvidently granted.

Christiansburg test:  In Christiansburg Garment Co. v. EEOC (1978) the Supreme Court said that “a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Naturally, CRST and the EEOC disagree as to whether it was "unreasonable" for the EEOC to bring suit before performing its pre-suit duties to investigate, make reasonable cause determinations, and attempt conciliation.

One comment that I didn't post on SCOTUSblog: Will the Court notice that if a plaintiff has to pay attorney's fees to a defendant who got a judgment that's not res judicata, and then the plaintiff re-files and wins, the defendant would ultimately be the loser and still have recovered attorney's fees?

[For recent decisions and pending employment law cases, see Supreme Court Watch.]