Equal Employment Opportunity Commission v. CRST Van Expedited Inc - See #453 to set additional brief deadlines

Filing 463

ORDER denying 455 Motion for Attorney Fees: Pursuant to the 462 Order, the Clerk of Court is directed to enter judgment in favor of CRST in the amount of $1,860,127.36. Signed by Judge Linda R Reade on 9/22/2017. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

No. 07-CV-95-LRR

vs.

ORDER

CRST VAN EXPEDITED, INC.,
Defendant.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . 1

III.

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.

IV.

Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Fees Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
I. INTRODUCTION
The matter before the court is Defendant CRST Van Expedited, Inc.’s (“CRST”)

“Motion for a Supplemental Fee Award” (“Motion”) (docket no. 455).
II. RELEVANT PROCEDURAL HISTORY
The factual underpinnings of the sexual harassment and retaliation allegations
underlying this litigation have been well-documented by the court and 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). On August 1,
2013, this court entered an Order, awarding costs and attorneys’ fees to CRST in the

amount of $4,694,442.14. See August 1, 2013 Order (docket no. 400) at 40. Plaintiff
Equal Employment Opportunity Commission (“EEOC”) appealed this court’s fee award,
and the Eighth Circuit Court of Appeals reversed and remanded several fee issues for
further proceedings. See E.E.O.C. v. CRST Van Expedited, Inc., 774 F.3d 1169, 1185
(8th Cir. 2014). The Eighth Circuit stated that, on remand, the court “must individually
assess each of the claims for which it granted summary judgment to CRST on the merits
and explain why it deem[ed] a particular claim to be frivolous, unreasonable, or
groundless.” Id. The Eighth Circuit also stated that, under Eighth Circuit precedent at
the time, CRST was not a prevailing party entitled to a fee award as to sixty-seven of the
EEOC’s claims because the court’s dismissal of those claims for failure to fulfill presuit
obligations was not a merits decision. Id. at 1181.
On remand, this court directed the parties to brief the issues remanded by the Eighth
Circuit. See May 19, 2015 Order (docket no. 410) at 1. In particular, this court stated
that the briefs must contain “a detailed breakdown of each individual claim for which
CRST requests attorneys’ fees and costs” and “an analysis of how each individual claim
constitutes a ‘frivolous, unreasonable, or groundless’ claim.” Id. On July 31, 2015,
CRST filed its brief (“CRST Remand Brief”) (docket no. 416) exhaustively detailing, over
the course of approximately 170 pages, the reasons why it viewed each individual claim
as frivolous, unreasonable or groundless. See generally CRST Remand Brief. On
September 15, 2015, the EEOC filed its brief (“EEOC Remand Brief”) (docket no. 423),
arguing that the claims were not frivolous, unreasonable or groundless for four broad
reasons, and organizing the individual women under these reasons. See, e.g., EEOC
Remand Brief at 36-42.
Prior to CRST filing the CRST Remand Brief, on July 10, 2015, the EEOC filed
a “Motion for Relief from Judgment Pursuant to Rule 60(b)(6)” (“Rule 60(b) Motion”)
(docket no. 414). In the Rule 60(b) Motion, the EEOC argued that the court should grant
it post-judgment relief as to the sixty-seven claims dismissed for failure to comply with
2

