Petition for Writ of Certiorari — Amoco Production Co. v. Equal Employment Opportunity Commission

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Supreme Court, U.S.

FILED

No. NOV 14 1985

NIOL, JR.

| CLERK

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1985

AMOCO PRODUCTION COMPANY,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WAYNE S. BISHOP

(Counsel of Record)

RICHARD K. WALKER

FREDERICK J. KILLION

BISHOP, LIBERMAN, COOK,

PURCELL & REYNOLDS

1200 Seventeenth Street, N.W.

Washington, D.C. 20086

(202) 857-9800

ROBERT M. O’CONNELL

AMOCO CORPORATION

Mail Station 2103

200 East Randolph Drive

Chicago, IL 60680

Attorneys for Petitioner

Amoco Production Company

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

1. Whether the court below erred in holding, in conflict

with at least one other circuit, that the EEOC’s failure

to meet the statutory prerequisites to commencing an

enforcement action in its own name does not affect

its ability to conduct that enforcement action as a

permissive intervenor in a private action, even after

the private parties’ claims have been settled and dis-

missed?

2. Whether the decision of the court below effectively

removes constraints on the prosecution of Title VII

class action litigation vital to the sound administra-

tion of the Act by holding that the EEOC, acting

as a permissive intervenor in an action otherwise

involving only private parties, is required to satisfy

neither the administrative prerequisites to a govern-

ment enforcement action prescribed in the statute

nor the prerequisites to a class action prescribed in

Rule 23 of the Federal Rules of Civil Procedure?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...... (aie baeciasnaiisiainendhalaaiaiin iv

ttt tl: | Ft | as vitiendedabiasiiabi 1

I eneit canpedicas —o 2

STATUTORY PROVISIONS INVOLVED ........... ite 2

STATEMENT OF THE CASE .........2............................. 2

A. The District Court Dismissed The EEOC’s Com-

plaint In Intervention After Class Certification

Had Been Denied And The Named Plaintiffs

Had Settled Their Individual Claims ......0.00........ 3

B. The Court Of Appeals Held That The EEOC’s

Permissive Intervention Survived The Dismissal

Of The Original Action And Was A Valid En-

forcement Complaint Regardless Of Whether

The EEOC Had Complied With The Statutory

Prerequisites To Initiating Suit In Its Own

RS hichanibetatibiaeentiitbiahtninnaasate 5

REASONS FOR GRANTING THE WRIT |... 6

A. The Decision Below Is Squarely In Conflict With

The Sixth Circuit’s Holding In Horn v. Eltra

gE See SL ee 6

B. This Conflict Between Circuits Presents Impor-

tant Policy Questions Concerning The Judicial

Administration Of Cases Arising Under Title

VII, Requiring The Exercise Of This Court's

Ue een 1l

CONCLUSION ....... selisnatbsliatdlinatvcnadelni ali bdeib Aleciishidcadeccenidiiician ; 18

a cinicneiiebebabnannaiennn la

i cauuineinimiibiuaiunnie 34a

TE ER ae eNO TR 36a

gy | |) | ces Eadssasdouandeetinandtabeiceniiac . 89a

(iii)

. TABLE OF AUTHORITIES

Cases : Page

EEOC v. American National Bank, 652 F.2d 1176

(4th Cir. 1981), cert. denied, 459 U.S. 923

ITED cinnncicthisninjctecigcmenssihtanesinssesesisteneeneniiceigeiaaibttita 14

EEOC v. Continental Oil Co., 548 F.2d 884 (10th

SK, TRIED ctntervsesnacubsch disc nceaneth bth ecnteilintitleesiediesticesitinstitsindaien 16

EEOC v. D.H. Holmes Co., 556 F.2d 787 (5th Cir.

1977), cert. denied, 436 US. 962 (1978) ............. 15

EEOC v. General Electric Co., 532 F.2d 359 (4th

Be ccectiincsiniinsiinithcibtedsieshattieiitaiaaihaisininanliimiasieasiliegs 8,14

EEOC v. Huttig Sash & Door Co., 511 F.2d 453

Oi i ih iis ienceitsislinedicgenaeimabintineiilianl 16

EEOC v. Kimberly-Clark Corp., 511 F.2d 1352

(6th Cir.), cert. denied, 423 U.S. 994 (1975)... 16

EEOC v. Magnolia Electric Power Ass'n, 635 F.2d

ee ee on asntnanmeninens 12

EEOC v. Missouri Pacific Railroad Co., 493 F.2d

AL iam neater ot Seal NR SD 16

EEOC v. North Hills Passavant Hospital, 544 F.2d

a eens 17

EEOC v. Pierce Packing Co., 669 F.2d 605 (9th

RRR I EIN AERA EER I 7

EEOC v. Sears, Roebuci: & Co., 650 F. 2d 14 (2nd

re x

Fields v. Beech Aircraft Corp., 95 F.R.D. 1 (D.

RD ERIE SE a Ronen Ae me oN oe 15

General Telephone Co. of the Northwest, Ince. v.

EEOC, 446 U.S. $318 (1980) ................0.0.0000.... 4, 13, 15

General Telephone Co. of the Southwest v. Falcon,

FREES. Tere 2 ee 12

Horn v. Eltra Corp., 686 F.2d 439 (6th Cir. 1982)... 4, 7-11

Pasadena City Board of Education v. Spangler,

See ee ee inh ccieieniidcactinenenttansteceniacsaindan 8

Ruotolo v. Ruotolo, 572 F.2d 336 (ist Cir. 1978) .... 8

Sosna v. Iowa, 419 U.S. 393 (1975) 9

United Telecommunications, Inc. v. Saffels, 741

F.2d 312 (10th Cir.), cert. denied, 105 S.Ct. 1776

CRETE desseanininhinihbhenebtie et ieee ena) 15

Wright v. Olin Corp., 697 F.2d 1172 (4th Cir.

SI nncitinscntpineblbsiacecta ction nn eee 12

Statutes : Page

. § Ae SS Se siiiaiilaginaiiaaapecininabpeiaiaintantii 3

Fed. R. Civ. P. 24 ..... sinicenihnictepeiaeehaniahaetantaibarianietanastiebtipiaiaiten 2

Fe Tt METRE ’ scictnchanctcesceiendanitecdainiamenenennalitiadjeem 2

Civil Rights Act of 1964, Title VII, 42 U.S.C.

§§ 2000e-1 - 2000e-17 (1982) :

Section 706 (b), 42 U.S.C. § 2000e-5(b) —......... 2, 4, 7

Section 706 (f), 42 U.S.C. § 2000e-5 (f) 0... 2, 4, 7,9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No, — ————

AMOCO PRODUCTION COMPANY,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Amoco Production Company respectfully

prays that a Writ of Certiorari issue to review the

opinion, judgment and order of the United States Court

of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

768 F.2d 669, and has been reproduced in Appendix A

hereto. The decision of the district court was unreported.

It has been reproduced in Appendix B hereto. The dis-

trict court also issued an unreported order denying re-

hearing, which has been reproduced in Appendix C

hereto.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on August 16, 1985. This petition

for certiorari was filed within 90 days of that date.

Petitioner invokes this Court’s jurisdiction under 28

U.S.C, § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved most directly herein

are Sections 706(b) and 706(f)(1) ef the Civil Rights

Act of 1964, as amended, 42 U.S.C. ‘§ 2000e-5(b), 2000e-

5(f)(1) (1980), and Rule 24(b) o he Federal Rules

of Civil Procedure. These provisions have been repro-

duced in Appendix D hereto.

STATEMENT OF THE CASE

This case was brought as a private class action by

four black employees of Petitioner, Amoco Production

Company (“Amoco”).' They claimed that Amoco had

discriminated against them and its other black employ-

ees with respect to hiring, initial assignments, promo-

tions and pay. App. 3a." The plaintiffs sought to repre-

sent a class of all blacks employed at Amoco’s New

Orleans, Louisiana, facilities. J.

Only three of the four private plaintiffs had previ-

ously filed individual charges of discrimination with the

Equal Employment Opportunity Commission (“EEOC”

or “Commission”). App. 3a n.2. Plaintiffs Lillie Jean

Smith and Hardy J. Osborne asserted in their charges

that Amoco had denied them promotions because of their

race. R. 1946, 1948. Jacqueline M. Harris complained

1 Petitioner Amoco Production Company is a wholly-owned sub-

sidiary of Amoco Corporation, an Indiana Corporation.

2 References to the appendices are designated by “App. ——.”

References to the original record are designated by “R. ——.”

of having been a victim of discrimination in her initial

job assignment, as well as having been denied promo-

tions for racial reasons. R. 1941. Plaintiff Robert Wil-

liams filed no charge with the EEOC. R. 1943.

The Commission made no findings with respect to the

charges of Mr. Osborne or Ms. Harris. App. 3a n.2.

It did find reasonable cause to believe Ms. Smith’s charge

of discrimination with respect to Amoco’s failure to pro-

mote her. Jd.

The Commission decided not to file an enforcement

action on Ms. Smith’s charge, and on August 25, 1976,

advised Ms. Smith that, “[t]he Commission has deter-

mined that it will not bring a civil action against the

respondent(s) based on your charge and accordingly is

issuing you this Notice of Right to Sue.” * R. 2313; App.

8a n.2. Thereafter, the EEOC issued right-to-sue no-

tices on the Harris and Osborne charges. App. 3a n.2.

On December 10, 1976, the four plaintiffs jointly filed

the instant complaint. R. 1. One year later, on Decem-

ber 20, 1977, the EEOC moved for permissive interven-

tion in the same action. R. 322, App. 3a. The EEOC

stipulated to limiting its intervention to the “field of

litigation” established by the original plaintiffs. App. 5a.

The District Court granted the intervention over Amoco’s

objection. /d.

A. The District Court Dismissed The EEOC’s Complaint

In Intervention After Class Certification Had Been

Denied And The Named Plaintiffs Had Settled Their

Individual Claims.

After discovery, plaintiffs moved for class certification

under Fed. R. Civ. P. 23. App. 6a. The EEOC joined in

* It is disputed on the record whether the EEOC made any mean-

ingful effort to conciliate Ms. Smith's claim with Amoco. App.

13a n.10.

that motion. R. 597. After due consideration, the District

Court found insufficient record support for a class certi-

fication and denied plaintiffs’ motion. App. 6a. There-

after, the plaintiffs settled their individual claims with

Amoco and requested dismissal of their private com-

plaints. App. 7a.

The district court dismissed the private action and

simultaneously dismissed the Commission’s complaint in

intervention. App. 7a. The court held that no live

controversy remained between the Commission and

Amoco after the class had been dismissed and the private

claims had been settled. App. 36a. Relying upon the

Sixth Circuit decision in Horn v. Eltra Corp., 686 F.2d

439 (6th Cir. 1982), the district court found that the

Commission had no independent authority to seek class

relief as a permissive intervenor after the original plain-

tiffs’ case was dismissed.* App. 37a. It further relied

upon Horn v. Eltra in holding that General Telephone

Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318

(1986), which found that the Rule 23 limitations were

not applicable to EEOC enforcement actions, was in-

apposite to cases where the EEOC was a permissive in-

tervenor in a private class action. App. 37a.

*In Horn v. Eltra, the Sixth Circuit noted that Title VII gives

the EEOC enforcement authority to litigate in its own name only

after it has (1) investigated a proper charge, (2) found reasonable

cause of a violation of the statute based on the charge and (3)

sought unsuccessfully to conciliate the reasonable cause findings.

686 F.2d at 441 (citing Sections 706(b) and (f)(1)). It found

that the permissive intervention provision of Title VII did not

grant the EEOC the power to proceed as an “intervenor of right”

or aS an original party. Jd. at 441-42. Accordingly, the Sixth

Circuit held that the EEOC, consistent with traditional notions

of permissive intervention, was permitted only an ancillary role to

the plaintiffs’ action. Absent compliance with the procedural re-

quirements for conducting an enforcement action, the circuit court

found that the EEOC had no :ndependent jurisdictional base that

would survive dismissal of the plaintiffs’ case. /d.

B. The Court Of Appeals Held That The EEOC’s Permis-

sive Intervention Survived The Dismissai Of The Origi-

nal Action And Was A Valid Enforcement Complaint

Regardless Of Whether The EEOC Had Complied With

The Statutory Prerequisites To Initiating Suit In Its

Own Name.

The Fifth Circuit reversed the district court’s dismissal

of the EEOC’s complaint in intervention. It held that the

EEOC had authority to conduct an enforcement action as

a permissive intervenor irrespective of whether the EEOC

had fulfilled the statutory preconditions for a direct

enforcement action. App. 12a-24a. It further disagreed

with the “dictum” of Horn v. Eltra which stated that

the EEOC, as a permissive intervenor, was subject to the

limitations of Rule 23 concerning the scope of any class

determination. App. 26a-27a & n.26.

Recognizing the absence of statutory language to sup-

port its position, the Fifth Circuit ruled that “courts can,

given the appropriate circumstances, equitably modify

their application of the statutory terms.” App. 19a. The

court then fou id that the general purposes of the statute

required that the EEOC be permitted to conduct an en-

forcement action as a permissive intervenor. According

to the court, the purposes of the statutory preconditions

to an enforcement action were to avoid litigation, and

this purpose could not be achieved once a private action

had been filed. App. 16a. The court also cited the gen-

eral purposes of the statute to justify the exception here

from the general legal principle that permits only in ex-

ceptional circumstances the continuation of litigation by

a permissive intervenor after the original party’s action

has been dismissed. App. 23a-24a.

