                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1687


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Plaintiff - Appellant,

           v.

PROPAK LOGISTICS, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cv-00311-MR-DLH)


Argued:   January 28, 2014                 Decided:   March 25, 2014


Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson
wrote a separate concurring opinion.


ARGUED: Susan Ruth Oxford, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. John Doughty Cole,
Sr., NEXSEN PRUET, PLLC, Charlotte, North Carolina, for
Appellee.   ON BRIEF: P. David Lopez, Lorraine C. Davis, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Appellant.
BARBARA MILANO KEENAN, Circuit Judge:

     In    this   appeal,    we     consider    whether     the    district      court

abused    its   discretion     in    ordering      that   the   Equal      Employment

Opportunity       Commission      (EEOC)     pay     attorneys’          fees    to     a

prevailing defendant employer after the court awarded summary

judgment to the employer in an action brought by the EEOC.                             In

awarding attorneys’ fees, the district court concluded that the

EEOC acted unreasonably in filing the employment discrimination

complaint,      because     events    that     occurred     during        the   EEOC’s

administrative investigation precluded the EEOC from obtaining

either injunctive or monetary judicial relief.                    Upon our review,

we affirm the district court’s judgment.



                                        I.

     In    January    2003,       Michael    Quintois      filed     a     charge      of

discrimination with the EEOC against his former employer, Propak

Logistics, Inc. (Propak), a provider of commercial warehousing,

transportation, packaging, and shipping services.                    Quintois was

a supervisor at Propak’s Shelby, North Carolina facility, and

alleged    that    Propak    terminated      his    employment      based       on    his

“American” national origin after he complained that the company

hired only Hispanic workers for certain supervisory positions.

The EEOC notified Propak of the discrimination charge arising

under Title VII of the Civil Rights Act of 1964 (Title VII).

                                         2
       Based        on     Quintois’         discrimination         charge,     the     EEOC

initiated         an    investigation        of   Propak     that    lasted    nearly    six

years.           This investigation included extensive periods of delay

and inactivity.

       Although Propak responded to the charge in May 2003, the

EEOC       did    not    interview     Quintois       concerning     Propak’s       response

until May 2004.                The EEOC also delayed until April 2004 its

interview         of    Kathy    Ponder,      a   Propak     manager    responsible      for

hiring decisions at the Shelby, North Carolina facility.

    In       September         2004,   the    EEOC    designated       the   matter    as   a

“class       case.”        However,     as    the     district      court    later    found,

Propak did not receive notice of this procedural decision until

about four years later in September 2008. 1

       Although          the    EEOC   scheduled       and    conducted       two    witness

interviews between October 2004 and March 2005, little other

investigative activity occurred during this period.                            The record

also shows that the EEOC did not contact Propak for about two

years, between June 6, 2005 and June 7, 2007.                          In June 2007, the

EEOC contacted Propak to speak with Ponder, but was unable to

interview her because she had left her job and her whereabouts

were unknown.

       1
       The United States Department of Justice also conducted an
investigation of Propak based on Quintois’ allegations.     That
investigation, which lasted about one year, ended in November
2005 without any charges being brought.


                                                  3
     During the course of the EEOC’s inquiry, Quintois requested

a   “right   to   sue”   authorization. 2     After   the   EEOC   granted

Quintois’ request, Quintois filed a lawsuit against Propak in

March 2008, which was dismissed about four months later upon

agreement of the parties.

     In September 2008, the EEOC concluded its investigation of

Propak and issued a “determination letter.”             The EEOC stated

that it had found reason to conclude that Propak violated Title

VII by failing to hire a class of non-Hispanic job applicants

because of their race or national origin.             In the letter, the

EEOC also invited Propak to participate in informal conciliation

to resolve the matter pursuant to the EEOC’s statutory mandate

to engage in such efforts. 3     See 42 U.S.C. § 2000e–5(b).

