Eeoc v. Fedex Corp ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY  No. 06-16864
COMMISSION, D.C. No.
Plaintiff-Appellee,
v.  CV 06-0276 RCC
ORDER AND
FEDERAL EXPRESS CORPORATION, AMENDED
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
June 13, 2008—San Francisco, California
Filed September 10, 2008
Amended March 3, 2009
Before: A. Wallace Tashima, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Tashima
2417
2420 EEOC v. FEDERAL EXPRESS
COUNSEL
Frederick L. Douglas, Memphis, Tennessee, for the
defendant-appellant.
Susan R. Oxford (Anne Noel Occhialino on the brief), Equal
Employment Opportunity Commission, Washington, DC, for
the plaintiff-appellee.
Laura Ann Giantris, McGuiness Norris & Williams, Washing-
ton, DC, for amici curiae The Chamber of Commerce of the
United States of America, and Equal Employment Advisory
Council.
ORDER
The opinion filed September 10, 2008, and reported at 543
F.3d 531, is withdrawn and replaced by the Amended Opinion
filed concurrently with this order. With the filing of the
Amended Opinion, Judges McKeown and Gould vote to deny
the petition for rehearing en banc and Judge Tashima so rec-
ommends. The full court has been advised of the petition for
rehearing en banc and no judge of the court has requested a
vote on en banc rehearing. See Fed. R. App. P. 35(f). The
petition for rehearing en banc is denied. No further petition
for panel rehearing or rehearing en banc will be entertained.
EEOC v. FEDERAL EXPRESS 2421
OPINION
TASHIMA, Circuit Judge:
We consider three issues pertaining to Federal Express Cor-
poration’s (“FedEx”) refusal to comply with an administrative
subpoena issued by the Equal Employment Opportunity Com-
mission (“EEOC” or “Commission”). First, we consider
whether FedEx’s compliance with an administrative subpoena
in another case, which resulted in FedEx providing the EEOC
with the same information that the EEOC seeks to compel in
this case, moots this appeal. We hold that it does not. Second,
we consider, as a matter of first impression, whether the
EEOC retains the authority to issue an administrative sub-
poena against an employer after a charging party has been
issued a right-to-sue notice and instituted a private action. We
hold that the EEOC does. Third and finally, we consider
whether the EEOC subpoena in this case, which does not seek
direct evidence of discrimination, but instead, seeks general
employment files in order to help the EEOC draft future infor-
mation requests, seeks evidence “relevant” to a charge of sys-
temic discrimination. We hold that it does. In light of these
holdings, we affirm the district court’s decision to enforce the
administrative subpoena.
JURISDICTION
The district court had jurisdiction to determine the enforce-
ability of an administrative subpoena pursuant to §§ 706(b)
and 710 of Title VII of the Civil Rights Act of 1964. 42
U.S.C. § 2000e-5(b) (requiring the EEOC to investigate
charges of discrimination); id. § 2000e-9 (granting to the
EEOC the investigatory and subpoena powers of the National
Labor Relations Board (“NLRB”) by incorporating 29 U.S.C.
§ 161, which provides that the district courts have jurisdiction
to determine the enforceability of an administrative sub-
poena). We have jurisdiction pursuant to 28 U.S.C. § 1291
because “an order of a District Court enforcing an administra-
2422 EEOC v. FEDERAL EXPRESS
tive subpoena is final and ripe for review.” EPA v. Alyeska
Pipeline Serv. Co., 836 F.2d 443, 445 (9th Cir. 1988).
BACKGROUND
On November 27, 2004, Tyrone Merritt filed a charge of
discrimination with the EEOC against FedEx on behalf of
himself and similarly situated African American and Latino
employees. Merritt alleged that FedEx’s Basic Skills Test, a
cognitive ability test which Merritt was required to pass to be
eligible for a promotion, had a statistically significant adverse
impact on African American and Latino employees. Merritt
also alleged that he had been personally denied promotion
opportunities, unfairly disciplined, and denied compensation
on account of his race.
Merritt, through counsel, requested a right-to-sue notice
from the EEOC, which the EEOC issued to him on October
20, 2005. The EEOC, however, stated in that notice that it
would continue to process Merritt’s charge. On October 26,
2005, Merritt joined an already-pending class action against
FedEx. See Satchell v. Fed. Express, No. 3:03-cv-0259 (N.D.
Cal.). The Satchell action is limited geographically to FedEx’s
Western Region, an area encompassing eleven western states.
FedEx employees outside that region are ineligible to join that
action.
Pursuant to its continuing investigation, the EEOC issued
an administrative subpoena to FedEx on February 10, 2006.
