Petition — Occidental Life Insurance v. Equal Employment Opportunity Commission

sate 4's

FILED

IN THE

Supreme Court of the United Statesu. 23 976

—

MICHAEL RODAK, JR.,CLERK

October Term, 1976

Na, . 2V6- -99 “4

OCCIDENTAL LIFE INSURANCE COMPANY OF CALI-

FORNIA,

: Petitioner,

VS.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

_ Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

LEONARD S: JANOFSKY,

DENNIS H. VAUGHN,

Howarp C. Hay,

555 South Flower Street,

Los Angeles, Calif. 90071,

Attorneys for Petitioner.

PAUL, HASTINGS & JANOFSKY,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

i ie OES

Jurisdiction ............ C8 AR SNE gee Ce eee Se Oe 1

Ces cinasibticccestunencs 2

Statutory Provision Involved ......................-.-.-.-+-+---- 2

Statement of the Case ............ te Re eee 3

Reasons for Granting the Writ -............................... 5-

| I.

The Ninth Circuit’s Refusal to Apply the Most

Analegous State Statute of Limitations to the

Back Pay Aspect of the EEOC’s Complaint

Is in Irreconcilable Conflict With Two Recent

Decisions of the Court of Appeals for the Fifth

iets 5

Il.

The Applicability of Federal and State Statutes

of Limitation to the EEOC’s Right to Sue Is

of Critical, Pervasive, and Recurring Impor-

tance to the Judicial Administration of Title

OFIIE silsssslichaha dain ealeedieeaiiabassapienendeiiuedieiiopioancenidibihadliaicter 6

III.

The Ninth Circuit Erred in Refusing to Apply the

Federal or Most Analogous State Statute of

Limitations to the EEOC’s Right to Sue ........ 8

A. The Supreme Court and the Federal

Courts Have, in the Absence of Any Ap-

plicable Federal Statute of Limitations,

Repeatedly Applied the Most Analogous

State Statute of Limitations to Complaints

Brought Under Civil Rights Acts and

Numerous Other Federal Statutes ............ 9

ii.

Page

B. The Supreme Court’s Only Exception to

the Rule Applying State Statutes of Limi-

tation When No Federal Limitation Exists

Has Been Where the United States Gov-

ernment Was Suing to Collect Revenue

for the United States Treasury or to Pre-

vent Injury to the United States Govern-

REED 22 RRs ne AE» una Mean 13

C. The Ninth Circuit’s Reasons for Expand-

ing This Limited “Sovereign Immunity”

Exception to Include Suits Brought by a

Governmental Agency to Recover Back

“Pay Claims for Private Individuals Are

BR SII cialis -ducDeendsarcnanbenigvccepiotiaiine 14

1. The Ninth Circuit’s Argument That

“Public Policy” Prevents Application

of State Statutes of Limitation to

EEOC Back Pay Claims .................. 14

2. The Ninth Circuit’s Argument That

the EEOC Should Be Treated the

Same as the NLRB in This Respect.. 17

EE ET aL ae C IONE RO PRC Me Le 19

I, is ersesidahenhicesinkaelanincaiin App. p. 1

ill.

TABLE OF AUTHORITIES CITED

Cases Page

Adams v. Woods, 2 Cranch 336 (1805) ................ 12

Albemarle Paper Company v. Moody, 422 US. |

IPR cane AEE SEE STEIN Es 26 TED ari ok Oe 15

Campbell v. Haverhill, 155 U.S. 610 €1895) -........ 12

Curtner v. United States, 149 U.S. 662 (1893) .... 13

Davis v. Corona Coal Co., 265 U.S. 219 (1924)

EEOC vy. Christianberg Garment Co., 376 F.Supp.

SN WS TEENIE dectininsesisnnctsecnquoesonnianuvdbooans 6

EEOC v. Eagle Iron Works, 36° F.Supp. 817 (S.D.

SEE eR IP OR a a 6

EEOC v. Griffin Wheel Co., 511 F.2d 456 (Sth Cir.

1975), affirmed on rehearing, 521 F.2d 223 (Sth

oa nieetlbiinion ae

Franks v. Bowman Trembesmaion Ce. .n” Wak

sa EE rs SC UUTOD cx eweeccckecsesecideiseece 15

Johnson v. Railway Express Agency, Inc., 421 U.S.

kg, SIR cea a AN ieee se ae ae i A

United States v. Beebe, 127 U.S. 338 (1888) -....... 13

United States v. Dalles Military Road Co., 140

ITE TY cchnntnntdiieatmcninenunetttthiipencechiicboniteiditaen 13

United States v. Des Moines Navigation & R. Co.,

EG, SPI Ae UES Ds whsiccnlipastaiAtnncvesddmedidethedacnandeiin 13

United States v. Georgia Power Co., 474 F.2d 906

I CI i alah aa taal ineaensegsied 5, 6

United States v. Masonry Contractors Association

of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974)

United States v. Nashville, Chattanooga & St. Louis

Railway Co., 118 U.S. 120 (1886) .........00000002... 13

United States v. Summerlin, 310 U.S. 414 (1940)

United States v. Thompson, 98 U.S. 486 (1879) .... 13

iv.

Statutes Page

Act of Feb. 26, 1845 (re custom duties): Barney

v. Oelrichs, 138 U.S. 529 (189]) ......................

Civil Rights Act of 1866: Johnson v. Railway Ex-

press Agency, Inc., 421 U.S. 454 (1975) ..........

Civil Rights Act of 1870: O’Sullivan v. Felix, 233

UB. SHB (496) nec. cass tecie

Civil Rights Act of 1964, Title VII, Sec. 706(b).

Civil Rights Act of 1964, Title VII, Sec. 706(b)

{ ) SRE See

Civil Rights Act of 1964, Title VII, Sec. 706(b)

( ) DREN Sin ye

Civil Rights Act of 1964, Title VII, Sec. 706(e)..

Civil Rights Act of 1964, Title VII, Sec. 706(f)..

Civil Rights Act of 1964, Title VII, Sec. 706(f)

CD i. scéicsnsenmniteaineiiinaa conteteetiatsiisaisanieaaiiiiaint ina al

Civil Rights Act of 1964: United States v. Georgia

Power Co., 474 F.2d 906 (Sth Cir. 1973);

EEOC vy. Griffin Wheel Co., 511 ¢.2d 456 (5th

COs. 1GTS) .nceviicrerersitetececutiesneaiieneaaaenn

Clayton Antitrust Act: Englander Motors Inc. v.

Ford Motor Co., 293 F.2d 802 (6th Cir. 1961);

Williamson v. Columbia Gas & Electric Corp.,

27 F.Supp. 198 (D.Del. 1939), affirmed, 110

F.2d 15 (3rd Cir. 1939), cert. denied, 310 US.

Gee CRUD xetenecnteieiie wecsscsehilienbbanianiianiaalan

Communications Act of 1934: — falino v. Michigan

Bell Telephone Co., 404 F.2d 1203 (6th Cir.

1968), cert. denied, 394 U.S. 987 (1969) _.:......

Investment Company Act of 1940: Esplin v. Hirschi,

402 F.2d 94 (10th Cir. 1968), cert. denied, 394

CB, SSS (IGGR) .niccesenrsessscesmicvibieniaaiiacane

Labor Management Relations Act: Autoworkers v.

Hoosier Cardinal Corp., 383 U.S. 696 (1966) .... 10

10

11

11

——

Page

Labor Management Reporting and Disclosure Act

of 1959: Sewell v. Grand Lodge of Intern. Ass'n

of Machinists and Aerospace Workers, 445 F.2d

545 (Sth Cir. 1971), cert. denied, 404 U.S. 1024

SIPPEED coreneerongeicssssocerececsovecvessenserscecsnsesees socesees 10,

National Bank Act: Cope v. Anderson, 331 U.S. 461

(1947); Rawlings v. Ray, 312 U.S. 96 (1941);

Pufahl v. Estate of Parks, 299 U.S. 217 (1936)

ee ee ee ee

RIE ‘ddelbtnddndintntiensdcesvcere iiiicnidinhincgtinabacniaviee sabe

Railway Labor Act: Jones v. Trans World Airlines,

Inc., 495 F.2d 790 (2nd Cir. 1974) ..................

