may please the court jeremy horowitz on behalf of the e e o c this is a piece case in which the sole issue before this court is whether the e e o c was acting unreasonably frivolous frivolously or without foundation in and fifteen it's cetera give me some examples of what you think a pattern or practice of resistance to the title seven rights would be and contrasted with what you think unlawful employment practices are what just one or two examples of both certainly are are well and unlawful employment practices defined very clearly in the statute under seven to three in seven no four willing to various sorts of discrimination retaliation right in this case so resistance doesn't have the benefit of that kind of definition since seven zero seven a correct what what is it in your view so resistance could include an unlawful employment practice but it could also reach beyond that to something like the separation agreement at issue in this case something that would act as a shill on individuals who would like to act on individual it would show an individual from speaking with the e e o c so in other words i'm guessing at but this is why i want to hear your view but the best i could tell from your brief is that your the commission's idea of a practice of resistance refers somehow to internal firm practices that aren't focused on you know how people of different categories are treated whether it's this release that the commission alleged was confusing or opaque or whether it's you know a practice of shredding all your documents at the end of every year so that nobody can ever get enough information to pursue a title seven action or i'm just trying to clarify in my own mind what's resistance because if you can really tell me that it's something different that would be an important factor for me in trying to figure out whether your initial position was at least well founded enough to resist attorney's fees certainly are going back to cases that the attorney general broad before hundred seventy two amendments there were the k k k cases there was the case with the theatres in mississippi where there were individuals who were interfering with people's rights under title seven or under title two which uses same language have to be an employer under title seven under seven o seven a years active resistance or could it be somebody else it's the statute says an employee of the person you're on so could be someone else who was you know sending hate mail to you for filing things conceivably yes your honor i mean and the better you can convince me that there's  about resistance the better off you will be in my view well certainly or so resistance can be anything that discourages people from speaking with the e e o c or taking advantage of the e e o c procedures that could include a no no but if they're also the sort of interesting figure and you can see that if it had been on lawful employment action i know that's an aspect of this case is the ramos complaint correct but you can see that had it been unlawful employment action you would have had to go through conciliation you would have had to have either an individual charge or commissioner charge you would have had to go through all the seven zero six absolutely are we've been very very consistent so it's only some seven related specifically to discrimination yet to the individual i believe that is i'm just looking at the language it does say any person or group of persons it's not talking about employers which is correct correct so that's where the section addressing of the procedure for following filing of a charge it is in the section that follow addressing all on the whole employment practices why specifies and on lawful employment practice and sixteen zero one point two seven specifies a charge and on the employment profits the in terms of unlawful employment practices that is defined again in seven of three hundred seventy four that is at conciliation in the statute in section seven of sex is defined completely with respect to an unlawful employment practice now it would be impossible for somebody other than an employer to engage in an unlawful employment practice that's correct your honor so that's not the kind of thing that some other person could be engaged in said local vigilante that's exactly right because it would be an emp and i think the record shows that we definitely attempted to negotiate over the course of a number of months with c b s in terms of this specific conciliation that is a process that's defined specifically in the statute so what and part of the i'm not exactly the same question judge hamilton that we have a huge fight over the label we're putting on what happened or is there something more it would have happened if you would considered confidentiality aspect of it all right i'm still you're still inside your own world i'm sorry i'm just let me try this from a somewhat different angle the the central thing that seemed to trouble the district judge about this case was the failure to comply with what he viewed as the duty to conciliate under your own regs in both this court's decision in mock mining and the supreme court's unanimous opinion the courts have made it very clear that if there is a failure to conciliate the remedy is not dismissal the remedy is a pause so the parties can go through an adequate process doesn't take much we know from the supreme court's decision in mark mining but that that can be done if the remedy is not dismissal for failure to conciliate but simply just wasn't it didn't rise so that takes me back to my question which might be part of the answer to judge hamilton's question if you're conciliating with a capital c i presume you are in part sitting down with the other side and saying here's a problem how are we going to resolve it and i assume that there are probably some confidentiality rules that pertain to what's different about allows us to go after no i understand i mean your fundamental point is that your argument that seven o seven at least in part identifies a separate type of practice not cases that do not even involve unlawful employment practices and that conciliation isn't required decisively because no one lawful employment practice was alleged is such an expansive interpretation and i would have expected that that would be explicit in the statute nothing in the regulations contradicts the provisions of the statute so you know absent some such word wording  as i sit here i have a lot of trouble thinking that the district court heard your honor i'd like to respond to that point but i see you know you should answer the judge's question ok thank honor the argument was based on the idea that seven to six mentions conciliation seven to six mentions unlawful employment practices unlawful employment practices are defined carefully in the statute in seventy three and seven and four and seven zero seven a does not mention an unlawful employment practice so we interpreted that difference in language as having meaning as the supreme court has counseled us to do in in the young case in nasser they they say that every difference in a language should be given effect if possible and our way of giving in effect was internally completely consistent in terms of your  your concern about the expanse of our interpretation in fact it's still very narrow in terms of when it arises only in those pattern practice or resistance cases that don't involve practice and it's also very narrow in terms of the remedies available so while i understand we did not carry the day in front of the panel with the argument it certainly was not frivolous or unreasonable or any sort of a resolution that would be a before without the need for litigation in fact regulation not necessarily with an outcome that is in whole or in part not public conciliation all the time you know might involve you know posting something on your bulletin board or doing doing various public things there's a process called conciliation and there's an outcome which is something you know