The subpoena directed FedEx to identify basic information
about the computer files that it maintains. The purpose of the
information request was to aid the EEOC in fashioning a more
detailed request if the need for more information should arise
later in the investigation. The EEOC did not request any spe-
cific information about specific employees, nor did it request
any employee files. The subpoena requested, in relevant part:
Please identify any computerized or machine-
readable files that are or have been maintained by
EEOC v. FEDERAL EXPRESS 2423
you (or any other under contractual or other arrange-
ment) since January 1, 2003 which contain data on
personnel activities. This type of file would include,
but not be limited to applicants, hiring, promotions,
testing, discipline, job analyses and evaluations, per-
formance evaluations, demotions, employment his-
tory, amounts of pay, adjustments to pay, work
assignment, adjustments to work assignments, train-
ing, transfers, terminations, job status, and so forth.
FedEx refused to comply, filing a Petition to Revoke the
Subpoena with the EEOC. The EEOC denied that petition.
The EEOC then filed an action in district court to enforce its
subpoena. FedEx argued that the EEOC is divested of investi-
gatory authority once the party alleging the discriminatory
practice initiates (or in this case joins) a private action. The
district court rejected FedEx’s argument and granted the
EEOC’s application to enforce the subpoena. Reasoning that
“[t]he breadth of power granted the EEOC to investigate dis-
crimination charges is such that validity of an administrative
subpoena is not weakened unless the EEOC ‘plainly lack[s]’
jurisdiction,” the district court concluded that there were “no
defects in jurisdiction,” and that “the evidence requested is
relevant and material to the investigation.” FedEx timely
appealed.
Subsequently, FedEx filed a Notice of Mootness and
Request for Dismissal of the appeal. FedEx represented that
it had complied with an administrative subpoena relating to a
charge filed by a different employee that is identical in every
respect to the subpoena issued in this case, i.e., it requested
the same information as the Merritt subpoena. The EEOC
opposes FedEx’s request.1
1
We postponed consideration of the mootness issue so that it could be
considered together with our determination of the merits.
2424 EEOC v. FEDERAL EXPRESS
STANDARD OF REVIEW
The district court’s order enforcing the EEOC’s administra-
tive subpoena is reviewed de novo. Reich v. Mont. Sulphur &
Chem. Co., 32 F.3d 440, 443 (9th Cir. 1994); see also In re
Estate of Covington, 450 F.3d 917, 919 n.4 (9th Cir. 2006).
ANALYSIS
I. Mootness
As a threshold matter, we consider FedEx’s motion to dis-
miss this appeal on mootness grounds and conclude that this
appeal is not moot. FedEx argues that the appeal is moot
because it has fully complied with a subpoena in another pro-
ceeding, producing information to the EEOC that is “identical
to the Merritt subpoena in every respect.” Because of this pro-
duction, FedEx argues further, “the EEOC now possesses all
information sought by the Merritt subpoena.”
[1] “A case is moot if the issues presented are no longer
live and there fails to be a ‘case or controversy’ under Article
III of the Constitution.” Pilate v. Burrell (In re Burrell), 415
F.3d 994, 998 (9th Cir. 2005). “The test for mootness of an
appeal is whether the appellate court can give the appellant
any effective relief in the event that it decides the matter on
the merits in his favor. If it can grant such relief, the matter
is not moot.” Id. (internal quotation marks and citations omit-
ted). In other words, “[t]he court must be able to grant effec-
tive relief, or it lacks jurisdiction and must dismiss the
appeal.” Pub. Util. Comm’n v. FERC, 100 F.3d 1451, 1458
(9th Cir. 1996).
[2] Even assuming that this case might otherwise be moot,
“[t]here are . . . four major exceptions to the mootness doc-
trine, for (1) collateral legal consequences; (2) wrongs capa-
ble of repetition yet evading review; (3) voluntary cessation;
and (4) class actions where the named party ceases to repre-
EEOC v. FEDERAL EXPRESS 2425
sent the class.” In re Burrell, 415 F.3d at 998. Two of these
exceptions apply in this case.
[3] The collateral legal consequences exception applies
because, although the primary injury may have passed (FedEx
has now provided the sought-after information), there remains
“a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” Id. at 999 (emphasis
omitted) (quoting Super Tire Eng’g Co. v. McCorkle, 416
U.S. 115, 122 (1974)). If we were to agree with FedEx’s legal
argument that the EEOC lacks the authority to investigate a
charge after the charging party initiates a private lawsuit, the
EEOC’s investigation would come to an end. If, on the other
hand, we affirm the district court, the EEOC will be able to
proceed with the Merritt investigation. If we demur from
deciding the legal questions presented by this litigation, the
EEOC’s authority to continue its investigation based upon the
Merritt charge would remain contested, and FedEx will be
uncertain whether it needs to comply with future requests for
information. Thus, a “collateral” injury survives that can be
remedied by this court even though the primary injury may
have been resolved. This conclusion is consistent with our
cases that have held that complying with an administrative
subpoena does not moot an appeal when “our decision affects
numerous collateral circumstances.” FDIC v. Garner, 126
F.3d 1138, 1142 (9th Cir. 1997); see Mont. Sulphur, 32 F.3d
at 443 n.4 (holding that just because the subpoenaed party has
“produced most and possibly all of the documents required by
the subpoena,” that “does not render the appeal moot, because
our decision will still have collateral consequences”); Alyeska
Pipeline Serv. Co., 836 F.2d at 445 (holding that a subpoena
appeal was not moot because reversal would result in docu-
ments being returned).