     In attempting to conciliate the matter, the EEOC proposed

certain   remedial   measures    concerning    Propak’s     facilities   in

North Carolina and South Carolina.          These measures would have

required Propak in these locations to offer certain employment

opportunities, to provide training for supervisors and managers,

     2
       The EEOC’s issuance of a “right to sue” letter allows an
individual to initiate a private Title VII lawsuit in federal
court. Davis v. N.C. Dep’t of Corr., 48 F.3d 134, 138 (4th Cir.
1995).
     3
        Conciliation is one of the EEOC’s “most essential
functions” and, under our precedent, the EEOC is required to
engage in a “good faith attempt at conciliation” before it may
file a complaint in a federal court. EEOC v. Radiator Specialty
Co., 610 F.2d 178, 183 (4th Cir. 1979).


                                    4
and to post certain notices.                  By this time, however, Propak had

closed all its facilities in those states, thereby rendering it

impossible        for       Propak   to    implement         such      remedial    measures. 4

Propak advised the EEOC of this fact about one month later.

      The EEOC nevertheless initiated a lawsuit in the district

court against Propak in August 2009, more than six and one-half

years after Quintois filed his discrimination charge.                               The EEOC

alleged     in    its       complaint      that       between    October    2002    and   June

2004, Propak violated Title VII by refusing to hire, on the

basis of national origin, a class of non-Hispanic individuals at

the Shelby, North Carolina facility.                            The EEOC sought certain

injunctive        relief,       including     an        order    requiring     that    Propak

institute policies and programs to benefit non-Hispanic persons

in   order       to    mitigate      the    effects       of     the   allegedly     unlawful

employment practices.                The EEOC also sought monetary relief on

behalf      of        the     affected      class       of      non-Hispanic       employment

applicants.

      Propak          filed    a   motion    to        dismiss    arguing,     among      other

things, that the action should be barred under the doctrine of

laches. 5    The district court denied the motion without prejudice


      4
       The parties do not argue, and the record does not suggest,
that Propak’s decision to close its facilities in North Carolina
and South Carolina was influenced by the EEOC’s investigation.
      5
       The equitable defense of laches requires that a defendant
(Continued)
                                                  5
with respect to Propak’s laches defense, and ordered the parties

to engage in discovery limited to the issue whether Propak had

suffered prejudice resulting from the EEOC’s extensive delay in

initiating the litigation.

       At the conclusion of this discovery period, Propak filed a

motion    for    summary       judgment,      again      asserting    the     defense    of

laches.      The district court granted Propak’s motion, concluding

that     the     EEOC’s        delay     in       initiating     the     lawsuit        was

“unreasonable.”               In   reaching       this     conclusion,        the   court

emphasized the fact that during the investigation, “there were

significant      periods       when    the    EEOC    took   little      or   no    action

toward completing the investigation.”

       The     district      court     held   that    Propak    suffered       prejudice

resulting       from    the    EEOC’s    “unreasonable         delay.”        The   court

observed that certain important witnesses, including the site

managers       for     the    Shelby    facility      during    the    relevant      time

period, were no longer employed by Propak and that “locating

them would be difficult, if not impossible.”                           The court also

stated that even if such witnesses ultimately could be located,

they likely would have “faded memories” of the time period at




prove “(1) lack of diligence by the party against whom the
defense is asserted, and (2) prejudice to the party asserting
the defense.” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 409
(4th Cir. 2005) (citation and internal quotation marks omitted).


                                              6
issue, which was more than five years before the complaint was

filed.

      The     court    noted        that    the     EEOC’s   delay     caused       Propak

additional     prejudice,       because       Propak    routinely      had     destroyed

personnel records three years after an individual no longer was

employed by the company.              Thus, Propak destroyed the records of

employees     who     left   the     company      between    2002   and     2004    before

being notified in September 2008 that the EEOC was pursuing the

matter on a class basis. 6                 The court specifically rejected the

EEOC’s      argument    that    it     had     notified      Propak    of     the    class

designation at an earlier date, observing that the record did

not support the EEOC’s assertion.                   Although the court also noted

the   EEOC’s     failure       to     identify       purported      victims    and    the

unavailability         of    injunctive           relief,    the    court      primarily

emphasized Propak’s inability to produce key witnesses and the

destruction of documents essential to Propak’s defense.

      After the district court entered its judgment in favor of

Propak, the EEOC timely filed a notice of appeal.                              The EEOC

later sought dismissal of the appeal, which this Court ordered

upon the agreed motion of the parties.