it's very clear i understand that c v s didn't want the outcome to be a consent decree in the e e o c did and things broke down that point i suppose but i don't know why that's not a process of negotiations slash trying to you think of the meaning the dictionary meaning of conciliation means to resolve it by you and i understand and that gets me to the point that if the bottom line had been something satisfactory day everybody you wouldn't probably be here i want to go back to seven o six a because i  actually myself don't have any trouble and vision is a situation in which a person who is not an employer and thus not the kind of entity that can engage in an unlawful employment practice might be engaged in a pattern or practice of resistance to the enjoyment of the rights secured by title seven and that this was the power the power was given to the attorney general to prevent that kind of what i'm calling vigilante resistance that is not at all an overlap with unlawful employment practices so nothing else whether it's you know you put that and actually thank you for your supplement but in sixteen zero one point twenty four that's all talking about unlawful employment practices and at the attorney's level even if the panel wasn't convinced there's a real thumb on the scale for a shift for a prevailing plaintive prevailing defendants not so much and i have troubles seeing why that isn't a at least to a logical resistance the district judge disagreed with the c but said it took a reasonable position look at what we said in the party wallner opinion look at the was of the dougherty decision from the district court in florida that's not a crazy position and i don't think page four of the district judge's opinion where he's addressing your argument and he said there's a significant difference between making a weak argument with little chance of success in making a frivolous are no chance leos he said he concludes a paragraph by saying it cannot be said that the lawsuit was based on a frivolous factual premise so then he turns to his arguments of law which are not arguments where our duty to defer is anything like our duty to defer to him on the facts he found for the commission on the facts and we need to look at these legal provisions and say was this you know so far out of  attorneys fees are called for or not just on the threshold question the standard of review your honor i don't agree with that the the legal question of whether the violated the regulations has been resolved if you're fault but that they are not the question i mean whether your suspicion was reason whether no well no see you're using the word reasonable in two ways the district court finds it it was not quote reasonable in the sense that you lose but the christian doesn't make doesn't equate that standard with something that is so weakly based in any kind of respectable legal argument that fees are required fios the two repeatedly throughout your brief i don't think so your honor that the district court on in the the award was applying the christian's pretty standard he set it out but he said it was satisfied because he said videos he's reading of the regulations was unreasonable well and what if i don't think their reading of the regulations was unreasonable the regulation talks about unlawful employment practices and i've looked high and low to see a theory that rests on unlawful employment they're looking at resistance your honor that you know she's complaint alleges unlawful i know you have that sentence which they say now is a stray remark and they don't actually talk about it anywhere else there is the ramos thing but around which is if seven o seven a is construed as a broader power it's not a broader power it's a different power and the commission concedes that if the pattern are printed that if it's an employer and the pattern or practice there was a charge of discrimination filed against that it's clear under well established law based on that charge the e e o c could have pursued whatever discovered about c v s as wrongdoing in the course of its investigation that may be a factual difference but it doesn't mean that their theory of what seven o six covers is frivolous and you have yet to tell me what you think resistance means it's a different climate unlawful employment practice you're just reading the words out of the statute let me say a few things  way down the list of the areas in the last bits of this litigation but it is there and the reason is we have fifty years of precedent about what section seven zero seven is about and fifty years of legislative history that could not be claims on the basis of race find that the banks are cutting off their lines of credit and landlords are kicking them off their land with that and that looks not i wouldn't be on waffle employment  practice that would but those could be concerted efforts by others to try to shut down the assertion of civil rights claims would that be reachable by seventy seven i don't think so your honor under how it's done the way you're on i think that if you look at the entirety of what's happened since nine hundred sixty four it's hard to understand meet the christians berg standard seems to me you've got to have some controlling authority as of twenty fourte i'd like you to want to dress is the mark mining probably sure that the remedy is not dismissal ok i think the remedy is sort of irrelevant to the question of fees the point of granting fees for failure to conciliate which is what numerous courts of appeals have just as the party and not mine did you would have come in and said they didn't conciliate and following the supreme court's decision the court would have said right you are they didn't conciliate go off and conciliate well your honor this was after  reconcile that with my mind it wasn't a question presented in my mind it was exactly the question presented in mark mining in the supreme court addressed we addressed it in our opinion supreme court addressed that at the end of the opinion and in fact the employers in the m mining briefing abandoned any notion that dismissal would be the correct remedy or in your are you trying to say that that's just you'll advise dicta from the unanimous supreme court on this point i don't think that the supreme court was setting forth the exclusive remedy for any violation of the priest or procedure but i don't want to rest my head on that but i want to say is should the court find in favor of the employer the appropriate remedy is to order the o c to undertake the mandated effort to obtain voluntary compliance yes or and that was in a case where satisfy it no i think begs the question why were they so resistant which also begs the question why wasn't what they did in the back and forth i'll just call it with you the functional equivalent of whatever it would have gotten from something that was under the would have been a waste of time had the e e o c been willing to agree to a pre suit voluntary compliance which is the point of conciliation all that means is that you've got is that you had a red line you weren't willing to cross and they weren't willing to go there because the red line is part of the because consent decrees not actually just in the equal employment area but throughout the civil legal system are a common way of resolving things and it doesn't mean that your internal negotiations getting  mr rock's idea that because the position we argued for was not established over a number of decades that we should have recently known it was not a valid position but under ten of  how the understand of conciliation was developed in high plea it was understood that the understanding of what discrimination because of sex constitutes was expanded through this idea of novel claims being presented even where the novel claims don't end up succeeding if it has a valid important function in clarifying what it is the last chance for ok i think we'll have that staff there thank you very much thanks for your both counsel we will take this case und