Reynolds Metals Co. v. Rumsfeld, s. 76-2124
| Decision Date | 14 October 1977 |
| Docket Number | Nos. 76-2124,s. 76-2124 |
| Citation | 564 F.2d 663 |
| Parties | 15 Fair Empl.Prac.Cas. 1185, 45 A.L.R.Fed. 1, 15 Empl. Prac. Dec. P 7878 REYNOLDS METALS COMPANY, Appellant, v. Donald H. RUMSFELD, Secretary, U. S. Department of Defense, W. J. Usery, Secretary, U. S. Department of Labor, Lawrence Z. Lorber, Director, Office of Federal Contract Compliance Programs, Lt. General Woodrow W. Vaughan, Director, Defense Supply Agency, and Equal Employment Opportunity Commission, Ethel Bent Walsh, Acting Chairman, Appellees. REYNOLDS METALS COMPANY, Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Ethel Bent Walsh, Acting Chairman, Appellant, and Donald H. Rumsfeld, Secretary, U. S. Department of Defense, W. J. Usery, Secretary, U. S. Department of Labor, Lawrence Z. Lorber, Director, Office of Federal Contract Compliance Programs, Lt. General Woodrow W. Vaughan, Director, Defense Supply Agency, Defendants. REYNOLDS METALS COMPANY, Appellee, v. Donald H. RUMSFELD, Secretary, U. S. Department of Defense, W. J. Usery, Secretary, U. S. Department of Labor, Lawrence Z. Lorber, Director, Office of Federal Contract Compliance Programs, Lt. General Woodrow W. Vaughan, Director, Defense Supply Agency, Appellants, and Equal Employment Opportunity Commission, Ethel Bent Walsh, Acting Chairman, Defendant. to 76-2126. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Burt A. Braverman, Washington, D. C. (Frances J. Chetwynd, Cole, Zylstra & Raywid, Washington, D. C., Austin B. Graff, Labor Atty., on brief, Richmond, Va.), for appellant in 76-2124 and for appellee in 76-2125 and 76-2126.
John D. Schmelzer, Atty., E.E.O.C., Washington, D. C. (Alfred G. Albert, Acting Solicitor of Labor, James D. Henry, Associate Solicitor of Labor, David A. Drachsler, Counsel for Equal Opportunity Programs, Dept. of Labor, Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, E.E.O.C., Washington, D. C., on brief), for appellees in 76-2124 and for appellants in 76-2125 and 76-2126.
Before LEONARD P. MOORE, Senior Circuit Judge, Second Circuit, sitting by designation, and BUTZNER and HALL, Circuit Judges.
This appeal and cross appeal arise from the district court's grant of summary judgment in a case brought by Reynolds Metals Company seeking declaratory and injunctive relief from operation of a 1974 Memorandum of Understanding between the Equal Employment Opportunity Commission and the Department of Labor's Office of Federal Contract Compliance Programs (compliance office). The district court upheld the validity of paragraphs 1, 2, 8, and 9 of the Memorandum, which authorize these agencies to exchange information concerning employers' compliance with laws and regulations forbidding discrimination. It invalidated paragraph 10 of the Memorandum which provides that complaints filed with the compliance office shall be deemed charges filed with the commission. This paragraph also directs the compliance office to transmit such complaints to the commission. 1 We affirm the district court's decision upholding the paragraphs dealing with the exchange of information, and we reverse the ruling that paragraph 10 is invalid.
Both the commission and the compliance office are responsible for eliminating discrimination in employment based on race, color, religion, sex, or national origin. For a number of years they have shared information obtained from employers, employees, and their own investigators. In 1974 they executed the Memorandum of Understanding to establish procedures for this exchange of information and for the transmission of complaints. 2 The agencies base their joint activity on well defined authority. The Civil Rights Act authorizes the commission to cooperate with other public agencies. 3 Likewise, the compliance office's regulations for implementing Executive Order 11246 explicitly state that information and reports obtained pursuant to those regulations will be used in connection with the administration of both the Order and the Civil Rights Act. 4
As a government contractor, Reynolds must comply with Executive Orders 11246 and 11375 5 and with the compliance office's implementing regulations. 6 These rules require each government contractor to prepare affirmative action programs for submission to the federal agency contracting with it. The programs must identify the contractor's deficiencies concerning the equal employment of minority workers and set corrective goals and timetables. The contracting agency receiving the information is deemed a compliance agency for the purpose of enforcing Executive Order 11246. It reviews the government contractor's policies and practices concerning the employment of minorities and furnishes the compliance office detailed information on the subject, including copies of the material supplied by the contractor.
