Equal Employment Opportunity Commission v. Great Steaks, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,
Plaintiff-Appellee,
v.  No. 10-1756
GREAT STEAKS, INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., Chief District Judge.
(1:05-cv-00744-JAB-WWD)
Argued: October 28, 2011
Decided: January 26, 2012
Before NIEMEYER, DUNCAN, and FLOYD,
Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opin-
ion, in which Judge Niemeyer and Judge Duncan joined.
2 EEOC v. GREAT STEAKS, INC.
COUNSEL
ARGUED: Fred Thurman Hamlet, Sr., Greensboro, North
Carolina; Daniel Charles Nash, MORGAN, HERRING,
MORGAN, GREEN & ROSENBLUTT, LLC, High Point,
North Carolina, for Appellant. Elizabeth Ellen Theran, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellee. ON BRIEF: P. David
Lopez, General Counsel, Vincent J. Blackwood, Acting Asso-
ciate General Counsel, Lorraine C. Davis, Assistant General
Counsel, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellee.
OPINION
FLOYD, Circuit Judge:
This appeal arises from an unsuccessful Title VII action
brought by the Equal Employment Opportunity Commission
(EEOC) against Great Steaks, Inc. The EEOC accused Great
Steaks of subjecting female employees to a sexually hostile
work environment. Although at the start of the case the EEOC
asserted its claim on behalf of multiple claimants, that number
diminished to one by trial. After a three-day trial, the jury ren-
dered a verdict in Great Steaks’ favor. Great Steaks subse-
quently moved for an award of attorneys’ fees, maintaining it
was entitled to such an award under the following three statu-
tory provisions: Title VII’s fee-shifting provision, 42 U.S.C.
§ 2000e-5(k); the Equal Access to Justice Act’s (EAJA) man-
datory fee provision, 28 U.S.C. § 2412(d); and 28 U.S.C.
§ 1927. The district court denied the motion for attorneys’
fees in its entirety. On appeal, Great Steaks contends that the
district court erred in doing so. We affirm.
EEOC v. GREAT STEAKS, INC. 3
I.
A.
On February 14, 2005, Dorathy Carter filed a charge of dis-
crimination against Austin’s Restaurant with the EEOC. Car-
ter, a former employee of Austin’s Restaurant, claimed that
during her employment the owner, John Pantazis, sexually
harassed her. The harassment, she alleged, began on January
10, 2005, and lasted until February 8, 2005. She mentioned
specifically that he subjected her to sexual comments and
touching, and that he persisted even after she advised him that
she did not welcome his advances. The day after Carter filed
the charge, Thomas Colclough, the acting director of the
EEOC’s local office, issued a notice of charge of discrimina-
tion on behalf of the EEOC. He provided Mr. Pantazis with
a copy of the charge and requested a position statement and
certain relevant information from Austin’s Restaurant.
Bessie Pantazis, Mr. Pantazis’s daughter, submitted a posi-
tion statement dated March 20, 2005. In the position state-
ment, she asserted that she co-owned Austin’s Restaurant
with her father. She indicated that the name of the restaurant
was actually Great Steaks, Inc., but that it did business as
Austin’s Restaurant. She also mentioned that Austin’s Restau-
rant had two locations, one in High Point, North Carolina, and
another in Greensboro, North Carolina. But, when listing an
address, she provided only the address of the Greensboro res-
taurant. According to Ms. Pantazis, Carter worked one day in
the High Point location before transferring to the Greensboro
location when it opened on January 25, 2005. Throughout the
statement, Ms. Pantazis denied that Mr. Pantazis subjected
Carter, or anyone else, to sexual harassment and insisted that
Carter was fired for "calling in too many times at the last min-
ute." Ms. Pantazis hypothesized that a desire for money and
for revenge for the firing motivated Carter’s charge.
Colclough subsequently conducted an investigation on
behalf of the EEOC. An affidavit that the EEOC filed with the
4 EEOC v. GREAT STEAKS, INC.
district court describes his efforts. During the investigation, he
visited Austin’s Restaurant in Greensboro and interviewed
Mr. Pantazis. He also interviewed a number of female wait-
resses and hostesses who claimed Mr. Pantazis had sexually
harassed them. According to Colclough, his investigation
revealed that either Mr. Pantazis or Ms. Pantazis directly
hired the majority of these women. Most of them, Colclough
stated, were hired for the Greensboro location, but they
trained in High Point, and some worked in the High Point
location before transferring to Greensboro. He also noted that
Mr. Pantazis managed and helped supervise the waitresses at
the High Point location before the Greensboro location
opened.
