Equal Employment Opportunity Commission v. City of Long Branch

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-2514

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Appellant

v.

CITY OF LONG BRANCH

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On Appeal from the United States District Court for the

District of New Jersey

(D. N.J. No. 3-15-cv-01081)

District Judge: Honorable Michael A. Shipp

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Submitted under Third Circuit L.A.R. 34.1(a)

November 15, 2016

Before: AMBRO, CHAGARES, and FUENTES, Circuit

Judges.

(Filed: August 2, 2017)

Jeremy D. Horowitz

U.S. Equal Employment Opportunity Commission

Office of General Counsel

131 M. St., N.E., Room 5SW24J

Washington, D.C. 20507

Counsel for Appellant

Emery J. Mishky

Margolis Edelstein

400 Connell Drive, Suite 5400

Berkeley Heights, N.J. 07922

Counsel for Appellee

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OPINION

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CHAGARES, Circuit Judge.

The Equal Employment Opportunity Commission

(“EEOC”) filed a subpoena enforcement action against the

City of Long Branch in furtherance of its efforts to obtain

documents pertaining to a charge of discrimination. A

Magistrate Judge issued an order to enforce the subpoena, in

part, and the EEOC appealed the order to the District Court.

The District Court affirmed the Magistrate Judge’s order.

Before us is the EEOC’s appeal from the District Court’s

order.

The EEOC raises two substantive issues on appeal, the

first regarding the exhaustion of administrative remedies and

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the second regarding the disclosure to the charging party of

other employees’ disciplinary and related records. However,

our review of the record reveals a significant procedural

defect pertaining to the treatment of the motion to enforce

under the Federal Magistrates Act. This error, in light of the

facts of this case, precludes us from reaching the merits of the

EEOC’s arguments. For the reasons that follow, we will

vacate the order of the District Court and remand.

I.

On or about February 7, 2013, Lieutenant Lyndon

Johnson (“Lt. Johnson”) of the Long Branch Police

Department filed a charge of discrimination with the EEOC

against the City of Long Branch (“Long Branch”). Lt.

Johnson is an African-American man. He charged that his

employer discriminated against him on the basis of race, in

violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq. (“Title VII”), by subjecting him “to

different and harsher disciplinary measures than similarly

situated white colleagues who committed the same or similar

. . . infractions.” Appendix (“App.”) 32. On August 19,

2013, the EEOC served Long Branch with a notice to charge.

On December 30, 2013, the EEOC requested “all disciplinary

records” for Lt. Johnson and six Caucasian comparator

officers. App. 19, 33. Long Branch responded by letter to

the EEOC that it was preparing the requested materials but

that it would not produce the materials unless the EEOC

executed a confidentiality agreement wherein it would agree

to not reveal “confidential” materials, including the personnel

files of the comparators, to anyone, including Lt. Johnson.

App. 54. The EEOC refused to execute such an agreement.

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The EEOC served a subpoena on Long Branch by

email and certified mail on July 23, 2014. The subpoena

requested “a copy of any and all documents which refer to or

address the disciplinary records” for Lt. Johnson and the six

comparators. App. 63. Long Branch, in response, sent the

EEOC a document titled “Notice of Motion to Quash

Subpoena.” App. 68. The document had a caption for the

Superior Court of New Jersey Department of Law and Public

Safety Division on Civil Rights. The EEOC received this

document on August 7, 2014. The notice reiterated Long

Branch’s position that it would not disclose the requested

documents without an executed confidentiality agreement.

The document reads, in part:

7. The subpoena seeks confidential

disciplinary records of various Officers, who

have no involvement in the claimant’s matter,

and this is contrary to the Policy and Procedures

of Internal Affairs which has strict requirements

for release of such records.

8. As previously stated, the respondent is

not in privy to disclose the subpoenaed records

unless EEOC meets the criteria as set-forth in

the Policy and Procedures, or in the alternative,

guarantee[s] Confidential[ity] of these records.

9. Accordingly, the respondent object[s] to

the subpoena of these disciplinary records and

seek[s] to quash the subpoena.

App. 72.

