Venetian Casino Resort, L.L.C. v. E.E.O.C.

Decision Date27 June 2008
Docket NumberNo. 06-5361.,06-5361.
Citation530 F.3d 925
PartiesVENETIAN CASINO RESORT, L.L.C., Appellant v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 00cv02980).

Kenneth J. McCulloch argued the cause for appellant. With him on the briefs were Richard S. Rosenberg, John J. Manier, Steven D. Cundra, and Frederick H. Kraus.

Robin S. Conrad and Laura Anne Giantris were on the brief for amici curiae Chamber of Commerce of the United States of America and Equal Employment Advisory Council.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, ROGERS, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge.

Seven years ago, Venetian Casino Resort, LLC repaired to district court for an injunction to keep the Equal Employment Opportunity Commission from disclosing certain confidential information without notice. The district court dismissed the case as unripe, but we held otherwise and remanded the case for proceedings on the merits. The district court then granted the Commission's motion for summary judgment and Venetian appealed, arguing the Commission's disclosure policy is unlawful. We agree, reverse, and remand the case for the district court to enter an injunction prohibiting the Commission from disclosing Venetian's confidential information pursuant to its current disclosure policy.

I. Background

Venetian operates a hotel and casino in Las Vegas, Nevada. When it opened in 1999 it hired approximately 4,400 new employees out of 44,000 applicants. Numerous disappointed applicants filed complaints with the Commission alleging Venetian had violated various civil rights statutes, including, as relevant here, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.

To assist the Commission with its investigation of the ADEA claims, Venetian supplied the Commission with information that Venetian deemed, and identified as, confidential. The Commission subsequently issued a subpoena for more documents. In 2001, after the Commission denied Venetian's petition to revoke the subpoena, Venetian brought this action. It argued the Commission's policy, which permits Commission employees to disclose an employer's confidential information to potential ADEA plaintiffs without first notifying the employer that its information will be disclosed, violates the Administrative Procedure Act (APA), the Freedom of Information Act (FOIA), and the Trade Secrets Act (TSA). In particular, Venetian contended the disclosure policy could not be reconciled with the Commission's own FOIA regulations, 29 C.F.R. § 1610.19 et seq., which do require the Commission to notify an employer before disclosing its confidential documents to a third party pursuant to a FOIA request. Venetian's particular concern was that competitors and labor unions would obtain confidential information regarding its hiring practices, which information they would use to its economic detriment. Venetian also sought to enjoin disclosure as infringing its copyrights.

The district court dismissed the case as unripe. Venetian Casino Resort, LLC v. EEOC (Venetian I), 360 F.Supp.2d 55, 60 (2004). We reversed, first noting that the case "presents a clear-cut legal question, i.e., whether the Commission's disclosure policy is inconsistent with the Trade Secrets Act, FOIA, or the APA." Venetian Casino Resort, LLC v. EEOC (Venetian II), 409 F.3d 359, 364-65 (D.C.Cir.2005). We further concluded that Venetian would face the hardship necessary to make its claim ripe because, were review postponed, Venetian would be unable to prevent the Commission from disclosing the confidential information Venetian had already submitted. Id. at 365-66.

Turning to the merits of Venetian's complaint, we found the precise terms of the disclosure policy at issue quite uncertain. In the district court, the parties had focused upon the disclosure policy as it appeared in the EEOC Compliance Manual of 1987, which permitted the Commission to disclose without notice an employer's confidential information related to an ADEA investigation. Id. at 361-62. On appeal, however, the Commission informed this court that the parties had been arguing about a version of the Compliance Manual that was no longer in use; it had been superseded by a new version, released in 1992 but never approved by the Commissioners of the EEOC.