      6
        The parties dispute on appeal whether Propak acted
unlawfully in failing to preserve its records.       We need not
resolve this issue because it is not material to our analysis of
the district court’s decision to award Propak attorneys’ fees.


                                              7
     The district court later considered Propak’s motion seeking

attorneys’    fees     in      the    amount    of     $192,602.95,      which      were

incurred by Propak after the EEOC filed the complaint.                               The

district court granted the motion, and awarded Propak nearly the

full amount requested.           Relying on the Supreme Court’s holding

in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the

district court concluded that an award of attorneys’ fees was

appropriate because the EEOC knew or should have known that its

claim “was frivolous, unreasonable, or groundless.”                      Id. at 422.

     The district court held that the EEOC acted “unreasonably”

in filing the complaint, and alternatively held that the EEOC

acted “unreasonably” in continuing the litigation in view of the

developing record.          The court stated that the EEOC had acted

unreasonably in filing the complaint because “by the time the

EEOC determined to bring this action it was abundantly clear

that a lawsuit would be moot and thus it was unreasonable to

have filed it.”       The court held that injunctive relief was not

available because Propak had closed the Shelby plant and its

other North Carolina facilities, and that an award of monetary

damages was unlikely because the EEOC knew before filing the

complaint    that    it     could     not   identify     the     class    of   alleged

victims.

     With    respect      to    the    EEOC’s        continued    pursuit      of    the

litigation following discovery, the district court alternatively

                                            8
held that such pursuit was unreasonable because “it was again

reaffirmed     [during       discovery]            that    purported       victims       and

witnesses     could    not    be       located       [and]     the   facilities         were

closed.”     The court further concluded that the EEOC unreasonably

continued    to    pursue     the      litigation         after   learning       that   the

relevant employment records “were no longer in existence.”

     Addressing       the    amount      of       attorneys’      fees,    the   district

court analyzed Propak’s request in detail, despite the EEOC’s

failure to contest the amount sought, and ultimately awarded

Propak $189,113.50. 7        The EEOC filed a timely appeal challenging

this award.



                                          II.

     The    EEOC   asks      us   to    hold       that    federal    courts      are    not

permitted to apply the equitable defense of laches in a lawsuit

brought by an agency of the federal government.                           Conceding that

it failed to raise this argument in the district court, the EEOC

nevertheless maintains that it would be “unjust” to permit an


     7
       The district court declined to award Propak an additional
$3,489.45 in attorneys’ fees related to “travel to depositions
and research.”    Propak does not appeal from this decision.
Propak also filed in the court a bill of costs pursuant to 28
U.S.C. § 1920, seeking reimbursement of an additional $1,467.33.
The court granted the bill of costs in the amount of $61.20, but
denied the bill with respect to the remaining $1,406.13.
Neither party appeals from the district court’s ruling with
respect to the bill of costs.


                                              9
award of attorneys’ fees incurred in asserting a laches defense.

Alternatively,      the     EEOC        asserts       that     the     district    court

impermissibly      relied    on     its       earlier    laches      determination     in

awarding    attorneys’      fees,       and    that     the    court    made   erroneous

factual findings in deciding its fee award.                          We disagree with

the EEOC’s arguments.

                                              A.

     As a general matter, a litigant must pay its own attorneys’

fees in the absence of a statutory or enforceable contractual

provision allowing attorneys’ fees to be awarded to a prevailing

party.     See Christiansburg, 434 U.S. at 415.                     Title VII provides

such a statutory fee-shifting mechanism, which gives district

courts the discretion to award reasonable attorneys’ fees to a

prevailing      party.      Id.    at    416.      This       fee-shifting     provision

states:

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

42 U.S.C. § 2000e-5(k).

     Although      Section        2000e-5(k)       does       not      place   different

burdens    on    plaintiffs       and     defendants          seeking     an   award   of

attorneys’ fees, the Supreme Court explained in Christiansburg

that a heightened standard applies to a prevailing defendant

                                              10
seeking such an award in a Title VII action.                           434 U.S. at 417-

22.        In     contrast     to   a   prevailing           private     plaintiff,          who

generally will be awarded attorneys’ fees under this provision,

a prevailing defendant is eligible to receive such an award only

when the court finds that the plaintiff’s action was “frivolous,

unreasonable, or without foundation.” 8                      Id. at 421.        However, a

finding of bad faith is not required for a prevailing defendant

to be awarded attorneys’ fees.                Id.

