_____________________________________________ No. 10-11014 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. BUFFALO ROCK CORP., Respondent-Appellee. ____________________________________________________________ On Appeal from the United States District Court for the Northern District of Alabama ___________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________________ P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 CERTIFICATE OF INTERESTED PERSONS Barkley, Justin A., attorney for Buffalo Rock Bean, Julie, attorney for EEOC Blackwood, Vincent J., attorney for EEOC Buffalo Rock Company, respondent-appellee Coleman, David, charging party Crook, Debra Hawes, attorney for EEOC Davis, Lorraine C., attorney for EEOC Dudley, Malcolm, charging party Edwards, Frankie, charging party Equal Employment Opportunity Commission, petitioner-appellant Harris, James S., charging party Henderson, Mardagus, charging party Johnson, Inge P., United States District Judge Knott, Kevin B., charging party Kopka, Ylda M., attorney for EEOC Lee, James L., attorney for EEOC Leonard, Marvin, charging party Mack, Devon, charging party Ramshaw, Paul D., attorney for EEOC Reams, Gwendolyn Young, attorney for EEOC Sheffield, John W., attorney for Buffalo Rock Smith, C. Emanuel, attorney for EEOC Thompson, Eric, charging party I hereby certify that this list names each person and entity that, as far as the EEOC knows, has an interest in this case and appeal. s/ Paul D. Ramshaw Paul D. Ramshaw May 17, 2010 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission respectfully requests that the Court hear oral argument in this case. This appeal presents several unusual issues and the Commission believes that oral argument would assist the Court in understanding the implications of the fact that the district court's protective order is directed not at a private party during pre-trial discovery, but at a government agency that is authorized to conduct investigations like this one largely independent of judicial supervision. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv TABLE OF RECORD REFERENCES IN THE BRIEF. . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 District Court Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 I. THE DISTRICT COURT ABUSED ITS DISCRETION BY ENTERING A PROTECTIVE ORDER IN THIS SUBPOENA ENFORCEMENT PROCEEDING BECAUSE THE COURT IDENTIFIED NO JUSTIFICATION FOR IMPOSING JUDICIAL OVERSIGHT ON TOP OF THE CONFIDENTIALITY PROVISIONS CONTAINED IN TITLE VII, THE EEOC'S PROCEDURES AND OTHER FEDERAL STATUTES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 II. THE DISTRICT COURT COMPOUNDED ITS ERROR BY INCLUDING PROVISIONS THAT VIOLATE PRECEDENT AND EXCEED THE COURT'S AUTHORITY. . . . . . . . . . . . . . . . 20 A. The District Court Erred by Barring the EEOC from Disclosing Investigative Information to the Charging Parties During the Agency's Investigation. . . . . . . . . 20 B. The District Court Erred by Giving Buffalo Rock Unilateral Authority To Designate Documents as Confidential. . . . . . . . . . . . . . . . . . . . . . . . . . 22 C. The District Court Erred by Exercising Authority over Documents Not Responsive to This Subpoena. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 D. The District Court Abused Its Discretion by Entering an Order with No Termination Provision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF CITATIONS FEDERAL CASES AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001). . . . . . . . . . . . . . . . . . . . 17 * In re Alexander Grant & Co. Litigation, 820 F.2d 352 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 24 Alley v. HHS, 590 F.3d 1195 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . 19 Bell Atlantic Cash Balance Plan v. EEOC, No. 97-2382, 1999 WL 485679 (4th Cir. July 12, 1999). . . . . . . . . . . . . . . . . . 16-17 Borg-Warner Protective Services Corp. v. EEOC, 81 F. Supp. 2d 20 (D.D.C. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Chrysler International Corp. v. Chemaly, 280 F.3d 1358 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). . . . . . . . . . . . . 24 Circuit City Stores, Inc. v. EEOC, 75 F. Supp. 2d 491 (E.D. Va. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Citizens First National Bank v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 24 EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601 (S.D. Ind. 2001). . . . . . . . . . 14 * EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S. Ct. 817 (1981). . . . . . . . . . . . . . . . . . . . 20-22 EEOC v. C & P Telegraph Co., 813 F. Supp. 874 (D.D.C. 1993). . . . . . . . . . . . . . 14 EEOC v. Dillon Cos., 310 F.3d 1271 (10th Cir. 2002). . . . . . . . . . . . . . . . 11-12 EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009). . . . . . . . . . . . . . 19 EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . . . 16 * EEOC v. Kloster Cruise Ltd., 939 F.2d 920 (11th Cir. 1991). . . . . . 12, 18, 26 EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146 (S.D.N.Y. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 EEOC v. Shell Oil Co., 466 U.S. 54, 104 S. Ct. 1621 (1984). . . . . . . . . . . . 12, 18 EEOC v. Tire Kingdom, Inc., 80 F.3d 449 (11th Cir. 1996). . . . . . . . . . . . . . 19, 25 EEOC v. United Parcel Service, Inc., 587 F.3d 136 (2d Cir. 2009). . . . . . . . . . . . 19 EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593 (7th Cir. 2009). . . . . . . . . . . . 19 * FCC v. Schreiber, 381 U.S. 279, 85 S. Ct. 1459 (1965). . . . . . . . . . . .23, 27 * FTC v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977). . . . . . . . . . . . . 23, 27 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . . . . . . . 17 Green v. Jefferson County Commission, 563 F.3d 1243 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . .9 Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003). . . . . . . . . . . . . .9 McCarthy v. Barnett Bank, 876 F.2d 89 (11th Cir. 1989). . . . . . . . . . . . . . . . . 9 Mississippi Chemical Corp. v. EEOC, 786 F.2d 1013 (11th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . 16, 26 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . .17 U.S. v. Barrett, 837 F.2d 1341 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . 27 University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S. Ct. 577 (1990). . . . . . . . . . . . . . . . . . . . 12, 18 Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . 