                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0498n.06

                                         Nos. 11-6426/27                                FILED
                                                                                    May 17, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

       Plaintiff-Appellant/Cross-Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
MEMPHIS HEALTH CENTER, INC.,                          WESTERN DISTRICT OF TENNESSEE

       Defendant-Appellee/Cross-Appellant.

                                               /



BEFORE:        CLAY and WHITE, Circuit Judges; and HOOD, District Judge.*



       CLAY, Circuit Judge. Plaintiff Equal Employment Opportunity Commission (“EEOC”)

appeals the district court’s order, granting a partial award of attorney’s fees and costs to Memphis

Health Center, Inc., (“MHC”), pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412(d). Defendant MHC cross-appeals, arguing that the district should have granted the full

amount of attorney’s fees and costs.

       For the reasons set forth below, we AFFIRM in part and REVERSE in part the district

court’s judgment, and REMAND for further proceedings consistent with this opinion.




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                          Nos. 11-6426/27



                                         BACKGROUND

A.     Factual Background

        MHC is a nonprofit, federally-qualified community health center, providing medical services

to low-income and uninsured patients in the Memphis, Tennessee area. Rita Smith, born January

21, 1952, began working for MHC as a dental assistant with ten years’ experience in July 1983.

During her more than 25-year career with MHC, Smith worked primarily in a satellite office and

performed various administrative and support functions. Smith generally received positive ratings

on formal performance evaluations.

       Smith was laid off on August 15, 2007, because MHC was downsizing, and was provided

a severance package. Smith filed an internal grievance challenging her termination. She requested

that some consideration be given to her long years of service and alleged that she was laid off

because an MHC doctor favored another (older but recently hired) dental assistant who worked at

MHC’s main office. The grievance was denied. Smith attempted to file a charge of discrimination

with the EEOC during this time, asserting that she was discharged in retaliation for taking leave and

seeking worker’s compensation after an on-the-job injury, and because the MHC doctor favored the

other dental assistant who was retained. An EEOC intake officer advised Smith to contact him if

she learned that the retained dental assistant was under 40 years old (which she was not), or if a less

qualified white, male, or younger person was hired for an open position with MHC to which Smith

had applied. Smith then continued through the internal grievance process and appealed to MHC’s

Board of Governors in September 2007, claiming that “[h]ad [she] not sought . . . worker’s comp


                                                  2
                                          Nos. 11-6426/27

for [her] on-the-job injuries, [she] would still be employed by [MHC] today.” (R. 93, Ex. 6.) The

appeal was also denied.

       During her severance period, Smith accepted a lower-paying position at MHC as a call center

operator. Her supervisor at the time, William McInnis, encouraged Smith to apply for a dental

assistant position that arose in January 2008. McInnis, and several other MHC employees, asserted

that it was the company’s policy to hire qualified current employees for openings before advertising

it to outside candidates and that MHC usually did so without interviewing the employee. However,

when Smith applied for the position, two outside candidates—including Deborah Phillips-Tolliver,

who is almost seven years younger than Smith—applied as well. Smith was also advised that she

would have to interview for the position in the near future, but received indications that she would

not learn of the interview appointment until the day it was to take place.

       Smith was called in to interview on what happened to be MHC’s “casual Friday;” thus, she

was unintentionally dressed in jeans and tennis shoes for the interview. Smith also was not prepared

for the interview inasmuch as she did not bring her resume; however, MHC’s interviewers similarly

did not have Smith’s personnel file during her interview. During the interview, Smith was asked

why she did not seek another dental assistant position after being laid off, and she responded that she

believed God told her to stay at MHC. The interviewers’ evaluation forms articulated a concern that

Smith did not take the interview seriously or present herself professionally. Despite receiving some

positive evaluations, Smith overall ranked lower than Tolliver on the interviewers’ evaluation forms.

Moreover, Dr. Oscar Webb, the final decision-maker, learned that doctors who once worked with

Smith disliked her work style. Consequently, MHC hired Tolliver because“Tolliver came prepared


                                                  3
                                         Nos. 11-6426/27

for the interview, responded to questions appropriately, would make a better fit with the department,

and would not create friction with the other members of the department’s staff.” (R. 94, at 4.)

       On February 20, 2008, Smith filed a charge with the EEOC, which determined that it did not

have reasonable cause to believe that MHC laid off Smith because of her age. However, the EEOC

did find reasonable cause that MHC’s failure to rehire Smith for the open dental assistant position

was based on her age.