On May 31, 2005, Colclough issued a letter of determina-
tion on the merits of the charge of discrimination. In it, he
concluded evidence existed establishing that Mr. Pantazis sex-
ually harassed Carter and a class of similarly situated female
employees. Colclough also noted the existence of evidence
indicating that several female class members were forced to
resign because of the sexual harassment. As a result, he deter-
mined evidence existed that established violations of Title
VII. He therefore invited the parties to enter into the concilia-
tion process. In his affidavit, Colclough attested that he
informed the attorney representing Austin’s Restaurant that
conciliation would be on a class basis and would include both
of the restaurant’s locations.
The parties held a conciliation conference on June 22,
2005. Ms. Pantazis and the attorney for Austin’s Restaurant
attended on behalf of the restaurant. Conciliation was unsuc-
cessful, and the EEOC issued a notice of conciliation failure
on June 29, 2005. According to the EEOC, it subsequently
discovered that Clipper Seafood Restaurant, Inc., was the cor-
porate entity that owned Austin’s Restaurant’s High Point
location.
EEOC v. GREAT STEAKS, INC. 5
B.
The EEOC instituted this action in federal court by filing
a complaint on August 26, 2005. The complaint named two
defendants: Great Steaks and Clipper Seafood, doing business
as Austin’s Restaurant. The EEOC maintained Great Steaks
did business in Greensboro and that Clipper Seafood did busi-
ness in High Point. It asserted, however, that they "jointly
operated" Austin’s Restaurant’s two locations as "joint
employers" or "an integrated business enterprise." The EEOC
alleged that Great Steaks and Clipper Seafood, through their
male co-owner, subjected Carter and other similarly situated
female employees to a sexually hostile work environment and
that the employment conditions caused some of the female
employees to resign. It sought injunctive relief, monetary
relief for the aggrieved claimants, and its costs in bringing the
action.
Great Steaks and Clipper Seafood answered on December
5, 2005, and simultaneously moved to dismiss the complaint.
In their motion, they asserted that the district court lacked
subject-matter jurisdiction over Great Steaks. They further
claimed that the complaint failed to state a claim of relief
against Clipper Seafood, insisting that Clipper Seafood and
Great Steaks were separate entities and that the EEOC had
failed to identify any employees of Clipper Seafood who were
harassed. The EEOC filed a response opposing the motion
and provided Colclough’s affidavit in support.
The district court referred the motion to dismiss to a magis-
trate judge, who subsequently held a hearing. At the hearing,
the magistrate judge granted a motion for discovery made by
the EEOC and stayed the motion to dismiss. He then entered
an order bifurcating discovery into two phases. The first phase
dealt with the substantive claims and the issues raised by the
motion to dismiss. The order expressly prohibited the parties
from deposing unnamed class members without the court’s
leave during the first phase. It required, however, that the
6 EEOC v. GREAT STEAKS, INC.
EEOC disclose the identity of all individuals on whose behalf
it was seeking relief at the conclusion of the first phase. The
second phase of discovery, which was not to begin until the
court had ruled on the motion to dismiss, would address the
remaining discovery.
The parties proceeded with the first phase of discovery.
Great Steaks attempted to depose Carter, but was unsuccess-
ful. She ultimately ceased participation in the lawsuit during
the summer of 2006. At the end of the first phase of discov-
ery, the EEOC notified Great Steaks and Clipper Seafood that
it was seeking relief on behalf of three individuals: Stephanie
Jones, Alea Lovett, and Tricia Allen. This number of claim-
ants was down from the seven or eight class members that the
EEOC originally estimated. Allen soon thereafter ceased par-
ticipation in the lawsuit as well, leaving Jones and Lovett as
the only claimants.
Following the first phase of discovery, on December 21,
2006, the EEOC, Great Steaks, and Clipper Seafood filed a
joint stipulation requesting dismissal of the claims against
Clipper Seafood with prejudice. That same day, Great Steaks
withdrew its motion to dismiss. As a result, at this point of the
litigation, the case involved the EEOC asserting claims on
behalf of Jones and Lovett against only Great Steaks.
The second phase of discovery then commenced. In August
2007, Great Steaks deposed Jones. During her deposition, she
recalled her employment at Austin’s Restaurant as a hostess
and alleged that Mr. Pantazis made unwelcome sexual com-
ments to her and touched her on her lower back and buttocks.