Nor will we dismiss a case as moot if the defendant volun-
tarily ceases the allegedly improper conduct, as FedEx has
2426 EEOC v. FEDERAL EXPRESS
done, but where the defendant remains free to return to the
challenged conduct at any time. As the Supreme Court put it:
It is well settled that a defendant’s voluntary cessa-
tion of a challenged practice does not deprive a fed-
eral court of its power to determine the legality of
the practice. If it did, the courts would be compelled
to leave the defendant free to return to his old ways.
In accordance with this principle, the standard we
have announced for determining whether a case has
been mooted by the defendant’s voluntary conduct is
stringent: A case might become moot if subsequent
events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected
to recur. The heavy burden of persuading the court
that the challenged conduct cannot reasonably be
expected to start up again lies with the party assert-
ing mootness.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 189 (2000) (internal quotation marks, citations, and
brackets omitted); accord Anderson, 371 F.3d at 502 n.27.
[4] Here, FedEx has given no assurance that it will not
challenge another administrative subpoena stemming from the
Merritt charge; instead, it states only that
since the EEOC has not made any additional
requests and has not even identified any information
it presumably lacks, FedEx has not objected to any
such requests. Indeed, depending on the nature of
any future [EEOC requests pursuant to the Merritt
charge], FedEx may not object especially since it
may have already provided the information in
response to the [other] subpoenas.
Appellant’s Notice of Mootness at 3. Given FedEx’s own
equivocal representations — “FedEx may not object” — it
EEOC v. FEDERAL EXPRESS 2427
clearly has not met its “heavy burden of persuading the court”
that “it [is] absolutely clear that the allegedly wrongful behav-
ior could not reasonably be expected to recur.” See Friends of
the Earth, 528 U.S. at 189.
[5] For each of these reasons, we conclude that this appeal
is not moot and, therefore, deny FedEx’s request for dismissal
of the appeal.
II. Enforceability of the Administrative Subpoena
[6] Turning now to the merits, we must first decide whether
the EEOC’s subpoena power ceases when the EEOC issues a
right-to-sue letter and the charging party initiates litigation
based upon that charge. This question presents an issue of
first impression in the Ninth Circuit. Our review of FedEx’s
challenges to the EEOC’s subpoena is limited. As we have
explained:
The scope of the judicial inquiry in an EEOC or any
other agency subpoena enforcement proceeding is
quite narrow. The critical questions are: (1) whether
Congress has granted the authority to investigate; (2)
whether procedural requirements have been fol-
lowed; and (3) whether the evidence is relevant and
material to the investigation.
EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th
Cir. 2001) (quoting EEOC v. Children’s Hosp. Med. Ctr., 719
F.2d 1426, 1428 (9th Cir. 1983) (en banc), abrogated on other
grounds by Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20 (1991), as recognized by Prudential Ins. Co. v. Lai,
42 F.3d 1299, 1303 (9th Cir. 1994)). FedEx’s challenge is
grounded on factor (1) that the EEOC lacked the authority to
investigate, and factor (3) that the evidence sought by the
EEOC was not relevant and material to the investigation.
Regarding whether Congress has granted the authority to
investigate, we have “emphasized the ‘strictly limited’ role of
2428 EEOC v. FEDERAL EXPRESS
the district court when an agency subpoena is attacked for
lack of jurisdiction.” Children’s Hosp. Med. Ctr., 719 F.2d at
1430. “As long as the evidence is relevant, material and there
is some ‘plausible’ ground for jurisdiction, or, to phrase it
another way, unless jurisdiction is ‘plainly lacking,’ the court
should enforce the subpoena.” Id. (internal citations omitted).
“[A] party may not defeat agency authority to investigate with
a claim that could be a defense if the agency subsequently
decides to bring an action against it.” Id. at 1429. The judicial
inquiry is narrow because “judicial review of early phases of
an administrative inquiry results in interference with the
proper functioning of the agency and delays resolution of the
ultimate question whether the Act was violated.” EEOC v.
Shell Oil Co., 466 U.S. 54, 81 n.38 (1984) (internal quotation
marks, emendations, and citations omitted). Here, we con-
clude that the EEOC has at least a plausible basis for jurisdic-
tion to issue an administrative subpoena even after Merritt
filed his individual action.
Title VII of the Civil Rights Act of 1964, as amended, pro-
scribes various employment practices involving discrimina-
tion on the basis of “race, color, religion, sex, or national
origin.” 42 U.S.C. §§ 2000e-2, 2000e-3. The EEOC bears the
“[p]rimary responsibility for enforcing Title VII.” Shell Oil
Co., 466 U.S. at 61-62 (citing 42 U.S.C. § 2000e-5(a)).