Securities Exchange Act of 1934: Richardson v.

MacArthur, 451 F.2d 35 (10th Cir. 1971);

Douglas v. Glen E. Hinton Investments, Inc.,

440 F.2d 912 (9th Cir. 1971); Klein v. Bower,

421 F.2d 338 (2nd Cir. 1970); Morgan v. Koch,

419 F.2d 993 (7th Cir. 1969) _......2002200002

Sherman Antitrust Act: Chattanooga Foundry Co. v.

Atlanta, 203 U.S. 390 (1906) ................2....-.... ,

United States Code, Title 15, Sec. 15(b) ............

United States Code, Title 15, Sec. 16 -...0000........

United States Code, Title 28, Sec. 1254(1) -......

United States Code, Title 29, Sec. 160(j) ..........

United States Code, Title 29, Sec. 160(1) ..........

United States Code, Title 42, Sec. 2000e ............

Textbook

Hill, State Procedural Law in Federa] Non-Diversity

Litigation, 69 Harvard Law Review (1955), pp.

ET

11

10

10

10

IN THE

Supreme Court of the United States

October Term, 1976

NS cr alieasl

OCCIDENTAL LIFE INSURANCE COMPANY OF CALI-

FORNIA,

Petitioner,

vs.

EQuaAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner prays that a writ of certiorari issue to

review the judgment of the Court of Appeals for the

Ninth Circuit entered on May 11, 1976, in the above-

entitled case.

Opinion Below.

The opinion of the Court of Appeals, not yet officially

reported, appears in the Appendix hereto. No opinion

was rendered by the District Court for the Central

District of California.’

Jurisdiction.

The judgment of the Court of Appeals for the Ninth

Circuit was entered on May 11, 1976, and this petition

1The Findings of Fact and Conclusions of Law made and

entered by the District Court appear at 12 FEP 1298 (1976);

the Court of Appeals’ Opinion follows at 12 FEP 1300 (1976).

a oe

for certiorari was filed within 90 days of that date.

The jurisdiciion of this Court is invoked pursuant to

28 U.S.C. Section 1254(1).

Questions Presented.

Whether there is no time limitation whatsoever appli-

cable to the EEOC’s right to sue under Title VII of the

Civil Rights Act of 1964, as amended.

This question involves the following subsidiary ques-

ions:

(1) Whether the most analogous state statute of

limitations is applicable to the EEOC’s right to sue

to collect back pay for private individuals;

(2) Whether the most analogous state statute of

limitations is applicable to the EEOC’s right to sue

to obtain injunctive relief; and

(3) Whether the EEOC’s right to sue is governed

by any federal statute of limitations.

Statutory Provision Involved.

Section 706(f)(1) of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. Section 2000e

et seq. (hereinafter “Title VII”) provides in pertinent

part:

“[I]f within one hundred and eighty days from

the filing of [a] charge . . . the Commission

has not filed a civil action under this section

. the Commission . . . shall so notify the

person aggrieved and within ninety days after the

giving of such notice a civil action may be brought

against the respondent named in the charge... .

by the person claiming to be aggrieved. . . .”

a

Statement of the Case.

On December 27, 1970, Tamar Edelson filed a

charge of discrimination against Occidental Life Insur-

ance Company of California (hereinafter “Petitioner” )

with the Equal Employment Opportunity Commission

(hereinafter the “EEOC”) alleging that she had been

discriminated against because of her sex. Her charge

specified that “the most recent date on which this

discrimination took place” was “October 1, 1970,”

the date of her discharge by Petitioner.

Although the EEOC acknowledged receipt of Ms.

Edelson’s charge on December 30, 1970, the EEOC

did not formally file the charge until March 9, 1971.

This was the only charge which Ms. Edelson ever

filed against Petitioner, and the EEOC acknowledges

that this is the charge upon which its entire complaint

herein is based.

However, it was not until February 22, 1974—

thre« years, four months, and. 22 days after the occur-

rence of the single act of discrimination which Ms.

Edelson had complained of—that the EEOC filed this

complaint seeking back pay for numerous private indi-

viduals and injunctive relief. Accordingly, the District

Court dismissed the EEOC’s complaint upon the

grounds that (1) Title VII imposed a 180-day federal

statute of limitations on the EEOC’s right to sue,

and (2) alternatively, assuming that Title VII imposed

no federal statute of limitations,,the EEOC’s suit was

barred by the most analogous state statute of limita-

tions.

oe ae

On May 11, 1976, the Court of Appeals for the

Ninth Circyit reversed on both grounds, holding. that

there was no time limitation whatsoever on the EEOC’s

right to sue. First, the Court found that the 180-

day language of Title VII does not constitute a federal

statute of limitations on the EEOC’s right to sue,

so that “there is simply no governing federal limitations

period.” (A. p. 5). Second, the Court refused to apply

the most analogous state statute of limitations to the

EEOC’s right to sue.

It is to these two holdings that this Petition for

Certiorafi is directed, particularly that aspect of the

holding in which the Court expressly ruled contrary to

two recent decisions of the Court of Appeals for the

Fifth Circuit which held that the EEOC’s right to

recover back pay for private individuals is governed

by the most analogous state statute of limitations.

—

REASONS FOR GRANTING THE WRIT.

The Ninth Circuit’s holding that the EEOC has

an interminable right to sue to collect back pay for

private individuals is in direct conflict with two recent

decisions of the Fifth Circuit and contrary to numerous

Supreme Court decisions which hold that the most

analogous state statute of limitations should be applied

in absence of an applicable federal statute of limitations,

which rule has most recently been applied by the

Supreme Court in a Civil Rights Act case in Johnson

v. Railway Express Agency, Inc., 421 U.S. 454 (1975).

I.

The Ninth Circuit’s Refusal to Apply the Most Anal-

ogous State Statute of Limitations to the Back Pay

Aspect of the EEOC’s Complaint Is in Irrecon-

cilable Conflict With Two Recent Decisions of the

Court of Appeals for the Fifth Circuit.

In United States v. Georgia Power Co., 474 F.2d

906, 922-924 (Sth Cir. 1973), the Fifth Circuit held

that because there was no federal statute of limitations,

the most analogous state statute of limitations was

applicable to the back pay aspect of an employment

discrimination suit brought by the United States Gov-

ernment under the Civil Rights Act of 1964. Thereafter,

in EEOC vy. Griffin Wheel Co., 511 F.2d 456, 458

(5th Cir. 1975), affirmed on rehearing, 521 F.2d

223 (Sth Cir. 1975), another three-judge panel of

the Fifth Circuit held that the most analogous state

statute of limitations was applicable to the back pay

aspect of an employment discrimination suit brought

by the EEOC under the Civil Rights Act of 1964.

— =

The Sixth Circuit in dicta has expressed its agreement

with Georgia Power,’ and at least two district court

decisions have reached the same result as Griffin

Wheel.’

Nevertheless, the Ninth Circuit refused to apply the

most anaogous state statute of limitations to the back

pay aspect of the EEOC complaint herein, finding

instead that the EEOC’s right to sue to recover

back pay for private individuals was interminable.

Expressly noting the contrary decisions of the Fifth

Circuit, the Court stated, “We decline to follow its

lead” (A. p. 11). The conflict between the Fifth

and Ninth Circuits concerning the applicability of the

most analogous state statute of limitations to the back

pay aspect of an EEOC complaint is thus clear,

unequivocal, and irreconcilable, and certiorari should

be granted to resolve that issue.

Il.

The Applicability of Federal and State Statutes of

Limitation to the EEOC’s Right to Sue Is of

Critical, Pervasive, and Recurring Importance to

the Judicial Administration of Title VII.