26 FEDERAL STATUTES AND REGULATIONS 5 U.S.C. § 552(a)(3)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 26 U.S.C. § 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12, 19 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 17 42 U.S.C. § 2000e-8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19 29 C.F.R. § 1601.22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 29 C.F.R. § 1610.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 MISCELLANEOUS I EEOC Compliance Manual § 83. . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14-16 TABLE of RECORD REFERENCES in the BRIEF Brief Page # Docket # 1-2, 6-8, 13 20, 23, 25 Order enforcing subpoena and entering protective order. . . . . . . . . 7 1-2 EEOC motion for reconsideration. . . . . . . . . . . . . . . . . . . . . . . . 9 1-2, 8-9, 13 Order denying reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . 13 1-2 Notice of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 2, 4 EEOC application for order to show cause. . . . . . . . . . . . . . . . . . . . 1 2, 5 Buffalo Rock motion for protective order . . . . . . . . . . . . . . . . . . . .5 2, 4 EEOC decl., att. 2: Charges of discrimination. . . . . . . . . . . . . . . . 3-2 3 Buffalo Rock motion, exh. B: Summary of documents produced and timeline. . . . . . . . . . . . . . . . . . 5-2 3-4 EEOC decl., att. 4: EEOC 5/20/09 request for information. . . . . . . . . . . . . . . . . . . . 3-4 3 EEOC decl., att. 5: EEOC investigator 6/23/09 email to Buffalo Rock . . . . . . . . . . . . . . 3-5 3 EEOC decl., att. 6: EEOC investigator 6/30/09 letter to Buffalo Rock . . . . . . . . . . . . . . 3-6 3-4 EEOC decl., att. 7: Resp. 7/14/09 letter to EEOC. . . . . . . . . . . . . . . 3-7 3-4 EEOC decl., att. 7: Tables of compensation information. . . . . . . . . . . . . . . . Sealed exhibit 4 EEOC decl., att. 8: EEOC 7/30/09 subpoena. . . . . . . . . . . . . . . . . . 3-8 4 EEOC decl., att. 9: 7/30/09 certified-mail receipt. . . . . . . . . . . . . . 3-9 4 EEOC declaration of district director. . . . . . . . . . . . . . . . . . . . 3-1 5 Order to show cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5-6 EEOC motion, exh. A: Sheffield 12/7/09 email. . . . . . . . . . . . . . . . 10-1 6, 8 EEOC brief for motion for reconsideration. . . . . . . . . . . . . . . . . . 10 6 EEOC opposition to protective order . . . . . . . . . . . . . . . . . . . . . . 6 6 Transcript of 12/8/09 hearing. . . . . . . . . . . . . . . . . . . . . . . . 18 6 Buffalo Rock motion, exh. A: Draft protective order . . . . . . . . . . . . . 5-1 8, 14-16 EEOC motion for reconsideration, exh. B: I EEOC Compliance Manual § 83. . . . . . . . . . . . . . . . . . . . . . . . 10-2 19 Buffalo Rock opposition to reconsideration. . . . . . . . . . . . . . . . . . 12 STATEMENT OF JURISDICTION The district court had subject matter jurisdiction over this subpoena enforcement proceeding under 28 U.S.C. §§ 1331 (federal question), 1343(a)(4) (civil rights action), and 1345 (federal agency as petitioner). This Court has appellate jurisdiction under 28 U.S.C. § 1291 because the decision being appealed resolved all claims as to all parties. The appeal is timely under the 60-day provision in Federal Rule of Appellate Procedure 4(a)(1)(B): the district court entered an order on December 8, 2009, resolving the EEOC's petition to enforce its subpoena (R-7); the Commission filed a timely motion to reconsider on December 18 (R-9); the district court denied that motion on January 5, 2010 (R-13); and the EEOC filed a notice of appeal on February 26 (R-14). STATEMENT OF THE ISSUES 1. Whether the district court abused its discretion in concluding that a protective order was warranted in this subpoena enforcement proceeding. 2. Whether the protective order entered by the court unreasonably interferes with the Commission's statutory authority to conduct an administrative investigation of a charge of race discrimination in employment. STATEMENT OF THE CASE Course of Proceedings This is an appeal from an order of the U.S. District Court for the Northern District of Alabama (Johnson, J.) enforcing an administrative subpoena issued by the Equal Employment Opportunity Commission, but imposing a protective order. The Commission filed a petition seeking enforcement of its administrative subpoena on November 19, 2009 (R-1). The respondent did not oppose the petition on the merits, but moved for a protective order (R-5). On December 8, the district court entered an order enforcing the subpoena and imposing a protective order (R-7). The Commission filed a motion for reconsideration of the terms of the protective order on December 18 (R-9). On January 4, 2010, the district court denied reconsideration (R-13); the Commission filed a notice of appeal on February 26 (R-14). Statement of Facts Buffalo Rock delivers beverages to retail stores in the Birmingham area and employs salespeople and delivery-truck drivers. R-3-2 at 1, 14. In April 2006 nine African-American drivers filed charges with the EEOC alleging that Buffalo Rock was discriminating against them on the basis of race, principally by assigning them less profitable and more dangerous routes than it assigned to white drivers, and by rejecting their applications to transfer into sales positions. R-3-2. Starting in July 2006, the EEOC issued a number of requests for information ("RFIs"). R-5-2 at 2- 3. The RFI that led to this subpoena was issued on May 20, 2009, and requested production by June 12. R-3-4. It sought detailed route-assignment and compensation information for each of the company's Birmingham drivers for each of three years. Id. at 1-2. The compensation information was to be broken down into base pay, commissions and bonuses, with an explanation of how the commission and bonus amounts were calculated. Id. The RFI also sought summary employment history data for each driver. Id. When Buffalo Rock failed to produce any responsive information even after the extension that the company had requested expired, R-3-5, the EEOC, on June 30, renewed its request for the information, with a production deadline of July 10. R-3-6. On July 14 Buffalo Rock submitted a response objecting to the EEOC's RFI as vague, ambiguous, and burdensome and as seeking information "that is confidential to Buffalo Rock and third party employees." R-3-7 at 1. Buffalo Rock also asserted that it had already produced some of the requested data; that bonuses were determined and paid by the companies that produced the beverages, not by Buffalo Rock; and that the company has no record