[7] “Title VII sets forth ‘an integrated, multistep enforce-
ment procedure’ that enables the Commission to detect and
remedy instances of discrimination.” Id. (quoting Occidental
Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)). The
EEOC’s enforcement responsibilities are triggered by the fil-
ing of a charge of discrimination. Univ. of Pa. v. EEOC, 493
U.S. 182, 190 (1990). A charge may be filed by an individual
who alleges that he was discriminated against or by a Com-
missioner of the EEOC. 42 U.S.C. § 2000e-5(b); 29 C.F.R.
§ 1601.7(a). A Commissioner may file a charge when a victim
of discrimination is reluctant to file a charge for fear of
employer retaliation, see 42 U.S.C. § 2000e-5(b); 29 C.F.R.
EEOC v. FEDERAL EXPRESS 2429
§§ 1601.7(a), 1601.11 (2007), or when the Commissioner
believes that an employer has engaged in a “pattern or prac-
tice of discrimination,” 42 U.S.C. § 2000e-6(e), see Shell Oil
Co., 466 U.S. at 62.
[8] Once the charge is filed, “[t]he EEOC is then required
to investigate the charge and determine whether there is rea-
sonable cause to believe that it is true.” Occidental Life Ins.
Co., 432 U.S. at 359 (emphasis added); see also Univ. of Pa.,
493 U.S. at 190 (“The Act obligates the Commission to inves-
tigate a charge of discrimination[.]” (emphasis added)); 42
U.S.C. § 2000e-5(b) (EEOC “shall make an investigation
thereof”); 29 C.F.R. § 1601.15 (“The investigation of a charge
shall be made by the Commission[.]” (emphasis added)). “To
enable the Commission to make informed decisions at each
stage of the enforcement process, § 2000e-8(a) confers a
broad right of access to relevant evidence[.]” Univ. of Pa.,
493 U.S. at 191. The EEOC “is entitled to inspect and copy
‘any evidence of any person being investigated or proceeded
against that relates to unlawful employment practices covered
by [Title VII] and is relevant to the charge under investiga-
tion.’ ” Shell Oil Co., 466 U.S. at 63 (quoting 42 U.S.C.
§ 2000e-8(a)). In acquiring such evidence, the EEOC may
exercise all powers enjoyed by the NLRB under 29 U.S.C.
§ 161, including the authority to issue administrative subpoe-
nas and to request judicial enforcement of those subpoenas.
42 U.S.C. § 2000e-9; Shell Oil Co., 466 U.S. at 63; accord
Univ. of Pa., 493 U.S. at 191.
If the EEOC “determines after investigation that there is
reasonable cause to believe that the charge is true,” it must
“endeavor to eliminate [the] alleged unlawful employment
practice by informal methods of conference, conciliation, and
persuasion.” 42 U.S.C. § 2000e-5(b); see also 29 C.F.R.
§§ 1601.20, 1601.24(a). If those efforts don’t work, the EEOC
may then bring a civil action against the employer, 42 U.S.C.
§ 2000-e5(f)(1); 29 C.F.R. § 1601.27, in which the charging
party may intervene as a matter of right, 42 U.S.C. § 2000-
2430 EEOC v. FEDERAL EXPRESS
e5(f)(1). If the EEOC fails to bring such an action, the indi-
vidual employee may bring an action against the employer
directly. Id. § 2000e-5(f)(1) (providing for issuance of a right-
to-sue notice on dismissal of a charge or failure to resolve a
charge by conciliation within 180 days). The right-to-sue
notice may also be issued to the charging party upon request,
29 C.F.R. § 1601.28(a), or when the EEOC determines that
there is reasonable cause to believe that Title VII has been
violated, yet was unable to obtain voluntary compliance, but
decides not to bring an action against the employer, id.
§ 1601.28(b). The EEOC may intervene in the charging
party’s lawsuit at the court’s discretion. 42 U.S.C. § 2000e-
5(f)(1).
Generally, when the EEOC issues a right-to-sue notice, it
terminates its processing of the charge, but not always:
Issuance of a notice of right to sue shall terminate
further proceeding of any charge that is not a Com-
missioner charge unless [an enumerated official of
the Commision] determines at that time or at a later
time that it would effectuate the purpose of title VII
or the ADA to further process the charge.
29 C.F.R. § 1601.28(a)(3).
The EEOC has interpreted § 1601.28(a)(3) to mean that
“further processing the charge” includes further investigation:
Continue Processing After NRTS [Notice of Right to
Sue] Is Issued — Continue processing the charge
after issuing the NRTS whenever a cause LOD has
been issued and as follows:
....
(e) To Otherwise Effectuate the Purposes of Title
VII/ADA — Ordinarily continue investigating when
EEOC v. FEDERAL EXPRESS 2431
the charge covers persons other than the requestor or
involves an acknowledged/documented respondent
policy or possible pattern of discrimination affecting
others; or when the DD otherwise determines that
continued action would effectuate the purposes of
Title VII/ADA.
