Nos. 11-6426 & 11-6427 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant/Cross-Appellee, v. MEMPHIS HEALTH CENTER, INC., Defendant-Appellee/Cross-Appellant. ____________________________________________ On Appeal From the United States District Court for the Western District of Tennessee, Case No. 08-2642 ____________________________________________ RESPONSE AND REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT/CROSS-APPELLEE (Corrected THIRD BRIEF) ____________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M St. NE, 5th Fl. Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 ANNE NOEL OCCHIALINO Annenoel.Occhialino@EEOC.gov Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iii Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 EEOC’s Appeal (No. 11-6426) A. MHC’s argument that the EAJA’s “substantially justified” standard applies to the ADEA fails to comport with the EAJA’s plain terms, the legislative history, or public policy. . . . . . . . . . . . . . . . 4 1. The ADEA allows only prevailing plaintiffs to recover fees, making subsection (d) of the EAJA inapplicable. . . . . . . . . . . . . 4 2. MHC fails to dispute that the EAJA’s legislative history supports the Commission’s argument. . . . . . . . . . . . . . . . . . . . . . . . 7 3. The policies underlying the EAJA are still served by the Commission’s interpretation of the statute because subsection (b) allows employers to recover fees when the EEOC acts in bad faith. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. MHC fails to show how Clay Printing and O&G Spring are persuasive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. MHC implicitly concedes that the EAJA requires examination of the government’s “position” as a whole . . . . . . . . . . . . . . . . . . .11 C. The EEOC’s “position” was substantially justified. . . . . . . . . . . .13 1. MHC forfeited its right to appeal the discrimination determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 2. The discrimination claim was substantially justified, which compels the conclusion that the EEOC’s “position” was justified . . . 18 a. MHC failed to show an abuse of discretion . . . . . . . . . . . . . . . 19 b. The EEOC’s pre-litigation conduct. . . . . . . . . . . . . . . . . . . 20 c. The EEOC’s litigation conduct. . . . . . . . . . . . . . . . . . . . . . 26 D. MHC failed to refute the evidence and cases cited by the Commission showing that the retaliation claim was substantially justified. . . . 37 1. EEOC’s pre-litigation conduct . . . . . . . . . . . . . . . . . . . . . 38 2. EEOC’s litigation conduct . . . . . . . . . . . . . . . . . . . . . . . 41 E. MHC failed to meet its burden of showing that 50% of its fees were incurred in defending against the retaliation claim, even if fees could be awarded for just this claim. . . . . . . . . . . . . . . . . . . . . . . 47 MHC’s Cross-Appeal (No. 11-6427) Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55 This Court should deny MHC’s appeal from the court’s finding that the discrimination claim was substantially justified and that it was not entitled to 100% of its fees for the retaliation claim. 55 A. MHC forfeited its right to appellate review. . . . . . . . . . 55 B. The district court did not abuse its discretion in finding the discrimination claim substantially justified. . . . . . . . . 56 C. MHC was not entitled to 100% of its fees as to the retaliation claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES FEDERAL CASES Arizona v. California, 460 U.S. 605 (1983) . . . . . . . . . . . . . . . . . . .27 Black v. Lojac Enter., Inc., No. 96-5654, 1997 WL 377051(6th Cir. July 2, 1997) . . . . . . . . . . . . . . . . . . 53 Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996) . . . . . . . . . . . . . 19 Bryant v. Comm’r of Soc. Sec., 578 F.3d 443 (6th Cir. 2009) . . . . . . . . . . 12 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) . . . . . . . . .9, 49, 50 Consolidated Coal Co. v. McMahon., 77 F.3d 898, 905 n.5 (6th Cir. 1996) . . . . 28 Davis v. Sodexho, Cumberland College, 157 F.3d 460 (6th Cir. 1998) . . . . . . 39 DeBoer v. Musashi Auto Parts, Inc., 124 Fed. Appx. 387 (6th Cir. 2005) . . . . .37 Delta Eng’g v. United States, 41 F.3d 259 (6th Cir. 1994) . . . . . . . . . . . 22 EEOC v. Clay Printing Co., 13 F.3d 813 (4th Cir. 1994) . . . . . . . . . . . . 10 EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963 (7th Cir. 1996) . . . . . . . . .39 EEOC v. Hendrix College, 53 F.3d 209 (8th Cir. 1995) . . . . . . . . . . . . . .10 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . .22, 40, 41 EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 11 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) . . . . . . . . . . 20 Fox v. Vice, 131 S. Ct. 2205 (2011) . . . . . . . . . . . . . . . . . . . . passim Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . passim TABLE OF AUTHORITIES Hovanas v. Am. Eagle Airlines, Inc., No. 09-209, 2010 WL 1993726 (N.D. Tex. May 18, 2010) . . . . . . . . . . . . . . . . .45 Howard v. Sec. of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991) . . . 15, 18 INS v. Jean, 496 U.S. 154 (1990) . . . . . . . . . . . . . . . . . . . . . . . .13 Jackson v. Schultz, 429 F.3d 586 (6th Cir. 2005) . . . . . . . . . . . . . . . 12 Love v. TVA Bd. Of Dirs., No. 06-74, 2008 WL 906115 (M.D. Tenn. March 31, 2008) . . . . . . . . . . . . . . . . . . . . . . . .37 MacDonald v. UPS, 430 Fed. Appx. 453 (6th Cir. 2011) (unpublished) . . . . . . 45 Marshall v. Sun Oil Co., 605 F.2d 1331 (5th Cir. 1979) . . . . . . . . . . . . 21 McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005) . . . . . . . . . . .56 McCready v. Kamminga, 113 Fed. Appx. 47 (6th Cir. 2004) (unpublished) . . . . . 18 Peck v. Comm’r of Soc. Sec., 165 Fed. Appx. 443 (6th Cir. 2006) (unpublished) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 29 Peoples v. Hoover, 377 Fed. Appx. 462 (6th Cir. 2010) (unpublished) . . . . . . 15 Pierce v. Underwood, 487 U.S. 552 (1988) . . . . . . . . . . . . . . 9, 19, 28, 54 Roger Miller Music, Inc., -- F.3d -- , 2012 WL 555485 (6th Cir. 2012) . . . . . 12 Ross v. Duggan, 402 F.3d 575 (6th Cir. 2004) . . . . . . . . . . . . . . . . . .12 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) . . . . . . . . .31 Scarborough v. Principi, 541 U.S. 401 (2004) . . . . . . . . . . . . . . . . . .28 Shikles v. Sprint/United Mgmt., 426 F.3d 1304 (10th Cir.2005) . . . . . . . . . 21 Thomas v. Arn, 474 U.S. 140 (1985) . . . . . . . . . . . . . . . . . . . . . . .15 TABLE OF AUTHORITIES United States v. Pecore, 664 F.3d 1125 (7th Cir. 2011) . . . . . . . . .13, 20, 38 United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003) . . . . . . . . . . . . .13 United States v. Lilly, 438 Fed. Appx. 439 (6th Cir. 2011) (unpublished) . . . 18 United States v. Paisley, 957 F.2d 1161 (4th Cir. 1992) . . . . . . . . . . 29, 30 United States v. Walters, 638 F.2d 947 (6th Cir. 1981) . . . . . . . . . . . . .15 United States v. $515,060.42 in U.S. Currency, 152 F.3d 491 (6th Cir. 1998) . . 29 Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703 (6th Cir. 2001) . . . . . . . . 16 Statutes 28 U.S.C. 636(b)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 29 U.S.C. § 216(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 29 U.S.C. § 626(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48, 49 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 2412(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2412(d)(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2412(d)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 2412(d)(1)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Regulations 29 C.F.R. § 1626.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES Rules Fed. R. Civ. P. 72(b)(2) . . . . . . . . . . . . . . . . . . . . . . . .14, 16, 17 Summary of Argument The Commissioned argued in its opening brief in Case No. 11-6426 that the district court erred in applying subsection (d) of the EAJA to the Commission’s ADEA lawsuit and in awarding fees for the Commission’s retaliation claim. The district court made a reversible legal error in concluding that the EAJA’s “substantially justified” standard of subsection (d) applies to the ADEA. Moreover, even if subsection (d) does apply, the district court also committed a reversible error in analyzing the discrimination and retaliation claim separately instead of evaluating the EEOC’s “position” as a whole. Given the magistrate judge’s unchallenged finding that the discrimination claim—which was the EEOC’s predominant claim—had a reasonable basis in law and fact, the EEOC’s position as a whole was substantially justified, even if the retaliation claim was not. But, in any event, the retaliation claim was substantially justified. Finally, in the alternative, even if the EAJA permits the kind of claim-by-claim analysis the district court undertook and the retaliation claim lacked substantial justification, the court’s award to MHC of 50% of its fees constituted an abuse of discretion because MHC failed to meet its burden of establishing that 50% of its fees would not have been incurred “but for” the retaliation claim. MHC’s response to the Commission’s arguments largely skim the surface. MHC fails to explain how the court’s conclusion that subsection (d) of the EAJA applies to the ADEA can be harmonized with the plain language of the EAJA or its legislative history. And while MHC argues that the EAJA’s public policy purpose would be undermined by the Commission’s view of the statute, MHC overlooks that the Commission has always conceded that it is liable for fees under the EAJA’s subsection (b) when it litigates in bad faith. Thus, the EAJA’s underlying purpose is fully served by the Commission’s view that it is bound by subsection (b) of the EAJA but not subsection (d). MHC also fails to counter the Commission’s argument that, in any event, its position was substantially justified. Although MHC quibbles about the standard of review, MHC does not actually contest that the court made a legal error in analyzing the Commission’s claims separately rather than evaluating the government’s “position” as a whole. MHC instead argues that the district court erred in finding the discrimination claim substantially justified. But MHC forfeited review of this finding by failing to file objections to the magistrate’s report finding that this claim had a reasonable basis in law and fact. Moreover, MHC’s arguments fall far short of showing that the court abused its discretion by finding the discrimination claim substantially justified—especially since MHC concedes that the prima facie case was substantially justified. MHC’s response to the Commission’s argument that the retaliation claim was substantially justified also fails to persuade, as it raises arguments MHC never made in its motion for attorney’s fees, distorts the record, and ignores the cases cited by the Commission to show that the claim had a reasonable legal basis. Finally, even if EAJA allows for a claim- by-claim analysis and the retaliation claim lacked substantial justification, MHC fails to show why it is entitled to 50% of its requested fees when it utterly failed to prove that half of its fees would not have been incurred “but for” the retaliation claim, as the Supreme Court’s decision in Fox v. Vice requires of civil rights defendants. MHC’s cross-appeal, Case No. 11-6427, also lacks any merit. MHC does not delineate in its brief which arguments it makes in response to the Commission’s appeal and which it makes in support of its own cross-appeal. MHC evidently appeals, however, from the district court’s determination that the discrimination claim was substantially justified and that MHC was entitled to only 50% of its fees for the retaliation claim. If this Court does find a claim- by-claim analysis appropriate under the EAJA, it should affirm the district court’s finding that the discrimination claim was substantially justified because, as noted above, MHC forfeited this argument by failing to file any objections to the magistrate report and because the court acted well within its discretion in concluding that the Commission’s claim had a reasonable basis in law and fact. Similarly, MHC forfeited review of its argument, which is also meritless, that the court should have awarded 100% of its fees for the retaliation claim because it is so closely related to the discrimination claim. EEOC’s Appeal (No. 11-6426) A. MHC’s arguments that the EAJA’s “substantially justified” standard applies to the ADEA fails to comport with the EAJA’s plain terms, the legislative history, or public policy. 