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Equal Employment Opportunity Commission v. CRST Van Expedited, Inc.

United States District Court, N.D. Iowa, Cedar Rapids Division

September 22, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
CRST VAN EXPEDITED, INC., Defendant.

          ORDER

          LINDA R. READE, JUDGE UNITED STATES DISTRICT COURT

         TABLE OF CONTENTS

         I. INTRODUCTION ....................................... 2

         II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND ........................................ 2

         III. ANALYSIS ........................................... 7

         A. Waiver .......................................... 8

         B. Is Preclusion Required? ............................. 13

         C. Judicially Sanctioned Material Alteration .................. 20

         D. Findings on Remand ............................... 23

         1. Legal standard ............................... 25

         2. Discussion .................................. 29

         a. Statute of limitations ....................... 30

         b. Concession that the claimant suffered no severe or pervasive harassment ................ 33

         c. No notice or opportunity to remedy ............. 34

         d. Complaint properly remedied ................. 47

         e. Not severe or pervasive ..................... 59

         3. Summary .................................. 72

         E. Reasonable Fees .................................. 73

         1. Pattern-or-practice fees ......................... 78

         2. Appellate fees ................................ 80

         3. General fees ................................ 80

         IV. CONCLUSION ....................................... 82

         I. INTRODUCTION

         The matter before the court is the Eighth Circuit Court of Appeals’s Mandate (“Mandate”) (docket no. 452).

         II. RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND

         The factual underpinnings of the sexual harassment and retaliation allegations underlying this litigation have been well-documented by the court and the appellate courts. See, e.g., CRST Van Expedited, Inc. v. E.E.O.C., ___U.S. ___, 136 S.Ct. 1642 (2016); E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012). At issue here is this court’s award of attorneys’ fees and costs in the amount of $4,694,442.14, which the court awarded on August 1, 2013. See August 1, 2013 Order (docket no. 400) at 40. Included in that amount were fees associated with sixty-seven claims which the court dismissed due to the Plaintiff Equal Employment Opportunity Commission’s (“EEOC”) failure to comply with presuit requirements-namely, failure to investigate and attempt to conciliate. See Id. at 24-25.

         In the August 1, 2013 Order, this court specifically considered the EEOC’s argument that Defendant CRST Van Expedited, Inc. (“CRST”) was incapable of being awarded attorneys’ fees under Title VII of the Civil Rights Act of 1984 because CRST was not a prevailing party. Id. at 20. The EEOC argued that “the court’s dismissal of [the sixty-seven] claims due to the EEOC’s failure to satisfy the Title VII administrative prerequisites [was] not a judicial determination on the merits.” Id. at 20. The court disagreed and ruled that the EEOC’s failure to satisfy presuit requirements constituted a failure to prove “an ingredient” of its claim, and found that its dismissal of the sixty-seven claims was a merits decision. Id. at 20-21. Under Eighth Circuit precedent at the time this court issued the August 1, 2013 Order, a favorable ruling on the merits was essential to a party’s status as a prevailing party under Title VII. See Id. at 15-16 (citing Marquart v. Lodge 837, Int’l Ass’n of Machinists & Aerospace Workers, 26 F.3d 842 (8th Cir. 1994)). This court further found that the EEOC’s abdication of its statutory duties was “unreasonable, contrary to the procedure outlined by Title VII and imposed an unnecessary burden upon CRST and the court” such to satisfy the standard for awarding attorneys’ fees under Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978). Id. at 25 (quoting February 9, 2010 Order (docket no. 320) at 16).

         The EEOC appealed the fee award and, before the Eighth Circuit, argued that “its Title VII presuit obligations are nonjurisidictional preconditions,” while CRST argued that “such requirements are elements of the EEOC’s cause of action.” E.E.O.C. v. CRST Van Expedited, Inc., 774 F.3d 1169, 1181 (8th Cir. 2014). The Eighth Circuit agreed with the EEOC and reversed this court’s award of attorneys’ fees, in part, because it determined that the “court’s dismissal of [sixty-seven] claims for the EEOC’s failure to satisfy Title VII’s presuit obligations d[id] not constitute a ruling on the merits.” Id. The Eighth Circuit also reversed this court’s fee award because the court failed to make individualized findings with respect to the seventy-eight women this court dismissed on the merits at summary judgment. Id. at 1183. It also reversed this court’s award of fees for the EEOC’s 2012 appeal of the merits of the summary judgments orders and dismissal for failure to comply with presuit requirements because the court failed to specifically find whether the appeal was frivolous, unreasonable or groundless. Id. at 1183-84. Additionally, the Eighth Circuit reversed this court’s fee award as it pertained to fees associated with defense of a purported pattern-or-practice claim 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” in its complaint. Id. at 1179 (internal quotation marks omitted) (quoting E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d at 676 n.13). Accordingly, the Eighth Circuit remanded the case for further proceedings and barred this court from awarding fees based on the sixty-seven claims dismissed for failure to comply with presuit requirements and the pattern-or-practice claim. Id. at 1185. On remand, this court was directed to make individualized findings as to the frivolousness, unreasonableness or groundlessness of the claims dismissed on summary judgment, and as to whether the EEOC’s initial appeal fulfilled the Christiansburg standard. Id.

