*1 param voyage instant The ease is not within the of the MASON LYKES and to en- the evil to be judgment eters of remedied. There is ter appellants for the in that danger amount, of an unlimited round of together no recover interest deemed cargo attempt appropriate, The owners no ies. make and costs.
recover for remote or contractual losses speculative Rather, profits.
real or lost recover,
they only through seek with and vessel, actual, out-of-pocket those ex
penses they directly incurred which were by
occasioned But for collision. clause,
freight earned Amoco would have Lykes.
been liable exclusively to
As a
clause,
consequence
freight
of the
earned
Jacqueline
HARRIS,
al.,
M.
et
cargo
the claim transferred to the
own
Plaintiffs,
may be
ers and
asserted
them under the
equitable principle.
of this
umbrella
Equal Employment Opportunity Com-
Compania Anonima Venezolana de Nav.
mission,
Intervenor-Appellant,
Export
v.
Perez
Collection of No. 83-3665. cargo are entitled interests their damages Lykes recover from either United Appeals, States Court of Amoco, they have a valid cause of Fifth Circuit. Lykes’ both. Because deci sion to abandon the voyage unreason Aug. able, cargo interests entitled to the full freight recover amount of retained voyage
on the of the from MASON LYKES
Lykes. 81,193 T.J. Stevenson & Co.
Bags Flour. The cargo interests are entitled to entire also recover the amount freight.
of the forfeited The TOLUMA.
However, they may only once. recover If cargo damages interests collect full Amoco,
from Amoco in turn include apportionment
these costs
damages between the vessels. See The
TOLUMA United States Reliable S.Ct. Transfer the cargo L.Ed.2d If inter
ests collect full damages Lykes, from
Lykes may freight include the lost
apportionment of the damages between the BALTIMORE;
vessels. United States
v. Reliable Co. Transfer
Accordingly, we REVERSE and RE-
MAND district for the determi- freight actually
nation amount of
paid cargo for the interests aborted *2 O’Connell, Chicago, 111., M.
Robert Amoco. CLARK, Judge,
Before Chief GOLD- *3 TATE, Judges. BERG and Circuit GOLDBERG, Judge: Circuit courts, Unlike pri- which are concerned marily with the enforcement of rights although public interests thereby implicated, administrative agencies predominantly are concerned enforcing public with rights although pri- may thereby vate interests be affected. degree To no small agen- administrative cies rights for enforcement of by Congress were established because more flexible and proce- less traditional dures were called for than those evolved by the courts. Broadcasting
FCC v. National 239, 248, 1035, 1039, 87 L.Ed. (1943) J., (Frankfurter, dissenting). words, long These written and ago for their audience,1 particular pertinent. own remain agencies frequently charged Federal issuing task of resolving rules and disputes might fairly in what be termed an “parallel administrative universe.” These however, agencies, same are often called upon public rights through to vindicate judiciary. Where the branch is in- third voked, the neatness of Justice Frankfurt- dichotomy private adjudica- er’s between agency tion and action into collapses a uni- tary judicial proceeding, premised pri- on discord, yet vate shading into realm of E.E.O.C., Flynn, Hill, Mark Irene L. S. public concern. Faced with a conflu- too Div., Appellate D.C., Washington, Services designed ence of part devices to address intervenor-appellant. far-reaching single effects aof law- Williams, McGuiness & Douglas S. action, intervention, suit—the class and an McDowell, Williams, E. Robert William S. agency’s very judicial authority en- to seek Franklin, D.C., Washington, for amicus forcement —courts times bedeviled are at Equal Employment Advisory Council. complexity assessing involved Wayne Bishop, Walker, S. Richard K. “public” effects of these elements Washington, D.C., for Standard Oil. individual cases before them. held, Broadcasting, hearings designed
1.
