E.E.O.C. v. Children's Hosp. Medical Center of Northern California

• Citation: 719 F.2d 1426
• Decision Date: 08 November 1983
• Docket Number: No. 80-4572,80-4572
• Parties: 33 Fair Empl.Prac.Cas. 461, 32 Empl. Prac. Dec. P 33,913 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHILDREN'S HOSPITAL MEDICAL CENTER OF NORTHERN CALIFORNIA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1426

719 F.2d 1426

33 Fair Empl.Prac.Cas. 461,

32 Empl. Prac. Dec. P 33,913

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CHILDREN'S HOSPITAL MEDICAL CENTER OF NORTHERN CALIFORNIA Defendant-Appellee.

No. 80-4572.

United States Court of Appeals Ninth Circuit.

Argued and Submitted En Banc July 11, 1983.

Decided Nov. 8, 1983.

Vincent Blackwood, EEOC, Washington, D.C., for plaintiff-appellant.

Kent Jonas, Corbett, Kane & Berk, San Francisco, Cal., for defendant-appellee.

On Appeal from the United States District Court for the Northern District of California.

Before BROWNING, Chief Judge, CHOY, GOODWIN, ANDERSON, TANG, SCHROEDER, FLETCHER, NELSON, CANBY, NORRIS and REINHARDT, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The Equal Employment Opportunity Commission ("EEOC" or "Commission") seeks enforcement of subpoenas issued to aid its investigation of Children's Hospital Medical Center ("CHMC" or "Hospital"). The district court refused enforcement, finding that its prior consent decree stripped the EEOC of its jurisdiction to investigate. We reverse.

I. BACKGROUND

In 1974, a private class action was instituted against CHMC, alleging race discrimination in violation of Title VII, 42 U.S.C. Sec. 2000e et seq. The class was certified under Fed.R.Civ.P. 23(b)(2) as past, present and future black employees and applicants for employment. The EEOC was not a party to any proceedings in the lawsuit.

In late 1976, prior to trial, the parties proposed and the court approved a consent decree. The decree enjoins discrimination against class members, establishes affirmative action goals, and creates an internal grievance procedure to resolve any alleged violations of the decree. The decree is effective until 1984.

In August and September of 1979, three black employees filed charges with the EEOC alleging racial discrimination in suspensions, layoffs, promotions and other terms of employment. As part of its investigation of the charges, the EEOC requested information on the charging parties from the Hospital. The Hospital refused, claiming that the EEOC lacked jurisdiction because the charging parties were limited to the grievance remedy provided by the consent decree.

In November of 1979, the EEOC district director issued three subpoenas to secure this and other information. Both the district director and the full Commission denied CHMC's petitions to revoke the subpoenas. The Hospital continued to refuse compliance and the EEOC sought enforcement in the district court. On September 26, 1980, Judge Orrick, who had entered the consent decree and was supervising its enforcement, refused to enforce the subpoenas, finding the EEOC lacked jurisdiction over the charges because the charging parties and their claims were subject to the decree.

II. ANALYSIS

On appeal, the parties have focused primarily on the res judicata effect of the consent decree on claims arising after entry of the decree. To be sure, that presents an important, and, we admit, difficult question which is worthy of serious consideration. That time is not yet upon us, however, for there is a preliminary question concerning the EEOC's authority to investigate which is dispositive of this appeal. The sound policies dictating against advisory opinions require us to leave the res judicata question for later, when it is fully developed and ready for judicial determination. See EEOC v. Chrysler Corp., 567 F.2d 754, 755 (8th Cir.1977); see also United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 553-554, 5 L.Ed.2d 476, 483 (1961); Babbitt v. United Farm Workers, 442 U.S. 289, 304-305, 99 S.Ct. 2301, 2311-2312, 60 L.Ed.2d 895, 910-911 (1979).

Our refusal to address the res judicata question is grounded in the scope of the EEOC's authority to investigate charges of discrimination and compelling Supreme Court authority. The district court held that the consent decree stripped the EEOC of its jurisdiction to investigate charges of discrimination at the Hospital. The law governing agency investigations mandates a contrary conclusion. The EEOC clearly has the authority to investigate. If, after conducting its investigation, the Commission brings an action or issues a right-to-sue letter to the charging parties which they pursue, then the question of the preclusive effect of the consent decree can be properly asserted and decided.

The scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow. The critical questions are: (1) whether Congress has granted the authority to investigate; (2) whether procedural requirements have been followed; and (3) whether the evidence is relevant and material to the investigation. See Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 508-509, 63 S.Ct. 339, 343, 87 L.Ed. 424, 429 (1943); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614, 633 (1946); United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70 S.Ct. 357, 368-369, 94 L.Ed. 401, 416 (1950); United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112, 119 (1964); Pacific Maritime Association v. Quinn, 491 F.2d 1294, 1296 (9th Cir.1974); Federal Maritime Commission v. Port of Seattle, 521 F.2d 431, 434 (9th Cir.1975); Casey v. FTC, 578 F.2d 793, 799 (9th Cir.1978); EEOC v. Dean Witter Co., 643 F.2d 1334, 1338 (9th Cir.1980); see also B. Schlei and P. Grossman, Employment Discrimination Law 956-959 (2d ed. 1983); 1 K. Davis, Administrative Law Treatise Secs. 4:6, 4:15 (2d ed. 1978); 3 B. Mezines, J. Stein and J. Gruff, Administrative Law Sec. 19.02 (1983). If these factors are shown by the agency, the subpoena should be enforced unless the party being investigated proves the inquiry is unreasonable because it is overbroad or unduly burdensome. Oklahoma Press, 327 U.S. at 217, 66 S.Ct. at 510, 90 L.Ed. at 634; Morton Salt Co., 338 U.S. at 653, 70 S.Ct. at 369, 94 L.Ed. at 416; General Insurance Co. of America v. EEOC, 491 F.2d 133, 136 (9th Cir.1974).

There is no question and CHMC does not dispute that the subpoenas at issue here fall within these restrictions. Congress not only has authorized but requires the Commission to investigate charges of discrimination. 42 U.S.C. Sec. 2000e-5(b) ¹. To carry out its investigatory duty, the EEOC has access to "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. Sec. 2000e-8(a). The evidence sought here--the charging parties' personnel files and job descriptions, and lists of other individuals subject to similar disciplinary action by the Hospital--is clearly relevant and material to the charges being investigated. The method used to gather the information by the EEOC--subpoenas--is authorized by 42 U.S.C. Sec. 2000e-9 which gives the EEOC the same investigative powers as those provided the National Labor Relations Board in 29 U.S.C. Sec. 161.

CHMC argues, and the district court found, that the EEOC lost its "jurisdiction" to investigate because of the res judicata effect of the 1976 consent decree. But agency jurisdiction is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency. ² In Endicott Johnson Corp., the Supreme Court began to lay the foundation of the law governing agency investigations. In response to the argument that the Secretary of Labor's subpoena was beyond her jurisdiction, the Court found that the question of jurisdiction is, in the first instance, for the agency and not the courts; questions of the coverage of the statute in question and the possible defenses available were to be left for judicial review of whatever administrative action the Secretary ultimately brought. 317 U.S. at 509, 63 S.Ct. at 343, 87 L.Ed. at 429; accord, Oklahoma Press Publishing Co., 327 U.S. at 214, 66 S.Ct. at 508, 90 L.Ed. at 632. When, in the words of the Court, "[t]he evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose" it should have been enforced. Endicott Johnson Corp., 317 U.S. at 509, 63 S.Ct. at 343, 87 L.Ed. at 429.

In another important case in this area, Morton Salt Co., the Supreme Court was presented with a claim very similar to the one here. A Federal Trade Commission cease and desist order was enforced by and under the supervision of the Court of Appeals. The order required the filing of compliance reports by Morton Salt. Morton Salt claimed that the FTC could not require additional reporting without proceeding through the court. The Court rejected that argument, placing great emphasis on agency power of "original inquiry."

It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.

338 U.S. at 642-643, 70 S.Ct. at 364, 94 L.Ed. at 411. The Court went on to note that Congress had authorized the FTC to investigate compliance with court decrees. Id. Congress has provided the EEOC with the same authority: "In any case in which an employer, employment agency, or labor organization fails to comply with an order of a court issued in a civil action brought under this section, the Commission may commence proceedings to compel compliance with such order." 42 U.S.C. Sec. 2000e-5(i); see EEOC v. First Alabama Bank of Montgomery, 595 F.2d 1050, 1054 (5th Cir.1979). If we were to say the consent decree divested the Commission of its power to investigate, this provision of Title VII...