         CRST sought certiorari on the Eighth Circuit’s ruling with respect to the sixty-seven claims dismissed for the EEOC’s failure to comply with presuit obligations and the Supreme Court granted certiorari on December 4, 2015. See Writ of Certiorari (docket no. 438). On December 11, 2015, CRST filed a brief with this court outlining the issues that the Supreme Court would face on appeal from the Eighth Circuit. See CRST Supplemental Brief (docket no. 440) at 1. CRST clarified that the Supreme Court had granted certiorari on the issue of whether the Eighth Circuit erred in holding that CRST is not entitled to an award of attorneys’ fees with respect to the claims dismissed for failure to satisfy presuit requirements. Id. On December 16, 2015, the EEOC filed a supplemental brief further clarifying the issues faced by the Supreme Court on appeal. See EEOC Supplemental Brief (docket no. 444). The EEOC noted that, even if the Supreme Court found that the Eighth Circuit erred in holding that dismissal for failure to satisfy presuit requirements could support an award of attorneys’ fees, the Eighth Circuit had not reached the issue of whether Christiansburg had been satisfied for those claims and, thus, CRST was not automatically entitled to attorney’s fees on any claim. Id. at 2.

         On remand from the Eighth Circuit and prior to the grant of certiorari, this court directed the parties to submit briefs providing: “(1) a detailed breakdown of each individual claims for which CRST requests attorneys’ fees and costs; (2) an analysis of how each individual claim constitutes a ‘frivolous, unreasonable, or groundless’ claim; (3) an analysis of whether the requested attorneys’ fees and costs were expended solely due to the alleged frivolous claims; and (4) any additional argument related to attorneys’ fees and costs for each claim.” May 19, 2015 Order (docket no. 410) at 1-2. The court also directed CRST to brief why the EEOC’s merits appeal satisfied Christiansburg and reiterated that fees were not available for claims “based on the EEOC’s failure to satisfy its presuit obligations,” nor could “it recover on the pattern-or-practice claim.” Id. at 2. On July 31, 2015 CRST filed its “Brief Supporting Its Request for an Award of Attorneys’ Fees Out-of-Pocket Expenses, and Taxable Costs” (“CRST Remand Brief”) (docket no. 416) in compliance with the May 19, 2015 Order. On September 15, 2015, the EEOC filed a “Memorandum in Resistance to Defendant CRST Van Expedited, Inc.’s Request for an Award of Attorneys’ Fees, Out-of-Pocket Expenses, and Taxable Costs” (“EEOC Remand Brief”) (docket no. 423). On September 29, 2015, CRST filed a “Reply Brief Supporting its Request for an Award of Attorneys’ Fees Out-of-Pocket Expenses, and Taxable Costs” (“CRST Remand Reply”) (docket no. 428). On December 11, 2015, CRST filed a supplemental brief (“CRST Supplemental Brief”) (docket no. 440), addressing the impact it predicted a favorable outcome at the Supreme Court would have on the instant action. On December 16, 2015, the EEOC filed a supplemental brief in response (“EEOC Supplemental Brief”) (docket no. 444).