Section 1601.16(b) of Title 29 of the Code of Federal

Regulations requires that a person or entity intending not to

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comply with an EEOC subpoena submit a petition to modify

or revoke the subpoena to the EEOC’s Director or General

Counsel within five days after service. 29 C.F.R. §

1601.16(b)(1). Long Branch never submitted such a petition.

On February 10, 2015, the EEOC filed a motion in

federal district court seeking enforcement of its subpoena.

The EEOC argued that because Long Branch failed to exhaust

its administrative remedies by filing a timely petition to

revoke or modify, it waived its right to object to the

subpoena. In addition, the EEOC argued that even if Long

Branch were not precluded from contesting the subpoena, its

refusal to turn over the subpoenaed materials was improper.

A federal Magistrate Judge issued an order enforcing

the subpoena, in part. The Magistrate Judge acknowledged

the EEOC’s exhaustion argument but did not consider

whether the statute and regulations established an exhaustion

requirement. Citing the EEOC’s brief, the Magistrate Judge

simply observed that “[h]ere, Respondent failed to file a

timely petition to revoke or modify the EEOC subpoena in

accordance with regulations, and instead remained steadfast

in its refusal to produce the records.” App. 12. The

Magistrate Judge then compelled Long Branch to provide the

requested documents, but required the EEOC to avoid

disclosure of the comparators’ employment and personnel

records to Lt. Johnson, reasoning that under EEOC v.

Associated Dry Goods Corp., 449 U.S. 590 (1981), disclosure

of the comparators’ records to Lt. Johnson would be

improper.

The EEOC appealed the Magistrate Judge’s order to

the District Court, requesting that the District Court “reverse

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that part of the Order . . . that restricts EEOC’s ability to

disclose records obtain[ed] during its investigation to the

charging party or his counsel.” App. 108. The EEOC did not

object to the part of the Magistrate Judge’s order referencing

exhaustion, and the District Court did not address the issue.

The District Court affirmed the Magistrate Judge’s order that

Long Branch turn over the comparators’ employment and

personnel records and that the EEOC not disclose those files

to Lt. Johnson. Like the Magistrate Judge, the District Court

relied on Associated Dry Goods, holding that “‘[w]ith respect

to all files other than his own, [the charging party] is a

stranger.’ Accordingly, the Order’s restriction on the

disclosure of the comparator’s personnel and employment

records was not contrary to law.” App. 8 (alterations in

original) (citation omitted) (quoting Assoc. Dry Goods, 449

U.S. at 603). The EEOC timely appealed.

II.

The District Court had jurisdiction pursuant to 42

U.S.C. §§ 2000e-5(f)(3) and 2000e-9 and 29 U.S.C. § 161(2).

We have jurisdiction pursuant to 28 U.S.C. § 1291.

We apply an abuse of discretion standard when

reviewing a district court’s decision to enforce an

administrative subpoena. McLane Co. v. EEOC, 137 S. Ct.

1159, 1170 (2017), as revised, (Apr. 3, 2017). “Abuse of

discretion occurs when ‘the district court’s decision rests

upon a clearly erroneous finding of fact, an errant conclusion

of law or an improper application of law to fact.’” Chao v.

Cmty. Tr. Co., 474 F.3d 75, 79 (3d Cir. 2007) (quoting NLRB

v. Frazier, 966 F.2d 812, 815 (3d Cir. 1992)).

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III.

The EEOC raises two issues on appeal: (1) whether

Long Branch is precluded from contesting the motion to

enforce because it failed to exhaust its administrative

remedies (hereinafter, the “exhaustion issue”), and (2)

whether the EEOC may disclose information from the non-

charging parties’ employment and personnel records to Lt.

Johnson (hereinafter, the “disclosure issue”). Despite the

compelling nature of these issues, we will not reach them

because of a procedural error committed by the District

Court: the District Court erroneously treated the motion to

enforce that the Magistrate Judge had reviewed as a

nondispositive motion instead of a dispositive motion. This is

a meaningful distinction under the Federal Magistrates Act,

28 U.S.C. § 631, et seq., as the categorization of motion

dictates, inter alia, the level of authority with which a

magistrate judge may act on a motion and the availability and

standard of review afforded by the District Court and our

Court. We will first review the differing treatment of

nondispositive and dispositive motions under the Act and as

developed by our jurisprudence. We will then turn to the

facts of the instant case.