B.     Procedural History

       On September 30, 2008, the EEOC filed an action against MHC alleging violations of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. Specifically, the EEOC

alleged that MHC failed to rehire Smith: 1) because of her age (56 years old); and 2) in retaliation

for Smith engaging in protected activity (filing grievances after being laid off).

       On July 12, 2010, MHC filed a motion for summary judgment, which was granted by the

district court on September 10, 2010. The court found that the EEOC did not establish a prima facie

case of age discrimination because, as a matter of law, the new hire, Tolliver, was not “substantially

younger” than Smith because there was only a seven-year age gap between the two. Moreover, MHC

had a legitimate nondiscriminatory reason for not rehiring Smith and the EEOC failed to establish

that the reason was pretextual. The district court further found that the EEOC failed to establish a

prima facie case of retaliation because Smith never asserted age discrimination in her grievances,

and there was no evidence that Smith engaged in any protected activity. The EEOC did not appeal.

       Following summary judgment, MHC filed a motion in the district court seeking an award of

attorney’s fees and costs, totaling $70,389.83, pursuant to the Equal Access to Justice Act (“EAJA”),


                                                  4
                                         Nos. 11-6426/27

28 U.S.C. § 2412. The EEOC argued that the motion should be denied because: 1) this Court has

not decided whether the EAJA applies to the ADEA; 2) to the extent it does, the only applicable

standard for reviewing ADEA claims should be “bad faith” and not the EAJA’s “substantially

justified” standard; and 3) assuming, arguendo, the substantially justified standard applies, the

EEOC’s position as a whole was substantially justified.

       The district judge referred the motion for attorney’s fees and costs to a magistrate judge, and

the magistrate judge recommended that: 1) the EAJA applied to the ADEA; 2) only the

discrimination claim was substantially justified after conducting a claim-by-claim analysis; and 3)

fifty percent of the attorney’s fees should be awarded to MHC for defending the retaliation claim.

The magistrate judge relied on persuasive authority from the Fourth and Seventh Circuits to hold that

the EAJA’s “substantially justified” standard applies to the ADEA. The magistrate judge then,

recognizing a split among courts, adopted a claim-by-claim analysis after determining that “the

claims [were] not so complex or closely intertwined such that the court cannot examine the claims

separately . . . .” (R. 94, Report & Recommendation, 14–15.) The magistrate judge reasoned that

despite losing at summary judgment, the EEOC had a reasonable basis in law and fact to assert the

age discrimination claim because there was no established rule in this circuit regarding a seven-year

age difference. Moreover, the EEOC had a reasonable basis in law and fact to support its pretext

argument based on the circumstances surrounding Smith’s interview, her performance record with

MHC, and the alleged policy of hiring internally.

       The magistrate judge found that the retaliation claim, however, was not substantially justified

because the grievances, even when construed liberally, failed to assert any claims of age


                                                 5
                                          Nos. 11-6426/27

discrimination.   Consequently, there was no protected activity in which Smith engaged to

substantiate a retaliation claim. The magistrate judge then awarded fifty percent of the fees and costs

because half of the claims advanced by the EEOC were not substantially justified and because the

court could not identify, based on the billing records, the attorney’s fees and costs spent on each

claim.

         The EEOC timely objected to the magistrate judge’s report and recommendation, and MHC

replied, asserting that the full amount of fees should be awarded and the government’s position as

a whole was unjustified.1 The district court adopted the magistrate judge’s report and

recommendation, granting in part and denying in part MHC’s motion for attorney’s fees and costs.

In November 2011, the EEOC timely appealed, finding error with the court’s application of the

EAJA, use of a claim-by-claim analysis over a holistic view, determination that the retaliation claim

was not substantially justified, and the court’s seemingly arbitrary award of fifty percent of fees and

costs. MHC timely cross-appealed, asserting that the district court erred in failing to grant a full

award of attorney’s fees and costs. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.




         1
         MHC has waived any argument that the age discrimination claim was not substantially
justified because it failed to object to the magistrate judge’s findings on this point. See Keeling v.
Warden, Lebanon Corr. Inst., 673 F.3d 452, 458 (6th Cir. 2012). However, it has not waived the
related but distinct argument that the government’s position, if taken as a whole, was not
substantially justified because this argument was specifically advanced in its reply to the EEOC’s
objection to the magistrate judge’s finding.

