ARGUMENT. 6

I. The Panel Applied the Same Legally Correct Standard of Review the Supreme Court and this Court Have Used Without Conflict for Decades. 7

II. The Panel Opinion Correctly States the Law and Does Not Require Correction. 13

CERTIFICATE OF COMPLIANCE. 17

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Page(s)

Cases

Bluestein v. Cent. Wis. Anesthesiology,
769 F.3d 944 (7th Cir. 2014)............................................................. 7

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

Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990).......................................................................... 11

CRST Van Expedited, Inc. v. EEOC,
136 S. Ct. 1642 (2016)...................................................................... 15

EEOC v. Agro Distribution, LLC,
555 F.3d 462 (5th Cir. 2009)........................................................... 15

EEOC v. Consol. Serv. Sys.,
30 F.3d 58 (7th Cir. 1994)............................................................... 13

EEOC v. Harvey L. Walner & Assocs.,
91 F.3d 963 (7th Cir. 1996)............................................................... 5

Ekanem v. Health & Hosp. Corp.,
724 F.2d 563 (7th Cir. 1983)............................................................. 8

Hamer v. Lake Cnty.,
819 F.2d 1362 (7th Cir. 1987)................................................... 6, 7, 8

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc.,
134 S. Ct. 1744 (2014)........................................................................ 7

Jaffee v. Redmond,
142 F.3d 409 (7th Cir. 1998)....................................................... 8, 11

Khan v. Gallitano,
180 F.3d 829 (7th Cir. 1999)........................................................... 11

Koon v. United States,
518 U.S. 81 (1996)........................................................................ 7, 11

LeBeau v. Libbey-Owens-Ford Co.,
799 F.2d 1152 (7th Cir. 1986)........................................................... 8

Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015)................................................................ 14, 15

Mars Steel Corp. v. Continental Bank N.A.,
880 F.2d 928 (7th Cir. 1989) (en banc).................................. 1, 9, 10

McLane Co. v. EEOC,
137 S. Ct. 1159 (2017)...................................................................... 13

Pickett v. Sheridan Health Care Ctr.,
664 F.3d 632 (7th Cir. 2011)........................................................... 11

Pickett v. Sheridan Health Care Ctr.,
813 F.3d 640 (7th Cir. 2016)............................................................. 8

Pierce v. Underwood,
487 U.S. 552 (1988).......................................................................... 13

Reichenberger v. Pritchard,
660 F.2d 280 (7th Cir. 1981)............................................................. 8

Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc.,
782 F.3d 922 (7th Cir. 2015)........................................................... 12

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.................................................................................................... passim

42 U.S.C. § 2000e-2........................................................................... 2

42 U.S.C. § 2000e-3........................................................................... 2

42 U.S.C. § 2000e-5....................................................................... 2, 5

42 U.S.C. § 2000e-5(k)................................................................ 4, 10

42 U.S.C. § 2000e-6(a)............................................................. 2, 5, 11

42 U.S.C. § 2000e-6(e)................................................................... 2, 5

Equal Access to Justice Act, 28 U.S.C. § 2412(d).............................. 13

Other Authorities

Fed. R. App. P. 35................................................................................... 1

Fed. R. App. P. 40................................................................................... 1

Fed. R. Civ. P. 11..................................................................... 1, 9, 10, 11

INTRODUCTION

This case involves a straightforward application of the well-established C hristiansburg standard to determine whether defendant CVS Pharmacy, Inc. (“CVS”) was entitled to an award of attorneys’ fees after prevailing in a Title VII case. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Properly applying decades of Seventh Circuit caselaw, this Court held that the district court’s fee award was inappropriate because the EEOC’s position was not foreclosed by “controlling and unambiguous precedent.” Fees Opinion (“Fees Op.”) 12 (quoting Hamer v. Lake Cnty., 819 F.2d 1362, 1367 (7th Cir. 1987)). This Court also agreed with the district court that the EEOC had a sufficient factual basis to bring suit. Id.