1. The ADEA allows only prevailing plaintiffs to recover fees, making subsection (d) of the EAJA inapplicable. In its opening brief, the Commission argued that the plain language of subsection (d) of the EAJA renders it inapplicable to the Commission’s enforcement actions under the ADEA. EEOC Br. at 22-28. As the Commission explained, subsection (d) states that a fee award is mandatory when the government’s position lacks substantial justification, “[e]xcept as otherwise specifically provided by statute.” The Commission further explained that the ADEA “specifically provide[s]” otherwise because the ADEA provides—via incorporation of the “powers, remedies, and procedures provided in section[] . . . 216” of the FLSA, see 29 U.S.C. § 626(b)—that prevailing plaintiffs are entitled to attorney’s fees, not prevailing defendants. Because subsection (d) of the EAJA excepts those statutes that “specifically provide otherwise,” and because the ADEA “specifically provide[s] otherwise” in that it does not allow prevailing defendants to recover fees, subsection (d) does not apply to the Commission’s ADEA actions. In response to this plain language argument, MHC contends that “the ADEA has no specific provision for the award of attorney’s fees to either a plaintiff or a defendant.” MHC Br. at 10; see also MHC Br. at 17 (asserting that “there is no fee shifting provision in the ADEA”). MHC then seems to argue that because the ADEA does not address attorney’s fees awards, subsection (d) of the EAJA rushes in to fill the void. Id. at 10-11. This argument is premised on a baseless assertion. As explained above and in the Commission’s opening brief, the ADEA does contain a provision addressing attorney’s fees, as 29 U.S.C. § 626(b) explicitly incorporates the remedies of the FLSA at 29 U.S.C. § 216(b). Numerous statutes in the United States Code utilize this incorporation-by-reference approach. See, e.g., 42 U.S.C. § 12117 (a) (stating that the “powers, remedies, and procedures” of Title VII shall apply to ADA discrimination actions). Thus, MHC’s argument that subsection (d) of the EAJA applies because the ADEA lacks any provision concerning attorney’s fees is a non-starter. MHC’s argument “that the Government admits that the ADEA ‘makes no explicit statement about the government’s liability for attorney’s fees’” also fails to advance MHC’s plain language argument. MHC Br. at 10 (quoting the EEOC’s Br. at 23). The Commission’s statement in its opening brief merely highlighted the fact that unlike Title VII—which on its face makes the Commission liable for attorney’s fees the same as any other plaintiff—the ADEA does not waive the Commission’s immunity from suit. Therefore, as the Commission explained, the Commission was not initially liable for attorney’s fee awards under the ADEA at all—even under the common law bad faith exception. Rather, it was not until the EAJA’s amendment in 1980 that the Commission became liable for attorney’s fees awards. EEOC Br. at 23-25. This history, the Commission contended, makes the district court’s application of the EAJA’s “substantially justified” standard to the ADEA even more implausible. MHC next asserts that, in any event, the FLSA’s fee-shifting provision at 29 U.S.C. § 216(b) “only applies where the plaintiff is an employee.” MHC Br. at 11. Because the EEOC is not an employee, MHC reasons, 29 U.S.C. § 216(b) does not apply to Commission actions under the ADEA. Therefore, MHC argues, the ADEA does not “specifically provide otherwise” for purposes of subsection (d) of the EAJA. While this argument is creative, it does not support MHC’s argument because it does not alter the plain, unassailable reading of 29 U.S.C. § 216(b) as allowing only plaintiffs to recover attorney’s fees. See 29 U.S.C. § 216(b) (court “shall allow a reasonable attorney’s fee to be paid by the defendant”) (emphasis added). Thus, the ADEA “specifically provide[s] otherwise” by disallowing defendants to recover fees (except for bad faith, pursuant to the common law exception). Moreover, MHC’s crabbed interpretation of the word “plaintiff” in 29 U.S.C. § 626(b) cannot be reconciled with the EEOC’s role as an enforcement agency. The ADEA’s prohibition on age discrimination at 29 U.S.C. § 623(a) speaks in terms of discrimination against an “individual” or “employee,” yet it is beyond dispute that the EEOC may sue to enforce the statute. 2. MHC fails to dispute that the EAJA’s legislative history supports the Commission’s argument. MHC attempts to rebut the Commission’s legislative history argument with two points. First, MHC asserts that legislative history is not a statute. MHC Br. at 12. This point is irrefutable, which is why the Commission acknowledged it in its opening brief. EEOC Br. at 30. The Commission’s argument about the EAJA’s legislative history was not that it replaces the plain language of the statute, but that it reinforces the Commission’s argument as to what the plain language means. MHC also asserts that, notwithstanding the comments of Senator DeConcini (or, presumably, the comments of Senator Kennedy, or the quoted passages from the House and Senate Reports) to the effect that the EAJA would not disturb the fee-shifting provisions already enacted in the civil rights laws, subsection (d) of the EAJA does just that because Congress never got around to “except[ing] Civil Rights laws from its application.” MHC Br. at 13. This argument misses the Commission’s point. At pages 28-31 of the Commission’s opening brief, the Commission argued that the comments of Senator DeConcini and Senator Kennedy, as well as the bill reports from the House and Senate, reveal Congress’ understanding that the EAJA’s subsection (d) would not supersede the fee-shifting rules Congress had already adopted in civil rights statutes. Given Congress’ understanding, it was unnecessary for Congress to draft the EAJA to explicitly exempt any civil rights statutes with their own fee-shifting provisions from the reach of subsection (d), since Congress understood that subsection (d) did not apply to those statutes. For this same reason, it was unnecessary—in addition to being impractical—for Congress to concurrently amend the ADEA (and other statutes with their own fee-shifting provisions) to state specifically that the EAJA’s subsection (d) did not apply to the Commission’s actions. 3. The policies underlying the EAJA are still served by the Commission’s interpretation of the statute because subsection (b) allows employers to recover fees when the Commission acts in bad faith. In its opening brief, the Commission argued that applying the EAJA’s “substantially justified” standard to the ADEA would undermine the Commission’s enforcement efforts and was irreconcilably at odds with the higher standard for awarding attorney’s fees against the EEOC under Title VII. EEOC Br. at 31-34. MHC responds that it would be the “height of hubris for the Government to claim that it should not be required to determine whether or not it has substantial justification for bringing” suit. MHC Br. at 14-15. This argument is unavailing. MHC may well find the government’s assertion to be the “height of hubris,” but MHC cannot—and does not—contest the Commission’s central point, which is that Title VII’s standard for fee awards against the EEOC is not “substantial justification.” Rather, as the Commission explained, it is “‘frivolous, unreasonable, or without foundation.’” EEOC Br. at 23, 32 (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). Nor does MHC contest the Commission’s point that the “substantially justified” standard of subsection (d) is more lenient to defendants than the “frivolous, unreasonable, or without foundation” standard of Title VII. Thus, hubris aside, MHC cannot dispute that applying the EAJA’s subsection (d) to the ADEA creates an anomalous result: under Title VII—which explicitly allows any “prevailing party” to recover attorney’s fees—defendants can recover fees only if the EEOC’s action is frivolous, unreasonable, or without foundation, but under the ADEA—which explicitly allows only plaintiffs to recover fees—defendants can recover under the far more lenient “substantial justification” standard. Congress could not have intended such an anomalous result. MHC also disputes that applying subsection (d)’s “substantially justified” standard would undermine the public interest by chilling the Commission’s ADEA enforcement efforts. MHC Br. at 14-16. In making this argument, MHC quotes Justice Brennan’s concurring opinion in Pierce v. Underwood, 487 U.S. 552, 575 (1988), discussing the purpose of the EAJA, i.e., to help balance the scales between individuals and the government by waiving the government’s general immunity to fee awards. MHC Br. at 15. MHC asserts that, in keeping with the EAJA’s purpose, the EAJA requires that government agencies “carefully consider the actions they take, and if they fail to do so, requires them to cover the cost.” Id. at 16. Thus, in short, MHC’s argument is that the EAJA’s purpose is served only by applying subsection (d) to the Commission’s ADEA enforcement actions. Not so. In its opening brief, the Commission stated that the EAJA does apply to the Commission’s ADEA enforcement actions. EEOC Br. at 26. Specifically, the Commission conceded that subsection (b) of the EAJA renders the agency liable for attorney’s fees under the “bad faith” exception to the American Rule on fees. Id. Thus, the Commission’s view that subsection (d) of the EAJA does not apply under the ADEA still furthers the public policy goals that prompted the EAJA’s enactment, as subsection (b) renders the Commission— like any other plaintiff—liable for fees for bad faith litigation. See id. (citing EEOC v. Hendrix College, 53 F.3d 209 (8th Cir. 1995) (affirming fee award against the EEOC under the bad faith standard)). 4. MHC fails to show how Clay Printing and O&G Spring are persuasive. In its opening brief, the Commission devoted several pages to explaining why the district court erred in following the Fourth and Seventh Circuits in holding that the “substantially justified” standard applies to the ADEA. EEOC Br. at 34 (citing EEOC v. Clay Printing, 13 F.3d 813 (4th Cir. 1994) and EEOC v. O&G Spring Wire Form Specialty, 38 F.3d 872 (7th Cir. 1994)). In short, the Commission argued that these circuit decisions fail to offer a convincing interpretation of the phrase “except otherwise specifically provided by statute” or any cogent explanation of why the “substantially justified” standard should override the ADEA’s specific fee-shifting statute, and the Commission pointed out that neither decision addressed the EAJA’s legislative history. MHC does not dispute that the Fourth and Seventh Circuit decisions fail to address the legislative history. MHC instead takes issue with the Commission’s assertion that the ADEA contains its own “specific fee-shifting provision.” According to MHC, “there is no fee shifting provision in the ADEA.” MHC Br. at 16-18. As discussed, this assertion is baseless because Section 626(b) of the ADEA explicitly incorporates the remedies and procedures of the FLSA at 29 U.S.C. § 216(b), which indisputably contains a “specific fee-shifting provision.” MHC otherwise makes only conclusory assertions about why Clay Printing and O & G Spring should be followed and fails to refute the Commission’s detailed arguments about why these cases were wrongly decided. Compare MHC Br. at 17 with EEOC Br. at 34-37. B. MHC implicitly concedes that the EAJA requires examination of the government’s “position” as a whole. In its opening brief, the Commission argued that the district court made a reversible error in concluding that the EAJA allows for a claim-by-claim analysis, which is a question of statutory interpretation subject to de novo review. EEOC Br. at 20, 38-43. At the outset, MHC disputes that the standard of review