                                                  6
                                          Nos. 11-6426/27

                                           DISCUSSION

I.     APPLYING THE EAJA

       A.      Standard of Review and Applicable Law

       Whether the EAJA applies to the ADEA is an issue of statutory interpretation that this Court

reviews de novo. See Turner v. Comm’r Soc. Sec., 680 F.3d 721, 723 (6th Cir. 2012).

       Generally, under the “American Rule,” the prevailing party in a litigation may not recover

his fees from the losing party, Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247

(1975), unless there is an express statutory authorization for fee-shifting, id. at 249–50, or a narrow

common law exception that applies, id. at 257–59. The EAJA is an express statutory authorization

for fee shifting that waives sovereign immunity and permits recovery from the government to

eliminate financial disincentives for private parties to challenge unjustified government action and

thereby deter unreasonable exercises of government authority. Commissioner, I.N.S. v. Jean, 496

U.S. 154, 163–64 (1990). The EAJA contains two fee-shifting provisions for awards in court

proceedings.2 Scarborough v. Principi, 541 U.S. 401, 406–07 (2004).

       The first provision permits an award of attorney’s fees to a prevailing private party, “unless

expressly prohibited by statute,” “to the same extent that any other party would be liable under the

common law or under the terms of any statute which specifically provides for such an award.” 28

U.S.C. § 2412(b). Subsection (b) does not create any substantive right to attorney’s fees other than

what is already available under the common law or another applicable statute. The second provision,


       2
        The EAJA also provides for an award of attorney’s fees in an “adversary adjudication”
before an administrative agency under the same circumstances as § 2412(d)—when the government’s
position is not substantially justified. 5 U.S.C. § 504(a)(1).

                                                  7
                                         Nos. 11-6426/27

however, requires an award of attorney’s fees to a prevailing private party, “except as otherwise

specifically provided by statute,” “unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award unjust.” Id. § 2412(d)(1)(A).

Thus, in contrast to subsection (b), subsection (d) by its plain language creates a substantive right

to attorney’s fees, where not provided for by another statute, if, among other conditions, the

government’s position was not substantially justified. See Jean, 496 U.S. at 155, 158.

       B.      Analysis

       Whether the EAJA applies to the ADEA is an issue of first impression for this Court. The

EEOC argues that, because the ADEA contains its own fee-shifting rule that specifically provides

for an award to a prevailing plaintiff from a defendant, subsection (d) does not apply. Rather, the

EEOC submits, only subsection (b) applies to permit a prevailing defendant to recover under the

common law “bad faith” exception. However, subsection (d) applies where the suit lies solely

against an agency of the United States, Scarborough, 541 U.S. at 406–07, and unless “otherwise

specifically provided [for] by statute,” 28 U.S.C. § 2412(d)(1)(A). Because the present case is

advanced by the EEOC against a private party, the only basis for precluding application of subsection

(d) would be in the language of the ADEA itself. That is, the ADEA must specifically provide for

or preclude an award to a prevailing defendant to bar application of subsection (d).

       The EEOC unpersuasively argues that by negative implication, the ADEA specifically

precludes an award of attorney’s fees to prevailing defendants under subsection (d). Despite

mirroring Title VII in almost every other respect, the ADEA distinctly incorporates by reference a

completely different remedial scheme, found under the Fair Labor Standards Act (“FLSA”), 29


                                                 8
                                           Nos. 11-6426/27

U.S.C. § 201, et seq. See 29 U.S.C. § 626(b). The FLSA states in relevant part that “the court . . .

shall, in addition to any judgment awarded to the plaintiff . . ., allow a reasonable attorney’s fee to

be paid by the defendant, and costs of the action.” Id. at § 216(b). By adopting this language, the

ADEA notably departs from Title VII—the ADEA mandates fee awards specifically for prevailing

plaintiffs while Title VII permits district courts in their discretion to award fees to either prevailing

plaintiffs or defendants and specifically provides for the EEOC to be liable to the same extent as a

private person. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416, 422 (1978) (holding

that prevailing defendants in Title VII cases may be awarded fees where claims were “frivolous,

unreasonable, or groundless”). Notably, the ADEA is silent on whether fees may be awarded to

prevailing defendants. The EEOC argues that the absence of any language regarding an award to

defendants, the statute’s specific mandate for fee awards to a prevailing plaintiff, and Congress’

conscious decision to depart from the remedial scheme of Title VII, demonstrate that the ADEA

specifically precludes awarding fees to a prevailing defendant.