or recollection of how the drivers' commissions were calculated during the relevant period. Id. at 1-2. "In a spirit of compromise," Buffalo Rock provided some summary compensation information in the form of three tables, one for each year. Sealed Exhibit. Each table listed all the Birmingham drivers who worked for that whole year, and for each driver gave a single figure representing his total gross pay for the year, without stating the base pay, commissions and bonuses separately, as the EEOC had requested. Id. Buffalo Rock stated that it considered the information in these tables confidential commercial and financial information, and that the information should therefore not be released to charging parties until after a right- to-sue notice had been issued and a non-disclosure agreement obtained, and should not be released to third parties under FOIA without giving the company an opportunity to object and seek judicial relief. R-3-7 at 2. After determining that these three compensation tables failed in significant ways to provide the information that had been requested, the EEOC issued a subpoena for that information on July 30, with a return date of August 11. R-3-8 at 1. The Commission served the subpoena by certified mail addressed to Buffalo Rock's president at the company's business address. R-3-9. Buffalo Rock neither petitioned for modification or revocation nor complied with the subpoena, R-3-1 at 4, and the EEOC accordingly filed this subpoena enforcement action on November 19, 2009. R-1. The Commission attached as exhibits the relevant charges, the May 2009 request for information, and Buffalo Rock's July 14 response, including the three tables of compensation information. R-3-2, R-3-4, R-3-7, & Sealed Exhibit. On November 30 the district court ordered Buffalo Rock to show cause why the subpoena should not be enforced, R-4, and on December 4, a Friday, Buffalo Rock filed a motion asking the court to seal the compensation tables and enter a broad protective order. R-5. The company did not argue that the information sought in the subpoena is irrelevant or burdensome. It alleged that the subpoena delivered to the company's offices did not come to the attention of the appropriate people, that the district office did not send counsel a copy, and that as a result neither counsel nor the company knew about the subpoena until counsel learned that this subpoena enforcement action had been filed. Id. at 2-3. The company also protested the EEOC's decision to file the three tables of allegedly confidential compensation information with the court as an unsealed exhibit. Id. at 3-4. On Monday morning, December 7, Buffalo Rock informed the EEOC by e- mail that it would comply with the subpoena by the end of the month, and requested the EEOC's position with respect to the company's proposed protective order. R-10-1. About 30 minutes later, counsel for Buffalo Rock telephoned EEOC counsel and said that the district court had just telephoned him, asked him whether the company would comply with the subpoena if the court granted a protective order, and, when counsel answered yes, instructed him to contact the EEOC and try to reach agreement on a protective order. R-10 at 7-8. If the parties could not reach agreement, the court said, they should call the court that afternoon. Id. at 8. Later that afternoon, after the parties had failed to agree on a protective order, they held a teleconference with the court that was not recorded. R-10 at 8. The court heard the EEOC's objections to the proposed order and said it would announce its decision at a hearing the following morning. Id. Later that day the EEOC filed a written response to the company's motion for a protective order. R- 6. The Commission consented to sealing the tables, id. at 6, but opposed the broad protective order that Buffalo Rock had proposed. The EEOC maintained that existing laws and regulations already ensure that any information Buffalo Rock provides will be treated with the appropriate degree of confidentiality, and that a protective order was therefore unnecessary and inappropriate. Id. at 4-5. District Court Orders On December 8, after a brief hearing, R-18, the district court issued an order enforcing the EEOC's subpoena. The court, noting that Buffalo Rock had agreed to comply with the subpoena as long as an adequate protective order were entered, entered the protective order that the company had proposed.<1> R-7 at 1-2. The order states that good cause was shown for entering the protective order, but does not explain what that good cause was. Id. at 2. The order authorizes Buffalo Rock to designate-even retroactively-any document it gives or has given to the EEOC as "Confidential Information," as long as the company unilaterally deems it to contain "trade secrets, confidential information or employment records." R-7 at 2. "Any disagreement over such designation," the order states, "shall be resolved by application to the court." Id. The order prohibits the EEOC from disclosing any information so labeled to the charging parties. Id. at 2-3. The order allows the EEOC to divulge such information only to: "attorneys representing the parties," their assistants, and their experts; the court or court personnel; "the person who is the subject of the information"; and "any other person as to whom Buffalo Rock agrees in writing, or as to whom a court order has been obtained." Id. But disclosure even to those persons is conditioned on their first reading the protective order and agreeing to be bound by it. Id. at 3. Those persons are in turn prohibited from divulging any "Confidential Information . . . to any other entity or person without prior approval of the court or agreement of counsel for Buffalo Rock." Id. If the EEOC believes it is necessary to disclose "Confidential Information" to any person not authorized by the order to receive it, the agency must first obtain the company's consent or, failing that, a court order. Id. at 4. Any "Confidential Information" filed with the court must be filed under seal. Id. at 3-4. Finally, the order "shall . . . continue to be binding after the conclusion of the EEOC's investigation," and contains no provision for its termination. Id. at 4. On December 18, the EEOC filed a motion for reconsideration. The motion argued that protective orders are granted in subpoena enforcement proceedings only in rare circumstances not present here and that Buffalo Rock had failed to establish good cause for