       A    district       court    must      avoid         engaging     in     “post        hoc

reasoning”        in   considering      whether        a    plaintiff’s       action    under

Title VII was unreasonable, and an award will not stand if based

only on the plaintiff’s failure to prevail.                           Id. at 421-22.          An

award      of     attorneys’    fees     to        a   prevailing       defendant       is    a

“conservative tool, to be used sparingly” in cases in which the

plaintiff initiated or continued to litigate a claim that the

plaintiff “knew or should have known was groundless, frivolous,

or unreasonable.”          EEOC v. Great Steaks, Inc., 667 F.3d 510, 517

(4th       Cir.    2012)     (citations        and         internal     quotation       marks

omitted).

       There is neither a precise test to be used, nor a specific

quantum of proof required, in determining whether a plaintiff’s


       8
       The EEOC does not contest on appeal the district court’s
conclusion that Propak is a prevailing party for purposes of
Section 2000e-5(k).


                                              11
claim    was     unreasonable.       Id.    (citing       Arnold    v.       Burger   King

Corp., 719 F.2d 63, 65 (4th Cir. 1983)).                     Instead, a decision

whether    attorneys’       fees    should      be   awarded       to    a    prevailing

defendant       under     the   Christiansburg        standard      “is       peculiarly

within the province of the trial judge, who is on the scene and

able to assess the oftentimes minute considerations which weigh

in the initiation of a legal action.”                 Id. (quoting Arnold, 719

F.2d at 65).

     We review for an abuse of discretion the district court’s

decision to award attorneys’ fees to Propak under Section 2000e-

5(k).     See id. at 516.           In light of the principles discussed

above,     we    accord     great   deference        to    the     district      court’s

conclusion that the EEOC’s actions were unreasonable.                            See id.

at 517.         Additionally, we review the district court’s factual

findings in support of the fee award for clear error.                                  See

Williams v. Metro. Life Ins. Co., 609 F.3d 622, 634 (4th Cir.

2010); Daly v. Hill, 790 F.2d 1071, 1079 n.10 (4th Cir. 1986).

                                           B.

        As an initial matter, we reject the EEOC’s request that we

consider the issue whether laches is available as an affirmative

defense to an action filed by an agency of the United States.

Although the issue was relevant to the district court’s summary

judgment holding, the EEOC abandoned its appeal of the summary

judgment order.         Accordingly, we do not consider the rationale

                                           12
for the court’s laches determination, or the EEOC’s arguments

relating to that decision, in the present appeal.

     We turn to consider the EEOC’s argument that the district

court improperly based its decision awarding attorneys’ fees on

the court’s earlier laches ruling.                  The EEOC asserts that the

district court engaged in “hindsight logic” in explaining its

award   of    attorneys’     fees      by    referencing     its      earlier       laches

holding    and   the     prejudicial        delay   caused     by    the     EEOC.        We

disagree with the EEOC’s argument.

     In      awarding     attorneys’        fees    under      the     Christiansburg

standard upon finding that the EEOC unreasonably initiated the

litigation,      the    district    court’s      award   was    not    based       on    the

earlier      summary      judgment      decision.           Although         the        court

referenced its previous findings of delay and prejudice from the

summary judgment holding, and the two decisions set forth many

overlapping      facts,    the   two    holdings     were      based    on    different

principles of law.

     The summary judgment holding of laches was based on the

EEOC’s unjustified delay in bringing the lawsuit, and on the

resulting prejudice affecting Propak’s ability to defend itself

in   the     action.        That     decision       rested     primarily           on    the

unavailability of key witnesses and documents that Propak needed

to support its defense.



                                            13
      In   contrast,      the     district     court     awarded     attorneys’      fees

chiefly on the basis that the EEOC’s lawsuit effectively was

moot at its inception.             In reaching this conclusion, the court

emphasized       that,   when     the   complaint      was    filed,   the    EEOC   had

failed to identify the class of victims who could be entitled to

monetary relief, and injunctive relief was unavailable because

Propak     had   closed    its     facilities     in     North     Carolina.      These

findings, which were central to the court’s conclusion that the

EEOC unreasonably initiated the lawsuit, were not material to

the   court’s     laches    decision      articulated         on   summary    judgment.