of this issue is de novo and faults the Commission for citing Bryant v. Commissioner of Social Security, 578 F.3d 443, 445 (6th Cir. 2009), to support this point. Rather, MHC suggests, the standard is abuse of discretion. MHC Br. at 8-9. MHC is mistaken,<1>. but this mistake is immaterial because MHC implicitly concedes the Commission’s point and because, in any event, a district court’s application of an erroneous legal standard is an abuse of discretion. See Ross v. Duggan, 402 F.3d 575, 581 (6th Cir. 2004). In its opening brief, the Commission argued that Supreme Court and this Court’s precedent compel the conclusion that the EAJA does not permit a claim-by-claim analysis and instead requires courts to evaluate the government’s “position” as a whole. See EEOC Br. at 38-40 (relying on INS v. Jean, 496 U.S. 154 (1990), and United States v. Heavrin, 330 F.3d 723 (6th Cir. 2003)); see also United States v. Pecore, 664 F.3d 1125, 1131 (7th Cir. 2011) (in EAJA case, stating, “we review the claim in its entirety rather than the individual positions the government may have taken through different phases of litigation”). MHC does not argue a contrary standard. Thus, MHC has implicitly conceded that the EAJA requires examination of the EEOC’s position as a whole. Accordingly, this Court should hold that the district court made a reversible error in failing to evaluate the EEOC’s position as a whole. C. The Commission’s “position” was substantially justified. In its opening brief, the Commission contended that its position, viewed as a whole, was substantially justified and that the court therefore erred in awarding attorney’s fees in any amount. EEOC Br. at 37-51. The Commission first contended that the district court’s conclusion that the EEOC’s discrimination claim was substantially justified—which MHC never challenged—compelled a conclusion that the EEOC’s “position” as a whole was substantially justified, even if the retaliation claim was not, because the discrimination claim predominated and the two claims arose from the same adverse action. EEOC Br. at 41-43. The Commission also contended that, in any event, the retaliation claim was substantially justified, which further compelled the conclusion that the EEOC’s position was substantially justified and that no fees should have been awarded. Id. at 43-51. In response, MHC challenges the district court’s determination that the discrimination claim was substantially justified. But that challenge is foreclosed by MHC’s failure to file any objections to the magistrate judge’s finding. In any event, the court’s finding did not constitute an abuse of discretion. 1. MHC forfeited its right to appeal the discrimination determination. MHC contends that “the only mistake made by the district court was its determination that the Government was substantially justified in bringing the age discrimination claim against MHC.” MHC Br. at 18. As discussed, infra at C.2., the district court’s determination was no mistake. But even if it were, MHC forfeited its right to appellate review of this finding by failing to object to the magistrate judge’s report. As the magistrate’s report itself stated, R.94, report, p.26, a party may file written objections to a magistrate’s report within fourteen days. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Although the statute and rule are stated in the permissive—that a party “may” file objections—this Court has long held that, absent exceptional circumstances or a miscarriage of justice, a party’s failure to file objections forfeits that party’s right to appellate review. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981) (“[T]he fundamental congressional policy underlying the Magistrate’s Act[,] to improve access to the federal courts and aid the efficient administration of justice[,] is best served by . . . holding that a party shall file objections with the district court or else waive the right to appeal.”); see also Peoples v. Hoover, 377 Fed. Appx. 461, 462 (6th Cir. 2010) (unpublished) (“Parties, we have long held, forfeit appellate review of arguments not raised as objections to a magistrate’s report.”). The Supreme Court has explicitly upheld the constitutionality of this Court’s waiver rule, stating that it “prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.” Thomas v. Arn, 474 U.S. 140, 147-48 (1985). Extending Walters, this Court has also held that overly generalized objections to a magistrate’s report also waive a party’s right to appeal. See Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Here, the magistrate filed his report and recommendation on August 10, 2011. R.94, report. Although the report warned, in bold and all-caps letters, that any objections “must be filed within (14) days” and that the failure to do so “may constitute a waiver of objections . . . and further appeal,” R.94, report, p.26, MHC never filed any objections to the magistrate’s report—as MHC frankly concedes. MHC Br. at 3. MHC has not identified any exceptional circumstances, or any miscarriage of justice, that would justify excusing its failure to object to the magistrate’s report. The closest MHC comes to doing so is its assertion that it “did object to the division of fees” in its response to the EEOC’s objections to the magistrate’s report. Id. (citing R.100, MHC Reply to Objections, pp. 3-7). Interpreted charitably, MHC seems to suggest that it made a colorable attempt at an objection. There are two problems with this argument. First, MHC has not cited any authority, and we are unaware of any, holding that a party’s response to another party’s objections constitutes a colorable attempt at an objection that can excuse a party’s failure to comply with Fed R. Civ. P. 72(b). The only case we could find addressing a colorable attempt at an objection is Vaughn v. Lawrenceburg Power System, 269 F.3d 703, 715 (6th Cir. 2001). In that case, this Court concluded that although the plaintiffs had not specifically objected to the portion of the magistrate’s report dismissing the First Amendment retaliation claim of one of the plaintiffs, this Court would consider the claim on appeal. But Vaughn does not help MHC’s case. In Vaughn, the plaintiffs had filed objections (unlike MHC) and, this Court said, those objections “at least alerted the court that [the plaintiffs] objected to the report to ‘the extent it concludes . . . that the retaliation claim of Keith Vaughn should be dismissed.” Id. at 715. Also, this Court based its decision to review the retaliation claim not only on the “colorable attempt at an objection” but also on the fact that “neither the district court, nor defendant until the day of oral argument, treated, the claim as waived.” Id. Second, MHC’s argument fails because even if its response could somehow be used as a vehicle for making the “specific written objections” required by Fed. R. Civ. P. 72(b)(2), MHC never specifically argued that the magistrate erred in finding the discrimination claim substantially justified. Rather, MHC presented vague arguments asserting that it was entitled to 100% of its fees. At page three, MHC asserted that even viewing the government’s position “as a whole” it was entitled to 100% of its fees. R.100, MHC Reply to Objections, p.3. MHC did not really explain its basis for this assertion but suggested that this was so because it had prevailed on summary judgment. See id. (“MHC prevailed on ALL fronts.”). Because the summary judgment standard differs from EAJA’s substantially justified standard, this argument cannot be considered a challenge to the magistrate’s finding that the discrimination claim had a reasonable basis. MHC’s assertions at pages four to five of its response similarly fall short of specifically challenging the magistrate judge’s determination that the discrimination claim was substantially justified. At page four of MHC’s response, MHC contends that it was entitled to 100% of its fees because “the time spent on the retaliation claim was substantially more than half.” Id. at 4. MHC then argues at page five that the EEOC should not have brought the retaliation claim, which “required additional investigation and the deposing of at least two” or three additional witnesses. Id. at 5. Finally, at pages six and seven of its response, MHC argued simply that it was entitled to all of its costs and to the fees it incurred for responding to the government’s objections. Id. at 6-7. Thus, MHC never mounted a specific challenge to the magistrate’s finding that the discrimination claim had a reasonable basis in law and fact. Accordingly, MHC forfeited its right to appellate review of this argument. See Howard, 932 F.2d at 509 (generalized objections to magistrate report are insufficient); see also United States v. Lilly, 438 Fed. Appx. 439, 444-45 (6th Cir. 2011) (unpublished) (defendant’s failure to raise specific argument in objection to magistrate report denying his motion to suppress foreclosed appellate review of that argument); McCready v. Kamminga, 113 Fed. Appx. 47, 49 (6th Cir. 2004) (unpublished) (stating that the “[f]ailure to identify specific concerns with a magistrate judge’s report” waives any objection; holding that 143 page objection that failed to make specific objections did not preserve issues for review). 2. The discrimination claim was substantially justified, which compels the conclusion that the EEOC’s “position” was justified. MHC’s argument that the district court erred in finding the discrimination claim substantially justified—even if preserved for appeal— should be rejected. MHC Br. at 18-27. This argument fails to adhere to the proper standard of review, impermissibly raises new arguments about the Commission’s pre-litigation position, and improperly conflates the summary judgment standard with the EAJA’s “substantially justified” standard. MHC also fails to dispute the Commission’s argument that because the discrimination claim was substantially justified, and because that claim predominated the lawsuit and arose from the same factual core as the retaliation claim, the agency’s “position” as a whole was substantially justified. a. MHC failed to show an abuse of discretion. MHC glosses over the applicable standard of review of the court’s determination that the discrimination claim had a reasonable basis in law and fact. While MHC recites the appropriate standard—which is abuse of discretion—at page eight of its brief, MHC’s argument at pages 18-27 fails to honor this standard. See Pierce, 487 U.S. at 571 (abuse of discretion standard applies to EAJA determination). It is not enough for this Court to conclude that it would have made a different decision as to whether the discrimination claim was substantially justified (although it was). Rather, this Court “consider[s] a district court to have abused its discretion only if [this Court] come[s] to ‘a definite and firm conviction that the trial court committed a clear error in judgment.’” Peck v. Comm’r of Soc. Sec., 165 Fed. Appx. 443, 446 (6th Cir. 2006) (unpublished) (quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996) and affirming that government’s position was substantially justified). MHC’s argument falls far short of meeting this standard. b. The EEOC’s pre-litigation conduct MHC first argues that the EEOC’s pre-litigation conduct lacked substantial justification. Because MHC never made any arguments about the EEOC’s pre-litigation conduct in its motion for attorney’s fees, R.80-1, Memo. in Support of Mo. for Fees, p.5, this argument was waived.<2> See Pecore, 664 F.3d at 1131 n.4 (arguments not raised in EAJA motion are waived). But, in any event, it lacks any merit. Evaluation of the Commission’s pre-litigation conduct requires an understanding of the pre-suit requirements imposed by the ADEA. In contrast to Title VII, the EEOC does not need a charge of age discrimination to begin an investigation or to file an enforcement action. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) (“[T]he EEOC’s role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA ‘from any source,’ and it has independent authority to investigate age discrimination.”); see also 29 C.F.R. §1626.19 (“The right of the Commission to file a civil action under the ADEA is not dependent on the filing of a charge and is not affected by the issuance of a Notice of Dismissal or Termination to any aggrieved person.”). And although the ADEA imbues the EEOC with broad investigatory authority, the statute does not—unlike Title VII—actually require the EEOC to conduct an investigation. See 29 U.S.C. § 626. The EEOC is, however, required to attempt conciliation prior to instituting an enforcement action. 29 U.S.C. § 626(b). Accordingly, although “the EEOC is not formally tasked with investigating ADEA claims, the EEOC must necessarily investigate in order to engage in conciliation . . . .” Shikles v. Sprint/United Mgmt., 426 F.3d 1304, 1311 (10th Cir. 2005); see also Marshall v. Sun Oil Co., 605 F.2d 1331, 1335 (5th Cir. 1979) (investigation is not a “separate requirement” under the ADEA but agency must necessarily undertake some investigation as a prerequisite to meaningful conciliation). Thus, the central theme underlying MHC’s argument as to the EEOC’s pre- litigation conduct—that the agency ought not to have investigated at all, given Smith’s statements to the intake officer—runs head first into the statute’s requirement that the EEOC seek to conciliate the charges of discrimination it receives. It also defies commonsense to suggest that the government is being unreasonable in investigating a charge of discrimination to try to get to the bottom of it. We also question whether the EAJA’s requirement that a court evaluate the government’s pre-litigation conduct allows courts to independently assess the sufficiency of an EEOC investigation. To be sure, the statute states that “[w]hether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.” 28 U.S.C. 2412(d)(1)(B); see also Delta Eng. v. United States, 41 F.3d 259, 261 (6th Cir. 1994) (government’s “position” includes “both the United States’ underlying action and its litigation position”) (citing 28 U.S.C. § 2412(d)(1)(A), (d)(2)(D)). But this Court has also recognized that it is improper for courts to evaluate the sufficiency of an EEOC investigation. See EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) (holding that “[i]t was error for the district court to inquire into the sufficiency of the Commission’s investigation” and stating that “the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency”). Independent evaluation of the agency’s investigation also seems redundant, as any defects in the EEOC’s investigation, or any weaknesses in the basis for its cause finding, necessarily resurface in an evaluation of the EEOC’s litigation position, making it unclear what value is added by independently assessing the merits of the agency’s investigation and cause finding. But in any event, the Commission’s pre-suit conduct in this case was substantially justified. MHC suggests that the EEOC’s intake officer engaged in some kind of conspiracy against MHC by advising Smith, when she first visited the EEOC’s office after her termination, that she should return if she learned that “‘anyone younger, male or white was hired.’” MHC Br. at 20. MHC then contends that the EEOC “waited in the weeds” and improperly “pounced” once MHC failed to select Smith for the dental assistant position, even though the intake officer’s notes show that the EEOC knew about the call center position and that Smith was pursing her grievance. MHC Br. at 21. Respectfully, the EEOC is not a cat. It is not waiting to pounce. It is a federal agency doing the job Congress gave it—to investigate charges of discrimination, make a cause finding, conciliate, and, when conciliation fails, to enforce the ADEA via litigation. In fiscal year 2008 (the year Smith filed her charge), the agency received 95,402 charges of discrimination. See Charge Statistics, FY 1997 Through FY 2011, available www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm. Given this volume of charges, the agency has no need to “wait in the weeds” for more charges. Moreover, the intake officer’s advice was entirely proper. The intake officer’s notes show that Smith visited the office on August 24, 2007 to discuss her termination. R.93, MHC’s Reply to Opp. to Fees, Ex.4, p.1 (notes). They also show that Smith returned on September 13, 2007, to discuss MHC’s response to her grievance and her replacement by Woodfork. Id. While MHC takes the quote out of context, what the intake officer’s notes actually reflect is that when Smith disclosed that she had “put in for another pos[ition],” the officer told Smith that if MHC hires a “less qual[ified] white, or male, or someone younger to call me.” Id. (emphasis added). There is absolutely nothing improper about this advice. Rather, this advice properly informed Smith that if her former employer hired a less qualified applicant of a different race or sex, or someone younger, than Smith should contact the EEOC because that might be a violation of the statutes the agency is charged with enforcing. MHC also argues that the EEOC’s pre-litigation conduct lacked substantial justification because the intake officer’s notes show that “[t]he [g]overnment knew all about the call center position and Smith’s continued pursuit of her grievance.” MHC Br. at 21. The Commission understands MHC’s argument to be that in light of these facts, the intake officer’s advice to Smith was unreasonable and that the agency also acted unreasonably in subsequently investigating Smith’s charge of age discrimination and in finding cause. Id. But contrary to MHC’s representations, the intake officer’s notes do not show that Smith had received the call center position; the notes show only that “she has put in for another position.” R.93, MHC’s Reply to Opp. to Fees, Ex.4, p.1 (notes). The fact that Smith had applied for another position at MHC did not make it unreasonable for the intake officer to advise Smith to return if, in the future, Smith had reason to believe MHC discriminated against her. Nor was it unreasonable for the agency to investigate Smith’s charge because MHC had rehired her as an operator. The bare fact that MHC rehired Smith into a lower-paying job after firing her does not negate the possibility that MHC’s subsequent failure to select her for the dental assistant position— which she had held for twenty-five years—was discriminatory. A company’s rehiring of a former employee into a lower-paying job might be taken to preempt the individual’s filing of a charge or a lawsuit, especially where, as here, the employee had filed an internal grievance about an earlier termination. A company’s rehiring of an employee before failing to promote her is also of limited, if any, relevance where different decisionmakers were involved. Here, it has never been clear who rehired Smith. MHC’s April 2008 position statement does not state that Jackson rehired Smith; rather, MHC said nothing at all about who had rehired her. R.100, MHC’s Reply to EEOC’s objections, Ex.1, p.2 (position statement). The agency therefore could not have been unreasonable in continuing its investigation after receing MHC’s position statement. It is true, as MHC points out, that a month later Jackson told the EEOC’s investigator that he had asked the hiring manager to select Smith for the call center job. R.100, MHC’s Reply to EEOC’s Objections, Ex.2, p.1 (5/18/08 notes). But Jackson also told the investigator that MHC’s policy was to promote internal qualified individuals “without interviewing them or making them go through the standard application process” and that he (Jackson) had no idea why Smith was not promoted as other internal applicants had been. Id. at 2. Given the lack of clarity about who rehired Smith, who failed to promote her, and why she was not promoted—as other internal candidates had been—Smith’s rehiring did not render the agency’s continued investigation and finding of cause unreasonable. Similarly, Smith’s filing of an internal grievance alleging, in part, that she was laid off because of her worker’s compensation claim did not render the agency’s pre-litigation conduct unreasonable. Although this fact is obscured by MHC’s brief, the EEOC never alleged that Smith’s layoff was the result of age discrimination. To the contrary, the agency specifically concluded that “the evidence is not sufficient to conclude that Charging Party was laid-off based on her age.” R.93, MHC’s Reply to EEOC’s Opp. to Fees, Ex.7, p.2 (determination letter) (emphasis added). The fact that Smith complained her layoff was due to her worker’s compensation claim says nothing at all about whether the agency’s pre-litigation conduct as to Smith’s non-selection for the dental assistant position, based on age, was substantially justified. Accordingly, the agency’s pre-litigation conduct was substantially justified. c. The Commission’s litigation conduct MHC also contends that the EEOC’s litigation position as to the discrimination claim lacked substantial justification. MHC Br. at 18-27. This contention is baseless. Significantly, MHC concedes that the district court acted within its discretion when it concluded that the prima facie case had a reasonable basis in law and fact. See id. at 21 (stating that “[t]he Magistrate was correct in his analysis regarding the prima facie case . . . .”). MHC nevertheless argues that the district court abused its discretion in finding the discrimination claim substantially justified for two reasons: (1) the “law of the case” doctrine compelled the court to find, based on its summary judgment ruling, that the discrimination claim lacked substantial justification; and (2) the court “ignored . . . MHC’s evidence of a legitimate non-discriminatory reason for its decision to hire Toliver, rather than Smith[,] and the evidence presented that the legitimate non-discriminatory reason that MHC presented was not a pretext.” MHC Br. at 23. Contrary to MHC’s assertions, neither argument suffices to show that the district court abused its discretion in finding the EEOC’s discrimination claim substantially justified. The “law of the case” doctrine simply does not apply here. MHC’s explanation of the doctrine and its application is cursory. The only case MHC cites about the “law of the case” doctrine is Arizona v. California, 460 U.S. 605 (1983). In that case, the Supreme Court stated that the “law of the case is an amorphous concept” “most commonly defined” as “posit[ing] that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Id. at 618. This Court has similarly stated the “[u]nder the law of the case doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court or a higher court in the same case.” Consolidated Coal Co. v. McMahon, 77 F.3d 898, 905 n.5 (6th Cir. 1996) (internal quotation marks omitted). Thus, for the “law of the case” doctrine to apply, a court must be reexamining the same issue it, or a higher court, previously decided. But here the district court was not deciding the same issue it had previously decided, as the standards for granting summary judgment and awarding attorney’s fees under the EAJA are not the same. The question before the court on summary judgment was whether the Commission had adduced sufficient evidence to allow a reasonable jury to conclude that the legitimate, non-discriminatory reasons proffered by MHC for its failure to select Smith were a pretext for age discrimination. In contrast, as the Commission explained in its opening brief, the question before the court on MHC’s motion for attorney’s fees was whether the EEOC’s conduct was “substantially justified,” i.e., whether the government’s position had a “‘reasonable basis in law and fact.’” EEOC Br. at 37 (quoting Pierce, 487 U.S. at 566 n.2). Significantly, as the Commission also explained, “‘a position can be justified even though it is not correct.’” Id. (emphasis added). Thus, as the Commission also explained—with citations to Supreme Court and Sixth Circuit authority—the “substantially justified” standard is not a prevailing party standard. See EEOC Br. at 38 (citing Scarborough, 541 U.S. 401, 415 (2004), Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004), and United States v. $515,060.42 in U.S. Currency, 152 F.3d 491, 507 (6th Cir. 1998)). Accordingly, the government’s loss on the merits—even before this Court— does not become “law of the case” such that the district court must therefore award attorney’s fees under the EAJA. See, e.g., Peck, 165 Fed. Appx. at 446- 47 (district court did not abuse its discretion in finding the government’s position substantially justified, even though this Court had ruled against the government in the plaintiff’s merits appeal). MHC also seems to suggest that even if the district court’s summary judgment decision did not technically become the “law of the case,” the district court’s rationale—including its conclusion that the EEOC failed to demonstrate “any basis for finding MHC’s reasons . . . pretextual”—compelled the district court to subsequently find that the discrimination claim lacked substantial justification. MHC Br. at 26-27. But the case MHC cites for this proposition, United States v. Paisley, 957 F.2d 1161 (4th Cir. 1992), does not support MHC’s argument. In Paisley the court stated that the rationale of a merits decision provides “the most powerful available indicator[] of the . . . reasonableness[] of the ultimately rejected position,” but that the “merits decision . . . cannot, standing alone, determine the substantial justification issue.” 