this order. R-10 at 10-23. Attached to the motion was an excerpt from the EEOC Compliance Manual providing that when responding to disclosure requests even from charging parties or their attorneys, the EEOC first "sanitizes" the files by removing, among other things, any "information previously and in good faith identified by the submitter as trade secrets or confidential commercial information barred from disclosure by the Trade Secrets Act" and any information (even if not so designated) with respect to which the agency "reasonably believes" that its disclosure would "cause substantial competitive harm to the submitter." R-10-2 at 1-2, I EEOC Compliance Manual § 83.4(e). On January 5 the district court entered an order denying reconsideration. R-13. The court reviewed briefly the principal cases the EEOC cited and determined that some of them are irrelevant, none of them hold it is improper for the court to grant a protective order, and some of them hold it is in fact proper to do so under appropriate circumstances. Id. at 2-4. The court stated that it granted the protective order in large part because the Commission had demonstrated "flagrant disregard" for the confidentiality of the compensation information in the three tables. Id. at 4-5. STANDARD OF REVIEW "The entry of a protective order is subject to review for abuse of discretion." Chrysler Int'l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002); McCarthy v. Barnett Bank, 876 F.2d 89, 91 (11th Cir. 1989) (same). "Underlying questions of law, however, are reviewed de novo," Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003), and "[a]n error of law constitutes an abuse of discretion." Green v. Jefferson County Comm'n, 563 F.3d 1243, 1248 (11th Cir. 2009). SUMMARY OF ARGUMENT There are several reasons why district courts enforcing EEOC subpoenas rarely impose protective orders and why the district court here abused its discretion by doing so. Title VII directs the Commission to investigate charges filed with the agency, and these investigations are not subject to judicial supervision. Normally, the only time a court becomes involved with an EEOC investigation is when the agency asks a court to enforce an agency subpoena with which the respondent has failed to comply. The court's role in a subpoena enforcement proceeding is sharply limited to determining whether, and to what extent, the subpoena should be enforced. Protective orders are superfluous in most subpoena enforcement settings because Title VII and case law already dictate the confidentiality rules that the EEOC must follow with respect to all the materials it receives during its investigations. Title VII forbids the EEOC from disclosing materials in its investigative files to third parties but allows the agency to disclose information in those files to the charging party and to witnesses to further its investigation and its attempt to settle the dispute. Subpoena enforcement proceedings constitute a limited exception to this confidentiality regime because they are public judicial proceedings in which the EEOC is required to file with the court the documents relevant to the court's decision, including documents that the agency is ordinarily forbidden to make public, like the charge. The EEOC attached the three compensation tables with the district court because the agency believed they were relevant to the court's decision. If it was improper to file them unsealed, the remedy was to seal them, and the EEOC promptly consented to Buffalo Rock's request that the district court do that. Filing the tables, however, did not justify imposing a broad protective order. The district court compounded its error by imposing an order with provisions that threaten to interfere with the EEOC's conduct of its administrative investigation. The order improperly prohibits the EEOC from disclosing any of the information to the charging parties, exercises authority over portions of the investigation irrelevant to this proceeding, gives Buffalo Rock unilateral authority to designate what material will be given special confidential treatment, and contains no termination point. ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION BY ENTERING A PROTECTIVE ORDER IN THIS SUBPOENA ENFORCEMENT PROCEEDING BECAUSE THE COURT IDENTIFIED NO JUSTIFICATION FOR IMPOSING JUDICIAL OVERSIGHT ON TOP OF THE CONFIDENTIALITY PROVISIONS CONTAINED IN TITLE VII, THE EEOC'S PROCEDURES AND OTHER FEDERAL STATUTES. Section 706(b) of Title VII requires the EEOC to investigate charges filed with the agency. 42 U.S.C. § 2000e-5(b) ("[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved, . . . the Commission . . . shall make an investigation thereof"). To assist the EEOC in carrying out this responsibility, § 710 of Title VII authorizes the agency to issue administrative subpoenas in support of its investigations. 42 U.S.C. § 2000e-9 (authorizing the EEOC to use the powers and procedures set forth in the NLRA at 29 U.S.C. § 161). Where a respondent fails to comply with an EEOC subpoena, Title VII authorizes the agency to seek judicial enforcement of its subpoenas in district court. Id.; EEOC v. Dillon Cos., 310 F.3d 1271, 1274 (10th Cir. 2002) (Title VII, by incorporating 26 U.S.C. § 161, authorizes EEOC to "issue administrative subpoenas and to request judicial enforcement of those subpoenas"). The district court's role in a subpoena enforcement proceeding is "sharply limited." EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 922 (11th Cir. 1991) (so holding). A subpoena enforcement proceeding does not give the district court supervisory jurisdiction over the Commission's investigation; rather, the court's role is limited to determining whether, and to what extent, a particular subpoena should be enforced. University of Penn. v. EEOC, 493 U.S. 182, 191, 110 S. Ct. 577, 583 (1990) ("when a court is asked to enforce a Commission subpoena, its responsibility is [principally] to 'satisfy itself that the charge is valid and that the material requested is "relevant" to the charge . . .'") (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 72 n.26, 104 S. Ct. 1621, 1632 n.26 (1984)); Kloster Cruise, 939 F.2d at 922 ("inquiry is appropriate only into whether the evidence sought [in the subpoena] is material and relevant to a lawful purpose of the agency"). Here, the district court ignored its limited role and imposed a sweeping order overriding the statutory and regulatory provisions applicable to the EEOC's