Thus, the court’s fee award reflected proper consideration of

the Christiansburg standard by assessing whether the EEOC acted

unreasonably in initiating the litigation. 9

      We    accord       “great    deference”       to       the   district    court’s

conclusion that the EEOC acted unreasonably in initiating the

litigation.       See Great Steaks, 667 F.3d at 517.                 The EEOC argues


      9
       Because the district court did not base its decision to
award attorneys’ fees on the reasonableness of the EEOC’s
opposition to the laches defense, we do not consider the EEOC’s
argument that it reasonably thought it could overcome that
defense.    Separately, we observe that certain facts in the
district court’s summary judgment decision concerning the
unavailability of witnesses and the loss of documents overlap
with facts relating to the court’s alternative basis for
awarding attorneys’ fees, namely, that the EEOC’s continued
pursuit of the litigation was unreasonable. However, because we
do not reach the court’s alternative holding, we need not
address whether that aspect of the court’s decision improperly
relied on facts relating to the summary judgment decision.


                                          14
nevertheless          that    the    district       court    erred     in    reaching      this

conclusion, and attacks the court’s factual finding that the

EEOC    could    not     identify        individual        members     of    the    class    of

victims eligible for monetary relief.

       Under     our     clear      error      standard,      however,       we    will     not

reverse     a     district          court’s      factual      finding        unless       after

reviewing       the    record       we   are   “left       with   a   definite      and    firm

conviction that a mistake has been committed.”                           Helton v. AT & T

Inc., 709 F.3d 343, 350 (4th Cir. 2013).                              The present record

contains four entries from the spring of 2006 noting that an

“[i]nvestigator         interviewed         potential       class     member,”      and    four

similar notations from early 2009 noting that “[p]otential class

member [was] interviewed.”                 (Emphasis added.)             The EEOC asserts

that    these    entries        demonstrate         that    the   EEOC      identified      the

class of victims harmed by Propak’s hiring practices during the

relevant period.             We disagree.

       The record lacks any description of the substance of these

interviews       with     “potential”          class   members,        or   of     any    other

interviews that may have been conducted to identify the class of

purported victims. 10               In particular, the record does not show


       10
        We also observe that although the EEOC designated
documents relating to various interviews and other efforts to
identify class members as being privileged material, the EEOC
has not identified any reason preventing it from filing redacted
versions of these documents in the record.


                                               15
whether the individuals who were interviewed worked or applied

for   work    in   the   Shelby,    North      Carolina      facility    during   the

relevant time period, nor does the record indicate whether the

individuals interviewed had credible claims of discrimination or

desired to be included in the class.

      The record also includes a notation that “contact letters

[were] mailed to potential class members.”                    However, the record

does not show that any individuals receiving these letters fell

within the EEOC’s definition of the target class.                     Moreover, the

fact that the EEOC engaged in efforts to identify “potential

claimants”     does      not    establish       that   the     EEOC     successfully

identified     individuals       harmed     by    Propak’s      hiring       practices

during the relevant time period.                 Indeed, the evidence showing

the EEOC’s efforts to identify the class of victims, without any

indication     that      such    efforts        were   successful,          implicitly

supports the district court’s finding that claimants could not

be identified.        For these reasons, we do not have a “definite

and   firm     conviction”       that     the     district      court    mistakenly

concluded that the EEOC had failed to identify potential victims

in its target class before filing its complaint.                        See Helton,

709 F.3d at 350.

      Next,    the    EEOC     alternatively      argues      that    the    district

court’s factual finding that the EEOC was unable to identify

claimants is an “irrelevant consideration.”                  Again, we disagree.

                                          16
       We previously have held that an award of attorneys’ fees to

a defendant under the Christiansburg standard was justified in

part because the plaintiff sought relief that it knew or should

have    known        was     unavailable.         See     Hutcherson       v.    Bd.    of

Supervisors, 742 F.2d 142, 146 (4th Cir. 1984).                          Applying that

principle here, we conclude that the district court was entitled

to consider the lack of remedies available to the EEOC as a

result of its inability to identify any potential victims.