In sum, the Fifth Circuit decided that the Commission

could pursue classwide claims in intervention (1) despite

dismissal of the original private action into which the

Commission had permissively intervened, (2) regardless

of whether the Commission would have been capable of

initiating a direct enforcement action on those claims in

the first instance, and (3) notwithstanding the district

court’s determination that the requirements of Rule 23

had not been met in this case. This decision, the court

noted, was in “tension” with Horn v. Eltra. App. 23a

n.21.

REASONS FOR GRANTING THE WRIT

This case squarely presents for the first time in this

Court the important question of whether the EEOC has

the power, through the vehicle of permissive intervention,

to transform a Title VII action initiated by private plain-

tiffs into a full-blown government enforcement action de-

spite the fact that the EEOC had never satisfied the

statutorily prescribed administrative prerequisites to a

direct enforcement action. In resolving this question in the

EEOC’s favor and in departing from the conclusion

reached with respect to the same issues by the Sixth

Circuit, the court below created a conflict in the circuits

that must now be resolved by this Court. Further, the

need for prompt resolution of this conflict is made more

urgent by the fact that the issues of legislative purpose

determined by the Fifth Circuit give rise to vitally im-

portant questions of national policy regarding the sound

administration of Title VII and the conduct of litigation

under the Act.

Each of the points mandating the issuance of a writ of

certiorari in this case—the conflict in the circuits and the

important questions of national policy that it implicates

—is addressed in turn below.

A. The Decision Below Is Squarely In Conflict With The

Sixth Circuit’s Holding In Horn v. Eltra Corp.

The Fifth Circuit’s decision below permits the EEOC

to seek court enforcement as a permissive intervenor in

a private action on issues that it was precluded from

litigating under its own name in a direct enfurcement

action. This anomolous result is squarely in conflict with

an earlier decision of the Sixth Circuit and is not justified

by the statutory language or purposes.

In Horn v. Eltra, the Sixth Circuit was faced with is-

sues identical in all material respects to those raised in

the present case and reached precisely the opposite result.

There, as here, the EEOC had intervened in a private

class action, but had not met the procedural prerequisites

to commencing an action in its own name. 686 F.2d at

440. Following the EEOC’s intervention, the named plain-

tiffs’ motion for class certification was denied, the named

plaintiffs settled their individual claims and the underly-

ing private action was dismissed. /d. On appeal from an

order of the district court revoking the EEOC’s interven-

tion, the Sixth Circuit held that the denial of class certifi-

cation and the settlement of the named plaintiffs’ claims

precluded the EEOC from seeking further relief in the

action as a permissive intervenor.

The disagreement between the Fifth and Sixth Circuits

centers on whether the EEOC, as a permissive inter-

venor in a private Title VII action, is required to comply

with the statutory prerequisites to initiating a direct

enforcement action before it can press its claims inde-

pendently of the original parties in the private suit. On

this precise issue, the circuits are in direct conflict.

The statute limits the EEOC’s power to seek enforce-

ment. Before it can proceed under its own name, the

EEOC must have received a timely charge, investigated

that charge, determined there is reasonable cause to be-

lieve that allegations in the charge are true and failed

to obtain a conciliation agreement on those determina-

tions. §$§ 706(b), 706(f) (1); see EEOC v. Pierce Pack-

ing Co., 669 F.2d 605, 608 (9th Cir. 1982) (‘Genuine

investigation, reasonable cause determination and concilia-

tion are jurisdictional conditions precedent to suit by the

EEOC ....”) (emphasis added). The EEOC’s enforce-

ment action then is limited to the scope of the issues sub-

ject to conciliation. Jd.; accord EEOC v. Sears, Roebuck

& Co., 650 F.2d 14, 18-19 (2d Cir. 1981) ; EEOC v. Gen-

eral Electric Co., 5382 F.2d 359, 366 (4th Cir. 1976).

The court below found these statutory prerequisites to

an EEOC court enforcement action not relevant where

the EEOC intervenes in an existing action. It found that

the statute’s grant of permissive intervention authority

to the EEOC provided the jurisdictional basis for the

EEOC to bring a direct enforcement action through the

device of permissive intervention. App. 2la-24a. It fur-

ther concluded that the direct action prerequisites were

designed merely to avoid litigation, and that this purpose

could not be achieved once the private action had been

filed. App. 16a. In short, the court below found the

EEOC could, once permissive intervention was granted,

participate in the private litigation as an original party

without the restriction of the statutory prerequisites.

The Sixth Circuit’s decision in Horn v. Eltra not only

is in disagreement with the direct holding of the court

below, but also it disagrees with the court’s fundamental

conception of the statutory scheme. It rejected the con-

tention that the statute provided the intervening EEOC

with the status of an “original party.” 686 F.2d at 441-

42. It found that the statute—which uses the traditional

language of permissive intervention, and not intervention

as of right—did not incorporate the language Congress has

used in other contexts when it chose to confer “original

party status” upon an intervenor. 7d.’ Accordingly, the

5 The Sixth Circuit cited Pasadena City Board of Education v.

Spangler, 427 U.S. 424 (1976), as an instance where the statutory

language provided “original party” status rather than mere permis-

sive intervention. 686 F.2d at 441-42. See also Ruotolo v. Ruotolo,

572 F.2d 336 (1st Cir. 1978), where the absence of special language

was found to prohibit the government from continuing litigation

as a permissive intervenor after the private parties’ case was

dismissed.

The court below, although recognizing that the “absence of similar

language” favored the interpretation made by the Sixth Circuit,

Sixth Circuit held that the EEOC’s participation in the

private action was subject to the traditional legal prin-

ciples governing permissive intervention—i.e., that the

intervenor’s action survives dismissal of the original par-

ties’ action only upon very limited exceptions. 686 F.2d

at 440.

The Sixth Circuit found neither of the two recognized

exceptions applicable to the EEOC’s intervention in the

circumstances presented here. Jd. at 441. First, it found

that the EEOC did not fall within the “independent ju-

risdictional basis” exception because the EEOC had failed

to meet the statutory prerequisites for establishing juris-

diction. Jd. Second, it found that the EEOC could not

keep the case alive under the Sosna* exception. Denial

of class certification eliminated any claim that the EEOC

was acting as a class action intervenor, protecting class

members after the plaintiffs’ claims became moot. 686

F.2d at 441.

Having found that the EEOC had no legal basis for

continuing the suit after the private action was dismissed,

the Sixth Circuit dismissed the EEOC’s action. This de-

cision directly conflicts with the holding of the court below

that the EEOC can continue an action under the same

factual situation. The holdings of the two courts not only

are in conflict, but they conflict in important underlying

statutory interpretations as to whether the intervention

provision gives the EEOC rights as an original party,

whether the EEOC must comply with the statutory pre-

requisites under Section 706(f) (1) before it can seek en-

forcement through permissive intervention, and whether

chose to ignore this difference in favor of its determination that the

EEOC’s participation in these cases “serves the statutory purpose.”

App. 24a n.22, 21a n.20.

6 Sosna v. Iowa, 419 U.S. 398 (1975).

the EEOC, as a permissive intervenor, can seek class re-

lief without compliance with Rule 23."

The court below, although it “recognize[d] that our

holding is in tension with that of the Sixth Circuit in

Horn v. Eltra ...,” (App. 28a n.21) (emphasis added),

sought to distinguish Horn v. Eltra on factual grounds.

While some factual differences exist between Horn v.

Eltra and this case, they do not by any means eliminate

the conflict between the circuits. In seeking to distinguish

the present case from Horn v. Eltra, the court below said:

The Sixth Circuit did not affirm the district court’s

dismissal, which, judging from the panel opinion,

could have been based either on an exercise of the

court’s discretion under Rule 24(b) or on a ruling

as a matter of law under Title VII. Rather, the

court of appeals dismissed the appeal as moot, thereby

indicating that the court viewed the Commission as

attempting to intervene in a nonexistent suit rather

than as trying to maintain its claims as a valid

party to the action. Indeed, its holding was based

almost entirely on cases involving attempts to inter-

vene where some or all of the original plaintiffs’

claims had already been dismissed, see id. at 440-41,

and at least one district court of that circuit has so

7 The differences between the two circuits are aptly illustrated by

their approaches to the Rule 23 issue. The Sixth Circuit’s approach

to Title VII’s intervention provision is that Congress limited the

EEOC to traditional permissive intervention. Absent compliance

with the statutory prerequisites, the EEOC is limited to the issues

legitimately raised by the parties and cannot expand the litigation.

Accordingly, the EEOC in that traditional intervention role is

limited in the class portion of the case by the original parties’ need

to comply with Rule 23. Jd. at 441 n.1. The Fifth Circuit maintains

that the EEOC’s intervention is not limited and it is simply a

matter of choice for the EEOC whether to intervene or proceed

under its own name. Accordingly, once the EEOC has intervened,

the EEOC is not subject to Rule 23. In the Fifth Circuit’s view,

“(t]he EEOC’s ability to maintain suit ‘in its own name’ has no

meaniug apart from whatever relief the Commission obtains for

employees ... .”” App. 26a.

interpreted the holding in Horn, see EEOC v. Day-

ton Tire & Rubber Co., 573 F. Supp. 782, 786 n.5

(S.D. Ohio 1983).

Id.

This attempt to minimize an obvious conflict between

circuits must fail. The Sixth Circuit’s decision to dis-

miss the appeal as moot was not based on a finding that

the EEOC was attempting to intervene in a nonexistent

action. It was based on the conclusion that “the EEOC

[was] without an independent jurisdictional basis upon

which to litigate against Eltra... .” 686 F.2d at 442.

That being so, the court found no reason to reach the

merits of the EEOC’s appeal—i.e., whether the district

court erred in withdrawing the EEOC’s intervention au-

thority while the private case was still pending—when

even a favorable decision on that issue would not have

allowed the EEOC to continue to pursue its complaint in

intervention. If, in fact, the Sixth Circuit had viewed the

case as one involving an attempt to intervene ab initio, it

would not have devoted the bulk of its opinion to con-

sidering whether the EEOC’s intervention should be per-

mitted, like the intervention of the Justice Department

in Spangler, “to survive the mootness of the original party

plaintiff’s claim ... .” Jd. at 441 (emphasis added).

Accordingly, the conflict between the circuits is real, is

important, and must be resolved.

B. This Conflict Between Circuits Presents Important Pol-

icy Questions Concerning The Judicial Administration

Of Cases Arising Under Title VII, Requiring The

Exercise Of This Court’s Certiorari Jurisdiction.

In addition to the conflict in the circuits, the decision

below raises important considerations and differences

among the circuits that promise to interfere with the

sound administration of EEOC litigation arising under

Title VII. This case presents the appropriate forum for

resolution of the EEOC’s public role in private litigation.

In General Telephone Co. of the Southwest v. Falcon,

457 U.S. 147 (1982), this Court found it necessary to

rein in the lower courts’ enthusiasm for broad, “across-

the-board” class actions brought under Title VII by re-

emphasizing the need for rigorous compliance with the

requirements of Rule 23 in Title VII actions as in all

others. Similarly, the courts of appeals have uniformly

reflected related concerns with the manageability of Title

VII litigation and with fairness to defendants in insist-

ing that the EEOC must satisfy the statutory prerequi-

sites to an enforcement action before such an action can

be prosecuted. See, e.g., EEOC v. Magnolia Electric

Power Ass’n, 635 F.2d 375, 378 (5th Cir. 1981) (“When

the EEOC ignores. fails to obey or capriciously deprives

a respondent of its administrative procedures, no suit

may be prosecuted against that respondent regardless of

prejudice.”).* The Fifth Circuit decision here threatens

to undermine these recent advances toward the manage-

ability of Title VII litigation in favor of broad, unlim-

ited EEOC litigation.

At the Fifth Circuit’s invitation, it will now be pos-

sible for the EEOC to circumvent the congressionally

prescribed prerequisites to litigation by the simple expe-

dient of waiting for a private plaintiff to commence

his or her own action. Then, by intervening, the Com-

mission can transform that action into a government en-

forcement action with ai! the attributes of an enforce-

ment action brought by the EEOC, but without the limi-

tations sought to be obtained by the statutory prerequi-

sites.

At the same time, the Commission will be able, by in-

voking the Fifth Circuit’s opinion and this Court’s deci-

§ See also Wright v. Olin Corp., 697 F.2d 1172, 1176 (4th Cir.

1982) (holding that “for each type of discrimination alleged in

the complaint the EEOC must have made a reasonable cause de-

termination and attempted conciliation between the employer and

employees”).

sion in General Telephone,® to vitiate the progress toward

manageability of Title VII cases that Falcon represents.

Thus an action that began as one subject to the stric-

tures of Rule 23 would be transmuted inte an action in

which Rule 28 would be irrelevant. In effect, then, the

Fifth Circuit’s decision has endowed the EEOC with the

power to revive the unlimited “across-the-board” class ac-

tion that this Court was at some pains to circumscribe in

Falcon.

It is apparent from the decision below that the Fifth

Circuit gave insufficient consideration to the far-reaching

implications of dispensing with both the statutory pre-

requisites to EEOC litigation and Rule 23 whenever the

Commission enters a pending private action as an inter-

venor. For example, one of the court’s major rationales

for excusing the EEOC’s failure to comply with the con-

gressionally prescribed prerequisites to litigation was

that the purpose underlying the prerequisites—which the

court assumed was “primarily to avoid litigation”—could

no longer be served once litigation had already been com-

menced by a private party. Thus, it said,

It would defy reason to require compliance with

procedural prerequisites whose raison d’etre—

namely, the desire to avoid premature litigation—is

absent. Where the parties are already in court pur-

suant the statutory scheme, the day for complying

with the calisthentics of an alternative route has

come and gone.