administrative proceedings on the charges of discrimination filed against Buffalo Rock. This was an abuse of discretion, first because there was no justification for the court to enter a protective order at all. Furthermore, as we explain in the second section of this brief, the court compounded its error by entering an order that has the potential to interfere with the EEOC's ability to carry out its administrative responsibilities with respect to these charges. Before issuing a protective order, a district court must find that the party requesting the order has shown good cause for it. See In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11th Cir. 1987) (before entering protective order, district court must find good cause and balance competing interests). In its initial decision imposing the order, the district court stated that good cause had been shown, but it did not explain what that good cause was. R-7 at 2; see Alexander Grant, 820 F.2d at 355 ("A district court must articulate its reasons for granting a protective order sufficient for appellate review."). The court's decision denying reconsideration implied that the good cause for its protective order was the "flagrant disregard" for the confidentiality of the tables displayed by the EEOC in attaching them unsealed to its moving papers. R-13 at 4-5. But if it was a problem to have the tables filed unsealed, the remedy was to seal them, and the Commission promptly consented to Buffalo Rock's request that they be sealed. Filing the tables unsealed did not justify imposing a broad protective order. Courts enforcing EEOC subpoenas normally do not impose protective orders. See EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146, 156 (S.D.N.Y. 2000) ("disclosure [to the charging party] should be the norm and [protective] orders will be appropriate only in unusual circumstances"); EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601, 608 (S.D. Ind. 2001) (quoting Morgan Stanley with approval). Courts impose protective orders only in unusual circumstances, such as when the documents being subpoenaed have substantial economic value and would lose that value if the documents were disclosed to the charging parties. See, e.g., Aon Consulting, 149 F. Supp. 2d at 604-09 (imposing protective order with respect to confidential employment test); EEOC v. C & P Tel. Co., 813 F. Supp. 874, 876-77 (D.D.C. 1993) (same). The reason that courts normally do not impose protective orders is that they are unnecessary: Title VII already imposes a strict regime of confidentiality with respect to the materials that the EEOC gathers during its investigations. §§ 706(b) & 709(e) of Title VII, 42 U.S.C. §§ 2000e-5(b) & 2000e-8(e). The act forbids Commission employees from making charges public and from making public materials that the agency acquires during its investigations. Id. Both prohibitions are enforced by a threat of fine and/or imprisonment. Id. When someone asks to see the contents of an investigative file, the detailed policies and procedures that the EEOC follows in order to implement the general statutory prohibition against making investigative materials public are found in § 83 of Volume I of the EEOC Compliance Manual and the agency's FOIA regulations. 29 C.F.R. § 1601.22 (general confidentiality regulation); R-10-2 (I EEOC Compliance Manual § 83); 29 C.F.R. part 1610 (agency's FOIA regulations). Neither § 83 nor the Commission's FOIA regulations permit disclosure of an investigative file-at any time-to a person or entity that is not a party to the investigation. R-10-2 at 1-2, § 83.3; 29 C.F.R. § 1610.17(b)-(d). For example, if the EEOC is investigating a charge filed by John Brown against the Smith Company, the agency would deny a request for disclosure filed by anyone other than Brown or the Smith Company. Accordingly, requests submitted by the following types of third parties would be denied: Brown's co-workers, the Smith Company's competitors, a member of the general public, or a member of the media. The only times that the EEOC grants a request to access a charge file is when the request is submitted by a party to the investigation: i.e., the charging party or the respondent, or someone acting on the charging party's or respondent's behalf. R-10-2 at 1-2, § 83.3; 29 C.F.R. § 1610.17(d). And even then, disclosure is subject to time restrictions and content exemptions. Disclosure is granted only after the Commission has completed its investigation and in addition only when certain conditions are met. Id. at 2, § 83.3(a) (disclosure granted to charging party only if charging party has an unexpired right-to-sue notice or a pending lawsuit); id., § 83.3(b) (disclosure granted to respondent only if it is defendant in pending lawsuit). Finally, even when these conditions are satisfied, the investigative file is sanitized before being disclosed by removing various categories of information. R-10-2 at 1-4, §§ 83.3-83.4. Among the information not disclosed is any information "previously and in good faith identified by the submitter as trade secrets or confidential commercial information barred from disclosure by the Trade Secrets Act," as well as any information that, even if not so identified by the submitter, "is of such a nature that the EEOC office reasonably believes that disclosure of that information would cause substantial competitive harm to the submitter." Id. at 3, § 83.4(e). The other salient characteristic of EEOC investigations is that they are not, in the normal course, subject to judicial supervision. Business entities being investigated by the Commission have frequently filed lawsuits against the agency asking the court to restrict the agency's investigative activities or review its determinations, and the courts have almost uniformly dismissed such lawsuits on various grounds and found no basis in Title VII for the courts to exercise judicial supervision over the Commission's investigatory activities. See, e.g., Mississippi Chem. Corp. v. EEOC, 786 F.2d 1013, 1015-19 (11th Cir. 1986) (employer's attempt to derail EEOC investigation by challenging validity of charge properly dismissed as not ripe); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984) ("the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency"); Bell Atl. Cash Balance Plan v. EEOC, No. 97-2382, 1999 WL 485679, *4 (4th Cir. July 12, 1999) (employer being investigated "has no general right to judicial review of the EEOC's decision to investigate the discrimination charges"); cf. Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002) (action brought by charging party) ("'Title VII . . . confers no right of action against the enforcement agency'" (quoting Gibson v. Missouri Pac. R.R., 579 F.2d 890, 891 (5th Cir. 1978))).<2> A subpoena enforcement proceeding is a limited exception to the confidentiality regime governing EEOC investigations and to the rule of judicial non-involvement. In a subpoena enforcement proceeding, the EEOC must provide the district court the documents that are relevant to the decision that the court must make, including documents that the agency is normally not permitted to make public. For example, Title VII bars the EEOC from making charges public, 42 U.S.C. § 2000e-5(b), and the confidentiality regime governing EEOC investigations normally prohibits the agency from disclosing publicly the name of a company being investigated. But no court has ever questioned the propriety of the EEOC's naming the company being investigated as a party to the subpoena enforcement proceeding and filing with the court copies of the charge and the subpoena. This is because the court must satisfy itself that the charge is facially valid. See EEOC v. Shell Oil Co., 466 U.S. 54, 65, 104 S. Ct. 1621, 1629 (1984) ("the existence of a charge that meets the requirements set forth in §706(b) [of Title VII] . . . is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC"); University of Penn., 493 U.S. at 191, 110 S. Ct. at 583 ("when a court is asked to enforce a Commission subpoena, its responsibility is to 'satisfy itself that the charge is valid and that the material requested is relevant to the charge . . .'" (quoting Shell Oil, 466 U.S. at 72 n.26, 104 S. Ct. at 1632 n.26)). The court must also examine the subpoena to determine whether it is sufficiently precise and whether the information it seeks is reasonably relevant to the charge. Kloster Cruise, 939 F.2d at 922. In addition, when the employer has already provided the EEOC some information relevant to the subpoena, the EEOC usually attaches to its petition, as it did here, copies of its initial request for information and of the employer's response-to address or foreclose any argument the employer might make that it has already provided the information that the agency seeks. The EEOC could have sought to file the tables under seal, filed redacted tables, or given the court merely a verbal description of the tables, but each of these options threatened to add one or more extra steps to what is supposed to be a summary proceeding. The EEOC would have to seek the district court's permission to file the documents under seal. N.D. Ala. Rule III.A. And if the EEOC provided redacted tables or only a description of the tables, it may well have had to respond later to arguments by the company that its redactions were insufficient or its description inaccurate.<3> In sum, the EEOC's decision here to file the tables-based on the agency's assessment that the tables were relevant to the district court's resolution of the pending proceeding-did not justify an assumption that the EEOC would violate the confidentiality rules governing the investigation once the subpoena enforcement proceeding was resolved. And absent some basis for believing that the EEOC would violate those rules, and absent evidence that disclosing the information would cause Buffalo Rock substantial economic harm, it was an abuse of discretion for the district court to enter a protective order. II. THE DISTRICT COURT COMPOUNDED ITS ERROR BY INCLUDING PROVISIONS THAT VIOLATE PRECEDENT AND EXCEED THE COURT'S AUTHORITY. A. The District Court Erred by Barring the EEOC from Disclosing Investigative Information to the Charging Parties During the Agency's Investigation. The district court's protective order bars the EEOC from disclosing to the charging parties any information that Buffalo Rock designates confidential, unless the agency first obtains the company's consent or a court order. R-7 at 2-3 (allowing disclosure to "attorneys representing the parties," but not the parties themselves). The Supreme Court has rejected this precise prohibition. Just as Buffalo Rock has done here, the employer in EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 101 S. Ct. 817 (1981), refused to provide the EEOC with the information it subpoenaed unless the agency first agreed to-or the district court first imposed-a protective order barring the EEOC from sharing the information with the charging parties. Id. at 593-94, 101 S. Ct. at 820. The district court granted the protective order and the court of appeals affirmed, but the Supreme Court reversed. The employer argued that sharing the information with the charging parties violated Title VII's prohibition against making the information public. The Supreme Court held that a charging party is not a member of "the public" with respect to the EEOC's investigation of the charge he filed. Id. at 598- 600, 101 S. Ct. at 822-23. Far from violating Title VII, the Court held, the EEOC's decision to share selected investigative materials with the charging party will often serve the act's purposes. 449 U.S. at 600-01, 101 S. Ct. at 823-24. First, sharing this information with the charging party can assist in and expedite the EEOC's investigation of the charge: [L]imited disclosure to the parties can speed the Commission's required investigation: the Commission can more readily obtain information informally . . . if it can present the parties with specific facts for them to corroborate or rebut. Id. at 600-01, 101 S. Ct. at 823. Second, disclosing this information can also facilitate settlement: [L]imited disclosure enhances the Commission's ability to carry out its statutory responsibility to resolve charges through informal conciliation and negotiation: A party is far more likely to settle when he has enough information to be able to assess the strengths and weaknesses of his opponent's case as well as his own. Id. at 601, 101 S. Ct. at 823-24. Expanding on the relationship between sharing selected investigative information with a charging party and settling disputes without resorting to litigation, the Court reasoned: [A] charging party who consents to a settlement negotiated by the Commission waives his right to file a civil action. . . . It seems unlikely that Congress would force a Title VII charging party . . . to waive his statutory right to litigate when he cannot know the essential facts