Reynolds submitted its programs and related documents to its contracting and compliance agency, the Defense Supply Agency of the Department of Defense. Pursuant to the Memorandum, the commission requested copies of the information Reynolds had furnished about its Sheffield, Alabama, facility. Reynolds then brought this action for declaratory and injunctive relief. It contends that the Memorandum of Understanding is unlawful, and it seeks to restrain the government officials responsible for the operation of the Defense Supply Agency and the compliance office from furnishing the commission information about its employment practices.
The district court held that the provisions in the Memorandum of Understanding for the exchange of information did not run afoul of the Federal Reports Act, the Administrative Procedure Act, or the regulations governing interagency reports. It also ruled that the Memorandum conformed to Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Act of 1972. It found no violation of the principles of administrative due process.
The district court's thorough consideration of these issues dispenses with any need for us to discuss them. We will, however, address a point Reynolds presses on appeal which the district court did not discuss, probably because Reynolds presented it only obliquely.
Reynolds asserts that its programs and related information are protected from disclosure to the commission by a qualified privilege for self-evaluative documents. It relies on Bredice v. Doctor's Hospital, Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd 156 U.S.App.D.C. 199, 479 F.2d 920 (1973), a medical malpractice suit in which the court protected from disclosure reports prepared by a hospital review committee for purely internal purposes. The Bredice court justified this qualified privilege because of the need to encourage frank, candid self-evaluation.
The privilege recognized in Bredice is not available to Reynolds. The company's reports were not prepared solely for internal use, or even for the external use of only the Defense Supply Agency and the compliance office. When Reynolds contracted with the government, the regulation requiring the reports placed Reynolds on notice that they also would be used for administration of the Civil Rights Act of 1964. 7 Since the commission, not the compliance office, is charged with primary responsibility for enforcing this Act, Reynolds cannot claim that the information it furnished the Defense Supply Agency is protected by a qualified privilege from disclosure to the commission. 8
For the reasons stated by the district court in its well considered opinion, supplemented by our discussion of Reynolds's claim of a qualified privilege, we conclude that paragraphs 1, 2, 8, and 9 of the Memorandum of Understanding are valid. Reynolds therefore is not entitled to an injunction restraining the respondents from delivering the information that the commission seeks.
Paragraph 10 of the Memorandum of Understanding provides:
Complaints filed with OFCC (the compliance office) shall be deemed charges filed with EEOC and OFCC shall promptly transmit such charges to the appropriate EEOC District Office.
Reynolds contends that this provision is invalid for two closely related reasons: It unlawfully delegates to the commission the compliance office's responsibility for processing the complaints, and it was promulgated in violation of the notice and comment requirements of the Administrative Procedure Act. The government asserts that instead of delegating the compliance office's responsibility, the paragraph simply provides that the compliance office will act as an agent for the commission by receiving and transmitting misdirected complaints. Because of this limited function, the government says the notice and comment requirements of the Administrative Procedure Act are not applicable.
The district court decided that paragraph 10 provided a new means for initiating complaints to the commission and that it created a substantial impact on Reynolds because of the commission's backlog of undecided charges and the consequent exposure of the company to liability. It therefore concluded that the government's failure to comply with the notice and comment requirements of the Administrative Procedure Act invalidated paragraph 10, and it enjoined the government from implementing that paragraph insofar as Reynolds is concerned. The government filed a cross-appeal assigning error to this aspect of the court's judgment. 9
In support of its claim that the Memorandum improperly delegates the compliance office's responsibility for processing complaints, Reynolds emphasizes that the regulations implementing Executive Order 11246 direct the compliance office and compliance agencies to promptly investigate and resolve all complaints about discrimination filed with them against a government contractor. 10 Reynolds asserts that transmitting such complaints to the commission does not comply with the regulations and constitutes an unlawful delegation...
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