presuit requirements, revive the claims and set the matter for trial based on the Supreme
Court’s decision in Mach Mining, LLC v. EEOC, ___ U.S. ___, ___, 135 S. Ct. 1645
(2015). See Rule 60(b) Motion at 2-3. In particular, the EEOC argued that Mach Mining
constituted a change in the law following this court’s dismissal of the sixty-seven claims
for failure to fulfill presuit requirements and that other circumstances existed to justify
such post-judgment relief. See generally Brief in Support of the Rule 60(b) Motion (docket
no. 414-1). On December 14, 2015, the court issued an Order (docket no. 441) denying
the Rule 60(b) Motion. See December 14, 2015 Order at 8. The court found that Mach
Mining did not constitute a change in the law as it pertained to this case because Mach
Mining forbids courts from “inquiring into the sufficiency of the conciliation process
itself,” which the court did not do in the instant action. Id. at 5. Instead, the court “found
that no investigation or conciliation with respect to the [sixty-seven] individual claims
occurred at all.” Id. Furthermore, the court found that Mach Mining’s holding was
limited to those circumstances where a district court found investigation and conciliation
were insufficient, and did not explicitly address the question of whether a dismissal or stay
of proceedings was the appropriate remedy where, as here, a district court found that the
EEOC wholly failed in its statutory presuit obligations. Id. The court further found that
there were no “extraordinary circumstances” warranting Rule 60(b) relief. Id. at 6-8.
Meanwhile, CRST appealed the Eighth Circuit’s ruling and the Supreme Court
granted certiorari. See Writ of Certiorari (docket no. 438). On appeal to 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. The Supreme Court reversed the Eighth Circuit and
remanded the case for further proceedings. Id. at 1646. On June 20, 2016, the Supreme
Court entered judgment on its opinion. On June 28, 2016, the Eighth Circuit entered a
Judgment (“June 28, 2016 Judgment”) (docket no. 451), vacating its prior panel opinion
3

and remanding to the court for further proceedings. See June 28, 2016 Judgment at 1.
The court ordered briefing on the issues remanded by the Supreme Court and, on
September 22, 2017, entered an Order (docket no. 462) finding that CRST was the
prevailing party as to the sixty-seven claims at issue, that the sixty-seven claims met the
standard announced in Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978) and
making individualized findings as to seventy-eight of the individual claimants for which
the court granted CRST summary judgment. See generally September 22, 2017 Order.
Ultimately, the court awarded $1,860,127.36 in attorneys’ fees, out-of-pocket expenses
and taxable costs to CRST. See id. at 82.
On November 18, 2016, CRST filed the Motion. On December 19, 2016, the
EEOC filed a Resistance (docket no. 460). On December 29, 2016, CRST filed a Reply
(docket no. 461). Neither party requests oral argument on the Motion and the court finds
that oral argument is unnecessary. The Motion is fully submitted and ready for decision.
III. ANALYSIS
In the Motion, CRST requests a supplemental fee award in the amount of
$975,439.76. See Motion at 2. This fee award consists of attorneys’ fees for work
performed in this case following the court’s August 1, 2013 Order. In particular, CRST
requests fees for the following: (1) “CRST’s briefs, oral argument, and rehearing petition
in the [EEOC’s] appeal to the Eighth Circuit” from the August 1, 2013 Order; (2)
“CRST’s petition for certiorari, briefs, and oral argument in the Supreme Court resulting
in reversal of the Eighth Circuit’s” opinion vacating the August 1, 2013 fee award; (3)
CRST’s brief resisting the Rule 60(b) Motion; and (4) “CRST’s briefs on remand as
required by the Eighth Circuit’s now vacated decision with respect to the fees awarded for
claims dismissed on summary judgment.” Id. at 1. The EEOC argues that CRST’s

