704 F.2d 144 (5th Cir. 1983), 81-2347, E.E.O.C. v. Neches Butane Products Co.

Docket Nº:81-2347.
Citation:704 F.2d 144
Case Date:April 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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704 F.2d 144 (5th Cir. 1983)




No. 81-2347.

United States Court of Appeals, Fifth Circuit

April 20, 1983

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        Warren Duplinsky, Atty., E.E.O.C., Washington, D.C., for plaintiff-appellant.

        Douglas E. Hamel, J.M. Hopper, Houston, Tex., for defendant-appellee.

        Douglas S. McDowell, Thomas R. Bagby, Robert E. Williams, Washington, D.C., for amicus curiae (Equal Employment Advisory Council).

        Appeal from the United States District Court for the Eastern District of Texas.

        Before RUBIN, RANDALL and JOLLY, Circuit Judges.

        RANDALL, Circuit Judge:

        This Equal Employment Opportunity Commission subpoena enforcement action comes to us on an interlocutory appeal from the Eastern District of Texas. Since we do not have jurisdiction to reach the merits, this appeal is dismissed. We do not consider the Commission's petition, in the alternative, for a writ of mandamus because the Commission makes no effort to comply with Federal Rule of Appellate Procedure 21, which, in the absence of extraordinary circumstances not present here, controls mandamus actions in the circuit courts of appeals.

       I. THE FACTS.

        The events leading to this suit began in late 1978 or early 1979 when the Commission's Houston office submitted workforce profiles of forty-six Houston businesses to the Commission's Office of Systemic Programs for computer analysis. The resulting study showed that, of the forty-six employers, Neches Butane Products Company ranked second, eighth, and thirteenth in its underemployment of blacks, hispanics, and women, respectively. On the basis of this study, the Houston office recommended that a Commissioner's charge be issued against the Company under sections 706 and 707 of title VII, 42 U.S.C. Secs. 2000e-5, -6 (1976). The Office of Systemic Programs concurred in the recommendation, which was then randomly submitted to Commissioner Rodriguez for review. See E.E.O.C.Compl.Man. (CCH) p 563, Sec. 16.3(e) (1979) (proposed charges are submitted to commissioners on a "rotating basis"). 1

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        On July 3, 1979, Commissioner Rodriguez signed and verified the charge, which alleged that the Company had violated and continued to violate Title VII of the Civil Rights Act of 1964 by discriminating against women and minorities in recruitment, hiring, job assignment, promotion, and other terms and conditions of employment. The Commission's investigation did not go smoothly. After the Commission and the Company tried but failed to agree on what Company records the Commission was to see, the Commission's Houston office issued a subpoena duces tecum. The subpoena requested various documents concerning the Company's hiring and promotional practices since 1972.

        When Neches still refused to comply, the Commission brought a subpoena enforcement action in the Eastern District of Texas pursuant to section 710 of title VII, 42 U.S.C. Sec. 2000e-9 (1976). The Company defended its refusal primarily on the ground that the Commission's discrimination action had been wrongfully instituted: the Company alleged that Commissioner Rodriguez had signed the charge because he had been improperly influenced by the League of United Latin American Citizens, which, in turn, had been influenced by a disgruntled Neches employee (A.J. Albarado) who wished to pursue a personal vendetta against the Company. In order to substantiate its allegations, the Company requested various documents concerning the Commission's decision to bring the charge, and asked to take Commissioner Rodriguez's deposition. The district court noted that the Company had apparently raised a substantial question concerning the Commission's good faith in bringing the charge, and therefore granted the Company's motion to compel discovery.

        This time it was the Commission's turn to refuse to comply with the district court's discovery order. The Company responded by moving that the sanction of an indefinite suspension be imposed against the Commission; the Commission replied by stating that sanctions were entirely inappropriate or, in the alternative, that if a sanction was appropriate, the most appropriate was not a mere suspension but rather an outright dismissal--which at least would have had the virtue of being directly appealable to the Fifth Circuit. The district court then ruled on July 1, 1981, that the Commission should not be allowed to proceed with its subpoena enforcement action until the Company was afforded an opportunity to take discovery. The Company, said the district court, should have a chance to inquire into the legitimacy of the Commission's motives in bringing the discrimination charge in the first place. The district court expressly refused to dismiss the action as the Commission had requested and instead "stay[ed] the [subpoena enforcement] proceedings until such time as the EEOC complies with the Court's [discovery] Order."

        The Commission then filed a timely notice of appeal, which, in its pertinent entirety, read as follows:

Notice is hereby given that Plaintiff, Equal Employment Opportunity Commission, hereby appeals to the United States Court of Appeals for the Fifth Circuit from the Memorandum Opinion and Order of this Court entered in this action on the 1st day of July, 1981, holding that the proceedings in this action are indefinitely stayed pending the taking of the deposition of Commissioner Armando Rodriguez.

        1 Record at 321. The Commission now asks us to hold, first, that we have jurisdiction to reach the merits of this appeal, and second, that the district court erred in ordering Commissioner Rodriguez to submit to discovery as a condition precedent to the enforcement of the Commission's subpoena.


        If we treat this case as an appeal (rather than as a petition for a writ of mandamus), we could theoretically reach the merits by proceeding either directly under 28 U.S.C. Sec. 1291 or under the collateral order doctrine. We consider each approach in turn.

        A. Section 1291.

        The threshold issue on this appeal is whether we have the power to inquire into

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our jurisdiction, given that a motions panel of this court has already denied the Company's motion to dismiss this suit for want of jurisdiction.

        In this circuit, as in many others, a preliminary motion to dismiss for want of jurisdiction is submitted to a motions panel for disposition, often without opinion. See United States Court of Appeals for the Fifth Circuit, Internal Operating Procedures, Sec. 4(e) (1981); United States v. Bear Marine Services, 696 F.2d 1117, 1119 & n. 4 (5th Cir.1983). A denial by a motions panel of a motion to dismiss for want of jurisdiction, however, is only provisional. With the benefit of full briefing and (as was the case here) oral argument, the panel to which the case falls for disposition on the merits may conclude that the motions decision was improvident and should be reconsidered. 2

        We think that such reconsideration is in order here. The parties each agree, as they must, that we should first consider whether we have jurisdiction to review the stay order as one that has become "final" within the meaning of 28 U.S.C.A. Sec. 1291 (West Supp. June, 1982). 3 On this point, we believe ourselves bound by a controlling precedent to conclude that the order is not "final." In United States v. Richardson, 204 F.2d 552 (5th Cir.1953), the defendant alleged that the government's condemnation...

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