957 F.2d at 1167 (emphasis added). Thus, while Paisley logically acknowledges that the rationale of the merits decision should inform the subsequent determination of whether the government’s position was substantially justified, Paisley does not hold that a court is bound by an earlier merits decision (or its rationale). In fact, MHC’s concession that the district court did not abuse its discretion in concluding that the prima facie case was substantially justified—even though the court found the EEOC had failed on summary judgment to establish a prima facie case—suggests that even MHC realizes that neither a merits decision, nor its rationale, constitute “law of the case” for purposes of an EAJA award. MHC also argues, aside from the “law of the case” doctrine, that the court erred by ignoring MHC’s legitimate, non-discriminatory reasons for selecting Toliver over Smith and by ignoring evidence that these were the real reasons for Smith’s non-selection. MHC Br. at 23. To support this argument, MHC lists out its evidence vis-à-vis the EEOC’s evidence of pretext. Id. at 23- 24. This argument misses the mark. It reads as an argument affirming the district court’s grant of summary judgment, but this is an appeal from the district court’s denial of attorney’s fees. MHC’s listing of disputed evidence does not show how the district court abused its discretion in finding that the EEOC’s pretext argument had a reasonable basis in law and fact. Additionally, while MHC faults the district court for failing to credit MHC’s evidence, the court acted correctly in looking at the EEOC’s evidence because the question before the court was whether the EEOC was substantially justified in arguing that summary judgment was inappropriate on this claim. Because a court must view the evidence on summary judgment in the light most favorable to the non-moving party, the court appropriately focused on whether the EEOC had a reasonable basis in law and fact for arguing it should get to a jury. As discussed below, the court acted well within its discretion in finding that it did. At the outset, MHC does not dispute that evidence of a prima facie case along with evidence that an employer’s stated reasons for an adverse employment decision were unworthy of belief, lacked a factual basis, or were insufficient to motivate a decision can allow a jury to find that the stated reasons were a pretext for discrimination. See EEOC Br. at 49; see also Reeves v. Sanderson Plumbing Prods. Serv., Inc., 530 U.S. 133, 148 (2000) (in age case, holding that prima facie case combined with sufficient evidence to find that the employer’s asserted justifications were false permits a jury to infer discrimination). And, as stated, MHC does not dispute that the prima facie case had a reasonable basis in law and fact. But MHC argues that the significant evidence of pretext cited by the magistrate was insufficient to show the EEOC was substantially justified in its pretext argument. Not so. Below is a recap of that evidence: * Smith was 56 when she applied. * Smith had worked for 25 years at MHC and at times was the only dental assistant at the Main and Rossville sites; Toliver had just 5 years of experience. * Dr. Branch rated Smith “excellent” on her 2006 and 2007 evaluations, and Dr. Webb failed to review those evaluations or talk to Dr. Branch. * Dr. Webb rejected Smith, in part, because of her attire, but Smith had received only “abrupt” notice of her interview on casual Friday and would have looked “her best” had she had more notice. * MHC violated its own internal hiring policy. See R.94, report, pp.17-19. As the magistrate found, the EEOC was reasonable in arguing that this evidence was sufficient for a jury to find in its favor. MHC does not even dispute much of this evidence. MHC does not deny that there was a significant experience gap between Smith and Toliver. Nor does MHC deny that, unlike Toliver, Smith had worked for MHC as a dental assistant for twenty-five years. Nor does MHC deny that Smith was 56 years old. MHC does deny that Dr. Webb “knew Smith’s age.” MHC Br. at 24. But he did. While Dr. Webb may not have known Smith’s exact age, he testified, correctly, that he believed she was in her 50s while he believed Toliver was in her 40s or “late 40s.” R.37-1, MHC’s Memo. in Support of Mo. for Summ. J., App. No. 5, p.3 (Webb Depo. 37); R.39, EEOC’s Resp. to MHC’s Statement of Facts, Ex.10, p.20 (Webb Depo. 80). MHC also disputes that it failed to give Smith notice of her interview, as Smith knew prior to February 8 that she would be interviewed at some point. MHC Br. at 24. MHC’s contention that Smith knew she would be interviewed at some point does not show the court abused its discretion in finding that Smith was given only “abrupt notice” of her interview, which indisputably was held on “casual Friday,” and that had Smith had specific notice of which day she would be interviewed, she would have “looked her best.” MHC additionally takes issue with the court’s reliance on evidence that Dr. Webb failed to ask Dr. Branch about Smith’s performance, asserting, without citation to the record, that “Dr. Branch no longer worked for MHC” in February 2008. Id. But the court did not abuse its discretion in relying on this evidence, even assuming that Dr. Branch was no longer at MHC in 2008. Dr. Branch’s departure would not have precluded Dr. Webb from seeking out and reading Dr. Branch’s evaluations or from contacting Dr. Branch. In fact, Dr. Webb’s testimony was that he did “make some effort to reach Dr. Branch” but was unsuccessful, and he evidently never followed through on those efforts. R.39, EEOC’s Resp. to MHC’s Statement of Facts, Ex.10, p.17 (Webb Depo. 76). MHC also faults the magistrate for relying on evidence that MHC violated its own internal hiring policy which, the magistrate found, was potentially probative of pretext. MHC Br. at 25-26. According to MHC, the magistrate’s finding conflicted with the district court’s summary judgment ruling that there was “‘no evidence to suggest that MHC’s supposed alteration from its more typical interview practices’ was based on an impermissible motive.’” MHC Br. at 25-26 (quoting R.76, order, p.13). Again, as discussed above, neither the district court’s ultimate finding on summary judgment, nor its rationale, precluded the magistrate from determining under the EAJA’s “substantially justified” standard that fees were not warranted. Moreover, the magistrate did not ignore the district court’s rationale or summary judgment conclusion. To the contrary, the magistrate explicitly acknowledged that “the district court was not persuaded by the EEOC’s evidence regarding MHC’s alleged internal hiring policy.” The magistrate nevertheless concluded that “the EEOC did present some evidence to support its allegation that MHC had a policy of initially making openings available to its own employees and filling openings with qualified employees” before posting externally. R.94, report, pp.18-19. More significantly, however, the district court adopted the magistrate’s recommendation. Thus, the district court explicitly agreed with the magistrate judge’s determination that—notwithstanding the district court’s earlier conclusion in its summary judgment ruling—the evidence adduced as to MHC’s internal hiring practices and the case law supported the magistrate’s determination that the discrimination claim was substantially justified. And that finding was not an abuse of discretion. If anything, the court’s finding that the EEOC presented “some” evidence that MHC had deviated from its internal hiring practices is an understatement. While the magistrate judge relied only on McInnis’s affidavit as evidence of MHC’s internal hiring policy, the record actually contains a plethora of evidence suggesting that MHC had such a policy. As the Commission stated in its opening brief, at least five MHC employees testified that this was MHC’s policy or practice. EEOC Br. at 7 & n.3. Additionally, as the Commission also stated, even Jackson testified that MHC’s policy was to consider internal applicants before posting externally. See EEOC Br. at 7. Jackson even told the EEOC’s investigator that “we post all jobs internally before we go outside and open them up to the public. If no good candidate is found inside we go outside.” R.100, MHC’s Reply to EEOC’s Objections, Ex. 2, p.2 (5/18/08 notes). Significantly, Jackson listed five individuals who were internally promoted straight into other jobs without so much as an interview or going through the standard application process. Id. (“They all had the qualifications for the position[] openings so they were moved into their respective positions without competition from outside applicants.”). Thus, the EEOC had a reasonable factual basis for asserting that MHC had a policy of hiring qualified internal applicants before entertaining outside applications, which would allow a jury to find that the failure to follow this policy in Smith’s case was discriminatory. MHC tries to undermine the significance of this evidence by arguing that “the government and the magistrate both missed the irony of this argument,” as “[w]hen Smith obtained the call center position, MHC arguably failed to ‘follow its practice’ of filling spots with qualified internal applicants.” MHC Br. at 22. But according to MHC’s position statement, Smith was still an employee on August 30, 2007, when she applied for the job because her termination did not become effective until September 27, 2007. R.100, MHC’s Reply to EEOC’s Objections, Ex.1, p.2 (position statement) (stating that Smith “did not have a break in employment as a result of the layoff”). In any event, MHC cites no evidence whatsoever, to show that it had not already posted the position internally. Thus, it might have been that MHC did post the call center job internally but that no one applied (which seems especially plausible in light of the fact it was a low-paying job). But even if MHC did not follow its internal hiring policy by first posting internally, this does not compel the conclusion that the magistrate judge abused his discretion in finding that MHC’s failure to follow its policy when it refused to select Smith for the dental position she had previously held for twenty-five years—and where her most recent supervisor gave her excellent reviews—provided a reasonable factual basis for arguing there was evidence of pretext. Finally, as the magistrate judge recognized—and MHC does not dispute—the EEOC also had a reasonable basis in law for arguing that evidence that MHC deviated from its internal hiring practice could allow a jury to infer that the real reason for Smith’s non-selection was her age. See R.94, report, pp.19-20 (stating that “the EEOC also relied on persuasive case law from within this Circuit for the proposition that ‘an employer’s deviation from its own policies can, in some instances, provide evidence of pretext,’’ and quoting Love v. TVA Bd. of Dirs., No. 06-74, 2008 WL 906115, at * 17 (M.D. Tenn. March 31, 2008)). MHC’s response fails to refute the magistrate’s conclusion that Love supported the EEOC’s pretext argument. MHC also fails to contest the Commission’s argument that DeBoer v. Musashi Auto Parts, Inc., 124 Fed. Appx. 387, 394 (6th Cir. 2005) (unpublished), additionally supports the reasonableness of the Commission’s arugment, as in DeBoer this Court stated that “an employer’s failure to follow a policy” related to termination or demotion can be probative of pretext. EEOC Br. at 50. Therefore, the district court did not abuse its discretion in finding that the agency’s discrimination claim, while ultimately unsuccessful, was substantially justified. D. MHC failed to refute the evidence and cases cited by the Commission showing that the retaliation claim was substantially justified. In its opening brief, the Commission contended that the district court abused its discretion in finding the retaliation claim without substantial justification. EEOC Br. at 43-51. MHC’s response to this argument is largely disjointed, non-responsive to the Commission’s arguments, and unpersuasive. 