_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ No. 08-15403 _______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. MARICOPA COUNTY, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona (2:02-cv-01874-PGR) The Honorable Paul G. Rosenblatt, Presiding _______________________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. The Nature of This Case and the Course of Proceedings . . . . . . 2 B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 13 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 The District Court Abused Its Discretion In Awarding Attorney's Fees and Non- Taxable Expenses to Maricopa . . . . . . . . . . . . . . . . . . . . . . 26 A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . .26 B. The District Court Clearly Erred and Thus Abused Its Discretion in Finding that the EEOC Acted in Subjective Bad Faith . . . . . . . . . . . 27 C. The District Court Erred in Concluding that Section 1927 Provides a Proper Basis for the Awarding of Attorney's Fees Against the EEOC as a Party to this Litigation . . . . . . . . . . . . . . . . . . 37 D. At the Least, The District Court Abused Its Discretion in Requiring the EEOC to Pay Fees and Expenses Maricopa Incurred During Statutorily-Mandated Investigation and Conciliation Proceedings . . . . . 38 E. The ADEA Precludes the Award of Attorney's Fees As a Sanction for a Party's Bad Faith Conduct . . . . . . . . . . . . . . . . . . . . . 41 TABLE OF CONTENTS CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . .48 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . 49 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . 50 TABLE OF AUTHORITIES Cases Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 340 (1975) . . . . . . . . . . . . . . . 20, 27, 42, 43, 44 B.K.B. v. Maui Police Dep't, 276 F.3d 1091 (9th Cir. 2002) . . . . . . . . . . . . . . . . 26, 38 Bentler v. Bank of Am. Nat'l Trust & Sav. Ass'n, 959 F.2d 138 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . 44 Bolker v. Comm'r, 760 F.2d 1039 (9th Cir. 1985) . . . . . . . . . . . . . . . . . . 42 Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . 30 Cancellier v. Federated Dep't Stores, 672 F.2d 1312 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . 36 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) . . . . . . . . . . . . 27, 28, 37, 38-39, 43, 46 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . . . . . . . . . . . . 32, 43, 45 Clark v. Astrue, 529 F.3d 1211 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . 26 Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . 21 Criswell v. Western Airlines, Inc., 709 F.2d 544 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . 36 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005) . . . . . . . . . . . . . . . . 14, 19 TABLE OF AUTHORITIES Cases EEOC v. Bruno's Rest., 13 F.3d 285 (9th Cir. 1993) . . . . . . . . . . . . . . . . . .31-32 EEOC v. J.B. Hunt Transp., Inc., 2003 WL 22229425 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 30 EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . 36 EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . 46 EEOC v. Pape Lift, Inc., 115 F.3d 676 (9th Cir. 1997) . . . . . . . . . . . . . . . . . 13-14 EEOC v. Pierce Packing Co., 669 F.2d 605 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . 39 Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001) . . . . . . . . . . . . . . . . 27, 28 French v. Bath Iron Works Corp., 1999 WL 1995216 (D. Me. Nov. 29, 1999) . . . . . . . . . . . . . .46 Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . 37 Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 26 Holgate v. Baldwin, 425 F.3d 671 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . 27 Ingle v. Circuit City, 408 F.3d 592 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES Cases In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 431 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . 38 In re Matter of Beverly Hills Bancorp, 752 F.2d 1334 (9th Cir. 1984) . . . . . . . . . . . . . . . 37-38 Laser v. Ford Motor Co., 399 F.3d 1101 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . 46 Leon v. IDX System Corp., 464 F.3d 951 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . 28 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . 14, 19, 30 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . . . . . 35 Miller- Wohl Co., Inc. v. Comm'r of Labor & Indus., 694 F.2d 203 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . 42 Patelco Credit Union v. Sahni, 262 F.3d 897 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 26 Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . 28 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . 33 Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984) . . . . . . . . . . . . . . . . 44, 45 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . . . . . . . . . . . . . . . . . . . . . . 28 TABLE OF AUTHORITIES Cases Romain v. Shear, 799 F.2d 1416 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . 42 T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . 29 U.S. v. Blodgett, 709 F.2d 608 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . .37 U.S. v. U.S. Dist. Court for So. District Cal., 384 F.3d 1202 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . 42 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) . . . . . . . . . . . . . . . . . . . . . . . 33 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . 40 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . 2 28 U.S.C. § 1331 . . . . . . . . . . . .1 28 U.S.C. § 1337 . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . .1 28 U.S.C. § 1345 . . . . . . . . . . . .1 28 U.S.C. § 1927 . . . . . . . . . passim 29 U.S.C. § 216 . . . . . . . . . . . . 43 29 U.S.C. § 216(b) . . . . . . . . . 43-44 TABLE OF AUTHORITIES Statutes 29 U.S.C. § 621 . . . . . . . . . . . . . . . 1 29 U.S.C. § 626(b) . . . . . .1, 35, 39, 43, 44 29 U.S.C. § 626(d) . . . . . . . . . . . . 39 Rules Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . .2 Fed. R. App. P. 32(a)(5) . . . . . . . . . 49 Fed. R. App. P. 32(a)(6) . . . . . . . . . 49 Fed. R. App. P. 32(a)(7)(B) . . . . . . . . .49 Fed. R. App. P. 32(a)(7)(B)(iii) . . . . . . 49 Fed. R. App. P. 34(a)(1) . . . . . . . . . 1 Circuit Rule 28-2.6 . . . . . . . . . . . . 48 STATEMENT REGARDING ORAL ARGUMENT This appeal requires this Court to address the appropriate standard for awarding attorney's fees against a plaintiff who brings, but ultimately does not prevail in, an action under the Age Discrimination in Employment Act, as amended (the ADEA), 29 U.S.C. § 621 et seq. The resolution of this appeal will have a critical impact on the willingness and ability of plaintiffs to bring non- frivolous claims under the ADEA to vindicate statutory protections against age discrimination. Accordingly, Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission (the EEOC or Commission) believes that further exploration of this attorney's fee issue at oral argument is warranted and would assist this Court in properly resolving this appeal. See Fed. R. App. P. 34(a)(1). STATEMENT OF JURISDICTION The Commission filed this ADEA action under the authority granted in 29 U.S.C. § 626(b). (R.1; R.6; E.R. 446)<1> The district court had jurisdiction over the EEOC's suit under 28 U.S.C. §§ 1331, 1337, 1343, and 1345. On December 11, 2007, the district court entered an order awarding attorney's fees and non-taxable expenses to Defendant-Appellee Maricopa County (Maricopa). (R.124; E.R. 1-8) The EEOC filed a timely notice of appeal of this order on February 8, 2008. (R.125; E.R. 64-65) See Fed. R. App. P. 4(a)(1)(B). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court clearly erred in finding that the EEOC litigated this case in bad faith. 2. Whether the district court abused its discretion in awarding Maricopa attorney's fees and non-taxable expenses for time expended during the EEOC's statutorily-mandated administrative investigation and conciliation proceedings. 3. Whether a district court has authority to award attorney's fees to a prevailing ADEA defendant, even as a sanction for bad faith. STATEMENT OF THE CASE A. The Nature of This Case and the Course of Proceedings In its amended complaint in this matter filed October 17, 2002, the EEOC claimed that Maricopa violated the ADEA by refusing to rehire charging party Teresa Toth, because of Toth's age, to do a job she had previously performed for six years. (R.6; E.R. 446-50) The EEOC sought a permanent injunction prohibiting Maricopa from refusing to hire individuals because of their age, an order requiring Maricopa to "institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older and which eradicate the effects of its past and present unlawful employment practices," back pay and liquidated damages (and prejudgment interest), instatement of Toth (or front pay), costs, and "such further relief as the court deems necessary and proper in the public interest." (E.R. 448-49) On January 7, 2005, the district court granted Maricopa's motion for summary judgment and entered judgment against the EEOC. (R.103; R.104; E.R. 15-23) The EEOC appealed this grant of summary judgment. (R.111) On February 20, 2007, a divided panel of this Court affirmed. (E.R. 9-14) Maricopa then filed a motion for attorney's fees and related non-taxable expenses in the district court. (R.119; R.122) The EEOC opposed this motion. (R.120) On December 11, 2007, the district court granted Maricopa's motion in its entirety. (R.124; E.R. 1-8) This appeal followed. (R.125; E.R.64-65) B. Statement