Over the years the EEOC will be the party-plaintiff

in thousands of cases across the United States, many

of which will involve EEOC efforts to recover back pay

2In United States v. Masonry Contractors Association of

Memphis, Inc., 497 F.2d 871, 877 (6th Cir. 1974), the Sixth

Circuit stated:

“The appropriate statute of limitations for a Section 2000e-

6 action |by the United States Government] is the limi-

tation period prescribed by the state where the court sits

for an action which seeks similar relief brought in a court

in that state.”

SEEOC vy. Eagle Iron Works, 367 F.Supp. 817 (S.D. lowa

1973), and EEOC v. Christianberg Garment Co., 376 F.Supp.

1067, 1071-1073 (W.D. Va. 1974).

= =

for private individuals. Furthermore, many of these

EEOC complaints will undoubtedly be filed several

years after the filing of the charge upon which these

complaints are based.

Thus, whether any statute of limitations applies to

EEOC complaints will be a constantly recurring issue,

one which will continue to consume substantial time,

energy, and resources of the federal courts and the

litigants involved. Furthermore, litigation concerning

such issues is certain to increase rather than to subside

until this Court accepts review and definitively answers

the question. Consequently, a prompt resolution is criti-

cal to a more effective utilization of limited federal

court resources and a inore expeditious resolution of

EEOC complaints.

Furthermore, this Court has already resolved the

statute of limitations issue with regard to employment

discrimination suits brought by private individuals under

the Civil Rights Act of 1866, holding in Johnson

v. Railway Express Agency, Inc., 421 U.S. 454 (1975),

that the most analogous state statute of limitations

is applicable to such suits. Accordingly, the most signifi-

cant, recurring timeliiess issue which remains in employ-

ment discrimination cases is whether the EEOC is

also governed by some statute of limitations or whether

its right to sue is interminable—the very issue presented

by this Petition for Certiorari.

Finally, an early Supreme Court resolution of this

issue is critical to fulfillment of the purposes behind

Title VII. At the present time, the EEOC frequently

takes several years simply to file its complaint in the

federal court, apparently presupposing that its right

to sue is interminable. If the EEOC is wrong in this

belief—and there are compelling reasons set forth below

=

to believe that it is—its present practice of interminable

delays clearly subverts the purpose of Title VII by

preventing expeditious resolution of employment dis-

crimination claims. If, however, such interminable de-

lays are indeed what Congress intended, that should

be established by Supreme Court decision, not ad-

ministrative fiat, for the adverse effect of such delays

is obvious.

iil.

The Ninth Circuit Erred in Refusing to Apply the Fed-

eral or Most Analogous State Statute of Limitations

to the EEOC’s Right to Sue.

Four ehoices exist concerning the timeliness of EEOC

complaints: (1) the EEOC’s right to sue is governed

by a federal statute of limitations, (2) the EEOC’s

right to sue is governed by the most analogous state

statute of limitations, (3) the EEOC’s right to sue

to collect back pay for private individuals is governed

by the most analogous state statute of limitations, or

(4) the EEOC’s right to sue is interminable. The

Ninth Circuit concluded that the most extreme, fourth

option—the interminable right to sue—was the one

Congress intended. That conclusion is plainly in error.

With regard to the first option—the 180-day pro-

vision of Title VII as a federal statute of limitations—

Petitioner presented 18 pages of argument and authority

to the Ninth Circuit showing why that was Congress’

intent, and Petitioner remains convinced that that con-

clusion has substantial merit. Petitioner also presented

argument to the Ninth Circuit in support of the second

option—that the EEOC’s right to sue, not just its

right to collect back pay for private individuals, is

governed by the most analogous state statute of limita-

=”

tions. Because there is as yet no conflict among the

Circuits on the issues raised under either the first or

second options, Petitioner will not summarize its argu-

ments on these points at this time, focusing instead on

the compelling reasons why the Ninth Circuit erred in

refusing—contrary to the Fifth Circuit—to apply the

most analogous state statute of limitations to the back

pay aspect of the EEOC’s complaiat and holding that

the EEOC has an interminable right to sue for back

pay. However, if this Court grants the writ of certiorari

concerning the applicability of state statutes of limitation

to back pay claims asserted by the EEOC on behalf

of private individuals, Petitioner submits that it would

be advisable for this Court also to grant certiorari

on the federal statute of limitations issue and the

general state statute of limitations issue, thereby afford-

ing itself full consideration of all of the availabie

options.

A. The Supreme Court and the Federal Courts Have, in the

Absence of Any Applicable Federal Statute of Limitations,

Repeatedly Applied the Most Analogous State Statute of

Limitations to Complaints Brought Under Civil Rights Acts

and Numerous Other Federal Statutes.

Many federal statutes contain no statute of limita-

tions, and thus the Supreme Court has repeatedly held

that suits filed under such statutes are governed by

the most analogous state statute of limitations:

Civil Rights of 1866: Johnson v. Railway Ex-

press Agency, Inc., 421 US. 454, 462

(1975);

Civil Rights Act of 1870: O’Sullivan v. Felix,

233 U.S. 318, 322-324 (1914);

— we

Labor Management Relations Act: Autoworkers

v. Hoosier Cardinal Corp., 383 U.S. 696,

701-705 (1966);

Sherman Antitrust Act: Chattanooga Foundry

Co. v. Atlanta, 203 U.S. 390, 397 (1906);*

National Bank Act: Cope v. Anderson, 331

U.S., 461, 463 (1947); Rawlings v. Ray,

312 U.S. 96, 97-98 (1941); Pufahl v. Estate

of Parks, 299 U.S. 217, 225 (1936);

Patent Act: Campbell v. Haverhill, 155 US.

610, 613-618 (1895);

Act of Feb. 26, 1845 (re custom duties): Barney

” y. Oelrichs, 138 U.S. 529, 530 (1891).

Similarly, the federal courts have applied state statutes

of limitation to other federal statutes which contained

no federal statute of limitations:

Civil Rights Act of 1964: United States v.

Georgia Power Co., 474 F.2d 906, 923 (Sth

Cir. 1973); EEOC v. Griffin Wheel Co.,

511 F.2d 456, 458-459 (Sth Cir. 1975);

Railway Labor Act: Jones v. Trans World Air-

lines, Inc., 495 F.2d 790, 799 (2nd Cir.

1974);

Labor Management Reporting and Disclosure

Act of 1959: Sewell v. Grand Lodge of Intern.

Ass'n of Machinists and Aerospace Workers,

445 F.2d 545, 548-549 (Sth Cir. 1971),

cert. denied, 404 U.S. 1024 (1972);

*A federal statute of limitations for suits brought under

the antitrust laws was enacted by Congress in 1955.15 U.S.C.

Sections 15(b), 16.

=

Clayton Antitrust Act: Englander Motors Inc.

v. Ford Motor Co., 293 F.2d 802, 804 (6th

Cir. 1961); Williamson v. Columbia Gas &

Electric Corp., 27 F.Supp. 198 (D.Del.

1939), affirmed, 110 F.2d 15 (3rd Cir.

1939), cert. denied, 310 U.S. 639 (1940);

Securities Exchange Act of 1934: Richardson

v. MacArthur, 451 F.2d 35, 39 (10th Cir.

1971); Douglas v. Glen E. Hinton Invest-

ments, Inc., 440 F.2d 912, 914 (9th Cir.

1971); Klein v. Bower, 421 F.2d 338, 343

(2nd Cir. 1970); Morgan v. Koch, 419 F.2d

993, 996-997 (7th Cir. 1969),

Communications Act of 1934: Bufalino v. Mich-

igan Bell Telephone Co., 404 F.2d 1203,

1208 (6th Cir. 1968), cert. denied, 394 US.

987 (1969);

Investment Company Act of 1940: Esplin v.

Hirschi, 402 F.2d 94, 101 (10th Cir. 1968),

cert. denied, 394 U.S. 928 (1969).

Thus, the rule that state statutes of limitation are

applied where no federal statute of limitations exists

is firmly embedded in our jurisprudence, and with

good reason, the most basic of which stems from an

elemental sense of due process, best summarized by

Chief Justice John Marshall’s statement in 1805 that

an absence of some statute of limitations

“would be utterly repugnant to the genius of our

laws. In a country within which not even treason

can be prosecuted after the lapse of three years,

it can scarcely be supposed that an individual

enaffios

would remain forever liable to a pecuniary forfei-

ture.”