She asserted that on multiple occasions he commented on her
breasts while looking down her shirt, and she recounted that
he once asked her if she wanted to have sex with him. She
alleged various other sexually charged comments and solicita-
tions made by Mr. Pantazis. Throughout the deposition, Great
Steaks’ attorney pressed her on purported inconsistencies
EEOC v. GREAT STEAKS, INC. 7
within her testimony as well as inconsistencies between her
testimony and earlier statements.
That same month, Great Steaks deposed Lovett, but the
deposition ended prematurely when Lovett, in response to
questioning, announced she was finished. In December 2007,
the EEOC notified Great Steaks that Lovett had ceased partic-
ipation in the lawsuit, leaving Jones as the sole claimant on
whose behalf the EEOC sought relief.
Great Steaks then moved for summary judgment. It
included a memorandum of law in support of its motion and
also attached affidavits from Mr. Pantazis and Heather Smith,
Jones’s coworker at Austin’s Restaurant. In his affidavit, Mr.
Pantazis disputed the allegations against him. Similarly,
Smith attested to working side-by-side with Jones and
asserted that she never saw any of the advances or heard any
of the comments that Jones described in her deposition.
The EEOC opposed the summary judgment motion and
moved to strike Great Steaks’ supporting memorandum for
using a font size smaller than the local rules allowed. The
motions were referred to a magistrate judge, who denied the
motion to strike and recommended denying the motion for
summary judgment. In addressing the summary judgment
motion, the magistrate judge recognized troubling aspects of
Jones’s testimony, including her foggy memory regarding
dates and details, but noted that these were issues of credibil-
ity and weight for a jury to decide. The district court adopted
the magistrate judge’s recommendation and denied the motion
for summary judgment.
C.
The district court scheduled a jury trial to begin on October
5, 2009. About a month before trial, Great Steaks filed its pre-
trial disclosures, which were vast. In response to the pretrial
disclosures, on September 28, 2009, the EEOC filed twelve
8 EEOC v. GREAT STEAKS, INC.
motions in limine. Great Steaks failed to file written responses
to them.
Trial began as scheduled on October 5, 2009. Before
impaneling the jury, the district court granted four of the
motions in limine and deferred ruling on the others. The trial
lasted three days. The EEOC offered Jones as a witness in its
case-in-chief. At the close of the EEOC’s case, Great Steaks
moved for judgment as a matter of law, which the district
court denied. Great Steaks renewed its motion at the close of
its evidence. The district court again denied the motion and
allowed the case to go to the jury. On October 7, 2009, the
jury returned a verdict in Great Steaks’ favor.
Two months later, Great Steaks moved for attorneys’ fees
pursuant to Title VII’s fee-shifting provision in 42 U.S.C.
§ 2000e-5(k); the EAJA’s mandatory fee provision in 28
U.S.C. § 2412(d); and 28 U.S.C. § 1927. The district court
denied Great Steaks’ motion for attorneys’ fees on all
grounds. In refusing an award of attorneys’ fees under Title
VII’s fee-shifting provision, it determined that the EEOC’s
case was not frivolous, unreasonable, or without foundation.
The court specifically noted that the EEOC’s case raised justi-
ciable issues of fact for a jury to decide and that it survived
motions for summary judgment and judgment as a matter of
law. The district court also determined that the EEOC’s case
was substantially justified and therefore Great Steaks was not
entitled to an award under the EAJA. Finally, the court con-
cluded that an award under § 1927 would be improper
because the EEOC did not act in bad faith or vexatiously mul-
tiply the proceedings. Great Steaks timely noted this appeal of
the district court’s order.
II.
We first address Great Steaks’ contention that the district
court erred by denying its motion for attorneys’ fees under
Title VII’s fee-shifting provision. We review the district
EEOC v. GREAT STEAKS, INC. 9
court’s denial of attorneys’ fees under Title VII for abuse of
discretion. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167,
178 (4th Cir. 2009).
A.
Title VII contains its own fee-shifting provision that allows
district courts, in their discretion, to award reasonable attor-
neys’ fees to prevailing parties in actions brought under it. 42
U.S.C. § 2000e-5(k). This provision provides as follows:
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.
Id. Notably, this provision, by its terms, does not distinguish
between prevailing plaintiffs and prevailing defendants. See
id. Both may recover. See EEOC v. Clay Printing Co., 13
F.3d 813, 817 (4th Cir. 1994). But the Supreme Court, in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978),
established a different, more stringent standard governing
when prevailing defendants may recover as compared to pre-
vailing plaintiffs. See Clay Printing, 13 F.3d at 817.