1. The EEOC’s pre-litigation conduct MHC argues—in the section of its brief addressing the Commission’s discrimination claim—that the EEOC’s pre-litigation conduct as to the retaliation claim lacked substantial justification. MHC Br. at 18-19. But MHC never argued in its motion for attorney’s fees that the agency’s pre-litigation conduct lacked substantial justification, and the magistrate judge did not rely on the EEOC’s pre-litigation conduct in finding the retaliation claim lacking substantial justification. Accordingly, this Court should find that MHC waived any argument as to the agency’s pre-litigation conduct. See Pecore, 664 F.3d at 1131 n.4. But, in any event, MHC’s argument lacks merit. MHC’s primary argument is that the agency’s pre-litigation conduct lacked substantial justification because Smith’s charge alleged only discrimination and because MHC was never informed of the retaliation claim during the investigation.<3> MHC Br. at 20. MHC therefore suggests that the EEOC acted improperly by expanding its investigation to include retaliation. This argument reflects a misunderstanding of the agency’s obligations under the ADEA and rests on a selective presentation of the record. As discussed, the ADEA contemplates that the EEOC will investigate the charges it receives as a perquisite to conciliation. Contrary to MHC’s implicit suggestion, MHC Br. at 20, an EEOC investigation is not restricted to the allegations contained in a charge. Rather, as this Court has recognized, the EEOC is entitled to obtain relief for instances of discrimination it uncovers during the course of a reasonable investigation. See, e.g., Davis v. Sodexho, Cumberland Coll., 157 F.3d 460, 463 (6th Cir. 1998) (“When the EEOC investigation of one charge in fact reveals evidence of a different type of discrimination against the plaintiff, a lawsuit based on the newly understood claim will not be barred.”) (emphasis in original). See also EEOC v. Harvey L. Walner & Assoc., 91 F.3d 963, 971 (7th Cir. 1996) (“We wholeheartedly agree with EEOC’s point that it may obtain relief for instances of discrimination that it discovers during an investigation of a timely charge.”). And, again contrary to MHC’s suggestion, the EEOC is under no obligation to tell an employer during its investigation that the agency has expanded the bases of its investigation. Rather, the agency’s obligation is to conduct an investigation, determine if there is reasonable cause to believe any violations have occurred, and, if so, then to notify the employer of the agency’s determination as to any statutory violations, which gives the employer an opportunity to conciliate. See Keco, 748 F.2d at 1100 (“The reasonable cause determination issued as a result of the investigation is designed to notify the employer of the EEOC’s findings and to provide a basis for later conciliation proceedings.”); 29 U.S.C. § 626(b) (EEOC must attempt voluntary compliance through informal conciliation). Here, the agency properly adhered to these legal requirements in expanding its investigation to include retaliation, in issuing its letter of determination finding cause as to the discrimination and retaliation claims, and in attempting conciliation. As the Commission argued, the May 15, 2008, notes that the EEOC investigator took while interviewing Jackson establish that the agency’s investigation revealed evidence of retaliation. See EEOC Br. at 43-44 (citing R.100, MHC Reply to EEOC’s Objections, Ex.1, p.2 (5/18/08 notes)). Specifically, those notes reveal that Jackson reported that Smith had complained that her layoff was due, among other things, to “her age.” Accordingly, the investigator had reason to believe either that Jackson viewed Smith’s internal grievances as complaining of age discrimination and/or that Smith had additionally complained to Jackson that her layoff was due to her age. See EEOC Br. at 44. Thus, the investigation revealed that Smith had engaged in protected activity. The investigation also revealed, as discussed below, troubling questions as to why Smith was not selected for the dental assistant position, given that she had held that very position at MHC for twenty-five years before her layoff. Accordingly, the EEOC’s expansion of its investigation was both legally and factually justified. The EEOC also acted properly when it issued its letter of determination (“LOD”) four months later informing MHC of the agency’s determination that it had cause to believe that Smith’s non-selection was discriminatory and retaliatory. R.93, MHC Reply to EEOC’s Opp. to Mo. for Fees, Ex.7 (LOD). The LOD specifically stated that “testimonial evidence revealed that Charging Party complained about age discrimination to the Chief Executive Officer [Jackson] when she was initially laid-off in August 2007.” Id. at 1. The EEOC satisfied its obligation to notify MHC of the EEOC’s findings, which, in turn, provided a basis for conciliation. See Keco, 748 F.2d at 1100. There is therefore no credible argument that the agency’s pre-litigation conduct lacked substantial justification. 2. The EEOC’s litigation conduct In its opening brief, the EEOC argued that the district court abused its discretion in finding the retaliation claim lacking substantial justification. Pointing to Jackson’s statement to the investigator that Smith had complained of “age” discrimination, Smith’s internal grievances referring to her age and seniority, and to case law, the Commission argued that it had a reasonable basis in law and fact for arguing that Smith had engaged in protected activity. MHC does not dispute that the investigator’s notes reflect that Jackson told the investigator that Smith had complained that her layoff was due to, among other things, her “age.” Nor does MHC dispute that such a complaint constitutes protected activity. MHC contends, instead, that the government “missed the forest for the trees” when it filed its retaliation claim because the government relied on the investigator’s notes to the exclusion of other evidence. MHC Br. at 27. According to MHC, Jackson’s testimony denying that he told the investigator that Smith had complained of age discrimination rendered the agency’s position without substantial justification. Id. But this argument does not make the filing of the retaliation claim unjustified, since Jackson’s denial simply gave rise to a factual question for a jury to consider. Moreover, Jackson’s deposition was taken after the complaint was filed and therefore could not have rendered the filing of the complaint unjustified. MHC also argues that the EEOC failed to consider Jackson’s statement to the investigator that Jackson had asked the hiring manager to hire Smith for the call center job at the same time her grievance was pending, which, MHC seems to contend, proves Jackson did not later retaliate against Smith. MHC Br. at 27. As the Commission has explained, there is a factual dispute about who pushed to have Smith rehired. Jackson told the investigator he asked the hiring manger to hire Smith, but at his deposition Jackson seemed to say he had no idea who had hired Smith. Compare R.100, MHC’s reply to EEOC’s Objections, Ex.2, p.2 (5/18/08 notes), with R.39, EEOC’s Resp. to MHC’s St. of Facts, Ex.8, pp.5-6 (Jackson Depo. 94-95) (testifying “I don’t know” when asked whether Smith applied for a position during the grievance process). Williams testified that it was Dr. Branch who pushed for Smith’s rehiring. R.37-1, Memo. in Support of Mo. for Summ. J., App.6, p.7 (Williams Depo. 67) (testifying that at Smith’s grievance hearing, Dr. Branch said, “can y’all just put her somewhere[?]”); see also R.39, EEOC’s Resp. to MHC’s St. of Facts, Ex.2, p.5 (Branch Depo. 58) (testifying that she had “completely” opposed Smith’s termination and thought Smith should have been retained in some capacity). Adding to the confusion, McInnis testified that Jackson flipped a coin to determine whether Smith would get the call center position or another position in medical records. R.39, EEOC’s Resp. to MHC’s St. of Facts, Ex.9, ¶ 5 (McInnis Aff.). Thus, the premise of MHC’s argument on this point—that Jackson rehired Smith—is in doubt. But even if he did, a jury would not be compelled to find that Jackson’s rehiring of Smith—into a lower-paying job—meant he did not later retaliate against her by refusing to put her into the dental assistant position. This is especially true because Jackson’s other statements to the investigator suggest that Smith did not get the position because she was a complainer. Jackson denied knowing why Smith had not been promoted “as other internal applicants have been in the past without being interviewed or going through the application process.” R.100, MHC Reply to EEOC’s Objections, Ex.2, p.2 (5/18/08 notes). But he nevertheless speculated that “it might have been due to her personality or how she got along with others.” Id. He then stated that after her layoff, Smith “complained about everything.” Jackson added that Smith had “filed a grievance and complained to me about why she was [not] retained over the other dental assistants. Some of her reasons were her age . . . .” Id. Thus, while Jackson denied to the investigator that he knew why Smith had not been selected, Jackson’s own statements suggest she was not chosen because she had complained of, inter alia, age discrimination. And, as the Commission has also discussed, McInnis and five other employees also testified that MHC’s policy was to promote qualified employees before seeking outside applicants. See EEOC Br. at 8. Given this evidence, the EEOC was not unreasonable in arguing that a jury could find that MHC retaliated against Smith when it failed to select her as a dental assistant, even though MHC had rehired her while her internal grievance was pending. MHC next argues that the district court properly concluded that Smith did not engage in protected activity. This assertion again fails to acknowledge the proper standard for an award of attorney’s fees. The EEOC does not have to show that Smith did engage in protected activity but that the agency had a reasonable basis in fact and law for asserting that she did. And on this record, the court’s conclusion that the agency lacked a reasonable basis constituted an abuse of discretion. As just discussed, and as the Commission argued in its opening brief, Jackson’s statement to the investigator that Smith had complained of age discrimination provided a factual basis for the EEOC’s argument, as a jury could find either that Jackson understood Smith’s grievances to be about age discrimination and/or that she had separately complained of age discrimination to him. See EEOC Br. at 44. The Commission also argued that apart from Jackson’s statement, the agency had a reasonable factual basis for its argument that the grievances constituted protected activity because a jury could find that the references to Smith’s age and seniority implied a complaint of age discrimination. See id. at 44-45. To show that this position had a reasonable basis in law, the Commission cited Hovanas v. Am. Eagle Airlines, Inc., No. 09- 209, 2010 WL 1993726, at *8 (N.D. Tex. May 18, 2010)—which the agency also cited below— and this Court’s decision in MacDonald v. UPS, 430 