of Facts In June of 1993, when Toth was 43, she went to work at the Maricopa County Attorney's Office (MCAO) as a "Victim Witness Advocate" (VWA) (E.R. 297)<2> At MCAO, Victim Witness "Bureau Chiefs" supervised VWAs and a "Division Chief" supervised the Bureau Chiefs. (E.R. 424-25) For a time, Toth's Bureau Chief (and first-line supervisor) was Chris Lange. (E.R. 343, 358) Lange's Division Chief (and Toth's second-line supervisor) was Jan Jennings. (E.R. 342-43) Lange stated in her deposition that Toth was "a good advocate [and] conscientious." (E.R. 359) Jennings testified she believed Toth was "a great advocate." (E.R. 346) While at MCAO, Toth was promoted from VWA I to VWA II. (E.R. 219) Toth also consistently received positive performance evaluations. In 1993, on her probationary evaluation, Toth "exceed[ed] minimum standards." (E.R. 240) In 1994, she was rated "exceptional." (E.R. 251-52) In 1995, her overall evaluation, including her evaluation for "professionalism," specifically, was also "exceptional." (E.R. 253, 256) This review stated that Toth "performed each different duty in a very positive manner." (E.R. 253) Toth's 1996 performance evaluation noted that she was "very 'adaptable to change,'" "treats her coworkers and others with respect and courtesy," "values good working relationships in the office," and "accepts constructive criticism from her supervisor with a positive attitude." (E.R. 265) On Toth's 1997 review, Lange stated that Toth "presents a professional image in her appearance and demeanor," "is very much a team player and often assists the other members of the Bureau if they have any conflicts," and "accepts criticism well . . . ." (E.R. 275) On Toth's 1998 review - Toth's last MCAO evaluation - Lange rated Toth's performance, including her performance for "professionalism," as "exceptional." (E.R. 281, 286) Lange noted that Toth was a "vital component" of the division. (E.R. 281) Lange also stated that: Terri presents a professional image in both her appearance and demeanor . . . . Terri is very much a team player and readily assists her co-workers if they have a conflict . . . . Terri is a valuable resource for the newer members of the bureau, and willingly shares her knowledge and expertise with them. Terri has exercised considerable initiative during the evaluation period to promote the well-being of both the bureau and the division. [She] spearheaded the Victim Rights Rally, which . . . was a great morale booster, and served to increase the team spirit and cohesiveness [in the workplace]. (E.R. 286) Jennings signed Toth's 1998 performance evaluation, asserting no objections (E.R. 281, 324, 360), and later agreed that all of Toth's performance evaluations "represent[ed] a true and accurate assessment of [Toth's] ability" as a VWA. (E.R. 344) Toth never received a single negative performance appraisal and never was given any written reprimand of any kind. Her personnel file does not reflect any written complaints regarding her attitude or personality. (E.R. 346, 350, 369) Lange testified that Toth "was professional in her dealings with victims and with other professionals that she had to come in contact with." (E.R. 360) Lange also testified that Toth was not disruptive, not a divisive force within the office, not obstinate, and not insubordinate. (E.R. 363) In June of 1999, after working at MCAO for six years, Toth left her VWA job and accepted a position at the office of the Maricopa County Clerk of Court. (E.R. 425-26, 297) Before long, Toth began to miss her work and friends at MCAO and decided she wanted to return to the VWA job she had enjoyed so much. (E.R. 326-27) MCAO advertised openings for VWA I positions around February 28, 2000. (E.R. 207) The vacancy announcement stated that the "position qualifications" included a Bachelor's degree in Criminal Justice, one of the social sciences, or a related field, and two years experience in criminal justice, social work, crisis intervention, or a related field. (E.R. 207) The vacancy announcement also indicated that "[p]reference will be given to applicants who have background/experience in a criminal justice environment providing crime victim advocacy and assistance and to those who possess bilingual (English/Spanish) skills." (E.R. 207) Toth applied for this vacancy. (E.R. 232-34) There were three available positions. (E.R. 213) Toth made the "certification list" and was called for an interview. (E.R. 370) The "certification list" included applicants who "met [the] stated position qualifications" and "who possessed the experience that was best suited for people in that job." (E.R. 366) The first round of interviews took place on March 13, 2000. (E.R. 329) Toth was called back for a second interview. (E.R. 329) The interviewers for Toth's second round included three current Bureau Chiefs - Sylvia Conchos, Sally Anderson, and Tracy Bieghler. (E.R. 214, 224) The fourth interviewer on the second round panel was Jamie Mabery, who had taken over from Jennings as the VWA Division Chief. (E.R. 214, 224, 425) While the entire panel gave recommendations, Mabery was the selecting official and sole decision maker. (E.R. 214, 319) The record reveals a dispute over Toth's performance in the second interview. Mabery testified that it was "very poor," even "horrible." (E.R. 336, 437) Mabery said she was "surprised at her appearance" because Toth allegedly wore jeans to the interview. (E.R. 336) Mabery also noted that Toth "never had eye contact with me" and "sat sideways in [her] chair." (E.R. 336) Mabery testified that after she interviewed Toth, she "form[ed] an impression that [Toth] had an attitude problem" - that Toth had a "negative," "unprofessional" attitude. (E.R. 338) Mabery said "[t]here didn't appear to be any enthusiasm about the job and it was just real unprofessional." (E.R. 338) Although Mabery took contemporaneous notes of the interview, she did she not write down any negative comments about Toth's interview performance. Mabery's notes contain no reference to Toth's dress, eye contact, seated posture, answers to interview questions, or attitude. (E.R. 238-39) Moreover, none of the other three interviewers shared Mabery's impression of Toth's interview performance. Conchos does not recall there being any question about the way Toth was dressed during the interview. (E.R. 318) Toth herself testified that she wore "a green tailored suede shirt with black denim dress pants" to the interview. (E.R. 434) Anderson described Toth's "attitude . . . in the interview process" as "pleasant." (E.R. 306) Anderson also stated that Toth "answered all questions appropriately." (E.R. 304) Conchos likewise thought that Toth "interviewed well." (E.R. 317) She told Lange soon after the interview that the interview "had gone well" and that Toth "kn[ew] all the responses" and "answered all her questions appropriately." (E.R. 321) Conchos also testified that Toth appeared "genuine," "sincere," and "humble" during the interview. (E.R. 318, 320) Bieghler likewise concluded that Toth "answered the questions correctly," "knew the information," and "did fine" in her interview. (E.R. 352) Bieghler believed that Toth knew the job, had been a good advocate before, and would be a good advocate again. (E.R. 353) The other interviewers all recall that right after the interview, Mabery made a negative comment about Toth. Conchos testified that: I don't remember what [Mabery] said, but she said something like "She's a tired government employee" or "She's an old government employee" or "she looks like it." Then I said, you know, "It really sounds to me like she said she was a tired government employee." (E.R. 321) In her deposition, Conchos was specifically asked whether she "ever heard anyone refer to . . . Toth as an old, tired government employee." (E.R. 320) Conchos replied "I guess it's a yes, sort of." (E.R. 320) Conchos was also asked if she ever told Lange that Mabery "may have said, 'old, tired government employee.'" (E.R. 321) Conchos replied "Yes." (E.R. 321) She explained that Mabery definitely referred to Toth as "tired." (E.R. 320) She also said she thought Mabery also said that Toth "didn't seem enthusiastic enough." (E.R. 320) Bieghler remembers Mabery saying "I don't want to go down that road again" and that Toth was "a burned-out government employee." (E.R. 353) Bieghler testified "I don't know that [Mabery] said 'old' or 'tired' . . . . I just remember - burned- out government employee . . . ." (E.R. 354) Anderson was later asked by an EEOC investigator whether Mabery had said that Toth was "old." Anderson said she had to think about whether Mabery had said that. (E.R. 307) Anderson testified that after thinking about it, she called the EEOC's investigator back "and reported that, in fact, the statement [the EEOC investigator] had read to me [indicating that Mabery called Toth "old"] was accurate, and I truly believe that." (E.R. 307) Contemporaneous notes prepared by the EEOC's investigator corroborate that Anderson did indeed tell the EEOC's investigator that Mabery had called Toth "an old tired government employee." (E.R. 206A) However, when the EEOC's investigator asked Anderson if she would sign a statement to this effect Anderson told her "[n]o, because obviously you've got somebody else that's saying this. Bother them. Leave me alone." (E.R. 313) Sometime later, MCAO sent an investigator to Anderson's home. According to Anderson, this investigator "educated" Anderson about the importance to this case of Mabery's remark and, specifically, whether Mabery used