____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________________________________ No. 07-8002 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Respondent, v. ALLSTATE INSURANCE CO., Defendant–Petitioner. _______________________________________________________ On Petition from the United States District Court for the Eastern District of Missouri _______________________________________________________ THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S OPPOSITION TO THE DEFENDANT'S MOTION TO STRIKE ARGUMENTS OR FILE A REPLY BRIEF _______________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 Allstate has filed a motion asking this Court to strike two arguments it characterizes as "improper" in the Commission's opposition to its petition for interlocutory review, or alternatively, to permit Allstate to file a reply brief. Although Allstate initially asserts that the purportedly offensive arguments were not made to "the district court below," the company later makes clear that its objection is that these arguments were not made in the Commission's opposition to Allstate's motion to certify questions for interlocutory review in the district court. See Motion at 1. There is no support in the law or logic for Allstate's remarkable proposition that a court of appeals, in deciding whether to grant interlocutory appeal, may only consider the specific arguments made in the respondent's opposition to a motion to certify in the district court. Accordingly, there was nothing "improper" about the arguments made by the Commission, and Allstate's motion should be denied. Specifically, Allstate asserts that the Commission should not be allowed to argue in opposition to the company's petition that (1) the Supreme Court's decision in Robinson v. Shell Oil, 519 U.S. 337, 346 (1997), shows that there is not substantial ground for disagreement with the district court's holding that Allstate's treatment of its former employees can support a claim under § 4(a)(2) of the ADEA; and that (2) the questions certified by the district court are not "pure" questions of law. Allstate does not, and cannot, argue the district court did not have the opportunity to consider the Commission's position regarding Robinson v. Shell Oil. In its July 2006 consolidated memorandum in respect to the parties' cross motions for partial summary judgment, the Commission pointed out that Allstate's argument that § 4(a)(2) applies only to employees is wrong under Robinson, which held that the term "employee" includes former employees. See EEOC Br. at 3 "([T]he conclusion is inescapable that the meaning of ‘employee' within Section 4(a)(2) of the ADEA also includes former employees."). Allstate responded that Robinson's holding applies only to retaliation actions and "[t]here are no allegations of retaliation in this case." See Def.'s reply memorandum in support of motion for summary judgment at 4. The district court ruled on the parties' summary judgment submissions on October 19, 2006. On December 5, 2006, less than two months later, the Commission submitted its opposition to the defendant's motion to certify the case for interlocutory appeal. In that opposition, the Commission noted that Allstate's arguments regarding whether substantial grounds for disagreement exist "are the same arguments advanced by it previously to the Court in opposition to Plaintiff's motion for summary judgment." The Commission stated: "There is little reason to rehash the authorities that support the Court's ruling. The issues were fully briefed and in addition the Court's own research found additional support for Plaintiff's position . . . ." EEOC's Dec. 5, 2006 Opposition at 2. According to Allstate, the Commission's decision not to repeat to the district court the arguments on the merits which had recently been fully briefed in that court forecloses us from making an otherwise relevant argument to this Court which has not been briefed on the issues. Under Allstate's approach, there are two unfortunate scenarios—either the EEOC is forced to burden the district court with arguments it has already considered, or, if it omits the argument from its opposition to certification, the court of appeals, which is required to make an independent decision about the appropriateness of interlocutory review, must determine whether to grant the petition without the benefit of a relevant argument, which was made in the district court. This makes no sense. Logically anything the Commission argued on the merits to the district court as to why our position was correct informs the question of whether there is a substantial difference of opinion as to the correctness of the district court's ruling. Allstate also objects to the argument in the Commission's opposition in this Court that the questions certified are inextricably linked to the unusual facts of this case where a policy relating to the hiring of former employees was adopted in conjunction with a program that terminated the employment of those same employees. For this reason, we argued, the case does not present the kind of "pure" question of law that courts have identified as appropriate for interlocutory review. We pointed out that the district court's rulings are narrow, fact-driven, and much more limited than Allstate's characterization. We emphasized