In Re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner

RUBIN, Before RANDALL JOLLY, Circuit Judges.

RANDALL, Circuit Judge: Equal This Employment Opportunity Commission subpoena enforcement action comes to us petition on a for writ of mandamus. The district court ordered the Commission to submit to extensive dis- covery and Commissioner Rodriguez give an oral deposition as conditions precedent to the enforcement of the subpoena. We grant the writ because we that, find under the circumstances of court’s orders exceeded its authority. We have already recounted the facts of this case in an opinion. earlier EEOC v. Neches Co., Butane Products 704 F.2d 144 (5th Cir.1983). Briefly, these proceedings began late 1978 or early 1979 when the computerized Commission’s statistical pro- files of various Houston businesses revealed that Neches Butane Products Company ranked suspiciously low in hiring blacks, hispanics, and women. The Com- missioner to whom the case had been ran- domly assigned review, for Armando Rodri- guez, recommended the issuance of a Com- missioner’s charge under sections 706 and VII, 707 of title 2000e-5, U.S.C. -6 §§ (1976). See E.E.O.C.Compl.Man. (CCH) ¶ 16.3(e) (1979) § (proposed charges are submitted to commissioners on a “rotating basis”).

The resulting investigation did go smoothly. Because the Company refused to comply with any of the Commission’s re- quests documents, the Commission was forced to bring a subpoena enforcement action in the Eastern District pur- of Texas Blackwood, Vincent Washington, D.C., suant to VII, section 710 of title 42 U.S.C. for E.E.O.C. 2000e-9 (1976). The Company then de- MANDAMUS. PROPRIETY OF defend, I. THE fended, its refusal and continues primarily on requests with the comply came to us under originally This case discrimi- ground that the Commission’s pur appeal from 1291 as 28 U.S.C. § institut- wrongfully nation action had Although we then order. portedly final alleged that Commission- ed: the jurisdiction not have that we did held signed charge the because Rodriguez er had case, suggested the merits of hear influenced improperly had been he pursue wished to that if Commission Citizens, Latin American League United man petition a matter, submit it should turn, by a which, in had been influenced within issues the same presenting damus (A.J. Albar- disgruntled Company employee 7. The at 152 & n. 704 F.2d thirty days. ven- ado) pursue personal a who wished peti a submitted such has now Commission Company. In order against detta allowed, and Com the time tion within Company allegations, its substantiate See opposition. in has filed brief pany concerning the documents requested various 21; there Rule 21. We Local Fed.R.App.P. bring charge, decision Commission’s exercise whether we should consider fore Rodri- and asked to take Commissioner Act, 28 the All Writs under our discretion noted The district court guez’s deposition. the merits of (1976),and hear § U.S.C. raised a Company apparently had petition. the Commission’s concerning the Com- question” “substantial correctly observes Although Company charge, good bringing faith in mission’s a dras historically that mandamus Company’s mo- granted therefore really reserved for remedy generally tic compel discovery. tion to see, cases, e.g., Kerr v. “extraordinary” turn to time it was the Commission’s This 394, Court, 426 U.S. District United States order. with a comply refuse to 2123, 2119, 48 L.Ed.2d 725 402, 96 S.Ct. that —in the ab- argued The Commission v. Hol Casualty Co. (1976); Bankers Life & circumstances truly extraordinary sence 145, 149, 98 land, S.Ct. present here —the transformation ap courts of the federal L.Ed. proceedings under summary enforcement Court) have Supreme peals (as well as into extensive section 710 in recent increasing willingness shown an destroy the counterdiscovery battles would one-time-only the writ as a years to use The mechanism of title VII. enforcement prob important new and device to “settle rejected this as well as several district court evaded have otherwise might lems” that July ruled on subsidiary arguments, and v. Hold Schlagenhauf review. expeditious should not be the Commission 104, 111, er, en- proceed with allowed the District of Co As L.Ed.2d forcement action until Times, explained Circuit Colonial lumbia opportunity discovery. to take afforded an Gasch, authorizes de “Schlagenhauf Inc. v. court, should Company, said the district judgment rule when from the final parture inquire legitimacy chance to into the have a that resolu court is convinced appellate bringing motives the Commission’s issue will important, undecided tion of an place. charge in the first discrimination courts, elimi error trial forestall future en- “stay[ed] [subpoena then The court importantly to uncertainty and add nate time as proceedings until such forcement] justice.” administration the efficient complie[d] with the Court’s the EEOC [dis- Accord, (D.C.Cir.1975). covery] Order.” Hughes, sub Cir.1969), vacated as moot seeks a writ of The Commission now v. Gifford-Hill-Ameri nom. United States directing mandamus the district court 817, 25 can, Inc., compelling counterdiscov- vacate its order Krentzman, 397 order, SEC proceed and to ery, stay to vacate (5th Cir.1968); generally see sub- F.2d expeditiously underlying to resolve the Federal Cooper, & E. Wright, A. Miller C. poena enforcement action. Practice and Procedure (1977 & district court’s order exceeds “[t]he (section Supp.1983) “Supervisory entitled scope narrow of authority a district court Advisory Mandamus”). has in summary subpoena pro- ceedings and is inconsistent with en- case, present opin- as II of Part this K-Mart, forcement scheme of Title VII.” show, ion will the Schlagenhauf meets all of supra, 694 F.2d at 1064. requirements. substantive presented impression is one first in this Finally, and as we had occasion note directly circuit and the efficiency concerns previous supervisory advisory manda- dispatch Commission mus appropriateness the writ “[t]he carry will able to under out its mandate particular in this instance is not to be con- title VII. The Sixth Circuit has held that strued making appropriate mandamus appro- Schlagenhauf-type mandamus was subsequent cases in which the principles priate in very present similar ... set opinion applied.” forth are Corp., one. v. K-Mart EEOC Hughes, supra, Indeed, 413 F.2d at 1249. (6th Cir.1982) (mandamus issued to the very purpose present of “exercise prevent district court from making EEOC ” functions,’ our ‘expository and supervisory commissioner condi- deposition submit as observed, we then is to meet “the com- tion precedent enforcement of EEOC pelling need to a new settle issue so that it case, moreover, subpoena). present In the can only ordinary become issue.” only coupled dis- Hughes, supra, (citations 413 F.2d at 1249 order covery with an order to all fur- stay omitted); accord, Krentzman, supra, 397 proceedings, ther but also refused to dismiss caveat, F.2d at With important 59. we suit, rendering the thus the discovery order now establish the standard gov- that should not appealable unless the first Commission ern the exercise of a district court’s discre- Rodriguez submitted Commissioner to ex- tion in passing counterdiscovery on re- amination. See F.2d at 146. We there- quest subpoena in an EEOC enforcement fore appropriate think that this is an action. for what the commentators have come call or “supervisory” “advisory” mandamus.