App. 16a.

®In General Telephone, this Court held that the EEOC need not

comply with the requirements of Rule 23 in actions brought by the

Commission in the first instance “in its own name.” 446 U.S. at

324-25, 330. In its decision below, the Fifth Circuit held that “we

see no reason not to apply the holding of General Telephone to cases

where the Commission seeks to enforce the Act by intervening

rather than by bringing a direct action.” App. 26a.

But this rationale completely ignores other important

interests served by the statutory prerequisites—those of

limiting the scope of the litigation to claims encompassed

by reasonable cause determinations of possible discrimi-

nation and of clearly identifying for the respondent the

precise scope of the claims and issues that he will be re-

quired to defend if conciliation fails. “Two important

purposes are served by this preadjudicative administra-

tive procedure: first, the employer is fully notified of

the violation alleged by the charging party; and second,

the EEOC has the opportunity to consider all the charges

and to attempt their resolution through conciliation and

voluntary compliance.” EEOC v. American National

Bank, 652 F.2d 1176, 1185 (4th Cir. 1981), cert. denied,

459 U.S. 923 (1982).

The notice function to be served by the issuance of

reasonable cause findings and conciliation has become

particularly important in light of judicial pronounce-

ments that the scope of subsequent litigation need not be

confined to those claims and issues set forth in the ad-

ministrative charge of discrimination, but may encom-

pass new issues arising out of a reasonable investigation

of the charge filed.

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 developed in the course of a reason-

able investigation of that charge, provided such dis-

crimination was included in the reasonable clause

determination of the EEOC and was followed by

compliance with the conciliation procedures fixed in

the Act.

General Electric, 582 F.2d at 366 (emphasis in original)

(footnote omitted ).

Thus, the elimination by the Fifth Circuit of both the

statutory prerequisites and Rule 23 deprives Title VII

defendants in actions in which the Commission inter-

venes of the two mechanisms necessary for meaningful

assessment of the sccpe of the action with which they

are faced, and hence denies them access to one of the

most vital pieces of information bearing on the appro-

priateness of settlement. This in turn impinges on that

aspect of the statutory purpose to which the Fifth Cir-

cuit was wont to assign overweaning importance—the

voluntary resolution of disputes arising under the Act.

Moreover, this state of affairs necessarily will lead to

precisely the chaotic situation that an earlier panel of

the Fifth Circuit feared might be precipitated by ex-

empting the EEOC from the requirements of Rule 23

alone:

If EEOC is exempted from Rule 23, chaos in the

management of Title VII class actions could result.

Such matters as notice, exclusion, intervention, dis-

missal or compromise, and statute of limitations

treatment would be put in question.

EEOC v. D.H. Holmes Co., 556 F.2d 787, 796 (5th Cir.

1977), cert. denied, 486 U.S. 962 (1978)."°

Since this Court issued its opinion in General Tele-

phone, there already have been at least three cases re-

ported in which the Commission has intervened in a

private class action for the purpose of pursuing class-

wide relief while maintaining that it was exempt from

the requirements of Rule 23."' The Commission now can

simply ignore its statutory mandate, file blanket inter-

ventions in private Title VII actions and await the de-

1% Four members of this Court expressly endorsed this reasoning

of the Fifth Circuit in noting their dissent to the majority opinion

in General Telephone. See 446 U.S. at 334 (Burger, C.J. and Powell,

Rehnquist and Stevens, J.J., dissenting).

11 In addition to this case, the Commission has sought classwide

relief as an intervenor in United Telecommunications, Inc. v. Saffels,

741 F.2d 312 (10th Cir.), cert. denied, 105 S.Ct. 1776 (1984), and

Fields v. Beech Aircraft Corp., 95 F.R.D. 1 (D. Kan. 1981).

nial of class certification before expending its lega! re-

sources. Indeed, the Fifth Circuit virtually invited this

development when it said, “if the Commission views a

complaint to be unworthy of a reasonable cause deter-

mination . . . it can issue a right-to-sue letter to the

claimant without sacrificing the administrative role.

Upon concluding that a private Title VII suit is impor-

tant, the Commission need only say so to intervene.”

App. 15a. Before this becomes the preferred method of

EEOC litigation, this Court should pass on whether such

an approach can be reconciled with the statutory scheme

prescribed by Congress.

The need for guidance from this Court is further ex-

acerbated by the fact that this case arises in the context

of a broader disagreement among the circuit courts over

the appropriate interrelationship between private litiga-

tion and government enforcement actions. For instance,

although two circuits have held that “once the charging

party has filed suit pursuant to a ‘right to sue’ notice,

the Commission is relegated to its right of permissive

intervention,” EEOC v. Missouri Pacific Railroad Co.,

493 F.2d 71, 75 (8th Cir. 1974); EEOC v. Continental

Oil Co., 548 F.2d 884 (10th Cir. 1977), the Fifth Cir-

cuit has joined the Third and Sixth Circuits in holding

that the EEOC’s enforcement powers are independent of

private action rights, stating:

a grant of permissive intervention does not guaran-

tee that che EEOC will be able to raise issues ihat

have arisen in the investigation of a claim on which

the private party has sued, when the issues the

EEOC seeks to litigate are not raised by the private

party. We believe the remedy for this is not to ex-

pand the concept of intervention beyond its normal

meaning, but to allow the EEOC to bring suit based

-» the findings that its investigation warrants.

EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 n.2

(5th Cir. 1975) (quoting EEOC v. Kimberly-Clark Corp.,

511 F.2d 1352, 1363 n.15 (6th Cir.), cert. denied, 423

U.S. 994 (1975)); see also EEOC v. North Hills Passa-

vant Hospital, 544 F.2d 664 (3d Cir. 1976) (Commission

enforcement powers are independent of private action

rights.). Thus, this case provides a vehicle for this Court

to put to rest confusion that has reigned for a decade or

more over sii fundamental issues as the effect of the

commencement of private litigation on Commission en-

forcement powers and the effect of Commission inter-

vention in pending private litigation.

That assistance from this Court is needed is evident

also in the Fifth Circuit’s own characterization of the

issues in this case:

Faced too with a confluence of devices designed in

part to address the far-reaching effects of a single

lawsuit—the class action, intervention, and an agen-

cy’s very authority to seek judicial enforcement—

courts are at times bedeviled by the complexity in-

volved in assessing the effects of these “public” ele-

ments on the individual cases before them.

This is one of those times.

App. 2a-3a. These questions are so fundamental and

their implications so far-reaching, that this Court should

withhold no longer the sorely needed benefits of its

guidance.

CONCLUSION

For the foregoing reasons, Petitioners pray that a

Writ of Certiorari be issued to review the judgment and

decision of the United States Court of Appeals for the

Fifth Circuit in this case.

November 14, 1985

Respectfully submitted,

WAYNE S. BISHOP

(Counsel of Record)

RICHARD K. WALKER

FREDERICK J. KILLION

BISHOP, LIBERMAN, COOK,

PURCELL & REYNOLDS

1200 Seventeenth Street, N.W.

Washington, D.C. 20036

(202) 857-9800

ROBERT M. O’CONNELL

AMOCO CORPORATION

Mail Station 2105

200 East Randolph Drive

Chicago, IL 60680

Attorneys for Petitioner

Amoco Production Company

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 83-3665

JACQUELINE M. HARRIS, et al.,

Plaintiffs,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Intervenor-Appellant,

AMOCO PRODUCTION Co.,

Defendant-A ppellee.

Aug. 16, 1985

Appeal from the United States District Court

for the Eastern District of Louisiana

Mark S. Flynn, Irene L. Hill, E.E.0.C., Appellate

Services Div., Washington, D.C., for intervenor-appellant.

McGuiness & Williams, Douglas S. McDowell, Robert

E. Williams, William S. Franklin, Washington, D.C., for

amicus Equal Employment Advisory Council.

Wayne S. Bishop, Richard K. Walker, Washington,

D.C., for Standard Oil.

Robert M. O’Connell, Chicago, IIl., for Amoco.

Before CLARK, Chief Judge, and GOLDBERG and

TATE, Circuit Judges.

GOLDBERG, Circuit Judge:

Unlike courts, which are concerned primarily with

the enforcement of private rights although public in-

terests may thereby be implicated, administrative

agencies are predominantly concerned with enforcing

public rights although private interests may thereby

be affected. To no small degree administrative agen-

cies for the enforcement of public rights were estab-

lished by Congress because more flexible and less

traditional procedures were called for than those

evolved by the courts.

FCC v. National Broadcasting Co., 319 U.S. 239, 248,

63 S.Ct. 1035, 1039, 87 L.Ed. 1374 (1943) (Frankfurter,

J., dissenting). These words, written long ago and for

their own particular audience,’ remain pertinent. Federal

agencies are frequently charged with the task of issuing

rules and resolving disputes in what might fairly be

termed an administrative “parallel universe.” These same

agenvies, however, are often called upon to vindicate pub-

lic rights through the judiciary. Where the third branch

is invuked, the neatness of Justice Frankfurter’s dichot-

omy between private adjudication and agency action col-

lapses into a unitary judicial proceeding, premised on pri-

vate discord, yet shading into the realm of public concern.

Faced too with a confluence of devices designed in part to

address the far-reaching effects of a single lawsuit—the

class action, intervention, and an agency’s very authority

to seek judicial enforceement—courts are at times bedeviled

1In National Broadcasting, the Court held, under the relevant

statute and regulations, that a licensed radio station could intervene

as of right in FCC hearings designed to determine whether a com-

peting channel should be licensed. 319 U.S. at 245-46, 63 S.Ct. at

1037-38.

by the complexity involved in assessing the effects of these

“public” elements on the individual cases before them.

This is one of those times. Four black employees

brought the present suit against their employer, the

Amoco Production Company, pursuant to title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17

(1982), and the Civil Rights Act of 1866, 42 U.S.C.

§ 1981 (1982).2 The initial and amended complaints to-

gether alleged that Amoco discriminated against blacks in

the areas of initial job assignment, promotion, and com-

pensation. The plaintiffs sought to represent both them-

selves and “a class of persons composed of (1) all black

employees of the New Orleans division of AMOCO Pro-

duction Company, [and] (2) all black employees who

have been employed in the New Orleans division . . . at

any time subsequent to June 11, 1973.”* Record vol. 1,

at 2, 53.

The Equal Employment Opportunity Commission

(“EEOC”) moved to intervene in the action pursuant to

sections 705(g) (6) and 706(f) (1) of title VII, 42 U.S.C.

$§ 2000e-4(g) (6), -5(f)(1),* and Fed. R. Civ. P. 24

2 Three of the four plaintiffs had previously filed charges of em-

ployment discrimination with the Equal Employment Opportunity

Commission. The Commission determined, pursuant to § 706(f) (1)

of title VII, 42 U.S.C. § 2000e-5(f) (1), that one of the complainants

had “reasonable cause” to believe that Amoco had discriminated

against her by failing to promote her because she is black. Al-

though the Commission never issued a reasonable cause determina-

tion as to the other two complainants, the Commission eventually

issued right-to-sue letters to each of the three. See id.

8 The original complaint also sought to join as class members all

black applicants who had been denied employment by the New

Orleans division, but the plaintiffs abandoned this effort in their

amended complaint. Record vol. 1, at 53.

* Section 705(g) provides in pertinent part:

(g) The Commission shall have the power—

[Continued ]

* [Continued }

(6) to intervene in a civil action brought under section

2000e-5 of this title by an aggrieved party against a respond-

ent. ...

Section 706(f) (1) provides in pertinent part:

(f) (1) If within thirty days after a charge is filed with the

Commission or within thirty days after expiration of any period

of reference under subscction (c) or (d) of this section, the Com-

mission has been unable to secure from the respondent a concilia-

tion agreement acceptable to the Commission, the Commission may

bring a civil action against any respondent not a government, gov-

ernmental agency, or political subdivision named in the charge. In

the case of a respondent which is a government, governmental

agency, or political subdivision, if the Commission has been unable

to secure from the respondent a conciliation agreement acceptable

to the Commission, the Commission shall take no further action

and shall refer the case to the Attorney General who may bring a

civil action against such respondent in the appropriate United

States district court. The person or persons aggrieved shall have

the right to intervene in a civil action brought by the Commission

or the Attorney General in a case involving a government, govern-

mental agency, or political subdivision. If a charge filed with the

Commission pursuant to subsection (b) of this section is dismissed

by the Commission, or if within one hundred and eighty days from

filing of such charge or the expiration of any period of reference

under subsection (c) or (d) of this section, whichever is later, the

Commission has not filed a civil action under this section or the

Attorney General has not filed a civil action in a case involving a

government, governmental agency, or political subdivision, or the

Commission has not entered into a conciliation agreement to which

the person aggrieved is a party, the Commission, or the Attorney

General in a case involving a government, governmental agency, or

political subdivision, 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 Commission, by any person whom the

charge alleges was aggrieved by the alleged unlawful employment

practice. Upon application by the complainant and in such circum-

stances as the court may deem just, the court may appoint an attor-

ney for such complainant and may authorize the commencement

of the action without the payment of fees, costs, or security. Upon

timely application, the court may, in its discretion, permit the

(b).5 Since the Commission had certified the case as being

of “general public importance” pursuant to section 706

(f) (1), the district court, acting through a magistrate,

exercised its discretion to permit the EEOC to intervene.

The Commission acknowledged that the scope of its par-

ticipation would be “no greater than the scope of claims

raised in Plaintiffs’ complaint” and that it would not

“depart from the ‘field of litigation’ established by the

original parties,” Record vol. 2, at 322—stipulations on

which the order granting intervention was based, id. at

362.

