EEOC v. Federal Exp. Corp., No. 06-16864.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtA. WALLACE TASHIMA, M. MARGARET McKEOWN, and RONALD M. GOULD, Circuit
Citation543 F.3d 531
PartiesEQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellant.
Docket NumberNo. 06-16864.
Decision Date10 September 2008

543 F.3d 531

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee,
v.
FEDERAL EXPRESS CORPORATION, Defendant-Appellant.

No. 06-16864.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 2008.

Filed September 10, 2008.


543 F.3d 532

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543 F.3d 533

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543 F.3d 534

Frederick L. Douglas, Memphis, TN, for the defendant-appellant.

Susan R. Oxford and Anne Noel Occhialino, Equal Employment Opportunity Commission, Washington, DC, for the plaintiff-appellee.

Laura Ann Giantris, McGuiness Norris & Williams, Washington, DC, for amici curiae The Chamber of Commerce of the United States of America, and Equal Employment Advisory Council.

Before: A. WALLACE TASHIMA, M. MARGARET McKEOWN, and RONALD M. GOULD, Circuit Judges.

TASHIMA, Circuit Judge:

We consider three issues pertaining to Federal Express Corporation's ("FedEx") refusal to comply with an administrative subpoena issued by the Equal Employment Opportunity Commission ("EEOC" or "Commission"). First, we consider whether FedEx's compliance with an administrative subpoena in another case, which resulted in FedEx providing the EEOC with the same information that the EEOC seeks to compel in this case, moots this appeal. We hold that it does not. Second, we consider, as a matter of first impression, whether the EEOC retains the authority to issue an administrative subpoena against an employer after a charging party has been issued a right-to-sue notice and instituted a private action. We hold that the EEOC does. Third and finally, we consider whether the EEOC subpoena in this case, which does not seek direct evidence of discrimination, but instead, seeks general employment files in order to help the EEOC draft future information requests, seeks evidence "relevant" to a charge of systemic discrimination. We hold that it does. In light of these holdings, we affirm the district court's decision to enforce the administrative subpoena.

JURISDICTION

The district court had jurisdiction to determine the enforceability of an administrative subpoena pursuant to §§ 706(b) and 710 of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5(b) (requiring the EEOC to investigate charges of discrimination); id. § 2000e-9 (granting to the EEOC the investigatory and subpoena powers of the National Labor Relations Board ("NLRB") by incorporating 29 U.S.C. § 161, which provides that the district courts have jurisdiction to determine the enforceability of an administrative subpoena). We have jurisdiction pursuant to 28 U.S.C. § 1291 because "an order of a District Court enforcing an administrative subpoena is final and ripe for review." EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445 (9th Cir.1988).

BACKGROUND

On November 27, 2004, Tyrone Merritt filed a charge of discrimination with the EEOC against FedEx on behalf of himself and similarly situated African American and Latino employees. Merritt alleged that FedEx's Basic Skills Test, a cognitive ability test which Merritt was required to pass to be eligible for a promotion, had a statistically significant adverse impact on African American and Latino employees. Merritt also alleged that he had been personally denied promotion opportunities, unfairly disciplined, and denied compensation on account of his race.

Merritt, through counsel, requested a right-to-sue notice from the EEOC, which

543 F.3d 535
the EEOC issued to him on October 20, 2005. The EEOC, however, stated in that notice that it would continue to process Merritt's charge. On October 26, 2005, Merritt joined an already-pending class action against FedEx. See Satchell v. Fed. Express, No. 3:03-cv-0259 (N.D.Cal.). The Satchell action is limited geographically to FedEx's Western Region, an area encompassing eleven western states. FedEx employees outside that region are ineligible to join that action

Pursuant to its continuing investigation, the EEOC issued an administrative subpoena to FedEx on February 10, 2006. The subpoena directed FedEx to identify basic information about the computer files that it maintains. The purpose of the information request was to aid the EEOC in fashioning a more detailed request if the need for more information should arise later in the investigation. The EEOC did not request any specific information about specific employees, nor did it request any employee files. The subpoena requested, in relevant part:

Please identify any computerized or machine-readable files that are or have been maintained by you (or any other under contractual or other arrangement) since January 1, 2003 which contain data on personnel activities. This type of file would include, but not be limited to applicants, hiring, promotions, testing, discipline, job analyses and evaluations, performance evaluations, demotions, employment history, amounts of pay, adjustments to pay, work assignment, adjustments to work assignments, training, transfers, terminations, job status, and so forth.

FedEx refused to comply, filing a Petition to Revoke the Subpoena with the EEOC. The EEOC denied that petition. The EEOC then filed an action in district court to enforce its subpoena. FedEx argued that the EEOC is divested of investigatory authority once the party alleging the discriminatory practice initiates (or in this case joins) a private action. The district court rejected FedEx's argument and granted the EEOC's application to enforce the subpoena. Reasoning that "the breadth of power granted the EEOC to investigate discrimination charges is such that validity of an administrative subpoena is not weakened unless the EEOC `plainly lacks' jurisdiction," the district court concluded that there were "no defects in jurisdiction," and that "the evidence requested is relevant and material to the investigation." FedEx timely appealed.