See, II. THE APPROPRIATE e.g., 16 STANDARD. Wright, C. A. & E. Miller supra, Cooper, 3934. § provision governs statutory Because this case comes us in the form VII, section 710 of title reads mandamus, of petition for a writ of our purpose “For the of all hear entirety: review of the district court’s order neces- is ings investigations and conducted the sarily limited. writ appropriately duly agents Commission or its authorized only issued ‘usurpation “when there is of agencies, of section the National Labor [11 judicial power’ or a clear abuse of discre- Relations apply.” shall U.S.C. Act] tion,” Schlagenhauf, supra, 379 at (1976). give meaning To 2000e-9 to sec (citation omitted), at “the and look, first, tion must therefore party seeking has ‘the burden of show- [it] of of history purpose and title VII and ing its right to issuance of writ NLRA, second, 11 of the section and ’ ” indisputable.” “clear and Will v. United applicable case law. States, 90, 96, 269, 274, (1967) (citations omitted). A. Title VII and 11 of Section Translated language into the of present NLRA. case, our of requires standard review us to Title “to originally VII enacted elim- writ if we find that inate, through the formal utilization of and district court’s exercise of its discretion in procedures, informal remedial discrimina- issuing order inconsistent race, color, employment tion in based design with the overall of title VII with and specific religion, [sex,] origin.” of In H.R. purpose section 710. or national Circuit, words Rep. Cong., Sixth we must find No. 88th 1st Sess. analysis of An 1817. at Ad. Cong. & in 1964 U.S.Code reprinted section EEOC, the current history of Legis- 2355, 2391, purpose and in News conclu- XI of the to the unavoidably VII and then, of Titles leads History lative 2001, 2026 at it was Act Rights Congress Civil that enacted sion Congress, discrimina- eyes “simplif[ying] concerned principally urgent “an was, to be and continues more VII could be title so that procedures” Id. at problem.” most serious national effectively enforced. Cong. & Ad.News 18, 1964 U.S.Code history of purpose analysis of An Title VII History of Legislative same NLRA leads 11 of the section so, original 2018. Even very 11 is text of section conclusion. unsatisfactory, proved title VII scheme of guidance with no us provides general in the later replaced eight years and was 11, as today. us Section before point Opportunity Act Equal Employment and its reports on it committee the various then Congress commented: more commented, nothing predecessors Congress Despite commitment agency “the grant opportuni- employment goal equal similar ad- provided typically powers citizens, machinery cre- ty for our all which their bodies, without ministrative is not Act of 1964 Rights the Civil ated No. H.R.Rep. would be ineffectual.” work adequate. (1935), re- 1st Sess. 25 Cong., 74th which has Despite progress History NLRB, Legislative 2in printed Rights of the Civil passage since made Act, 1935, at Relations National Labor minor- 1964, against Act of discrimination 972, No. H.R.Rep. also (1949). See 3076 The persist- women continues. ities and in (1935), reprinted 22 1st Cong., Sess. discrimination, 74th and its detrimen- ence of NLRA, supra, of the History Legislative our 2 a reaffirmation require tal effects 969, 74th H.R.Rep. (same); in No. equal opportunity policy of at 2978-79 national 2 seven in (1935), reprinted It is essential 22 employment. Cong., 1st Sess. Civil passage NLRA, supra, of the at years after History of the Legislative 1964, Rights ofAct effective 11 thus text of section (same). The 2932 Em- provided Equal procedures be tension be- the inherent unresolved leaves Opportunity Commission ployment efficiency administrative speed tween and strengthen its to reduce discrimi- efforts con- side, “process” various on one and employment. nation in tension And it this other. cerns 238, 2d 3 Cong., Sess. H.R.Rep. No. 92d suit. present the heart of lies at Cong. & (1971), in 1972 U.S.Code reprinted which, Wagner The drafters bill— Comm, 2137, 2139, in Ad.News Senate amendment, became considerable Welfare, Legislative on Public Labor and appear Relations Labor National Act — Employment History Equal Opportu- Pro- tension. well aware have been 1972, 61, (1972). The 63 nity Act of Handler, who was General Milton fessor that the Commis- power” so-called “demand “Na- embryonic) (and to the first Counsel was in during investigations sion had testified and who Labor Board” tional 1972 particular strengthening. need of The bill, succinct- put matter support replaced Congress therefore effective, must be “Enforcement, ly: 710, present designed section Labor A National To speedy.” Create wit- subpoenaing “simplif[y] procedures for before Hearings [Senate] Board: same by providing or records nesses Comm, Labor, Cong., 73d Education authority as contained investigative Legislative 1 reprinted in 2d 36 Sess. Labor Relations 11 National of] [section 27, NLRA, 66. In supra, at History of Cong., Sess. S.Rep. 92d 2d Act.” No. eventually of what operation explaining Report), reprinted (1972) (Conference 19 Act, Professor 11 of the section became Cong. & Ad.News 1972 U.S.Code deci- the tension to resolve EEOA, went on Handler History of the Legislative