       We likewise find no merit in the EEOC’s assertion that it

was entitled to maintain an action seeking relief against Propak

despite the fact that, nine months before filing the complaint,

the    EEOC   became         aware    that   Propak      no    longer    operated      any

facilities       in        North     Carolina.        Contrary      to     the    EEOC’s

contention, the Seventh Circuit’s decision in EEOC v. Konica

Minolta Business Solutions U.S.A., Inc., 639 F.3d 366 (7th Cir.

2011), offers no support to the EEOC here.                          The decision in

Konica solely concerned the issue whether a subpoena sought by

the EEOC requested information relevant to its investigation, in

view of the fact that one of Konica’s four facilities in the

Chicago area had closed.                Id. at 367.       Moreover, that decision

did not sanction the initiation of an enforcement action when a

defendant       no     longer        maintained    the        facilities    where      the

discrimination allegedly occurred.



                                             17
       We   therefore    conclude     that       the   court    did    not   abuse   its

discretion     in     holding    that      the    EEOC    acted      unreasonably    in

initiating this litigation.                See Christiansburg, 434 U.S. at

421; Great Steaks, 667 F.3d at 517.                    In view of our conclusion,

we need not address the district court’s alternative holding

that    the   EEOC’s     continued         pursuit       of    the    litigation     was

unreasonable     in    light    of   the    developing        record    in   the   case.

Finally, because the EEOC does not argue on appeal that the

district court erred in determining the amount of attorneys’

fees to which Propak is entitled, we decline to address the

district court’s well-reasoned fee calculation.



                                        III.

       For these reasons, we affirm the district court’s judgment.



                                                                              AFFIRMED




                                           18
WILKINSON, Circuit Judge, concurring:

      I concur in full in Judge Keenan’s fine opinion. I write

separately     to      address     an     unfortunate          implication         in     the

appellant’s     brief:      that        federal    agencies,          and      the       Equal

Employment     Opportunity       Commission       (“EEOC”       or   “Commission”)         in

particular, should be treated differently from private parties

with regard to attorneys’ fees determinations.

                                          ****

      The district court noted in its order “that the EEOC acted

unreasonably by initiating litigation against Propak after [a

more-than-five-year]        investigation          and     at    a     time       when     the

allegedly noncompliant facilities had been closed and the class

of   individuals    purportedly         injured     had    not       existed      for     five

years.” J.A. at 564. Nevertheless, the EEOC suggests that it

should be given special leeway for the astonishing delays that

rendered initiation of this suit so problematic. For example, it

offers as a partial explanation for its delay the fact that

“evidence    provided     by     Propak    was    waiting       to    be    reviewed      and

analyzed by the EEOC’s over-burdened staff.” Appellant’s Br. at

52; see also id. at 53 (justifying a lack of activity by noting

the Commission’s “review of voluminous documents and analysis of

complex statistical data”). The EEOC also seems to suggest that

because   we    have    shown     deference       to     its    performance          of   its

administrative      functions      in    other    circumstances,            the    district

                                           19
court    should       not      have    “second         guess[ed]”     the     Commission’s

pursuit of this suit and awarded attorneys’ fees. Id. at 55-56.

Together, these statements appear to argue that agencies should

be graded on a curve, due to the burdens placed upon them by

statute, regulation, their own internal review processes, and

their need to assure the optimal deployment of finite resources.

       These arguments do have some intuitive appeal. As the EEOC

notes in its brief, the Commission receives tens of thousands of

complaints to review each year under Title VII of the Civil

Rights       Act   of     1964       and    other       statutes     such     as    the     Age

Discrimination            in     Employment            Act,    the     Americans           with

Disabilities Act, and the Equal Pay Act. See Appellant’s Br. at

6.     The    agency      is     required        to     investigate        each    of     these

complaints and, if it finds reasonable cause to believe them

true, attempt to eliminate any alleged unlawful conduct through

informal       methods.        See     42    U.S.C.       §    2000e-5(b).         If     these

potentially        time     consuming       efforts       fail,      the    Commission       is

authorized to bring a civil suit against a private party. See

id. §    2000e-5(f)(1).