the word "old." (E.R. 307) After this visit, Anderson "could no longer be certain the old element was present" in Mabery's remark. (E.R. 307) However, Anderson did not categorically recant her earlier position that Mabery did in fact call Toth "old." As of the time of her deposition, Anderson simply would no longer say for certain that Mabery specifically used the word "old." (E.R. 307, 313) Anderson also indicated that Mabery definitely said that Toth was "a tired, worn-out government employee." (E.R. 305) Anderson also testified that she recalled Mabery referring to Toth as a "tired, burned-out government employee." (E.R. 313) Conchos testified that, after hearing Mabery's comment, Conchos concluded that Mabery would not be rehiring Toth. (E.R. 320) Bieghler testified that after Mabery called Toth a "burned-out government employee," it appeared that Mabery "had her mind made up" not to bring Toth back to MCAO. (E.R. 353) On or around June 5, 2000, MCAO posted another vacancy announcement for additional VWA I positions with identical position qualifications and preferences as those contained in the February 28, 2000 announcement. (E.R. 208) Toth again applied to return to MCAO as a VWA I, and again made the certification list. (E.R. 235-37, 367, 371) Bieghler was involved in screening applicants, and told Mabery "I think we should hire her. I think we should let her interview. She's got the qualifications that meet the minimum, so we should give her an interview." (E.R. 354) Mabery refused even to let Toth interview again. Mabery testified that she did not "want to go down that road again." (E.R. 338) Bieghler similarly recalls Mabery saying "'I don't want to go down that road. I don't want to go there,' kind of thing again, the same comments from before." (E.R. 354-55) Toth was not interviewed for the second round of VWA openings. (E.R. 224) Between the February 2000 and June 2000 postings, MCAO hired thirteen new VWAs. (E.R. 216-17) Of these, only one was over forty. The ages of the others hired were 35, 33, 32 31, 30, 29, 28, 28, 27, 25, 25, 25. (E.R. 373) The average age of those hired as new VWAs in 2000 was roughly 30. (E.R. 373) Indeed, except for the one hire over forty, all of the successful applicants were at least fifteen years younger than Toth. (E.R. 373) None of the successful candidates had ever worked for MCAO before, much less for six years, as a VWA. (E.R. 36-37) Of the three hired after the February 2000 announcement, only two were bilingual. (E.R. 215, 230, 335) Of the other ten hired after the June 2000 announcement, only four were bilingual. (E.R. 215-17, 335) On October 30, 2000, Toth filed a charge against MCAO with the EEOC, alleging age discrimination. (E.R. 369-70) During the EEOC's investigation of this charge, MCAO's "position statement" asserted that its reasons for refusing to rehire Toth included her "poor performance during her interview, and input from her former supervisor." (E.R. 210, 215-16) According to the position statement, before the interviews even began, Jennings told Mabery "that Toth exhibited negative behaviors/interactions before she left" and "her behavior appeared to have an adverse impact on the Division." (E.R. 213-14) The position statement also indicated that Toth was "not bilingual." (E.R. 217) It contended that "according to the terms of the [vacancy announcement], [Toth] is clearly less qualified than six of those hired . . . all of whom have English/Spanish bilingual skills." (E.R. 218) In addition, the position statement noted, the other seven individuals hired "had superior education experience, including degrees in the areas specified by the [vacancy announcement], plus pertinent work experience." (E.R. 222) In short, "[a]ll of the candidates who were hired performed better than [Toth] during their interview, . . . none of them had a prior work history with MCAO where they exhibited negative behaviors[,]" and "[e]ach was arguably better qualified than Toth either by virtue of their bilingual skills and/or because of their superior combination of education and/or experience." (E.R. 220, 224) The position statement explained the "primary reason" Toth was not hired "was her very poor interview, during which she made a bad impression" on Mabery. (E.R. 225) C. Proceedings Below Maricopa moved for summary judgment. (R.64; R.65; R.72; R.73; R.92) On January 7, 2005, the district court granted Maricopa's motion. (R.103; E.R. 16- 23) The Commission appealed. (R.111) On appeal, the EEOC argued, as it had below in opposing Maricopa's motion, that it had proffered direct and circumstantial evidence of age discrimination sufficient to withstand summary judgment. (R.83; R.84; E.R. 107- 206, 374-422) The Commission explained that under this Court's case law, discriminatory comments do not have to be as blatant as a decision maker saying "something to the effect of 'I'm firing you because you are too old'" to constitute direct evidence. (E.R. 119, 177-83, 408) See EEOC v. Pape Lift, Inc., 115 F.3d 676, 684 (9th Cir. 1997). Thus, this Court found there was direct evidence of age bias where a witness testified that a manager said that the plaintiff was "old and burnt out [and] . . . was hurting the store image . . . because [he] did not fit the Pape mold of a young, aggressive type manager like they had in most other management position[s]." Id. at 679 (emphasis added). Here, the Commission contended, Conchos and Anderson testified that it was possible that Mabery, the decision maker in this case, called Toth "old" (and Conchos, Bieghler, and Anderson said Mabery definitely referred to her as "burned-out," "worn-out" and/or "tired") immediately after interviewing her. (E.R. 116-19, 181-83, 408-11) The EEOC also pointed out that Conchos and Bieghler concluded from Mabery's comments that Mabery had decided not to rehire Toth. (E.R. 181, 408-11) The EEOC argued that this ageist remark made by a decision maker in the process of deciding not to rehire Toth met this Court's definition of direct evidence and should have precluded summary judgment. (E.R. 118, 178, 181-82, 408-09) See, e.g., Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (emphasizing that "in this circuit we have repeatedly held that a single discriminatory comment by a [charging party's] supervisor or decisionmaker is sufficient to preclude summary judgment for the employer" (emphasis added)). The Commission also argued that it had presented sufficient circumstantial evidence under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive summary judgment. (E.R. 123-141, 183-202, 411-420) Most critically, the EEOC contended that it had proffered enough evidence to enable a reasonable jury to find that Maricopa's various and shifting explanations for refusing to rehire Toth (including Toth's "negative" attitude, her "horrible" interview performance, and/or her lack of bilingual skills) were a pretext for age discrimination. (E.R. 136-37, 193-202, 413-20) The EEOC pointed to circumstantial evidence which it alleged cast doubt on Maricopa's allegation that Toth had a negative attitude when she worked at MCAO before. (E.R. 195-98, 415-16) The Commission noted that Toth never received a single oral or written reprimand of any kind regarding her attitude, and that Toth's contemporaneous performance evaluations strongly suggested she had a very positive attitude.<3> (E.R. 195-98, 415-16, 420) The EEOC argued that while Mabery did not sign any of these reviews, Jennings did sign Toth's very favorable (and final MCAO) 1998 evaluation. (E.R. 197-98, 415) And, moreover, Jennings was the one who Maricopa alleged told Mabery that Toth had a bad attitude and recommended that Mabery refuse to rehire Toth. (E.R. 197-98, 417) The EEOC claimed that a reasonable jury could believe that if Jennings really thought Toth's attitude was so poor, she, as Division Chief, would not have signed Toth's very favorable 1998 review, and instead would have documented Toth's performance difficulties or insisted that she be disciplined. (E.R. 197-98, 415-16) The EEOC also proffered evidence to refute the notion that Toth's interview was "horrible." (E.R. 198-201, 414-15) The Commission noted that Mabery's interview notes did not contain a single reference to Toth's dress, eye contact, seated posture, answers to interview questions, or attitude, and that all of the other interviewers thought Toth's interview went well.