Adams v. Woods, 2 Cranch 336, 342 (1805).

Second, statutes of limitation are designed to pro-

tect both the courts and defendants from stale claims

which depend upon evidence and witnesses the availabil-

ity and reliability of which have been impaired by

the passage of time. E.g., Campbell v. Haverhill, 155

U.S. 610, 617 (1895).

Third, given the well-established nature of the rule

that state statutes of limitation will be applied in

the absénce of federal statutes of limitation, it is

far more reasonable to assume that Congress intended

that rule whenever a federal statute of limitations was

omitted than it is to presume that Congress intended

the right to sue to be interminable. Hill, State Procedural

Law in Federal Non-Diversity Litigation, 69 Harv.

L. Rev. 66, 78-81, 91-92 (1955), and cases cited

therein.

Thus, where the refusal to apply the most analogous

State statute of limitations means that the right to

sue is interminable, only the most compelling reasons

could justify that result, which Chief Justice John Mar-

shall found “utterly repugnant to the genius of our

laws.” Adams v. Woods, 2 Cranch at 342. Were it

otherwise, quite obviously defendants would be unfairly

and prejudicially subjected to potentially massive and

totally unknown financial liabilities.

—

B. The Supreme Court’s Only Exception to the Rule Applying

State Statutes of Limitation When No Federal Limitation

Exists Has Been Where the Unitea States Government Was

Suing to Collect Revenue for the United States Treasury or

to Prevent Injury to the United States Government.

The few Supreme Court decisions which refuse to

apply the state statute of limitations to a suit by

the United States Government invariably do so because

the United States is suing as a sovereign to protect

its rights as a sovereign, i.e., to collect money for

the United States Treasury or to prevent an injury

to the United States Government itself. E.g., United

States v. Summerlin, 310 U.S. 414 (1940) (United

States attempting to enforce its claim against an estate);

United States v. Thompson, 98 U.S. 486 (1879)

(United States seeking recovery of funds embezzled

from its Treasury); United States v. Nashville, Chatta-

nooga & St. Louis Railway Co., 118 U.S. 120 (1886)

(United States suing to collect on bonds owned by

the United States); Davis v. Corona Coal Co., 265

U.S. 219 (1924) (United States suing to enforce claims

which arose during United States’ operation of rail-

roads); United States v. Dalles Military Road Co.,

140 U.S. 599 (1891) (United States suing to recover

land it had granted). However, whenever the United

States Government has sued on behalf of private indi-

viduals, the Supreme Court has held that the most

analogous state statute of limitations is applicable. E.g.,

United States v. Beebe, 127 U.S. 338 (1888); Curtner

v. United States, 149 U.S. 662 (1893); United States v.

Des Moines Navigation & R. Co., 142 U.S. 510 (1892).

colliinis

C. The Ninth Circuit’s Reasons for Expanding This Limited

“Sovereign Immunity” Exception to Include Suits Brought

by a Governmental Agency to Recover Back Pay Claims for

Private Individuals Are Not Persuasive.

No Supreme Court decision to date has ever found

the United States Government or one of its agencies

immune from the state statute of limitations where

the government or agency was suing to collect money

on behalf of private individuals. That, of course, is

what the EEOC would have this Court hold for the

first time. Yet neither of the reasons offered by the

Ninth Circuit for such a substantial departure from

Supreme Court precedent has.merit.

1. The Ninth Circuit's Argument That “Public Pol-

icy” Prevents Application of State Statutes of Lim-

itation to EEOC Back Pay Claims.

With no evident analysis of prior Supreme Court

decisions or federal court decisions concerning the appli-

cability of state statutes of limitation to government

suits brought under other federal statutes, the Ninth

Circuit concluded that because an award of back pay

to private individuals in an employment discrimination

case serves a “public interest,” state statutes of limitation

could not be applied to such suits. There are at least

two compelling answers to that argument.

First, the decisions discussed above page 13 simply

do not support the conclusion that a state statute

of limitations is inapplicable whenever a “public in-

terest” may be served by the lawsuit. Rather, the only

exception to the state statute of limitations rule has

heretofore been limited by the Supreme Court to suits

where the United States Government is suing as the

sovereign, seeking to protect its rights as the sovereign.

—

The exception is, in other words, simply a manifesta-

tion of the doctrine of sovereign immunity. It would

be completely inconsistent with the trends of modern

law suddenly to expand that doctiine of sovereign

immunity to encompass government agency suits to

collect money for private individuals.

Thus, prior Supreme Court decisions do not support

the conclusion that a state statute of limitations is

inapplicable whenever a “public interest” may be served

by the lawsuit. Accordingly, this Court’s recent com-

ments in Franks v. Bowman Transportation Co.,’ and

Albemarle Paper Company v. Moody* concerning the

public purpose served by awards in Title VII cases do

not serve to bring such lawsuits, or at least back

pay recovery thereunder, within any existing exception

to the rule that state statutes of limitation are applied

in the absence of federal statutes of limitation. Further-

more, as much could be said about a public purpose

to be served by awards in suits under the Civil Rights

Act of 1866, yet this Court in Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 462 (1975),

applied a state statute of limitations to affirm the

dismissal of such a cause of action, making clear

that there is nothing “peculiar in a federal civil rights

action which would justify special reluctance in applying

state law.” Therefore, the EEOC’s right to sue is not

entitled to any special exception simply because its

suit is based on Title VII.

The second reason why that Ninth Circuit’s “public

policy” rationale for refusing to apply the state statute

of limitations is erroneous is because, in fact, “public

policy” and Congressional intent clearly require some

5 US. ..., 44 U.S.L.W. 4356 (1976).

6422 U.S. 405 (1975).

ao

time limitation on the EEOC’s right to sue. Title

VII is replete with short specific time deadlines designed

to guarantee prompt handling of all employment dis-

crimination charges.‘ This elaborate statutory proce-

dure imposes strict time limitations on two parties

to the process—the aggrieved party and the federal

court. The issue here presented is whether Congress

also intended the EEOC to operate within certain

time limitations as well. In a statutory enforcement

scheme that depends on all of the parties for success,

it is inconceivable that Congress would have intended

that only two of the parties—the aggrieved party and

the federal court—be required to proceed expeditiously,

particuldrly where the interminable delay of the third

party—the EEOC— can effectively nullify any expedi-

tious action by the other two parties.

Furthermore, with no time limitation, the EEOC

has absolutely no incentive to expedite its handling

of charges. The EEOC can—and obviously does—take

as long as it wants to, doing a great disservice not

only to aggrieved parties but to respondents as well.

While the EEOC has an obvious administrative desire

for an interminable period in which to file suit,

what Congressional purpose behind Title VII is served

by permitting—indeed, encouraging—such delay? Far

from increasing compliance with the Act, such delays

simply lessen the effectiveness of the EEOC and lessen

the likelihood that truly aggrieved parties will turn

to the EEOC for relief. Clearly, such delays impose

7See Sections 706(b), (e) and (f) of Title VII, as evidence

of the Congressional insistence on prompt action and particularly

the several onerous time demands and limitations imposed on

the federal district courts, such as requiring the court to assign

such cases for hearing “at the earliest practicable date,” to cause

such cases “to be in every way expedited,” and “immediately to

designate a judge . . . to hear and determine the case.” Sections

706(b)(2) and (4).

—_

—_ =e

upon respondents an unwarranted burden and a wholly

unreasonable exposure to unknown and potentially mas-

sive financial liabilities.

In short, every aspect of Title VII envinces a Con-

gressional conviction and insistence that the enforcement

process move swiftly, for the benefit of the aggrieved

persons and respondents and for the prompt realization

of fair employment practices for all. “Public policy”

thus requires prompt EEOC handling of charges, a

result which will be assured only by applying a statute

of limitations to such claims.

2. The Ninth Circuit's Argument That the EEOC

Should Be Treated the Same as the NLRB in

This Respect.