397 sively, think, in favor speed and effi- summons cases should apply to the present ciency: See, case. e.g., United States v. LaSalle power to compel Bank, National attendance of S.Ct. witnesses production and the L.Ed.2d 221 (1978); of books Donaldson v. United and papers States, is no broader than those ha- bitually conferred L.Ed.2d upon administrative United States v. South bodies. east The complaint First Bank, must National state the (5th F.2d 661 general Cir.1981); nature of the charged. Harris, offense States v. 628 F.2d (5th complaint Cir.1980) (with may be amended during careful analysis of hearing cases); earlier so United States v. pleadings Wright —but Co., Motor under our modern procedure (5th Cir.1976); in the ab- United States surprise.... Newman, sence of (5th Effective adminis- Cir.1971); trative requires action v. Roundtree, proce- informal F.2d 845 dure, Cir.1969). but right We disagree. of court review ade- issue in the tax cases quately protects against most often been any abuse of

power. “institutional” bad faith of the Internal Revenue Service issuing a summons, 437 Id. at 1 Legislative History U.S. at S.Ct. at and in order to NLRA, supra, at 67. Proceedings under obtain at least preenforcement limited dis section 11 were designed “informal” covery issue, on that all a defendant need and fast. do is make a bare “allegation of improper The choice speed process over cannot, purpose.” (The at 667. “dis however, be absolute. Even the Commis- covery” is actually an opportunity ques sion concedes that at some point a civil tion Service officials open court.) This rights defendant’s allegation of illegal pur- low-threshold “allegation of improper pur pose could become serious enough to war- pose” standard, we think, cannot apply in rant pre-subpoena enforcement discovery. EEOC subpoena enforcement proceedings The dispute between the parties thus cen- least separate four independent ters on the formulation of the appropriate reasons.1 standard. With the legislative history of First, as above, intimated the “discovery” 11 sections mind, and 710 in we turn to that to which the low standard in the Fifth question. Circuit tax applies cases discovery not in sense, the usual but rather a chance to B. The Applicable Case Law and the question Service officials at subpoena a en Emergence of a Standard in EEOC forcement hearing. Cf. United States v. Proceedings. Kis, (7th Cir.1981) (even 1. The IBS Summons Enforcement more limited version of preenforcement dis Cases. covery than that by allowed Fifth Circuit), The Company argues that the relatively denied, cert. liberal discovery standard set out the in tax United States v. 1. There is also one why additional reason the Commission) the writing must be in and under IRS summons cases should not the control out- reprinted ”), oath Legisla- affirmation in .... present come of litigation. the While tax in- History tive EEOA, of supra, the at 1845. vestigations may begun be at the discretion of entirely beyond While is not the realm of Service, the see I.R.C. § 7602 the kind possibility high governmental that a official of investigation EEOC may issue here perjure himself, would the “under oath or affir- begun only upon the charge issuance of a “in requirement mation” potential does afford writing under oath or affirmation” one of EEOC defendants some protection poten- that the VII, commissioners. 706(b), Title tial may IRS always defendants have. 2000e-5(b) (1976). U.S.C. § See Cong.Rec. Consequently, it seems reasonable that the (1972) (prepared remarks of Sen. Wil- obtaining threshold for pre-subpoena enforce- liams on behalf of the House-Senate Confer- discovery ment higher in EEOC cases should be Committee) ence (“Charges (whether by or on than IRS cases. aggrieved behalf of person an or a member of delay, long precollection 61, how Bank, 607 F.2d National Garden State reimbursed partly at least government appears then (same). If it (3d Cir.1979) through money of its time value dis- for time-consuming) (and more formal inter- adjusted semiannually a of imposition appropriate, would be covery devices (West I.R.C. necessary charge. §§ or- See est may enter district rate” “prime (rate pegged interrogatories, Supp.1983) Depositions, der. Sept. every and time- expensive Commissioner of be established panoply of rest EEOC discrimina- 31). In an devices Mar. consuming pretrial 30 and hand, unnecessary case, of the other course on to as matter not be resorted “[ejnforce- improper purpose.” easily remedied less “allegation delay on mere Bank, especially supra, must be ment, First National be effective” Southeast See “the 667-68; Harris, F.2d challenge beyond It is “speedy.”2 F.2d at agen- any hints administrative rejecting of an (expressly very at 883 backbone con- cases). carrying earlier Since out in the