Against this backdrop of longstanding precedent, CVS now highlights Mars Steel Corp. v. Continental Bank N.A. — a 1989 case involving Rule 11 sanctions, not fee shifting under Title VII — as indicating a new “contradict[ion]” that must be “reconciled.” Petition for Panel Rehearing or Rehearing En Banc (“PFREB”) 2, 8. Simply put, no reconciliation is necessary because no such contradiction exists. CVS also asks this Court to amend two other aspects of the panel decision. Its first claim of error requires willful misreading of that decision, while the second requires ignoring Supreme Court precedent. Because this case involves neither a lack of uniformity in this Court’s decisions nor a question of exceptional importance, this Court should deny CVS’s petition. See Fed. R. App. P. 35, 40.

FACTUAL BACKGROUND

As described concisely in the panel’s opinion, Fees Op. 2-4, this case arose from CVS’s use of a form separation agreement containing multiple broad releases followed by vague exceptions. The EEOC argued that these provisions were intended to deter reasonable employees from filing administrative charges with the EEOC or otherwise exercising their Title VII rights. In this way, the EEOC contended, CVS’s use of the separation agreement constituted “a pattern or practice of resistance to the full enjoyment of … rights secured by” Title VII, in violation of Section 707(a) of the statute. 42 U.S.C. § 2000e-6(a).

Other parts of Title VII — Sections 706 and 707(e) — detail the procedures to be followed in cases involving a charge of “an unlawful employment practice” (as defined in 42 U.S.C. §§ 2000e-2 and 2000e-3 of the statute). Id. §§ 2000e-5, 2000e-6(e). But the EEOC argued that Section 707(a) provides the EEOC and the Attorney General — and only those governmental actors — an independent grant of authority to bring a resistance claim expeditiously, without a predicate charge and without alleging an unlawful employment practice. In such cases, the EEOC argued, it need not engage in the presuit conciliation efforts required for actions brought pursuant to a charge.

The district court granted CVS’s pre-discovery motion for summary judgment. This Court affirmed that decision on appeal, though on somewhat different grounds. The merits panel recognized this Court’s prior reference to the EEOC’s authority “‘to institute “pattern or practice” lawsuits on its own initiative — i.e., without certain of the prerequisites to a civil action under [Section] 706(f),’” but held that this language “should not be interpreted as permitting the EEOC to proceed without a charge.” Merits Opinion 15-16 (quoting EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996)).

On remand, CVS moved for attorneys’ fees. The district court granted the request in part, despite finding that the EEOC had a reasonable factual foundation to bring its suit, because it concluded that the Commission’s position violated its own regulations requiring presuit conciliation.

In this appeal, this Court reversed.[1] It began by setting out the Seventh Circuit’s standard for reviewing attorneys’ fees awards, explaining that such decisions are reviewed for abuse of discretion, but any legal analysis is reviewed de novo. Fees Op. 4-5 (citing Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011); Jaffee v. Redmond, 142 F.3d 409, 412 (7th Cir. 1998); Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999)). The deference, this Court explained, owes to the district court’s “superior understanding of the litigation,” id. at 4 (quoting Pickett, 664 F.3d at 639), but the same justification does not apply to review of questions of law, id. (citing Jaffee, 142 F.3d at 412).

The Court then explained that Christiansburg permits the award of fees to a prevailing defendant under 42 U.S.C. § 2000e-5(k) only when the lawsuit was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 5 (quoting Christiansburg, 434 U.S. at 421). It recognized that such awards are appropriate “only in limited circumstances.” Id. Specifically, fee awards based on legal frivolousness, like the district court’s award in this case, are allowed only “when litigation proceeds in the face of controlling and unambiguous precedent.” Id. (quoting Hamer, 819 F.2d at 1368). Conversely, this Circuit has held that fee awards are unjustified in suits “implicating ‘an issue of first impression in an unsettled area of the law.’” Id. (quoting Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir. 1981)).

In making this frivolousness determination, district courts must “resist the understandable temptation to engage in post hoc reasoning,” and must not unreasonably punish litigants for “[i]nnovative, even persistent advocacy in the face of great adversity.” Id. (quoting Christiansburg, 434 U.S. at 421; Hamer, 819 F.2d at 1367). Nor should courts punish plaintiffs for “an ‘aggressive’ reading of the EEOC guidelines.” Id. at 5-6 (quoting LeBeau v. Libbey-Owens-Ford Co., 799 F.2d 1152, 1162-63 (7th Cir. 1986)).