Prevailing plaintiffs in Title VII actions ordinarily are enti-
tled to attorneys’ fees unless special circumstances militate
against such an award. Christiansburg Garment, 434 U.S. at
417. This generous standard effectuates Congress’s intent for
plaintiffs to serve as "‘private attorney[s] general,’ vindicating
a policy that Congress considered of the highest priority." Id.
at 416 (quoting Newman v. Piggie Park Enters., Inc., 390
U.S. 400, 402 (1968)) (internal quotation marks omitted). It
promotes the vigorous enforcement of Title VII by making it
easier for plaintiffs of limited means to bring meritorious
10 EEOC v. GREAT STEAKS, INC.
actions. Id. at 420. Furthermore, when a court awards attor-
neys’ fees to a prevailing plaintiff in a Title VII action, it ren-
ders this award "against a violator of federal law." Id. at 418.
These policy considerations, however, do not apply in the
context of prevailing defendants, so defendants may not avail
themselves of the same generous standard set for prevailing
plaintiffs. See id.Separate policy considerations drove Congress’s decision
to allow prevailing defendants to recover attorneys’ fees. See
id. at 419-20. Congress desired "to protect defendants from
burdensome litigation having no legal or factual basis." Id. at
420. Although Congress sought to encourage the vigorous
prosecution of meritorious Title VII actions by making it eas-
ier to bring them, it also wanted to deter frivolous lawsuits.
See id. To accommodate these competing considerations, the
Supreme Court held in Christiansburg Garment that prevail-
ing defendants may obtain attorneys’ fees in a Title VII action
only if the district court "finds that [the plaintiff’s] claim was
frivolous, unreasonable, or groundless, or that the plaintiff
continued to litigate after it clearly became so." Id. at 422. It
clarified, however, that this standard did not require the
defendant to demonstrate that the plaintiff brought the action
in subjective bad faith. Id. at 421.
A finding of frivolousness, unreasonableness, or ground-
lessness cannot obtain simply because the "plaintiff did not
ultimately prevail." Id. at 422. Such "post hoc reasoning"
would "discourage all but the most airtight claims, for seldom
can a prospective plaintiff be sure of ultimate success." Id. at
421-22. Ultimately, it would undercut Congress’s efforts in
promoting the vigorous enforcement of Title VII by substan-
tially increasing the risks inherent in bringing such claims. Id.
at 422. For this reason, we have recognized that awarding
attorneys’ fees to a prevailing defendant is "a conservative
tool, to be used sparingly in those cases [in] which the plain-
tiff presses a claim which he knew or should have known was
groundless, frivolous, or unreasonable." Arnold v. Burger
EEOC v. GREAT STEAKS, INC. 11
King Corp., 719 F.2d 63, 65 (4th Cir. 1983); see also Glymph
v. Spartanburg Gen. Hosp., 783 F.2d 476, 479 (4th Cir. 1986)
("District courts should award such fees sparingly . . . .").
These principles, we have noted, provide only general guid-
ance. Arnold, 719 F.2d at 65. There is no set quantity of evi-
dence separating claims that are frivolous, unreasonable, or
groundless from those that are not. Id. We have eschewed
such formalistic line drawing, and for good reason. Id. "The
fixing of attorneys’ fees 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 initia-
tion of a legal action." Id. We thus accord great deference to
the trial court’s assessment of whether the plaintiff’s claim
was frivolous, unreasonable, or groundless.
B.
Before turning to the merits of Great Steaks’ contentions,
we briefly address the parties’ dispute concerning the extent
to which the district court’s denials of Great Steaks’ summary
judgment motion and motion for judgment as a matter of law
should play a role, if any, in the determination of whether the
EEOC’s case was frivolous, unreasonable, or groundless.
Great Steaks dismisses their significance. The EEOC, how-
ever, emphasizes that its case survived the motions as an indi-
cator that it was not frivolous, unreasonable, or groundless.