contrary effectiveness cy’s [its] an right depose rap- is the duties ... concerns present case mandated gressionally him bringing investigate.” power EEOC id exercise commissioner — hearing Seattle, of Texas for District Eastern v. Port FMC turn, entirely added). out of In presumably Cir.1975) (emphasis would not at all concern interest question important governmental “[t]his —and hearing at un- possible preliminary investigation enforcement kind expeditious Bank if a First National be undermined activity Southeast would lawful ap- cases would Harris, summons enforcement subpoena the IRS could use a party present bearing objections panoply little pear the full to raise action FTC v. proceeding.” suit. administrative to an (D.C.Cir.1979). Anderson, litigation principally Second, present money. just time is not EEOC an agency head availability of an concerns the citizens very those It is the welfare availability and not the deposition, for the Commission Congress directed whom majority The vast agents. local lower-level the courts think that We therefore protect. proprie- do not concern of the tax cases delay at tolerate cases should in EEOC of Internal deposing the Commissioner ty of in the stage deposing for The standard Revenue. tax circumstances —and unusual most higher should be agency head defining guidance us afford little cases efficiency of agents: deposing local circumstances. those terribly if its commis- suffer EEOC would every deposition subject to sioners were pre-sub- finally, the important, most And proceeding. subpoena enforcement routine es- standards poena enforcement the Fifth LaSalle, supra, and in tablished clearly Third, although time is legislatively have been cases tax Circuit litigation, in all administrative essence by section the Service favor of modified cases in the so IRS quite issue is critical Responsi- and Fiscal Equity the Tax 333 of tax In civil the EEOC cases. as it is in 333, 97-248, 1982, No. Act of Pub.L. bility money al- cases, principal I.R.C. (codified at 324, (1982) 622 96 No Stat. government. matter legedly owed 1368, Inc., Industries, F.2d 628 II.A, paragraph, Dresser SEC second-to-last 2. See Section 993, denied, 101 449 U.S. context, (D.C.Cir.), cert. Dis- 1380 supra. a somewhat similar accord, Unit 529, 289 66 L.Ed.2d S.Ct. commented: trict of Circuit Columbia 953, (Em. Bell, F.2d 564 ed States IRS, postpone collec- can Unlike subpoena apply in (refusing to DOE App.1977) parallel crim- tion of for duration taxes cases). The developed in IRS standards case seriously injuring proceedings without inal in tax point principles established is that real cases, quickly, public, act often SEC must notably States v. in United and most incomplete statements lest the false 248, 48, Powell, 13 L.Ed.2d 379 corporations and infect mislead investors indiscriminately applied be cannot stay hand For the SEC markets.... agencies. to other purpose. might defeat well (West § 7602 Supp.1983)). The then cur- summons be issued by the Internal rule, rent according to the relevant commit- Revenue Service.” S.Rep. No. supra, tee report, had “spawned protracted litiga- at U.S.Code Cong. & Ad.News at 1031. tion without any meaningful results for the Although the details of the new tax sum- taxpayer.” S.Rep. No. 97th Cong., 2d mons law are unimportant here,3 the point 285, reprinted Sess. in 1982 Cong. U.S.Code remains that the relatively preen- liberal & Ad.News 1031. yet, And the com- forcement discovery standards mittee went on observe, en- “summons Company urges us to apply in this EEOC forcement proceedings should be summary proven have so unsatisfactory even in in nature and discovery should limited.” cases IRS that Congress has changed Id., U.S.Code Cong. & Ad.News the law. We think that “discovery should (emphasis added). The committee also cit- be limited” in any subpoena enforcement ed with approval United Kis, States v. proceeding and that approach of La- wherein the court observed: Salle and the Fifth Circuit tax cases should In discussing the relative burdens of the certainly not be imported into the EEOC parties in summons actions, cases. we cannot stress too emphatically that 2. The Standard in EEOC Cases. these proceedings are intended to sum- It remains for us establish, however, mary in nature. They occur, all, the approach that should be used in EEOC only the investigative stage of any action subpoena enforcement proceedings. against We a taxpayer, guilt and no or liabili- recognize at the outset that facts vary ty on the so part of the taxpayer is estab- much from case to case that it is lished often very .... burden [T]he on the taxpayer difficult to articulate a single prove general stan- Government wrongdoing is See, dard. e.g., Walz v. Tax Commission, significantly greater [therefore] 664, 668, S.Ct. Government to show its legitimate purposes. (1970) L.Ed.2d (warning against action should be “too concluded sweeping quickly, utterances” so that seem “clear in investigation may advance relation to ... particular toward the but ultimate cases determina- limited tion of meaning civil or general criminal principles”). liability, any. if Nevertheless, we think possible that it is Cir.1981) (footnote fashion at least an approach, if not a hard- omitted), denied, cert. “general and-fast rule” that can be used in In order similar subpoena EEOC enforcement cases. to establish a bright-line rule that would substantially reduce the pre-sub- wasteful Because we think the two-step pro poena enforcement discovery and delay so cedure followed in this case was sound and. evident in many of the cases, earlier tax should be generally followed all