EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. BAY SHIPBUILDING CORPORATION, Respondent-Appellant

PELL, Circuit Judge,

dissenting.

It appears to me under elementary principles of procedural due process that the district court should have permitted the respondent the opportunity to have a hearing on the issues it raised. I therefore respectfully dissent.

Because of the hybrid nature of the EEOC Application for Enforcement filed in the district court, the respondent filed a motion under Rule 12 of the Federal Rules of Civil Procedure requesting direction as to whether it should respond to the EEOC Application as if it were a complaint or a motion. EEOC responded in part:

Although the application is not a motion as defined under the Federal Rules of Civil Procedure, due to its special summary nature, subpoena enforcement actions can and are judicially treated like a “motion,” that is, applications are generally decided on the pleadings and, if necessary, after a hearing has been held.

In addressing the respondent’s contention that the proceedings should be in the nature of ordinary civil pleadings, the EEOC, relying upon United States v. Gajewski, 419 F.2d 1088 (8th Cir. 1969), cert. denied, 397 U.S. 1040 , 90 S.Ct. 1361 , 25 L.Ed.2d 651 (1970), quoted from that case regarding the thrust of earlier cases, in the analogous area of the enforcement of subpoenas in tax cases, as being “to insure that a taxpayer obtain an adversary-type hearing in the district court prior to his being forced to comply with an administrative summons which he challenges in good faith.” 419 F.2d at 1092 (quoting McGarry’s Inc. v. Rose, 344 F.2d 416, 418 (1st Cir. 1965)).

EEOC then concluded its response by requesting that the respondent’s motion to dismiss be denied “and that an immediate hearing be set on Plaintiff’s application for subpoena enforcement.” No hearing, however, was ever held. Instead, the district court granted enforcement apparently, in part at least, on the basis that this would take too much time and that respondent’s motion was made for delay. It seems to me that one of the essential characteristics of due process is an opportunity for a proper development of a position or, putting it another way, I am unaware that on a balancing of granting some time for development against the right to be heard the latter should come out in second place. As to delay, I do not believe the record supports this premise. Indeed, the respondent candidly recognizes that delay will inevitably harm its ability to defend itself. The respondent asserts that it cooperated without hesitation with the EEOC during the first 18 months of the investigation. Interestingly enough, although the respondent was not given the opportunity to present evidence of this cooperation to the district court, the district court stated it was relying on the record of the proceedings before the EEOC, but there were no evidentiary proceedings before the EEOC, nor were any due process hearings conducted.

Indeed, the dilatoriness might more properly have been ascribed to the EEOC. When the matter was pending before Chief Judge Reynolds, on the action for an in *317 junction, he found that the Commission had barely begun its investigation. EEOC v. Bay Shipbuilding Corporation, 480 F.Supp. 925, 928 (E.D.Wis.1979). Judge Reynolds, as a matter of fact, orally expressed shock that the EEOC had come into court and asked “for a preliminary injunction when nothing has been done.” Thirteen days later, the EEOC sent a questionnaire to respondent requesting voluminous information, of which more later. For the first time since the commencement of the investigation, respondent objected to providing the. requested information. The issuance of the subpoena followed in a couple of months, with the Application for Enforcement being filed on July 2, 1980.

The majority opinion in referring to the summary nature of an enforcement proceeding of this sort, quotes from Goodyear Tire & Rubber Co. v. NLRB, 122 F.2d at 451. The court there, however, was referring to a mere incident in a ease. There is no case here and there may never be one as the majority opinion recognizes when it tells the respondent to save its grounds for a counterclaim for the trial of the underlying discrimination charges, “should there be one.” While we may well agree with Goodyear that an enforcement proceeding does not require “all of the formalities of a civil suit,” I do not think we, on the other hand, should equate “summary” with no opportunity whatsoever to present a case.

In my view, the most egregious aspect of the present ease is the almost unlimited scope of the subpoena which the EEOC with bureaucratic blitheness seeks to impose on this industry. The respondent asserts that had it been given the opportunity, it would have demonstrated to the district court that the subpoena requests the production of thousands of documents, as well as the compilation of countless more pieces of information which are not contained in corporate records; and that the respondent would be required to do extended research, including interviewing numerous employees, an effort which would involve hundreds of hours of work. One need do no more than read Appendix A of the majority opinion to realize that the respondent has expressed no idle fear.

In sum, it appears to me at the very least that the appropriate disposition of this appeal would be to remand to the district court for further proceedings in the nature of a show cause hearing.