         Before the Supreme Court, the EEOC “abandoned its defense of the [Eighth Circuit’s] reasoning” and instead urged the Supreme Court to adopt a rule “that a defendant must obtain a preclusive judgment in order to prevail” for purposes of attorneys’ fees. CRST Van Expedited, Inc. v. E.E.O.C., 136 S.Ct. at 1653. Nevertheless, the Supreme Court reversed the Eighth Circuit’s holding that a party must obtain a favorable judicial determination on the merits to be a “prevailing party” under Title VII. Id. at 1646. The Supreme Court reasoned that “[t]here is no indication that Congress intended that defendants should be eligible to recover attorney’s fees only when courts dispose of claims on the merits.” Id. at 1651-52. Instead, the Supreme Court relied on its own precedent to elucidate the standard, stating that “the ‘touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.’” Id. at 1646 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). “This change must be marked by ‘judicial imprimatur.’” Id. (quoting Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)). The Supreme Court focused on the congressional policy underlying the fee-shifting provision at issue-“to deter the bringing of lawsuits without foundation.” Id. at 1652 (quoting Christiansburg, 434 U.S. at 420). The Supreme Court further reasoned that “[i]t would make little sense if Congress’[s] policy of ‘sparing defendants from the costs of frivolous litigation’ depended on the distinction between merits-based and non-merits-based frivolity.” Id. (emphasis omitted) (quoting Fox v. Vice, 563 U.S. 826, 840 (2011)). The Supreme Court expressed doubt as to the availability of the EEOC’s preclusion argument, noting that the EEOC “may have forfeited the preclusion argument by not raising it earlier.” Id. at 1653. Finally, the Supreme Court declined to address whether the court’s dismissal of the sixty-seven claims had a preclusive effect. Id. “The [Supreme] Court le[ft] these legal and factual issues for the [Eighth Circuit] to consider in the first instance.” Id.

         The Supreme Court remanded the case to the Eighth Circuit, who in turn remanded it to the court “for further proceedings consistent with the Supreme Court’s opinion.” June 28, 2016 Judgment (docket no. 451) at 1. On October 13, 2016, the court entered an Order (docket no. 453), directing the parties to brief three issues:

(1) whether a defendant must obtain a preclusive judgment in order to qualify as a “prevailing party” under Title VII; (2) whether the dismissal of claims pursuant to the EEOC’s failure to fulfill presuit requirements constituted a “preclusive judgment”; and (3) whether the EEOC waived this argument by failing to raise it until the case reached the Supreme Court.

         October 13, 2016 Order at 3. On November 11, 2016, CRST filed its brief (“CRST Brief”) (docket no. 454) addressing those three issues. On December 9, 2016, the EEOC filed its brief (“EEOC Brief”) (docket no. 458). On December 16, 2016, CRST filed a Reply (docket no. 459). The remand is fully submitted and ready for decision.

         III. ANALYSIS

         CRST argues that the EEOC waived its argument that a party must have obtained a preclusive judgment in order to be considered a prevailing party for purposes of attorneys’ fees by failing to raise the argument until the case reached the Supreme Court. See CRST Brief at 9-12. CRST further argues that a preclusive judgment is unnecessary to be deemed a prevailing party and that, even if the court were to determine that a preclusive judgment is required, the dismissal of the sixty-seven claims at issue had a preclusive effect. See Id. at 1-9. The EEOC argues that it did not waive its preclusion argument by failing to explicitly raise it until presenting argument before the Supreme Court. See EEOC Brief at 10-13. The EEOC also argues that a preclusive judgment is necessary for a party to be considered a prevailing party and that, when the court dismissed the sixty-seven claims at issue, such decision bore no preclusive effect. See Id. at 3-10.

         The court will first consider whether the EEOC waived its preclusion argument. If the court determines that consideration of the preclusion argument is proper, it will then consider whether a party must enjoy a preclusive judgment in its favor to be a prevailing party and, if so, whether the dismissal of the sixty-seven claims had a preclusive effect. In any event, the ultimate question facing the court is whether CRST was a prevailing party after the court dismissed the sixty-seven claims for the EEOC’s failure to comply with presuit requirements under the standard reiterated by the Supreme Court in CRST Van Expedited, Inc. v. E.E.O.C. The questions surrounding the EEOC’s preclusion argument are probative of whether the proper test for determining whether the Supreme Court’s standard has been met necessarily involves an element of preclusion.

         Though the court has determined that the Mandate solely contemplates resolution of the issues above, out of an abundance of caution and in the alternative, the court shall abide by the Eighth Circuit’s admonitions in its 2014 opinion. See E.E.O.C. v. CRST Van Expedited, Inc., 774 F.3d at 1186. The court foresees no reason that the Eighth Circuit, if this Order were to be appealed, would abandon its requirement that the court make individualized findings as to the seventy-eight plaintiffs for which the court granted summary judgment, or as to whether fees relating to the 2012 appeal were appropriate. Id. Thus, because the Supreme Court admonished, in CRST Van Expedited v. E.E.O.C. that the court should “resolve the outstanding issues without unnecessary delay,” the court shall proceed to make individualized findings and consider the briefs that CRST and the EEOC filed on remand from the Eighth Circuit’s 2014 opinion. 136 S.Ct. at 1653.