Based on Christiansburg and this extensive Seventh Circuit precedent interpreting and applying it, this Court framed its inquiry as “how the EEOC’s theory looked in light of the available statutes, regulations, and case law at the time the action was litigated.” Id. at 6. The EEOC based its legal theory on the distinction between actions brought under Section 707(e) to combat “a charge of a pattern or practice of discrimination” and those brought under Section 707(a) to stop “a pattern or practice of resistance to the full enjoyment of any of the rights secured by” Title VII. The Court found this to be “a colorable legal argument” based on the text of the different statutory provisions, language in Walner indicating the Commission could bring a case without satisfying Section 706’s presuit requirements, and the lack of any precedent rejecting the EEOC’s interpretation. Id. at 6-9. Given this support, the Court concluded that the EEOC’s theory was not “squarely blocked by ‘controlling and unambiguous precedent,’” and therefore did not justify a fee award. Id. at 12 (quoting Hamer, 819 F.2d at 1368).

The Court next disposed of CVS’s additional frivolousness arguments. Rejecting CVS’s claim that the EEOC’s suit was actually based on a charge of an unlawful employment practice, this Court explained that the EEOC had earlier dismissed that charge, so “it [could not] possibly form the basis for this suit.” Id. at 9. Although CVS seized on a single reference to “unlawful employment practices” in the complaint to argue that the action was actually brought under Section 707(e), the Court concluded that the complaint, read as a whole, was plainly brought under Section 707(a). Id.

This Court then noted that the district court’s fee award rested on its conclusion that the EEOC’s regulations forbade filing suit without first attempting to conciliate. This was legal error, the Court concluded, because the regulations “purport to apply only when an unlawful employment practice has been alleged or when the EEOC is proceeding pursuant to a charge” — neither of which was true here. Id. at 10. The Court also observed that when a failure to conciliate is clear at the start of litigation, the appropriate remedy is mandated conciliation, not dismissal and a fee award. Id. at 10-11 (citing Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1656 (2015)).

The Court further noted that CVS itself, in pressing its argument for attorneys’ fees, emphasized that this case involved “novel issues that required deep understanding of Title VII’s text, structure, and history.” Id. at 11. Accordingly, the Court stated, CVS could “hardly argue with a straight face that the same case was squarely blocked by controlling authority.” Id. at 11-12 (citing Reichenberger, 660 F.2d at 288).

Finally, this Court explained that although an infirm factual basis may support a fee award, the district court here found the EEOC’s suit was factually reasonable, and this conclusion was not an abuse of discretion. Id. at 12-13.

ARGUMENT

In reversing the fee award, this Court relied on Hamer and decades of subsequent cases applying Christiansburg. CVS now contends that this Court’s decision and the authorities supporting it conflict with Mars Steel. Given that Hamer and Mars Steel (and their respective progenies) have comfortably coexisted for nearly thirty years, however, CVS’s claim that this case “blows a gaping hole in the abuse-of-discretion standard for fee awards” (PFREB 11) is demonstrably false.

CVS’s argument that this Court’s opinion contains “crucial” misstatements and “misguided” analysis is similarly meritless. Because this case involves no conflict within the Seventh Circuit and raises no new questions of exceptional importance, this Court should deny CVS’s petition.

I. The Panel Applied the Same Legally Correct Standard of Review the Supreme Court and this Court Have Used Without Conflict for Decades.