Fed. Appx. 453, 464 (6th Cir. 2011) (unpublished). EEOC Br. at 45-46. The Commission cited these cases as finding protected activity despite the plaintiffs’ failure to explicitly complain of age discrimination. Significantly, MHC fails to address these cases or explain how the district court’s finding that the agency’s position lacked substantial justification can be reconciled with them. MHC next seems to intentionally misconstrue the Commission’s argument when it asserts that the Commission “apparently believes that it is not required to establish all of the elements in a prima facie case.” MHC Br. at 28. That is not what the Commission argued. Instead, the Commission argued at pages 46-47 of its brief that because the substantially justified inquiry requires examining the government’s position as a whole, the court erred in failing to take into account that the EEOC established the other parts of the prima facie case. And, really, MHC has no convincing response to this point. MHC does not dispute the legal proposition that EAJA requires looking at the totality of the circumstances. MHC also cannot dispute that it took an adverse action against Smith (the third prong of the prima facie case). MHC does, however, dispute that the EEOC had a reasonable basis for arguing that it established the second and, presumably, fourth prongs—that Smith’s exercise of her protected rights was known to the MHC and a causal connection. MHC Br. at 28-29. But this argument is circular. To be sure, the district court concluded that Smith’s internal grievances did not constitute protected activity. But there is no doubt that Jackson knew about the grievances, and Jackson—who refused to put Smith into the dental assistant position and instead allowed outside applicants to be considered—even told the investigator Smith had complained of age discrimination. R.100, MHC’s Reply to EEOC’s Objections, Ex.2, p.2 (5/18/08 notes). Dr. Webb, who failed to select Smith from amongst the three applicants, also knew of Smith’s grievances. R.39, EEOC’s Resp. to MHC’s Statement of Facts, Ex.10, p.5 (Webb Depo. 46). And MHC has failed altogether to refute the EEOC’s argument that the temporal proximity between Smith’s grievances and her non-selection gave the EEOC a reasonable basis for arguing it had established a causal nexus. Finally, MHC argues at page 30 of its brief that the EEOC “relies on a faulty premise to support its argument that it was substantially justified in bringing the charge of discrimination.” MHC’s argument here is somewhat muddled, but the Commission understands it to be that the district court abused its discretion in finding the agency’s pretext argument as to the discrimination claim substantially justified, so the agency’s pretext argument as to the retaliation claim—which relied on the same evidence—also lacks substantial justification. The Commission has already dealt with these arguments, both in its opening brief at pages 49-51 and above. Therefore, these arguments should be rejected. E. MHC failed to meet its burden of showing that 50% of its fees were incurred in defending against the retaliation claim, even if fees could be awarded for just this claim. The Commission also argued, in the alternative, that if this Court nevertheless concludes that the EAJA allows for a claim-by-claim analysis and that fees were appropriate as to the retaliation claim only, the district court’s award of 50% of MHC’s fees still must be reversed. EEOC Br. at 51-55. Relying on Fox v. Vice, 131 S. Ct. 2205 (2011), which addressed the standard for awarding fees under § 1988 to a prevailing civil rights defendant for work performed in defending against both frivolous and non-frivolous claims, the Commission argued that MHC would be entitled to only those fees it would not have incurred “but for” the retaliation claim and that MHC failed to show what those fees actually were. Relying on Hensley v. Eckerhart, 461 U.S. 424 (1983), MHC responds that it was entitled to 100% of its fees because it was the prevailing party and because the retaliation and discrimination claims were so closely related. MHC Br. at 32-34. This argument again ignores the standard for awarding fees under the EAJA. At the risk of sounding like a broken record, the “substantially justified” standard of the EAJA is not a prevailing party standard. Thus, MHC is incorrect in asserting that “the EAJA provides that the court shall award attorney’s fees to the prevailing party.” MHC Br. at 33. The bare fact that MHC prevailed on summary judgment does not entitle MHC to 100% of its fees. Nor does Hensley support MHC’s argument that it is entitled to 100% of its fees because the non-justified retaliation claim and the justified discrimination claim are so interrelated. Hensley addressed the standard for awarding attorney’s fees under § 1988 to a civil rights plaintiff who prevailed on some, but not all, claims.<4> The Court held in Hensley that because the “purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances[,]” “a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 429 (internal quotation marks and citations omitted). The Court also held that where a plaintiff prevails on some claims but not on other unrelated claims, the plaintiff may recover fees only for the successful claims. See id. at 434-35. Where the plaintiff brings related claims, however, and prevails on some but not all of them, the Court held that a plaintiff may be entitled to all fees. Id. at 435. In such a case, the Court instructed, “the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435. To be sure then, Hensley allows a § 1988 civil rights plaintiff who has brought related claims but has only prevailed on some of them to recover the full fee amount, depending upon the relationship between the extent of success and the fee amount. See id. at 435, 438. But MHC is not a civil rights plaintiff. MHC is a civil rights defendant. Thus, it is the standard for awarding fees to a prevailing civil rights defendant that should inform this Court’s view of whether—assuming the EAJA permits a claim-by-claim analysis—the court abused its discretion in awarding MHC 50% of its fees. And the standard for awarding fees to prevailing defendants differs significantly from the one governing awards to civil rights plaintiffs. As both Hensley and Fox recognized, while a prevailing plaintiff is normally entitled to fees, a prevailing defendant may obtain attorney’s fees under § 1988 only where the plaintiff’s suit was vexatious, frivolous, or without foundation. See Hensley, 461 U.S. at 429 n.2 (relying on Christiansburg, 434 U.S. 412); Fox, 131 S. Ct. at 2213. These disparate standards reflect “the ‘quite different equitable considerations’ at stake” in awarding fees to prevailing defendants rather than to plaintiffs. Fox, 131 S. Ct. at 2213 (quoting Christiansburg, 434 U.S. at 419). When a plaintiff proves a civil rights violation, he has served as a “private attorney general, vindicating a policy that Congress considered of the highest priority.” Id. (internal quotation marks and citation omitted). In contrast, “[i]n enacting § 1988 . . . Congress sought” only “‘to protect defendants from burdensome litigation having no legal or factual basis.’” Id. (quoting Christiansburg, 434 U.S. at 420). Reflecting these disparate standards and the considerations that animate them, the Supreme Court held in Fox that a prevailing § 1988 civil rights defendant is entitled to “only the portion of his fees that he would not have paid but for the frivolous claim.” Fox, 131 S. Ct. at 2215 (emphasis added). In other words, a prevailing defendant cannot recover fees for work it would have had to undertake anyway to defend against a non-frivolous claim. See id. Thus, although Hensley allows that a prevailing civil rights plaintiff might be able to recover all of his fees even if he did not prevail on every contention, Fox holds that a civil rights defendant is not entitled to recover fees for non- frivolous claims. The Supreme Court even spelled out this difference in Fox, explaining that “the test set out here differs from the one we adopted in Hensley,” which “reflects the disparate legislative purposes we have recognized” in awarding fees to civil rights plaintiffs and defendants. Fox, 131 S. Ct. at 2215 n.3 (reiterating that under Hensley “a plaintiff may receive fees for all work relating to the accomplishment of that result, even if the plaintiff failed to prevail on every contention,” but that “a defendant may recover for fees that those [frivolous] claims caused him to incur”) (internal quotation marks and citation omitted). Accordingly, MHC is just wrong when it says it is entitled, under Hensley, to 100% of its fees because the retaliation claim lacked substantial justification and because it is interrelated with the discrimination claim. Rather, if the claims can be separated out under the EAJA, MHC is entitled only to those fees it would not have incurred “but for” the retaliation claim. And here, as the Commission argued, MHC bore the burden of showing what those fees were. See EEOC Br. at 53-54; see also Hensley, 461 U.S. at 437 (stating that “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended”). MHC does not dispute that it bore this burden. MHC Br. at 33. MHC also does not dispute that it failed to meet this burden. Rather, all that MHC says on the subject is that it took two depositions, including Smith’s and that of the EEOC investigator. Id. MHC does not even go so far as to assert that it would not have taken these depositions “but for” the retaliation claim, and it strains credulity to think that MHC would not have taken Smith’s deposition “but for” the retaliation claim. As for the investigator’s deposition, that had nothing to do with defending the retaliation claim, or the discrimination claim. See R.82, EEOC response to MHC’s bill of costs, p.5 (arguing that the investigator’s deposition was unnecessary and pointing out that it “was not used in Defendant’s Summary Judgment Motion, Defendant’s Reply or Defendant’s Sur-reply”). Even if these depositions would not have been taken “but for” the retaliation claim, MHC has impermissibly failed to offer any evidence as to the fees it incurred in taking them. See Hensley, 461 U.S. at 437 (stating that fee applicant “should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims”). As the Commission argued, MHC’s utter failure to meet its burden of documenting what fees went solely towards the retaliation claim should preclude any award at all. See EEOC Br. at 54 (citing Black v. Lojac Enter., Inc., No. 96-5654, 1997 WL 377051, at *3 (6th Cir. July 2, 1997)). At a minimum, however, this Court should vacate the district court’s arbitrary award to MHC of 50% of its attorney’s fees and remand this case so that the district court can determine, under the proper standard, which fees MHC would not have incurred “but for” the retaliation claim. MHC’s Cross-Appeal (No. 11-6427) MHC does not separate out its arguments in response to the Commission’s appeal from those in support of its own cross-appeal. But MHC’s cross-appeal seems to be from the district court’s adoption of the magistrate’s report recommending a finding that the discrimination claim was substantially justified. See MHC Br. at 18-27 (arguing that the magistrate erred in concluding that the EEOC’s discrimination claim, standing alone, was substantially justified). MHC also seems to be appealing from the court’s adoption of the magistrate’s report recommending that MHC be awarded only 50% of its requested fees as to the retaliation claim. See MHC Br. at 32. If this Court agrees with the Commission’s arguments that the EAJA prohibits a claim-by-claim analysis and that the Commission’s “position” as a whole was substantially justified, then this Court should summarily reject MHC’s cross-appeal. If this Court concludes that the EAJA does permit a claim-by-claim analysis, this Court still should summarily dismiss MHC’s cross-appeal because MHC waived it by failing to object to the magistrate’s report. In any case, this Court should reject MHC’s arguments as cross- appellant that the discrimination claim, standing alone, lacked substantial justification and that MHC was entitled to 100% of its fees for the retaliation claim. Statement of the Issues 1. MHC failed to file any objections to the magistrate’s report recommending a finding that the EEOC’s discrimination claim was substantially justified under the EAJA and that MHC be awarded only 50% of its fees as to the retaliation claim. Did this failure forfeit MHC’s right to appeal the district court’s adoption of the magistrate’s report? 