We have recognized that the denial of a dispositive motion
can be an appropriate consideration when determining
whether a plaintiff’s case was frivolous, unreasonable, or
groundless. See Glymph, 783 F.2d at 479-80. But it does not
necessarily yield such a determination. See Introcaso v. Cun-
ningham, 857 F.2d 965, 967-68 (4th Cir. 1988); see also
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993)
(applying Introcaso and holding that plaintiffs were liable for
attorneys’ fees even though their case survived motions to
dismiss and for summary judgment). This is because,
12 EEOC v. GREAT STEAKS, INC.
"[a]lthough in some instances a frivolous case will be quickly
revealed as such, it may sometimes be necessary to ‘blow
away the smoke screens the plaintiffs had thrown up’ before
the defendants may prevail." Introcaso, 857 F.2d at 967(quoting Hicks v. S. Md. Health Sys. Agency, 805 F.2d 1165,
1167-68 (4th Cir. 1986)). Moreover, "it is possible for a plain-
tiff to establish a prima facie case which is weak but which
is sufficient to survive a directed verdict, but which is none-
theless groundless in light of a defense readily apparent to the
plaintiff from the outset of the litigation." Id. at 967-68.
We add, however, that the denial of a motion for judgment
as a matter of law made at the close of all evidence is a partic-
ularly strong indicator that the plaintiff’s case is not frivolous,
unreasonable, or groundless. At that point, all of the evidence
has been introduced as to both the claims and the defenses,
and the district court must determine whether a legally suffi-
cient evidentiary basis exists that would allow a reasonable
jury to find for the plaintiff. See Fed. R. Civ. P. 50(a)(1). If
the district court denies the motion, it signals that a jury could
reasonably find for the plaintiff. Although we do not preclude
their existence, we are hard-pressed to imagine circumstances
where the district court could make this determination and
nevertheless deem the plaintiff’s case frivolous, unreasonable,
or groundless. Generally, therefore, the denial of a motion for
judgment as a matter of law made at the close of all evidence
strongly indicates that the plaintiff’s case was not frivolous,
unreasonable, or groundless. See Lowery v. Jefferson Cnty.
Bd. of Educ., 586 F.3d 427, 438 (6th Cir. 2009) ("It generally
will be difficult to deem a claim frivolous ‘where the plaintiff
has . . . presented sufficient evidence at trial to prevent the
entry of a judgment against him as a matter of law.’" (quoting
LeBlanc-Sternberg v. Fletcher, 143 F.3d 765, 771 (2d Cir.
1998))).
EEOC v. GREAT STEAKS, INC. 13
C.
Great Steaks argues that, as a prevailing defendant, it is
entitled to attorneys’ fees under Title VII’s fee-shifting provi-
sion because the EEOC’s case was frivolous, unreasonable, or
groundless. According to Great Steaks, the EEOC should
have known its case was frivolous, unreasonable, or ground-
less at the outset when it contacted scores of female employ-
ees, yet came up "virtually empty-handed," and when Carter
did not appear at the conciliation conference.1 Even if the case
was not frivolous, unreasonable, or groundless from the out-
set, Great Steaks insists that the EEOC continued to litigate
after it clearly became so. In support, it describes how the
number of claimants and defendants dwindled from a class of
claimants and two defendants at the initiation of the action to
one claimant and one defendant by trial. It notes further that
Carter failed to appear for a deposition and that Lovett ended
hers prematurely, which Great Steaks presumably thinks
should have demonstrated to the EEOC that its case was
groundless. Finally, it argues that continued litigation based
solely on Jones’s allegations was frivolous. It highlights
inconsistencies in Jones’s deposition testimony as well as the
affidavit from her coworker, Heather Smith, which challenged
Jones’s allegations. Great Steaks maintains that the affidavit
and inconsistencies should have apprised the EEOC of the
fact that its case was frivolous, unreasonable, or groundless.
We disagree and hold that the district court acted within its
discretion in determining that the EEOC’s case was not frivo-
lous, unreasonable, or groundless. The EEOC’s case had a
1
Great Steaks also asserts that the EEOC included Clipper Seafood as
a defendant even though no allegations of sexual harassment pertained to
it. According to Great Steaks, the EEOC had no reasonable basis for
including Clipper Seafood in the case. We are not addressing a motion for
attorneys’ fees brought by Clipper Seafood, however. Our concern is not
whether the case against Clipper Seafood was frivolous, unreasonable, or
groundless. Instead, our focus is on the EEOC’s case against Great Steaks.
Hence, we need not consider this contention.
14 EEOC v. GREAT STEAKS, INC.
factual and legal basis from start to finish. Although it
evolved over time to include fewer claimants and defendants
than originally anticipated, Jones’s allegations provided a
legal and factual basis on which to conduct the litigation
through trial. The inconsistencies in Jones’s allegations and
the contradictory affidavit from her coworker simply created
factual issues for a jury to resolve; they did not make her alle-
gations frivolous, unreasonable, or groundless.