        However, any negative implication must give way to express statutory language. Subsection

(d) applies absent specific statutory language to the contrary. Though § 216(b) does not provide for

fee awards to defendants, Fegley v. Higgins, 19 F.3d 1126, 1135 (6th Cir. 1994) (holding that

defendants may not recover attorney’s fees in defending FLSA actions), it does not follow that

§ 216(b) bars default fee-shifting statutes such as the EAJA from filling this void. Cf. Sullivan v.

Hudson, 490 U.S. 877, 891–92 (1989) (rejecting any negative implication from the express coverage

of only adversary agency adjudications by the EAJA, and holding that the EAJA also permits a fee

award for non-adversary remand proceedings before the agency). Since the ADEA is silent on the


                                                   9
                                           Nos. 11-6426/27

issue of fee awards to prevailing defendants, this Court has applied the common law bad faith

exception to fill the void when analyzing whether a prevailing defendant should be awarded fees

against a private plaintiff. See Morgan v. Union Metal Mfg., 757 F.2d 792, 796 (6th Cir. 1985)

(affirming fee award to the defendant employer in age discrimination case where the plaintiff

maintained the action after rejecting a reasonable settlement offer).

          Because the government is a party here, it should follow that the EAJA applies to the ADEA

because the former statute fills the void in the latter, providing prevailing defendants with a statutory

right to attorney’s fees. See O & G Spring, 38 F.3d at 883; EEOC v. Clay Printing Co., 13 F.3d 813,

817 (4th Cir. 1994). The EEOC’s argument for the ADEA to be treated the same as Title VII

attempts to ignore the material distinctions in the two statutes’ language. Title VII is a “prevailing

party” fee-shifting statute, see Scarborough, 541 U.S. at 422, and has a specifically outlined basis

for awarding fees to a prevailing defendant. See Christiansburg, 434 U.S. at 416. Title VII is a

prime example of what subsection (d) means by “otherwise specifically provided by statute.” Unlike

Title VII, the ADEA does not provide a basis for defendants to recover fees. The ADEA is

completely silent on this point and, thus, we find that subsection (d)’s substantial justification

standard applies.

          Accordingly, the district court’s application of the EAJA to the EEOC in ADEA cases was

proper.




                                                   10
                                         Nos. 11-6426/27

II.    ATTORNEY’S FEE AWARD

       A.      Standard of Review

       This Court reviews the district court’s award of attorney’s fees for abuse of discretion. See

Pierce v. Underwood, 487 U.S. 552, 563 (1988). An abuse of discretion occurs when the district

court has relied on “clearly erroneous findings of fact, when it improperly applies the law or uses an

erroneous legal standard.” Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). Factual findings are

reviewed for clear error, while legal conclusions are reviewed de novo. Begley v. Sec’y of Health

& Human Servs., 966 F.2d 196, 198 (6th Cir. 1992). Specifically, issues of statutory interpretation

are reviewed de novo. See Turner v. Comm’r Soc. Sec., 680 F.3d 721, 723 (6th Cir. 2012).

       B.      Analysis

       Section 2412(d) of the EAJA requires the government to pay a fee award to a prevailing party

who meets other statutory requirements,3 unless “the position of the [government] was substantially

justified.” To be “substantially justified,” the government must prove that its position has a

reasonable basis both in law and fact. Pierce, 487 U.S. at 563–64. However, what the “position”

of the government actually consists of has proven to be less clear. Before 1990, several courts

segmented cases during the substantial justification determination for awarding fees. See, e.g., Smith

v. Bowen, 867 F.2d 731, 735 (2d Cir. 1989); Matthews v. United States, 713 F.2d 677, 684 (11th Cir.

1983); Ellis v. United States, 711 F.2d 1571, 1576 (Fed. Cir. 1983); Goldhaber v. Foley, 698 F.2d



       3
         The EAJA has other requirements that are not at issue here, including “that the claimant be
a prevailing party” as defined by § 2412, “that no special circumstances make an award unjust,” and
“that any fee application be submitted to the court within 30 days of final judgment in the action and
be supported by an itemized statement.” Jean, 496 U.S. at 158 (internal quotation marks omitted).

