Associated Dry Goods Corp. v. EQUAL EMP. OPP. COM'N

• Decision Date: 25 June 1976
• Docket Number: Civ. A. No. 75-297-R.
• Citation: 419 F. Supp. 814
• Parties: ASSOCIATED DRY GOODS CORPORATION, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

419 F. Supp. 814

ASSOCIATED DRY GOODS CORPORATION, Plaintiff, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.

Civ. A. No. 75-297-R.

United States District Court, E. D. Virginia, Richmond Division.

June 25, 1976.

COPYRIGHT MATERIAL OMITTED

Hill B. Wellford, Jr., Hunton & Williams, Richmond, Va., for plaintiff.

Anthony DeMarco, Washington, D.C., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Associated Dry Goods Corporation (hereinafter "Associated") brings this civil action against the Equal Employment Opportunity Commission (hereinafter "Commission") for declaratory, injunctive and other relief. Specifically, Associated seeks to prevent the EEOC from permitting the disclosure to potential litigants of information which the EEOC has subpoenaed from Associated's Horne's Division in the furtherance of an investigation into employment discrimination charges. Associated is a Virginia corporation owning numerous retain department stores throughout the United States, operating under various names. One, "Horne's," operates in the metropolitan Pittsburgh, Pennsylvania area. The Commission, an agency of the federal government,¹ is charged by virtue of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., with the responsibility inter alia of investigating charges of alleged discrimination in employment on account of sex, race, religion, or national origin.

From November, 1971 through June, 1973, several employees and former employees of Horne's filed charges of alleged discrimination in employment on account of their sex or race pursuant to § 706(b) of Title VII, 42 U.S.C. § 2000e-5(b). The Commission commenced to investigate the charges, and its Pittsburgh district office served "interrogatories" on Horne's in February and April of 1974. The questionnaires sought a wide range of information on Horne's business and employment practices, not limited to the situations of the individual charging parties. Horne's refused to answer without assurance from the Commission that the information it provided would not be disclosed to the charging parties, their attorneys, or others. Associated's reluctance apparently stemmed from an incident in which an employee of the Commission transmitted information on February 25, 1974 concerning the discrimination charges to a private attorney for one or more of the charging parties. Attempts to resolve the dispute were unavailing,² and on October 18, 1974, the Commission issued a subpoena for the records sought. Horne's petitioned for revocation of the subpoena under date of October 23, 1974 in accordance with Commission regulation 29 C.F.R. § 1601.56(b). The Commission denied the petition by letter of May 9, 1975. So far as this Court's file reflects, the Commission has not as yet received any of the information or documents requested of Horne's by interrogatory or by subpoena duces tecum.³

The instant action seeks to prevent the Commission from permitting the disclosure to charging parties and other persons of information which Associated's Horne's Division supplies to it during the investigation of the employment discrimination charges. Plaintiff alleges that much of the information sought is of a highly personal nature, and further that much of the information is commercial or financial and its disclosure would substantially injure the business's competitive position. Accordingly, the plaintiff seeks a permanent injunction enjoining the Commission from disclosing to any person any records which Horne's might be required to produce during the investigation of the administrative charges. The plaintiff also seeks a declaratory judgment holding the disclosure policies of 29 C.F.R. §§ 1601.20,⁴ and 1610.17(b),⁵ and § 83 of the Commission's Compliance Manual, Compliance Manual Procedures, Volume 1, §§ 83.1-.9 (May 1973),⁶ to be null and void as they conflict with federal statutory law. These regulations exclude the Commission's investigative files from the nondisclosure provisions of §§ 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5(b) and 2000e-8(e), the exemptions to the Freedom of Information Act, as amended, 5 U.S.C. § 552(b), and the policies underlying those exceptions. The Compliance Manual affirmatively authorizes disclosure of the Commission's case files to selected parties.

The defendant has filed a motion to dismiss to which plaintiff has responded. The matter, having been fully briefed to the Court, is deemed ripe for disposition.

In considering the defendant's motion to dismiss, all the material factual allegations of the petition must be accepted as admitted. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Moreover, within this Circuit, a petition may not be dismissed "unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim." Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir. 1969), citing Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

The defendant contends, first, that the Court lacks jurisdiction over the subject matter of the instant action. Fed.R.Civ.P., Rule 12(b)(1). The plaintiff has alleged that the defendant's actions and policies are in violation of federal law, 42 U.S.C. §§ 2000e-5(b), 2000e-8(c), 5 U.S.C. § 552(b), 18 U.S.C. § 1905, and that the matter in controversy exceeds the sum of $10,000, exclusive of interest and costs. Since the claims arise under laws of the United States, jurisdiction is attained by virtue of 28 U.S.C. § 1331. E. g., Burroughs Corporation v. Schlesinger, et al., 403 F.Supp. 633 (E.D.Va.1975). Defendant's assertion that the sections of federal law cited by plaintiff are not applicable to the instant case does not defeat jurisdiction, but rather contests whether the plaintiff has stated a cause of action. See Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

Additionally, plaintiff has alleged jurisdiction under 28 U.S.C. § 1337 which vests jurisdiction in this Court in proceedings "arising under any act of Congress regulating commerce . . ." (Emphasis added). One of the federal acts allegedly violated by the defendant is Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and the Commerce Clause has been consistently accepted as one of the Act's primary constitutional justifications. E. g., Communication Workers of America, AFL-CIO v. American Telephone and Telegraph Company, Long Lines Department, 513 F.2d 1024, 1031 (2d Cir. 1975). Thus, jurisdiction over those claims based on alleged violations of Title VII is alternatively conferred upon the Court under § 1337.

Finally, it is alleged that jurisdiction over this action is conferred on the Court by § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706, which, as an independent source of jurisdiction, empowers district courts to review much agency action regardless of the amount in controversy. While judicial holdings on this subject are conflicting,⁷ in the case of Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961), Judge Haynsworth, speaking for the United States Court of Appeals for the Fourth Circuit, held that § 10(e) of the Administrative Procedure Act gives federal courts jurisdiction to enforce the Act's requirement that agency determinations proceed with reasonable expedition. The holding was premised, however, on the fact that no alternative means were available for the plaintiff to enforce the Act's directives. Yet, it seems to stand for the proposition that the Act, without more, can provide a basis for jurisdiction. See also Littell v. Morton, 445 F.2d 1207, 1210 (4th Cir. 1971); McEachern v. United States, 321 F.2d 31, 33 (4th Cir. 1963). The Supreme Court has not squarely ruled on the issue but recent decisions lend significant support to the theory that administrative agency decisions are liberally reviewable in the federal courts. E. g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 402, 28 L.Ed.2d 136 (1971); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Court concludes therefore that the Administrative Procedure Act authorizes district courts to entertain suits challenging the validity of agency action without regard to the amount in controversy, or other requirements contained in alternative jurisdictional statutes. See Etheridge v. Schlesinger, 362 F.Supp. 198 (E.D.Va.1973). But see International Federation of Professional and Technical Engineers, Local No. 1 v. Williams, 389 F.Supp. 287 (E.D.Va.1974), aff'd without opinion, 510 F.2d 966 (4th Cir. 1975).⁸

The defendant contends further that the Commission is not a proper party, and for reasons which follow, the Court is in agreement with respect to some of the causes. The defendant's argument is premised upon the case of Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 412, 96 L.Ed. 534 (1952); the Supreme Court noted that "when Congress authorized one of its agencies to be sued eo nomine, it does so in explicit language, or impliedly because the agency is the offspring of such a suable entity." The Court continued, dismissing in that case the Civil Service Commission:

"Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court." Id

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