In National
the Court
un-
whether
in FCC
to determine
regulations,
competing
der the
that a
licensed.
relevant statute
channel should be
licensed
could
radio station
intervene as of
U.S. at
At sought theless to discover the birthdates complaint amended it satisfied the and sexes of employees Amoco already representation requirements class of Rule having jobs identified as held encompassed 23 and rep- should therefore be allowed to proposed within the class. According to Commission, resent “itself and all pres- blacks who are age and sex data was ently employed, may employed, or who needed to multiple regression conduct a employed sought have been analysis of Amoco’sworkforce though even defendant ... at since De- alleged only race [time] discrimina- cember 1973.” Record vol. at 412.6 tion. Over the objection, defendant’s *5 However, Supreme when the Court held in granted district Commission’smo- Telephone General compel, Co. tion to but at the grant- same time (1980), ed Amoco’s motion for protective order that the is subject EEOC not to Rule 23 in restricting the use of the data solely to this seeking relief for a class of individuals case absent a written order from the court. allegedly aggrieved by unlawful employ- private plaintiffs and Amoco even- discrimination, the Commission filed a tually settlement, reached a upon their complaint deleting second amended all alle- motion, joint the district court dismissed gations repre- addressed to the usual class the entire prejudice. action with For its requirements. sentation The Commission part, the Commission understandably was nonetheless continued to seek classwide re- displeased with the nullification of what lief, alleging, start, as it had from the that by was now five and years one-half engaging Amoco was in discriminatory em- agency party involvement as a to the suit. ployment practices promotion, compensa- agency therefore filed a motion to re- tion, job assignment. consider the dismissal of its claims. The
Meanwhile, court, the district court however, had never district unswayed. In plaintiffs certified the main themselves as denying motion, the Commission’s representatives. class hearing After a on court prior ruling reiterated its that issue, provisionally the court denied the EEOC could not seek relief pro- for the United States confers a conditional shall consider whether the intervention will intervene; (2) applicant’s or when an claim or unduly delay prejudice adjudication or question defense and the main action have a rights original parties. of the party of law or fact in common. When a ground an action relies for of claim or de- Although initially alleged the Commission upon any fense statute or executive order ad- job ap- Amoco also discriminated black by governmental ministered a federal or state plicants, subsequently it informed the court agency upon any regulation, officer or or or- that, plain- in accordance with the der, requirement agreement issued or suit, pursue hiring tiffs’ it would not the issue of made der, to the statute or executive or- discrimination. Record vol. at 2030 n. id. agency upon timely applica- the officer or vol. at 47. permitted tion to intervene exercising action. In its discretion the court requirements posed class because the district subject jurisdiction court’s matter met, on the claims original plaintiffs, Rule 23 had not been and therefore without whom private plaintiffs since the had the intervenor could held that have intervened and defendant, absent whom dispute no this “vi- settled depart. addition, carious” must In controversy live remained between the could plausibly somewhat more be asserted and Amoco. permissive EEOC—a intervenor points The Commission raises three power whose conditional to intervene has First, appeal. argues the Commission its source federal law—is by limited its permissive intervenor such as com- itself enabling legislation representing only its independent jurisdictional mands an base own interests and private those of the premised where the intervention is either plaintiffs. This theory second would have statutory right on a conditional to inter- us affirm the ground district court on the vene or on the intervenor’s reliance on the (A) the EEOC has satisfied neither same federal employed by statute as that preconditions title VII’s to a suit view, original plaintiff. this On name, (B) the Commission’s own nor Rule district court dismissing erred requirements, which, 23’s Class action al- merely because the main though inapplicable where the EEOC files Second, had settled with the defendant. action, applicable direct where the that it contends is no more merely intervenes in a suit. subject to Rule representation 23’s class view, On this EEOC allowed stat- .requirements when it pri- intervenes in a solely ute to intervene purpose for the vate brings title VII action than when it facilitating adjudication of claims be- suit in According its own name. private litigants tween the role akin to —a Commission, the district court should not curiae, that of an amicus whose asserted have denied it repre- the status of a class expertise and familiarity given with a area light sentative in of the Court’s decision of law enable it to assist court in reach- Telephone. General Finally, the Commis- ing (and a more perhaps just) correct even sion protective asserts that the trial court’s essence, decision. this notion of inter- restricting order age use of the and sex qua judicial venor appendage focuses less *6 unduly hampers data agency’s ability premises permissive on the intervention comply enforce the Act and to with its general and more on the intervenor’s interagency obligations. statutory authority to intervene. We hold that the Commission can main- We will arguments address each of these tain suit as a representative class but that in turn. protective the district court’s order was not an abuse of discretion. A. Unsettling The Permis- Bedfellows: sive Intervenor and the Reluctant
I
Defendant
This is a
justiciability.