EEOC Congress added current Code subsections enforcement cases in circuit, 7602(b) (c), which significantly “expand our approach is best understood in the pro the purposes for which an administrative cedural context of Kis, this case. Cf. parts 3. The relevant of the new law read: (Conference Sess. Report), reprinted in purposes Cong. U.S.Code & Secretary may which the Ad.News law, [issue a Under the old bring include Service’s purpose summons] intent to inquiring criminal, any into than a key offense rather civil suit connected issue; administration but bright-line new law uses enforcement of a the internal test: revenue laws.... Service’s intent conclusively deemed to may No summons be be “civil” issued unless and actually under this ti- until the case is tle, Secretary and the may begin any referred to the Department Justice for criminal action prosecution. under section any 7604 to enforce intent, The issue of institutional summons, respect any with person complexities, to with if appears a all thus to Department Justice referral largely is in effect have with been from removed IRS sum- respect person. such to mons enforcement cases in order that the Ser- 333,1.R.C. TEFRA 7602(b)-(c) (West § Supp. speedily vice carry more congres- out its 1983). H.R.Rep. See No. Cong., 97th 2d sional mandate. mons (SEC subpoena) tion for enforcement McCarthy, 658 F.2d 1975) (IRS through Steel K-Mart, ell: note sary make F.2d at 536 ate affidavits. v. vestigation the [agency’s The Commission first that the the information followed. within the may be relevant a [The University legitimate purpose, Powell criteria (3d Powell the informal 102 S.Ct. omitted). government Corp., 648 F.2d case); agency] must Cir.) (same), supra, 694 F.2d at 543-44 administrative summons)). 57-58, 514 F.2d requirements, (“No simple will be conducted [agency’s] SEC statute or See, Pittsburgh, 643 F.2d prima facie (citing guidelines set more generally (procedure v. submission in EEOC sought 70 L.Ed.2d 190 cert. show eg., Wheeling-Pittsburgh that ^[2] possession, submitted at 1066 steps required at purpose, rules] denied, 454 that the Kis, ^[1] is not fully complies with case.”) case); EEOC (3d of appropri that pursuant out in have did IRS (applying Cir.1981) complied See, (3d Cir. ^[3] already inquiry a neces here,4 (foot Pow- sum peti- eg., in- ^[4] by v. investigative complying history, grounds The stage day concerns chance tional’ VII. ysis of the statute tled to personnel, burden a “makes administrative Such should supra) is not where tempting ty, SEC ingful evidence” onstration dustries, Inc., 462 F.2d F.2d at Cir.1975).5 Anything general Our principal (already Here, showing. a case is one the defendant starting enough: because that the Commission case.” United can should engage a and administrative to abuse its on that preliminary matter with deposable only and especially Howatt, we think resisting” a (quoting authority, question undertaken abuse,” point must lead defendant’s relatively issue, a defendant counter-discovery question nature of this Powell to a conclusion that “[o]nly in the where investigative short of this and substantial States 14, 17 (9th K-Mart, presented i.e., that it section Cir.1982)), that dilatory tactics subpoena, presented this kind in Section heavy. Since be the was warranted. guidelines, was commissioners, the defendant agency States interpretation v. Litton 226, 229 second-stage is not abusing supra, 694 Cir.1972). to us purpose, was not showing of anal authori that second- of title “mean to find agency ‘excep is at “enti II.A, dem that Will, (1st to- In as is, of a dis stage little step was a procedural second VII are under title brought the Commission suit complicated. After crimination more may be unacceptable, shift- showing, absolutely the burden Powell made its demonstration substantial had come forward ed to the meaningful evidence.6 based enough of abuse significant there show that develop needs to do the [defendant] from [a]ll affidavits submitted 4. The Commission possi- might court infer investigator from which a as- facts District Houston Office wrongful Kamlar, bility conduct of some signed from Marsha prove Ehrlich, need not be able office, He Joan Harriet Government. of that Director wrongful exists. Rodriguez. conduct fact first from Commissioner original). examples (emphasis in typical appear at 540 to be affidavits two however, kind; seems third their from the tax legal standard —borrowed 6.The deny Company’s entirely been made phrased of a in terms sometimes (which cases —is investigatory also charges abuse had Powell, See, e.g., su- question.” “substantial level at the administrative been made (“[T]he at 251 pra, 379 U.S. at proceedings). showing proba- no need make Government taxpayer suspect unless the fraud ble cause “preliminary sub- emphasize that a 5. We judicial en- question that abuse,” supported a substantial raises demonstration of stantial summons administrative evidence,” forcement actual “meaningful not mean proc- of the court’s abusive use be an would proof. commented Circuit As Seventh Indeed, ess.”). Kis, III. APPLYING THE STANDARD. clearly does nothing to assist Company in carrying its second-stage burden. It now remains for us to determine urging upon the contrary position, us whether the Company has made a substan Company has that assumed the possibly tial vin demonstration of abuse based on mean dictive motives of Mr. ingful Albarado —or the evidence this case. For the rea possibly political sons set motives of below, out may we find that LULAC — be attributed to has clearly transgressed Commissioner Rodriguez. the limits imposed upon This