The second reason the Ninth Circuit offered for

refusing to apply the state statute of limitations to

the EEOC’s complaint was its belief that the EEOC

enforcement procedures are analogous to the NLRB

enforcement procedures and thus should be treated

the same with respect to state statutes of limitation.

Yet even assuming that this Court were to conclude

that state statutes of limitation are inapplicable to

NLRB complaints—an issue not yet decided by this

Court*—that conclusion cannot properly be extended

8Neither of the cases cited by the Ninth Circuit to support

its conclusion that state statutes of limitation are inapplicable

to NLRB complaints are Supreme Court decisions, and neither

decision made that specific holding, for in neither case was

the statute of limitations argument directed at the NLRB’s

delay in filing its complaint. For all that appears in either

decision, the NLRB’s complaint issued within a reasonable time

after the charge was filed; rather, in each case the attack

was directed at the NLRB’s delay after its complaint had

issued. Of course, statutes of limitation have always been directed

at the timeliness of the filing of the complaint, not the pace

of events thereafter. Therefore, while there is certainly dicta

in both lower court decisions to support the conclusion that

state statutes of limitation are inapplicable to the filing of

NLRB complaints, neither case squarely so held.

to the EEOC, for the enforcement procedures of the

two agencies are radically different.

The key distinction is that the EEOC must go to

court and file its complaint in the federal district

court before any legally cognizable adjudication occurs.

By contrast, the NLRB never has to file a complaint

in the federal district court as part of its normal

enforcement procedure; rather, the NLRB issues its

own complaint and the NLRB has been given full

authority to function in lieu of, and in effect as,

the federal district court. Thus, the only time the

NLRB goes to federal court is to the appellate level.’

Obviously, state statutes of limitation have never been

thought to apply either to internal agency procedures

or to appeals; they are applicable to the filing of

a complaint in a court, an act which the EEOC must

do and the NLRB need never do. There is, in short,

simply no “complaint” that a statute of limitations

could apply to insofar as the NLRB is concerned.

This critical distinction between the NLRB enforce-

ment procedure and the EEOC enforcement procedure

is all the more significant because it is the result

of a deliberate Congressional decision to withhold from

the EEOC the authority which the NLRB has always

enjoyed. In both 1964 and in 1972, extensive efforts

were made in Congress to give the EEOC full NLRB-

type enforcement authority—and both efforts were re-

jected by Congress in favor of the present requirement

that the EEOC initiate its enforcement efforts by the

filing of a complaint in the federal district court. Thus,

to hold the enforcement procedures of the two agencies

®*The only exceptions are suits by the NLRB in federal

district courts to obtain preliminary injunctive relief pending

completion of the adjudicative process before the NLRB itself.

29 U.S.C. Sections 160(j) and (1).

—

— =

to be analogous is to ignore the Congressional refusal

to give the EEOC the same enforcement authority

it has given the NLRB.

The Ninth Circuit’s NLRB analogy is thus totally

inapposite.

Conclusion.

In the final analysis, the decision of the Ninth Circuit

giving the EEOC an interminable right to sue to collect

back pay for private individuals will plainly frustrate

the Congressional intent that discrimination cases be

pursued expeditiously and will just as plainly prejudice

respondents in the defense of such suits. In view of

the fact that the holding of the Ninth Circuit on

this issue is in direct conflict with decisions of the

Fifth Circuit and in view of the fact that a definitive

resolution of this issue is of enormous importance

in employment discrimination cases, Petitioner respect-

fully submits that this Petition for Certiorari should

be granted.

DATED: July 22, 1976.

Respectfully submitted,

LEONARD S. JANOFSKY,

DENNIS H. VAUGHN,

Howarp C. Hay,

Attorneys for Petitioner.

PAUL, HASTINGS & JANOFSKY,

Of Counsel.

one,

0 amt pt A atta en lc So tll

APPENDIX.

In the United States Court of Appeals, for the Ninth

Circuit. |

Equal Employment Opportunity Commission, Plain- ©

tiff-Appellant, v. Occidental Life Insurance Company

of California, Defendant-Appellee. No. 75-1705.

Appeal from the United States District Court for

the Central District of California.

Before: WRIGHT, KILKENNY and TRASK, Circuit

Judges. WRIGHT, Circuit Judge:

In this Title VII action the Equal Employment Op-

portunity Commission (EEOC) appeals from the dis-

trict court’s order of dismissal. We reverse and re-

mand.

I

PROCEEDINGS BELOW

On December 27, 1970, Tamar Edelson filed with

the EEOC a charge against Occidental Life Insurance

Company (Occidental), alleging that she had been

discriminated against because of her sex. She specified

that “the most recent date on which this discrimination

took place” was October 1, 1970, the date of her

discharge by Occidental.

The EEOC referred the charge to the California

Fair Employment Practices Commission, in accordance

with the provisions of Section 706(c) [42 U.S.C. §

2000e-5(c)]. When that agency took no action, the

charge was formally filed with the EEOC on March

9, 1971.

The EEOC undertook an investigation and, on Feb-

ruary 25, 1972, its District Director issued Findings

doen

of Fact that Occidental had discriminated against Ms.

Edelson and also had discriminated against many other

employees through a variety of practices and policies.

Occidental filed exceptions to the findings on March

23, 1972. The EEOC issued its “Reasonable Cause”

Determination on February 8, 1973 and during the

following year, held a conciliation meeting with Occi-

dental.

When that effort proved unsuccessful, the EEOC

filed this action in district court on February 22, 1974.

That court granted Occidental’s motion to dismiss,

finding that:

1. ‘Phe EEOC has no authority to file suit more

than 180 days after the filing of the underlying

charge, or where, as here, the charge was filed

prior to the 1972 amendments to Title VII

of the Civil Rights Act of 1964, more than

180 days after the effective date of such amend-

ments;

2. Alternatively, the EEOC was barred from filing

this suit by the California statute of limitations;

3. Alternatively, the EEOC was barred from pro-

ceeding on paragraphs 8(b) and 9(c) of its

complaint because the allegations contained

therein were outside the scope of the underlying

charge; and

4. In any event, the EEOC was barred from seek-

ing back pay for any alleged violations occur-

ring more than two years prior to the filing

of the underlying charge.

By its appeal herein, the EEOC challenges only

the first three findings by the court.

obalini

We hold:

(1) The 180-day language of Section 706(f)(1)

[42 U.S.C. § 2000e-5(f)(1)] does not constitute a

limitation upon the EEOC’s ability to sue in its own

name;

(2) This action is not barred by any state by any

state limitations period; and

(3) The EEOC properly included subparagraphs 8

(b) and 9(c) in its complaint.

Il.

THE 180-DAY LANGUAGE OF SECTION 706

(f)(1)

Section 706(f)(1) [42 U.S.C. § 2000e-5(f)(1)]

states in pertinent part:'

. . . [I)f within one hundred and eighty days

from the filing of such charge . . . the [EEOC]

has not filed a civil action under this section

... the [EEOC] .. . shall so notify the person

aggrieved and within ninety days after the giving

of such notice a civil action may be brought

against the respondent named in the charge (A)

by the person claiming to be aggrieved or (B)

if such charge was filed by a member of the

[EEOC], by any person whom the charge alleges

was aggrieved by the alleged unlawful employment

practice.

The district court found that the above statute precluded

the EEOC from bringing this action.

1Before the 1972 amendment of Section 706(f)(1), the

relevant time periods were 30 days for both the filing of

the charge with the EEOC, and filing suit after receipt of

a right-to-sue letter.

wcities

The statute on its face contains no express limitation

upon suit by the EEOC. Rather, it precludes civil

action by the charging party for 180 days so that

the EEOC may during that period pursue conciliation.’

If, after 180 days, the EEOC has neither filed a

civil action nor achieved conciliation, the charging party

may demand a “right-to-sue” letter. On receipt of it,

the charging party has 90 days within which to sue.