                                                 11
                                          Nos. 11-6426/27

193, 196–97 (3d Cir. 1983). However, the Jean Court held that only one threshold determination

was required to render the government liable for fees in subsequent fee litigation. 496 U.S. at 159.

The Court found that “the position of the United States,” phrased in the singular, supported “treating

a case as an inclusive whole, rather than as atomized line-items.” Id. at 161–62. The threshold

determination, which could also consider the government’s pre-litigation conduct, was meant to

cover the cost of all phases of civil litigation addressed by the statute. Id. at 166.

       Courts are split on whether the position of the government compels all claims to be grouped

for the analysis, permits a claim-by-claim determination for substantial justification, or permits some

hybrid of the two. While acknowledging that Jean’s holding was limited to the grouping of various

stages of litigation, some courts have read Jean to discourage atomization of the various claims

advanced in a civil case. See Roanoke River Basin Assoc. v. Hudson, 991 F.2d 132, 138–39 (4th Cir.

1993) (“[W]e rely on Jean as directing a more broadly focused analysis that would reject the view

that any unreasonable position taken by the government . . . automatically opens the door to an EAJA

fee award.”). Contrast the D.C. Circuit, which does not read Jean to preclude a claim-by-claim

analysis that completely segments the substantial justification determination. See Tripoli Rocketry

Ass’n, Inc. v. ATF, 698 F. Supp. 2d 168, 175 (D.D.C. 2010) (relying on Cinciarelli v. Reagan, 729

F.2d 801, 810 (D.C. Cir. 1984)).4 The D.C. Circuit reasoned:

       [I]t cannot be the case that Congress intended that a party who prevails on an
       essential ground of a petition to set aside government action cannot recover the


       4
         It is worth noting that Jean cites favorably to Cinciarelli as the latter case applied the rule
later established in Jean (viewing the litigation as an inclusive whole to automatically award fees
for the EAJA litigation portion where the position on the merits was unjustified) but did so only after
conducting a claim-by-claim analysis for the threshold determination. See Jean, 496 U.S. at 163.

                                                  12
                                            Nos. 11-6426/27

        congressionally contemplated fees because the government’s action was substantially
        unjustified on only one of several possible bases. Virtually any government action is
        either grouped with other actions or is a component of some greater action.
        Presumably the government is usually substantially justified on most of its actions.
        If a litigant who has successfully challenged a government action as substantially
        unjustified and achieved a complete victory in terms of the relief prayed cannot
        recover EAJA fees because of this well-nigh universal grouping, then Congress's
        enactment of the EAJA becomes a virtual nullity.

Air Trans. Ass’n of Canada v. FAA., 156 F.3d 1329, 1332 (D.C. Cir. 1998).

        And still, other courts conduct a preliminary claim-by-claim analysis and then weigh the

determinations together to assess the government’s overall position. See, e.g., Gatimi v. Holder, 606

F.3d 344, 350 (7th Cir. 2010) (denying fee award where the government’s position was justified on

the more prominent issue, despite being unjustified on the other); United States v. Jones, 125 F.3d

1418, 1429 (11th Cir. 1997) (“When the defendant is the prevailing party on each intertwined claim,

and one claim is substantially justified, but the other is not, it would be unfair not to reimburse

defendants for the EAJA fees needed to combat the whole case presented by the United States.”);

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 131 (3d Cir. 1993) (“[A] district court must

evaluate every significant argument made by an agency . . . to determine if the argument is

substantially justified. . . . This is necessary to permit [an appellate court] to review a district court’s

decision and determine whether, as a whole, the government’s position was substantially justified.”)

(emphasis in original).

        Though we have yet to express a view in an EAJA case on what “the position” of the

government means, we have made clear in related circumstances that this language precludes the

D.C. Circuit’s claim-by-claim analysis that segments the substantial justification determination. See



                                                    13
                                             Nos. 11-6426/27

United States v. Heavrin, 330 F.3d 723, 730 (6th Cir. 2003).5 We find Heavrin instructive; in

Heavrin, this Court relied on Jean and the Fourth Circuit in Roanoke to conclude that the “position”

of the government under the EAJA requires a holistic determination of substantial justification

instead of viewing the case as “atomized line-items” and, thus, held that the Hyde Amendment

similarly precluded a count-by-count analysis in criminal cases. Id.