1 EEOC Compliance Manual § 6.4 (June 2006), available at
2006 WL 4672976.2
[9] Thus, we read Title VII, the relevant regulations, and
the EEOC’s interpretation of those regulations to mean that:
(1) the EEOC’s investigative mandate is triggered by the fil-
ing of a valid charge; (2) the EEOC may bring its own action
or may issue a right-to-sue notice to the charging party; and
(3) even though the EEOC normally terminates the processing
of the charge when it issues the right-to-sue notice, it can,
under limited circumstances, continue to investigate the alle-
gations in the charge, which includes the authority to sub-
poena information relevant to that charge. Here, Merritt filed
a charge alleging personal discrimination and discrimination
against other similarly situated African Americans and
Latinos. The EEOC, pursuant to Merritt’s request, issued to
him a right-to-sue notice. The EEOC decided, however, to
continue investigating Merritt’s charge because it involved a
possible policy or pattern of discrimination affecting others.
We have found nothing to suggest that the EEOC exceeded its
authority in doing so.
2
The EEOC’s interpretation of its own regulation “is, under our juris-
prudence, controlling unless ‘plainly erroneous or inconsistent with the
regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Bowles
v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); accord Fed.
Express Corp. v. Holowecki, 128 S. Ct. 1147, 1154 (2008); Miller v. Cal.
Speedway Corp., 2008 WL 3169130, at *11 (9th Cir. Aug. 8, 2008). The
EEOC’s interpretation that “further processing the charge” includes fur-
ther investigation is neither plainly erroneous nor inconsistent with the
regulation.
2432 EEOC v. FEDERAL EXPRESS
[10] Thus, we conclude that the EEOC did not “plainly
lack” the authority to issue the subpoena. See Children’s
Hosp. Med. Ctr., 719 F.2d at 1430. Because there is, at the
very least, a “plausible ground for jurisdiction,” the district
court did not err in enforcing the subpoena. See id.
The Fifth Circuit is the only other circuit to have addressed
the question of whether the EEOC’s authority to issue an
administrative subpoena ceases when the charging party files
suit. See EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997).
The Fifth Circuit concluded that “in a case where the charging
party has requested and received a right to sue notice and is
engaged in a civil action that is based upon the conduct
alleged in the charge filed with the EEOC, that charge no lon-
ger provides a basis for EEOC investigation.” Id. at 469-70
(emphasis in the original). For the reasons we discuss below,
we cannot agree with the Fifth Circuit.
Hearst reasoned that Title VII’s multistep enforcement pro-
cedure, which according to the Hearst court is “divided into
four distinct stages: filing and notice of charge, investigation,
conference and conciliation, and finally, enforcement,” means
that once an action is brought based upon a charge, the time
for investigation has passed, and thus, the EEOC is divested
of subpoena authority. Id. at 468-69. As the Fifth Circuit saw
it, “once formal litigation is commenced,” the purposes of
Title VII are no longer furthered by the EEOC’s continued
investigation of the charge and, for that reason, the investiga-
tory authority ceases once the charging party files suit. Id. For
a number of reasons, we cannot agree that the agency “plainly
lacks” the authority to issue an administrative subpoena after
the charging party files suit.3
3
We note that Hearst did not review the administrative subpoena under
the deferential standard that our decision in Children’s Hospital requires.
Compare Hearst, 103 F.3d at 464 (noting that the EEOC cited our deci-
sion in Children’s Hospital, but implicitly rejecting our approach), with
Children’s Hosp. Med. Ctr., 719 F.2d at 1430 (holding that an administra-
EEOC v. FEDERAL EXPRESS 2433
First, the steps in the EEOC’s “multistep” enforcement pro-
cedure are not “distinct,” as the Hearst court characterized it.
The fact that one stage of the enforcement procedure is going
on does not mean that another stage has ceased. The Supreme
Court has described the multistep enforcement procedure as
an “integrated” procedure “that enables the Commission to
detect and remedy instances of discrimination.” Shell Oil Co.,
466 U.S. at 62. The investigation need not end simply because
the EEOC is trying to remedy the discrimination through con-
ference and conciliation. As the Supreme Court put it, “[t]o
enable the Commission to make informed decisions at each
stage of the enforcement process, § 2000e-8(a) confers a
broad right of access to relevant evidence[.]” Univ. of Pa.,
493 U.S. at 191 (emphases added). Thus, the beginning of
another stage does not necessarily terminate the preceding
stage, and Title VII confers upon the EEOC investigatory
authority during each stage.
We also disagree with Hearst’s notion that the charging
party can, through his or her actions (that is, by filing suit),
tive subpoena is to be enforced unless jurisdiction is “plainly lacking”).
