Branch v. Phillips Petroleum Co.

• Decision Date: 05 March 1981
• Docket Number: No. 80-2015,80-2015
• Citation: 638 F.2d 873
• Parties: 25 Fair Empl.Prac.Cas. 653, 25 Empl. Prac. Dec. P 31,614, 7 Fed. R. Evid. Serv. 1578 Bobby L. BRANCH, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Movant-Appellant. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 873

638 F.2d 873

25 Fair Empl.Prac.Cas. 653,

25 Empl. Prac. Dec. P 31,614,

7 Fed. R. Evid. Serv. 1578

Bobby L. BRANCH, Plaintiff, v. PHILLIPS PETROLEUM COMPANY, Defendant-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Movant-Appellant.

No. 80-2015

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

March 5, 1981.

Leroy D. Clark, Gen. Counsel, E.E.O.C., Constance L. Dupre, James N. Finney, Associate Gen. Counsel, W. Sherman Rogers, Vella M. Fink, Washington, D. C., for movant-appellant.

John B. Abercrombie, Joseph R. Weeks, Houston, Tex., Gordon Cooper, Houston, Tex., for defendant-appellee.

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

Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This appeal arises out of a Title VII suit brought by Bobby L. Branch against his employer, Phillips Petroleum Company, appellee herein. Phillips sought, obtained, and served a subpoena on the custodian of records for the Equal Employment Opportunity Commission, Harriet Joan Ehrlich, directing her to produce for inspection and copying any and all records related to any charge of discrimination filed by Branch. The Commission, which is not a party to this lawsuit, resisted the subpoena, claiming that some of the documents sought by Phillips were privileged. The district court entered an order compelling compliance with the subpoena, and the Commission appeals. No party requests oral argument. See Fifth Circuit Local Rule 18. For the reasons stated below we vacate and remand.

I. FACTS

In March, 1975, Branch filed a charge with the Equal Employment Opportunity Commission alleging that Phillips had discriminated against him on account of his race when his employer suspended him. He also charged that Phillips had discriminated against him, other blacks, and Mexican-Americans in its hiring, promotion, and demotion practices. The Commission initially determined that there was reasonable cause to believe that the charge was true, but after making some conciliation efforts it rescinded that determination and found no reasonable cause. Then, in August, 1977, Branch filed a second charge against Phillips, alleging racial discrimination in its failure to promote him. At the time of the events giving rise to this appeal, the Commission had yet to make an assessment of the merits of this second charge.

Subsequently, Branch brought this employment discrimination suit against Phillips based upon the conduct alleged in his first charge of discrimination filed with the EEOC. Branch claimed that he had been discriminatorily suspended and demoted because of his race and that Phillips had established a pattern and practice of racial discrimination. During his deposition testimony, Branch stated that he had filed charges of discrimination with the EEOC against two of his prior employers. He also admitted that he had filed his second charge of racial discrimination against Phillips.

Phillips then obtained the subpoena which is the subject of this appeal. The subpoena was served on Harriet Joan Ehrlich, director of the Commission's Houston district office, and commanded her to testify at the taking of her deposition at 11:30 A.M. on July 19, 1979, the very day on which it was served. The subpoena also directed Ehrlich to bring for inspection and copying

any and all files, records, papers, billings, personnel and/or employment records, including correspondence of any claims and other reports submitted by and any way related to BOBBY L. BRANCH, and any and all files related to any charge of discrimination filed by BOBBY L. BRANCH against any employer or other individual.

Ehrlich responded to the subpoena by producing records related to Branch's first charge against Phillips. However, in written responses to questions accompanying the subpoena, she explained that certain records covered by the terms of the subpoena had been excluded pursuant to Section 83.6 of the EEOC Compliance Manual. Because this provision prohibits their disclosure, Ehrlich withheld information connected with charges filed by Branch against other employers, agency memoranda containing staff evaluations and recommendations, and information related to conciliation efforts made by the Commission. In addition, the Commission did not reveal any information connected with Branch's second charge filed against Phillips.