4

application for fees is untimely1 and that CRST cannot demonstrate that any of the actions
that the EEOC took with respect to the requested categories of fees were frivolous,
unreasonable or groundless. See Resistance at 4-13. The EEOC further argues that the
fees sought by CRST are unreasonable. See id. at 13-16.
A. Timeliness
Federal Rule of Civil Procedure 54(d)(2)(B) states that, “[u]nless a statute or court
order provides otherwise,” a motion for attorneys’ fees must, among other things, “be
filed no later than [fourteen] days after the entry of judgment.” The EEOC argues that all
of the requests in the Motion are untimely because the Motion was filed more than fourteen
days after each of the relevant judgments. See Resistance at 4. The EEOC concedes that
CRST should not be held to the judgment associated with the Eighth Circuit’s opinion
vacating the court’s fee award. See id.; see also December 22, 2014 Judgment (docket no.
407) at 1. The EEOC admits that it would have been “absurd” to require CRST to file its
application for attorneys’ fees related to the December 22, 2014 Judgment within fourteen
days of that date because “the EEOC’s appeal was successful in reversing the entire fee
award that it challenged on appeal . . . [and] CRST was not the prevailing party.” Id.
However, the EEOC points out that, even assuming that the fourteen-day period began to
run as of the June 28, 2016 Judgment, the Motion was still filed over 120 days late. Id.
The EEOC similarly argues that the fee requests associated with the Supreme Court
proceedings2 and Rule 60(b) Motion3 are untimely. Id. at 5. CRST argues that its request
1

The court notes that the EEOC makes a related argument that the Motion was
untimely because there was “no order in effect granting CRST attorney’s fees” when the
Motion was originally filed, because the Eighth Circuit vacated the court’s fee award. See
Resistance at 3. However, the court has determined that a fee award is appropriate in the
September 22, 2017 Order, this argument is moot and the existing award may be
supplemented if appropriate.
2

The EEOC calculates the time period for filing the fees application from the date
(continued...)
5

is timely because it is a supplemental motion for a fee award that has been remanded to the
court for further consideration. See Reply at 1.
Initially, the court notes that CRST has cited no authority supporting its conclusion
that the court may ignore the plain dictates of Rule 54. Instead, CRST merely states that
appeals in this case have been completed and “the fees issue has now returned to th[e]
[c]ourt to decide the three remanded issues and whether to confirm the [c]ourt’s August
1, 2013 fee award.” Reply at 1. The court is unaware of any binding precedent that
would require or permit the court to now entertain the claim for attorneys’ fees.
Other courts considering the timeliness of supplemental fee awards have adopted a
“reasonableness” standard for determining whether a motion for supplemental fees is
appropriate. See, e.g., Taylor v. USF-Red Star Express, Inc., 212 F. App’x 101, 112 (3d
Cir. 2006) (“Notice is a greater concern in initial motions for attorney’s fees than it is in
supplemental motions, and courts considering the timeliness of supplemental motions have
allowed those motions to be filed as long as their timing was reasonable.”); Zoroastrian
Ctr. & Darb-E-Merh of Metro. Wash, D.C. v. Rustam Guiv Found., ___ F. Supp. 3d ___,
2017 WL 1129940, at *9 (E.D. Va. 2017) (collecting cases and adopting a reasonableness
rule for determining the timeliness of supplemental fee requests); Gonzalez v. Bratton, 247
F. Supp. 2d 432, 434-35 (S.D.N.Y. 2003) (considering an untimely supplemental motion
for attorneys’ fees on the grounds that the defendants were aware of the issues on appeal,

2

(...continued)
that the Supreme Court issued its opinion. See Resistance at 5. However, because Rule
54(d)(2)(B) makes reference to “entry of judgment,” the proper date to consider is June
20, 2016, when the Supreme Court entered judgment on its opinion. In either case,
however, the Motion was filed over 130 days late under Rule 54.
3

Rule 58(c)(1) dictates that judgment on the Rule 60(b) Motion was entered on
December 14, 2015. See Fed. R. Civ. P. 58(a)(5), (c)(1) (stating that judgment is entered
when the order ruling on a Rule 60 motion is filed on the docket). Therefore, fees
associated with the Rule 60(b) Motion are well over 300 days late under Rule 54.
6