Should such private action be filed, the EEOC would

apparently be restricted to intervention.*

However, should the person concerned choose not

to sue during the allotted 90 days, the EEOC is not

prohibited from suing thereafter. The statute in no

way limits the time within which it must sue, so long

as the charging party has not done so.*

This issue has been before the Courts of Appeals

for the Third, Fourth, Fifth, Sixth, Eighth and Tenth

Circuits. All have ruled that Section 706(f)(1) [42

U.S.C. § 2000e-5 (f)(1)] does not preclude suit by

the EEOC after the 180-day period has run.°

“The charging party may sue before the 180-day period

has run if:

(a) The EEOC finds no reasonable cause during that

time period [42 U.S.C. § 2000e-5(b)]; or

(b) The EEOC dismisses the charge during that time

period [42 U.S.C. § 2000e-5(f)(1)].

8H.R. Rep. No. 92-238, 92nd Cong., Ist Sess. 12 (1971),

1972 U.S.C.C.A.N. 2148, quoted in Equal Employment Op-

portunity Comm’n v. Duval Corp., 528 F.2d 945, 948 n.4

(10th Cir. 1976).

‘The sole exception is that the EEOC must wait 30 days

from the filing of the charge before filing suit. [42 U.S.C.

§ 2000e-5(f) (1)].

5Equal Employment Opportunity Comm’n v. Duval Corp.,

528 F.2d 945, 947 (10th Cir. 1976); Equal Employment

Opportunity Comm’n v. Meyer Bros. Drug Co., 521 F.2d 1364,

1365 (8th Cir. 1975); Equal Employment Opportunity Comm'n

v. El. duPont de Nemours and Co., 516 F.2d 1297 (3rd

_ ae

Finding this avalanche of authority most persuasive,

we adopt the rule that the 180-day language of Section

706(f)(1) does not constitute a limitation upon the

EEOC’s ability to sue in its own name. We conclude

that the district court erred in barring this suit on

the basis of the 180-day language in Section 706(f)(1).

If.

APPLICABILITY OF RELEVANT STATE

LIMITATIONS PERIOD

The district court held alternatively that the EEOC

suit was barred by the one-year California statute of

limitations found in California Code of Civil Procedure

§340(3).

We have already determined that Section 706(f)(1)

[42 U.S.C. § 2000e-5(f)(1)] does not require the

EEOC to file suit within 180 days of the date the

private charge is filed with that agency. There being

no other portion of :itle VII susceptible of interpreta-

tion as a limitation on the time within which the

EEOC must bring suit, we find that there is simply

no governing federal limitations period. See Equal Em-

ployment Opportunity Comm’n v. Griffin Wheel Co.,

511 F.2d 456, 458, aff'd on rehearing, 521 F.2d 223

(5th Cir. 1975).

It is well established that in a private civil rights

action, where Congress has not provided a statute

of limitations, the state statute applied to similar liti-

Cir. 1975); Equal Employment Opportunity Comm’n v. Kim-

berley-Ciark Corp., 511 F.2d 1352, 1356-59 (6th Cir. 1975);

Equal Employment Opportunity Comm'n v. Louisville and Nash-

ville R.R., 505 F.2d 610 (Sth Cir. 1974); Equal Employment

Opportunity Comm’n v. Cleveland Mills, 502 F.2d 153 (4th

Cir. 1974). See also Equal Employment Opportunity Comm'n

v. Local 41, Bartenders’ International Union, 369 F. Supp.

827, 829-31 (N.D. Cal. 1973).

contigs

gation will be applied to the federal action. Johnson

v. Railway Express Agency, Inc., 421 U.S. 454, 462

(1975), and cases cited therein; Griffin v. Pacific

Maritime Assn, 478 F.2d 1118, 1119 (9th Cir. 1973).

In its complaint the EEOC seeks both injunctive

relief and back pay. By its prayer for injunctive relief

the EEOC promotes public policy and seeks to vindicate

rights belonging to the United States as sovereign.

Thus, the EEOC’s request for injunctive relief is not

subject to any state limitations period. Griffin Wheel,

supra, 511 F.2d at 459; Kimberly-Clark, supra, 511

F.2d at 1359-60. Cf. United States v. Summerlin, 310

U:S. 414 (1940). The district court erred insofar as

it barred EEOC’s request for injunctive relief on the

basis of the California limitations period.®

We consider the request for back pay. Occidental

argues that, even though the EEOC is party plaintiff,

“fijnsofar as the . . . suit constitutes a proper legal

conduit for the recovery of sums due individual citi-

zens rather than the treasury, it is a private and not

a public action.” United States v. Georgia Power, 474

F.2d 906, 923 (Sth Cir. 1973), quoted in Griffin

Wheel, supra, 511 F.2d at 458.

Since we cannot agree that EEOC’s request for

back pay must be treated as “private” in nature, we

believe the district court erred in applying the California

limitations period to bar the back pay request.

Our starting point is the recent statement of the

Supreme Court in Franks v. Bowman Transp. Co.,

|b Mipeabaethe , 44 USLW 4356 (Mar. 24, 1976):

®We express no opinion as to which, if any, state limitations

statute would apply had an individual or a class, rather than

the EEOC, been party plaintiff.

=

“(C]laims under Title VII involve the vindication of

a major public interest. . . .” Id. at ........ n.40,

44 USLW at 4365 n.40, quoting Section-By-Section

Analysis, accompanying the Equal Employment Oppor-

tunity Act of 19’2—Conference Report, 118 Cong.

Rec. 7166, 7168 (1972).

The Court in Albermarle Paper Co. v. Moody, 422

U.S. 405 (1975), discussed in some detail the nature

of Title VII claims for backpay: |

As the Court observed in Griggs v. Duke Power

Co., 401 U.S., at 429-430, the primary objective

[of Title VII] was a prophylactic one:

“It was to achieve equality of employment op-

portunities and remove barriers that have oper-

ated in the past to favor an indentifiable group

of white employees over other employees.”

Backpay has an obvious connection with this pur-

pose. If employers faced only the prospect of

an injunctive order, they would have little incentive

to shun practices of dubious legality. It is the

reasonably certain prospect of a backpay award

that “provide[s| the spur or catalyst which causes

employers and unions to «lf-examine and to self-

evaluate their employment practices and to en-

deavor to eliminate, so far as possible, the last

vestiges of an unfortunate and ignominious page

in this country’s history.” United States v. N. L.

Industries, Inc., 479 F.2d 354, 379 (CA8 1973).

It is also the purpose of Title VII to make

persons whole for injuries suffered on account

of unlawful employment discrimination.

Id. at 417-18. (Emphasis added. )

-7 a

That an award of back pay promotes the primary

Statutory objective of deterrence’ was also noted by

the Sixth Circuit in Meadows v. Ford Motor Company,

510 F.2d 939, 948 (6th Cir. 1975).

The Moody Court noted that “[t]he backpay pro-

vision [of Title VII] was expressly modeled on the

backpay provision of the National Labor Relations

Act.” 422 U.S. at 419 and n.11. It is established

doctrine that a back pay order under Section 10(c)

of the National Labor Relations Act [29 U.S.C. §

160(c)] “‘is a reparation order designed to vindicate

the public policy of the statute by making the employees

whole for losses suffered on account of an unfair

labor practice.” National Labor Relations Board v.

J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969),

quoting Nathanson v. National Labor Relations Board,

344 US. 25, 27 (1952).

It is true, of course, that whenever a party obtains

relief under a federal statute, public policy is vindicated

even though direct, immediately cognizable benefits

may flow only to the individual. Thus, for example,

private action under Title 42 U.S.C. § 1981 is subject

to state limitations periods despite the fact that each

recovery may be said to promote the public policy

embodied in the statute. See Johnson, supra, 421 US.

454 (1975).

But certain federal acts, such as the National Labor

Relations Act, are intended to be broadly prophylactic

TThe Court in Moody stated that

“backpay should be denied only for reasons which, if

applied generally, would not frustrate the central statutory

purposes of eradicating discrimination throughout the econ-

omy and making persons whole for injuries suffered

through past discrimination.”

422 U.S. at 421. (Emphasis added. )

wel

as well as remedial. See Section | [29 U.S.C. § 151].

