Stone v. EDS Federal Corporation

• Decision Date: 14 November 1972
• Docket Number: No. C-71-903.,C-71-903.
• Citation: 351 F. Supp. 340
• Court: U.S. District Court — Northern District of California
• Parties: Julia B. STONE, Plaintiff, v. E.D.S. FEDERAL CORPORATION, Defendant.

351 F. Supp. 340

Julia B. STONE, Plaintiff, v. E.D.S. FEDERAL CORPORATION, Defendant.

No. C-71-903.

United States District Court, N. D. California.

November 14, 1972.

Charles Cline Moore, Haizlip, Ring, O'Donnell & Moore, San Francisco, Cal., for plaintiff.

Robert V. Magor, Severson, Werson, Berke & Melchior, J. Mark Montobbio, San Francisco, Cal., for defendant.

William A. Carey, Gen. Counsel, Charles Wilson, Associate Gen. Counsel, Vincent A. Fuller, Jr., Washington, D. C., amicus curiae for EEOC.

OPINION AND ORDER

SCHNACKE, District Judge.

This is an action based upon the anti-discrimination provisions of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The action is based upon a claim of sex discrimination, alleging that the plaintiff was denied by the defendant, solely because of her sex, various opportunities, perquisites, etc., she would have otherwise been entitled to receive as a so-called "systems engineer". It is alleged in the complaint that she fulfilled the statutory prerequisites for filing suit, that she filed a charge with the Equal Employment Opportunity Commission (EEOC) and, upon the failure of its attempts at conciliation, the Commission issued the statutory notice of right to sue, as provided for in 42 U.S. C. § 2000e-5(e). This portion of the Act provides in general that if the Commission has been unable to obtain voluntary compliance within 30 days after a charge is filed, "the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge . . ." (Emphasis added.)

§ 2000e-5 goes on to provide that such actions may be brought in the United States District Court and certain types of relief provided.

Although it is alleged in the complaint that the statutory notice was issued by the Commission, it is clearly established by affidavit and undisputed by plaintiff that in fact the Commission itself issued no such notice but that instead the notice was issued by the acting District Director for the San Francisco District Office of EEOC. Defendant's argument is that the Court is without jurisdiction because of the plaintiff's failure to comply with a jurisdictional prerequisite to the maintenance of the action, namely, the failure to obtain such a notice from the Commission itself. The argument runs as follows: (1) the right to sue here invoked is entirely statutory; (2) as such, it exists only where all statutory prerequisites to the maintenance of the suit are present; (3) one of the statutory prerequisites is the obtaining of a notice to sue issued by the Commission (meaning the Commission itself); (4) that the notice involved in this action, not being issued by the Commission itself but by a subordinate or purported delegate thereof, is null and void; (5) therefore the statutory prerequisites have not been complied with; and (6) it necessarily follows that the action must fail for lack of jurisdiction over the subject matter.

As mentioned above, the motion is in the alternative, to dismiss or to grant a summary judgment. Since the complaint is proper on its face, in that it alleges, rightly or wrongly, issuance by the Commission, it could be argued that the motion to dismiss must necessarily fail and, since resort must be had to the affidavits as to the "true" facts, the motion must be treated as one for summary judgment. However, we need not be concerned with terminology since the defect asserted goes to the very jurisdiction of the Court and could be raised and acted upon by the Court sua sponte.

That the validity of the notice is jurisdictional can hardly be doubted, Stebbins v. Continental Insurance Companies, 143 U.S.App.D.C. 121, 442 F.2d 843 (1971); Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136, 1139-1141 and cases cited at n. 16 (5th Cir. 1971); Choate v. Caterpillar Tractor Company, 402 F.2d 357, 359 (7th Cir. 1968); cf. McDonald v. American Fed. of Musicians of U. S. and Can., 308 F.Supp. 664, 666-667 (N.D.Ill.1970); Cox v. United States Gypsum Company, 284 F.Supp. 74, 80-81 (N.D.Ind.1968), mod. and aff'd, 409 F.2d 289, 291-292 (7th Cir. 1969).

Plaintiff predictably criticizes the long delay in defendant's bringing the motion and the point to the attention of the Court and counsel. It has been unquestionably an imposition on the Court and counsel to allow the matter to proceed this far, with numerous discovery proceedings having been taken and numerous orders having been sought and obtained from the Court, but it is well settled that if the matter is jurisdictional, as defendant claims, no waiver, delay or laches will confer jurisdiction upon the Court and in fact the objection could have been made at any time, either by the parties or the Court sua sponte, even upon appeal. Pacific National Insurance Co. v. Transport Insurance Co., 341 F.2d 514 (8th Cir. 1965), certiorari denied, 381 U.S. 912, 85 S.Ct. 1536, 14 L. Ed.2d 434; Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24 (8th Cir. 1964). Moreover, plaintiff is hardly blameless, since the pertinent allegation in the complaint did not accord with the facts.

While the motion is based upon what laymen would doubtless consider a narrow and technical ground, it obviously does not follow that it is without merit, and any question regarding the Court's jurisdiction must be seriously regarded. In fact, the statute does contemplate and at least arguably requires the issurance of such a notice by the Commission and there is no express authority permitting a delegation of such power to any individual such as the Acting Director here involved.

Since the validity of the notice must necessarily be predicated upon some properly delegated authority of the Commission to the Assistant Regional Director, it must first be determined whether such authority to delegate exists and then, if it does exist, whether it has been exercised by the Commission.

Defendant does not find it necessary to argue, nor does it argue, that the Commission is wholly without authority to delegate any of its functions. It does argue, however, that this particular function, in view of its importance in the statutory scheme, cannot be delegated. It is important, it is argued, in that it signifies an end to the conciliation procedures and authorizes the commencement of litigation; it is therefore wholly distinguishable from such house-keeping functions as may be within the implied authority of the Commission to delegate.

Defendant relies upon a line of Supreme Court decisions, of which Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 803, 86 L.Ed. 895 (1942), is typical, narrowly construing the power of administrative agencies to delegate authority, particularly authority of an important character. In the Cudahy case, the Supreme Court struck down an attempt by the Wage and Hour Administration to delegate to Regional Directors the power to sign and issue subpoenas, on the basis that there was no legislative grant or showing of intent to grant such authority to...