         A. Waiver

         CRST argues that the EEOC waived its preclusion argument because it failed to raise such argument either before the court when the court initially considered attorneys’ fees or in the EEOC’s two appeals to the Eighth Circuit. See CRST Brief at 9-11. CRST further asserts that, on appeal to the Eighth Circuit, “the EEOC did not dispute CRST’s express statement that the claims dismissed for [the] EEOC’s [presuit] failures had been dismissed with prejudice.” Id. at 11 (emphasis omitted). The EEOC did not respond to that statement in its reply brief at the Eighth Circuit and did not contend “that CRST’s argument was erroneous because the dismissal was without prejudice and that a dismissal with prejudice is required for a fee award.” Id. CRST also highlights the fact that the EEOC failed to assert its preclusion argument in its brief opposing CRST’s petition for a writ of certiorari. Id. Thus, CRST argues, the EEOC failed to preserve any error with respect to its preclusion argument, and the law of the case doctrine bars the court from considering in the second instance what it should have considered in the first. Id. at 10, 12.

         The “EEOC does not dispute that it did not argue prior to the Eighth Circuit[’s] decision in 2014 that a preclusive, as opposed to a merits, judgment was necessary in order for a defendant to be a prevailing party under Christiansburg.” EEOC Brief at 10-11. The EEOC argues that it was not required to make its preclusion argument prior to when it did because it was entitled to rely on Marquart as binding precedent and was not “obligated to anticipate a future Supreme Court reversal on a clear and long-standing circuit standard.” Id. at 11. The EEOC further asserts that its arguments before the Eighth Circuit that CRST did not obtain a ruling on the merits as to the sixty-seven claims, “by implication,” encompassed an argument that CRST did not obtain a preclusive judgment. Id. The EEOC asserts that it has “consistently argued that CRST is not entitled to fees under Christiansburg, in part because it did not receive a judgment which was on the merits, or with prejudice, or preclusive.” Id. at 12.

         The Eighth Circuit has consistently refused to consider arguments on successive appeals that could have been raised in prior appeals. See, e.g., Macheca Transp. Co. v. Philadelphia Indem. Ins. Co., 737 F.3d 1188, 1194 (8th Cir. 2013) (“For over one hundred years, our court has repeatedly barred parties from litigating issues in a second appeal following remand that could have been presented in the first appeal.”). “The general rule is that ‘where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.’” Kessler v. Nat’l Enters., Inc., 203 F.3d 1058, 1059 (8th Cir. 2000) (quoting Nw. Ind. Tel. Co. v. F.C.C., 872 F.3d 465, 470 (D.C. Cir. 1989)). “The underlying intent of [this] doctrine is to prevent the relitigation of settled issues in a case, thus protecting the settled expectations of the parties, ensuring uniformity of decisions, and promoting judicial efficiency.” First Union Nat’l Bank v. Pictet Overseas Tr. Corp., 477 F.3d 616, 620 (8th Cir. 2007) (alterations and internal quotation marks omitted). This doctrine applies to both appellate courts and to district courts to which an action has been remanded. See Little Earth of the United Tribes, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir. 1986).

         Thus, if the EEOC “could have” raised its preclusion argument in a prior appeal, Eighth Circuit precedent is clear that the court need not consider the EEOC’s preclusion argument at this time. “Absent exceptional circumstances . . . [the Eighth Circuit] cannot consider issues not raised in the district court” for the first time on appeal. Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 608 n.5 (8th Cir. 2011) (quoting Shanklin v. Fitzgerald, 397 F.3d 596, 601 (8th Cir. 2005)).[1] It is insufficient to merely make an overarching or general argument conceivably encompassing the specific argument urged for on appeal. Rather the court must have had the opportunity to specifically pass on issues which the parties expressly raise. See Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir. 1986) (“The district courts cannot be expected to consider matters that the parties have not expressly called to their attention, even when such matters arguably are within the scope of the issues that the parties have raised.”). “The trial judge should not have to assume the role of an advocate on behalf of a litigant whose counsel has failed to assert a legal theory that might be helpful to the litigant’s case.” Id. The purpose of such a rule is to “inform promptly the trial judge of possible errors so that [s]he may have an opportunity to reconsider [her] ruling and make any changes deemed desirable.” Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir. 1976); See also Stafford, 790 F.2d at 706 (noting that the rule’s rationale is twofold because, without consideration by the district court, the record for appellate review would be insufficient and because “there is an inherent injustice in allowing an appellant to raise an issue for the first time on appeal”).