the fees were caused in part by the defendants’ own dillatory conduct, the court had
cautioned the defendants that such conduct would generate further attorneys’ fees and the
plaintiff’s failure to comply with the deadline was a result of excusable neglect). Those
courts have reasoned that the adoption of a reasonableness rule “preserves the right for the
[c]ourt to deny a claim if it is inexcusably delayed but avoids unjustifiably imposing the
hard deadline of Rule 54” to supplemental fee demands. Zoroastrian Ctr., 2017 WL
1129940, at *9.
However, under either standard, the court finds the Motion to be untimely. As the
court has already noted, the Motion was filed more than 120 days after the latest final
judgment for which CRST requests attorneys’ fees. While this certainly runs afoul of Rule
54’s fourteen-day time limit, the court also finds such delay to be unreasonable. CRST has
provided no justification for filing its Motion so long after judgments were entered in this
case. If CRST desired to apply for attorneys’ fees in this case, it could have easily moved
for an extension of time to apply for such fees—a procedure that CRST was undoubtedly
familiar with, as it previously made a similar request in this litigation. See Fed. R. Civ.
P. 54(d)(2)(B) (stating that the time for filing an application for fees may be extended by
court order); see also, e.g., Defendant’s Unopposed Motion for One-Week Extension to
File Its Attorney’s Fees Petition and Bill of Costs (docket no. 382). Accordingly, as to the
fees related to the appeal of the court’s August 1, 2013 fee award, the Supreme Court fees
and the Rule 60(b) Motion fees, the court finds that the Motion and, thus, shall deny the
Motion with respect to those fees.
The court notes that there is no readily ascertainable date of judgment for the fees
that CRST seeks for the remand briefing done in this case. The most logical judgment on
which to base the timeliness of the remand briefing would be the Eighth Circuit’s June 28,
2016 Judgment, which signaled that the issue was live before the court again. See June
28, 2016 Judgment. By that measure, the Motion was filed over 120 days late. However,
even with the most charitable reading of the docket, the Motion would still be untimely
7

with respect to the remand briefing fees. The court’s October 13, 2016 Order (docket no.
453) suggested to the parties that the court may not consider the remand
briefing—unequivocally signaling that a request for fees related to the remand briefing
should be forthcoming.4 See, e.g., October 13, 2016 Order at 2 n.1. Even taking the
October 13, 2016 Order as the judgment which started the clock to apply for fees under
Rule 54, the Motion was still over three weeks late. Considering that the remand briefing
was completed in 2015, the court views this delay as unreasonable. Accordingly, the court
shall deny the Motion with respect to the remand briefing as untimely.
B. Fees Requests
Even if the court were to consider the merits, it would still deny the Motion. In
Christiansburg Garment Co. v. E.E.O.C., the Supreme Court imposed additional burdens
on prevailing defendants in Title VII cases in order to demonstrate that they are entitled
to attorneys’ fees. The Christiansburg standard was set out by the Supreme Court as
follows: “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.”
Id. at 421. The Eighth Circuit is clear that, when considering a fee request for fees
generated on appeal, the court must find that “the EEOC’s ‘appeal was frivolous,
unreasonable or without foundation.” E.E.O.C. v. CRST Van Expedited, Inc., 774 F.3d
at 1184 (quoting Barket, Levy, & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d
237, 243 (8th Cir. 1994)). “To find the appeal unreasonable, [the court] must conclude
that no reasonable person would have thought he would succeed on appeal; to find the
appeal unfounded, [the court] must conclude that the appeal had no foundation in law upon

4

That the court ultimately determined that it would consider the remand briefing
does not change the court’s analysis. In any event, for the reasons stated in Part III.B
infra, the court would deny the Motion as it relates to the remand briefing even if it
reached the merits.
8