obtained in the Commission's investigations. Id. at 601 n.18, 101 S. Ct. at 824 n.18. Particularly in cases alleging discrimination in compensation, like this one, the EEOC should be allowed to discuss co-workers' pay data with the charging parties, who often are the EEOC's principal witnesses to the alleged discrimination. If the figures show, for example, that the white drivers consistently received higher commissions than the black drivers, the investigator should be permitted to share these figures with the charging parties and seek their comments on the company's explanation for the differential. On the other hand, if the figures show that the black drivers consistently are paid the same as white drivers with comparable seniority, the investigator should be allowed to share those facts with the charging parties as well. B. The District Court Erred by Giving Buffalo Rock Unilateral Authority To Designate Documents as Confidential. The protective order grants Buffalo Rock the unilateral authority to designate documents it produces as confidential and bars the EEOC from disclosing information in those documents to the charging parties or witnesses without returning to the district court to seek review of the respondent's designation. R-7 at 2-4. These provisions impose unnecessary and potentially burdensome restrictions on how the EEOC uses the documents that it acquires during this investigation. The EEOC should not be bound by Buffalo Rock's confidentiality designations. When a federal agency is conducting an investigation authorized by law, it is the agency, and not the court or the party producing the documents, that should make such determinations in the first instance. See, e.g., FCC v. Schreiber, 381 U.S. 279, 290-96, 85 S. Ct. 1459, 1467-70 (1965) (the FCC did not abuse its discretion in denying the witness's request for confidential treatment of the documents he produced in response to the agency's subpoena, and the district court erred in requiring the agency to treat the documents as confidential unless the agency could show good cause for an exception); FTC v. Texaco, Inc., 555 F.2d 862, 883-85 (D.C. Cir. 1977) (district court erred in imposing broad protective order with respect to documents submitted by investigated companies and in requiring FTC to seek exemptions from court); id. at 884, n.62 ("it is the agencies, not the courts, which should, in the first instance, establish the procedures for safeguarding confidentiality"). The agency should apply its own confidentiality rules to determine how confidential a document is and how the agency will preserve that confidentiality. An analogy can be made to the realm of pre-trial discovery. In pre-trial discovery, the party producing documents is not allowed to determine unilaterally which of those documents should be protected or sealed. See Alexander Grant, 820 F.2d at 356 (protective order should not be entered unless district court has first found good cause and balanced competing interests); Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) ("The determination of good cause cannot be elided by allowing the parties to seal whatever they want . . . ;" when order is "so loose that it amounts . . . to giving each party carte blanche to decide what portions of the record shall be kept secret[, s]uch an order is invalid."). Similarly, in pre-trial discovery the burden of showing the need for the protective order or the seal is on the party that wants the protection. See Alexander Grant, 820 F.2d at 356 ("The burden of proof justifying the need for the protective order remains on the movant"); Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1122 (3d Cir. 1986) ("the burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the protective order; any other conclusion would turn Rule 26(c) on its head"). During pre-trial discovery, the district court clearly has continuing jurisdiction over the lawsuit and the materials produced in discovery. If the party producing documents during pre-trial discovery should not be given unilateral authority to control the confidentiality rules, a fortiori Buffalo Rock should not be granted that type of authority in a subpoena enforcement proceeding, where the district court does not have continuing supervisory jurisdiction over the EEOC's investigation. C. The District Court Erred by Exercising Authority over Documents Not Responsive to This Subpoena. When it authorized Buffalo Rock to label documents confidential, the district court committed yet another legal error: it gave the company this authority not only with respect to documents produced in response to this subpoena, but also with respect to documents that the company has produced or will produce that are not responsive to this subpoena. R-7 at 2, 4. Buffalo Rock cited no authority for the proposition that a subpoena enforcement action gives a district court authority over materials not responsive to the subpoena at issue, and we know of none. The district court's role in a subpoena enforcement proceeding is limited to determining whether the respondent should be compelled to produce the documents that the EEOC demanded in its subpoena. A subpoena enforcement proceeding does not, however, give the district court authority to control the Commission's use, in its investigation, of everything that the respondent has ever produced or will ever produce to the EEOC during the investigation. See EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996) (district court's inquiry during subpoena enforcement proceeding is limited to "(1) whether the administrative investigation is within the agency's authority, (2) whether the agency's demand is too indefinite, and (3) whether the information sought is reasonably relevant."); Kloster Cruise, 939 F.2d at 922 ("It is well-settled that the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought [in the subpoena] is material and relevant to a lawful purpose of the agency.").<4> The overbreadth of the district court's order is confirmed by the well- established rule, noted supra, that when the EEOC is investigating a charge against an employer, the employer cannot sue the Commission seeking judicial supervision over the agency's investigation. See, e.g., Mississippi Chem., 786 F.2d at 1015- 19, and other cases cited supra at pages 16-17 and note 2.