<4> (E.R. 198-99, 414-16) The EEOC posited that the fact the other interviewers held an opposite view from Mabery called into question the veracity of Maricopa's assertion that Mabery in fact believed Toth interviewed poorly. (E.R. 199-200, 414-16) Finally, the EEOC noted that it had proffered evidence suggesting that the other rationale Maricopa gave for refusing to rehire Toth, namely that she was not bilingual, was also pretextual. (E.R. 201-02) The EEOC pointed out that most of those ultimately chosen for the open VWA positions - seven out of the thirteen selectees - were not bilingual, thus raising doubt as to whether this criterion was actually dispositive. (E.R. 165, 201, 412) In February of 2007, this Court affirmed in a split, unpublished memorandum disposition. (E.R. 9-14) The panel majority stated that the "EEOC rests its case entirely on the depositions of Conchos and Anderson" and concluded that this testimony did "not establish that Mabery in fact uttered the word 'old.'" (E.R. 10) Further, "even if the word had been uttered, the context makes clear that the word was not used to refer to chronological age, but to Toth's status as a former employee." (E.R. 10) "Burn-out, not age, was the unmistakable connotation." (E.R. 10) Thus, the majority ruled, "there is insufficient direct evidence of discriminatory intent." (E.R. 10) The panel majority also ruled that "[t]here is no evidence in the record suggesting that ageism motivated Mabery's hiring decisions." (E.R. 11) According to the majority, "[t]he fact that the average age of the [selectees] was 30 and only one was over 40 has no significance because the record contains no data about the age distribution of the applicant pool." (E.R. 11) The majority also concluded that there was "no evidence" that Maricopa's explanation was unworthy of credence. (E.R. 11) First, "the EEOC cannot rely on Toth's prior performance evaluations because there is no evidence that Mabery ever reviewed them." (E.R. 11) Second, "there is no dispute manufactured from the different assessments of Toth's performance at the interview" because "Mabery viewed Toth's appearance and responses as unprofessional and the other interviewers never disputed any of the facts underlying Mabery's evaluation." (E.R. 11-12) Third, "the EEOC cannot demonstrate pretext based on the qualifications of the applicants who were hired" since "Toth was less qualified than the Spanish speakers who also had degrees in the relevant field." (E.R. 12) Thus, "while Toth is arguably as qualified as the non-Spanish speakers based on her experience . . . nothing about the selected applicants suggests that the new job criteria was applied in a discriminatory manner, or operated as a cover for animus." (E.R. 12) Judge Reinhardt dissented. (E.R. 13-14) Judge Reinhardt wrote "I disagree that [the EEOC] failed to raise a genuine issue of material fact regarding whether [Maricopa's] proffered reasons for deciding not to hire [Toth] were pretextual." (E.R. 13) The Commission "offered evidence that, unlike Mabery, all three [other interviewers] perceived the interview positively" and "[a]lthough Mabery is entitled to her subjective perception of the interview, the evidence [the EEOC] produced raises an issue as to the sincerity and credibility of Mabery's assertion" about Toth's interview performance. (E.R. 13) In addition, Judge Reinhardt pointed out, the EEOC "offered evidence of the consistently high performance reviews she received during her tenure as a VWA, which complimented her, among other things, on her 'professional image.'" (E.R. 13) Thus, "[e]ven if Mabery did not review Toth's performance evaluations, the evaluations raise a genuine issue of fact as to the credibility of the assertions, none of which was contemporaneously documented, that Toth had previously exhibited a negative attitude." (E.R. 13-14) Accordingly, Judge Reinhardt found, "Toth has produced sufficient evidence to raise a genuine issue of material fact as to whether [Maricopa's] proffered reasons for deciding not to hire her were pretextual." (E.R. 14 (citing Dominguez-Curry, 424 F.3d at 1037)) Finally, Judge Reinhardt concluded, "I also disagree that the direct evidence that Toth introduced regarding Mabery's comment at the time she decided not to hire her was insufficient both to establish a prima facie case and to rebut [Maricopa's] proffered reasons under the McDonnell Douglas framework." (E.R. 14) On December 11, 2007, the district court entered an order awarding Maricopa County $88,769.00 in attorney's fees, $28,287.94 in non-taxable expenses, and $9,258.00 in costs associated with the filing of Maricopa's motion for attorney's fees and updating the motion after the appeal. (E.R. 1-8) This represents the entire amount of fees and costs Maricopa requested. The district court noted that Maricopa "argues that it is entitled to fees under 28 U.S.C. § 1927 [(Section 1927)], and the Court's inherent powers, because the EEOC pursued this case in bad faith and needlessly and vexatiously multiplied the litigation." (E.R. 2) The district court ruled that "[i]t is apparent that the EEOC's conduct is indicative of bad faith." (E.R. 2) The court stated that it is allowed to award attorney's fees to a prevailing defendant in an ADEA action under the "bad faith exception to the American Rule." (E.R. 3 (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 340, 358-59 (1975))). According to the court, a plaintiff who litigated in bad faith "may be sanctioned since both [Section] 1927 and the court's inherent powers were designed to sanction specific abuses which the ADEA does not address." (E.R. 3) The district court noted that "sanctions may be awarded under [Section] 1927 for recklessly pursuing a frivolous claim, or for pursuing a meritorious claim for the purpose of harassment." (E.R. 3) The court pointed out that Section 1927 findings "must be supported by a finding of subjective bad faith; however, knowing and reckless conduct meets this standard." (E.R. 3) Here: [T]he Defendant maintains that this is not the case where the Plaintiff innocently pursued frivolous claims - instead, the Plaintiff knowingly or recklessly pursued completely baseless litigation. To support this assertion, the Defendant argues that the Plaintiff knew from the outset that it had no admissible ageist statement and conducted a one-sided sham investigation, designed to reach a finding against the County. For example, the Defendant contends that the Plaintiff stated at the Case Management Conference that it had a star witness who would supposedly establish the existence of an ageist statement. However, this star witness later turned out to be Anderson who had refused to provide an affidavit and who swore under oath that she could not say such a statement had been made. (E.R. 3) On these facts, the Court found "Defendant's arguments sufficient to establish a finding of subjective bad faith." (E.R. 3) "First and foremost," the court ruled: [B]oth this Court and the Court of Appeals found that the EEOC could not prove that Mabery made any statement containing the word "old." No one ever acknowledged hearing any alleged age-related comments, despite the EEOC['s] continued insistence that it could prove such a statement was made. The EEOC's contention that the terms "tired" or "burned out" were sufficient to justify its pursuit of the age discrimination claim against the County is against the legal standard in this circuit. It has been well established that statements which have no clearly discriminatory meaning have no evidentiary value. See Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. [2000]). It is clear to the Court that the EEOC had no evidence of discrimination when it filed the case against Defendant Maricopa County. (E.R. 3-4) The court next found "frivolous" the EEOC's argument that the fact that non-decision makers had a different perception of Toth's interview was probative of pretext. (E.R. 4) The court said "there was no dispute over the objective facts upon which Mabery based her opinion and resulting decision." (E.R. 4) The court noted that the EEOC "seemed to ignore, or disregard, the standard governing pretext analysis" that "doubt is only cast on the decision-maker's motives if there is proof that she lied about the reasons for her decision" (i.e., not that he or she may have made the wrong decision). (E.R. 4) The court similarly chastised the EEOC for relying on Toth's prior positive performance evaluations, ruling that the EEOC "should have been aware that the performance evaluations are proof of nothing" (since Mabery did not review them and there is no evidence that she prepared them). (E.R. 5) The court next took the EEOC to task for "falsely contend[ing] that it provided evidence that Toth was more qualified than those offered the position." (E.R. 5) The court said that "[s]uch an argument is indeed recklessly advanced" since "the EEOC completely failed to rebut evidence that Toth was less qualified tha[n] the Spanish speakers who also had degrees in the relevant field." (E.R. 5) The district court then faulted the EEOC for pursuing its claim when it "had no basis upon which to obtain any remedy as the EEOC knew that there were no compensable damages." (E.R. 5) The court noted that Toth was applying for a job that paid less than what she had been making in her current job. (E.R. 5) Further, the court found, while the EEOC "argues that it could obtain injunctive relief, the case law suggests otherwise." (E.R. 5) "Clearly," the court said, "the EEOC had no evidence of discriminatory practices and could not make a showing that a danger of recurrent violations existed here." (E.R. 6) The court also criticized the Commission for citing out-of-circuit precedent on this issue, noting "the EEOC cited inapplicable law in support of a frivolous position." (E.R. 6) Finally, the district court rejected alternative arguments the EEOC made objecting to the hourly rate charged by Maricopa's counsel and to the amount of fees requested. (E.R. 6) Specifically, the Commission had objected to the award of fees and costs incurred during the period when the EEOC was investigating and attempting to conciliate Toth's charge. The EEOC pointed out that "a significant portion of [Maricopa's] requested fees accrued prior to commencement of litigation." (R.120 at 17)<5> The EEOC contended that "any fee award should not include fees prior to the institution of this lawsuit" since the "EEOC's attorneys do not conduct administrative investigations [and thus] cannot be said to have 'vexatiously multiplied' the litigation during this time period." (R.120 at 13-14, 17) In its fees order, the district court appeared to agree, ruling that "the EEOC's objection regarding pre-litigation tasks is in accordance with applicable law." (E.R. 7) Nevertheless, the court ordered the EEOC to pay the entire amount of fees and expenses Maricopa requested (over $126,000). (E.R. 7) SUMMARY OF ARGUMENT The district court abused its discretion in finding that the EEOC acted in subjective bad faith and in sanctioning the EEOC for this alleged bad faith by requiring the Commission to pay all of Maricopa's attorney's fees and expenses. In sanctioning the Commission, the district court relied on its inherent powers and 28 U.S.C. § 1927. However, neither source of authority justifies an award of fees on the facts of this case. Further, the Supreme Court's and this Court's case law can be interpreted as precluding any award of attorney's fees to a prevailing ADEA defendant - even as a sanction for bad faith. For a court to use its inherent powers to award attorney's fees as a sanction, it must find that the party to be sanctioned acted in bad faith. Nothing in the record justifies a finding that the EEOC litigated this case in bad faith. The district court concluded that bad faith was evident here because the Commission knowingly or recklessly pursued "completely baseless litigation." However, the mere fact that a party does not prevail on the merits does not establish that the case was frivolous, let alone that the party knew or should have known from the outset that it was frivolous. The district court did not cite to anything in the record showing that the EEOC knew its case was frivolous and prosecuted it anyway. Moreover, the fact that Judge Reinhardt dissented on the merits strongly suggests that there was enough evidence to support the reasonable view that this case was not baseless, and therefore that the Commission was not reckless in pursuing it through summary judgment. The district court also relied on Section 1927 as a basis for its award of attorney's fees and expenses. Yet by its own terms, Section 1927 permits a court to compel only a particular attorney - not a party - to pay an opponent's fees and costs. Here, the district court sanctioned the Commission as a party. Section 1927 does not permit such an order, and nothing in the record remotely suggests that any individual EEOC attorney acted in any way that would run afoul of Section 1927. Further, even if Section 1927 could support a sanction against a party (rather than a party's attorney), it cannot be invoked absent a finding of bad faith. Such a finding on this record is clearly erroneous. At the least, if this Court is inclined to affirm the district court's award of attorney's fees and expenses, it should reduce the award by the amount Maricopa has requested for pre-litigation activities. The EEOC is required under the ADEA to investigate alleged age discrimination and to conciliate related disputes before filing suit. This Court has ruled that the Commission's conduct of these administrative activities is not a proper subject of judicial oversight and cannot give rise to a private cause of action. While the district court appeared to recognize that it would not be appropriate to penalize the Commission for carrying out these statutorily-mandated administrative activities, it nonetheless granted Maricopa's request for fees and expenses in full, including amounts Maricopa sought for these same pre-litigation activities. This Court should rectify this error. Finally, the Supreme Court and this Court have indicated that the ADEA categorically precludes any award of attorney's fees to a prevailing defendant. This arguably prohibits a court from awarding attorney's fees, specifically, as a sanction even for bad faith conduct. Even though a court at all times reserves the right to discipline a litigant to protect the decorum and integrity of judicial proceedings, it may not use attorney's fees as the appropriate sanction against a plaintiff in an ADEA action. The district court's order here thus is reversible error. ARGUMENT The District Court Abused Its Discretion In Awarding Attorney's Fees and Non-Taxable Expenses to Maricopa. If this Court affirms the district court's order, it would be the first time ever that this Court has compelled a plaintiff to pay a prevailing defendant's fees and expenses in an ADEA action. None of the grounds relied on by the district court, and nothing in the record in this case, can justify this extraordinary result. Accordingly, this Court should reverse. A. Standard of Review This Court reviews a district court's grant of attorney's fees as a sanction for abuse of discretion. See B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1106 (9th Cir. 2002). A district court abuses its discretion in imposing sanctions when it bases its decision on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Clark v. Astrue, 529 F.3d 1211, 1214 (9th Cir. 2008); see also Patelco Credit Union v. Sahni, 262 F.3d 897, 912-913 (9th Cir. 2001). A factual finding of "bad faith" is reviewed for clear error. Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001). B. The District Court Clearly Erred and Thus Abused Its Discretion in Finding that the EEOC Acted in Bad Faith. A court, resorting to its inherent powers, generally may order the payment of attorney's fees to sanction a party that has "'acted in bad faith, vexatiously, wantonly, or for oppressive reasons" or has shown a "willful disobedience of a court's orders." Chambers v. NASCO, Inc., 501 U.S. 32, 45-47 (1991) (quoting Alyeska, 421 U.S. at 258-59). According to the Supreme Court: [I]f a court finds that fraud has been practiced upon it, or that the very temple of justice has been defiled, it may assess attorney's fees against the responsible party . . . as it may when a party shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. . . . Chambers, 501 U.S. at 46 (internal footnotes, quotation marks, and citations omitted). This Court has similarly found that "[i]nvocation of a federal court's inherent power to sanction requires a finding of bad faith." Holgate v. Baldwin, 425 F.3d 671, 680 (9th Cir. 2005) (internal quotation marks omitted). In Fink v. Gomez, 239 F.3d 989 (9th Cir. 2001), this Court explained that, for these purposes, bad faith exists "where a litigant is substantially motivated by vindictiveness, obduracy, or mala fides . . . ." Id. at 992 (internal quotations marks and citations omitted). This Court similarly stated that sanctions for bad faith "are available for a variety of types of willful actions, including recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose." Id. at 994. Thus, "reckless misstatements of law and fact, when coupled with an improper purpose, such as an attempt to influence or manipulate proceedings in one case in order to gain tactical advantage in another case, are sanctionable under a court's inherent power." Id. The use of a court's inherent powers to award attorney's fees is an extraordinary sanction that should be imposed only in the rarest and most egregious of cases. See Chambers, 501 U.S. at 44, 50 ("Because of their very potency, inherent powers must be exercised with restraint and discretion . . . and caution" (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980))); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 961, (9th Cir. 2006) ("The bad faith requirement ensures that the district court's exercise of its broad power is properly restrained, and 'preserves a balance between protecting the court's integrity and encouraging meritorious arguments.'" (quoting Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997))). None of the extremely serious circumstances necessitating resort to the court's inherent powers is present in this case. There is nothing in the record to support the conclusion that the Commission recklessly (much less knowingly) filed or pursued a frivolous case here, or filed or pursued this non-frivolous case for an improper purpose such as to harass Maricopa or to manipulate proceedings in this case to gain tactical advantage in another case. In no instance has the EEOC shown willful disobedience to any court order. It has not acted vexatiously, oppressively, or wantonly. Its conduct in no way exemplified vindictiveness, obduracy, or mala fides. There is no allegation, let alone evidence or a finding, that the Commission perpetrated a fraud upon the court. And nothing during the course of these proceedings remotely suggests that the EEOC, which brought this lawsuit to vindicate the public interest, has "defiled" the very temple of justice itself. The district court abused its discretion in finding otherwise. The district court faulted the EEOC for "knowingly or recklessly pursu[ing] completely baseless litigation." (E.R. 3) Of course, the mere fact that a claim ultimately is found not to be meritorious does not mean that it was ever frivolous, much less that a litigant must have known that it was. Cf. Ingle v. Circuit City, 408 F.3d 592, 596 (9th Cir. 2005) (declining to impose sanctions under Section 1927 in an appeal deemed "wholly without merit" since there was no evidence that it was "motivated by bad faith" (citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 638 (9th Cir. 1987))). Here, there is nothing in the record to suggest that the Commission knew its case was frivolous and prosecuted it anyway. To the contrary, the EEOC has consistently maintained that this case rested on firm legal footing. Further, the EEOC hardly was reckless in adhering to the view that this case had sufficient merit. Judge Reinhardt, albeit in dissent, specifically found