# Petition — Occidental Life Insurance v. Equal Employment Opportunity Commission

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0327%3A01

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 432 U.S. 355

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0327%3A01. Public record. Not legal advice.