case about
noted,
As
the district court allowed the
district court
plaintiffs’
held that the main
pursuant
EEOC to intervene
to sections
deprived
settlement
as an
inter-
705(g)(6)
of title
42 U.S.C.
controversy
venor of its case or
against the
2000e-4(g)(6),-5(f)(1), as well as under
§§
defendant employer.7
perceive
We
24(b).
two ha- Rule
We confront the nature of this
support
martial theories in
statutory
this result.
authority in
B
Parts
and C below.
argued
It could be
first that
moment,
this circuit’s
briefly
For
we
consider
permissive
law of
intervention
procedural
party
bottoms a whether the
tool of
inter-
Commission,
dismissing
deciding
the district
the circumstances under which the dis-
court did not exercise its discretion
permissive
missal
aof
intervenor
such as the
24(b)
Rule
but instead ruled as a matter of law
might
be construed as an abuse of trial
longer
that the EEOC no
had a "live controver-
court discretion.
sy”
pretermit
with the defendant. We therefore
ICC,
(D.C.Cir.
716 F.2d
court to retain
v.
a district
Simmons
enables
vention
1983);
permissive
claims of a
Non
also
Commissioned
over
jurisdiction
Offi
original plain-
those of the
cers
once
Association
United States v.
intervenor
dismissed.
Army
Publishing
have been
Times
637 F.2d
tiffs
curiam),
(per
on other
modified
outset,
it
not
At the
is essential
(5th Cir.1981) (per
deed, the Third held under Fed. task is to Circuit has Our determine whether these 15(d) circumstances exist R.App.P. seeking that an intervenor here. rulemaking of an can
review administrative Illusory B. and Commission In- litigate original party after the Pitfalls continue tervention petition though has dismissed its —even statutory beyond intervenor has waited authority The EEOC’s inter period it within which could have filed its private vene in a lawsuit is set forth in petition 705(g)(6) 706(f)(1) own for review. United States sections of title EPA, -5(f)(1). F.2d 42 Corp. 2000e-4(g)(6), Steel v. 614 845-46 U.S.C. §§ (3d Cir.1979), Oil, provision former is no more approval cited with than a boiler plate empowerment; clause of Chemical, Workers, grants F.2d Atomic & Cir.1983). ability Commission the (5th intervene.8 The 1341 at Similar appears method of intervention in section ly, we have held that intervenors 706(f)(1), states, which “Upon timely appli can maintain suit under title VII cation, discretion, may, the court in its per employer though even mit the Commission ... to intervene in plaintiffs [a] have settled their claims. Wheel upon civil action certification that the ease Corp. er v. American Home Products general public is of importance.” Id. Division), (Boyle-Midway 2000e-5(f)(l). pre There are thus three (5th Cir.1977). 1237-40 The law of this requisites to EEOC intervention: certifica circuit is that there are circumstances in tion that the general public case is of im litigate which an can intervenor continue to portance, timely application, permis after originated dismissal of the case, sion of the district court. In this all Id.; Magdoff Saphin the action. v. Tele met, three conditions were and the Com Appliance, vision & 228 F.2d properly mission was therefore before the (5th Cir.1955) curiam); (per Hunt Tool court. 212 F.2d at accord Walker Jim Dandy Appellee 1366-67 argues nonetheless Cir.1984); McKay Heyison, authority Commission’s intervention ends (3d Cir.1980); 906-08 Alabama Electric when the main decide to settle Cooperative, States, Inc. v. United Focusing their claims. language F.Supp. (M.D.Ala.1983); 31 n. 8 prescribes EEOC section when the v. International Brotherhood Electri EEOC is allowed to institute suit in its own Workers, (D.Mass. F.Supp. name,9 cal Amoco observes that the Commis- 1981); sion, Corp., Kruse v. Zenith having investigated, Radio found rea- (W.D.Pa.1979); Oil, sue, F.R.D. attempted sonable cause to to con- Chemical, Workers, ciliate, & Atomic statutory 718 F.2d at lacks the authority to maintain a direct action.10 See Truvillion supra. 8. See note 4 attempted regard to conciliate with to all claims of discrimination raised supra. 