At first, the Commission alleged in its amended com-

plaint that it satisfied the class representation require-

ments of Rule 23 and should therefore be allowed to rep-

resent “itself and all blacks who are presently employed,

may be employed, or who have been employed or sought

employment with defendant ... at any [time] since De-

Commission, or the Attorney General in a case involving a govern-

ment, governmental agency, or political subdivision, to intervene

in such civil action upon certification that the case is of general

public importance. Upon request, the court may, in its discretion,

stay further proceedings for not more than sixty days pending the

termination of State or local proceedings described in subsection

obtain voluntary compliance.

5 Rule 24(b) provides:

(b) Permissive Intervention. Upon timely application anyone

may be permitted to intervene in an action: (1) when a stat-

ute of the United States confers a conditional right to inter-

vene; or (2) when an applicant’s claim or defense and the

main action have a question of law or fact in common. When

a party to an action relies for ground of claim or defense upon

any statute or executive order administered by a federal or state

governmental officer or agency or upon any regulation, order,

requirement or agreement issued or made pursuant to the

statute or executive order, the officer or agency upon timely ap-

plication may be permitted to intervene in the action. In ex-

ercising its discretion the court shal! consider whether the

intervention will unduly delay or prejudice the adjudication of

the rights of the original parties.

cember 11, 1973.” Record vol. 2, at 412.° However, when

the Supreme Court held in General Telephone Co. v.

EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319

(1980), that the EEOC is not subject to Rule 23 in seek-

ing relief for a class of individuals allegedly aggrieved by

unlawful employment discrimination, the Commission filed

a second amended complaint deleting all allegations ad-

dressed to the usual class representation requirements.

The Commission nonetheless continued to seek classwide

relief, alleging, as it had from the start, that Amoco was

engaging in discriminatory employment practices in pro-

motion, compensation, and job assignment.

Meanwhile, the district court had never certified the

main plaintiffs themselves as class representatives. After

a hearing on the issue, the court provisionally denied the

plaintiffs’ motion, preserving their right to renew the

request with the support of additional evidence at a later

date. Record vol. 8, at 2090-97. The district court simul-

taneously held that the Commission could not seek relief

for the proposed class, stating that the requirements of

Rule 23(a) had not been satisfied and that General Tele-

phone’s class action holding applies only when the EEOC

has brought an action in its own name, not when it in-

tervenes in a private suit. Jd. at 2095.

Thus limited, the Commission nonetheless sought to dis-

cover the birthdates and sexes of Amoco employees al-

ready identified as having held jobs encompassed within

the proposed class. According to the Commission, the age

and sex data was needed to conduct a multiple regression

analysis of Amoco’s workforce even though the plaintiffs

alleged only race discrimination. Over the defendant’s ob-

jection, the district court granted the Commission’s mo-

* Although the Commission initially alleged that Amoco also dis-

criminated against black job applicants, it subsequently informed

the court that, in accordance with the scope of the plaintiffs’ suit,

it would not pursue the issue of hiring discrimination. Record vol.

8, at 2030 n. 1; id. vol. 11, at 47.

tion to compel, but at the same time granted Amoco’s

motion for a protective order restricting the use of the

data solely to this case absent a written order from the

court.

The private plaintiffs and Amoco eventually reached a

settlement, and upon their joint motion, the district court

dismissed the entire action with prejudice. For its part,

the Commission was understandably displeased with the

nullification of what was by now five and one-half years

of agency involvement as a party to the suit. The agency

therefore filed a motion to reconsider the dismissal of its

claims. The district court, however, was unswayed. In

denying the Commission’s motion, the court reiterated its

prior ruling that the EEOC could not seek relief for the

proposed class because the requirements of Rule 23 had

not been met, and therefore held that since the private

plaintiffs had settled their dispute with the defendants, no

live controversy remained between the Commission and

Amoco.

The Commission raises three points on appeal. First,

the Commission argues that a permissive intervenor such

as itself commands an independent jurisdictional base

where the intervention is premised either on a conditional

statutory right to intervene or on the intervenor’s reli-

ance on the same federal statute as that employed by the

original plaintiff. On this view, the district court erred

by dismissing the EEOC merely because the main plain-

tiffs had settled with the defendant. Second, the Commis-

sion contends that it is no more subject to Rule 23’s class

representation requirements when it intervenes in a pri-

vate title VII action than when it brings suit in its own

name. According to the Commission, the district court

should not have denied it the status of a class representa-

tive in light of the Court’s decision in General Telephone.

Finally, the Commission asserts that the trial court’s pro-

tective order restricting its use of the age and sex data

unduly hampers the agency’s ability to enforce the Act

and to comply with its interagency obligations.

We hold that the Commission can maintain suit as a

class representative but that the district court’s protec-

tive order was not an abuse of discretion.

This is a case about justiciability. The district court

held that the main plaintiffs’ settlement deprived the

EEOC as an intervenor of its case or controversy against

the defendant employer." We perceive two hamartial

theories in support of this result. It could be argued first

that this circuit’s law of permissive intervention bottoms

a district court’s subject matter jurisdiction on the claims

of the original plaintiffs, without whom the intervenor

could not have intervened and absent whom this “vicari-

ous” party must depart. In addition, it could somewhat

more plausibly be asserted that the EEOC—a permissive

intervenor whose conditional power to intervene has its

source in federal law—is limited by its enabling legisla-

tion to representing only its own interests and those of

the private plaintiffs. This second theory would have us

affirm the district court on the ground that the EEOC

has satisfied neither (A) title VII’s preconditions to a

suit brought in the Commission’s own name, nor (B)

Rule 23’s class action requirements, which, although in-

applicable where the EEOC files a direct action, are ap-

plicable where the EEOC merely intervenes in a private

suit. On this view, the EEOC is allowed by statute to

intervene solely for the purpose of facilitating the ad-

judication of claims between the private litigants—a role

akin to that of an amicus curiae, whose asserted expertise

and familiarity with a given area of law enable it to

TIn dismissing the Commission, the district court did not exer-

cise its discretion pursuant to Rule 24(b) but instead ruled as a

matter of law that the EEOC no longer had a “live controversy”

with the defendant. We therefore pretermit deciding the circum-

stances under which the dismissal of a permissive intervenor such

as the EEOC might be construed as an abuse of trial court discre-

tion.

assist the court in reaching a more correct (and perhaps

even just) decision. In essence, this notion of intervenor

qua judicial appendage focuses less on the premises of

permissive intervention in general and more on the in-

tervenor’s statutory authority to intervene.

We will address each of these arguments in turn.

A. Unsettling Bedfellows: The Permissive Intervenor

and the Reluctant Defendant

As noted, the district court allowed the EEOC to in-

tervene pursuant to sections 705(g)(6) and 706(f) (1)

of title VII, 42 U.S.C. §§ 2000e-4(g) (6), -5(f) (1), as

well as under Rule 24(b). We confront the nature of this

statutory authority in Parts B and C below. For the

moment, we briefly consider whether the procedural tool

of party intervention enables a district court to retain

jurisdiction over the claims of a permissive intervenor

once those of the original plaintiffs have been dismissed.

At the outset, it is essential not to conflate what is re-

quired for a permissive intervenor to enter an action and

what may be required for that intervenor to remain be-

fore the court. The two situations are not inherently

congruent, the permissive intervenor falling somewhere

in the gray area between spectator and participant. It is

well-established, for example, that a party must have “in-

dependent jurisdictional grounds” to intervene permis-

sively under Rule 24(b). E.g., Hunt Tool Co. v. Moore,

Ine., 212 F.2d 685, 688 (5th Cir. 1954). See generally TA

C. Wright & A. Miller, Federal Practice and Procedure

§ 1917, at 592 (1972). Generally, these grounds exist

where, as here, the intervenor relies on having satisfied

a conditional statutory right to intervene. However, the

intervenor’s mere presence in an action does not clothe it

with the status of an original party. To be sure, there

are some senses in which an “intervenor is treated as if

he were an original party and has equal standing with

the original parties.” Jd. § 1920, at 611; see Donovan v.

10a

Oil, Chemical, & Atomic Workers International Union,

718 F.2d 1841, 1351 (5th Cir. 1983), cert. denied, ——

U.S. —~—, 104 S.Ct. 2844, 80 L.Ed.2d 818 (1984); 3B

J. Moore & J. Kennedy, Moore’s Federal Practice {| 24.17

[1], at 24-185 to -186 (2d ed. 1985). The permissive in-

tervenor can, among other things, move to dismiss the

proceeding and can challenge the subject matter jurisdic-

tion of the district court. Jd. {| 24.16[2], [4]. But these

participatory rights remain subject to the intervenor’s

threshold dependency on the original parties’ claims, for

it is equally well-settled that “[a]n existing suit within

the court’s jurisdiction is a prerequisite of an interven-

tion, which is an ancillary proceeding in an already in-

stituted suit.” Kendrick v. Kendrick, 16 F.2d 744, 745

(5th Cir. 1926), cert. denied, 273 U.S. 758, 47 S.Ct. 472,

71 L.Ed. 877 (1927), quoted in Truvillion v. King’s

Daughters Hospital, 614 F.2d 520, 526 (5th Cir. 1980) ;

accord Simmons v. ICC, 716 F.2d 40, 46 (D.C. Cir.

1983); see also Non Commissioned Officers Association

of the United States v. Army Times Publishing Co., 637

F.2d 372, 373 (per curiam), modified on other grounds,

650 F.2d 83 (5th Cir. 1981) (per curiam). It is there-

fore unclear whether an intervenor can broaden the scope

of a litigation by asserting additional claims; to the ex-

tent it can, the district court has a concomitant preroga-

tive—as an outgrowth of its discretionary power to with-

hold permission altogether—to condition the intervention

so as to minimize delay and not prejudice the existing

parties. See, e.g., National Organization for Women, Inc.

(NOW), Saint Paul Chapter v. Minnesota Mining &

Manufacturing Co., 73 F.R.D. 467, 471-72 (D. Minn.

1977).

Although an intervenor’s entrance does not in all re-

spects guarantee it the right to do that which an original

party could have done, a permissive intervenor need not

always abandon its own claims merely because the main

plaintiffs have dropped out. Thus, in the elass action

lla

context, the fact that a case becomes moot as to the

named plaintiffs does not necessarily deaden the contro-

versy as to the remaining class members. Sosna v. Iowa,

419 U.S. 398, 399-401, 95 S.Ct. 553, 557-558, 42 L.Ed.2d

| 582 (1975); see also United States v. McDonald, 432

: U.S. 385, 394-96, 97 S.Ct. 2464, 2469-71, 538 L.Ed.2d 423

(1977) (holding that putative class member’s post-judg-

ment motion to intervene was timely filed). Even absent

class certification, the Supreme Court has held that where

the original plaintiffs’ claims have become moot, the

United States can sustain a lawsuit where it has inter-

vened pursuant to a statute entitling it to “the same re-

lief as if it had instituted the action.” Pasadena City

Board of Education v. Spangler, 427 U.S. 424, 430-31, 96

S.Ct. 2697, 2702, 49 L.Ed.2d 599 (1976). Consistent with

this approach, district courts have the “discretion to treat

the pleading of an intervenor as a separate action in or-

der that it might adjudicate the claims raised by the in-

tervenor.” Fuller v. Volk, 351 F.2d 328, 328 (3d Cir.

1965). Indeed, the Third Cireuit has held under Fed. R.

App. P. 15(d) that an intervenor seeking review of an

administrative rulemaking can continue to litigate after

the original party has dismissed its petition—even though

the intervenor has waited beyond the statutory period

within which it could have filed its own petition for re-

view. United States Steel Corp. v. EPA, 614 F.2d 848,

845-46 (3d Cir. 1979), cited with approval in Oil, Chem-

ical, & Atomic Workers, 718 F.2d 1841 at 1851, 1852

(5th Cir. 1983). Similarly, we have held that private

intervenors can maintain suit under title VII against

their employer even though the original plaintiffs have

settled their claims. Wheeler v. American Home Products

Corp. (Boyle-Midway Division), 563 F.2d 1233, 1237-40

(5th Cir. 1977). The law of this circuit is that there

are circumstances in which an intervenor can continue to

litigate after dismissal of the party that originated the

action. Id.; Magdoff v. Saphin Television & Appliance,

Inc., 228 F.2d 214, 215 (5th Cir. 1955) (per curiam) ;

12a

Hunt Tool Co., 212 F.2d at 688; accord Walker v. Jim

Dandy Co., 747 F.2d 1360, 1366-67 (11th Cir. 1984) ;

McKay v. Heyison, 614 F.2d 899, 906-08 (3d Cir. 1980) ;

Alabama Electric Cooperative, Inc. v. United States, 574

F. Supp. 27, 31 n.8 (M.D. Ala. 1983) ; EEOC v. Interna-

tional Brotherhood of Electrical Workers, 506 F. Supp.

480, 483 (D. Mass. 1981); Kruse v. Zenith Radio Corp.,

82 F.R.D. 66, 69 (W.D. Pa. 1979); see Oil, Chemical, &

Atomic Workers, 718 F.2d at 1351.

Our task is to determine whether these circumstances

exist here.

B. Illusory Pitfalls and Commission Intervention

The EEOC’s authority to intervene in a private law-

suit is set forth in sections 705(g) (6) and 706(f) (1) of

title VII, 42 U.S.C. $§ 2000e-4(g) (6), -5(f) (1). The

former provision is no more than a boiler-plate clause of

empowerment; it grants the Commission the ability to

intervene.* The method of intervention appears in sec-

tion 706(f) (1), which states, “Upon timely application,

the court may, in its discretion permit the Commission

... to intervene in [a] civil action upon certification that

the case is of general public importarce.” Jd. § 2000e-

5(f) (1). There are thus three prerequisites to EEOC

intervention: certification that the case is of general pub-

lic importance, timely application, and permission of the

district court. In this case, all three conditions were met,

and the Commission was therefore properly before the

court.

