668 F.2d 304 (7th Cir. 1981), 81-1328, E.E.O.C. v. Bay Shipbuilding Corp.

Docket Nº:81-1328.
Citation:668 F.2d 304
Case Date:December 31, 1981
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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668 F.2d 304 (7th Cir. 1981)




No. 81-1328.

United States Court of Appeals, Seventh Circuit

December 31, 1981

Argued Sept. 15, 1981.

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Clifford B. Buelow, Davis, Kuekthau, Vergeront, Stover, Werner & Goodland, Milwaukee, Wis., for respondent-appellant.

Mark S. Flynn, E. E. O. C., Washington, D. C., for applicant-appellee.

Before CUMMINGS, Chief Judge, FAIRCHILD, Senior Circuit Judge, and PELL, Circuit Judge.

CUMMINGS, Chief Judge.

In July 1980 the Equal Employment Opportunity Commission (EEOC) applied to the district court for an order requiring Bay Shipbuilding Corporation (Bay) to obey a subpoena duces tecum issued by the EEOC and served upon Bay on March 6, 1980. The district court granted enforcement of the subpoena and Bay appealed to this Court. We granted a stay pending resolution of the appeal but now affirm.

Bay was the employer of a security guard, Ann Marie Keller. According to the affidavit accompanying the EEOC's application for enforcement of its administrative subpoena, on July 26, 1978, Keller filed a charge of discrimination with the EEOC's Milwaukee, Wisconsin, District Office alleging that Bay discriminated against her and other women because of their sex by denying them access into Bay's electrical department and its electrical training/apprenticeship program. In June 1979, Keller's charge was designated by the EEOC for special treatment under the EEOC's "Early Litigation Identification Program" (App. 31). The "ELI" program identifies charges suitable for an expanded, litigation-oriented investigation covering discriminatory practices like those affecting the "charging party," Keller in this case (EEOC Compliance Manual § 12). About five weeks later, at the suggestion of the EEOC's Milwaukee District Office, Keller amended her original charge to allege that Bay also discriminated against women employees by denying them access into the job classifications of "expediter, draftsman, carpenters, painters, pipefitters, outside cleanup crew and labor positions in reference to hiring, job assignments, training, transfers and promotions" (App. 49). The original charge was served on Bay in July 1978 and the amended charge a year thereafter.

As stated in the EEOC affidavit, in December 1979 the EEOC sent Bay a questionnaire consisting of twenty inquiries with respect to Bay's employment practices. 1 The questionnaire was prompted by an earlier ruling by the court below that the EEOC's investigation was then too incomplete to warrant a preliminary injunction. EEOC v. Bay Shipbuilding Corp., 480 F.Supp. 925 (E.D.Wis.1979). Bay refused to comply with the questionnaire. Consequently a subpoena duces tecum was served upon Bay on March 6, 1980, directing Bay to respond to the questionnaire by March 14, 1980. The subpoena was authorized by Section 709(a) of Title VII of the Civil Rights Act of 1964 which grants the EEOC "access to * * * and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices * * * and is relevant to the charge under investigation" (42 U.S.C. § 2000e-8(a)). In 1972, Congress

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amended Title VII to give the EEOC the investigatory powers contained in 29 U.S.C. § 161 (42 U.S.C. § 2000e-9). By this amendment Congress granted the district courts jurisdiction to enforce subpoenas "upon application" by the EEOC (29 U.S.C. § 161(2)).

On the last day for compliance with the subpoena, Bay mailed the EEOC a petition to revoke the subpoena based upon fifteen objections to the ELI program, the amended charge, and the questionnaire. 2 On April 4, 1980, the EEOC's Milwaukee District Office denied the petition but extended the return date for the subpoena from March 14, 1980, to April 14, 1980. In a fifteen-page document the EEOC's "determination" carefully answered each of Bay's objections to compliance with the subpoena (App. 74-88).

On April 9, 1980, Bay requested the EEOC's general counsel to overrule the Milwaukee District Office's denial of Bay's petition to revoke the subpoena. The appeal was denied by the EEOC's general counsel on May 20, 1980, but he further extended the return date to June 9, 1980. In this "determination" the general counsel adopted each ground used in the District Office's prior denial (App. 121-122). On June 6 the EEOC proposed a settlement with Bay which was rejected on June 13, 1980, resulting in the July 2, 1980, EEOC application to the district court for enforcement of its administrative subpoena.