A.

The office of magistrate judge was created by the

Federal Magistrates Act, 28 U.S.C. § 631, et seq. (the “Act”)

to “relieve courts of unnecessary work and to improve access

to the courts.” Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,

150 F.3d 245, 250 (3d Cir. 1998) (quoting Niehaus v. Kan.

Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986)). In this

Circuit, magistrate judges are highly valued and are vital to

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the just and efficient resolution of cases filed in the federal

courts. See Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct.

1932, 1938–39 (2015) (“[I]t is no exaggeration to say that

without the distinguished service of [magistrate and

bankruptcy judges], the work of the federal court system

would grind nearly to a halt.”); Peretz v. United States, 501

U.S. 923, 928 (1991) (“Given the bloated dockets that district

courts have now come to expect as ordinary, the role of the

magistrate in today’s federal judicial system is nothing less

than indispensable.” (quoting Gov’t of the V.I. v. Williams,

892 F.2d 305, 308 (3d Cir. 1989))).

In furtherance of this purpose, the Act authorizes

district court judges to delegate certain matters to magistrate

judges. See 28 U.S.C. § 636. Because magistrate judges are

not Article III judges, the Act carefully delineates the types of

matters that may be referred to magistrate judges, so as to

ensure that “the essential attributes of the judicial power”

remain in Article III tribunals, N. Pipeline Constr. Co. v.

Marathon Pipe Line Co., 458 U.S. 50, 77 (1982) (quoting

Crowell v. Benson, 285 U.S. 22, 51 (1932)). See Frazier, 966

F.2d at 816. Relevant here, the Act authorizes district courts

to refer nondispositive and dispositive motions to magistrate

judges. Unlike a nondispositive motion (such as a discovery

motion), a motion is dispositive if a decision on the motion

would effectively determine a claim or defense of a party.

See Fed. R. Civ. P. 72(a), (b)(1); see also In re U.S.

Healthcare, 159 F.3d 142, 145 (3d Cir. 1998) (holding that a

motion to remand is dispositive because “it preclusively

determines the important point that there will not be a federal

forum available to entertain a particular dispute”); Cont’l Cas.

Co., 150 F.3d at 251 (treating a motion as nondispositive

because it “did not dispose of the lawsuit or a claim”).

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1.

A district court may refer a nondispositive motion to a

magistrate judge “to hear and determine,” under subparagraph

(A) of § 636(b)(1). 28 U.S.C. § 636(b)(1)(A).1 Following a

magistrate judge’s issuance of an order on a nondispositive

matter, the parties may serve and file objections to the order

within 14 days of being served with a copy of the order. Fed.

R. Civ. P. 72(a). If a party objects to a magistrate judge’s

order regarding a nondispositive matter, the district court

“must consider timely objections and modify or set aside any

part of the order that is clearly erroneous or is contrary to

law.” Id.; 28 U.S.C. § 636(b)(1)(A). This standard requires

the District Court to review findings of fact for clear error and

1

Subparagraph (A) provides, in pertinent part:

[A] judge may designate a magistrate judge to

hear and determine any pretrial matter pending

before the court, except a motion for injunctive

relief, for judgment on the pleadings, for

summary judgment, to dismiss or quash an

indictment or information made by the

defendant, to suppress evidence in a criminal

case, to dismiss or to permit maintenance of a

class action, to dismiss for failure to state a

claim upon which relief can be granted, and to

involuntarily dismiss an action.

28 U.S.C. § 636(b)(1)(A).

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to review matters of law de novo. Haines v. Liggett Grp. Inc.,

975 F.2d 81, 91 (3d Cir. 1992).

If no party objects to the magistrate judge’s order

regarding a nondispositive matter, the magistrate judge’s

order becomes binding “unless the district court takes some

action to overrule it.” See United Steelworkers of Am. v. N.J.

Zinc Co., 828 F.2d 1001, 1005 (3d Cir. 1987). “[A] party’s

failure to object to a magistrate’s ruling waives the party’s

objection.” Id. at 1006.

2.