         The court finds that the EEOC waived its preclusion argument by failing, not only to raise it before this court, but also by failing to raise it before the Eighth Circuit in any of its appeals of the court’s fee award. See generally CRST Brief Exhibit 3 (docket no. 454-3) (the EEOC’s Eighth Circuit brief arguing that CRST is not a prevailing party, in part, because failure to comply with presuit requirements was not a merits decision); CRST Brief Exhibit 4 (docket no. 454-4) (the EEOC’s brief in opposition to CRST’s petition for a writ of certiorari before the Supreme Court stating that the Eighth Circuit’s merits-based determination of CRST’s prevailing party status was correct). The Supreme Court’s concern that the EEOC had waived the preclusion argument mirrors the Eighth Circuit’s rationale for its routine refusal to consider arguments raised for the first time on appeal. See CRST Van Expedited, Inc. v. E.E.O.C., 136 S.Ct. at 1653 (“The [EEOC] changed its argument between the certiorari and merits stages. As a result, the [EEOC] may have forfeited the preclusion argument by not raising it earlier. The [EEOC’s] failure to articulate its preclusion theory before the eleventh hour has resulted in inadequate briefing on the issue.”). At no time prior to its assertion at the Supreme Court did the EEOC explicitly argue that a decision must have a preclusive effect to grant a party prevailing party status. Thus, the EEOC cannot raise this argument on remand because it could have done so during its first, or even subsequent, appeal.

         The EEOC argues that it should not be required to have raised the preclusion argument on the first appeal because it was “entirely within its rights to accept clear, longstanding circuit precedent as circuit law.” EEOC Brief at 11. However, the EEOC cites no legal authority to support its statement and, furthermore, the court does not view Marquart as having foreclosed the EEOC from making the preclusion argument. Marquart held that, in order to be a prevailing defendant in a Title VII claim, a party must obtain “a judicial determination of the plaintiff’s case on the merits.” Marquart, 26 F.3d at 852. Marquart did not touch on whether dismissal must have a preclusive effect to grant a party prevailing party status. The EEOC is not incorrect that it was entitled to rely on Marquart in formulating its arguments before the court and the Eighth Circuit. However, reliance on Marquart did not in any way prevent the EEOC from making its preclusion argument at an earlier time; and arguing that a dismissal on the merits is required for a party to prevail under Title VII is not inconsistent with an argument that such dismissal must have a preclusive effect. For example, a defendant could move for dismissal on the grounds that the statute of limitations had passed on the plaintiff’s claim. If the court were to grant the dismissal on those grounds, the dismissal would have a preclusive effect but would not be a merits-based decision. At no point did the EEOC intimate that Marquart controlled, or would have controlled, such a situation. Thus, its failure to raise the preclusion argument prior to the Supreme Court cannot be blamed on its mere reliance on controlling circuit precedent.

         The EEOC’s assertion that its preclusion argument was necessarily bound up in, or implied by, its argument that CRST had not obtained a ruling on the merits as to the sixty-seven claims similarly fails. As the above example demonstrates, not every preclusive judgment will be based on the merits of a given case. Furthermore, the EEOC’s argument that the preclusion argument was implied in its broader argument about whether the court’s dismissal of the claims was a merits or nonmerits decision is unpersuasive, primarily, because the law is clear that a party must expressly raise an argument to preserve it for appeal, rather than relying on more generalized arguments that may arguably encompass the more specific argument. See Stafford, 790 F.2d at 706. The EEOC’s statement that it “has consistently argued that CRST is not entitled to fees under Christiansburg, in part because it did not receive a judgment which was on the merits, or with prejudice, or preclusive” is overly broad and unsupported by the record. EEOC Brief at 12. As the court noted above, the EEOC never explicitly raised the preclusion argument until the case reached the Supreme Court, the court does not view the preclusion argument as “implied” by the EEOC’s argument that the dismissal of the claims was not on the merits and, in any event, such a broad argument is plainly insufficient for purposes of error preservation. Accordingly, the court finds that the EEOC may not raise its preclusion argument at this time. However, out of an abundance of caution, the court shall consider the merits of the EEOC’s preclusion argument.