which the appeal could be brought.” Id. (quoting Wrenn v. Gould, 808 F.2d 493, 505 (6th
Cir. 1987)).5
Here, neither the EEOC’s appeal of the court’s fee award to the Eighth Circuit nor
CRST’s appeal to the Supreme Court are amenable to fees. The court cannot conclude that
the EEOC’s appeal to the Eighth Circuit was frivolous, unreasonable or without
foundation. The EEOC ultimately prevailed before the Eighth Circuit, and such appellate
outcome precludes a finding that such appeal was frivolous or unreasonable. See E.E.O.C.
v. CRST Van Expedited, Inc., 774 F.3d at 1185. Furthermore, because the EEOC
expressly relied on binding Eighth Circuit precedent in appealing the fee award as to the
sixty-seven claims dismissed for failure to comply with presuit requirements, it cannot be
said that such appeal was unfounded. See Motion Exhibit 1 (docket no. 455-2) at 3-13 (the
EEOC’s appellate brief relying on Marquart v. Lodge 837, Int’l Ass’n of Machinists &
Aerospace Workers, 26 F.3d 842 (8th Cir. 1994), and arguing that the court’s dismissal
of the sixty-seven claims did not constitute a ruling on the merits).
With respect to CRST’s appeal to the Supreme Court, the EEOC correctly notes that
CRST cites to no authority supporting a conclusion that a party may be entitled to fees for
an appeal which it itself initiates. See Resistance at 5. The court is similarly aware of
none. However, even considering CRST’s arguments, the court finds that the EEOC’s
5

CRST makes a general argument that it should be entitled to “fees incur[ed] in
defending [an] award so that the original amount is not ‘diluted.’” Brief in Support of the
Motion (docket no. 455-1) at 1 (quoting Jones v. MacMillan Bloedel Containers, Inc., 685
F.2d 236, 239 (8th Cir. 1982)) (citing Hixon v. City of Golden Valley, Civ. No. 06-1548
(RHK/JSM), 2007 WL 4373111 (D. Minn. Dec. 13, 2007)). However, the cases cited by
CRST involve prevailing plaintiffs, and thus did not apply Christiansburg. These cases
do not suggest that a standard other than Christiansburg should apply when a prevailing
defendant is forced to defend its fee award. To hold fees generated in the defense of an
earlier fee award to this new standard would create a disparity between the court’s ability
to grant fees for work performed in appeals initiated on the merits and those initiated based
on a prior fee award, an outcome the court declines to permit. The court shall consider
all fees requested by CRST under the Christiansburg standard.
9

actions before the Supreme Court were not frivolous, unreasonable or without foundation.
While it is true that the EEOC abandoned its defense of the Eighth Circuit’s reasoning
before the Supreme Court, the EEOC continued to defend the Eighth Circuit’s
outcome—albeit on the grounds that a party must obtain a preclusive judgment to prevail
for purposes of fees. The EEOC articulated and advocated for a standard that is colorably
supported by legal authority, though the Supreme Court declined to address the question
posed by the EEOC. See Motion Exhibit 3 (docket no. 455-4) at 3-17 (the EEOC’s
response brief before the Supreme Court arguing that CRST must obtain a preclusive
judgment to be considered a prevailing party (citing Buckhannon Bd. & Care Home, Inc.
v. W.Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001))).

Whatever the

peculiarities of the EEOC’s strategy and arguments before the Supreme Court, CRST
cannot escape the fact that the EEOC was brought before the Supreme Court against its
will. To punish the EEOC for actions taken on an appeal that it did not initiate fails to
serve the deterrent purpose of Title VII’s fee shifting provision. See Christiansburg, 434
U.S. at 420 (noting that “Congress intended to ‘deter the bringing of lawsuits without
foundation’” when enacting the fee shifting provision (quoting Grubbs v. Butz, 548 F.2d
973, 975 (D.C. Cir. 1976))). Therefore, the court finds that fees are not available for the
proceedings before the Supreme Court.
The court further finds that the EEOC did not act unreasonably in filing the Rule
60(b) Motion. The EEOC based its arguments on the Supreme Court’s Mach Mining
decision and argued that it was entitled to post-judgment relief due to a change in the law.
While the EEOC was unsuccessful, as it misinterpreted the scope of the Supreme Court’s
decision, the court cannot say that the EEOC acted frivolously, unreasonably or without
foundation. See December 14, 2015 Order at 5 (noting that the court’s decision rested,
in part, on the court’s “opinion” of the meaning of Mach Mining’s statement regarding the
appropriate remedy where the EEOC undertakes insufficient conciliation). The EEOC
made a colorable argument based upon recent Supreme Court precedent and could
10