9. note not, litigation, the instant and if whether such See, attempts required by e.g., title VII. appears 10. While it that the Commission Wright Corp., v. Olin statutory prerequisites have satisfied the ing to fil- (4th Cir.1982). glean It is also difficult to from by investigating, finding its own action rea- cause, attempts the record whether possibly the Commission’s attempting sonable to con- sufficiently arguably complaint ciliate the were of at least one named industrious —an issue 703-04; plaintiff, placed dispute by see Record vol. id. vol. Amoco’s contention that *8 2231-34, beyond dispute, at the issue is not see beyond the EEOC did not seek conciliation 702, id. vol. 3 at and the district court never Pet, Inc., initial overture. EEOC v. Funsten Cf. question. Premising considered the continued Nut Div., 1001, (5th Cir.1980) (per jurisdiction on the EEOC’s satisfaction of its curiam) (holding that EEOC efforts to conciliate prerequisites direct action would a raise host of faith). good were not conducted with sufficient fully concerns that have not been addressed concerns, light of these we do not decide parties either appeal. the court below or the ability whether to have Commission’s example, For it is unclear whether the greater Daughters Hospital, suggests King’s sympathy for Com- ate — 520, 42 U.S.C. mission intervention than 524-25 suit. direct 2000e-5(b). Hence, runs, It seems if we argument are to ascertain intervention, bounds of EEOC not read title VII to mandate the we must if we do case, purpose look to the and logic this Commission in statute dismissal as a whole. effectively the Com- we will have allowed by satis- to maintain a direct action
mission When it amended the Rights Civil Act of only the different and demand- fying less 1972, Congress’s 1964 in goal chief with This re- ing prerequisites to intervention. regard to the increase sult, told, Congress we are not have could powers Commission’s of enforcement.11 intended. time, Prior to that had Commission only been vested seek authority appeal of Appellee’s reasoning has all the conciliation—a situation acknowledged to spacious syllogism. Congress lim- a wants deficiency be a serious in the effort intervention, attempt ited this breaks eliminate discrimination.12 limit, Congress want this therefore doesn’t Congress granted therefore however, type of intervention. Title conditional to invoke compensato- major premise: does not evince the neither ry injunctive powers of the federal legisla- language of the statute nor its directly.13 courts If the Commission has history speaks directly tive to the implicated notified employer, investi- authority as an EEOC’s intervenor claim, gated the found reasonable cause to suit maintain once the sue, unsuccessfully attempted con- Admittedly, have settled. section ciliate, agency bring can suit in its own temporal a order for pecking does create Alternatively, name. if the Commission agency op- in that first the EEOC’s complaint views a to be unworthy upon receiving complaint tions either reasonable cause determination or chooses possibly bring to seek conciliation and directly, right- not to file suit it can issue a action, right-to-sue direct or to issue a no- to-sue letter claimant without sacri- tice to the claimant. But the that the fact ficing the administrative con- Upon role. ability Commission’s to intervene does not cluding that a im- is suit steps after arise until these other have portant, say only the Commission need so been taken does not congressional indicate 2000e-5(f)(l). to intervene. U.S.C. § disfavor Commission to en- intervention Indeed, argued VII. force title it could clearly pre- Conciliation remains the requisite im- that the certificate of obtaining compliance ferred method portance certainly demanding Act; than a litigation less only available as a last — attempt direct action’s formal concili- resort.14 Both direct-action inter- 11, Legislative History, supra suit itself alternative would be an note at ground upon which to remand the case. 1767-68. 415, 1, S.Rep. Cong., 11. No. 92d 1st Sess. 3-5 681, Report, S.Rep. 14. 92d No. Conference (1971) ], Report reprinted Senate in [hereinafter Cong., 2d 17-18 Conference [hereinafter Sess. Senate Legislative History Equal Employment Op- ], Rep reprinted in 1972 U.S.Code ort 1972, 410, (1972) portunity Act at 413-17 Ad.News, 2179, Cong. Legislative & ]; Legislative H.R.Rep. History No. [hereinafter 11, 1815-16; History, supra note at Sess., Cong., (1971) Conference 1st 92d 3-5 [hereinafter H.R.Rep. Report, Cong., No. Sess. 92d 2d Report], reprinted House U.S.Code ], Report House [hereinafter Cong. Ad.News & 2139-41. Conference reprinted Cong. 1972 U.S.Code & Ad.News Report, supra reprinted note at Senate Legislative History, supra note 2182 and Legislative History, supra, House Re- at 1837-38; Legislative History, supra note at port, supra reprinted note 1972 U.S. (section-by-section analysis Cong. & Ad.News at Code 2143-44. Williams, 22, 1972); by Sen. submitted Feb. Alexander v. Gardner-Denver courts, allowing the 13. In EEOC to resort to the Congress stopped conferring cease-and- short of authority desist itself. See *9 square returned to one. the of would be Viewed possibility contain scenarios
vention
employer’s perspective,
it can
com-
from
judicial
to
resort
conciliation without
hardly
said that Amoco is without notice
procedural prerequisite
The main
pulsion.