Appellee nonetheless argues that the Commission’s in-

tervention authority ends when the main plaintiffs decide

to settle their claims. Focusing on the language in sec-

tion 706(f) (1) that prescribes when the EEOC is al-

8 See note 4 supra.

13a

lowed to institute suit in its own name,’ Amoco observes

that the Commission, by not having investigated, found

reasonable cause to sue, or attempted to conciliate, lacks

the statutory authority to maintain a direct action.*® See

Truvillion v. King’s Daughters Hospital, 614 F.2d 520,

524-25 (5th Cir. 1980); 42 U.S.C. § 2000e-5(b). Hence,

the argument runs, if we do not read title VII to man-

date the dismissal of the Commission in this case, we

will have effectively allowed the Commission to maintain

a direct action by satisfying only the different and less

demanding prerequisites to intervention. This result, we

are told, Congress could not have intended.

Appellee’s reasoning has all the appeal of a spacious

syllogism. Congress wants limited intervention, this at-

tempt breaks the limit, therefore Congress doesn’t want

this type of intervention. Title VII, however, does not

® See note 4 supra.

10 While it appears that the Commission may have satisfied the

statutory prerequisites to filing its own action by investigating,

finding reasonable cause, and possibly attempting to conciliate the

complaint of at least one named plaintiff, see Record vol. 3, at 703-

04; id. vol. 9, at 2231-34, the issue is not beyond dispute, see id.

vol. 3 at 702, and the district court never considered the question.

Premising continued jurisdiction on the EEOC’s satisfaction of its

direct action prerequisites would raise a host of concerns that have

not been fully addressed either by the court below or by the parties

on appeal. For example, it is unclear whether the EEOC attempted

to conciliate with regard to all claims of employment discrimina-

tion raised by the instant litigation, and if not, whether such

attempts are required by title VII. See, e.g., Wright v. Olin Corp.,

697 F.2d 1172, 1176-79 (4th Cir. 1982). It is also difficult to glean

from the record whether the Commission’s attempts were sufficiently

industrious—an issue arguably placed in dispute by Amoco’s con-

tention that the EEOC did not seek conciliation beyond an initial

overture. Cf. EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001,

1002 (5th Cir. 1980) (per curiam) (holding that EEOC efforts

to conciliate were not conducted with sufficient good faith). In

light of these concerns, we do not decide whether the Commission’s

ability to have brought suit itself would be an alternative ground

upon which to remand the present case.

l4a

evince the major premise: ueither the language of the

statute nor its legislative history speaks directly to the

scope of the EEOC’s authority as an intervenor to main-

tain suit once the original plaintiffs have settled. Ad-

mittedly, section 706(f) (1) does create a temporal peck-

ing order for agency action in that the EEOC’s first op-

tions upon receiving a complaint are either to seek con-

ciliation and possibly bring a direct action, or to issue a

right-to-sue notice to the claimant. But the fact that the

Commission’s ability to intervene does not arise until

after these other steps have been taken does not indicate

congressional disfavor of Commission intervention to en-

force title VII. Indeed, it could be argued that the requi-

site certificate of public importance—certainly less de-

manding than a direct action’s formal attempt to concili-

ate—suggests greater sympathy for Commission inter-

vention than for direct suit. It seems that if we are to

ascertain the bounds of EEOC intervention, we must look

to the purpose and logic of the statute as a whole.

When it amended the Civil Rights Act of 1964 in 1972,

Congress’s chief goal with regard to the EEOC was to

increase the Commission’s powers of enforcement.'! Prior

to that time, the Commission had been vested only with

the authority to seek conciliation—a situation acknowl-

edged to be a serious deficiency in the effort to eliminate

employment discrimination.'* Congress therefore granted

the EEOC the conditional right to invoke the compensa-

tory and injunctive powers of the federal courts di-

11$.Rep. No. 415, 92d Cong., Ist Sess. 1, 3-5 (1971) [herein-

after Senate Report], reprinted in Legislative History of the Equal

Employment Opportunity Act of 1972, at 410, 413-17 (1972) [here-

inafter Legislative History|; H.R.Rep. No. 238, 92d Cong., Ist

Sess., 3-5 (1971) [hereinafter House Report], reprinted in 1972

U.S.Code Cong. & Ad.News 2137, 2139-41.

12 Senate Report, supra note 11, at 17, reprinted in Legislative

History, supra, at 426; House Report, supra note 11, at 8, reprinted

in 1972 U.S.Code Cong. & Ad.News at 2143-44.

15a

rectly."* If the Commission has notified the implicated

employer, investigated the claim, found reasonable cause

to sue, and unsuccessfully attempted to conciliate, the

agency can bring suit in its own name. Alternatively, if

the Commission views a complaint to be unworthy of a

reasonable cause determination or chooses not to file suit

directly, it can issue a right-to-sue letter to the claimant

without sacrificing the administrative role. Upon con-

cluding that a private title VII suit is important, the

Commission need only say so to intervene. 42 U.S.C.

§ 2000e-5 (f) (1).

Conciliation clearly remains the preferred method of

obtaining compliance with the Act; litigation is available

only as a last resort.’* Both the direct-action and inter-

vention scenarios contain the possibility of conciliation

without resort to judicial compulsion. The main proce-

dural prerequisite to a suit filed by the EEOC is a good-

faith attempt by the Commission to conciliate. Similarly,

if the EEOC chooses not to pursue an action itself and

instead intervenes, section 706(f) (1) provides that a dis-

trict court may, in its discretion, stay a private action

for up to sixty days pending the outcome of Commission

efforts to conciliate.”*

13 Tn allowing the EEOC to resort to the courts, Congress stopped

short of conferring cease-and-desist authority in the Commission

itself. See Legislative History, supra note 11, at 1521-57, 1767-68.

14 Conference Report, S.Rep. No. 681, 92d Cong., 2d Sess. 17-18

[hereinafter Senate Conference Report], reprinted in 1972 US.

Code Cong. & Ad.News, 2179, 2182 and Legislative History, supra

note 11, at 1815-16; Conference Report, H.R.Rep. No. 899, 92d

Cong., 2d Sess. 17-18 [hereinafter House Conference Report], re-

printed in 1972 U.S.Code Cong. & Ad.News 2179, 2182 and Legis-

lative History, supra note 11, at 1837-38; Legislative History, supra

note 11, at 1770, 1772 (second-by-section analysis submitted by Sen.

Williams, Feb. 22, 1972); see Alexander v. Gardner-Denver Co.,

415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974).

15 Section 706(f)(1)’s temporary stay provision reflects Con-

gress’s desire to accommodate, on the one hand, the private plain-

16a

This scheme sets the backdrop against which to con-

sider whether an intervening Commission bereft of origi-

nal plaintiffs lacks the authorization to continue suit

absent compliance with the statute’s direct action pre-

requisites. These prerequisites were concocted not as

elixirs of EEOC power, but as procedural devices de-

signed to shield employers, employees, courts, and the

Commission from litigating employment grievances when

unnecessary to effectuate the purposes of title VII. John-

son v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 847-48

(8th Cir.), cert. denied, 484 U.S. 920, 98 S.Ct. 394, 54

L.Ed.2d 276 (1977). The steps of the statute are steps

of economy. It would defy reason to require compliance

with procedural prerequisites whose raison d’etre—-

namely, the desire to avoid premature litigation—is ab-

sent. Where the parties are already in court pursuant

the statutory scheme, the day for complying with the

calisthentics of an alternative route has come and gone.

The present case is illustrative. On appellee’s view,

the Commission, having devoted the resources of five and

one-half years to adjudicating its own claims of employ-

ment discrimination against Amoco, would be returned

to square one. Viewed from the employer’s perspective,

it can hardly be said that Amoco is without notice of the

charges upon which the Commission’s claims are based,

nor would a formalistic appeal to reinvestigation or to a

redetermination of reasonable cause be sensible at this

stage. In addition, assuming for the sake of argument

that the Commission has not engaged in a good faith

effort to conciliate,'"® we have already noted that section

tiff’s interest in seeking prompt redress over the EEOC issues a

right-to-sue notice with, on the other hand, the preferred method

of agency conciliation. See House Report, supra note 11, at 12-13,

reprinted in 1972 U.S.Code Cong. & Ad.News at 2148.

16 We disagree with appellee’s assertion that our result today will

“permit the Commission to circumvent at its whim” the require-

ments of § 706(f) (1). See Brief for Appellee at 24. The EEOC’s

17a

706(f) (1) requires this effort primarily to avoid litiga-

tion—a goal that was no longer attainable when the

defendant settled six and one-half years into the original

plaintiffs’ suit. To the extent conciliation remains a

viable possibility, the statute still affords Amoco the right

to request that the district court temporarily stay the

action pending the outcome of the Commission’s good

faith efforts to conciliate. The intent of the statute re-

mains fulfilled.

The situation closely resembles those in Love v. Pull-

man, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972),

and Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). In Love, an

individual sought relief under title VII prior to the Act’s

1972 amendments. Under what was then section 706(b)

(current version at 42 U.S.C. § 2000e-5(c)), a claimant

could not file charges with the EEOC prior to having

exhausted state remedies. Love, however, had filed his

claim with the EEOC prior to resolution by the state

employment commission, the EEOC had referred the

claim back to the state, and the state had waived its

opportunity to take further action. Without any refiling

by Love, the EEOC found probable cause to believe the

charges were true and unsuccessfully attempted to con-

ciliate, whereupon Love brought suit. 404 U.S. at 523-25,

92 S.Ct. at 617-18.

Responding to the argument that the complaint should

be dismissed because the private plaintiff had failed to

comply with the procedural prerequisites of the statute,

the Supreme Court held that

right to intervene in private title VII actions is conditioned on

its first obtaining the permission of the district court. The record

in this case is devoid of any suggestion that the Commission has

attempted to abuse its authority to intervene, and should such a

situation arise, the district court retains the discretion not to allow

intervention where it would “unduly delay or prejudice the adjudi-

cation of the rights of the original parties.” Fed.R.Civ.P. 24(b).

18a

the filing procedure followed here fully complied

with the intent of the Act....

We see no reason why further action by the ag-

grieved party should be required. The procedure

complies with the purpose both of § 706(b), to give

state agencies a prior opportunity to consider dis-

crimination complaints, and of § 706(d) [ (current

version at 42 U.S.C. § 2000e-5(e))], to ensure ex-

pedition in the filing and handling of those com-

plaints. The respondent makes no showing of preju-

dice to its interests. To require a second “filing” by

the aggrieved party after termination of state pro-

ceedings would serve no purpose other than the

création of an additional procedural technicality.

Id. at 525-26, 92 S.Ct. at 618-19 (footnotes omitted) ;

see also Williams ». Washington Metropolitan Area

Transit Authority, 721 F.2d 1412, 1418 & n. 12 (D.C.

Cir. 1983) (per ecvriam); Deyo v. City of Deer Park,

664 F.2d 518, 522-23 (5th Cir. 1981); Gamble v. Bir-

mingham Southern Railroad Co., 514 F.2d 678, 688-89

& n. 6 (5th Cir. 1975) (decrying any “needless proce-

dural barrier” to application of title VII); Sanchez v.

Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir.

1970) (same).’? More recently, in Zipes, the Court held

under sections 706(e) and (f) that “filing a timely

charge of discrimination with the EEOC is not a juris-

dictional prerequisite to suit in federal court, but a re-

quirement that, like a statute of limitations, is subject

to waiver, estoppel, and equitable tolling.” 455 U.S. at

393, 102 S.Ct. at 1132 (footnote omitted); see also

17In amending the Act later that year, Congress expressly ap-

proved of the Court’s interpretation. Senate Conference Report,

supra note 14, at 17, reprinted in 1972 U.S.Code Cong. & Ad.News

2179, 2181 and Legisiative History, supra note 11, at 1815; House

Conference Report, supra note 14, at 17, reprinted in 1972 U.S.Code

Cong. & Ad.News 2179, 2181 and Legislative History, supra note 11,

at 1837.

19a

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103

S.Ct. 2392, 2395 n. 3, 76 L.Ed.2d 628 (1983). In so

holding, the Court “honor[ed] the remedial purpese of

the legislation as a whole without negating the particular

purpose of the filing requirement, to give prompt notice

to the employer.” Jd. 455 U.S. at 398, 102 S.Ct. at 1135.

The import of these cases is clear: characterizing a

statutory provision to be procedural rather than jurisdic-

tional denotes an issue not of article III power, but of

legislative and judicial method. See McKee v. McDonnell

Douglas Technical Services Co., 700 F.2d 260, 263-65

(5th Cir. 1983). Where a provision proves to be merely

a condition precedent to bringing suit instead of a source

of judicial power, the courts can, given the appropriate

circumstances, equitably modify their application of the

statutory terms. Determining whether the circumstances

are “appropriate” in turn depends on the purpose the

provision is intended to serve.

Consistent with the Supreme Court’s discussion in

Love and Zipes, we have treated section 706(f) (1)’s pre-

requisites as “procedural” rather than “jurisdictional” in

nature. In Truvillion v. King’s Daughters Hospital, 614

F.2d 520 (5th Cir. 1980), we considered the res judicata

effect of a prior judgment on a plaintiff’s title VII claim.