We believe that it is well-established that an administrative subpoena is to
be enforced unless agency authority is plainly lacking. See, e.g., Endicott
Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (“The evidence
sought by the subpoena was not plainly incompetent or irrelevant to any
lawful purpose of the Secretary in the discharge of her duties under the
Act, and it was the duty of the District Court to order its production for
the Secretary’s consideration.”); FTC v. Ken Roberts Co., 276 F.3d 583,
587 (D.C. Cir. 2001) (reaffirming holding that “enforcement of an agen-
cy’s investigatory subpoena will be denied only when there is ‘a patent
lack of jurisdiction’ in an agency to regulate or to investigate”); United
States v. Sturm, Ruger & Co., 84 F.3d 1, 5-6 (1st Cir.1996) (“We have
repeatedly admonished that questions concerning the scope of an agency’s
substantive authority to regulate are not to be resolved in subpoena
enforcement proceedings. . . . As long as the agency’s assertion of author-
ity is not apocrypha, a procedurally sound subpoena must be enforced.”);
Donovan v. Shaw, 668 F.2d 985, 989 (8th Cir.1982) (“It is well-settled
that a subpoena enforcement proceeding is not the proper forum in which
to litigate the question of coverage under a particular federal statute.”).
Hearst ignored that body of law.
2434 EEOC v. FEDERAL EXPRESS
divest the EEOC of authority. As the Supreme Court recog-
nized, the EEOC controls the charge regardless of what the
charging party decides to do. See EEOC v. Waffle House, Inc.,
534 U.S. 279, 291 (2002) (“[O]nce a charge is filed, . . . under
the—statute the EEOC is in command of the process.”); cf. id.
at 297 (“We have recognized several situations in which the
EEOC does not stand in the employee’s shoes.”).
In Waffle House, the Court was faced with deciding
“whether an agreement between an employer and an
employee to arbitrate employment-related disputes bars the
[EEOC] from pursuing victim-specific judicial relief, such as
backpay, reinstatement, and damages, in an enforcement
action[.]” Id. at 282. The Supreme Court concluded that the
employee’s arbitration agreement did not hinder the EEOC’s
ability to prosecute the charge, reasoning that:
[T]he EEOC takes the position that it may pursue a
claim on the employee’s behalf even after the
employee has disavowed any desire to seek relief.
The statute clearly makes the EEOC the master of its
own case and confers on the agency the authority to
evaluate the strength of the public interest at stake.
Absent textual support for a contrary view, it is the
public agency’s province—not that of the court—to
determine whether public resources should be com-
mitted to the recovery of victim-specific relief. And
if the agency makes that determination, the statutory
text unambiguously authorizes it to proceed in a
judicial forum.
Id. at 291-92. We have echoed the view that the EEOC, and
not the charging party, is the master of the case. See EEOC
v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir.
1987) (“The EEOC’s right of action is independent of the
employee’s private action rights.”).
We further disagree with Hearst’s conclusion that Title
VII’s purposes are no longer served by a continuing investiga-
EEOC v. FEDERAL EXPRESS 2435
tion after the charging party has filed suit. The EEOC’s inves-
tigatory authority serves a greater purpose than just
investigating a charge on behalf of an individual. See Waffle
House, 534 U.S. at 287. That is, “[t]he EEOC is not merely
a proxy for victims of discrimination, but acts also to vindi-
cate the public interest in preventing employment discrimina-
tion.” See Goodyear Aerospace Corp., 813 F.2d at 1542
(internal quotation marks omitted). The individual, of course,
is guided by a desire to remedy his or her own discriminatory
treatment, whereas the EEOC “is guided by the overriding
public interest in equal employment opportunity asserted
through direct Federal enforcement.” Gen. Tel. Co. v. EEOC,
446 U.S. 318, 326 (1980) (internal quotation marks and ellip-
ses omitted). By continuing to investigate a charge of sys-
temic discrimination even after the charging party has filed
suit, the EEOC is pursuing its obligation to serve the public
interest. Indeed, Hearst failed even to consider 29 C.F.R.
§ 1601.28(a)(3), which makes clear that the EEOC has con-
cluded that a continuing investigation can further the public
interest, even after the charging party has filed suit. Compare
Hearst, 103 F.3d at 462-70 (failing to discuss or cite 29
C.F.R. § 1601.28(a)(3)), with 29 C.F.R. § 1601.28(a)(3)
(authorizing the continuing processing of a charge, even after
the charging party has filed suit, when “it would effectuate the
purpose of title VII”).
Finally, with respect to the Hearst decision, Hearst held
that the EEOC was divested of authority even though nothing
in § 706(f)(1) of Title VII indicates that the EEOC’s investi-
gatory powers over a charge cease when the charging party
files a private action. See 42 U.S.C. § 2000e-5(f)(1). As the
Supreme Court has concluded, “[a]bsent textual support for a
contrary view, it is the public agency’s province—not that of
the court—to determine whether public resources should be
committed” to the continuing investigation of a charge.4 Waf-
4
We also note that the Hearst court’s conclusion was clearly motivated
by a desire to impose time limits on EEOC authority. See Hearst, 103 F.3d
2436 EEOC v. FEDERAL EXPRESS
fle House, 534 U.S. at 291-92; cf. Occidental Life Ins. Co.,
432 U.S. at 361 (“Nothing in § 706(f)(1) indicates that EEOC
enforcement powers cease if the complainant decides to leave
the case in the hands of the EEOC rather than to pursue a pri-
vate action.”).