In the forty years since the Supreme Court decided Christiansburg, this Circuit has consistently applied its teachings to determine the propriety of defensive fee awards in civil rights cases. Attorneys’ fee awards under Title VII are reviewed for an abuse of discretion. Christiansburg, 434 U.S. at 421; Bluestein v. Cent. Wis. Anesthesiology, 769 F.3d 944, 951 (7th Cir. 2014). However, as both the Supreme Court and this Court have long recognized, de novo review of legal errors is encompassed within the abuse-of-discretion standard; an error of law is per se an abuse of discretion. See, e.g., Koon v. United States, 518 U.S. 81, 100 (1996) (“Little turns … on whether we label review of this particular question abuse of discretion or de novo .… A district court by definition abuses its discretion when it makes an error of law.”); Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 n.2 (2014) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law[.]” (internal quotation marks omitted)); Pickett v. Sheridan Health Care Ctr., 813 F.3d 640, 645 (7th Cir. 2016) (“We review an award of attorney’s fees for abuse of discretion. We review de novo any legal analysis that is part of the district court’s decision.” (internal citations omitted)); Jaffee, 142 F.3d at 412 (“[W]hen a district court denies attorney’s fees to a prevailing party … as a result of applying a principle of law, the justifications for the generally deferential standard of review are absent.”).

Heeding the Supreme Court’s directive to “resist the understandable temptation to engage in post hoc reasoning,” Christiansburg, 434 U.S. at 421-22, this Court has emphasized that a fee award for a frivolous legal theory is appropriate only when clear precedent forecloses the theory. Hamer, 819 F.2d at 1368; see also Ekanem v. Health & Hosp. Corp., 724 F.2d 563, 574-75 (7th Cir. 1983) (reversing district court fee award because plaintiffs could not have predicted the ultimate case outcome “to a certainty”). Such an award is not justified when a suit involves an unsettled issue of first impression. Reichenberger, 660 F.2d at 288; LeBeau, 799 F.2d at 1156-57. Instead, civil rights plaintiffs are given substantial leeway to bring creative suits to further vigorous civil rights enforcement. Hamer, 819 F.2d at 1367.

The panel faithfully applied these well-established principles. It deferred to the district court’s assessment of the EEOC’s factual basis for bringing suit. Fees Op. 12-13. As to the legal basis for the suit, however, the panel appropriately framed the issue as “how the EEOC’s theory looked in light of the available statutes, regulations, and case law at the time the action was litigated.” Id. at 6. The Court concluded after extensive analysis that no “controlling and unambiguous precedent” foreclosed the litigation — the applicable standard in this Circuit since at least 1987. Id. at 12 (quoting Hamer, 819 F.2d at 1368). The district court’s contrary conclusion was erroneous, the Court held, given the multiple sources supporting the EEOC’s theory and the lack of contrary precedent. This was the correct approach, mandated by this Court’s precedent.

In its petition, CVS urges this Court to ignore the Seventh Circuit’s long line of cases consistently applying Christiansburg in favor of a trumped-up conflict with a single Rule 11 case, Mars Steel, because it claims (without support) that Mars Steel is “materially akin.” PFREB 10. No such conflict exists.

This Court sat en banc in Mars Steel to reconcile two divergent intra-circuit lines of authority on the governing standard of review in Rule 11 sanctions cases. 880 F.2d at 930. The Court announced that, going forward, it would use “a deferential standard consistently — whether sanctions were imposed or not, whether the question be frivolousness on the objective side of Rule 11 or bad faith on the subjective side.” Id.

As the Court explained in detail, its choice of standard of review in Mars Steel was based on two key aspects of Rule 11 litigation. The first was its focus on attorney conduct rather than the merits of a party’s legal position: “Its focus is ex ante (what should have been done before filing) rather than ex post (how things turned out).” Id. at 932. Thus, unlike the fee-shifting provisions in Title VII and other statutes, “Rule 11 is not a fee-shifting statute in the sense that the loser pays. It is a law imposing sanctions if counsel files with improper motives or inadequate investigation. … How much investigation is justified (i.e., ‘reasonable’) in light of the costs depends on the circumstances of the case[.]” Id. (emphasis added); see also id. (“Unlike the traditional fee-shifting statute, Rule 11 focuses on inputs rather than outputs, conduct rather than result.… It establishes a new form of negligence (legal malpractice).” (internal citations omitted)).