Phillips' attempts to resolve the dispute informally were unavailing. Finally, after nearly a year had elapsed, Phillips filed a motion to compel compliance with the subpoena. In response, the Commission moved to have the subpoena quashed on the ground that disclosure of the requested documents was prohibited by the confidentiality provisions of Title VII, 42 U.S.C. §§ 2000e-5(b) and 2000e-8(e). The district court issued an order without reasons compelling the Commission to produce the records demanded in the subpoena, ¹ and the Commission appeals.

II. APPEALABILITY OF THE DISTRICT COURT'S ORDER

Initially, Phillips contends that the court is without jurisdiction to entertain this appeal. Under 28 U.S.C. § 1291, the courts of appeal "have jurisdiction of appeals from all final decisions of the district courts of the United States...." Phillips relies upon the well-established general principle that most orders requiring or denying discovery, including those issued in connection with a subpoena, are not "final decisions" within the meaning of section 1291 and, hence, are not immediately appealable. See, e. g., United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). See generally 4 Moore's Federal Practice P 26.83(3) (2d ed. 1979). Ordinarily, the subpoenaed party must either comply with the terms of the subpoena or refuse to do so and contest its validity if he is subsequently cited for contempt for his refusal to obey. To permit immediate appeal from orders compelling compliance or denying a motion to quash would open the door to multiple appeals, thereby offending the policy against "piecemeal litigation" embodied in the finality rule. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 634, 89 L.Ed. 911, 916 (1945). ² Phillips maintains that an application of these principles makes the district court's order unappealable at present.

In response, the Commission relies upon an exception to the general rule which has evolved in this circuit. This exception allows immediate appeal by a governmental entity where the government is not a party to the lawsuit and asserts some governmental privilege to resist release of the subpoenaed material. See, e. g., Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir. 1973); Fears v. Burris Manufacturing Co., 436 F.2d 1357, 1360 n.2 (5th Cir. 1971); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5th Cir. 1970), cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); Overby v. U. S. Fidelity & Guaranty Co., 224 F.2d 158, 162 (5th Cir. 1955).

These arguments were first advanced by the parties to another panel of this court when Phillips filed a motion to dismiss the appeal. In an order issued without opinion, the panel denied Phillips' motion. That disposition by the prior panel is binding upon this panel. United States v. Alfrey, 620 F.2d 551 (5th Cir. 1980); Trunkline Gas Co. v. FERC, 608 F.2d 582 (5th Cir. 1979). Accordingly, Phillips' contention must be rejected.

Yet, the theory upon which that motion presumably was denied may be unsound in light of the Supreme Court's decision of United States v. Ryan, supra. The Supreme Court has acknowledged only a limited number of exceptions to the general rule that pre-contempt disclosure orders are not appealable. See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (permitting pre-contempt appeal by the President of the United States in order to avoid unnecessary constitutional confrontation between two branches of government); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (permitting appeal from an order that finally determines rights which are collateral to those asserted in the action, are too important to be denied review, and which cannot await final judgment because they would be irreparably lost); Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918) (permitting appeal where denial of immediate review would render impossible any review of the party's claims). All of the recognized exceptions are extremely narrow, and the lower courts have been exceedingly chary of enlarging their scope. See, e. g., In re Attorney General of United States, 596 F.2d 58 (2d Cir. 1979), cert. denied, 444 U.S. 903, 100 S.Ct. 217, 62 L.Ed.2d 141 (1979) (refusing to extend Nixon exception to Attorney General); North Carolina Ass'n of Black Lawyers v. North Carolina Board of Law Examiners, 538 F.2d 547 (4th Cir. 1976) (refusing to extend Cohen exception beyond claims of true privilege).

However, before Ryan was decided in 1971, this circuit carved out another exception allowing immediate appeal by the government when it was not a party to the action and was asserting some governmental privilege. In cases like Overby, where disclosure is sought from a non-governmental party who has custody of the documents, application of this governmental privilege exception appears to be no more than a simple variation of the rule developed by the Supreme Court in Perlman. ³

But extending the governmental privilege exception to cases, like Cates, in which the government is both holder of the privilege and custodian of the subpoenaed material introduces a problem. The rationale supporting this application of the rule has been expressed in the following terms:

The theory of allowing an appeal...