       These       are         substantial            tasks.    Notwithstanding             the

Commission’s       burden,       however,        Congress      and   the     Supreme      Court

have    not    seen      fit    to    exempt      it     altogether        from    awards    to

prevailing defendants under Title VII. The statute specifically

provides      that      “the    court,      in    its    discretion,        may    allow    the

                                                 20
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.” Id. §

2000e-5(k). Interpreting this language in Christiansburg Garment

Co. v. EEOC, the Supreme Court rejected a reading that would

have found the EEOC legally exempt from paying fees where a

private plaintiff would not be. 434 U.S. 412, 422 n.20 (1978).

It   noted     that    although      there      were      some    arguments           that    “fee

awards    against       the    Commission           should       rest       on    a     standard

different      from     that       governing        fee    awards        against        private

plaintiffs,”      the     statute        did    “not      support       a    difference         in

treatment      among     private        and      Government           plaintiffs        when    a

prevailing defendant seeks to recover his attorney’s fees.” Id.

at 423 n.20. Needless to say, most private parties would not

dream of trying to excuse the excessive delays here with the

explanation      that     they      were       otherwise      burdened           or    occupied.

Doctrinally, then, the issue is closed.

       And with good reason. The Christiansburg Court’s standard

for a prevailing defendant to recover fees from a plaintiff --

that     the    suit     was       “frivolous,         unreasonable,              or     without

foundation,” id. at 421 -- reflects a determination to head off

unjustified      litigation.        A    party      forced       to    defend         against    a

groundless      lawsuit       is   prejudiced         every      bit    as       much    if    the

                                               21
litigation          is    brought     by    a   federal     agency    as    if   it   were

commenced by a private party. The EEOC in particular brings suit

against       a    wide       range   of   employers     for   whom   the    defense    of

lawsuits          may    be    prohibitively         expensive.   Christiansburg       was

sensitive to this problem, noting that “many defendants in Title

VII claims are small- and moderate-size employers for whom the

expense of defending even a frivolous claim may become a strong

disincentive to the exercise of their legal rights.” Id. at 423

n.20.

       No doubt Congress was aware that assessing attorneys’ fees

against the EEOC when it brings a groundless suit might provide

a disincentive for the agency to litigate meritorious cases. But

it was not unreasonable for Congress to expect the Commission,

with    its       store       of   expertise    and    experience,    to    recognize    a

baseless suit before being told the same by a federal court. For

this reason, “[w]hen a court imposes fees on a plaintiff who has

pressed a ‘frivolous’ claim, it chills nothing that is worth

encouraging.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th

Cir. 1993). Thus, to vindicate the Title VII fee provision’s

goals of encouraging meritorious suits while protecting innocent

defendants from frivolous ones, the EEOC must be subject to the

same potential penalties as private parties who bring vexatious

litigation.



                                                22
      Applying a different standard to the EEOC in the absence of

any statutory differentiation would simply encourage sub-optimal

agency    behavior.         After     all,    although       it       faces    the       special

burdens described above when litigating a case, the EEOC also

operates       with    particular          advantages      as      a       litigant.          As    a

government agency, it often benefits from greater resources than

do the private parties it sues. See EEOC v. Great Steaks, Inc.,

667 F.3d 510, 519 (4th Cir. 2012) (noting the “vast disparity of

resources       between      the      government       and      private        litigants”);

Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 138 (4th Cir.

1993) (acknowledging congressional concern that private parties’

“resources       are     substantially          outweighed            by    those        of        the

government”).         The    United        States   in     general          enjoys       certain

procedural advantages in federal court not available to private

litigants. See 14 Charles Alan Wright et al., Federal Practice

and Procedure § 3652 (3d ed. 1998) (noting various privileges

enjoyed by the federal government as a plaintiff). And Title VII

in   particular        provides      the     EEOC   with     the       ability      to    exact,

albeit     unintentionally,           high     costs       on     a     private      employer

throughout      the    investigative         process     and      potential         subsequent

litigation. See, e.g., 29 C.F.R. § 1601.16 (granting the EEOC

authority to issue subpoenas and compel production of evidence

under    the    control      of     those    subpoenaed);         29       C.F.R.    § 1602.14



                                              23
(requiring that a defendant charged with discrimination preserve

all relevant records until final disposition of the charge).