For the foregoing reasons, we decline to adopt Hearst’s
rationale as the law of this Circuit, preferring instead a
at 468 (“[M]any cases pend for years in ‘administrative limbo’ with the
EEOC, as information grows stale and memories fade. . . . Finality is
apparently not a word in the EEOC lexicon.”). The Hearst court lamented
that § 2000e-5(f)’s provision which provides that “[after 180 days] the
Commission . . . shall so notify the person aggrieved and within ninety
days after the giving of such notice a civil action may be brought . . . (A)
by [any charging parties] or (B) by [persons aggrieved by a practice chal-
lenged in a Commissioner’s charge],” imposed no time limits on EEOC
authority. Id. at 466-67. To that court, “the purpose of the notice at the end
of the 180-day period primarily must be to signify the end of agency
action with respect to the charge.” Id. at 467. Hearst recognized, however,
that “[i]f Title VII were interpreted as [it] believe[d] the text demands, [it]
logically could conclude only that the EEOC’s investigation of a charge
must also end, absent some extenuating circumstance peculiar to the case
under investigation that invokes principles of equity, after the 180-day
period passed—irrespective of whether the charging party elected to sue,”
but, as the Hearst court noted, the Supreme Court had already decided dif-
ferently. Id. at 467-68 (citing Occidental Life Ins. Co., 432 U.S. at 366).
Undeterred, the Fifth Circuit reasoned that the “case before [it was] not
controlled by Occidental.” Id. at 469. Thus, the Hearst court could still
conclude that “the time for investigation ha[d] passed.” Id. By holding that
the EEOC’s investigatory authority terminates after a charging party files
suit, the Fifth Circuit sought to accomplish what the Supreme Court
rejected in Occidental Life—the imposition of a time limit on the EEOC’s
authority over a charge. See Hearst, 103 F.3d at 468-69. We are not per-
suaded by this approach—a lower court should examine a case in light of
the reasoning as well as the narrowest possible holding of a Supreme
Court decision. See Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996)
(“When an opinion issues for the Court, it is not only the result but also
those portions of the opinion necessary to that result by which we are
bound.”); Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(“We hold that the issues decided by the higher court need not be identical
in order to be controlling.”).
EEOC v. FEDERAL EXPRESS 2437
straightforward reading of Title VII and the relevant regula-
tions.
Finally, we note that FedEx makes a series of arguments,
all of which boil down to this: Title VII prohibits the EEOC
from initiating a lawsuit based upon a charge after the charg-
ing party files suit, and therefore the EEOC lacks the author-
ity to continue investigating a charge with respect to which it
no longer has the authority to bring an action. As should be
clear from our preceding discussion, FedEx’s contention that
Title VII prohibits the EEOC from initiating an EEOC action
based upon Merritt’s charge once Merritt has filed his action
is, at best, a dubious statement of the law. See Waffle House,
534 U.S. at 297 (“We have recognized several situations in
which the EEOC does not stand in the employee’s shoes.”);
Goodyear Aerospace, 813 F.2d at 1542 (“The EEOC’s right
of action is independent of the employee’s private action
rights.”).
[11] Nevertheless, we need not decide whether the EEOC
has the authority to bring such a lawsuit. That question should
be decided in a case where the EEOC actually brings a dupli-
cative lawsuit, not in an action to enforce an administrative
subpoena. See Karuk Tribe Hous. Auth., 260 F.3d at 1077-78
(noting that when we review an administrative subpoena we
will “decline[ ] to resolve . . . potential defenses to enforce-
ment actions”); Children’s Hosp. Med. Ctr., 719 F.2d at 1429
(“[A] party may not defeat agency authority to investigate
with a claim that could be a defense if the agency subse-
quently decides to bring an action against it.”). For example,
in Children’s Hospital, we concluded that “whether res judi-
cata might bar a subsequent lawsuit was simply irrelevant to
the inquiry whether the EEOC could issue administrative sub-
poenas . . . .” See Karuk Tribe Hous. Auth., 260 F.3d at 1076
(discussing Children’s Hosp., 719 F.2d at 1429). Here, we
conclude that whether the EEOC may be barred from bringing
a subsequent lawsuit based upon the Merritt charge is simply
2438 EEOC v. FEDERAL EXPRESS
irrelevant to whether the EEOC could issue an administrative
subpoena based upon that charge.
For all of these reasons, we hold that the EEOC retains the
authority to issue an administrative subpoena against an
employer even after the charging party has been issued a
right-to-sue notice and instituted a private action based upon
that charge.
III. Does the subpoena seek relevant information
Next, FedEx contends that the subpoena seeks irrelevant
information and is overbroad.
A. Relevant information
[12] “[C]ourts must enforce administrative subpoenas
unless the evidence sought by the subpoena is plainly incom-
petent or irrelevant to any lawful purpose of the agency.” Id.
at 1076 (internal quotation marks and citations omitted);
accord Children’s Hosp. Med. Ctr., 719 F.2d at 1428. Rele-
vancy is determined in terms of the investigation rather than
in terms of evidentiary relevance. See Children’s Hosp. Med
Ctr., 719 F.2d at 1428 (“[T]he evidence [must be] relevant
and material to the investigation.” (emphasis added)). More-
over, the relevancy requirement is “not especially constrain-
ing.” Shell Oil Co., 466 U.S. at 68. The term “relevant” is
“generously construed” to “afford[ ] the Commission access
to virtually any material that might cast light on the allega-
tions against the employer.” Id. at 68-69.