Under subparagraph (B), a district court may refer a

dispositive motion to a magistrate judge “to conduct hearings,

including evidentiary hearings, and to submit to a judge of the

court proposed findings of fact and recommendations for the

disposition.” 28 U.S.C. § 636(b)(1)(B).2 The product of a

2

Subparagraph (B) provides:

[A] judge may also designate a magistrate judge

to conduct hearings, including evidentiary

hearings, and to submit to a judge of the court

proposed findings of fact and recommendations

for the disposition, by a judge of the court, of

any motion excepted in subparagraph (A), of

applications for posttrial relief made by

individuals convicted of criminal offenses and

of prisoner petitions challenging conditions of

confinement.

28 U.S.C. § 636(b)(1)(B) (footnote omitted).

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magistrate judge, following a referral of a dispositive matter,

is often called a “report and recommendation.” Parties “may

serve and file specific written objections to the proposed

findings and recommendations” within 14 days of being

served with a copy of the magistrate judge’s report and

recommendation. Fed. R. Civ. P. 72(b)(2). If a party objects

timely to a magistrate judge’s report and recommendation, the

district court must “make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §

636(b)(1); see also Fed. R. Civ. P. 72(b)(3). If a party does

not object timely to a magistrate judge’s report and

recommendation, the party may lose its right to de novo

review by the district court. Nara v. Frank, 488 F.3d 187, 194

(3d Cir. 2007) (citing Henderson v. Carlson, 812 F.2d 874,

878–79 (3d Cir. 1987)). However, we have held that because

a district court must take some action for a report and

recommendation to become a final order and because “[t]he

authority and the responsibility to make an informed, final

determination . . . remains with the judge,” Mathews v.

Weber, 423 U.S. 261, 271 (1976), even absent objections to

the report and recommendation, a district court should “afford

some level of review to dispositive legal issues raised by the

report,” Henderson, 812 F.2d at 878. We have described this

level of review as “reasoned consideration.” Id. If a party

fails to object timely to the magistrate judge’s report and

recommendation, we generally review the district court’s

order for plain error.3 Brightwell v. Lehman, 637 F.3d 187,

3

We have observed that “plain error review is so

disadvantageous to the losing party that magistrate judges

would be well advised to caution litigants that they ‘must

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193 (3d Cir. 2011); Nara, 488 F.3d at 194. But see Leyva v.

Williams, 504 F.3d 357, 363–64 (3d Cir. 2007) (applying de

novo appellate review when a pro se litigant did not timely

object to a magistrate judge’s report and recommendation and

the magistrate judge did not “warn[] that [the litigant’s]

failure to object to the Magistrate Judge’s report would result

in forfeiture of his rights”); Henderson, 812 F.2d at 878 n.4

(“[W]hen the district court elects to exercise its power to

review a magistrate’s report de novo, a party’s previous

failure to object becomes irrelevant.”).

B.

We now turn to the facts of our case. As noted, the

EEOC raises two interesting issues on appeal, one related to

the exhaustion of administrative remedies and the second

related to the disclosure of disciplinary and personnel records

of a non-charging party to a charging party. We will not,

however, reach the substance of either issue because the

District Court erroneously treated the motion to enforce as a

nondispositive matter, as opposed to a dispositive matter,

contrary to our holding in Frazier. In Frazier, we held that

because a proceeding to enforce an administrative subpoena

“is over regardless of which way the court rules,” a motion to

enforce an administrative subpoena is a dispositive motion.

966 F.2d at 817–18. Accordingly, any assignment of the

seek review by the district court by filing [objections] within

[14] days of the date of the [Report and Recommendation]

with the Clerk of the district court and that failure to do so

will waive the right to appeal.’” Brightwell v. Lehman, 637

F.3d 187, 193 n.7 (3d Cir. 2011) (alterations in original)

(quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983)).

