United States District Court, N.D. Iowa, Cedar Rapids Division
R. READE, JUDGE UNITED STATES DISTRICT COURT
RELEVANT PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Is Preclusion Required? .............................
Judicially Sanctioned Material Alteration ..................
Findings on Remand ...............................
Legal standard ...............................
Statute of limitations .......................
Concession that the claimant suffered no
severe or pervasive harassment ................
No notice or opportunity to remedy .............
Complaint properly remedied .................
Not severe or pervasive .....................
Summary .................................. 72
Reasonable Fees ..................................
Pattern-or-practice fees .........................
Appellate fees ................................
General fees ................................
matter before the court is the Eighth Circuit Court of
Appeals’s Mandate (“Mandate”) (docket no.
RELEVANT PROCEDURAL HISTORY AND FACTUAL
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.
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).
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.
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.
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).
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.
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.
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.
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.
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.
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
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,
“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.
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).
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)). 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”).
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.
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.
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
Is Preclusion Required?
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.
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.”
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.
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.
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.
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.
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
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.
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)).
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
Judicially Sanctioned Material Alteration
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.
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 ...