        The district court in the instant case conducted a segmented determination similar to the one

done by the D.C. Circuit. Though it may be debated whether this approach is proper under Jean, our

decision in Heavrin compels a finding of error. However, while part of the government’s case may

have merit, it is still plausible that its position as a whole lacks substantial justification. Id.; see, e.g.,

Jones, 125 F.3d at 1429; Hanover, 989 F.2d at 131. Upon determining that the position of the

government was justified as to the age discrimination claim but not the retaliation claim, the court

should have determined what impact that dichotomy had on the government’s case as a whole. See

id. at 730–31. The district court should assess, if the two are distinct, which claim is more prominent

in driving the case in order to make the substantial justification determination, see Gatimi, 606 F.3d

at 350, or if the claims are sufficiently intertwined legally and factually that an insubstantial

justification as to one renders the entire overall position unjustified, see Jones, 125 F.3d at 1429.

In any event, the district court should perform an analysis to determine whether the government’s




        5
         Heavrin dealt with the Hyde Amendment, which tracks the “position of the government”
language of the EAJA and explicitly states it is subject to the procedures and limitations of the
EAJA. Consequently, courts rely on the meaning of the EAJA to inform their analysis under the
Hyde Amendment. Heavrin, 330 F.3d at 730; see also United States v. Claro, 579 F.3d 452, 457
(5th Cir. 2009) (collecting cases).

                                                      14
                                         Nos. 11-6426/27

position as a whole was substantially justified to make the threshold determination for awarding fees

under the EAJA.6

                                         CONCLUSION

       Since the district court failed to complete the analysis, we remand the case for the district

court to assess whether the EEOC’s position was, as a whole, substantially justified. Cf. Heavrin,

330 F.3d at 731. For the foregoing reasons, we AFFIRM in part and REVERSE in part the district

court’s judgment, and REMAND for further proceedings consistent with this opinion.




       6
        It is worth noting that once the holistic threshold determination is made and if an EAJA fee
award is found to be proper, the amount to be awarded is a completely separate inquiry guided by
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). See Jean, 496 U.S. at 161–62.

                                                 15
                                         Nos. 11-6426/27

       HELENE N. WHITE, Circuit Judge, concurring. The question is whether subsection

2412(d) of the EAJA is applicable to actions brought by the EEOC under the ADEA. I agree with

the majority that it does apply. I write separately to address the EEOC’s arguments more fully, and

because the two circuit opinions that have decided the issue included little analysis.

       It is undisputed that subsection 2412(b) applies to the EEOC in such circumstances and

operates to make it liable for reasonable fees and expenses of attorneys “to the same extent that any

other party would be liable under the common law or under the terms of any statute which

specifically provides for such an award.”7 Subsection 2412(b) applies because its application is not

“expressly prohibited” by the ADEA. Application of subsection 2412(b) to the EEOC renders it

liable for attorney fees to the same extent any other party would be, which, in the context of an

ADEA plaintiff, makes the EEOC liable for attorney fees only if it litigated in bad faith. Morgan

v. Union Metal Mfg., 757 F.2d 792, 796 (6th Cir. 1985).

       All agree that subsection 2412(d) of the EAJA is applicable “[e]xcept as otherwise

specifically provided by [the ADEA]”;8 and all agree that the ADEA incorporates the attorney fee

shifting provisions of the FLSA. Unlike Title VII, which allows for attorney fees for prevailing

defendants in the court’s discretion “upon a finding that the plaintiff’s action was frivolous,

unreasonable, or without foundation, even though not brought in subjective bad faith,” including



       7
         Prior to the enactment of the EAJA, the common-law exceptions to the American rule that
each party to litigation bears its own attorney expenses did not apply to the United States because
of its sovereign immunity.
       8
         In contrast to subsection (b)’s qualifying language – “Unless expressly prohibited by
statute,” – subsection (d) uses the phrase “Except as otherwise specifically provided by statute.”

                                                 16
                                          Nos. 11-6426/27

when the EEOC is the plaintiff, Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978),

the FLSA provides for the award of attorney fees to prevailing plaintiffs only. Thus, the question

is whether the FLSA’s provision specifically allowing plaintiffs, but not defendants, to receive

attorney fee awards should be construed to be a provision that specifically provides that a defendant

prevailing against the EEOC should not recover attorney fees under subsection 2412(d).