In considering whether the prior judgment had been on

the merits for purposes of barring the second suit, we

stated that “[t]he requirements of E.E.0.C.’s notice to

the respondent and a good faith investigation by the

E.E.O.C. in a loose sense might be treated as jurisdic-

tional. They are, however, nothing more than procedural

prerequisites to the court’s determination of the substan-

tive issues.” Jd. at 524; see also Nilsen v. City of Moss

Point, 674 F.2d 379, 383-84 (5th Cir. 1982).'* Similarly,

18 In Truvillion, we held in the alternative that even if the pre-

requisites were characterized as “jurisdictional,” they would not

fall within Rule 41 (b)’s definition of “adjudication upon the merits”

and would therefore lack res judicata effect. 614 F.2d at 524. We

20a

in Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th

Cir. 1982) (per curiam), cert. denied, 459 U.S. 1105,

103 S.Ct. 729, 74 L.Ed.2d 954 (1983), we applied Zipes

to hold under section 706(f) (1), that “the receipt of a

right-to-sue letter is not a jurisdictional prerequisite, but

rather is a condition precedent subject to equitable modi-

fication.” Jd. at 1216; accord Gooding v. Warner-

Lambert Co., 744 F.2d 354, 358 (3d Cir. 1984); Perdue

v. Roy Stone Transfer Corp., 690 F.2d 1091, 1093-95

(4th Cir. 1982); Jackson v. Seaboard Coast Line Rail-

road Co., 678 F.2d 992, 1000-10 (11th Cir. 1982).”

Thus, while the failure to comply with a condition prece-

dent usually means that a plaintiff cannot bring suit,

see, e.g., id. at 1010; Trwvillion, 614 F.2d at 525, 526;

Cutliff v. Greyhound Lines, Inc., 558 F.2d 803, 806-07

based this view on the Supreme Court's decision in Costello v.

United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961),

which held that “jurisdictional” dismissals under Rule 41(b) in-

clude “those dismissals which are based on a plaintiff's failure to

comply with a precondition requisite the Court’s going forward

to determine the merits of his substantive claim.” Jd. at 285, 81

S.Ct. at 545.

Because of the obvious effects that accompany a dismissal with

prejudice, the line between on-the-merits adjudications and those

based on jurisdictional defects must lean towards a broader defini-

tion of “jurisdictional” under Rule 41(b). See id. It is therefore

not inconsistent to characterize as “jurisdictional” for res judicata

purposes the same statutory prerequisites that we today charac-

terize as “procedural.” See Zipes, 455 U.S. at 398, 102 S.Ct. at

1182; Love, 404 U.S. at 525-26, 92 S.Ct. at 618-19.

19 See Crawford v. United States Steel Corp., 660 F.2d 663, 666

(5th Cir. 1981); Clanton v. Orleans Parish School Board, 649 F.2d

1084, 1094 n. 13 (5th Cir. 1981); Sessions v. Rusk State Hospital,

648 F.2d 1066, 1069 (5th Cir. 1981); cf. Stearns v. Consolidated

Management, Inc., 747 F.2d 1105, 1110-11 (7th Cir. 1984) (treating

filing requirements under Age Discrimination in Employment Act,

29 U.S.C. §§ 621-634, as conditions precedent under Zipes); Vance

v. Whirlpool Corp., 716 F.2d 1010, 1012 (4th Cir. 1983) (same),

cert. denied, U.S. ——, 104 S.Ct. 1600, 2678, 80 L.Ed.2d 130

(1984); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584,

595 (5th Cir. 1981) (en banc) (same).

2la

(5th Cir. 1977), it does not mean that the district court

lacks subject matter jurisdiction if the case is otherwise

before it.

Viewed as a matter of procedural compliance, our con-

cern in the present case is not whether the district court

was empowered to hear the EEOC’s claims, but rather is

why Congress imposed these prerequisites to Commission

enforcement through the judiciary. It became proce-

durally proper for the court below to entertain the

EEQC’s claims as of the moment the Commission certi-

fied the case as being of general public importance and

timely filed its motion to intervene. These acts conferred

on the district court the ability to grant intervenor

status to the Commission under the statute directly, in

consequence of the Commission’s conditional statutory

right to intervene under Rule 24(b) (1), and in light of

Rule 24(b)’s provision for permissive intervention by

the agency charged with administering a federal statute

relied on by a litigant. However, unlike where a district

court can, for example, be deprived of its diversity juris-

diction where the parties do not remain completely di-

verse throughout a litigation, the Commission’s capacity

to be in federal court flows from the agency’s authority

to enforce the Act, General Telephone Co. v. EEOC, 446

U.S. 318, 324, 100 S.Ct. 1698, 1703, 64 L.Ed.2d 319

(1980), and from section 706(f) (3)’s creation of federal

jurisdiction over all “actions brought under” title VII,

42 U.S.C. § 2000e-5(f) (3). See Pinkard, 678 F.2d at

1216-17 (distinguishing “the relevant jurisdictional pro-

vision,” section 706(f)(3), from section 706(f)(1)’s

procedural prerequisites) ; Seaboard Coast Line, 678 F.2d

at 1001-02 (same).” Where a solid basis for jurisdic-

2 The present case thus differs from Ruotolo v. Ruotolo, 572

F.2d 336 (ist Cir. 1978), where the First Circuit held that the

United States could not, as an intervenor, appeal a bankruptcy

creditor’s conflict-of-interest claims against the debtor’s counsel

once the claims had been withdrawn and the situation mooted. In

22a

tion exists, the Commission should not be relegated to

carrying out a view of the statute that is perhaps plausi-

ble in light of Congress’s choice of words, but that is

certainly inconsistent with any reasonable interpretation

of the scheme as a whole and with the way the Commis-

sion operates. Section 706(f)(1) dictates only the

method of getting there, and as we have discussed, noth-

Ruotole, the government had intervened pursuant to 28 U.S.C.

§ 2403, which accords the United States a right to intervene when

the constitutionality of a federal statute affecting the public interest

is at issue, as well as under Rule 24(b)’s provision for permissive

intervention wher a party relies on a statute administered by a

federal agency. The First Circuit dismissed the appeal, noting that

the desirability of an advisory opinion is not a substitute for

justiciability. To be sure, a chief purpose behind intervention

statutes such as § 2403 and Rule 24(b) is to enable the United

States or one of its agencies to intervene to prevent constitu-

tional or legal issues of potential significance from being de-

cided with only limited input from private litigants, who may

care little or nothing about the principles at stake. There is,

however, a difference between permitting the United States to

play an active role during the pendency of a private litigation,

and permitting it to go forward with the litigation in its own

right after the private parties have composed their differences.

To do the latter, we think the Government must possess some

independent basis as a party apart from its status as intervenor

under the two statutes in question. The United States is here

able to point to no independent source of authority permitting

it to sue on behalf of itself or on behalf of others, in order to

enforce the provisions of Section 39b of the Bankruptcy Act([,

11 U.S.C. § 67(b) J.

572 F.2d at 338-39 (emphasis added) (citations and footnote

omitted). By contrast, it is clear in the present case that the EEOC

possessed in title VII the independent source of authority that the

government lacked in Ruotolo. See General Telephone, 446 U.S. at

324, 100 S.Ct. at 1703; ef. SEC v. United States Realty & Improve-

ment Co., 310 U.S. 434, 458-60, 60 S.Ct. 1044, 1054-55, 84 L.Ed. 1293

(1940) (holding that the Securities and Exchange Commission

“has a sufficient interest in the maintenance of its statutory author-

ity and the performance of its public duties to entitle it through

[permissive] intervention to prevent reorganization [in bank-

ruptcy]}”).

23a

ing in the statute suggests that a valid intervention by

the Commission, once present, need be dispelled; indeed,

the scheme as a whole compels the reverse.” Language

ean be either a tool or a chain, and we like to think

Congress opted for the former.

We are thus faced with a Commission, properly before

the district court ab initio and in perpetuum, charged

with effectuating the salutary purposes of title VII. Con-

fronted with a similar situation in Wheeler v. American

Home Products Corp. (Boyle-Midway Division), 563

F.2d 1233 (5th Cir. 1977), we held that eight private

intervenors could continue to press their title VII claims

after the original plaintiffs had settled with the defend-

21 We recognize that our holding is in tension with that of the

Sixth Circuit in Horn v. Eltra Corp., 686 F.2d 439 (6th Cir. 1982).

In Horn, the district court had revoked the EEOC’s status as a

permissive intervenor. While the Commission's appeal of the

revocation order was pending, the origina! title VII plaintiff

settled with the defendant employer. The Sixth Circuit held that

the EEOC lacked both an independent basis of jurisdiction and class

certification, and that the settlement and dismissal of Horn’s claim

therefore rendered the Commission's appeal moot

In what we hope is a perspicacious effort to blunt the horns of a

dilemma, we do not read Horn to be on all fours with the present

case. The Sixth Circuit did not affirm the district court's dismissal,

which, judging from the panel opinion, could have been based either

on an exercise of the court’s discretion under Rule 24(b) or on a

ruling as a matter of law under title VII. Rather, the court of

appeals dismissed the appeal as moot, thereby indicating that the

court viewed the Commission as attempting to intervene in a non-

existent snit rather than as trying to maintain its claims as a

valid party to the action. Indeed, its holding was based almost

entirely on cases involving attempts to intervene where some or

all of the original plaintiffs’ claims had already been dismiss,

see id. at 440-41, and at least one district court of that circuit has

so interpreted the holding in Horn, see EEOC v. Dayton Tire &

Rubber Co., 578 F.Supp. 782, 786 n. 5 (S.D.Ohio 1983). Thus,

while we would agree with the general proposition that a party

cannot intervene in an action that no longer exists, we need not

address how we might approach the situation presented in Horn

in light of the case before us.

24a

ants. Id. at 1237-38; accord Walker v. Jim Dandy Co.,

747 F.2d 1860, 1866 (11th Cir. 1984). It would be

anomalous to hold now that the EEOC has less power to

pursue its claims as an intervenor than did the eight

individuals in Wheeler.” As the chief sponsor of the

1972 amendments to the Act noted, “The procedures set

forth in [section 706(f)] are intended to place the pri-

mary responsibility for enforcing violations of Title VII

in the Commission and to shift them from the private

plaintiff. .. .”** We hold in light of this goal that the

statute enables the EEOC to maintain suit at the sound

discretion of the district court. Limited, then, by the

scope of its complaint in intervention, the Commission

should not have been dismissed as a matter of law upon

the original plaintiffs’ farewell.

22 This view of the permissible longevity of EEOC intervention

is also consistent with the Supreme Court’s decision in Pasadena

City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49

L.Ed.2d 599 (1976). In Spangler, the United States had intervened

as of right pursuant to title IX, § 902, of the Civil Rights Act of

1964, 42 U.S.C. § 2000h-2, which provides that “the United States

shall be entitled to the same relief as if it had instituted the action.”

Acknowledging that “the meaning of this provision is somewhat

ambiguous,” 427 U.S. at 430, 96 S.Ct. at 2702, the Court held that

“the statute is properly read to authorize the United States to con-

tinue as a party plaintiff in this action, despite the disappearance of

the original plaintiffs and the absence of any class certification,

so long as such participation serves the statutory purpose, and

that the presence of the United States as a party ensures that this

case is not moot.” Jd. at 431, 96 S.Ct. at 2702. While the absence

of similar language in title VII obviously favors appellee’s cause

under the maxim expressio unius est exclusio alterius, see Horn v.

Eltra Corp., 686 F.2d 439, 441-42 (6th Cir. 1982), our analysis of

the EEOC’s enforcement authority convinces us that this tension is

not dispositive—especially given the dearth of legislative history

surrounding § 902 and the fact that, as in Spangler, the EEOC’s

“participation serves the statutory purpose” and “ensures that this

case is not moot.”

23 Legislative History, supra note 11, at 1772 (section-by-section

analysis submitted by Sen. Williams, Feb. 22, 1972).

NN ly SN iB nse me

25a

C. EEOC Enforcement and the Nonapplicability of

Rule 23

As an alternative reason for dismissing the EEOC,

the district court offered the Commission’s noncompliance

with the class action requirements of Rule 23. Since

neither the original plaintiffs nor the Commission had

been certified as class representatives,** the district court

held that the Commission, proceeding solely in its own

name as an intervenor, lacked a case or controversy

with the defendant employer. This result is inconsistent

not only with our holding in Part B above but also with

that of the Supreme Court in General Telephone Co. v.

EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319

(1980).

In deciding above that title VII imbues the Commis-

sion with the authority to continue litigating after the

main plaintiffs have settled out of a lawsuit, we reasoned

largely from the premise that the EEOC exists to repre-

sent the public interest in equal employment oppor-

tunity. The Commission’s method of representation

comprises both conciliation and adjudication. Where the

latter becomes necessary, whether by direct suit or by

intervention, the Commission acts not for itself but for

the people who filed complaints with the agency, for

24 Although the Commission initially filed an amended complaint

alleging that it satisfied the requirements of Rule 23, the Commis-

sion subsequently withdrew these allegations when the Supreme

Court held in General Telephone Co. v. EEOC, 446 U.S. 318, 100

S.Ct. 1698, 64 L.Ed.2d 319 (1980), that the EEOC can seek class-

wide relief absent formal compliance with Rule 23. Jd. at 333-34,

100 S.Ct. at 1707-08. The Commission did, however, continue to seek

relief on behalf of the class of individuals aggrieved by the dis-

criminatory employment practices alleged in the original plaintiffs’

complaint.

25 See e.g., Georgia Power Co. v. EEOC, 412 F.2d 462, 468 (5th

Cir. 1969) (“Discrimination on the basis of race or sex is class

discrimination.”), quoted in Burns v. Thiokol Chemical Corp., 483

F.2d 300, 306 (5th Cir. 1973).