reasonably have believed that its interpretation of Mach Mining supported the relief it
sought.
As to CRST’s argument that the Rule 60(b) Motion was frivolous, unreasonable or
without foundation because the EEOC ultimately abandoned its appeal of the court’s ruling
on the Rule 60(b) Motion and took an inconsistent stance at the Supreme Court with
respect to its supposed position in the Rule 60(b) Motion, the court is also unpersuaded.
In particular, CRST argues that the EEOC’s position before the Supreme Court that the
dismissal of the sixty-seven claims was without preclusive effect is inconsistent with its
contention in the Rule 60(b) Motion that the court should grant the EEOC post-judgment
relief on the sixty-seven claims. See Brief in Support of the Motion at 12. The court
disagrees. The EEOC correctly argues that, though the “EEOC sought to vacate the
judgment through a Rule 60 motion, rather than to reopen the administrative process and
complete the individualized investigation, determinations and conciliations that th[e] [c]ourt
held Title VII requires, [such course] is not an admission that [the] EEOC could not have
done so.” Resistance at 13. There are numerous strategic reasons why the EEOC might
seek to revive the sixty-seven claims as part of this suit instead of filing them anew after
investigation and attempting conciliation—such as efficiency or the court’s familiarity with
the case—and its attempt to do so is not frivolous, unreasonable or without foundation in
light of its reading of Mach Mining and the various reasons it might pursue Rule 60 relief.
As the court previously noted, the mere fact that the EEOC was unsuccessful is insufficient
to find that attorneys’ fees are appropriate. See Christiansburg, 434 U.S. at 421-22 (“[I]t
is important that a district court resist the understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must
have been unreasonable or without foundation.”).
Finally, the court cannot find that the EEOC’s actions in its remand briefing were
frivolous, unreasonable or without foundation. Both the EEOC and CRST filed the
remand briefs pursuant to court order. See generally May 19, 2015 Order. While CRST
11

may take issue with the manner in which the EEOC organized its arguments, it
nevertheless complied with the spirit of the court’s order to analyze whether each claim
had satisfied the Christiansburg standard. Each of the claims for which the court ordered
an individualized briefing was addressed in the EEOC Remand Brief, and the form in
which such analysis occurred was not so outside the court’s directives, or lacking in
particularity or legal authority, so as to constitute frivolous, unreasonable or foundationless
action.6 See EEOC Remand Brief at 36-42 (grouping each of the claims on which the court
granted summary judgment under four broader categories and explaining why the EEOC
did not act frivolously, unreasonably or without foundation as to those four categories on
multiple claims). Accordingly, fees for the remand briefing are not appropriate. Because
the court has found that the Motion is untimely and that the Christiansburg standard has
not been met with respect to the fees requested by CRST, the court shall deny the Motion.
IV. CONCLUSION
In light of the foregoing, the Motion (docket no. 455) is DENIED. Pursuant to the
September 22, 2017 Order (docket no. 462), the Clerk of Court is DIRECTED to enter
judgment in favor of CRST in the amount of $1,860,127.36.
IT IS SO ORDERED.
DATED this 22nd day of September, 2017.

6

The court further notes that the Petition for a Writ of Certiorari (docket no. 411)
was filed by CRST on May 19, 2015, the same date that the court issued the May 19, 2015
Order directing the parties to file briefs on the remanded issues. CRST could have saved
itself the costs of preparing the CRST Remand Brief by asking the court to stay the
briefing schedule while the Supreme Court determined whether to grant certiorari and hear
the case.
12