simply is discretion not so. It is section 710 well settled that of title VII —the statute that “the governs motive of an sub informant is not a rele poena enforcement proceedings in the dis vant consideration in determining agen [an trict courts. cy’s] good faith” in issuing subpoena. Cortese, The Company relies exclusively upon an (3d Cir.1980). Indeed, as the Third Circuit affidavit one whose name remains under remarked, has reality prosecutorial seal.7 “[t]he The affiant states that he heard one experience, that most investigations origi Mrs. A.J. Albarado say that her husband nate on the tips, basis of did suggestions, proceed need to with his individual importunings parties, third against including discrimination claim the Company competitors, commercial because he need hardly “had be friends in not League of [the] ed.” Wheeling-Pittsburgh, supra, Latin American Citizens who could get issue, at 130. big-wig rather, commissioner whether Com Washington to- make missioner Rodriguez himself was proceeding sure the company paid” (abbrevia- tion expanded). good The affiant Kugler Helfant, Cf. then faith. says Mr. agreed Albarado what his wife U.S. 126 n. 1531 n. had said. This portion of the affidavit (1975) (prosecutor’s good applied precisely that standard: “Neches Bu- get opportunity [we would want] can- question tane has raised a substantial testimony did [about] from him on the issues that are whether the Commissioner and the EEOC are allowing contained in the affidavit without abusing process.” the Court’s prepare testimony him time to to rebut those allegations. problem ques- with the term “substantial This, think, trial-by-am- we expresses tion” tantamount only is that it a conclusion and bush. cryptic Since is too we unable discover reveal much about how a anything truly affidavit, instance, decision is confidential we reached. In this for why are at a loss open. it applied district understand not be court used the should term but sealed, course, lower A record ac- standard the Fifth Circuit tax cases to cording discretion, Company. rule in approach, favor of the the trial court’s but we This II.B.l, as we think have said that this discretion should used with Subsection unjustifiably only many would poena care justifications derail too exercised where the EEOC sub- doing considerably proceedings. appear stronger for so presented those the here. We 7. This entirely affidavit came to us under seal. entirety, therefore discuss in its affidavit level, At the trial court pur- are sealed records identity and conceal the completeness, of the affiant. 26(c), suant to Federal Rule of Civil Procedure For the sake of also note provides protective for various kinds justification sealing that the Commission’s for requires orders. moving party The rule part equally unpersua- of the record seems “good cause,” thus, show leading as a sive: remarked, “puts commentator has the burden precedent set ... [disclosure] would party seeking plain- relief to show some devastating would have effects on the Com- ly adequate Wright reason therefor.” C.8 & A. government agencies mission and on the Miller, Federal Practice and Procedure § investigations businesses, regarding conduct at 264-65 because, reason, hamper one would Although investigatory Company’s justifications process government because appear record, give district court do not officials coun- would be hesitant to their can- Company explained opinions posi- regarding investigation. sel for the did his client’s argument: certainly agree to us at oral While we the Commis- clearly, protec- important deserving the reason we Quite wanted a sion’s concerns are consideration, tive order or they that we the affidavit careful wanted we cannot how see got seen in implicated by camera because we are if take the actual materials sub- deposition Rodriguez, of Commissioner mitted to us in this case. section 710 and neled section means a “reasonable faith criminal case au- courts the upon the district obtaining valid convic- not confer a expectation cases, what to transform the Albar- in routine tion”). thority, The views of LULAC or enforcement subpoena Their summary that question. ados not concern should do time-consuming lengthy to assist and nothing therefore do actions into statements this second-stage The district court in discovery carrying battles. counter- clearly quick too burden. case was compelling The order trigger. discovery the affidavit remaining portions from Commis- deposition a discovery and greater pause. us no The month give precedent conditions Rodriguez as sioner Albarados, ap- listening to the the affiant this sec- transformed enforcement call from telephone received a parently long and drawn- into a proceeding tion 710 himself Commis- who identified someone demon- the substantial out battle. Absent According original Rodriguez. sioner described, sec- a already abuse stration of (which telephone diary copy of the affiant’s only skir- should be a proceeding affidavit), this call stapled been just as mish, brought quickly and quickly August 1978. p.m. at 4:30 made not, rec- on this Company has ended. The case, asked about the The caller Albarado It there- ord, such a demonstration. made of what consti- gave lengthy explanation a dis- court’s that the district fore follows VII, under title and tuted discrimination must be vacat- order covery deposition Mr. views on whether the affiant’s solicited (the sanction ed, accompanying and that the had, fact, discriminated Albarado be vacated. stay) must also abruptly The call ended when against. probably Albarado affiant stated that Mr. IV. CONCLUSION. tele- Although claim. this