charges upon
of the
which
Commis-
good-faith
by the EEOC is a
to a suit filed
based,
are
nor would a for-
sion’s claims
to conciliate.
attempt by the Commission
appeal
reinvestigation
to
or to a
malistic
pur-
not to
Similarly, if the EEOC chooses
of reasonable cause be
redetermination
intervenes,
and instead
sue an action itself
addition,
stage.
In
assum-
sensible at this
that a district
provides
section
ing
argument
sake of
that the
for the
Com-
discretion, stay
private
may, in its
court
engaged
good
has not
in a
faith
mission
days pending the
up
sixty
to
action for
conciliate,16
already
to
we have
noted
effort
efforts to concili-
outcome of Commission
706(f)(1) requires
that section
this effort
ate.15
primarily
litigation
goal
to avoid
—a
backdrop against
This scheme sets
longer
was no
attainable when the defend-
intervening
an
which to consider whether
years
settled six and one-half
into the
ant
original plaintiffs
bereft
Commission
original plaintiffs’
To the extent con-
suit.
to continue suit ab
lacks the authorization
possibility, the
ciliation remains a viable
compliance with the statute’s direct
sent
right
to
statute still affords Amoco
prerequisites
prerequisites. These
request
temporarily
the district court
pow
as elixirs of EEOC
were concocted not
stay
pending
the action
the outcome of the
er,
procedural
designed
devices
to
but as
good faith efforts to concili-
Commission’s
courts,
employers, employees,
shield
ate. The intent of the statute remains
litigating employ
the Commission from
fulfilled.
grievances
unnecessary to ef
when
closely
The situation
resembles those in
purposes
fectuate the
of title VII. John
Pullman,
Love v.
404 U.S.
92 S.Ct.
Paper
v. Nekoosa-Edwards
son
(1972),
Zipes
We
thus faced with a
amendments
the Act
Commission,
before the district court ab
properly
procedures
“The
set
forth in [section
desirability
advisory
permissive
opinion
the
of an
is not a
intervenor. While the Commission’s
sure,
justiciability.
appeal
for
substitute
To be
pending,
of the revocation order was
the
purpose
original
chief
behind
statutes
intervention
plaintiff
settled with the de-
24(b)
such
2403 and
as
Rule
is to enable the
employer.
§
fendant
The Sixth
held
Circuit
that
agencies
United States or one of its
to inter-
independent
the EEOC lacked both an
basis of
prevent
legal
vene to
constitutional or
issues
jurisdiction
certification,
and class
the
significance
being
potential
of
from
decided
settlement
dismissal of Horn’s claim there-
only
litigants,
input
private
with
limited
from
appeal
fore
the
rendered
Commission’s
moot.
nothing
prin-
who
care little
the
or
about
hope
perspicacious
In
we
what
is a
effort to
however,
is,
ciples
stake.
