Food Town Stores, Inc. v. E.E.O.C.

Decision Date28 June 1983
Docket NumberNo. 82-1564,82-1564
Parties31 Fair Empl.Prac.Cas. 1327, 32 Empl. Prac. Dec. P 33,629 FOOD TOWN STORES, INC., Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Eleanor Holmes Norton, in her official capacity & as Chair of EEOC and James H. Troy, in his official capacity as District Director of EEOC, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Guy F. Driver, Jr., Winston-Salem, N.C. (David A. Irvin, Francis C. Clark, Womble, Carlyle, Sandridge & Rice, Winston-Salem, N.C., on brief), for appellant.

Diane B. Johnston (Michael N. Martinez, Gen. Counsel (Acting), Philip B. Sklover, Associate Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, Warren Bo Duplinsky, Washington, D.C., on brief), for appellee.

Before MURNAGHAN and ERVIN, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge.

ERVIN, Circuit Judge:

This is an appeal by Food Town Stores, Inc. ("Food Town") from the United States District Court for the Middle District of North Carolina. Food Town brought this action seeking to compel the Equal Employment Opportunity Commission ("EEOC") to issue a subpoena during the investigation of a charge of employment discrimination against Food Town. The district court dismissed Food Town's complaint on the ground that it lacked subject matter jurisdiction. In the alternative, the district court granted the EEOC's motion for summary judgment, holding that the EEOC was not required to issue the subpoena. Because we conclude that the EEOC was not required to issue the subpoena, we affirm.

I.

On July 11, 1979, Ethel Bent Walsh, then an EEOC commissioner, filed a charge against Food Town alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq. In investigating the charge, the EEOC made a number of requests for information from Food Town. Food Town refused to respond fully and wrote to Commissioner Walsh asking her to substantiate the factual basis of the charge. Walsh responded that she could not supply that substantiation. Food Town then, relying on 29 U.S.C. Sec. 161, asked the EEOC to issue a subpoena to compel the testimony of Commissioner Walsh concerning the factual basis of the charge. 29 U.S.C. Sec. 161 provides, in pertinent part:

The [EEOC] or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation requested in such application.

The EEOC denied this request, relying on 29 C.F.R. Sec. 1601.16(a), which provides that:

Neither the person claiming to be aggrieved, the person filing a charge on behalf of such person nor the respondent shall have the right to demand that a subpoena be issued.

When Food Town continued to refuse to supply the information requested by the EEOC, the EEOC issued a subpoena for the information. Food Town responded by petitioning the EEOC to revoke the subpoena.

On May 23, 1980, while that petition was pending, Food Town filed this action seeking to compel the EEOC to issue a subpoena requiring Commissioner Walsh to submit to a deposition for the sole purpose of substantiating the factual basis of the EEOC's charge. Food Town alleged that Commissioner Walsh's testimony was necessary in order for Food Town to support its pending petition to revoke the EEOC's subpoena or to resist any EEOC attempt to enforce its subpoena. Food Town argued that 29 C.F.R. Sec. 1601.16(a) is invalid because it conflicts with 29 U.S.C. Sec. 161.

Food Town's petition to the EEOC to revoke the EEOC's subpoena against Food Town was denied and on April 1, 1981, the EEOC commenced subpoena enforcement proceedings against Food Town in the district court. Food Town eventually agreed to comply with the EEOC subpoena.

Food Town nevertheless continued this action seeking to compel the EEOC to issue the subpoena against Commissioner Walsh. On May 26, 1982, the district court dismissed the action for lack of subject matter jurisdiction because it found that the United States' sovereign immunity had not been waived. The district court also ruled, in the alternative, that if it did have jurisdiction, it would grant the EEOC's motion for summary judgment because 29 C.F.R. Sec. 1601.16(a) did not conflict with 29 U.S.C. Sec. 161. This appeal followed.

II.

Food Town's first contention is that the district court erred in holding that it did not possess subject matter jurisdiction. We agree.

Food Town's claims concerning the conflict between 29 C.F.R. Sec. 1601.16(a) and 29 U.S.C. Sec. 161 and the EEOC's resulting refusal to issue the subpoena clearly present a question arising under a federal statute within the meaning of 28 U.S.C. Sec. 1331(a). Such federal question jurisdiction is not defeated by the absence of a special statutory procedure for obtaining judicial review; 29 U.S.C. Sec. 1331(a) grants jurisdiction in the district courts for "nonstatutory review" actions. See Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977).