       It is no answer to rely on the simple fact that the FLSA does not provide for attorney fee

awards to private defendants because § 2412(d) contemplates an award of attorney fees to a party

prevailing against the United States under circumstances where a private party would not be subject

to an attorney fee award in favor of the party seeking fees under § 2412(d). That is the very purpose

of subsection (d). Subsection (b) permits an award against the government in all cases where a

private party would be liable; subsection (d) extends the government’s potential liability for attorney

fees beyond that applicable to a private party in the same circumstances.

       Still, the EAJA contemplates that § 2412(d) will not displace existing fee-shifting provisions,

including those under the civil rights laws. This is clear from the language of § 2412(d), the

legislative history and the savings provision. Congress expressly qualified the application of

§ 2412(d) by beginning that subsection with the phrase “[e]xcept as otherwise specifically provided

by statute.” Further, the legislative history of the EAJA provides:

       [S]ubsection [2412(d)] applies to all civil actions except . . . those already covered
       by existing fee-shifting statutes. . . . Moreover, this section is not intended to replace
       or supersede any existing fee-shifting statutes such as . . . the Civil Rights Acts . . .
       or to alter the standards or the case law governing those Acts. It is intended to apply
       only to cases (other than tort cases) where fee awards against the government are not
       already authorized.



                                                  17
                                          Nos. 11-6426/27

H.R. Rep. No. 1418, 96th Cong., 2d Sess. 18, reprinted in 1980 U.S.C.C.A.N. 4953, 4997.

Consistent with this legislative history, Congress also enacted a separate savings provision:

       [N]othing in section 2412(d) of title 28, United States Code, as added by section
       204(a) of this title, alters, modifies, repeals, invalidates, or supersedes any other
       provision of Federal law which authorizes an award of such fees and other expenses
       to any party other than the United States that prevails in any civil action brought by
       or against the United States.

Equal Access to Justice Act, Pub. L. No. 96-481, § 206, 94 Stat. 2330 (1980), amended by Pub. L.

No. 99-80, § 3, 99 Stat. 186 (1985).

       These provisions have led the circuits that have addressed the issue to conclude that

subsection 2412(d) does not apply to Title VII actions because Title VII has its own fee-shifting

provision. E.E.O.C. v. Great Steaks, Inc., 667 F.3d 510, 521–22 (4th Cir. 2012); E.E.O.C. v.

Consol. Serv. Sys., 30 F.3d 58 (7th Cir. 1994); Huey v. Sullivan, 971 F.2d 1362, 1366–67 (8th Cir.

1992); E.E.O.C. v. Kimbrough Inv. Co., 703 F.2d 98, 103 (5th Cir. 1983). Title VII provides:

       (k) Attorney’s fee; liability of Commission and United States for costs

       In any action or proceeding under this subchapter the court, in its discretion, may
       allow the prevailing party, other than the Commission or the United States, a
       reasonable attorney’s fee (including expert fees) as part of the costs, and the
       Commission and the United States shall be liable for costs the same as a private
       person.

42 U.S.C. § 2000e–5(k). This section does not on its face “otherwise specifically provide” in that

it allows for the award of attorney fees to prevailing plaintiffs and defendants, it allows for the

United States to be liable for attorney fees, and it does not provide a standard for assessing attorney

fees that is different from the EAJA’s substantially justified standard. Nevertheless, because the

Supreme Court has interpreted § 2000e-5(k) to provide a bifurcated standard for awarding attorney


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fees to prevailing parties – presumptive awards for prevailing plaintiffs other than the EEOC, and

awards for prevailing defendants only upon a finding that the plaintiff’s action was “frivolous,

unreasonable, or without foundation, even though not brought in subjective bad faith,” – and §

2000e-5(k) provides that the government is liable for costs the same as a private person, courts have

concluded that both the “otherwise specifically provides,” and the savings provision exempt Title

VII from the application of subsection 2412(d).

       The EEOC asserts that the ADEA/FLSA attorney fee shifting provision also “otherwise

specifically provides” in that it specifically mandates fees in favor of prevailing plaintiffs and

intentionally declines to authorize statutory fees in favor of prevailing defendants. The EEOC argues

that § 2412(d) must give way to the legislative judgment that an ADEA plaintiff should not be liable

for an ADEA defendant’s attorney fees unless the common-law bad-faith exception applies. The

EEOC makes its point by analogizing to Title VII. In accordance with congressional intent, Title

VII defendants may collect, and Title VII plaintiffs both governmental and private are liable to pay,

statutory attorney fees when the plaintiff’s position is frivolous. By declining to adopt Title VII’s

fee-shifting provision for the ADEA and instead adopting the FLSA’s provision, Congress expressed

its intent that ADEA defendants not be entitled to receive, and ADEA plaintiffs not face the prospect

of having to pay, defendants’ attorney fees unless the common-law bad-faith exception applies.