that the EEOC "produced sufficient evidence to raise a genuine issue of material fact as to whether [Maricopa's] proffered reasons for deciding not to hire [Toth] were pretextual." (E.R. 14) Judge Reinhardt also concluded that "the direct evidence that [the EEOC] introduced regarding Mabery's comment at the time she decided not to hire her was []sufficient both to establish a prima facie case and to rebut [MCAO's] proffered reasons under the McDonnell Douglas framework." (E.R. 14) As Judge Reinhardt's dissent demonstrates, there was ample evidence to support the reasonable conclusion that this case was not "completely baseless" and thus that the Commission was not reckless in pursuing it. See, e.g., Busby v. City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991) (dissent on merits shows court had to consider case "very carefully" precluding finding of frivolousness and any award of fees to prevailing Title VII defendant); EEOC v. J.B. Hunt Transp., Inc., 2003 WL 22229425, at **2 (2d Cir. 2003) (reasoning that a dissenting opinion "should all but preclude a finding that the EEOC's [ADA] claim was unreasonable or frivolous" and reversing an award of attorney's fees against the EEOC (citing Busby)). The district court never acknowledged Judge Reinhardt's dissent or factored it into its finding of bad faith here. The district court chastised the EEOC for alleging it had a "star" witness who would testify that Mabery uttered an ageist statement even though this witness, Anderson, actually swore under oath that she could not say such a statement had been made. The district court stated that "[n]o one ever acknowledged hearing any alleged age-related comments . . . ." (E.R. 4 (emphasis added)) This is a clearly erroneous factual finding. Anderson did tell the EEOC's investigator that Mabery called Toth "old." Later, after Maricopa's investigator visited Anderson and (as Anderson put it) "educated" her about the importance of the word "old" to the merits of this case, Anderson said she could no longer be sure that that is the precise word Mabery used. Critically, however, Anderson never recanted her earlier statement. Given this evidence, the EEOC did not litigate in bad faith by arguing that a reasonable jury could have concluded that Anderson did at one point believe that Mabery uttered the word "old" (and that Mabery did in fact do so). At the least, it was not reckless for the EEOC to contend that a fact finder should have been allowed to decide whether to credit or reject Anderson's first description of the critical remark. Cf. EEOC v. Bruno's Rest., 13 F.3d 285, 290 (9th Cir. 1993) ("Even if the EEOC had foreseen witness credibility problems, an 'airtight' claim is not a prerequisite to bringing suit" and "'[e]ven when the law or facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.'" (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978))). For the same reason, the district court erred in concluding the EEOC had argued in bad faith that it had direct evidence of discrimination. It appears Judge Reinhardt was of the view that decision maker Mabery's ageist remark, uttered right after interviewing Toth, could reasonably have been found to satisfy the Court's definition of direct evidence. (E.R. 14) Given this portion of the dissent, and the abundance of this Court's case law the EEOC marshaled in support of its argument that Mabery's statement was direct evidence of age discrimination (E.R. 177-82, 407-09), this position was certainly a legally defensible, non-frivolous one. The fact that a panel majority of this court ultimately disagreed with this view does not ipso facto render the argument frivolous or establish that it was reckless for the EEOC to advance it. The district court also abused its discretion in concluding "there was no dispute over the objective facts upon which Mabery based her opinion and resulting decision." (E.R. 4) This, too, represents a clearly erroneous reading of the record. On point after point, there was a material dispute over the veracity of Mabery's assertions and Maricopa's proffered rationale for refusing to rehire Toth. Most notably, the district court concluded that the EEOC advanced a frivolous argument by asserting that the differing perceptions as to Toth's interview performance suggested pretext. (E.R. 4) However, Judge Reinhardt concluded that evidence that all other individuals present at Toth's interview "perceived the interview positively" at least called Mabery's contrary contentions into question. (E.R. 13) This certainly makes sense. Indeed, there may have been no better way for the EEOC to attempt to prove that Mabery's alleged perceptions of the interview were not credible than to show that every other person present at the interview disagreed with Mabery's characterization of it. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (recognizing that "'[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes'" in ADEA disparate treatment cases like this one (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983))). On these facts, it was not reckless for the Commission to argue that a reasonable jury could disbelieve that Mabery really thought Toth had interviewed poorly. The fact that Maricopa in its position statement had argued that the interview was the "primary" reason why it did not rehire Toth (E.R. 225) renders the evidence casting doubt on Mabery's perceptions all the more probative on the issue of pretext. The district court abused its discretion in concluding instead that this same evidence illustrated that the EEOC acted in bad faith. The district court also ruled that the EEOC could not point to Toth's prior positive performance evaluations as evidence of pretext. (E.R. 5) This, too, was an abuse of discretion. These prior evaluations were signed by Jennings - the very official who allegedly told Mabery not to hire Toth. A reasonable jury could conclude that Jennings could not possibly have believed Toth was an unsuitable candidate for rehire, since Jennings had unequivocally endorsed glowing evaluations of Toth's prior work performance. As Judge Reinhardt pointed out, "[e]ven if Mabery did not review Toth's performance evaluations, [they] raise a genuine issue of fact as to the credibility of the assertions . . . that Toth had previously exhibited a negative attitude." (E.R. 13-14) Again, the fact that a panel majority of this Court ultimately concluded otherwise does not establish that the EEOC litigated recklessly by having urged an alternative, sensible view of the evidence. The district court criticized the EEOC for recklessly arguing that Toth was more qualified than the ultimate selectees who spoke Spanish. (E.R. 5) However, the vacancy announcements indicated that preference would be given to applicants "who possess bilingual (English/Spanish) skills" and to those "who have background/experience in a criminal justice environment providing crime victim advocacy and assistance." (E.R. 207-08) Accordingly, it was not reckless for the EEOC to contend that a reasonable jury could conclude that Toth's six years of experience doing the exact job at issue rendered her more qualified than all other selectees (none of whom had such precisely relevant experience). Moreover, only six of the thirteen selectees were bilingual. Maricopa thus could have rehired Toth for any one of the seven other slots ultimately filled by non-Spanish-speakers. Given these facts, it was not reckless for the EEOC to argue that the fact that not all selectees spoke Spanish suggested Toth was better qualified than at least some of those selectees who did not have the experience Toth did (i.e., six years working in the very job at issue). The district court abused its discretion in sanctioning the EEOC for advancing this common-sense, plausible assessment of the evidence. Finally, the district court clearly erred by accepting as fact Maricopa's contention that "the EEOC had no basis upon which to obtain any remedy as the EEOC knew there were no compensable damages." (E.R. 5) The ADEA gives courts wide discretion in fashioning appropriate remedial relief. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357-58 (1995). Even assuming the EEOC could not have recovered back pay or liquidated damages in this case - an issue never fully litigated below - the Commission still could have obtained significant equitable relief, such as an injunction barring Maricopa from committing age discrimination in the future and an order requiring Maricopa to place Toth into the VWA position she sought. Indeed, in its complaint in this case, the EEOC specifically asked for exactly this kind of relief. (E.R. 448-49) Such equitable remedies are typical, and often critical, in intentional discrimination cases. See 29 U.S.C. § 626(b) (providing that "[i]n any action brought to enforce [the ADEA] the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate" including "without limitation judgments compelling employment, reinstatement or promotion"); Cancellier v. Federated Dep't Stores, 672 F.2d 1312, 1319 (9th Cir. 1982) (reinstatement, while not a mandatory remedy, lies within the discretion of the trial court after careful consideration of the particular facts of the case); EEOC v. Local 350, Plumbers & Pipefitters, 998 F.2d 641, 643-44 (9th Cir. 1992) (recognizing that "to enforce the ADEA, the EEOC may seek injunctive relief . . . or may seek damages on behalf of an injured individual"); Criswell v. Western Airlines, Inc., 709 F.2d 544, 558 (9th Cir. 1983) (injunctive relief is a "remedy approved by a