The second hallmark of Rule 11 litigation that the Mars Steel Court emphasized was its fact-intensiveness. “Whether counsel did an appropriate amount of pre-filing investigation, and whether a legal position is far enough off the mark to be ‘frivolous’, are fact-bound. Whether the lawyer ‘went too far’ (or ‘didn't do enough’) is inevitably a judgment call. [¶] Fact-intensive disputes, those whose resolution is unlikely to establish rules of future conduct, are reviewed under a deferential standard because the role of appellate courts in establishing and articulating rules of law is not at stake.” Id. at 933.

Neither Title VII fee-shifting in general, nor this appeal in particular, shares either of these characteristics with Rule 11 sanctions litigation. Unlike Rule 11, 42 U.S.C. § 2000e-5(k) is a fee-shifting statute, and Christiansburg and its progeny address themselves precisely to the question of when, under Title VII, “the loser pays.” Second, the fee award at issue here turned on no such fact-intensive dispute. The district court concluded that the EEOC lacked the legal authority to bring this suit, or any other suit without a charge or conciliation, under Section 707(a) of Title VII. No particular factual circumstances here affected that ruling. See Koon, 518 U.S. at 100 (whether sentencing court may consider a factor “under any circumstance is a question of law”). Under an overarching abuse-of-discretion standard, the district court’s resolution of this legal question is properly reviewed de novo. See Pickett, 664 F.3d at 639; Jaffee, 142 F.3d at 412; Khan, 180 F.3d at 837.[2]

CVS makes almost no effort to bolster its claim that the district court here was in a better institutional position to assess the law than this Court. It argues only that the EEOC waived an argument about the construction of its regulations, obliquely mentions a stray reference to “unlawful employment practices” in the EEOC’s complaint, and claims the panel improperly “evaluated the time CVS spent defending the case.” PFREB 11. None of these factors indicates the existence of “a fact-bound question” requiring more deferential review. Id. at 10.

The district court based both its merits decision and its award of attorneys’ fees on its express conclusion that the EEOC did not comply with its regulations governing conciliation of alleged unlawful employment practices. The EEOC consistently argued at every stage of this litigation, based on Title VII itself, that its conciliation obligation arises only from the existence of a charge, which was not present here. CVS is simply wrong in stating otherwise. But even if the EEOC had not done so, as this Court has explained, “it is well settled that the waiver rule does not prevent a party from attacking on appeal the legal theory upon which the district court based its decision[.]” Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 927 (7th Cir. 2015) (internal citations and quotation marks omitted). Accordingly, this issue—devoid of merit as it is—is purely legal.

CVS also claims that two additional considerations by the panel compel abuse-of-discretion review here: the fact that the panel made one reference to whether the district court might have allowed the EEOC to amend its complaint, and that it “evaluated the time CVS spent defending the case.” PFREB 11. These were both passing references in the panel’s opinion, not substantive considerations. See Fees Op. 9-10 (rejecting CVS’s argument that this case was predicated on Ramos’s charge of discrimination, but noting that, if the district court had agreed with the EEOC’s legal argument, it would have allowed the agency to amend the complaint to correct a legal misstatement); id. at 11-12 (noting the inherent logical contradiction in CVS’s claim that the EEOC’s legal position, though allegedly frivolous, nevertheless required over 823.5 attorney hours to refute before the beginning of discovery — a claim “one can hardly argue with a straight face”). These observations do not constitute any sort of factual review.

Finally, Pierce v. Underwood, 487 U.S. 552 (1988), which involved a fee award under the Equal Access to Justice Act (“EAJA”), is fully consistent with the panel decision here and does not support en banc review. First, this Court, like every other court to have considered the issue, has long held that “the [EAJA] does not apply to suits under Title VII.” EEOC v. Consol. Serv. Sys., 30 F.3d 58, 59 (7th Cir. 1994). Regardless, the panel’s approach under Title VII is consistent with the Pierce Court’s general observation that standards of appellate review are “provided by a long history of appellate practice.” 487 U.S. at 558; see also id. at 559-60 (noting that courts may also look to whether “one judicial actor is better positioned than another to decide the issue in question” (internal quotation marks omitted)); McLane Co. v. EEOC, 137 S. Ct. 1159, 1166-67 (2017). This is precisely why, as explained supra at 3, this Court reviews defensive fee awards under Title VII cases for an abuse of discretion, and the legal analysis underlying the awards de novo.

