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If a Suit Against You Is Dismissed, That's a Win

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Supreme Court's decision on attorneys' fees is not really about attorneys' fees. Behind the bland topic lies a deep and interesting philosophical question about the nature of a lawsuit, especially one brought on civil rights grounds: What counts as a win?

The Supreme Court answered this question Thursday in a case called CRST Van Expedited v. EEOC. The case involved a $4 million award of fees that the trial court ordered the government to pay the trucking company’s lawyers after the court dismissed more than 150 sex harassment claims brought by the Equal Employment Opportunity Commission against the company.

Under Title VII of the Civil Rights Act of 1964, a court can order the government to pay a defendant’s attorneys’ fees if the defendant prevails in court and the claims were “frivolous, unreasonable, or groundless.” The issue before the Supreme Court was whether the trucking company counted as the prevailing party in the dismissed lawsuits.

You might think the question of who is a "prevailing party" sounds easy: Did you win in court or didn’t you?

But the law in fact has been fairly complex. Some courts, including the U.S. Court of Appeals for the 8th Circuit, which decided the case below, have defined “prevailing” to mean that a party needs to have won its case “on the merits.” What that means in ordinary English is that you’ve only “prevailed” if a court has heard the claims, considered the merits, and then decided the case in your favor.

In contrast, if the court has dismissed the claims against you on a procedural basis -- for example, because the other side didn’t file its briefs on time, or brought its case to the wrong court, or made some other error -- you haven’t really “prevailed” according to the 8th Circuit rule.

In this case, the judge dismissed all but one of the EEOC cases on such procedural grounds. More than 100 were dismissed because the EEOC didn’t present the allegedly harassed women for depositions.  Another 67 cases were dismissed on the basis that the EEOC had failed to investigate the claims and present them for settlement as required by law.

The 8th Circuit, applying its rule, said that the trucking company hadn’t prevailed in a way that would entitle its lawyers to have the government pay their fees -- because the trial court hadn’t heard and considered the claims on the merits.

The 8th Circuit’s reading makes some modicum of sense. In the UK, attorneys’ fees are paid by the loser almost as a matter of course in ordinary civil suits. In the U.S., by contrast, we want special circumstances to exist before we award them.

Specifically, in the context of civil rights litigation, we want attorneys’ fees awarded to a plaintiff's lawyer when there has been a real violation of civil rights. And we want the defense to get them when the rights really haven’t been violated. If there is no adjudication of the merits of the case, we don’t know whether civil rights have been violated or not.

This week, the court was eager to make the law of attorneys’ fees consistent across the whole sweep of federal law, in a unanimous opinion by Justice Anthony Kennedy. Instead of asking whether civil rights had been violated, Kennedy preferred to ask a different, and in a sense more fundamental, question: what counts as victory?

This framing led Kennedy to consider the very essence of a lawsuit. “Plaintiffs and defendants come to court with different objectives,” he wrote. The plaintiff wants money or another change in “the legal relationship between the parties.” The defendant wants to block it. As a result, he concluded as a matter of “common sense” that the defendant has “fulfilled its primary objective whenever the plaintiff’s challenge is rebuffed, irrespective of the precise reason for the court’s decision.”

Seen from a lawyer’s perspective, this makes sense. You try to win a case for your client by any (ethical) means necessary. In fact, as a lawyer you’re ethically required to offer zealous representation. That means you have to use all legal arguments available. And when you do, a win is a win is a win.

Kennedy added that this is especially true when a plaintiff has brought a frivolous suit. It would make no sense, he reasoned, to condition attorneys’ fees on dismissal of such a suit on the merits. Ideally, many frivolous suits would never even be argued and judged on the merits; they would be dismissed.

The result is a vindication of a lawyer’s view of the world, where winning and losing are what matters, not the underlying merits of a civil rights claim. The lawyer in me applauds the outcome. The human in me, not so much. As decided, the case is about much more than attorneys' fees. It's about the significance of plaintiffs' grievances. And in the arena of civil rights laws, these grievances are basic rights. It would be nice if the Supreme Court recognized that not every "win" for defendants' lawyers is a win for justice.

  1. The government tried to salvage the case by arguing that at a minimum, one side can be seen as having “prevailed” only if the other can’t go back to court and try again. But the court refused to consider the argument because the government raised it too late.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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