      These advantages have the potential to combine with the

more dubious aspects of bureaucratic culture in a way that can

be particularly toxic. There is a danger that those inside a

public bureaucracy, armed with significant resources, authority,

and   discretion,       may   become    gradually       numb   as    to    how    their

actions affect those outside parties they investigate or sue. It

is    bad   enough      for   doctors’       or     lawyers’   offices,      or     car

dealerships, or mail-order retailers to jerk patients or clients

or customers around, but those relationships are at least often

based on some element of choice and subject to a measure of

market      discipline.       Government,         by   contrast,     has     a     more

unfettered hand over those it either serves or investigates, and

it is thus incumbent upon public officials, high and petty, to

maintain some appreciation for the extent of the burden that

their actions may impose.

      Granted    that    this    is    an   adversary    process,     it    is    still

remarkable that the saga of delay and indifference recounted by

the district court has brought forth not a glint of recognition

as to what the agency subjected the defendant to with its start-

and-stop     behavior     over   a    total       investigative     and    litigative

course of nearly eight years. Just as importantly, the plaintiff

in this action was left hanging, forced to badger the Commission

                                            24
through     counsel    for   his      own    right        to    sue.     The    same       limbo

affected both parties to this controversy, and if attorneys’

fees were not awarded here, the statutory provision would be

effectively decapitated.

      As one would hope not to judge an individual on a single

incident, so one should not judge an agency on a single case.

One   can    condemn    a    particular           instance        of    conduct          without

diminution     of     respect      for      the     many        instances      where        EEOC

litigation     challenging         illicit        discrimination             was     properly

conducted and more than proved its worth. But what happened here

was   inexcusable.      Of      course      no      one        wants    or     expects       the

Commission to bring suit prematurely. But by the same token, no

company deserves to have its affairs tied up by a government

agency for this period of time. Even if the agency will not

acknowledge     the    damage      that      such    lengthy           investigation         and

groundless     litigation       can      inflict          on     companies         and    their

employees, we can. Like individuals, businesses have a right to

get on with their affairs. Investigations of this length divert

a company’s people and resources, preventing the business from

devoting its capital, human and financial, to those enterprising

purposes for which it was established.

      In addition to deciding to litigate a case it had little

chance of winning, the EEOC has continued to press its case at

the attorneys’ fees stage. Its brief essentially rehashes the

                                            25
same arguments on which it was quite unable to prevail on the

merits.     The    Supreme   Court   has       warned    that   “[a]   request   for

attorney’s fees should not result in a second major litigation.”

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). But that is

exactly what we have. This case “has proceeded too long and its

continuation, with the attendant burden of expense, will in and

of itself implicate the ability to work justice.” Rum Creek Coal

Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994).

       The story of this litigation is regrettable because the

EEOC      provides     primary       recourse       to      those      victims     of

discrimination that persists in our society to an unfortunate

extent. The reference to statutory goals and missions, however,

cannot be divorced from the manner in which those purposes are

implemented. Here, the Commission spent five-and-a-half on-and-

off years pursuing its investigation of Propak, by which point

the company had closed both facilities in question and, as noted

by the district court, the agency had been unable to locate

purported victims or class members. The district court was left

to observe that “by the time the EEOC determined to bring this

action it was abundantly clear that a lawsuit would be moot and

thus   it    was    unreasonable     to    have    filed    it.”    J.A.   at    565.

Furthermore, once it had initiated litigation, the Commission

acknowledged its unusually long delay and limited discovery left

no doubt that the agency still lacked the victims, witnesses,

                                          26
documents or viable theories of relief to win the case. After

examining   this   evidence,      the    district    court    not   surprisingly

determined “that the EEOC’s pursuit of the litigation after its

filing was unreasonable.” J.A. at 565. Surely this is not and

must not become the norm. It is not far-fetched to believe that

the nation’s deep commitment to combatting discrimination will

be   affected   for   good   or    ill    by   the   esteem    in    which   this

important agency is held.




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