         B. Is Preclusion Required?

         CRST argues that it is not required to obtain a preclusive judgment to be considered a prevailing party for purposes of attorneys’ fees. Instead, CRST argues that the proper standard is “the material alteration of the legal relationship of the parties and not whether the judgment is preclusive.” CRST Brief at 2. The EEOC argues that preclusive judgment is necessary to confer prevailing party status because, in its view, a preclusive judgment is a necessary ingredient in any material alteration of the legal relationship of the parties. See EEOC Brief at 4. The EEOC reasons that, without a preclusive judgment, the fact that a plaintiff may sue again prevents any finding that there was an alteration in the legal relationship of the parties, and, thus, the defendant may not be said to have prevailed. Id. at 7.

         As the court noted above, in CRST Van Expedited, Inc. v. E.E.O.C., the Supreme Court clarified “that the ‘touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties’” that has been “marked by ‘judicial imprimatur.’” 136 S.Ct. at 1646 (citations omitted). The Supreme Court further noted that “[c]ommon sense undermines the notion that a defendant cannot ‘prevail’ unless the relevant disposition is on the merits” based, in part, on the differing goals of plaintiffs and defendants in litigation. Id. at 1651. While a plaintiff seeks an alteration of the legal relationship of the parties, “[t]he defendant has . . . fulfilled its primary objective whenever the plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s decision.” Id.

         The parties rely on two cases handed down by the Eighth Circuit in the wake of the CRST Van Expedited, Inc. v. E.E.O.C. ruling to argue that their respective positions with regard to this issue are correct. See CRST Brief at 2-3; EEOC Brief at 5-7; Reply at 3. In United States v. $32,820.56, 838 F.3d 930, 936-37 (8th Cir. 2016), the Eighth Circuit held that, where a plaintiff voluntarily dismisses a claim without prejudice, that does not make the defendant a prevailing party. United States v. $32,820.56 involved a claim for attorney fees under the Civil Asset Forfeiture Reform Act (“CAFRA”) in which the government voluntarily moved to dismiss the action without prejudice, which the court granted. See Id. at 933. The Eighth Circuit stated that the defendant was not a prevailing party in that instance because “[t]here ha[d] been no alteration of the relationship between [the plaintiff] and the government, because the court’s order dismissing the case without prejudice does not preclude the government from refiling an action” based on the allegedly improper conduct. Id. at 934. The Eighth Circuit cited Buckhannon, noting that “a voluntary change on the part of a defendant, even if it resulted in the outcome sought by the plaintiff, ‘lack[ed] the necessary judicial imprimatur’ to authorize a fee award.” Id. (quoting Buckhannon, 532 U.S. at 605). The Eighth Circuit noted that district courts have the ability to guard against procedural maneuvering on the part of a party seeking to rob the other litigant of prevailing party status by declining to render judgment without prejudice and dismissing with prejudice in appropriate cases. Id. at 936.

         In East Iowa Plastics, Inc. v. PI, Inc., 832 F.3d 899, 902 (8th Cir. 2016), the Eighth Circuit considered a trademark suit wherein the defendant filed counterclaims asking for substantially similar relief to that sought by the plaintiff-trademark infringement and unfair competition. Before trial, the defendant dismissed its counterclaims with prejudice and, at trial, prevailed on its motion for judgment as a matter of law, defeating the plaintiff’s claims. Id. at 902. The Eighth Circuit reversed the district court’s fee award to the plaintiff on the basis that it was not the prevailing party on the defendant’s dismissal of its counterclaims with prejudice. Id. at 906. In particular, the Eighth Circuit noted that, because both parties obtained favorable relief on their claims, they both could “with equal justice claim to be the prevailing party.” Id. The Eighth Circuit stated that there was no material alteration of the legal relationship between the parties when “the district court essentially restored the status quo ante” and observed that the parties had “achieve[d] a dead heat.” Id. at 907.

         CRST argues that United States v. $32,820.56 supports its position that no preclusive judgment is necessary to confer prevailing party status to a defendant. See CRST Brief at 2. CRST highlights the fact that the plaintiff dismissed the case voluntarily, albeit without prejudice, and the lack of “an adverse court order” is key to the Eighth Circuit’s reasoning that the defendant in that case was not a prevailing party. Id. Here, CRST argues that the court dismissed the sixty-seven claims involuntarily and the dismissal “was imposed on the EEOC,” rather than as a result of “a voluntary change” on the part of the parties. Id. at 2-3. On the other hand, the EEOC offers two reasons that United States v. $32,820.56 supports its position that a party must obtain a preclusive judgment to have prevailed: (1) the dismissal was without prejudice; and (2) “there was no judicially sanctioned change in the relationship between the parties” because “the plaintiff [was] not precluded from bringing the suit again.” EEOC Brief at 6, 6 n.1. The EEOC contends that whether claims are dismissed voluntarily or involuntarily is of no import-the true question is whether the plaintiff is free to bring its claim again. Id. at 6 n.1.