However, if § 2412(d) is applied to ADEA cases, it creates an anomalous situation that is

inconsistent with Congress’s approach to fee-splitting under Title VII and the ADEA by making it

easier for ADEA defendants to recover attorney fees from the government than Title VII defendants,

even though Title VII contemplates attorney fee awards to defendants under limited circumstances


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and the ADEA makes no provision at all for awarding fees to defendants, relegating them to the

common-law bad-faith rule.

        This argument is not without force, but it is also not without problems. First, subsection

2412(d) itself requires that the other operative statute otherwise specifically provide, and while Title

VII does clearly provide otherwise, the ADEA/FLSA provision arguably otherwise provides by

implication only. Second, both the savings provision and the legislative history contemplate that

subsection 2412(d) will be inapplicable where another provision authorizes an award of fees and

other expenses to a party prevailing in a civil action brought by or against the United States. Unlike

Title VII, the ADEA makes no provision for the award of fees to a party prevailing in litigation

against the United States. Defendants, even those prevailing in an action brought by the United

States, are not authorized to recover fees under the ADEA; and 29 U.S.C. § 633a (1988), which

extends the protection against age discrimination to federal employees, does not incorporate the fee

shifting provisions of the FLSA. Thus, the ADEA/FLSA provision at issue does not authorize an

award of fees to a party prevailing against the United States and therefore by its terms, the savings

provision does not disallow the application of subsection 2412(d) to ADEA cases.

        It seems a fair inference that in preserving existing fee-shifting provisions against the

operation of § 2412(d), Congress was more concerned with raising the threshold for awarding

attorney fees to plaintiffs prevailing against the United States than it was with raising the standard

the United States must meet in order to avoid paying attorney fees to prevailing defendants. To be

sure, application of § 2412(d) to the EEOC in Title VII cases implicates the latter, rather than the

former, concern and the courts have concluded nonetheless that § 2412(d) cannot supplant the


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frivolous standard in favor of the substantially justified standard for awarding fees against the EEOC

as plaintiff. However, those decisions rest on the circumstances that Title VII falls within both the

“specifically provides otherwise” clause of § 2412(d) and the savings provision’s exception for

statutes that themselves authorize an award of fees to a party prevailing against the United States.

Here, where neither provision applies, it is not clear that Congress’s intent in preserving existing fee

shifting schemes was directed at ensuring that the EEOC only pay attorney fees in ADEA cases when

it proceeds in bad-faith.

       This still leaves the question whether the congressional decision to provide for no statutory

attorney fees in favor of prevailing defendants in ADEA cases should be construed, for EAJA

purposes, to be a provision specifically providing that no fees shall be awarded against the EEOC

in cases where a defendant prevails, except under the common-law bad-faith rule. Stated differently,

did Congress intend that parties successfully defending against the EEOC in ADEA cases would

have the benefit of the substantially justified test and be awarded attorney fees unless the EEOC’s

position was substantially justified, or be left in the position of all other ADEA defendants who

prevail and be awarded attorney fees only if the plaintiff, including the EEOC, proceeded in bad-

faith? The question implicates two Congressional concerns – awarding attorney fees to private

parties who prevail against the government when the government’s position is not substantially

justified, and leaving the American rule applicable to ADEA defendants, subject to the common-law

bad-faith exception, so as not to discourage or burden the vindication of the interests protected by

the ADEA. Because the award of attorney fees under subsection 2412(d) in ADEA cases burdens

only the EEOC and no other plaintiffs or defendants; the EEOC is unlikely to be unduly deterred in


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its mandate to enforce the anti-discrimination laws by the specter of incurring liability for prevailing

defendants’ attorney fees where its position is determined to be not substantially justified; and

Congress intended that private parties successfully defending against United States government

claims that are determined to be not substantially justified recover attorney fees unless there is

another statutory provision specifically providing otherwise or providing for the application of a

different standard for awarding fees against the government, I conclude that the balance favors the

conclusion that Congress intended that subsection 2412(d) apply to ADEA claims brought by the

EEOC. Thus, I agree with the majority that the district court properly determined that subsection

2412(d) is applicable.




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