did not have a unusual, we are may have been phone call court ex- We that conclude it say as to that willing go not so far implic- of the discretion the confines ceeded ordering provides justification sufficient VII. 710 of title by section itly given it discovery. pre-subpoena enforcement this described in According approach any subpoena proceed- enforcement authority court has a opinion, district abuse is whether enforcement would ing pre-subpoena VII defendant grant a title Powell, see, process, e.g., the court’s ex- only truly in a 57-58, is, in a case that where ceptional that irregularities provided always minor — and sub- preliminary made a defendant has legiti- question no about basic there is After of abuse. stantial demonstration not agency’s investigation macy of the —do purpose reviewing history carefully Cf. process” level. rise to “abuse of the Civil section 710 original of the at 127 Wheeling-Pittsburgh, supra, 648 F.2d Equal 7 of the section Rights Act inquiry is “wheth- that the basic (indicating (en- of 1972 Act Opportunity Employment it a claim knows pursuing er SEC 710), and section section acting the current a general ruling on when win”). A cannot Act Relations Labor 11 of the National important irregularity becomes minor into title reference VII (incorporated by right trigger defendant’s enough to a that 710), think deferential section we course, must, of preenforcement faith- one that remains is the approach today All time. we hold await another Congress ful to the intent this case about testimony in seeming risk of At the enacted the law. enough.8 is not simple telephone inquiry again emphasize repetitive, somewhat effective, must to be “[enforcement, unquestionably Although a district implicitly, that section speedy,” and from be prevent litigants authority has the dilatory tactics prohibits expressly chan- if authority is process, abusing call) principal a call (setting up from received claims to have affiant also local, Rodriguez official. Commission preliminary Houston-based call from Commissioner during early investigative stages call, of a telephone charge, commissioner’s at- discrimination In this suit. we do not tacking all of the employer’s employment think that an partly affidavit based on practices, upon is served the unwilling set- hearsay presents evidence that tler. These alleged and sworn facts consti- —and entirely almost provides suf- tute “meaningful evidence” that the em- irrelevant — justification ficient ordering extensive ployer was singled out for a massive inves- discovery and the deposition of one of the tigation because it would not settle a heads of the EEOC as precedent conditions charge on which it did not think it was agency’s enforcement of the investi- liable. The thing lacking was the gatory subpoena. “smoking gun.” I simply therefore cannot agree