         Similarly, the EEOC argues that East Iowa Plastics supports its position because, in that case, the “counter-defendant . . . successfully rebuffed the counter plaintiff’s . . . claims by obtaining their dismissal, but the [Eighth Circuit] did not allow fees.” Id. at 6. Thus, the EEOC maintains that attorneys’ fees are unavailable if a defendant merely rebuffs the plaintiff’s claims. Id. at 6-7. CRST disagrees and argues that the plaintiff in East Iowa Plastics was not awarded attorneys’ fees because the dismissal it obtained of the counterclaims placed it in materially the same position as the defendant after the defendant prevailed on its motion for judgment as a matter of law-essentially obtaining a “dead heat.” Reply at 3 (quoting E. Iowa Plastics, 832 F.3d at 907). CRST argues that there was no “dead heat” in this case because CRST unequivocally prevailed in seeking dismissal of the sixty-seven claims at issue. Id.

         This court finds that a preclusive judgment is not necessary to confer prevailing party status. Instead, the court views a preclusive judgment as a sufficient, but unnecessary prerequisite to satisfying the standard reiterated by the Supreme Court in CRST Van Expedited, Inc. v. E.E.O.C. The court disagrees with the EEOC’s contention that it matters not whether a claim is dismissed voluntarily or involuntarily for purposes of prevailing party status. A voluntary dismissal, either with or without prejudice, lacks the judicial imprimatur required under the Supreme Court’s standard. See United States v. $32,820.56, 838 F.3d at 934. The Eighth Circuit’s discussion of the possibility of procedural maneuvering and the court’s ability to guard against such actions by issuing dismissals with prejudice, rather than without, is instructive. However, the court does not view such discussion as dictating that whether a judgment is preclusive or not is dispositive of the inquiry. Such an outcome is betrayed by the Eighth Circuit’s decision in East Iowa Plastics, where the plaintiff obtained preclusive relief when the defendant dismissed its counterclaims with prejudice. See E. Iowa Plastics, 832 F.3d at 907. Notably, in East Iowa Plastics, the Eighth Circuit did not rely on the fact that dismissal of either the plaintiff’s claims after a motion for a judgment as a matter of law or the defendant’s counterclaims voluntarily had any sort of preclusive effect. The Eighth Circuit’s reasoning was entirely couched in terms of whether the dismissal and judgment as a matter of law materially altered the legal relationship between the parties and quoted CRST Van Expedited, Inc. v. E.E.O.C. See Id. at 906-07. If, as the EEOC argues, the dispositive issue was whether a claim was dismissed with or without prejudice, the Eighth Circuit would have relied on that reasoning in disposing of that case. The fact that, in both United States v. $32,820.56 and East Iowa Plastics, the Eighth Circuit refused to uphold the award of attorneys’ fees, despite the fact that in the former case the claims were dismissed without prejudice and in the latter case the claims were dismissed with prejudice, cautions against relying on this singular factor in determining whether a party has prevailed for purposes of attorneys’ fees.

         The court is further unpersuaded by the EEOC’s position that there can be no material alteration of the legal relationship of the parties without a preclusive judgment. A party can still enjoy a material alteration in the legal relationship between itself and its opponent even without obtaining a preclusive judgment. The recent case of Wood v. Burwell, 837 F.3d 969 (9th Cir. 2016), is particularly instructive. In Wood, the Ninth Circuit Court of Appeals held that, under the standard reiterated under CRST Van Expedited, Inc. v. E.E.O.C., “[p]rocedural remedies can constitute a material alteration in the parties’ legal relationship.” Wood, 837 F.3d at 974. In Wood, the plaintiffs challenged the Secretary of the Department of Health and Human Services’s approval of an Arizona Medicaid demonstration project under the Fourteenth Amendment, the Social Security Act and the Administrative Procedures Act (“APA”). Id. at 972. The plaintiffs moved for summary judgment, which the district court in Wood granted in part, based on procedural irregularities with the approval of the Medicaid demonstration project under the APA, and remanded the case back to the agency for further considerations. Id. at 973. The agency ultimately reached the same conclusion as before the plaintiffs had filed suit and the district court subsequently denied the plaintiffs’ motion for attorneys’ fees on the ground that they were not prevailing parties because they obtained only “interim” relief. Id.