26a

similarly situated individuals, and in the general public

interest. The EEOC’s ability to maintain suit “in its

own name” has no meaning apart from whatever relief

the Commission obtains for employees who have been

treated as less than equal.

And so the Supreme Court has held. In General Tele-

phone, the Court read title VII to dispense with Rule

23’s class action requirements where the EEOC insti-

tutes suit pursuant to section 706. The Court observed,

“The EEOC is not merely a proxy for the victims of

discrimination|,] and .. . the EEOC’s enforcement suits

should not be considered representative actions subject to

Rule 23. . . . When the EEOC acts, albeit at the behest

of and for the benefit of specific individuals, it acts also

to vindicate the public interest in preventing employment

discrimination.” Jd. at 326, 100 S.Ct. at 1704 (citations

omitted). In light of this rationale, we see no reason not

to apply the holding of General Telephone to cases where

the Commission seeks to enforce the Act by intervening

rather than by bringing a direct action. Accord United

Telecommunications, Inc. v. Saffels, 741 F.2d 312, 314

(10th Cir. 1984), cert. denied, U.S. , 105 S.Ct.

1776, 84 L.Ed.2d 835 (1985); see Johnson v. Nekoosa-

Edwards Paper Co., 558 F.2d 841, 844-45 (8th Cir.)

(noting that EEOC can intervene upon a “broad basis,

the class will in effect be represented, and the scope of

relief available will be as broad as if the class had been

certified’), cert. denied, 434 U.S. 920, 98 S.Ct. 394, 54

L.Ed.2d 276 (1977); Fields v. Beech Aircraft Corp., 95

F.R.D. 1, 6 (D.Kan. 1981); Stuart v. Hewlett-Packard

Co., 66 F.R.D. 73, 76-78 (E.D. Mich. 1975).*° The broad

26 Although appellee relies for precedential support on Horn v.

Eltra Corp., 686 F.2d 439, 441 n. 1 (6th Cir. 1982) (stating that

“General Telephone is limited to EEOC actions brought in its own

name and not... to EEOC interventions in a private action”),

the Sixth Circuit’s statement was pure dictum, placed meekly in a

note at the foot of a page.

Et ee Cs

27a

grant of agency authority on which the Court relied in

General Telephone, see 446 U.S. at 324-25, 100 S.Ct. at

1703-04, applies by its terms to all EEOC enforcement

efforts under section 706, see 42 U.S.C. § 2000e-5(a).

Having validly intervened in a private title VII suit, the

Commiss:.:: is no more subject to Rule 23 than if it had

filed the action as an original party plaintiff.°* “(T]he

Rule has no application to a § 706 svit.” 446 U.S. at

324, 100 S.Ct. at 1703.

The final issue in this case raises the validity of a pro-

tective order covering age and sex data. The district

court granted the Commission’s motion to compel discov-

ery of the data—which the Commission asserted was nec-

essary to perform a multiple regression analysis of

Amoco’s employment practices—but at the same time re-

stricted the Commission’s use of the material to the pres-

ent litigation under Rule 26(c).** The EEOC contends

27 The Commission’s ability to maintain suit as a de facto class

representative despite the absence of the original plaintiffs does not

amount to an “expansion” of the suit beyond those claims asserted

by either the Commission or the original plaintiffs themselves. The

district court permitted the EEOC to intervene on the condition

that the agency would not press claims outside the scope of the

main plaintiffs’ complaint. See note 6 supra; cf. Benson v. Little

Rock Hilton Inn, 87 F R.D. 447, 449 (E.D.Ark. 1980). This condi-

tion did not, however, limit the scope of relief that is available

whenever the EEOC seeks judicial enforcement under title VII.

See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct.

2362, 2378, 45 L.Ed.2d 280 (1975); 42 U.S.C. 2000e-5(a). The sub-

stantive basis for the Commission’s intervention may have been

circumscribed, but its remedial scope was not. See Sobel v. Yeshiva

University, 438 F.Supp. 625, 628 (S.D.N.Y. 1977); Stuart v.

Hewlett-Packard Co., 66 F.R.D. 73, 77-78 (E.D.Mich. 1975).

28 The trial judge ruled orally that Amoco

provide only the raw data and that they receive from the EEOC

and the plaintiffs an absolute[,] unqualified guarantee that that

information will not be dissiminated [sic] in any way, shape,

or form to any other agency whatsoever without a written

28a

that adhering to the protective order would conflict with

the agency’s duty to enforce the Act should it wish to

bring suit based on the age and sex data, and that the

court’s use-restriction further forces the Commission not

to comply with an interagency agreement—entered into

pursuant to section 715 of the Act, 42 U.S.C. § 2000e-14—

to share information concerning employment discrimina-

tion with the Office of Federal Contract Compliance Pro-

grams. Consequently, the Commission argues that the

district court abused its discretion in confining the data’s

use to this case. The Commission is mistaken.

A party may generally do what it wants with material

obtained through the discovery process, as long as it wants

to do something legal. Jn re Halkin, 598 F.2d 176, 188

(D.C, Cir. 1979) ; Essex Wire Corp. v. Eastern Electric

Sales Co., 48 F.R.D. 308, 312 (E.D. Pa. 1969) ; Leonia

Amusement Corp. v. Loew’s, Inc., 18 F.R.D. 503, 508

(S.D.N.Y. 1955). But cf. Seattle Times Co. v. Rhinehart,

— US. , 104 §.Ct. 2199, 2208-09, 81 L.Ed.2d 17

(1984) (holding that there is no absolute first amend-

ment right to disseminate information obtained through

pretrial discovery); Greene v. Thalhimer’s Department

Store, 93 F.R.D. 657, 661 (E.D. Va. 1982) (limiting use

of discovered material relating to EEOC conciliation ef-

forts). The federal rules do not themselves limit the use

of discovered documents or information. Rule 26(c) does,

however, afford district courts the ability to impose limits.

If the party from whom discovery is sought shows “good

cause,” the presumption of free use dissipates, and the

order of this Court[,] and only then upon proper motion and

order of this Court[,] and that the information be in camera,

that it be sealed[,] and that it be unavailable to any other

agency or person or private source or any investigative groups

whatsoever except the EEOC for the purposes limited to the

EEOC’s efforts to argue the applicability of that data in the

case.

Record vol. 11, at 51-52 (hearing transcript of Mar. 16, 1983);

see also id. vol. 8, at 2095 (written order).

ac aPC OSs ANDES nal Bracabeats

29a

district court can exercise its sound discretion to restrict

what materials are obtainable, how they can be obtained,

and what use can be made of them once obtained. General

Dynamics Corp. v. Selb Manufacturing Co., 481 F.2d

1204, 1212 (8th Cir. 1973), cert. denied, 414 U.S. 1162,

94 §.Ct. 926, 39 L.Ed.2d 116 (1974); see 8 C. Wright &

A. Miller, Federal Practice and Procedure §§ 2035, 2035,

at 264-65, 267-69 (1970); 4 J. Moore, J. Lucas & G.

Grotheer, Jr., Moore’s Federal Practice § 26.75 (1984).

Our role, though, is not to play district court.

[T]he standard of review of a decision of a trial

court in a matter relating to discovery is whether the

trial court abused its discretion in its decision. Save

the Bay, Inc. v. United States Army, 639 F.2d 1100

(5th Cir. 1981) ; Hastings v. North East Independent

School District, 615 F.2d 628 (5th Cir. 1980). It is

not the responsibility of this Court to say it would

have chosen a different order, to substitute our judg-

ment; it is rather our responsibility to decide whether

the district court could have entered the order which

it did. Cf. Emerick v. Fenick Industries, Inc., 539

F.2d 1879 (5th Cir. 1976).

Brown v. Arlen Management Corp., 663 F.2d 575, 580

(5th Cir. 1981) (pey curiam) ; see Wyatt v. Kaplan, 686

F.2d 276, 283 (5th Cir. 1982) ; Sanders v. Shell Oil Co.,

678 F.2d 614, 618 (5th Cir. 1982). We must ask whether

the district court abused its discretion in finding good

cause to restrict the EEOC’s use of the age and sex data.

Amoco argues on appeal, as it did below, that the Com-

mission should not be permitted to utilize the discovery

process in lieu of the investigative authority provided for

in title VII. See 42 U.S.C. § 2000e-8. The EEOC argues

in response that it has a statutory duty to ferret out em-

ployment discrimination, and that if the Commission be-

comes aware of discriminatory practices during the course

of litigating an admittedly distinct claim of unequal treat-

30a

ment, it should not be constrained from using this infor-

mation as a basis upon which to initiate further proceed-

ings. Thus, the argument runs, the district court’s pro-

tective order “places the Commission in the position of

violating its statutory mandate to prevent and remedy

employment discrimination whereever [sic] found.” Brief

for Appellant at 30.

Although we do not take issue with the breadth of the

EEOC’s warrant to enforce title VII, we disagree with

the Commission’s conclusion. We have long recognized

that the scope of an EEOC civil action is as broad as

“the scope of the EEOC investigation which can reason-

ably be expected to grow out of the charge of discrimina-

tion.” Sanchez v. Standard Brands, Inc., 431 F.2d 455,

466 (5th Cir. 1970); see also Walls v. Mississippi State

Department of Public Welfare, 730 F.2d 306, 317-18 (5th

Cir. 1983) ; EEOC v. Brookhaven Bank & Trust Co., 614

F.2d 1022, 1025 (5th Cir. 1980); EEOC v. Occidental

Life Insurance Co., 535 F.2d 533, 541-42 (9th Cir. 1976),

affd, 482 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402

(1977); EEOC v. General Electric Co., 582 F.2d 359,

365 (4th Cir. 1976); EEOC v. Kimberly-Clark Corp.,

511 F.2d 1352, 1363 (6th Cir.), cert. denied, 423 U.S.

994, 96 S.Ct. 420, 46 L.Ed.2d 368 (1975); EEOC v.

McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir.

1975) ; EEOC v. Huttig Sash & Door, 511 F.2d 453, 455

(5th Cir. 1975). In title VII, however, Congress erected

a specific system by which the Commission is to investi-

gate charges of employment discrimination. See 42 U.S.C.

§§ 2000e-5, -8.°° There is nothing in the statute that au-

2° The situation resembles that where a private plaintiff seeks

to disclose protected discovery material to the government. Faced

with such a request from a civil antitrust litigation, Judge Weinfeld

once observed :

The contention that the protective order should be lifted

so as to enable plaintiffs to communicate the protected informa-

tion to various governmental authorities in furtherance of the

eae

OBE ee al td

3la

thorizes, much less mandates, the Commission to act on

material discovered while intervening in a private title

VII suit.*%° It would certainly not be unreasonable for

Congress to have intended that the Commission investigate

as provided for in the statute rather than through the

back door of discovery. See, EEOC v. Shell Oil Co.,

U.S. ——, 104 S.Ct. 1621, 1627-37, 80 L.Ed.2d 41 (1984)

(discussing relationship among charge, notice, and judi-

cial enforcement provisions of title VII). Valiey Indus-

trial Services, Inc. v. EEOC, 570 F. Supp. 902, 906

(N.D. Cal. 1983) (discussing Commission’s investigative

powers).

Thus, absent a clear indication that Congress intended

otherwise, we are unable to say that the district court

abused its discretion by issuing a protective order in this

ease. Title VII does not require that the EEOC receive

full use of material discovered as an intervenor, whether

that use is further investigation, litigation, or inter-

agency cooperation. See, e.g., Haykel v. G.F.L. Furniture

Leasing Co., 76 F.R.D. 386, 391 (N.D. Ga. 1976). An

employer’s interest in preserving the confidentiality of its

records for some purposes is sufficient “good cause” where

public interest is without substance. The governmental au-

thorities, whether executive or congressional, if interested in

obtaining the information, have the available means and power,

subpoena and otherwise, to obtain or compel its production. The

vindication of the public interest in the enforcement of the

criminal laws rests with the Department of Justice and not

with the plaintiffs who are asserting private antitrust claims.

Data Digests, Inc. v. Standard & Poor's Corp., 57 F.R.D. 42, 44

(S.D.N.Y. 1972) (footnote omitted). But cf. Johnson Foils, Inc. v.

Huyck Corp., 61 F.R.D. 405, 410-11 (N.D.N.Y. 1973). Similarly,

the EEOC, if sufficiently interested in the birthdates and genders

of Amoco employees, can resort to its investigative authority under

the Act. See 42 U.S.C. § 2000e-8.

3° We do not, of course, suggest the converse—namely, that the

statute prohibits the Commission from acting on discovery ma-

terial. Whether or not to issue a protective order remains for

the discretion of the trial court.

82a

the Commission is not authorized to invade that privacy

for all purposes.**

III

It should go without saying that tit!e VII merits the

most generous of applications.*® This has been and re

mains the tradition of civil rights litigation in the federal

courts—a tradition of solicitude for those least able to

conquer their inequality in the face of self-appointed su-

periors.

Cognizant of the disparities between litigants in employ-

ment discrimination suits, we have often characterized

these suits as contemporary David and Goliath confronta-

tions.** Our mettle is best tested where, as in the present

case, David’s slingshot threatens to become Goliath’s

shield. When vested with the authority to eradicate un-

equal treatment in the workplace, a federal agency is

entitled to exercise that authority to the limit. Congress

created a scheme with a purpose, and neither means nor

ends should ever lose sight of the other.