The subpoena in this case asks FedEx only to identify any
computerized files that it has or currently maintains. FedEx,
the district court, and the EEOC all agree that that information
is not necessarily relevant in an evidentiary sense. That is, the
information sought is not itself evidence of discriminatory
treatment in violation of Title VII. Rather, the information
EEOC v. FEDERAL EXPRESS 2439
will help the EEOC craft additional information requests that
may produce evidence of discriminatory treatment.
The Fourth Circuit has addressed this issue in a case
involving very similar facts, holding that the evidence sought
was relevant:
[I]dentification of the computerized personnel infor-
mation . . . is directly relevant to its investigation
....
Such data permits the Commission to better focus
its investigation. [T]his information will enable the
EEOC to perform its investigative function by allow-
ing it to frame more specific requests which will
limit the possibility that irrelevant or unnecessary
material will be produced for the EEOC to review.
The efficient search for relevant information is
imperative in a case like this, where the Commission
must investigate not one or two claims against the
company, but nearly two dozen. Without this means
of locating pertinent data, both the EEOC and the
employer could be overwhelmed by the sheer quan-
tity of information needed to address each claim
treated individually.
EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116
F.3d 110, 114 (4th Cir. 1997) (internal quotation marks omit-
ted). We agree with and adopt the Fourth Circuit’s analysis.
[13] The EEOC’s need to focus the investigation is even
more pressing in this case. In Lockheed Martin, the EEOC
was investigating “nearly two dozen claims,” whereas here,
the EEOC is investigating a charge that alleges systemic dis-
crimination affecting African American and Latino employees
in FedEx’s eleven-state Western region. “In sum, in asking
[FedEx] to identify what computerized personnel files it had
maintained, the EEOC subpoenaed relevant information, i.e.,
2440 EEOC v. FEDERAL EXPRESS
information that affords it an opportunity to determine what
material ‘might cast light on the allegations against the
employer.’ ” Lockheed Martin Corp., 116 F.3d at 114 (quot-
ing Shell Oil Co., 466 U.S. at 69). Thus, the subpoena seeks
information “relevant and material to the investigation.” See
Children’s Hosp. Med. Ctr., 719 F.2d at 1428 (emphasis
added).
B. Overbroad
Finally, FedEx makes two distinct arguments that the sub-
poena is overbroad. First, FedEx argues that the subpoena is
overbroad because the EEOC “demand[s] personnel informa-
tion concerning applicants, hiring, job analyses, evaluations,
demotions, training, and terminations, [that] ha[ve] no rele-
vance to the specific claims of discrimination asserted in the
charges.” This argument simply rehashes the relevancy argu-
ment that we have already rejected. The subpoena need not
request only evidence that is specifically relevant to proving
discrimination; the requested information need only be “rele-
vant and material to the investigation.” Id.
[14] Next, FedEx argues that the subpoena is overbroad as
to the requested class information because “[w]hen there is an
individual charge, a district court should decline a company-
wide subpoena if the EEOC has not offered evidence of the
relevancy of the company-wide data.” We disagree. Merritt’s
charge, although brought by an individual, alleges a pattern
and practice of racial discrimination. Because it raises the
specter of systemic discrimination, the EEOC has the author-
ity to investigate charges of discrimination beyond the alleged
individual discrimination specifically committed against Mer-
ritt. The district court should not “decline” to enforce such a
subpoena. To the contrary, it should enforce it as the EEOC
plainly has jurisdiction to seek company-wide data.
The EEOC, by requesting identification of computerized
files instead of the files themselves, has refrained from impos-
EEOC v. FEDERAL EXPRESS 2441
ing on FedEx an overbroad request. Because the charge alle-
gations are so broad, the EEOC has demonstrated restraint by
requesting identification of the computerized files and not the
files themselves. The information sought by the EEOC will
afford it the opportunity to make sure that it doesn’t request
vastly more information than it needs. As the EEOC correctly
points out, “the subpoena is designed to solicit information
from FedEx that will enable the EEOC to draft a future
request for employee documents that will not be overly
broad.” The subpoena is not overbroad.
CONCLUSION
To enable the EEOC to make informed decisions at each
stage of the enforcement process, Congress has conferred
upon it a broad right of access to relevant evidence. Given this
broad grant of power, it can hardly be said that the EEOC
plainly lacks jurisdiction. Because Congress granted the
EEOC the authority to investigate (and nothing in Title VII
divests the EEOC of that authority when a charging party files
suit) and because the evidence requested by the EEOC is rele-
vant and material to the investigation, the district court did not
err in enforcing the EEOC’s administrative subpoena. The
judgment of the district court is
AFFIRMED.