E.E.O.C., In re

• Decision Date: 11 July 1983
• Docket Number: No. 83-2284,83-2284
• Citation: 709 F.2d 392
• Parties: 32 Fair Empl.Prac.Cas. 361, 32 Empl. Prac. Dec. P 33,716 In re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 392

709 F.2d 392

32 Fair Empl.Prac.Cas. 361,

32 Empl. Prac. Dec. P 33,716

In re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner.

No. 83-2284.

United States Court of Appeals, Fifth Circuit.

July 11, 1983.

Vincent Blackwood, Washington, D.C., for E.E.O.C.

Joe J. Fisher, U.S. Dist. Judge, Beaumont, Tex., Bob Wortham, U.S. Atty., Tyler, Tex., Vinson & Elkins, Douglas E. Hamel, Houston, Tex., for appellee.

On Petition for Writ of Mandamus to 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 a petition for a writ of mandamus. The district court ordered the Commission to submit to extensive discovery and Commissioner Rodriguez to give an oral deposition as conditions precedent to the enforcement of the subpoena. We grant the writ because we find that, under the circumstances of this case, the district court's orders exceeded its authority.

We have already recounted the facts of this case in an earlier opinion. EEOC v. Neches Butane Products Co., 704 F.2d 144 (5th Cir.1983). Briefly, these proceedings began in late 1978 or early 1979 when the Commission's computerized statistical profiles of various Houston businesses revealed that Neches Butane Products Company ranked suspiciously low in the hiring of blacks, hispanics, and women. The Commissioner to whom the case had been randomly assigned for review, Armando Rodriguez, recommended the issuance of a Commissioner's charge under sections 706 and 707 of title VII, 42 U.S.C. Secs. 2000e-5, -6 (1976). 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").

The resulting investigation did not go smoothly. Because the Company refused to comply with any of the Commission's requests for documents, the Commission was forced to bring 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 then defended and continues to defend, its refusal to comply with the requests 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 Company 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 a discovery order. The Commission argued that--in the absence of truly extraordinary circumstances not present here--the transformation of summary enforcement proceedings under section 710 into extensive discovery and counterdiscovery battles would destroy the enforcement mechanism of title VII. The district court rejected this as well as several subsidiary arguments, and 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 court then "stay[ed] the [subpoena enforcement] proceedings until such time as the EEOC complie[d] with the Court's [discovery] Order."

The Commission now seeks a writ of mandamus directing the district court to vacate its order compelling counterdiscovery, to vacate its stay order, and to proceed expeditiously to resolve the underlying subpoena enforcement action.

I. THE PROPRIETY OF MANDAMUS.

This case originally came to us under 28 U.S.C. Sec. 1291 as an appeal from a purportedly final order. Although we then held that we did not have jurisdiction to hear the merits of the case, we suggested that if the Commission wished to pursue the matter, it should submit a petition for mandamus presenting the same issues within thirty days. 704 F.2d at 152 & n. 7. The Commission has now submitted such a petition within the time allowed, and the Company has filed a brief in opposition. See Fed.R.App.P. 21; Local Rule 21. We therefore consider whether we should exercise our discretion under the All Writs Act, 28 U.S.C. Sec. 1651 (1976), and hear the merits of the Commission's petition.

Although the Company correctly observes that mandamus has historically been a drastic remedy generally reserved for really "extraordinary" cases, see, e.g., Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 385, 74 S.Ct. 145, 149, 98 L.Ed. 106 (1953), the federal courts of appeals (as well as the Supreme Court) have shown an increasing willingness in recent years to use the writ as a one-time-only device to "settle new and important problems" that might have otherwise evaded expeditious review. Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 239, 13 L.Ed.2d 152 (1964). As the District of Columbia Circuit explained in Colonial Times, Inc. v. Gasch, "Schlagenhauf authorizes departure from the final judgment rule when the appellate court is convinced that resolution of an important, undecided issue will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice." 509 F.2d 517, 524 (D.C.Cir.1975). Accord, United States v. Hughes, 413 F.2d 1244, 1248-49 (5th Cir.1969), vacated as moot sub nom. United States v. Gifford-Hill-American, Inc., 397 U.S. 93, 90 S.Ct. 817, 25 L.Ed.2d 77 (1970); SEC v. Krentzman, 397 F.2d 55, 59 (5th Cir.1968); see generally 16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3934 (1977 & Supp.1983) (section entitled "Supervisory and Advisory Mandamus").

The present case, as Part II of this opinion will show, meets all of the Schlagenhauf requirements. The substantive issue presented is one of first impression in this circuit and directly concerns the efficiency and dispatch with which the Commission will be able to carry out its mandate under title VII. The Sixth Circuit has held that Schlagenhauf-type mandamus was appropriate in a case very similar to the present one. EEOC v. K-Mart Corp., 694 F.2d 1055, 1060-61 (6th Cir.1982) (mandamus issued to prevent district court from making EEOC commissioner submit to deposition as condition precedent to enforcement of EEOC subpoena). In the present case, moreover, the district court not only coupled its discovery order with an order to stay all further proceedings, but also refused to dismiss the suit, thus rendering the discovery order not appealable unless the Commission first submitted Commissioner Rodriguez to examination. See 704 F.2d at 146. We therefore think that this is an appropriate case for what the commentators have come to call "supervisory" or "advisory" mandamus. See, e.g., 16 C. Wright, A. Miller & E. Cooper, supra, Sec. 3934.

Because this case comes to us in the form of a petition for a writ of mandamus, our review of the district court's order is necessarily limited. The writ is appropriately issued only "when there is 'usurpation of judicial power' or a clear abuse of discretion," Schlagenhauf, supra, 379 U.S. at 110, 85 S.Ct. at 238 (citation omitted), and "the party seeking [it] has 'the burden of showing that its right to issuance of the writ is "clear and indisputable." ' " Will v. United States, 389 U.S. 90, 96, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967) (citations omitted). Translated into the language of the present case, our standard of review requires us to issue the writ only if we find that the district court's exercise of its discretion in issuing the discovery order is inconsistent with the overall design of title VII and with the specific purpose of section 710. In the words of the Sixth Circuit, we must find that "[t]he district court's order exceeds the narrow scope of authority a district court has in summary subpoena enforcement proceedings and is inconsistent with the enforcement scheme of Title VII." K-Mart, supra, 694 F.2d at 1064.

Finally, and as we had occasion to note in a previous supervisory or advisory mandamus case, "[t]he appropriateness of the writ in this particular instance is not to be construed as making mandamus appropriate in subsequent cases in which the principles ... set forth in this opinion are applied." Hughes, supra, 413 F.2d at 1249. Indeed, the very purpose of the present "exercise of our 'expository and supervisory functions,' " as we then observed, is to meet "the compelling need to settle a new issue so that it can become only an ordinary issue." Hughes, supra, 413 F.2d at 1249 (citations omitted); accord, Krentzman, supra, 397 F.2d at 59. With that important caveat, we now establish the standard that should govern the exercise of a district court's discretion in passing on a counterdiscovery request in an EEOC subpoena enforcement action.

II. THE APPROPRIATE STANDARD.

The statutory provision that governs this case, section 710 of title VII, reads in its entirety: "For the purpose of all hearings and investigations conducted by the Commission or its duly authorized agents or agencies, section [11 of the National Labor Relations Act] shall apply." 42 U.S.C. Sec. 2000e-9 (1976). To give meaning to section 710, we must therefore look, first, to the history and purpose...