<5> Since a district court normally lacks jurisdiction to supervise the EEOC's conduct of its investigations, and a district court's role in a subpoena enforcement proceeding is limited to determining the enforceability of the subpoena, the district court here erred in exercising authority over aspects of the investigation not related to the subpoena. D. The District Court Abused Its Discretion by Entering an Order with No Termination Provision. A final problem with the protective order is that it continues in force even after the EEOC closes its investigation and even if the Commission sues Buffalo Rock alleging a substantive violation of Title VII. The resulting potential for judicial supervision and enforcement (or even duplicative judicial supervision and enforcement by this district court and the district court hearing a second proceeding) many months or even years in the future is at odds with the ancillary and summary nature of a subpoena enforcement action. Cf. U.S. v. Barrett, 837 F.2d 1341, 1349 (5th Cir. 1988) (en banc) (enforcing IRS summons) (if agency has authority to issue subpoena, enforcement action is subsidiary proceeding that "should be conducted expeditiously so that the actual investigation can be continued [and completed]"). Courts are normally supposed to allow federal agencies to conduct their investigations independently, and make their own determinations about how confidential the documents are and how that confidentiality will be protected. See, e.g., Schreiber, 381 U.S. at 290-96, 85 S. Ct. at 1467-70 (cited supra at p. 23); Texaco, 555 F.2d at 883-85 & n.62 (same); 5 U.S.C. § 552(a)(3)(A) (initial responsibility for responding to FOIA request lies with agency receiving it). Moreover, if the EEOC files another subpoena enforcement proceeding or an enforcement action alleging discrimination or retaliation, the district court presiding over that second proceeding will presumably have the primary responsibility for how the confidentiality of documents relevant to that proceeding will be protected. CONCLUSION For these reasons, the Commission respectfully asks this Court to vacate the district court's protective order as an abuse of that court's discretion. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel s/ Paul D. Ramshaw PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., NE, Room 5SW18K Washington, DC 20507 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6855 words (as counted by MS Word 2003), excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii). The brief complies with the typeface requirements of Rule 32(a)(5) because it has been prepared in a proportionally spaced typeface using Times New Roman 14-point type. s/ Paul D. Ramshaw Paul D. Ramshaw May 17, 2010 CERTIFICATE OF SERVICE I certify that one copy of this brief has been served by mailing it today first class to: John W. Sheffield Johnston Barton Proctor & Rose, LLP Colonial Brookwood Center 569 Brookwood Village, Ste. 901 Birmingham, AL 35209 s/ Paul D. Ramshaw Paul D. Ramshaw May 17, 2010 *********************************************************************** <> <1> The only significant difference between the two documents is that the district court inadvertently omitted several lines of text when copying paragraph 6, rendering the second sentence in that paragraph of the court's order unintelligible. Compare R-5-1 at 2-3 with R-7 at 4. <2> See also AT&T Co. v. EEOC, 270 F.3d 973, 974-75 (D.C. Cir. 2001) (affirming dismissal of employer's challenge for lack of final agency action); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979) ("Title VII . . . does not provide for preliminary review of the Commission's determination of reasonable cause"); Borg-Warner Protective Servs. Corp. v. EEOC, 81 F. Supp. 2d 20, 24-25 (D.D.C. 2000) (no jurisdiction over employer's challenge to EEOC's policy statement and reasonable-cause finding); Circuit City Stores, Inc. v. EEOC, 75 F. Supp. 2d 491, 504 (E.D. Va. 1999) (no waiver of sovereign immunity for employer's challenge to EEOC's investigation), aff'd mem., 232 F.3d 887 (4th Cir. 2000). <3> Buffalo Rock argued in the district court, R-12 at 7, that by attaching the tables to its petition, the EEOC violated § 709(e) of Title VII, which prohibits EEOC employees from making public information received during the agency's investigations "prior to the institution of any proceeding under this subchapter involving such information." 42 U.S.C. § 2000e-8(e). But § 709(e) bars making investigative materials public only before a proceeding has been instituted, not after, and subpoena enforcement actions are among the "proceedings" authorized by Title VII. 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161(2)). The courts of appeals routinely refer to EEOC subpoena enforcement actions as "proceedings." See, e.g., EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450 (11th Cir. 1996) (referring to "a proceeding to enforce an administrative subpoena"); EEOC v. United Parcel Serv., Inc., 587 F.3d 136, 139 (2d Cir. 2009) (same); EEOC v. Federal Express Corp., 558 F.3d 842, 848 (9th Cir. 2009) (referring to "an EEOC . . . subpoena enforcement proceeding"); EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 596 (7th Cir. 2009) (same). Buffalo Rock argued in the district court, R-12 at 7, that the term "proceeding" in § 709(e) should be construed to refer only to proceedings alleging violations of the act's anti-discrimination or anti-retaliation provisions, but the company cited no case-law authority for that proposition. In any event, Congress's use of the expansive term "any"-in the phrase "prior to the institution of any proceeding"- forecloses such a narrow construction. See, e.g., Alley v. HHS, 590 F.3d 1195, 1207 (11th Cir. 2009) ("The adjective 'any' has an expansive meaning and refers to 'every' or 'all' of the subject that it is describing. See CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir.2001) (collecting cases)."). <4> The district court's order sealing the compensation tables stands on an entirely different footing. A district court has the authority to seal exhibits that have been filed with the court in the pending proceeding. <5> Venetian Casino Resort, LLC v. EEOC, 530 F.3d 925, 934-35 (D.C. Cir. 2008), allowed an employer to challenge § 83 of Volume I of the EEOC Compliance Manual, the policy governing Commission responses to non-FOIA requests for disclosure, but only to the extent that § 83 conflicted with the agency's FOIA policy. The Commission has amended § 83 to eliminate this conflict, and Buffalo Rock is not alleging a comparable policy conflict here.