II. The Panel Opinion Correctly States the Law and Does Not Require Correction.

CVS’s other assertions of error are similarly misguided. CVS first objects to the panel’s summary of the EEOC’s litigation position, claiming that the panel “misstates the law” in a way “likely to cause mischief.” PFREB 2, 12. Reading the challenged statement in context, however, it is clear that the panel was simply characterizing the EEOC’s legal theory in bringing this suit:

But the EEOC took the position that a distinction between section 707’s subsections excused it from doing so in this matter. Section 707(a), unlike section 707(e), gives the EEOC a right to litigate without an underlying charge or unlawful employment practice, and (the EEOC thought) by extension without first conciliating. In drawing this novel distinction, the EEOC noted the difference between the language of section 707(a) and section 707(e): the former refers to a “pattern or practice of resistance,” while the latter speaks of a “charge of a pattern of practice of discrimination.” Id. § 2000e-6(a), (e). The Commission also distinguished between section 707(a)’s broad reach to “any person or group of persons” and section 707(e)’s limitation to employers. Id. In our opinion on the merits, we rejected the EEOC’s arguments and held that conciliation is necessary under both sections.

Fees Op. 3-4 (emphases added). Obviously, the passage is a description of the EEOC’s litigation theory. It poses no conflict with the prior panel’s merits opinion; indeed, it expressly notes the merits panel’s rejection of the EEOC’s position. Nothing about the paragraph requires the panel to revisit its decision, and it certainly does not require the application of this Court’s en banc resources.

CVS then claims this Court misstated the law when it directly quoted Mach Mining for the proposition that, if a court finds that the EEOC has not satisfied its presuit conciliation obligations, the “‘appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance’” (at least if the failure to conciliate is apparent when litigation commences). Fees Op. 10-11 (quoting Mach Min., 135 S. Ct. at 1656). The basis for CVS’s objection is unclear. This Court accurately quoted Mach Mining. The three circuit court cases CVS cites all pre-date Mach Mining and all involved more than a simple failure to conciliate; one, EEOC v. Agro Distribution, LLC, 555 F.3d 462 (5th Cir. 2009), addressed conciliation only in dicta. Nor does the opinion conflict with CRST Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642 (2016), which did not depend on a failure to conciliate in the first instance, but on the circuit court’s determination that after filing suit, the EEOC improperly used the discovery process to uncover additional violations. Id. at 1648-49. The panel specifically addressed how CRST might apply under factual circumstances different than those presented here. Fees Op. 11. CRST does not conflict with the panel’s assessment of governing law.

CVS’s real objection, and the linchpin of its failed argument in the fees litigation, is its continued insistence that this litigation was frivolous from the outset because the EEOC had an established duty to conciliate prior to bringing suit, even absent a charge of an unlawful employment practice. PFREB 15. The panel properly rejected this argument because no such duty was established prior to the merits decision. CVS has put forth no legitimate reason for this Court to revisit that decision en banc. This Court should deny the petition.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663‐4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this answer complies with the type-volume requirements set forth in Federal Rule of Appellate Procedure 35(b)(2). The answer contains 3,882 words, excluding the parts of the answer exempted by Federal Rule of Appellate Procedure 32, as determined by the Microsoft Word 2016 word processing program.

This petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and Seventh Cir. R. 32(b) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface in Palatino Linotype 12 point for both text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: September 4, 2018

[1] CVS twice notes that the panel deciding the fees issue was different from the one deciding the initial appeal. PFREB 1, 7. CVS’s implication is unclear: both panels speak with equal authority for this Court, and, in any case, Judge Rovner sat on both.

[2] A year after this Court decided Mars Steel, the Supreme Court addressed the same issue in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990), holding that an abuse-of-discretion standard applies to Rule 11 cases. However, the Court observed, “[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. at 405 (emphasis added). In other words, in both Rule 11 and Title VII cases, errors of law are reviewed de novo, even under an abuse-of-discretion standard. CVS’s claim of conflict here is baseless.