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motion by the District Court is governed by subparagraph

(B), which requires the Magistrate Judge “to submit to a

judge of the court proposed findings of fact and

recommendations for the disposition.” 28 U.S.C. § 636

(b)(1)(B). Had the motion been so assigned, the parties could

have objected to the report and recommendation, in which

case the District Court would have reviewed their objections

de novo, or they could have been silent as to objections, in

which case the District Court would have “give[n] some

reasoned consideration to the magistrate’s report before

adopting it as the decision of the court.” Henderson, 812 F.2d

at 878.4

Here, the District Court’s erroneous categorization of

the motion is compounded by the fact that the EEOC raised

the disclosure issue, but not the exhaustion issue, to the

District Court.5 As a result, the District Court, proceeding as

4

The District Court docket does not indicate whether the

motion to enforce was referred to the Magistrate Judge under

§ 636(b)(1)(A) or (B). However, the Magistrate Judge styled

her ruling as an order, not a report and recommendation, and

did not warn the parties about the consequences of failing to

object. The order also directed the Clerk of the Court to

“mark this case as closed,” App. 14, and the Clerk of Court

thereafter terminated the case.

5

The EEOC raised the exhaustion issue to the Magistrate

Judge and to our Court, but it did not raise the issue to the

District Court by objecting to the Magistrate Judge’s order.

In contrast, the EEOC raised the disclosure issue to the

Magistrate Judge, to the District Court (via objection to the

Magistrate Judge’s order), and to our Court.

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if the motion had been referred to the Magistrate Judge as

nondispositive under subparagraph (A) of the Act, applied the

clearly erroneous or contrary to law standard to the objected-

to disclosure issue and apparently did not review the

unobjected-to exhaustion issue at all.

Because the District Court did not review the

exhaustion issue, we will not consider it on appeal. The

District Court was obligated under Henderson, 812 F.2d at

878, to review this issue even though it was not raised by the

EEOC on appeal from the Magistrate Judge’s order. In

addition, we will not reach the disclosure issue because this

issue will only be live if the District Court first concludes that

Long Branch was not precluded from raising its defenses to

the judicial enforcement of the subpoena. In light of the fact

that we do not know how the District Court will rule on the

exhaustion issue, we will not review the disclosure issue at

this juncture.6

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While we do not definitively resolve the disclosure or

exhaustion issues, we nevertheless will correct an

unambiguous error of law in the framework employed by the

District Court that has been briefed in this appeal and that, as

a pure legal issue, would have been reviewed de novo

regardless of the treatment of the enforcement motion as

dispositive or nondispositive.

We believe that both the District Judge and Magistrate

Judge misread the Supreme Court’s opinion in Associated

Dry Goods as holding that a charging employee may not see

investigative information obtained by the EEOC from other

employees’ files. To the contrary, the Court in Associated

Dry Goods held that an employee filing a charge with the

EEOC is not a member of the “public” to whom disclosure is

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Accordingly, we will vacate the order of the District

Court and remand. The District Court may consider the

motion to enforce in the first instance or it may treat the

Magistrate Judge’s order as a report and recommendation and

allow the parties the opportunity to object. See Mitchell v.

Valenzuela, 791 F.3d 1166, 1174 (9th Cir. 2015) (remanding

to the district court to “undertake . . . de novo review as to

whether [a stay and abeyance] was warranted at the time of

the magistrate judge’s order” and allowing the court to

“consider the magistrate judge’s order on the stay as a report

and recommendation, in which case the court should afford

the parties an opportunity to lodge objections”); Flam v.

Flam, 788 F.3d 1043, 1048 (9th Cir. 2015) (remanding to the

district court to consider a motion to remand in the first

prohibited. See Assoc. Dry Goods, 449 U.S. at 600–03. The

limiting language upon which the District and Magistrate

Judges relied refers to a situation in which multiple charging

parties — such as multiple aggrieved employees — wish to

obtain disclosure of evidence produced in each other’s cases,

not in their own. See id. at 603 (explaining that a charging

party is not entitled to “know the content of any other

employee’s charge,” such as when “other charging parties . . .

have brought claims against the same employer” (emphasis

added)).

Accordingly, should the District Court reach the

disclosure issue on remand, it should both reconsider its

reliance on Associated Dry Goods and, in determining

whether limitations on disclosure are warranted, should

utilize the framework for confidentiality orders that we

articulated in EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir.

2010).

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instance or to refer the motion to a magistrate judge for a

report and recommendation).

IV.

For the reasons set forth above, we will vacate the

order of the District Court and remand for proceedings

consistent with this opinion.

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