Subsequently, FedEx filed a Notice of Mootness and Request for Dismissal of the appeal. FedEx represented that it had complied with an administrative subpoena relating to a charge filed by a different employee that is identical in every respect to the subpoena issued in this case, i.e., it requested the same information as the Merritt subpoena. The EEOC opposes FedEx's request.1

STANDARD OF REVIEW

The district court's order enforcing the EEOC's administrative subpoena is reviewed de novo. Reich v. Mont. Sulphur & Chem. Co., 32 F.3d 440, 443 (9th Cir. 1994); see also In re Estate of Covington, 450 F.3d 917, 919 n. 4 (9th Cir.2006).

ANALYSIS

I. Mootness

As a threshold matter, we consider FedEx's motion to dismiss this appeal on

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mootness grounds and conclude that this appeal is not moot. FedEx argues that the appeal is moot because it has fully complied with a subpoena in another proceeding, producing information to the EEOC that is "identical to the Merritt subpoena in every respect." Because of this production, FedEx argues further, "the EEOC now possesses all information sought by the Merritt subpoena."

"A case is moot if the issues presented are no longer live and there fails to be a `case or controversy' under Article III of the Constitution." Pilate v. Burrell (In re Burrell), 415 F.3d 994, 998 (9th Cir. 2005). "The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot." Id. (internal quotation marks and citations omitted). In other words, "the court must be able to grant effective relief, or it lacks jurisdiction and must dismiss the appeal." Pub. Util. Comm'n v. FERC, 100 F.3d 1451, 1458 (9th Cir.1996).

Even assuming that this case might otherwise be moot, "there are ... four major exceptions to the mootness doctrine, for (1) collateral legal consequences; (2) wrongs capable of repetition yet evading review; (3) voluntary cessation; and (4) class actions where the named party ceases to represent the class." In re Burrell, 415 F.3d at 998. The first three apply in this case.

The collateral legal consequences exception applies because, although the primary injury may have passed (FedEx has now provided the sought-after information), there remains "a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. at 999 (emphasis omitted) (quoting Super Tire Eng'g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974)). If we were to agree with FedEx's legal argument that the EEOC lacks the authority to investigate a charge after the charging party initiates a private lawsuit, the EEOC's investigation would come to an end. If, on the other hand, we affirm the district court, the EEOC will be able to proceed with the Merritt investigation. If we demur from deciding the legal questions presented by this litigation, the EEOC's authority to continue its investigation based upon the Merritt charge would remain contested, and FedEx will be uncertain whether it needs to comply with future requests for information. Thus, a "collateral" injury survives that can be remedied by this court even though the primary injury may have been resolved. This conclusion is consistent with our cases that have held that complying with an administrative subpoena does not moot an appeal when "our decision affects numerous collateral circumstances." FDIC v. Garner, 126 F.3d 1138, 1142 (9th Cir.1997); see Mont. Sulphur, 32 F.3d at 443 n. 4 (holding that just because the subpoenaed party has "produced most and possibly all of the documents required by the subpoena," that "does not render the appeal moot, because our decision will still have collateral consequences"); Alyeska Pipeline Serv. Co., 836 F.2d at 445 (holding that a subpoena appeal was not moot because reversal would result in documents being returned).

The wrong capable of repetition, yet evading review "exception...

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2 practice notes
  • E.E.O.C. v. Federal Exp. Corp., No. 06-16864.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2008
    ...McKEOWN, and RONALD M. GOULD, Circuit Judges. ORDER AND AMENDED OPINION ORDER The opinion filed September 10, 2008, and reported at 543 F.3d 531, is withdrawn and replaced by the Amended Opinion filed concurrently with this order. With the filing of the Amended Opinion, Judges McKeown and G......
  • Fall River Rural Elec. Co-Op., Inc. v. F.E.R.C., No. 06-71944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2008
    ...have spent much time addressing Fall River's implied consent argument in this case, as Section 6 of the FPA unequivocally provides that a 543 F.3d 531 license "may be altered ... only upon mutual agreement between the licensee and the Commission." Fall River cites no authority indicating th......
2 cases
  • E.E.O.C. v. Federal Exp. Corp., No. 06-16864.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2008
    ...McKEOWN, and RONALD M. GOULD, Circuit Judges. ORDER AND AMENDED OPINION ORDER The opinion filed September 10, 2008, and reported at 543 F.3d 531, is withdrawn and replaced by the Amended Opinion filed concurrently with this order. With the filing of the Amended Opinion, Judges McKeown and G......
  • Fall River Rural Elec. Co-Op., Inc. v. F.E.R.C., No. 06-71944.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2008
    ...have spent much time addressing Fall River's implied consent argument in this case, as Section 6 of the FPA unequivocally provides that a 543 F.3d 531 license "may be altered ... only upon mutual agreement between the licensee and the Commission." Fall River cites no authority indicating th......

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