There
differ-
dilemma,
blunt the horns of a
we
not
do
read
permitting
ence between
the
States
United
present
Horn
on
to be
all fours with the
case.
play
during
pendency
an active role
the
of a
The Sixth Circuit did not affirm the district
private litigation,
go
permitting
it to
for-
dismissal, which, judging
panel
court’s
the
from
litigation
ward with the
in its own
after
opinion, could have been based
on
either
private parties
composed
the
have
their differ-
the
exercise of
24(b)
court’s discretion under Rule
latter,
do
ences. To
the
we think the Govern-
ruling
or
aon
as a matter of law under
possess
independent
ment must
some
basis as
Rather,
title
appeals
VII.
the
of
dismissed
party apart
its status as intervenor
from
moot,
appeal
thereby
indicating
that the
question.
under the two
in
statutes
Unit-
attempting
court viewed the Commission as
point
indepen-
ed
is
States
here able to
to no
intervene
ain
nonexistent suit rather than as
authority permitting
dent source of
it to sue
trying
party
to maintain its claims as a valid
others,
of
behalf
itself or on behalf of
in
Indeed,
holding
the action.
based
its
al-
provisions
order to enforce the
of Section 39b
entirely
involving attempts
most
on cases
Act[,
67(b)
Bankruptcy
of the
11
§
(citations
U.S.C.
].
original
intervene where some
all
added)
(emphasis
706(f)] are
largely
premise
from the
that the EEOC
of Ti-
enforcing violations
for
responsibility
public interest
represent
exists to
them
and to shift
VII in the Commission
tle
employment opportunity.25 The
equal
We hold
plaintiff----”
from the
representation
method of
enables Commission’s
that the statute
goal
light
of this
comprises
adjudica-
both conciliation and
at the sound
maintain suit
EEOC to
Limited,
necessary,
the latter
tion. Where
becomes
the district court.
discretion
intervention,
direct suit or
in inter- whether
then,
complaint
scope of its
by the
acts not. for itself but for
have
the Commission
vention,
should
complaints with the
people who filed
upon the
a matter of law
dismissed as
been
individuals,
similarly situated
agency, for
plaintiffs’ farewell.
general public interest. The
and in the
Nonap-
and the
C. EEOC
“in its own
ability to maintain suit
EEOC’s
Enforcement
plicability
Rule
apart
meaning
has no
from whatev-
name”
em-
obtains for
er relief
dismissing
reason
As an alternative
have
treated as less than
ployees who
been
offered the
the district court
equal.
the class
noncompliance with
Commission’s
*13
nei
Rule 23. Since
requirements of
Supreme
has
And so the
Court
the
original plaintiffs nor
Commis
ther the
Telephone,
In
the Court
held.
General
representat
as class
sion had been certified
dispense
with Rule 23’s
read title VII
ives,24
held that the Com
the district court
the
requirements
class action
where
mission,
solely in
own name
proceeding
its
pursuant
suit
to section 706.
institutes
intervenor,
contro
lacked a case or
as an
observed, “The
is not
The Court
employer. This
versy with the defendant
merely
proxy
for the victims of discrimi
only with our
result
is inconsistent not
nation[,] and
the EEOC’s enforcement
...
holding in Part B above but also with
representa
suits should not be considered
in
Supreme
Court
General Tele
subject
tive actions
to Rule 23.... When
318, 100
EEOC, 446 U.S.
S.Ct.
phone Co. v.
acts,
at the behest of and
the EEOC
albeit
1698,
original
plaintiff.27
Rule has
“[T]he
may
A
application
party
generally
no
to a 706
446
do
suit.”