number of courts in employment discrimination cases"). The fact that a district court may ultimately decide at the end of a case that such relief is not warranted can hardly be cause for a finding that a plaintiff engaged in bad faith conduct by pursuing an otherwise non-frivolous age discrimination claim and seeking such relief in its complaint. We have found no Ninth Circuit case suggesting otherwise. In sum, the EEOC had ample reason to believe it was pursuing a non- frivolous ADEA claim and had a legitimate basis to request equitable relief. The record simply does not support the conclusion that this case was frivolous on the merits and recklessly brought, or that the Commission had ulterior and nefarious motives for pursuing it. Accordingly, the district court's finding of bad faith was clearly erroneous, and its decision to award attorney's fees as a sanction for such bad faith was an abuse of discretion. C. The District Court Erred in Concluding that Section 1927 Provides a Proper Basis for the Awarding of Attorney's Fees Against the EEOC as a Party to this Litigation. The district court also committed an abuse of discretion by ordering sanctions under Section 1927. Section 1927 provides that "[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927 (emphases added). On its face, Section 1927 only allows the award of fees against individual attorneys - not against parties such as government agencies. See Chambers, 501 U.S. at 48 (Section 1927 "allowing an assessment of fees against an attorney says nothing about a court's power to assess fees against a party"); Gadda v. Ashcroft, 377 F.3d 934, 943 n.4 (9th Cir. 2004) (noting this Court has authority under Section 1927 "to hold attorneys personally liable for excessive costs for unreasonably multiplying proceedings" (emphasis added)); In re Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1340 (9th Cir. 1984) (under Section 1927, "an award of attorneys' fees may be exacted from an attorney (i.e., a nonparty)" (quoting U.S. v. Blodgett, 709 F.2d 608, 610 (9th Cir. 1983)) (emphases added)). The district court did not award fees against any particular EEOC attorney here, nor (for the reasons explained above) did it have any grounds on which to do so. Its reliance on Section 1927 as a basis to require the Commission as a party to this litigation to pay Maricopa's attorney's fees and non-taxable expenses was thus legally erroneous. Assuming Section 1927 could permit the district court to award fees against a party such as a government agency, it would require the district court to find that the party acted in "subjective bad faith." See Maui Police Dep't, 276 F.3d at 1107 (explaining this "is present when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent.'" (quoting In re Keegan Mgmt. Co., Sec. Lit., 78 F.3d 431, 436 (9th Cir. 1996)) (internal quotations omitted)). For all the reasons already articulated, the district court's finding of bad faith here was clearly erroneous and thus an abuse of discretion. D. At the Least, The District Court Abused Its Discretion in Requiring the EEOC to Pay Fees and Expenses Maricopa Incurred During Statutorily-Mandated Investigation and Conciliation Proceedings. Even if this Court determines that the district court did not abuse its discretion in awarding sanctions generally, the amount of fees and non-taxable expenses awarded in this case was excessive. Courts have the inherent power to sanction parties for their conduct during litigation only. See Chambers, 501 U.S. at 74 (Kennedy, J., dissenting) ("By exercising inherent power to sanction prelitigation conduct, the District Court exercised authority where Congress gave it none.") Therefore, the portion of fees and/or expenses Maricopa sought and was awarded for pre-litigation activities - that is, fees and/or expenses incurred in representing Maricopa during the EEOC's investigation and conciliation proceedings - is not recoverable. In this case, it would be particularly unjust to sanction the Commission for investigating Toth's charge or for attempting to conciliate it. The EEOC is required under the ADEA to conduct these administrative activities. See 29 U.S.C. § 626(b) ("Before instituting any action under [the ADEA], the [EEOC] shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion." (emphasis added)); id. at § 626(d) ("Upon receiving such a charge, the Commission . . . shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." (emphasis added)); cf. EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982) ("The Commission's functions of investigation, decision of reasonable cause and conciliation are crucial to the philosophy of Title VII" and are "jurisdictional conditions precedent to suit by the EEOC"). Indeed, any challenge to the way in which the EEOC carries out its statutory administrative responsibilities simply fails to state a claim. See, e.g., Ward v. EEOC, 719 F.2d 311, 312-13 (9th Cir. 1983) (finding that "Congress neither expressly nor impliedly provided for an action against the EEOC for negligence, and the EEOC's nonfeasance is not reviewable under the Administrative Procedure Act" and concluding that allowing such a cause of action "could dissipate the limited resources of the Commission in fruitless litigation"). The district court appears to have recognized as much. It acknowledged that "the EEOC's objection regarding pre-litigation tasks is in accordance with applicable law." (E.R. 7) The district court clearly awarded fees here as a sanction for the Commission's alleged bad faith conduct of litigation, specifically. (E.R. 3 (emphasizing that a plaintiff "who litigated" in bad faith can be sanctioned, and referencing EEOC's conduct during the case management conference (emphasis added)); E.R. 4 (finding the EEOC "had no evidence of discrimination when it filed the case" (emphasis added)); E.R. 6 (finding that "refusing to drop a claim known to be baseless, thereby forcing the other party to file a costly motion for summary judgment is sufficient misconduct to support a fee award")) Nevertheless, and inexplicably, the district court awarded Maricopa the complete amount of fees and expenses it requested, including amounts incurred before the EEOC filed its complaint. This was reversible error. The district court abused its discretion in requiring the Commission to pay for any attorney's fees and non-taxable expenses Maricopa incurred during the Commission's pre-litigation, and statutorily- mandated, administrative activities. Further, even assuming the district court could have awarded fees and expenses for bad faith conduct during the administrative phase of the case, the district court made no specific finding that the EEOC acted in bad faith during its investigation or conciliation. Nor is there any basis for such a finding. Therefore, this Court should at least modify the district court's order by deducting any and all amounts Maricopa requested in conjunction with these pre- litigation proceedings. By the Commission's calculations, this amount equals $15,173.43. (E.R. 66-106)<6> E. The ADEA Precludes the Award of Attorney's Fees As a Sanction for a Party's Bad Faith Conduct. In addition to abusing its discretion in finding that the EEOC acted in bad faith in this case, the district court also committed legal error in electing to award attorney's fees as the appropriate sanction. The Supreme Court's and this Court's case law strongly suggest that the ADEA precludes the paying of attorney's fees to a prevailing defendant - arguably even to punish a plaintiff's bad faith conduct.<7> As the Supreme Court has explained, the "American Rule" on fee-shifting provides that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska, 421 U.S. at 247. Judicially- created exceptions to this American Rule are "narrowly circumscribed." Miller- Wohl Co., Inc. v. Comm'r of Labor & Indus., 694 F.2d 203, 204 (9th Cir. 1982). Under the American Rule "scheme of things," the Supreme Court has noted, the judiciary has no "roving authority . . . to allow counsel fees as costs or otherwise whenever the courts might deem them warranted." Alyeska, 421 U.S. at 260. Rather "the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine." Id. at 262. Accordingly, Congress can override judicially- recognized deviations from the default American Rule, such as use of the court's inherent powers to award attorney's fees as a sanction for bad faith, by express legislative action. Cf. Chambers, 501 U.S. at 47 (the ability of a court to use its inherent powers to sanction a party through an award of attorney's fees is a "narrow exception[]" to the American Rule). In Christiansburg Garment Co. v. EEOC, the Supreme Court stated that if Congress statutorily provided for an award of attorney's fees only to successful plaintiffs, "an argument could [be] made that the congressional action had pre- empted the common-law rule, and that, therefore, a successful defendant could not recover attorney's fees even against a plaintiff who had proceeded in bad faith." Christiansburg, 434 U.S. at 419 n.13 (emphasis added). The ADEA incorporates this very kind of one-way fee-shifting statute. It specifically adopts the attorney's fees provision of the Fair Labor Standards Act (the FLSA). See 29 U.S.C. § 626(b) ("The provisions of [the ADEA] shall be enforced in accordance with the powers, remedies, and procedures provided in section[] . . . 