In reaching this determination, we pay substantial defer-
ence to the district court’s finding that the EEOC’s case pre-
sented justiciable issues of fact warranting a trial. The district
court, which managed the litigation and conducted the trial, is
in the best position to make this assessment. Its denial of
Great Steaks’ motion for judgment as a matter of law made
at the close of all evidence, which indicated that the EEOC
had set forth a legally sufficient evidentiary basis for a reason-
able jury to find in its favor, see Fed. R. Civ. P. 50(a),
strongly underscores that the EEOC’s case had a reasonable
legal and factual basis and therefore was not frivolous, unrea-
sonable, or groundless. Accordingly, we affirm the district
court’s denial of attorneys’ fees under Title VII’s fee-shifting
provision.
III.
We next address Great Steaks’ contention that the district
court erred when it declined to award attorneys’ fees under
the EAJA. Our review of a district court’s denial of attorneys’
fees under the EAJA is for abuse of discretion. Cody v.
Caterisano, 631 F.3d 136, 141 (4th Cir. 2011). We must con-
sider, however, whether the EAJA’s mandatory fee provision
applies in this Title VII context. This involves a question of
statutory interpretation, which we review de novo. See
Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 286 (4th
Cir. 2004) ("[W]e review questions of statutory interpretation
de novo."). Although the district court did not deny Great
Steaks’ application for attorneys’ fees under the EAJA on this
EEOC v. GREAT STEAKS, INC. 15
basis, we may affirm the district court on this alternative
ground as it is apparent from the record. See In re Maco
Homes, Inc., 180 F.3d 163, 165 n.4 (4th Cir. 1999).
A.
Typically, under the "American Rule," parties to litigation
bear their own attorneys’ fees and costs. See Goldstein v.
Moatz, 445 F.3d 747, 751 (4th Cir. 2006); Brzonkala v. Mor-
rison, 272 F.3d 688, 690 (4th Cir. 2001). The EAJA creates
an exception to the American Rule for civil actions in which
the United States is a party. See Goldstein, 445 F.3d at 751.
Congress, cognizant of the vast disparity of resources between
the government and private litigants, enacted the EAJA out of
concern that the expense involved in litigating against unrea-
sonable government action might deter private litigants from
vindicating their rights in civil actions and administrative pro-
ceedings in which the United States is a party. Equal Access
to Justice Act, Pub. L. No. 96-481, § 202, 94 Stat. 2325, 2325
(1980). To alleviate this concern, Congress allowed for indi-
viduals and entities to recover attorneys’ fees and costs
against the United States in specified situations. Id.§ 202(c)(1).
As part of the EAJA, Congress provided a mandatory fee
provision in 28 U.S.C. § 2412(d). It provides as follows:
Except as otherwise specifically provided by statute,
a court shall award to a prevailing party other than
the United States fees and other expenses, in addi-
tion to any costs awarded pursuant to subsection (a),
incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for
judicial review of agency action, brought by or
against the United States in any court having juris-
diction of that action, unless the court finds that the
position of the United States was substantially justi-
16 EEOC v. GREAT STEAKS, INC.
fied or that special circumstances make an award
unjust.
Id. § 2412(d)(1)(A). The government bears the burden of
proving that its position was substantially justified, Clay
Printing, 13 F.3d at 815, which requires it to demonstrate that
its position was "justified to a degree that could satisfy a rea-
sonable person," Pierce v. Underwood, 487 U.S. 552, 565
(1988). To be substantially justified, "[t]he government’s
position must be more than merely undeserving of sanctions
for frivolousness and must instead have a reasonable basis
both in law and fact." United States v. Cox, 575 F.3d 352, 355
(4th Cir. 2009) (citation omitted) (quoting Pierce, 487 U.S. at
565-66) (internal quotation marks omitted).
Great Steaks, as the prevailing party in the action below,
sought to avail itself of this mandatory fee provision. As it
argued at the district court, Great Steaks posits on appeal that
the EEOC’s position was not substantially justified. It further
argues that the district court erroneously placed on it the bur-
den of proving that the government’s position was not sub-
stantially justified. Great Steaks’ arguments fail for another
reason, however: The EAJA’s mandatory fee provision does
not apply in this case.
B.