Several circuits, including our own, have recognized

that back pay orders promote the prophylactic as well

as the remedial purposes of the National Labor Rela-

tions Act.*

The National Labor Relations Board (NLRB) does

not pursue the “adjudication of private rights.” Rather,

it “acts in a public capacity to give effect to the

declared public policy of the Act. . . .” National

Licorice Co. v. National Labor Relations Board, 309

U.S. 350, 362 (1940). “The fact that these proceedings

[may] operate to confer an incidental benefit on private

persons does not detract from this public purpose.”

Nabors v. National Labor Relations Board, 323 F.2d

686, 688-89 (Sth Cir. 1963).

Accordingly, the NLRB, as an agency of the United

States seeking enforcement of public rights, is not

bound by state limitations statutes even when seeking

back pay. Nabors, supra, t 688. See also J. H. Rutter-

Rex Mfg. Co. v. National Labor Relations Board,

399 F.2d 356, 358, 362, 364 (Sth Cir. 1968), rev'd

on other grounds, 396 U.S. 258 (1969).”

The Civil Rights Act of 1964 grew out of Congres-

sional awareness of the continued, pervasive discrimina-

8Marriott Corp. v. National Labor Relations Board, 491

F.2d 367, 371 (9th Cir. 1974); National Labor. Relations

Board v. United Marine Division, Local 33, National Maritime

Union, AFL-CIO, 417 F.2d 865, 868 (2nd Cir. 1969); Trinity

Valley Iron & Steel Co. v. National Labor Relations Board,

410 F.2d 1161, 1168 (Sth Cir. 1969); Nabors v. National

Labor Relations Board, 323 F.2d 686, 688-89 (Sth Cir. 1963).

In Rutter-Rex, after ruling that state limitations statutes

did not apply to the NLRB’s action, the Fifth Circuit modified

the Board’s order because of inordinate administrative delay

to the prejudice of defendant. The Supreme Court reversed

and ordered enforcement of the back pay order in its entirety.

In doing so, the Court assumed the inapplicability of state

limitations periods.

—s

tion against minorities, particularly Negroes, in voting,

access to public facilities, public education and employ-

ment. As the Committee on the Judiciary of the House

of Representatives reported:

Considerable progress has been made in elimi-

nating discrimination in many areas. . . . Never-

the'ess, in the last decade it has become increasing-

ly clear that progress has been too slow and that

national legislation is required to meet a national

need which becomes ever more obvious. . . . [This

Act] is designed as a step toward eradicating

significant areas of discrimination on a nationwide

basis. It is general in application and national

in Scope.

H. Rep. No. 914, 1964 U.S.C.C.A.N. 2391, 2393

(1964).

Thus, despite the existence in 1964 of such remedial

statutes as the Civil Rights Acts of 1866, 1870 and

1871 [42 U.S.C. §§ 1981-88], Congress believed that

some additional federal action was necessary to further

the public objective of elimination of nationwide dis-

crimination.” It decided that this objective could

best be pursued by federal agency enforcement.

The original Section 706 of the Civil Rights Act

of 1964, 78 Stat. 259-61, established an enforcement

scheme to be implemented primarily by the EEOC.

In 1972 Congress made it even more clear that “the

vast majority of complaints will be handled through

the offices of the EEOC or the Attorney General... .”

1°In Johnson, supra, the Court made clear the “separate,

distinct and independent” remedies available under Title 42

U.S.C. § 1981 on the one hand, and Title VII on the other.

421 U.S. at 461.

_— =

Section-By-Section Analysis, supra, 118 Cong. Rec. at

7168.

The basic function of the EEOC, as with the NLRB,

is to prevent and eliminate unlawful employment “prac-

tices and devices,” primarily through “conference, con-

ciliation, and persuasion.” Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974); Section 706(a) &

(b) [42 U.S.C. § 2000e-5(a) & (b)]. The EEOC

has the power to investigate, promote voluntary com-

pliance, . d bring suit upon failure of conciliation

efforts."

The EEOC vindicates public policy by suing in

federal court, as does the NLRB by seeking enforcement

of its orders in the courts of appeals. This is so

regardless of the type of relief sought by either. As

in labor law, so in Title VII law, the fact that private

parties may benefit from public agency action does

not detract from the public nature of those proceedings.

We are aware that -the Fifth Circuit has reached

a contrary result in at least two cases. Griffin Wheel,

supra, 511 F.2d at 458-59; Georgia Power, supra,

474 F.2d at 922-23. We decline to follow its lead.

Both of those cases were decided before the Supreme

Court decisions in Moody, supra, and Franks, supra.

Moreover, the court in Georgia Power, 474 F.2d at

921, relied on the decision of the Supreme Court

in Rutter-Rex, supra, but ignored the Court’s statement

therein that “back pay ... is . . . designed to

vindicate . . . public policy. . . .” 396 US. at

263.

"Unlike the NLRB, the EEOC has no adjudicative powers.

Yet the NLRB must itself seek court enforcement of its orders.

—

Occidental directs our attention to the Court’s deci-

sion in Johnson, supra. The Court there held that

a federal cause of action under Title 42 U.S.C. § 1981

was governed by “the most appropriate [limitation

period| provided by state law.” 421 U.S. at 462.

However, Johnson involved a private claimant litigating

under Section 1981, while this case involves a public

agency enforcing Title VII rights.

Also, the Johnson Court did not qualify its holding

according to the type of relief sought. Indeed, by

discussing the availability under Section 1981 of “both

equitable and legal relief,” 421 U.S. at 460, the Court

intimated that state limitations periods would apply

to private actions brought under Section 1981, regard-

less of the type of relief sought.

Earlier in this opinion we joined the Fifth and

Sixth Circuits, in Griffin Wheel and Kimberly-Clark

respectively, in ruling that state limitations periods

do not govern the EEOC’s request for injunctive relief.

Nothing in Johnson dictates a contrary conclusion.

Similarly, Johnson does not preclude us from concluding

that a request by the EEOC for back pay, in vindication

of public policy, is likewise immune from state limita-

tions’ periods.”

There are sound practical considerations in support

of our conclusion. First, subjecting the EEOC to state

12]t appears that the EEOC would likewise be immune

from the defense of laches. Cf. United States v. Summerlin,

310 U.S. 414, 416 (1940); Nabors v. National Labor Relations

Board, 323 F.2d 686, 688 (Sth Cir. 1963). But see Griffin

Wheel, supra, 511 F.2d at 459 n.5; Georgia Power, supra,

474 F.2d at 923. However, since the issue was not raised

herein, we need not address it.

18The court in Kimberly-Clark seemed to so conclude, al-

though it did not make clear what type of relief was at issue.

511 F.2d at 1359-60.

_ =

limitations periods, often as short as one year,'* would

frustrate its attempts to resolve disputes by means

of administrative “conference, conciliation, and per-

suasion,” |42 U.S.C. § 2000e-5(b)|, rather than by

court action.”

Second, it would be cumbersome to determine the

applicability of state limitations statutes according to

the type of relief sought. As the Sixth Circuit stated

in Meadows, supra, 510 F.2d at 945-46:

“|Back pay| may not properly be viewed as a

mere adjunct of some more basic equity. It is

properly viewed as an integral part of the whole

of relief which seeks not to punish the respondent

but to compensate the victim of discrimination.”

It is unreasonable to give the EEOC an open ticket

for equitable relief, but to impose time constraints

on back pay claims even though they are “an integral

part of the whole of relief” sought.

Third, Section 706(g) [42 U.S.C. § 2000e-5(g)]

provides: “Back pay liability shall not accrue from

a date more than two years prior to the filing of

a charge with the Commission [EEOC].” Thus, an

employer need not produce past employment records

except for the period of time the charge is pending,

and the preceding two years.

Finally, despite the absence of a controlling federal

limitations period, at least two factors are at work

4988, e.g., Johnson, supra, 421 U.S. at 462 & n.7; Griffin

Wheel, supra, 511 F.2d at 459.