The 1992 Manual is not clear either about what the policy of the Commission is. The introduction to Section 83.1 of the 1992 Manual states: "This section applies to ADEA [and Equal Pay Act] files, but only as set out in [§ 83.1(a)] below." The referenced subsection provides that information in an ADEA file related to an ongoing investigation may be disclosed either under the Commission's regulations implementing the FOIA or under its regulations implementing the Privacy Act. The former regulations explicitly require that when a third party makes a FOIA request for confidential commercial information, the Commission must notify the submitter before disclosing the information. 29 C.F.R. § 1610.19 et seq. The latter regulations permit, as a "routine use" of confidential information, disclosure of "pertinent information to a ... third party as may be appropriate or necessary to perform the Commission's functions under the [ADEA]." 56 Fed.Reg. 10,889, 10,889-90.

Venetian understood this "routine use" provision to mean that, absent a FOIA request, the Commission may disclose confidential information without first notifying the party that submitted it. According to the district court, counsel for the Commission had "unequivocally conceded" it might disclose Venetian's confidential information without notice. Venetian II, 409 F.3d at 362. At oral argument on appeal, however, counsel for the Commission first seemed to repudiate that position outright and then expressed uncertainty whether the Commission had any policy at all regarding the disclosure of confidential information. Id. at 362-63.

We concluded that "the record of this case is deficient, in part because the argument before the District Court was based on an outdated version of the agency's Manual and in part because the Commission's litigation position has been inconsistent." Id. at 367. Inasmuch as it remained "unclear what the disputed provision in the revised Manual means," we remanded the case to the district court "to ascertain the contours of the precise policy at issue. If Venetian's allegations turn out to be correct, the District Court must determine in the first instance whether the policy is contrary to law." Id.

On remand, the Commission submitted the affidavit of Nicholas Inzeo, its Director of Field Programs. He reported that "[t]he 1992 version of the EEOC compliance manual was never submitted to the Commissioners for approval, and the Commissioners never rescinded the 1987 version," but "EEOC employees rely on the 1992 version" nonetheless. Any difference between the two versions was immaterial, however:

Neither version of section 83 requires EEOC field office staff to notify persons that have submitted information (confidential or otherwise) to EEOC during an investigation when a request for that information is received under section 83 or prior to release of information under section 83.

Inzeo added that "[n]othing in any EEOC policy ... is meant to contravene ... the Trade Secrets Act" and, in particular, that Section 83 does not authorize any conduct that would violate the TSA. Even though the introduction to Section 83.1 of the 1992 Manual states, "This section applies to ADEA ... files," Inzeo also declared:

Neither version of section 83 of the Compliance Manual applies to ADEA or EPA charge files, and both versions state that requests for information from closed ADEA ... charge files must be processed under the Freedom of Information Act.

The parties submitted dueling statements of undisputed facts. Venetian claimed the "EEOC's practice is to disclose confidential documents when it deems it appropriate or necessary, without prior notice to the submitter." In response, the Commission stated it follows the 1992 version of the Compliance Manual and "[t]he provisions of Section 83 speak for themselves." It conceded Section 83 does not require the Commission to notify submitters before releasing their confidential information, but represented that it had neither released nor decided to release any of Venetian's confidential information.

The district court determined that "[t]hough it is not definitively clear whether the 1987 or 1992 version constitutes the `official version' of the manual, Section 83 is identical in all material aspects in the two versions." Venetian Casino Resort, LLC v. EEOC (Venetian II), 453 F.Supp.2d 157, 160 n. 3 (2006). The court "assum[ed] the EEOC ha[d] a disclosure policy or practice, written or otherwise, that allows the agency to release documents that the submitting party has identified as containing trade secrets and/or confidential material without first notifying the submitting party." Id. at 160 (emphasis and internal quotation marks omitted). The court then granted the Commission's motion for summary judgment on the ground that the policy was not arbitrary or capricious in violation of the APA because it did not violate any other statute or regulation. Id. at 162-68.

II. Analysis

We review the district court's grant of summary judgment de novo. Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C.Cir.2007). Before proceeding to the legal analysis, we explain our factual conclusion that it is the Commission's policy to disclose confidential information without notice.

A. Factual posture

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