31 We note in addition that the district court expressly reserved

the power to rescind its order upon a party’s application. This

caveat suggests that the court might, if faced with a properly

substantiated Commission request, release the discovered material

to the EEOC for uses consistent with the agency’s role under the

statute.

* As the Supreme Court stated in Albemarle Paper Co., v. Moody,

422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), “Congress’ pur-

pose in vesting a variety of ‘discretionary’ powers in the courts was

not to limit appellate review of trial courts, or to invite incon-

sistency and caprice, but rather to make possible the ‘fashion[ing]

[of] the most complete relief possible.’” Jd. at 421, 95 S.Ct. at

2373 (quoting Legislative History, supra note 11, at 1773-74

(section-by-section analysis submitted by Sen. Williams, Feb. 22,

1972) ); see also Griggs v. Duke Power Co., 401 U.S. 424, 429-30,

91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971).

33 See Chromcraft Corp. v. EEOC, 465 F.2d 745, 748 (5th Cir.

1972) ; Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th

Cir. 1970) ; Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,

1005 (5th Cir. 1969) ; Jenkins v. United Gas Corp., 400 F.2d 28, 33

(5th Cir. 1968).

Act ath bi

1 oes ent

NOAM a Oe, AID crt! Cot

33a

As we noted at the outset, this case raises a number

of bedeviling complexities—complexities which have been

well-explored by both employer and Commission on ap-

peal. In essence, though, the employer’s argument favors

statutory form over substance, and in so doing loses sight

of both congressional method and goal. Since title VII

contemplates EEOC intervention in appropriate cases, we

hold that, having properly intervened, the EEOC can

maintain suit within the scope of the original plaintiffs’

claims even after those plaintiffs have settled. Moreover,

we hold that Rule 23’s class action prerequisites are as

inapplicable when the EEOC intervenes as when it brings

a direct suit. However, given that the statute is not a

carte blanche for agency investigation, we also hold that

the district court did not abuse its discretion in restrict-

ing the Commission’s use of discovered age and sex data

to this litigation.

On balance, this federal agency’s resort to the courts

has been sound.

AFFIRMED IN PART, REVERSED IN PART and

REMANDED.

CLARK, Chief Judge, concurring specially:

I concur in Parts I-II, in the penultimate and ultimate

paragraphs of Part III, and in the result reached by

Judge Goldberg’s opinion. The merits of the defendant’s

actions remain to be adjudicated. I do not see how it can

be classed as a self-appointed superior. Furthermore, I do

not consider the present litigation between a competently

staffed, publicly funded government agency and the de-

fendant to be properly characterized as a David and

Goliath confrontation.

34a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 76-3863 SECTION “M”

JACQUELINE M. HARRIS, HARDY J. OSBORNE, LILLIE JEAN

SMITH, ROBERT WILLIAMS, on behalf of themselves and

all others similarly situated,

Plaintiffs,

and

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Intervenor

Vv.

AMOCO PRODUCTION COMPANY,

Defendant.

[Filed July 21, 1983]

JOINT MOTION TO DISMISS WITH PREJUDICE

AND ORDER

NOW INTO COURT, through undersigned counsel,

come Plaintiffs Jacqueline M. Harris, Hardy J. Osborne,

Lillie Jean Smith anc Robert Williams, and Defendant,

Amoco Production Company, and respectfully move this

Honorable Court to dismiss, with prejudice, all of such

Plaintiffs’ claims and demands on the basis that the

Plaintiffs and Defendant have reached an amicable com-

promise and settlement which calls for, among other

things, the resignation from Defendant’s employment by

35a

Plaintiffs Jacqueline M. Harris and Hardy J. Osborne,

Plaintiffs Robert Williams and Lillie Jean Smith having

heretofore resigned, and the dismissal of this action;

IT IS ORDERED, ADJUDGED AND DECREED

that this action is hereby dismissed, with prejudice, as to

all claims and demands of Plaintiffs Jacqueline M. Har-

ris, Hardy J. Osborne, Lillie Jean Smith and Robert Wil-

liams, each party to bear his or her own respective costs

in this matter.

New Orleans, Louisiana, this 22nd day of July, 1983.

/s/ Peter Beer

United States District Judge

Respectfully submitted:

/s/ Ann Woolhandler

GEORGE STRICKLER

ANN WOOLHANDLER

1419 Richards Building

New Orleans, Louisiana 70112

Counsel for Plaintiffs

Jacqueline M. Harris, Hardy J. Osborne

Lillie Jean Smith, and Robert Williams

/s/ Walter W. Christy

WALTER W. CHRISTY

Kullman, Lang, Inman & Bee

A Professional Corporation

615 Howard Avenue

New Orleans, Louisiana 70160

Telephone: (504) 524-4162

Counsel for Defendant

Amoco Production Company

36a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 76-3863 SECTION M

JACQUELINE HARRIS, et al.,

versus

AMOCO PRODUCTION COMPANY

[Filed Aug. 29, 1983)

MINUTE ENTRY

Plaintiff-intervenor Equal Employment Opportunity

Commission has filed a Motion for Reconsideration of

this court’s granting of a Joint Motion to Dismiss by

plaintiffs Jacqueline M. Harris, et al and defendant

Amoco Production Company. That joint motion was

based upon a settlement between plaintiffs and defend-

ant and was signed on July 22, 1983. Plaintiffs and de-

fendant have also filed a Joint Motion for Protective Or-

der which is opposed by the Commission. All parties

agreed to waive their rights to oral argument and to sub-

mit the matter on briefs for this court’s consideration.

The Commission in its motion for reconsideration ar-

gues that this court should reconsider its order of dis-

missal because it was based on a settlement to which it

was not a party and because it contends that its action

against defendant remains a live controversy. I disagree

and find that there remains no live controversy by the

Commission against defendant. The private plaintiffs

37a

settled their claims with defendant. By minute entry

dated Apri] 28, 1983, I denied the motions of plaintiffs

and intervenor for class certification, and in so doing,

found specifically that the Commission had no authority

to seek relief for the proposed class, since the Rule 23(a)

requisites for certification were not met. Horn v. Eltra

Corp., 686 F.2d 439, 441 n.1 (6th Cir. 1982). The Com-

mission’s Motion for Reconsideration is therefore denied.

Plaintiffs and defendant have jointly moved for a pro-

tective order applicable to plaintiffs, defendant and plain-

tiff-intervenor, prohibiting any publication to any per-

son or entity of any of the terms of any seitlement agree-

ment entered into in connection with this matter. Mov-

ants argue that the entry of such an order is essential to

the integrity of the settlement. They also argue that dis-

closure of settlement terms could mistakenly lead persons

not involved in the suit to conclude that admissions of

liability were made; and finally, defendant argues that

publication of settlement terms could prejudice it in that

persons might be encouraged to file “frivolous” laws .s

in hope of obtaining settlement consideration. Movants

cite FRCP 26(c), authorizing this court to fashion pro-

tective orders to protect confidential information in a

discovery context, as authority for the entry of a pro-

tective order herein.

Plaintiff-intervenor objects to the entry of a protective

order, calling it instead a “gag order.” It argues that

such an order would be unconstitutional as a prior re-

straint on the speech of Commission employees. Prior

restraint has traditionally been defined as a predeter-

mined judicial prohibition restraining specified expres-

sion, Rernard v. Gulf Ow Co., 619 F.2d 459, 467 (5th

Cir. 1980), and is justified only if the expression sought

to be restrained “surely will result in direct, immediate,

and irreparable damage.” Jd. at 473. I find that the so-

called prejudice that the defendant will suffer as a re-

sult of disclosure of the settlement herein is no more

| sient

38a

than is generally attendant to such cases, and therefore

is not warranted. Accordingly, the joint motion of plain-

tiffs and defendant for entry of a protective order is de-

nied.

/s/ Peter Beer

United States District Judge

39a

APPENDIX D

STATUTORY PROVISIONS INVOLVED

Fed. R. Civ. P. 24(b) provides as follows:

* * * *

(b) PERMISSIVE INTERVENTION. Upon timely ap-

plication anyone may be permitted to intervene in an

action: (1) when a statute of the United States

confers a conditional right to intervene; or (2)

when an applicant’s claim or defense and the main

action have a question of law or fact in common.

When a party to an action relies for ground of claim

or defense upon any statute or executive order ad-

ministered by a federal or state governmental officer

or agency or upon any regulation, order, require-

ment, or agreement issued or made pursuant to the

statute or executive order, the officer or agency upon

timely application may be permitted to intervene in

the action. In exercising its discretion the court

shall consider whether the intervention will unduly

delay or prejudice the adjudication of the rights of

the original parties.

Section 706 of the Civil Rights Act of 1964, 42 USC

§ 2000e-5 (1980), provides in part as follows:

ia * * *

(b) Charges by persons aggrieved or member of

Commission of unlawful employment prac-

tices by employers, etc.; filing; allegations;

notice to respondent: contents of notice; in-

vestigation by Commission; contents of

charges; prohibition on disclosure of charges;

determination of reasonable cause; conference,

conciliation, and persuasion for elimination

of unlawful practices; prohibition on disclo-

sure of informal endeavors to end unlawful

practices; use of evidence in subsequent pro-

ceedings; penalties for disclosure of informa-

tion; time for determination of reasonable

cause

40a

Whenever a charge is filed by or on behalf of a

person claiming to be aggrieved, or by a member

of the Commission, alleging that an employer, em-

ployment agency, labor organization, or joint labor-

management committee controlling apprenticeship or

other training or retraining, including on-the-job

training programs, has engaged in an unlawful em-

ployment practice, the Commission shall serve a no-

tice of the charge (including the date, place and cir-

cumstances of the alleged unlawful employment prac-

tice) on such employer, employment agency, labor

organization, or joint labor-management cemmittee

(hereinafter referred to as the “respondent’”’) within

ten days, and shall make an investigation thereof.

Charges shall be in writing under oath or affirmation

and shall contain such information and be in such

form as the Commission requires. Charges shall not

be made public by the Commission. If the Commis-

sion determines after such investigation that there is

not reasonable cause to believe that the charge is

true, it shall dismiss the charge and promptly notify

the person claiming to be aggrieved and the respond-

ent of its action. In determining whether reason-

able cause exists, the Commission shall accord sub-

stantial weight to fral findings and orders made by

State or local authurities in proceedings commenced

under State or local law pursuant to the require-

ments of subsections (c) and (d) of this section.

If the Commission determines after such investiga-

tion that there is reasonable cause to believe that

the charge is true, the Commission shall endeavor to

eliminate any suc: alleged unlawful employment

practice by informal methods of conference, concilia-

tion, and persuasion. Nothing said or done during

and as a part of such informal endeavors may be

made public by the Commission, its officers or em-

ployees, oi used as evidence in a subsequent proceed-

ing without the written consent of the persons con-

— re

4la

cerned. Any person who makes public information

in violation of this subsection shall be fined not more

than $1,000 or imprisoned for not more than one

year, or both. The Commission shall make its deter-

mination on reasonable cause as promptly as possible

and, so far as practicable, not later than one hun-

dred and twenty days from the filing of the charge

or, where applicable under subsection (c) or (d) of

this section, from the date upon which the Commis-

sion is authorized to take action with respect to the

charge.

* * * *

(f) Civil action by Commission, Attorney General,

or person aggrieved; preconditions; procedure;

appointment of attorney; payment of fees, costs,

or security; intervention; stay of Federal pro-

ceedings;....

(1) If within thirty days after a charge is filed

with the Commisison or within thirty days after

expiration of any period of reference under subsec-

tion (c) or (d) of this section, the Commission has

been unable to secure from the respondent a con-

ciliation agreement acceptable to the Commission,

the Commission may bring a civil action against any

respondent not a government, governmental agency,

or political subdivision named in the charge. In the

case of a respondent which is a government, govern-

mental agency, or political subdivision, if the Com-

mission has been unable to secure from the respond-

ent a conciliation agreement acceptable to the Com-

mission, the Commission shall take no further ac-

tion and shall refer the case to the Attorney General

who may bring a civil action against such respond-

ent in the appropriate United States district court.

The person or persons aggrieved shall have the right

to intervene in a civil action brought by the Commis-

sion or the Attorney General in a case involving a

government, governmental agency, or political sub-

42a

division. If a charge filed with the Commission pur-

suant to subsection (b) of this section, is dismissed

by the Commission, or if within one hundred and

eighty days from the filing of such charge or the

expiration of any period of reference under subsec-

tion (c) or (d) of this section, whichever is later,

the Commission has not filed a civil action under this

section or the Attorney General has not filed a civil

action in a case involving a government, governmen-

tal agency, or political subdivision, or the Commis-

sion has not entered into a conciliation agreement

to which the person aggrieved is a party, the Com-

mission, or the Attorney General in a case involving

a government, governmental agency, or political sub-

division, shall so notify the person aggrieved and

within ninety days after the ziving of such notice

a civil action may be brought against the respond-

ent named in the charge (A) by the person claim-

ing to be aggrieved or (B) if such charge was filed

by a member of the Commission, by any person

whom the charge alleges was aggrieved by the al-

leged unlawful employment practice. Upon applica-

tion by the complainant and in such circumstances

as the court may deem just, the court may appoint

an attorney for such complainant and may authorize

the commencement of the action without the pay-

ment of fees, costs, or security. Upon timely ap-

plication, the court may, in its discretion, permit

the Commission, or the Attorney General in a case

involving a government, governmental agency, or

political subdivision, to intervene in such civil action

upon certification that the case is of general public

importance. Upon request, the court may, in its

discretion, stay further proceedings for not more

than sixty days pending the termination of State or

local proceedings described in subsection (c) or (d)

of this section or further efforts of the Commission

to obtain voluntary compliance.

* * * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.