Clearly the cause of action “accrues” on the last date

on which the allegedly unlawful act or practice occurs. Col-

lins v. United Airlines, Inc., 514 F.2d 594, 596 & n.2 (9th

Cir. 1975); Griffin Wheel, supra, 511 F.2d at 459 n.6. Cf.

Johnson, supra, 421 U.S. at 462.

— =

to minimize EEOC dalliance. First, the charging party

may demand a right-to-sue letter should the EEOC

fail to obtain voluntary compliance or to sue within

180 days of the original filing. Section 706(f)(1)

[42 U.S.C. § 2000e-5 (f)(1)]; Johnson, supra, 421

U.S. at 458. Second, in extreme cases a federal district

court could compel agency action. See Sections 6(b)

and 10e(A) of the Administrative Procedure Act [5

U.S.C. §§ 555(b), 706(1)]. Cf. National Labor Rela-

tions Board v. J. H. Rutter-Rex Mfg. Co., 396 U.S.

258, 266 & n. 3 (1969) (dictum).

. We conclude that the district court erred insofar

as it barred the EEOC’s back pay claim on the basis

of the California limitations period.

IV.

SCOPE OF THE EEOC’S COMPLAINT

In her original charge filed with the EEOC, Ms.

Edelson alleged that Occidental refused, on account

of sex, to provide her with maternity leave, other

pregnancy benefits, insurance, vacation benefits and sen-

iority rights.

,, In the course of its investigation the EEOC discov-

ered apparent discrimination against unmarried female

employees in the distribution of “pregnancy-related ben-

efits.” It also discovered apparent discrimination against

male employees in the administration of the retirement

system. Although these forms of alleged discrimina-

tion were not mentioned in the original charge, the

EEOC included them in subparagraphs 8(b) and 9(c)

of its complaint. Occidental argued successfully below

that these charges should be dismissed as being outside

the scope of-the original charge.

— =

As amended in 1972, Section 710 of Title VII

provides:

For the purpose of all hearings and investigations

conducted by the [EEOC] or its duly authorized

agents or agencies, section 11 of the National

Labor Relations Act (49 Stat. 455; 29 U.S.C.

161) shall apply.

[86 Stat. 109; 42 U.S.C. § 2000e-9 |

While the investigation in this case preceded the 1972

amendment of Section 710, it is clear that the prior

statute was similar in scope. See Motorola, Inc. v.

McLain, 484 F.2d 1339, 1342-44 (7th Cir. 1973);

Graniteville Co. v. Equal Employment Opportunity

Comm'n, 438 F.2d 32, 39 (4th Cir. 1971).

Section 11(1) of the National Labor Relations Act

[29 U.S.C. § 161(1)] rrovides in part that the NLRB

may gain access to “any evidence of any person being

investigated or proceeded against that relates to any

matter under investigation or in question.” This lan-

guage was given a broad reach in National Labor

Relations Board v. Wyman-Gordon Co., 394 U.S. 759,

768 (1969).

Section 709(a) of Title VII [42 U.S.C. § 2000e-

8(a)] today provides, as it did in 1964:

In connection with any investigation of a charge

filed under section 706, the Commission or its

designated representative shall at all reasonable

times have access to, for the purposes of examina-

tion, and the right to copy any evidence of any

person being investigated or proceeded against

that relates to unlawful employment practices cov-

ered by this title and is relevant to the charge

under investigation.

eittints

Had Occidental believed that the EEOC’s investi-

gation exceeded the permissible statutory scope, it could

have refused the EEOC’s demand for access and sought

adjudication of its rights."* Occidental did not do

so. Thus we can or!y conclude that the EEOC investiga-

tion was reasonable and that the information supporting

the allegations in subparagraphs 8(b) and 9(c) was

acquired during that reasonable investigation.

In Equal Employment Opportunity Comm'n v. Gen-

eral Electric Co., .... F.2d ...., .... (4th Cir. Jan. 22,

1976), the Fourth Circuit held:

So long as [discovery of| the new discrimination

arises out of the reasonable investigation of the

charge filed, it can be the subject of a “reasonable

cause” determination, to be followed by an offer

by the Commission of conciliation, and, if con-

ciliation fails, by a civil suit, without the filing

of a new charge on such claim of discrimination.

In other words, the original charge is sufficient

to support action by the EEOC as well as a

civil suit under the Act for any discrimination

stated in the charge itself or |discovered| in the

course of a reasonable investigation of that charge,

provided such discrimination was included in the

reasonable cause determination of the EEOC and

was followed by compliance with the conciliation

procedures fixed in the Act.

(Emphasis in original.) Accord, Equal Employment

Opportunity Comm’n v. Huttig Sash & Door Co., 511

16See Local No. 104, Sheet Metal Workers International

Ass'n v. Equal Employment Opportunity Comm'n, 439 F.2d

237, 241-43 (9th Cir. 1971); Circle K Corp. v. Equal Em-

ployment Opportunity Comm’n, 501 F.2d 1052 (10th Cir.

1974); Joslin Dry Goods Co. v. Equal Employment Opportunity

Comm'n, 483 F.2d 178 (10th Cir. 1973); Motorola, Inc.

v. McLain, supra; Graniteville Co., supra.

-

_-

=, =

F.2d 453, 455 (Sth Cir. 1975); Equal Employment

Opportunity Comm'n v. Kimberly-Clark Corp., 511

F.2d 1352, 1363 (6th Cir. 1975). We agree with

the reasoning of the Fourth, Fifth and Sixth Circuits."

In this case, Occidental received adequate notice

during administrative investigation of the substance of

the issues subsequently raised in subparagraphs 8(b)

and 9(c) of the EEOC’s complaint. Reference was

made to those issues in both the District Director’s

Findings of Fact (February 25, 1972), and the EEOC’s

Determination of Reasonable Cause (February 8,

1973). Thus the EEOC complied with the statute

by presenting these issues for conciliation. See Section

706(f)(1) [42 U.S.C. § 2000e-5(f)(1)].

We note that the EEOC itself could independently

bring charges based upon the information it reasonably

acquired during the investigation of Ms. Edelson’s

charge. See Section 706(b) [42 U.S.C. § 2000e-5(b) |.

To require the EEOC to pursue that route, rather

than allowing it to include the new charges along

with the original one in a single Determination of

Reasonable Cause, would be to champion form over

substance and to generate “an inexcusable waste of

11In so agreeing we do not depart in any respect from

our recent decision in Oubichon v. North American Rockwell

Corp., 482 F.2d 569 (9th Cir. 1973), in which we stated:

“When an employee seeks judicial relief for incidents

not listed in his original charge to the EEOC, the judicial

complaint nevertheless may encompass any discrimination

like or reasonably related to the allegations of the EEOC

charge, including new acts occurring wuring the pendency

of the charge before the EEOC.”

Id. at 571.

Oubichon involved the complaint of a private party, he being

subject to traditional notions of standing. We deal here with

a complaint filed by a public agency seeking vindication of

public rights.

_

valuable administrative resources” and “intolerable de-

lay,” in violation of statutory purpose. General Electric,

supra, ...... F.2d at ...... , 11 C.C.H.—Empl. Prac.

Dec. at 6614.

It remains true that Ms. Edelson would not have

had “standing” to charge Occidental with discrimination

against unmarried female employees (Ms. Edelson was

married), or against male employees with respect to

retirement. However, as we have discussed earlier, the

EEOC is charged with the vindication of public policy,

not merely with the enforcement of private rights.

In this case, enforcement by the EEOC of the objec-

tives to Title VII should not be frustrated because

a private charging party may not have had “standing”

to make a particular claim.

Finally, it is argued that “amendment” by the EEOC

of the original charge may operate to the detriment

of the charging party. In this case such a result is

speculative. In any case, the charging party should

be able to intervene in either the administrative or

judicial proceeding to insure that his or her rights

are fully protected. See Section 706(f)(1) [42 U.S.C.

§ 2000e-5(f)(1)].

For the above reasons, we conclude that the district

court erred in dismissing subparagraphs 8(b) and 9(c)

of the EEOC’s complaint.

V.

CONCLUSION

The judgment of the district court is reversed and

the cause is remanded for further proceedings consistent

with this opinion.