2. Assuming that MHC preserved the issue for appeal, did the district court abuse its discretion in concluding that the discrimination claim was substantially justified, especially when even MHC concedes that the prima facie case had a reasonable basis in fact and law? 3. Again assuming that MHC preserved the issue for appeal and that the retaliation claim lacked substantial justification, did the district court abuse its discretion in affirming the magistrate’s finding that MHC was not entitled to 100% of its requested attorney’s fees for the retaliation claim? Standard of Review This Court reviews a district court’s determination that the government’s position was substantially justified under the EAJA, and the amount of a fee award, for abuse of discretion. Pierce, 487 U.S. at 563, 571. Argument This Court should deny MHC’s appeal from the court’s finding that the discrimination claim was substantially justified and that it was not entitled to 100% of its fees for the retaliation claim. MHC’s argument in support of its cross-appeal fails for two reasons. First, MHC failed to file any objections to the magistrate’s report and recommendation. This failure forfeited MHC’s right to appellate review of the court’s findings that the discrimination claim was substantially justified and that MHC was not entitled to 100% of its fees for the retaliation claim. Second, even if these issues could properly be raised on appeal, the district court acted well within its discretion in reaching these findings. A. MHC forfeited its right to appellate review. MHC’s appeal of the district court’s adoption of the magistrate’s report finding that the discrimination claim was substantially justified fails to get out of the starting gate for one simple reason: MHC never filed any objections to the magistrate’s report. As the Commission explained at pp.14-15, a party who fails to file objections to a magistrate’s report waives appellate review of those findings, absent exceptional circumstances or a miscarriage of justice. Here, it is undisputed that MHC failed to file any objections at all. Accordingly, for the reasons the Commission already discussed at pp.14-18, this Court should hold that MHC forfeited its right to appellate review of the court’s findings that the discrimination claim was substantially justified and that MHC was not entitled to 100% of its fees for the retaliation claim. B. The district court did not abuse its discretion in finding the discrimination claim substantially justified. As the Commission already argued in detail, the district court acted well within its discretion in finding the age discrimination claim substantially justified.<5> The Commission will not repeat those arguments here, but as we said, the Commission’s position as to the discrimination claim had both a reasonable factual and legal basis. Accordingly, even if the court’s finding as to the discrimination claim alone is appealable, this Court should affirm that finding because it was not an abuse of discretion. C. MHC was not entitled to 100% of its fees as to the retaliation claim. Finally, to the extent it is even appealable, this Court should affirm the district court’s conclusion that MHC was not entitled to 100% of its fees as to the retaliation claim. As discussed at pp.47-53, MHC’s argument that it was entitled to 100% of its fees under Hensley because the non-justified retaliation claim was so interrelated to the justified discrimination claim fails because Hensley was about the standard for awarding fees to a civil rights plaintiff, not to a civil rights defendant. Under Fox, a civil rights defendant can only recover those fees it would not have incurred “but for” the improper claim. Because MHC cannot show that 100% of its fees would not have been incurred “but for” the retaliation claim, the district court did not abuse its discretion in failing to award MHC its full fee amount. Conclusion For the foregoing reasons, this Court should vacate the district court’s award of attorney’s fees. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ________________________ s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this corrected brief complies with the type- volume requirements set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 13______words, from the Introduction through the Conclusion, as determined by the Microsoft Word 2007 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ s/ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov April 3, 2012 CERTIFICATE OF SERVICE I hereby certify that on April 3, 2012, I electronically filed the foregoing corrected brief with the Clerk of Court using CM/ECF, which will provide notice to counsel and parties listed below, who are registered CM/ECF users: Defendant-Appellee/Cross-Appellant Robin Rasmussen Dinkelspiel Rasmussen & Mink 1669 Kirby Parkway, Ste. 106 Memphis, TN 38119 (901) 754-7770 _________________________ s/ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov ADDENDUM Designation of Relevant District Court Documents -----------------+-----------------------------------------------------------------+ Docket No. | Description | -----------------+-----------------------------------------------------------------+ 1 Complaint 37 MHC’s Motion for Summary Judgment 37 attachment 1--Memorandum in Support of MHC’s Motion (37-1 on PACER) for Summary Judgment 37 Appendix 1 -- Harris Deposition Excerpts (37-3 on PACER) 37 Appendix 2 -- Jackson Deposition Excerpts (37-4 on PACER) 37 Appendix 2--8/15/07 layoff letter (Ex. 1 to Jackson (37-4 on PACER) Deposition) 37 Appendix 3 – Smith Deposition Excerpts (37-5 on PACER) 37 Appendix 3 – 8/15/07 Grievance (Ex. 5 to Smith Depo.) (37-5 on PACER) 37 Appendix 3 – 9/14/07 Grievance (Ex. 6 to Smith Depo.) (37-5 onPACER) 37 Appendix 4 – Toliver Deposition Excerpts (37-6 on PACER) 37 Appendix 5 – Webb Deposition Excerpts (37-7 on PACER) 37 Appendix 6 – Williams Deposition Excerpts (37-8 on PACER) 37 Appendix 7 – Porter Affidavit (37-9 onPACER) 38 EEOC’s Response to Motion for Summary Judgment 39 EEOC’s Response to Defendant’s Statement of Undisputed Material Facts 39 Ex. 1 - Smith Deposition Excerpts (39-1 on PACER) 39 Ex. 2 - Branch Deposition Excerpts (39-2 on PACER) 39 Ex. 3 - Smith’s 2006 evaluation (39-3 on PACER) 39 Ex. 4 - Smith’s 2007 Evaluation (39-4 on PACER) 39 Ex. 5 – 8/15/07 Grievance (39-5 on PACER) 39 Ex. 6 - Waller Deposition Excerpts (39-6 on PACER) 39 Ex. 7 – 9/14/07 Grievance (39-7 on PACER) 39 Ex. 8 – Jackson Deposition Excerpts (39-8 on PACER) 39 Ex. 9 - McInnis Aff. (39-9 on PACER) 39 Ex. 10 – Webb Deposition Excerpts (39-10 on PACER) 39 Ex. 11 – Johnson Deposition Excerpts (39-11 on PACER) 39 Ex. 12 – King Deposition Excerpts (39-12 on PACER) 39 Ex. 13 – Nevilles Deposition Excerpts (39-13 on PACER) 39 Ex. 14 – Application for Promotion or Transfer (39-14 on PACER) 39 Ex. 15 – Toliver Depo. (39-15 on PACER) 39 Ex. 16 - Harris Deposition Excerpts (39-16 on PACER) 39 Ex. 17 - Williams Deposition Excerpts (39-17 on PACER) 39 Ex. 18 – Charge (39-18 on PACER) 39 Ex. 19 –Smith Interview Evaluation (39-19 on PACER) 39 Ex. 20 – Toliver Evaluation (39-20 on PACER) 40 MHC’s Reply 76 Summary Judgment Opinion 78 Bill of Costs 80 Attachment 1 - MHC’s Memorandum in Support of Motion for Attorney’s Fees and Costs 80 Affidavit in Support of MHC’s Motion for Attorney’s Fees (80-1 on PACER) and Costs 80 Ex. A to Affidavit – Billing Statements (80-2 on PACER) 82 EEOC’s Objections to Bill of Costs 93 MHC’s Reply to EEOC’s Memo. in Opp. to MHC’s Mo. for Attorney’s Fees 93 Exhibit 4 – intake officer’s notes (93-1 on PACER) 93 Exhibit 7 – EEOC’s Letter of Determination (93-1 on PACER) 93 Exhibit 8 – Jackson Deposition excerpt (93-1 on PACER) 94 Magistrate Report and Recommendation on fees 95 EEOC’s Objections to Magistrate Report and Recommendation 100 MHC’s Reply to Objections 100 Ex. 1 – MHC’s April 11, 2008 Position statement 100 Ex. 2 – Jackson Deposition Excerpts (100-2 on PACER) 100 Ex. 2 – 5/15/08 Interview Questions: William Jackson (100-2 on PACER) 104 District Court Order 105 EEOC’s Notice of Appeal 106 MHC’s Notice of Appeal +-----------------+------------------------------------------------------------------+ ********************************************************************************** <> <1> This Court has recognized time and time again—including in the Bryant case—that questions of statutory interpretation are reviewed de novo. See Bryant, 578 F.3d at 445 (in EAJA case, stating that “whether attorney fees are payable to Plaintiffs or Plaintiffs’ attorney, is an issue of statutory interpretation, which the Court reviews de novo”); see also Roger Miller Music, Inc., -- F.3d -- , 2012 WL 555485, at *2 (6th Cir. 2012) (“A matter requiring statutory interpretation is a question of law which we review de novo.”) (internal quotation marks and citation omitted). This bedrock principle is not tied to the particular statutory question at issue, as MHC suggests in faulting the EEOC for citing Bryant. Rather, any issue of statutory interpretation is subject to de novo review because it presents a question of law, and this Court is “in as good a position to decide the legal question[] at issue as the trial court.” Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005) (applying de novo review to court’s dismissal of case based on qualified immunity). Here, the question of whether the EAJA requires analysis of the government’s “position” as a whole presents a pure legal issue that this Court is “in as good a position to decide” as the district court. <2> MHC’s actual argument encompassed one paragraph. R.80-1, MHC’s Memo. in Support of Mo. for Attorney’s Fees, pp.5-6. MHC argued that it was entitled to fees as the prevailing party and pointed out that the district court had concluded that the EEOC failed to establish a prima facie case as to either claim. Id. <3> MHC points out correctly that the Commission erred when it stated in its response to MHC’s motion for attorney’s fees that the charge alleged discrimination and retaliation. R.86-1, EEOC’s Memo. in Opp. to Fees, p.1. This was clearly a drafting oversight, as the EEOC stated correctly in earlier briefing that the charge—which was in the record—alleged only discrimination. See, e.g., R.38-1, EEOC’s Memo. in Support of Resp. to MHC’s Mo. for Summ. J., p.3. <4> Pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 permits attorney’s fees to the prevailing party, other than the United States, in any action under 42 U.S.C. §§ 1981, 1982, 1983, 1985, or 1986, as well as Title VI and IX of the Civil Rights Act. Section 1988 parallels separate attorney’s fees award provisions contained in other statutes, such as Title VII. See, e.g., 42 U.S.C. § 2000e-5(k) (allowing fees to be awarded to any prevailing party, other than the United States). <5> MHC asserts that the very short period of time that elapsed between the filing of MHC’s reply to the EEOC’s objections to the magistrate’s report and the district court’s order adopting the magistrate’s report suggest that the district court “was unable to perform a detailed analysis of the Magistrate’s Report.” MHC Br. at 27, n.4. This point is irrelevant to MHC’s appeal, given MHC’s failure to file any objections. In any event, MHC does not directly challenge the district court’s order on the grounds that the district court judge failed to review the magistrate’s report de novo. Even if it had, this Court has stated that in the absence of contrary evidence, a district court must be taken at its word when it says it conducted a de novo review. See McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005) (rejecting argument that district court failed to conduct de novo review of magistrate report recommending an award of attorney’s fees where the court said it had conducted de novo review).