On July 30 Bay moved to dismiss the application on the ground that it was not a pleading within Rule 7(a) of the Federal Rules of Civil Procedure 3 and furthermore did not state a claim upon which relief could be granted. This motion was supported by a brief suggesting that if the application were not dismissed, it should be treated as a complaint to which Bay could file an answer. On August 5, 1980, the EEOC filed its brief requesting that defendant's motion to dismiss be denied "and that an immediate hearing be set on Plaintiff's application for subpoena enforcement" (App. 143). Bay filed a reply brief on August 19 asking permission to file an answer and counterclaim in response to the application of the EEOC. In the reply brief Bay also asserted that the EEOC application did not state a claim because it did not allege that (1) "the subpoena was issued pursuant to an investigation within the lawful authority of the plaintiff;" (2) "the subpoena is not indefinite;" and (3) "the information requested is relevant" (App. 150). In an August 22 letter to the district judge, the EEOC urged him to grant an expeditious hearing or deny the motion to dismiss outright, with five days for Bay to comply with the subpoena (App. 153).

About six months later, on February 12, 1981, the district court granted the EEOC's application to enforce the subpoena and denied Bay's motions to dismiss and to file an answer and counterclaim (25 EDP P 31,635). Bay was ordered to comply with the subpoena by February 17, and its request for a stay pending appeal was denied.

In his decision and order enforcing the subpoena, Judge Evans rejected Bay's contention that the EEOC application could not institute a civil action because it was not a "complaint" within Rules 3 and 7(a) of the Federal Rules of Civil Procedure. The court held that Rule 81(a)(3) applied instead, which states that the Rules do not apply to proceedings for the enforcement of a subpoena if "otherwise provided by statute * * * or by order of the court in the proceedings." The court noted that the relevant statute did not require subpoena enforcement to begin with the filing of a complaint but rather "upon application" by the agency (19 U.S.C. § 161(2)). Even without this statutory deviation from the Rules, under Rule 81(a)(3) the court could have ordered that a complaint was unnecessary.

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The court then held that since no complaint was required under the Rules, no answer would be allowed. This was not unfair, according to the district court, because (1) Bay's objections to the subpoena, contained in its submissions to the EEOC, were already before the court, (2) Bay already had had two subpoena revocation hearings before the EEOC, (3) Keller's amended charge was statutorily authorized and properly promulgated, and (4) the investigation of the truth of Keller's charges of employment discrimination was akin to the discovery process and therefore should be given a broad scope.

The court also held that a judicial hearing was not required in that the EEOC had twice considered Bay's attempts to revoke the subpoena and a judicial hearing would "only further delay the proceedings." Similarly, Bay's request to file a counterclaim was denied because it would bring further delay.

The district court rejected Bay's objections to the subpoena, since it found that the requests made in the subpoena were "relevant, specific, and not burdensome," and therefore enforceable under 29 U.S.C. §§ 161(1) and 161(2). 4 The court also decided that the subpoena was sufficiently definite and fell within the EEOC's statutory authority, thus meeting the requirements established in United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401. Finally, the court held that it was unnecessary for the application itself to allege that it satisfied the Morton Salt prerequisites to enforcement.

This appeal was brought and we granted a stay pending its resolution. For the reasons that follow, we now affirm.

An Action to Enforce an EEOC Administrative Subpoena May Be

Begun "Upon Application."

The district court correctly exercised its discretion by dispensing with the paper formalities of complaint and answer that would be required by the Federal Rules of Civil Procedure in an ordinary civil action. As its decision noted, the Rules do not apply to proceedings for enforcement of administrative subpoenas when "otherwise provided by statute or by rules of the district court or by order of the court in the proceedings" (Rule 81(a)(3)). The applicable statute granting jurisdiction to the district court, 29 U.S.C. § 161(2), specifically provides that enforcement is begun "upon application" by the agency to the court. 5

Bay had an opportunity to file papers contesting enforcement of the subpoena, and it is not of much importance whether the papers were captioned "answer" or "motion to dismiss." Bay cannot in good faith argue that it was surprised that the district court, after denying its motion to dismiss, also denied its request to renew its objections under a different caption. When as here the defenses to...

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