that this Court will have to delve into the record to assess the correctness of the district court's rulings—a point that goes to this Court's discretion to grant an interlocutory appeal. Although it is true that this precise argument was not made to the district court in opposing interlocutory review or previously couched in terms of § 1292(b)'s requirements, it was not improper for the Commission to offer this argument to this Court in its opposition. The Commission's argument was a natural response to Allstate's mischaracterization of the district court's order as a broad legal ruling applicable to all "rehiring cases." In assisting this Court in its decision whether to exercise its jurisdiction, it was important for the Commission to put the district court's decision in the proper context. That the questions certified do not amount to "pure" legal questions is a logical ancillary to this important point. We are well aware that arguments an appellant failed to present to the district court may not be advanced for the first time on appeal. But the Commission is not an appellant seeking reversal of a district court's order on the merits of a case based on a new issue not raised in the district court. Nor is this Court reviewing the merits of the district court's decision for legal error. Instead, this Court will be exercising its broad independent discretion in deciding whether this case is appropriate for appellate review at this time, prior to the entry of a final order, and assessing whether its docket can accommodate an interlocutory appeal. "The discretion of the court of appeals is so broad that it is difficult to imagine any controlling limit . . . ." Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3929 at 378; see also Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990) ("The legislative history of section 1292(b) clearly shows that this discretion encompasses denial of a properly certified appeal . . . for any reason, including docket congestion."). The ultimate question is whether this Court wishes to exercise its discretion to review this case now. Even if the Commission had conceded that all the requirements of § 1292(b) were met, this Court would not be compelled to review the case at this time. "The statutory criteria that guide the district court decision to enter an order authorizing § 1292(b) appeal do not directly apply to the court of appeals. The statute simply provides that the court of appeals ‘may . . ., in its discretion, permit an appeal to be taken.'" Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3929 at 378. If there is a meritorious argument for why interlocutory appeal is not appropriate at this time, there is no reason that this Court should ignore it. Allstate's request that this Court should strike a relevant argument in opposition to interlocutory appeal should therefore be rejected. For the same reasons, Allstate should not be permitted to file a reply brief to address the Commission's arguments. Although the company feigns surprise, it should have been entirely foreseeable that the Commission would reply to the arguments in Allstate's petition by reiterating relevant points that were made in the district court, albeit not in the response to the company's motion to certify. That Allstate did not anticipate these arguments, or chose not to spend its limited pages addressing them in the petition, does not justify a deviation from the normal rules that do not provide for a reply to an opposition to a petition for interlocutory review. See F.R.A.P. 5(b). Allstate's attempt to file a reply brief under the guise of "fundamental fairness" is simply a ploy to submit eight additional pages of argument and to have the last word on issues it has already addressed or had the opportunity to address. This is made obvious on pages 8-9 of its proposed reply. There Allstate attacks the district court's finding that the statistical methods used by the Commission were appropriate in this case and addresses this Court's decision in Leftwich v. Harris-Stowe State College, 702 F.2d 686 (8th Cir. 1993). This was a case the Commission relied upon in its opposition to interlocutory review in the district court, as well as in the summary judgment briefs. Even under Allstate's cramped view of the proper scope of a respondent's opposition to a petition for interlocutory appeal, this was an appropriate argument. Nonetheless, Allstate has submitted a response to this argument without even attempting to provide a justification. This Court should deny Allstate's blatant effort to avoid the rules applicable to all litigants and deny the company's motion in its entirety. CONCLUSION For the foregoing reasons, the defendant's motion to strike the Commission's arguments or file a reply brief should be denied. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I hereby certify that on March 2, 2007, I served one copy of the foregoing opposition via facsimile to the following counsel of record: Richard C. Godfrey, P.C. Sallie G. Smylie, P.C. Donna M. Welch KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, IL 60601 Stephen H. Rovak Michael M. Godsy SONNENSCHEIN NATH & ROSENTHAL LLP One Metropolitan Square, Suite 3000 St. Louis, MO 63102 Donald R. Livingston Nathan J. Oleson AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507