216 . . . of [the FLSA]"). In crafting the FLSA attorney's fee provision, Congress permitted only successful plaintiffs to recover reasonable attorney's fees and costs. See 29 U.S.C. § 216(b) ("The court [in an action under the FLSA] shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."). There is no corresponding provision allowing prevailing defendants in FLSA, and hence ADEA, actions to obtain fees. See, e.g., Bentler v. Bank of Am. Nat'l Trust & Sav. Ass'n, 959 F.2d 138, 142 n.6 (9th Cir. 1992) ("[A]ttorneys' fees in age discrimination actions are awarded, if at all, under 29 U.S.C. § 626(b)."); cf. Alyeska, 421 U.S. at 264 n.37 (noting that the FLSA's fee-shifting statute is a prime example of a Congressional directive allowing "only one of the litigants [to] be awarded fees" (citing 29 U.S.C. § 216(b)). Recognizing this, this Court in Richardson v. Alaska Airlines, Inc., 750 F.2d 763 (9th Cir. 1984), has stated unequivocally that "Congress limited the award of attorney's fees to the successful plaintiff-employee" and that "a prevailing employer may not recover attorney's fees in an action under the FLSA or the ADEA." Id. at 767 (emphasis added). This Court explained: In enacting the ADEA in 1967, Congress did not use the term "prevailing party" in providing for the award of attorney's fees [as it did in other civil rights statutes, such as Title VII]. The[se] [other] civil rights statutes . . . demonstrate that Congress has used the term "prevailing party" when its object is to permit the award of attorney's fees to a successful plaintiff or defendant. The fact that Congress did not employ the "prevailing party" terminology used in The Civil Rights Act of 1964 and The Civil Rights Attorney's Fees Awards Act of 1976 indicates an intention to impose the additional burden of paying attorney's fees only on employers who violate the statute. Congress chose its words carefully to foreclose the possibility of the recovery of attorney's fees by an employer who has successfully defended himself against an accusation of age discrimination. Id. (emphases in original). To be sure, Richardson did not involve an award of attorney's fees to a prevailing defendant, but rather a request for fees made by a prevailing plaintiff. Further, Richardson did not specifically address whether attorney's fees could be imposed as a sanction for bad faith conduct by a plaintiff. Nevertheless, this Court's categorical statement in Richardson that a court may not award attorney's fees to a prevailing ADEA defendant (that Congress "foreclose[d]" this result), coupled with the Supreme Court's indication in Christiansburg that fees could not be used as a sanction for bad faith where Congress has enacted such a one-way fee shifting rule, strongly suggests that the district court was without authority to award fees to Maricopa in this case. As Richardson implicitly recognized, Congress has replaced the default American Rule in all age discrimination cases with the specific fee-shifting provision found in the FLSA. By allowing fees to be awarded only to successful ADEA plaintiffs, Congress has statutorily eliminated all possible exceptions to the American Rule - including the "bad faith" exception - that might otherwise permit prevailing ADEA defendants to recover fees. While a court may have authority to sanction attorneys or parties for bad faith, the ADEA's clear fee-shifting scheme does not allow such sanctions to take the form of attorney's fees, specifically. See, e.g., Chambers, 501 U.S. at 74, 51-52 (explaining that "the exercise of the inherent power of lower federal courts can be limited by statute and rule" and indicating that such a "limitation on a court's inherent power . . . applies . . . to fee-shifting rules that embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees").<8> Consistent with this view, we have found no Ninth Circuit case, published or unpublished, awarding attorney's fees to a prevailing ADEA defendant (as a sanction or otherwise).<9> Maricopa below cited to none. Thus, this case would be the very first in which this Court would compel an ADEA plaintiff to pay for a prevailing defendant's fees and expenses. Nothing in the law or the record, and nothing about the EEOC's conduct in this case, warrants this extraordinary outcome. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's order granting Maricopa's motion for attorney's fees and non-taxable expenses. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov STATEMENT OF RELATED CASES Plaintiff-Appellant U.S. Equal Employment Opportunity Commission is not aware of any cases related to this appeal currently pending before this Court. This Court did previously hear and adjudicate Appeal No. 05-15403, an appeal the Commission previously filed challenging the district court's grant of summary judgment on merits of the present case. See Circuit Rule 28-2.6. CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,185 words excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF SERVICE I certify that on July 25, 2008, I served the requisite number of copies of this opening brief by mailing them first-class, postage prepaid, to the following: Cathy A. Catterson Clerk of Court United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Katherine Elizabeth Baker Green & Baker, Ltd. Suite B-200 7373 North Scottsdale Road Scottsdale, AZ 85253-5501 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7018 Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> All references to "R." are to the corresponding Docket Entry on the district court's docket sheet. All references to "E.R." are to the corresponding page in the EEOC's Excerpts of Record. <2> A VWA informs crime victims about their rights under the Arizona constitution, explains to the victims how the criminal justice system operates, helps to prepare these victims for trial, and refers victims to appropriate mental health counseling (if necessary). (E.R. 359) <3> The Commission noted that these evaluations revealed that Toth "presented a professional image in appearance and demeanor," was "very much a team player," "was a great morale booster," "served to increase the team spirit and cohesiveness [in the workplace]," "performed each different duty in a very positive manner," was "very 'adaptable to change,'" "treat[ed her coworkers and others with respect and courtesy," "value[d] good working relationships in the office," and "accept[ed] constructive criticism from her supervisor with a positive attitude." (E.R. 195-96, 415) <4> Anderson said Toth's "attitude" in the interview was "pleasant" and that Toth "answered all questions appropriately." Conchos stated that Toth "interviewed well" and that Toth appeared "genuine," "sincere," and "humble" during the interview. Bieghler said Toth "answered the questions correctly," "knew the information," and "did fine." (E.R. 198-99, 414, 416) <5> A review of the billing records Maricopa submitted reveals that pre-litigation fees and expenses Maricopa requested totals $15,173.43. (E.R. 66-106) <6> This figure was calculated by adding all entries on invoices Maricopa submitted in support of its request for fees and costs between August 7, 2001 (the first date on the first invoice) and September 27, 2002 (the last date on the last invoice reflecting fees and costs incurred before the EEOC filed its original complaint in this case). (E.R. 66-106) <7> The Commission did not make this argument below, but instead stated in its brief opposing Maricopa's request for fees that "bad faith" was the appropriate standard for awarding fees in ADEA cases. (R.120 at 3-5, n.1) Notwithstanding this concession below, this is a significant, purely legal question which this Court can and should exercise its discretion to decide. See, e.g., Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986) (appeals court can consider an issue raised for the first time on appeal, even by a plaintiff seeking reversal, "in an 'exceptional' case when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process" or "when the issue is purely one of law and the necessary facts are fully developed" (citing Bolker v. Comm'r, 760 F.2d 1039, 1042 (9th Cir. 1985))); see also U.S. v. U.S. Dist. Court for So. Dist. Cal., 384 F.3d 1202, 1205 (9th Cir. 2004) (noting that "[i]n appropriate circumstances, we may consider legal issues on appeal even though they were not raised below" and "we review legal issues on appeal de novo, whether or not they were raised below" (citing Romain, 799 F.2d at 1419)). The Commission respectfully submits that it would be a miscarriage of justice to require the EEOC to pay fees where such fees are not authorized by law, simply because the Commission failed to advance this argument before the district court. <8> In such a case, a court is not left powerless; to protect the decorum and integrity of its proceedings, a court may, resorting to its inherent powers, fashion other appropriate sanctions for "bad faith" conduct (e.g., dismissing the lawsuit, citing an attorney for contempt, or disbarring the attorney from the court in which the sanctionable conduct occurred). See, e.g., Laser v. Ford Motor Co., 399 F.3d 1101, 1118 (9th Cir. 2005) ("When a district court sanctions an attorney or a party based on its inherent powers '[a] primary aspect of [its] discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.'" (quoting Chambers, 501 U.S. at 44-45)). <9> Other courts have interpreted Richardson as holding that any award of attorney's fees to a prevailing ADEA defendant is categorically precluded. See, e.g., EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872, 883 (7th Cir. 1994); French v. Bath Iron Works Corp., 1999 WL 1995216, at * 2 n.3 (D. Me. Nov. 29, 1999).