A writ of directing mandamus shall issue there was no “substantial dem- (1) “meaningful vacate its order onstration” of abuse on evi- compelling discovery dence,” and requiring depo- and that the district court abused (2) sition from Rodriguez, Commissioner va- manifestly discretion so that mandamus stay cate its order entered as a sanction for is required. respectful- For these reasons I noncompliance with the depo- ly granting dissent from the of the writ. order, (3) proceed sition expeditiously underlying resolve merits of the sec- tion 710 action.

The writ is GRANTED. JOLLY,

E. GRADY Circuit Judge, dis-

senting:

I respectfully dissent because there is EQUIP- nothing in this case that requires the ex- CONTINENTAL CONVEYOR & CO., INC., Plaintiff-Appellant, treme remedy mandamus. I dissent be- MENT judge cause the district did not abuse his refusing discretion in allow the WORKS, PRATHER METAL SHEET proceeding progress further INC., Manufacturing and Readi-Co. unless the EEOC remove the of un- clouds Inc., Defendants-Appellees. prosecution lawful selective that hung over its case. I dissent because the facts in this EQUIP- CONTINENTAL CONVEYOR & case fit the standard for in EEOC INC., CO., Plaintiff-Appellant, MENT subpoena enforcement proceedings set out in the majority opinion and to which I INDUSTRIES, INC., generally subscribe. LUMMUS Defendant-Appellee. Here, there is charging evidence that a party with whom the company unwilling No. 82-1149. to settle boasts his connections in Wash- Appeals, Court of States ington that will company pay force the Fifth Circuit. charge on a they for which think they liability. boast, no True to that a commis- July sioner Equal Employment Opportuni- of the Commission, ty one of highest the five

ranking officials in the entire administra- less, agency

tive no makes a strange

suspicious telephone call inquiring charge.

merits of the unsettled True to boast, shortly astonishing abuse,’ supported by majority opinion: 1. See footnote ‘mean- “We em- demonstration of proof.” phasize ingful evidence’ does not mean preliminary actual ‘a and substantial

Case Details

Case Name: In Re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 11, 1983

Citation: 709 F.2d 392

Docket Number: 83-2284

Court Abbreviation: 5th Cir.