Today’s blog entry has the potential to be a real game changer in ADA litigation. Before moving further, I do want everyone to know that I will be out of town next week at a family function. So, I will not be getting a blog up next week. I am not sure if I will have a chance to get another blog entry up this week, but in case I don’t, I will be back with a blog entry the following week. I already have a fascinating case in mind pertaining to higher education. Back to our case, CRST Van Expedited, Inc. v. EEOC.  Its facts are very convoluted, and so I will not bore you with them. The question this case presented is whether for a defendant to recover attorneys fees under title VII, must the defendant receive a favorable ruling on the merits before that can happen. This particular blog entry is only divided into two categories: court’s reasoning and takeaways. The blog entry is so short that I figure the reader will want to read all of it. However, it is conceivable that the reader may be interested in only the court’s reasoning or the takeaway sections, and so you have the option of focusing on one or both of the categories.

I

In holding that a ruling on the merits is not necessary for a defendant to recover attorneys fees, the Supreme Court reasoned as follows:

  1. When it comes to recovering attorneys fees, the critical question is whether there has been a material alteration of the legal relationship of the parties.
  2. When a plaintiff secures an enforceable judgment on the merits or a court order consent decree, that plaintiff is the prevailing party because he has received a judicially sanctioned change in the legal relationship of the parties.
  3. When a defendant is the prevailing party in a civil rights claim, attorneys fees are permissible if the plaintiff’s claim was frivolous, unreasonable or groundless, or if the plaintiff continues to litigate after it clearly became so.
  4. A plaintiff seeks a material alteration in the legal relationship between the parties. On the other hand, a defendant seeks to prevent this alteration to the extent it is in the plaintiff’s favor. While the defendant might prefer a judgment vindicating his position regarding the substantive merits of the plaintiff’s allegations, the defendant fulfills his primary objective whenever plaintiff’s challenges are rebuffed, irrespective of the precise reason for the court decision. Accordingly, the defendant may prevail even where the court’s final judgment rejects the plaintiff’s claim for a nonmerits reason.
  5. The congressional policy regarding the exercise of District Court discretion in the ultimate decision whether to award fees does not distinguish between merits-based and non-merits-based judgments.
  6. The Supreme Court has interpreted the fee shifting statute to allow a prevailing defendant to recover whenever the plaintiff’s claim was frivolous, unreasonable, or groundless. It would make little sense if the congressional policy of sparing defendants from the cost of frivolous litigation depended upon the distinction between merits-based and non-merits-based frivolity. Congress must have intended that a defendant could recover fees expended in frivolous, unreasonable, or groundless litigation when the case is resolved in the defendant’s favor, whether on the merits or not.
  7. Imposing an on-the-merits requirement for defendant to obtain prevailing party status undermines congressional policy by blocking a whole category of defendants for whom Congress wished to make the awards available.
  8. Various Courts of Appeals have allowed a defendant attorney’s fees when the claims were dismissed for nonmerit reasons. For example, a plaintiff’s claim may be frivolous, unreasonable, or groundless if the claim is barred by State sovereign immunity or is moot.

 

II

Takeaways:

 

  1. This case has the potential to be a game changer with respect to ADA litigation for the reasons described in this section.
    1. The reference to sovereign immunity is a big deal. As we have seen over and over again in our blog entries, sovereign immunity and the ADA is extraordinarily complicated because people with disabilities fall into various equal protection tiers depending upon the facts. So, it often times is far from clear whether sovereign immunity applies in a particular situation with respect to an ADA claim. Hopefully, if sovereign immunity is not clear and the plaintiff loses, a court would not award attorney’s fees to the defendant automatically because in that case sovereign immunity waiver was a colorable claim. Of course, if there is a suit and the statute is clear that the State has not waived sovereign immunity with respect to that topic, that is quite a different kettle of fish and attorney’s fees should be awarded in that situation.
    2. It is the mootness section of the opinion that has the potential to profoundly affect litigation, particularly in the area of title III of the ADA. When it comes to architectural accessibility, because the architectural guidelines are specifically tied into the statute, violation of the guidelines is pretty much a strict liability situation. So, as we discussed in this blog entry, it makes sense to fix the problem thereby mooting it. What this case does, is it says that if the problem is mooted and the plaintiff continues to litigate, the defense can collect attorney’s fees. So, when faced with a serial plaintiff or a plaintiff claiming architectural inaccessibility, a defendant would do well to immediately make the modifications that are readily achievable per 28 C.F.R. § 36.304(b) utilizing the priority system set forth in 28 C.F.R. § 36.304(c). If despite that, the plaintiff continues to litigate, then per this case, the defendant should seek attorneys fees.
  2. The opinion says that the defendant’s brief collects cases talking about when the United States Courts of Appeals have allowed for a defendant to get attorneys fees in nonmerit situations. Looking at that brief on pages 33-34, reveals the following additional situations:
    1. Claim barred by the tax injunction act;
    2. Unreasonable to continue litigation when plaintiff’s’ learned suit was certainly time-barred (as we have seen in this blog entry, the statute of limitations for ADA claims can be very uncertain);
    3. The results should have been obvious from the inception of the litigation;
    4. Defendant unequivocally protected by absolute judicial immunity (this could be an issue if suing a state court system depending upon how the complaint is structured);
    5. The appeal was clearly frivolous.
  3. So, with respect to ADA litigation, it is possible that paragraph 2 of this section may come in the play, but it is paragraph 1 of this section that has the potential to have a huge impact on ADA litigation.
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Photo of William Goren William Goren

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a…

William Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. Since 1990, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

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