         The Ninth Circuit reversed and held that there had indeed been a material alteration in the legal relationship of the parties, even though the agency was free to render the same decision as it had reached prior. Id. at 974-75. The Ninth Circuit stated that procedural relief was sufficient to alter the legal relationship of the parties, even if the party fails to obtain substantive relief. Id. at 975. As an example, the Ninth Circuit in Wood contrasted the Wood plaintiffs’ obtaining a procedural “do over” at the administrative level to a party obtaining a preliminary injunction, which was ultimately lifted as the case proceeded through the course of litigation. See Id. at 974-75 (citing Sole v. Wyner, 551 U.S. 74 (2007)). In the case of the preliminary injunction, the Ninth Circuit noted that preliminary injunctions are, by nature “transient” and “intended to be temporary,” Id. at 975 (quoting Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th Cir. 2013)), as opposed to procedural challenges under the APA, for which “part and parcel of the relief sought is agency adherence to administrative procedures, apart from any substantive relief,” Id. T h e Ninth Circuit reiterated that the test was solely “whether there is a lasting alteration in the legal relationship between the parties.” Id. The Ninth Circuit focused on the fact that the plaintiffs “left the courthouse with an order that the Secretary violated the APA and had to undertake a ‘do over’ of her administrative review-a victory that can hardly be described as leaving ‘emptyhanded’” as opposed to the hollow victory of a preliminary injunction. Id. at 974-75. The Ninth Circuit succinctly stated that the Wood plaintiffs obtained “a judicially-sanctioned material alteration in the parties’ relationship because ‘the defendants were required to do something directly benefitting the plaintiff[] that they otherwise would not have had to do.’” Id. at 974 (alteration in original) (quoting Carbonell v. INS, 429 F.3d 894, 900 (9th Cir. 2005)).

         The discussion and reasoning in Wood demonstrates that it is unnecessary that a party obtain a preclusive judgment, and the mere fact that relief does not prevent the opposing party from refiling its case or resurrecting the offending conduct, or that the relief does not entirely inure to the prevailing party’s benefit, does not mean that no alteration of the legal relationship of the parties has occurred. In United States v. $32,820.56, the Eighth Circuit stated that there was no material alteration in the legal relationship of the parties because the plaintiff was free to file the claims again. However, the plaintiff in United States v. $32,820.56, unlike the agency in Wood and the EEOC here, were not required by the dismissal to take further steps to reinitiate the offending conduct. The United States v. $32,820.56 plaintiff was free to refile its claim whenever it wished. Instead, the cases discussed above suggest that a case-by-case, rather than categorical, analysis is appropriate. Distinctions like the distinction between procedural or substantive remedies in Wood, are not dispositive. The test remains whether there is a judicially sanctioned material alteration of the legal relationship of the parties, exactly as the Supreme Court stated in CRST Van Expedited, Inc. v. E.E.O.C. No more, no less. Accordingly, even if the court were to consider the EEOC’s preclusion argument, it would reject it.[2]

         C. Judicially Sanctioned Material Alteration

         Finally, the court must consider whether the dismissal of the sixty-seven claims at issue constituted a judicially-sanctioned material alteration in the legal relationship of the parties. CRST argues that the court’s dismissal of the claims in question satisfied this standard because, even if the EEOC were free to re-file the claims, it could not do so “without first performing its statutory [presuit] obligations with respect to each claim.” CRST Brief at 3. CRST further argues that the EEOC may not reassert the sixty-seven claims because they would be barred by collateral estoppel. Id. The EEOC argues that the court’s dismissal of the sixty-seven claims failed to create a material change in the legal relationship of the parties because “[w]hat the EEOC does during the administrative process does not affect legal rights.” EEOC Brief at 9. The EEOC stresses that “the administrative process offers a non-litigation vehicle for resolving many charges” and only becomes a statutory prerequisite when the EEOC determines that it will institute litigation in its own name. Id. The EEOC argues that it was always free to reinstate the claims against CRST and the fact that it chose not to do so is not evidence that the relationship between itself and CRST was altered by the court’s ruling in any way. Id.

         The court finds that its dismissal of the sixty-seven claims for failure to satisfy presuit obligations constituted a judicially sanctioned material alteration in the legal relationship of CRST and the EEOC. Initially, the court notes that, unlike in United States v. $32,820.56, these claims were dismissed by court order, marking them with judicial imprimatur. See 838 F.3d at 934. The court further finds that there was a sufficiently material alteration in the legal relationship of the parties to confer prevailing party status on CRST for purposes of the sixty-seven claims at issue. In particular, the fact that the EEOC would have to comply with its ...


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