Last week’s decision in CRST Van Expedited, Inc. v. EEOC is an example of what Justice Roberts would likely praise as judicial restraint or modesty. The Court decided the case on the narrowest grounds possible. Given the complicated history of the case and the EEOC’s decision to defend the result but not the Eighth Circuit’s reasoning, it is not surprising that the Court unanimously rejected the Eighth Circuit’s reasoning. But the Court could have and should have provided further guidance to lower courts on who is a prevailing party and found that CRST was not a prevailing party in this case. By failing to do so, the Court has ensured this case will drag on and provided an incentive to future Title VII defendants to delay a decision on the merits in the hopes of a big pay-day.
The decision provides little guidance to lower courts as to when a defendant is a prevailing party under Title VII’s fee-shifting statute. The Eighth Circuit had vacated the $4.5 million attorney’s fee award against the EEOC because it found a defendant must have prevailed on the merits to qualify as a prevailing party. Since the district court had dismissed the EEOC’s claims for failing in its pre-suit investigation and conciliation duties, the Eighth Circuit determined that the district court’s decision was not on the merits. The Court unanimously vacated and remanded the case. It held that a favorable decision on the merits is not required to find a defendant is a prevailing party and vacated. It declined, however, to further define or provide a rule to guide lower courts.
Justice Kennedy, writing for the Court, stated “[t]his Court is confident that the Court of Appeals, and, if necessary, the District Court, will resolve the case by taking any proper steps to expedite its resolution in a manner consistent with their own procedures and their responsibilities in other pending cases.” In light of the procedural history of this case, it’s likely the Court’s confidence is misplaced.
The case’s procedural history shows it is unlikely that the Court of Appeals or the district court will expeditiously and, what’s worse, correctly resolve the case. The Eighth Circuit has twice reversed the district court on attorney’s fees. As Justice Kennedy wrote “[i]t has been 10 years since the [claimant] first filed her charge [of discrimination] and close to 9 years since the Commission filed its complaint. The dispute over the award of attorney’s fees has continued over much of that period and is still unresolved.” By not providing further guidance to the lower courts, the Court has ensured that the case will require additional litigation to resolve.
Further, the Eighth Circuit and the district court’s reasoning in their previous decisions indicate they will continue to get it wrong. The district court dismissed and a majority of the Eighth Circuit panel affirmed the dismissal of 67 EEOC class members for the EEOC’s alleged failure to engage in pre-suit conciliation and investigation. In Mach Mining v. EEOC, decided after the Eight Circuit’s decision in EEOC v. CRST Van Expedited, Inc., the Supreme Court, however, made clear that even where the EEOC failed to conciliate, the proper remedy is not dismissal.
That CRST could be considered a prevailing party because the lower courts incorrectly dismissed the case rather than sending it back for more conciliation undermines the intent of the fee-shifting statute. Quoting Christiansburg Garment Co. v. EEOC, the Court explained “one purpose of the fee-shifting provision is ‘to deter the bringing of lawsuits without foundation.’” A failure to conciliate does not mean the EEOC has no foundation to bring a lawsuit. And, the remedy–more conciliation–does not mean that a defendant has prevailed. Indeed, if conciliation were unsuccessful, it would mean that the EEOC and CRST would have ended up back in court again.
The Court’s failure to provide clear guidance to lower courts and future litigants also sends a message to defendants. It is a message that will mean more delay and harm Title VII plaintiffs. CRST failed to timely provide information during the EEOC’s investigation and then waited to raise the issue of conciliation and investigation until 18 months of “heavy litigation” had passed. Other defendants seeing CRST’s success (to the tune of $4.5 million) are certain to pick up on the Court’s message. And, without clear guidance from the Court to the contrary, lower courts will continue to amplify that message.
The message? Delay pays.
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