E.E.O.C. v. Exchange Sec. Bank

• Decision Date: 08 April 1976
• Docket Number: No. 74--3784,74--3784
• Citation: 529 F.2d 1214
• Parties: 12 Fair Empl.Prac.Cas. 1066, 11 Empl. Prac. Dec. P 10,839 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. EXCHANGE SECURITY BANK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1214

529 F.2d 1214

12 Fair Empl.Prac.Cas. 1066,

11 Empl. Prac. Dec. P 10,839

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. EXCHANGE SECURITY BANK, Defendant-Appellee.

No. 74--3784.

United States Court of Appeals, Fifth Circuit.

April 8, 1976.

Milton C. Branch, Regional Atty., Vincent W. Roses, Jr., E.E.O.C., Atlanta Regional Litigation Center, Atlanta, Ga., James Moncus, Jr., E.E.O.C., Birmingham, Ala., Wm. A. Carey, Wm. L. Robinson, Charles L. Thomas, E.E.O.C., Washington, D.C., for plaintiff-appellant.

Henry E. Simpson, Quentin Crommelin, Jr., Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BROWN, Chief Judge, GOLDBERG and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This appeal raises three issues in connection with the attempt by the Equal Employment Opportunity Commission to obtain district court enforcement of a subpoena duces tecum issued in the investigation of a claim of racially discriminatory employee discharge:

First, whether the district court could deny enforcement because the claim was too stale to justify action by the court;

Second, whether the Commission's regulations deny procedural due process to a person seeking subpoena revocation so as to invalidate the issuance of the subpoena;

Third, whether the Commission's procedures involve an unauthorized delegation of authority that renders the subpoena invalid.

The facts are simple. In February 1971, a person discharged from employment by the Exchange Security Bank in Birmingham, Alabama, filed a formal charge of racial discrimination with the EEOC pursuant to Title VII of the 1964 Civil Rights Act. 42 U.S.C.A. § 2000e--9 (Supp. II, 1972). Eighteen months later the charge was delivered to the Bank which resisted the production of requested documents. Four months after that, the Commission issued the subpoena. The Bank immediately petitioned to revoke the subpoena. Revocation was denied by the EEOC Director of Compliance in January 1973, nearly two years after the discharge. Although notification of refusal to comply with the subpoena was given by the Bank within the month, application for a court order to enforce the subpoena was not made until over a year later, in June 1974. The time elapsed between the filing of the charge and application to enforce an investigative subpoena was 3 years and 4 months. Three months later the district court dismissed the subpoena on motion of the bank employer.

Delay

The district court held that the unexplained delay of some 21 months in the issuance of the subpoena, and the additional delay of a year and a half in seeking court enforcement 'does not justify the court's favorably considering the application.'

Reversal of the district court's dismissal on this ground is required by our decision in Chromcraft Corp. v. EEOC, 465 F.2d 745 (5th Cir. 1972). In Chromcraft, the employer had successfully obtained a district court order setting aside the Commission's investigative demand for production of evidence on the ground that the EEOC had not served the company notice of pending charges within a reasonable time. In reversing, this Court read the Congressional mandate of the Administrative Procedure Act, 5 U.S.C.A. § 706, which limits judicial review of agency action, to require a showing of prejudice before agency action can be set aside for its lack of punctuality.

In the instant case, there is nothing in the record to show prejudice from the delay. The dismissal was based on a motion which merely asserted that the EEOC had lost 'jurisdiction of the matter and could not, as a matter of law, proceed with any action predicated upon the charge of unlawful employment discrimination.' Certainly, if time, without more, barred proceeding on the charge the district court would have been correct in denying enforcement of an investigative subpoena. This alleged loss of jurisdiction is supported neither by the law nor by the facts.

Even assuming some prejudice, Chromcraft held that something more than time alone would be required to sustain a finding that the Commission's delay was unreasonable. The Court said '. . . there is not any suggestion that . . . (the delay) . . . has resulted from slothfulness, lethargy, inertia or caprice. * * * In the absence of proof of a dilatory attitude on the part of the Commission or its staff,' it was error to decide that the failure to give prompt notice was unreasonable.

Although the 1972 amendments to Title VII provides that notice of a charge must now be served within 10 days of filing, the principle established by Chromcraft must be applied by this Court in considering the effect of delay uncontrolled by statutory time limitations. Certainly the standard applied in the review of agency action in the delay in giving notice of the charge would seem to apply a fortiori to delays in investigation after notice is given.

Procedural Due Process

We agree with the Commission that the issue as to the alleged invalidity of the Commission's procedure for modification and revocation of subpoenas involves the power of delegation rather than constitutional due process. Fault is found with the manner in which an aggrieved party may obtain review by the Commission of a petition to revoke or modify a subpoena issued by a District Director or Deputy District Director. But regardless of the shortcomings in the agency review process, problems of constitutional due process are eliminated because the subpoena must be enforced through the courts. There is no reason why any intra-agency appeal should be required under such circumstances. Therefore, deficiencies in the procedure could not arise to constitutional level. The respondent is not legally required to respond to the subpoena until due process rights have been made available through the district court enforcement proceedings. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947); FTC v. Gibson, 460 F.2d 605 (5th Cir. 1972).

Delegation of Authority

The delegation of authority issue in this case splits in two: first, do the Commission's regulations delegate authority to take final action on petitions to revoke or modify subpoenas, and second, if so, is such delegation permitted under the Act.

Here is the problem. The statute granting the Commission's authority to issue subpoenas incorporates by reference a portion of the National Labor Relations Act. ¹

By substituting the word 'Commission' for the word 'Board' in § 161 of the National Labor Relations Act, we have the statutory authority under which the Commission operates. ² The Commission has authority to delegate the issuance of a subpoena in the first instance. Once a subpoena is issued, however, an aggrieved person may petition the Commission to revoke, and the Commission shall revoke such subpoena if in its opinion the evidence is not relevant or if in its opinion the subpoena does not sufficiently describe the evidence.

Pursuant to...