U.S. at
what
324,
discovery process, it wants do F.2d 1379 Cir. as 1976). Halkin, something legal. In re 598 F.2d (D.C.Cir.1979); Corp. 176, 188 Essex Wire Management Corp., 663 Brown v. Arlen Co., F.R.D. 48 Eastern Electric Sales v. (5th Cir.1981) curiam); (per 580 (E.D.Pa.1969); Amuse Leonia 276, 283 Wyatt Kaplan, v. Loew’s, Corp. F.R.D. ment Oil Sanders Shell (S.D.N.Y.1955). But Seattle Times cf. (5th Cir.1982). We must — U.S. -, Rhinehart, v.Co. ask whether the district court abused its (hold 2199, 2208-09, (1984) good finding discretion in cause to restrict is no absolute first amend ing there age EEOC’s sex use of and data. ob ment to disseminate information appeal, below, Amoco argues on as it did discovery); through pretrial tained Greene permit- Commission should not be Store, Department v. Thalhimer’s discovery process in ted to utilize the lieu (E.D.Va.1982) (limiting use F.R.D. authority provided investigative relating of discovered material to EEOC in title VII. 42 U.S.C. 2000e-8. The efforts). The rules conciliation federal do argues response it has limit the discovered not themselves use of statutory duty to ferret out 26(c)does, Rule documents or information. discrimination, if the Commission however, ability afford district courts the discriminatory practices becomes aware impose If the from whom limits. during the litigating course of an admitted- cause,” discovery sought “good shows treatment, unequal ly distinct claim dissipates, of free presumption use using not from should be constrained this can its sound the district court exercise upon initi- information as a basis which restrict what materials are discretion to Thus, argu- proceedings. ate further obtainable, obtained, they how can be runs, protective the district court’s what use can made of them once ob “places posi- order Dynamics Corp. tained. v. Selb General violating statutory tion of mandate to 1204, 1212 Manufacturing prevent remedy employment discrimi- (8th Cir.1973), denied, nation whereever found.” [sic] Brief for (1974); L.Ed.2d see C. Appellant at 30. Miller, Wright & A. Practice and Federal 264-65, 267-69 Procedure §§ we do take Although issue *15 Moore, Grotheer, (1970); 4 J. J. Lucas & G. with the of the EEOC’s warrant to breadth s Jr., Moore’ Federal Practice 1126.75 VII, disagree enforce title we long have Commission’s conclusion. We role, though, play to district Our scope recognized of an EEOC civil that court. as of action is as broad “the reasonably which investigation standard of review of a decision of EEOC can [T]he expected charge out of of relating grow a trial in a matter to dis be to court covery is the trial court abused discrimination.” Sanchez v. Standard whether (5th Brands, Inc., F.2d 466 Cir. its discretion in its decision. Save the 431 1970); Mississippi Army, v. State Bay, Inc. v. United States 639 also Walls (5th Cir.1981); Welfare, 730 F.2d Hastings Department F.2d 1100 v. Public of Cir.1983); (5th Independent EEOC v. North East School Dis 317-18 Co., (5th trict, Cir.1980). It 614 F.2d F.2d 628 is Brookhaven Bank & Trust 615 Cir.1980); (5th v. Occi say to 1025 EEOC responsibility not the this Court Co., order, a 535 it would have chosen different dental Insurance Life 1976), (9th aff'd, 432 U.S. judgment; it is rather our substitute our Cir. (1977); L.Ed.2d 402 97 S.Ct. 53 responsibility to decide whether dis Co., 532 F.2d order v. Electric trict court could have entered the EEOC General (4th Cir.1976); Kimber- v. v. Fenick 365 which did. Emerick Cf. (6th ly-Clark Corp., say unable that the district court abused Cir.), denied, 423 U.S. its by issuing protective discretion a order (1975); v. L.Ed.2d 368 EEOC Mc in this case. Title VII require does not Co., Trucking Lean that the EEOC receive full use of material Huttig Sash & intervenor, discovered as an whether Door, 1975). Cir. use investigation, is further litigation, or however, Congress title erected a spe interagency cooperation. See, e.g., Haykel system by cific which Commission is Leasing G.F.L. Furniture investigate charges discrim (N.D.Ga.1976). F.R.D. An employ- 2000e-5, ination. U.S.C. -8.29 §§ er’s interest in preserving the confidentiali- nothing There is in the statute that autho ty of its for purposes records some is suffi- rizes, mandates, much less “good cient cause” where to act on material discovered while inter is not authorized to that privacy invade for vening private in a title VII suit.30 It purposes.31 all certainly would not be unreasonable Congress to have intended that the Com investigate provided