Although this action is nominally against a federal agency and federal officers, it is in fact against the United States. See Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052, 10 L.Ed.2d 191 (1963). The doctrine of sovereign immunity therefore applies; Food Town may proceed against the United States only if the United States has consented to the suit. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Absent such a statutory waiver of immunity, the district court was without 28 U.S.C. Sec. 1331(a) federal question jurisdiction. Jaffee v. United States, 592 F.2d 712, 718 (3d Cir.1979), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979); Estate of Watson v. Blumenthal, 586 F.2d 925, 929 (2d Cir.1978).

In 5 U.S.C. Sec. 702, Congress has waived sovereign immunity in "nonstatutory review" cases wherein nonmonetary relief is sought. See Warin v. Director, Department of Treasury, 672 F.2d 590, 592 (6th Cir.1982); Beller v. Middendorf, 632 F.2d 788, 797 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3032, 69 L.Ed.2d 405 (1981); Johnsrud v. Carter, 620 F.2d 29, 31 (3d Cir.1980). The agency action must be "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. Sec. 704. By definition, the promulgation of the questioned regulation and its enforcement (i.e., the failure to issue the subpoena) are agency actions. 5 U.S.C. Sec. 551(13). The dispute here concerns whether those actions are "final agency action[s]."

The district court held that there had been no final agency action. The district court first noted that an EEOC reasonable cause determination is not "final agency action." See Georator Corp. v. E.E.O.C., 592 F.2d 765 (4th Cir.1979). The district court then reasoned that any EEOC action leading up to that determination likewise could not be final. Since the EEOC's promulgation of the regulation and failure to issue the subpoena are actions leading up to the reasonable cause determination, the district court concluded that those actions are not final agency actions and, thus, the 5 U.S.C. Sec. 702 waiver does not apply. We reject the district court's reasoning.

The promulgation of 29 C.F.R. Sec. 1601.16(a) is a final action because that regulation is "definitive," not "informal ... or only the ruling of a subordinate official ... or tentative;" the "process of rule making was complete" and Food Town "claimed to be 'aggrieved.' " Abbott Laboratories v. Gardner, 387 U.S. 136, 151, 87 S.Ct. 1507, 1516, 18 L.Ed.2d 681 (1967) (Food and Drug Commission regulation final agency action upon promulgation) (citations omitted). 1 The failure to issue the subpoena also is a final action because it has "determinant consequences." Georator, 592 F.2d at 768. That failure denied Food Town its right, asserted under 29 U.S.C. Sec. 161, to have the subpoena issued, which denial is a "determinant consequence." See Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 589 n. 8 (D.C.Cir.1971) (test of finality "is not whether the order is the last administrative order contemplated by the statutory scheme, but rather whether it imposes an obligation or denies a right"). 2

Furthermore, there is no support for the reasoning that all EEOC actions prefatory to the nonfinal reasonable cause determination are likewise nonfinal. Since finality can occur when a party is deprived of a statutory right, as well as when liability is imposed, the focus should be on the nature of the consequence accruing from the EEOC's action, not on what stage in the proceedings the action occurred. It is illogical to immunize EEOC promulgated regulations from judicial review merely because their enforcement would be prefatory to a reasonable cause determination. This is especially so where, as here, the regulation allegedly deprives a party of a statutory right, which deprivation subsequently is not reviewable in the district court trial. Thus it cannot be that federal courts lack jurisdiction over challenges to EEOC regulations. Indeed, if such were the law, then this court could not have entertained the challenge to the EEOC disclosure regulations in E.E.O.C. v. Joseph Horne Co., 607 F.2d 1075 (4th Cir.1979), rev'd sub nom., E.E.O.C. v. Associated Dry Goods Corp., 449 U.S. 590, 101 S.Ct. 817, 66 L.Ed.2d 762 (1981).

We therefore conclude that the promulgation of 29 C.F.R. Sec. 1601.16(a) and its enforcement against Food Town are, within the meaning of 5 U.S.C. Sec. 702, final agency actions for which there is no other adequate remedy in a court. Sovereign immunity thus is waived, and the district court possessed subject matter jurisdiction over this action. 3

III.

Having concluded that the district court erred in dismissing the action for lack of...

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