The EAJA’s mandatory fee provision contains a clear
exception to its applicability for situations in which another
provision of federal law provides for the recovery of attor-
neys’ fees and expenses against the government. See EEOC
v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872,
881 (7th Cir. 1994); EEOC v. Consol. Serv. Sys., 30 F.3d 58,
59 (7th Cir. 1994); EEOC v. Kimbrough Inv. Co., 703 F.2d
98, 103 (5th Cir. 1983). The opening line of § 2412(d)
denotes that the mandatory fee provision applies "[e]xcept as
otherwise specifically provided by statute." § 2412(d)(1)(A).
The EAJA also contains a savings clause that clarifies the
EEOC v. GREAT STEAKS, INC. 17
meaning and extent of this exception. It provides that
§ 2412(d) does not "alter[ ], modif[y], repeal[ ], invalidate[ ],
or supersede[ ] 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." § 206, 94
Stat. at 2330. The import of this statutory language is that
when another provision of federal law provides for the recov-
ery of attorneys’ fees against the government in a given case,
the EAJA’s mandatory fee provision does not apply.2 See,
e.g., Consol. Serv. Sys., 30 F.3d at 59 ("Congress made as
clear as it could that the Act was inapplicable to cases in
which a statute regulating awards of attorney’s fees against
the government was already in place."); H.R. Rep. No. 96-
1418 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4997
("[Section 2412(d)(1)(A)] is intended to apply only to cases
(other than tort cases) where fee awards against the govern-
ment are not already authorized."). By so limiting the manda-
tory fee provision’s applicability, Congress sought to prevent
private litigants from circumventing more stringent standards
imposed by other fee-shifting statutes, which would, in effect,
impede the considered policy choices underlying those stat-
utes. See Gregory C. Sisk, The Essentials of the Equal Access
to Justice Act: Court Awards of Attorney’s Fees for Unrea-
2
We reject Great Steaks’ argument that this exception does not apply
when another provision of federal law provides for the recovery of attor-
neys’ fees against the government, but the standard for recovering under
that provision is narrower or more difficult to satisfy than the substantial-
justification standard. Great Steaks urges that, in such a circumstance, the
EAJA’s mandatory fee provision can supplement the other attorneys’ fee
provision. It cites Gavette v. Office of Personnel Management, 808 F.2d
1456 (Fed. Cir. 1986), for support. We find this distinction not only
unsupported by the EAJA’s text, but also undermined by its savings
clause. See Huey v. Sullivan, 971 F.2d 1362, 1367 (8th Cir. 1992) ("The
savings provision in no way qualifies the type of change that it prohibits.
Accordingly, we interpret this provision as prohibiting § 2412(d) from
either narrowing or broadening the award of fees allowed by other provi-
sions of federal law."). We therefore decline to adopt this approach.
18 EEOC v. GREAT STEAKS, INC.
sonable Government Conduct (Part One), 55 La. L. Rev. 217,
259 (1994).
This interpretation comports with our holdings in EEOC v.
Clay Printing Co. and Guthrie v. Schweiker, 718 F.2d 104(4th Cir. 1983). In Clay Printing, we held that, in an Age Dis-
crimination in Employment Act action brought by the EEOC
against a private entity, the prevailing defendant could
recover attorneys’ fees under the EAJA’s mandatory fee pro-
vision. 13 F.3d at 817-18. Similarly, in Guthrie, we decided
that prevailing plaintiffs in Social Security Act cases could
obtain attorneys’ fees under the EAJA’s mandatory fee provi-
sion. 718 F.2d at 107-08. In neither context did there exist a
provision of federal law other than the EAJA that authorized
the prevailing party to obtain an award of attorneys’ fees
against the government. Clay Printing, 13 F.3d at 817; Guth-
rie, 718 F.2d at 107. Thus, the absence of another provision
of federal law authorizing an award of attorneys’ fees against
the government meant that the parties could seek an award of
attorneys’ fees under the EAJA’s mandatory fee provision.
In this case, however, another provision of federal law
exists that authorizes prevailing defendants such as Great
Steaks to obtain an award of attorneys’ fees against the gov-
ernment. As described above, Title VII contains its own pro-
vision that allows prevailing defendants to recover attorneys’
fees in actions involving the United States as a party, see 42
U.S.C. § 2000e-5(k), and it imposes a more stringent standard
for prevailing defendants to satisfy than the EAJA’s
substantial-justification standard, see Hanson v. Comm’r, 975
F.2d 1150, 1153 (5th Cir. 1992) (recognizing that the
substantial-justification standard is not as stringent for pre-
vailing defendants "as the standard . . . governing fee awards
in Title VII cases"). Furthermore, as previously noted, this
stringent standard reflects the careful balancing of conflicting
policies present in the Title VII context.