mission as for in the Ill through statute rather than the back door go It should without saying that title VII See, discovery. EEOC v. Shell Oil generous merits the most of applications.32 1621, 1627-37, 80 This has been and remains the tradition of (1984) (discussing relationship L.Ed.2d 41 rights civil litigation federal charge, notice, among judicial enforce courts —a tradition of solicitude for those VII). provisions Valley of title In conquer least able to inequality Services, dustrial Inc. v. face self-appointed superiors. (N.D.Cal.1983) F.Supp. (discussing Cognizant disparities liti- between investigative powers). Commission’s gants in employment suits, discrimination
Thus, a we absent clear indication have often characterized these suits as otherwise, Congress intended we are contemporary David and Goliath confronta- not, course, 29. The situation resembles that a suggest where 30. We do the converse— plaintiff namely, protected discovery prohibits seeks to disclose that the statute the Commis- government. acting discovery material to the sion from Faced such material. Wheth- request litigation, protective Judge er or not to issue a from civil antitrust order remains for the discretion of the trial Weinfeld court. once observed: protective contention that order 31. We note in addition district court should lifted so to enable expressly power reserved rescind order protected communicate the information upon party's application. suggests This caveat governmental various authorities in further- might, properly if faced with a ance interest is without sub- request, substantiated Commission release the authorities, governmental stance. wheth- discovered material to the EEOC for uses con- congressional, er executive or if interested in agency’s sistent with the role under the statute. *16 information, obtaining the have the available otherwise, power, subpoena means and Supreme theAs Court stated in Albemarle 32. compel production. obtain or The vindica- Paper Moody, Co. v. tion of the interest in the enforcement (1975), "Congress’ purpose in Depart- of the criminal laws rests with the vesting variety 'discretionary' powers of in the plaintiffs ment of Justice and not with the appellate courts not to limit of review trial asserting who antitrust claims. courts, inconsistency caprice, or to invite Digests, Corp., Data Inc. v. Standard & Poor's possible 'fashion[ing] but rather to make ” (S.D.N.Y.1972) omitted). (footnote F.R.D. complete possible.’ the most relief Id. at [of] Foils, Huyck Corp., But Johnson Inc. v. (quoting Legislative History, 95 S.Ct. at cf. (N.D.N.Y.1973). Similarly, F.R.D. supra (section-by-section note at 1773-74 sufficiently Williams, if in interested analysis birth- submitted Sen. Feb. genders.of employees, 1972)); Griggs dates and Amoco can see also v. Duke Power 424, 429-30, 849, 852-53, investigative authority resort to its under the Act. See U.S.C. § 2000e-8. L.Ed.2d 158 staffed, government where, tently publicly funded tested mettle best tions.33 Our properly to be agency and the defendant ease, slingshot David’s in the con- as a David and Goliath shield. characterized Goliath’s to become threatens authority to eradi- frontation. When vested workplace, a in the unequal treatment cate exercise that agency is entitled
federal Congress created the limit.
authority to neither means purpose, and with a
scheme sight of the oth- lose should ever
nor ends
er. outset, this case noted at the
As we bedeviling complexi- a number raises America, UNITED STATES well-ex- which have been complexities ties— Plaintiff-Appellee, employer and Commission plored by both essence, employ- though, the appeal. In statutory form over argument favors er’s INC., CHEMICALS, M. and Lewis JON-T sight substance, doing loses and in so Overton, Jr., Receiver for Jon-T Chemi- goal. Since congressional method both cals, Inc., Defendants-Appellants. contemplates EEOC intervention No. 84-1325. that, cases, having we hold appropriate intervened, EEOC can main- properly Appeals, United States Court tain suit within Fifth Circuit. those claims even after plaintiffs’ Aug. Moreover, that Rule we hold have settled. inap- are as prerequisites class action 23’s intervenes as
plicable when the EEOC However, brings a direct suit.
when a carte
given that the statute is not blanche hold that agency investigation, we also discre- court did not abuse its
the district restricting the Commission’s use
tion litiga- to this age and sex data
discovered
tion. agency’s resort federal
On balance/this sound.
to the courts has been PART, IN IN REVERSED
AFFIRMED
PART and REMANDED.
CLARK, concurring special- Judge, Chief
ly: II, penultimate
I concur Parts I— III, paragraphs of Part
and ultimate Judge Goldberg’s reached
the result ac- of the defendant’s
opinion. merits I adjudicated. remain to do
tions self-appoint- it can be classed as a
see how Furthermore, superior. I do not consid-
ed *17 compe- present litigation
er the between Pipe Cast Iron Corp. F.2d American 33. See Chromcraft Cir.1969); Brands, (5th Corp., 400 v. United Gas Jenkins v. Standard Sanchez Cir.1968). (5th Cir.1970); Pettway