Because Title VII contains its own fee-shifting provision
allowing for prevailing defendants to obtain an award of attor-
EEOC v. GREAT STEAKS, INC. 19
neys’ fees against the government, we hold that the EAJA’s
mandatory fee provision is unavailable to defendants, such as
Great Steaks, who prevail against the EEOC in actions
brought under it. A contrary holding would allow prevailing
defendants to circumvent Title VII’s more stringent standard
for obtaining attorneys’ fees, thus undermining the policy
goals it furthers by making it easier for prevailing defendants
to recover. See Sisk, supra, at 260. Congress has instructed
that the EAJA’s mandatory fee provision does not apply in
these circumstances. We therefore affirm the district court’s
denial of attorneys’ fees under the EAJA.
IV.
We lastly address Great Steaks’ assertion that the district
court erred in denying its motion for attorneys’ fees and costs
under 28 U.S.C. § 1927. Our review of a district court’s deci-
sion concerning whether to award costs, expenses, and attor-
neys’ fees under this provision is for abuse of discretion.
Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999).
Section 1927 provides, in relevant part, that "[a]ny attorney
. . . who so multiplies the proceedings in any case unreason-
ably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys’ fees rea-
sonably incurred because of such conduct." § 1927. "The
unambiguous text of § 1927 aims only at attorneys who multi-
ply proceedings." DeBauche v. Trani, 191 F.3d 499, 511 (4th
Cir. 1999). Bad faith on the part of the attorney is a precondi-
tion to imposing fees under § 1927. Chaudhry, 174 F.3d at411 n.14; Brubaker v. City of Richmond, 943 F.2d 1363, 1382
n.25 (4th Cir. 1991). Unlike Title VII’s fee-shifting provision
or the EAJA’s mandatory fee provision, § 1927 is uncon-
cerned with the merits of the lawsuit. See DeBauche, 191 F.3d
at 511. It "does not distinguish between winners and losers,
or between plaintiffs and defendants." Roadway Express, Inc.
v. Piper, 447 U.S. 752, 762 (1980). It "is indifferent to the
equities of a dispute and to the values advanced by the sub-
20 EEOC v. GREAT STEAKS, INC.
stantive law." Id. Instead, § 1927 "focuses on the conduct of
the litigation," DeBauche, 191 F.3d at 511, and "is concerned
only with limiting the abuse of court processes," Roadway
Express, 447 U.S. at 762.
Great Steaks advances three grounds to support its conten-
tion that the district court erred in declining to award it attor-
neys’ fees and costs under § 1927. First, according to Great
Steaks, a reasonable investigation would have revealed the
weaknesses in the EEOC’s case and prompted the EEOC to
dismiss it, but instead, the EEOC litigated the case even
though it lacked a foundation. Second, Great Steaks argues
that the EEOC vexatiously multiplied the proceedings by
moving to strike its summary judgment motion’s memoran-
dum of law on the ground that it used a font size exceeding
what was allowed under the local rules. Great Steaks notes
that, after the EEOC filed the motion to strike and Great
Steaks responded to it, the EEOC failed to pursue the motion
further. Finally, Great Steaks contends that the EEOC vexa-
tiously multiplied the proceedings when it filed numerous
motions in limine the week before trial.
The district court did not abuse its discretion in denying
attorneys’ fees and costs under § 1927. Great Steaks’ first
contention concerning the weaknesses of the EEOC’s case
does not fall within the purview of § 1927, which "focuses on
the conduct of the litigation and not on its merits," DeBauche,
191 F.3d at 511. As for Great Steaks’ arguments concerning
the motion to strike and the motions in limine, there is noth-
ing to suggest, aside from Great Steaks’ unsupported conjec-
ture, that the EEOC filed them in bad faith or that they
unreasonably and vexatiously multiplied the proceedings. In
fact, the district court expressly found that the EEOC had not
"engaged in bad faith conduct or vexatiously multiplied the
proceedings at any point." In the absence of any compelling
evidence demonstrating that the district court abused its dis-
cretion in making this finding, we defer to it.
EEOC v. GREAT STEAKS, INC. 21
V.
For these reasons, we affirm the district court’s order deny-
ing Great Steaks’ motion for attorneys’ fees.
AFFIRMED