____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ No. 06-16864 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. FEDERAL EXPRESS CORP., Defendant-Petitioner. _______________________________________________________ On Appeal from the United States District Court for the Eastern District of Arizona, No. 06-0276 RCC _______________________________________________________ THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S RESPONSE TO FEDERAL EXPRESS'S PETITION FOR REHEARING EN BANC _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel Rm. 5SW20L 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4724 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT A. The panel's decision that this appeal is not moot does not warrant rehearing en banc because it is consistent with this Court's precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. The panel's decision that the subpoena should be enforced because jurisdiction was not 'plainly lacking' does not warrant rehearing en banc because the decision is correct and because the Fifth Circuit's decision to the contrary was erroneous. . . . . . . . 6 1. The panel's decision was correct and affects only a few employers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2. The conflict with the Fifth Circuit's decision in Hearst does not warrant rehearing en banc. . . . . . . . . . . . . . . . . . . . 13 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Case Anderson v. Evans, 371 F.3d 375 (9th Cir. 2004). . . . . . . . . . . . . . . . 4 EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983). . . . . . 7, 14 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987). . . . . . 9, 16 EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997). . . . . . . . . . . . . . . passim EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001). . . . . . . . . 7 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . 7 EEOC v. St. Regis Paper Co., 717 F.2d 1302 (9th Cir. 1983). . . . . . . . . . . 2 EEOC v. United Air Lines, 287 F.3d 643 (7th Cir. 2002). . . . . . . . . . . . 2 EEOC v. Waffle House, Inc., 634 U.S. 279 (2002). . . . . . . . . . . . . . 9, 10 EPA v. Alyeska Pipeline Serv., 836 F.2d 443 (9th Cir. 1988). . . . . . . . . 4 Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943). . . . . . . . . . . . 14 FDIC v. Garner, 126 F.3d 1138 (9th Cir. 1997). . . . . . . . . . . . . . . . . 4 Gen. Tel. Co. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . 9, 15 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . 8 Reich v. Montanta Sulphur & Chemical, 32 F.3d 440 (9th Cir. 1994). . . . . . 4 Statutes 42 U.S.C. § 2000e-8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17 42 U.S.C. § 2000e-5(f). . . . . . . . . . . . . . . . . . . . . . . . . . . 8 TABLE OF AUTHORITIES (con't) Regulations 29 C.F.R. § 1601.28(a)(3). . . . . . . . . . . . . . . . . . . . . . . 10, 11, 13 Rules Fed. R. App. P. 35. . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 Fed. R. App. P. 35 advisory committee's notes. . . . . . . . . . . . . . . 6, 13 9th Cir. R. 35-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14 Miscellaneous EEOC Compliance Manual § 83.4. . . . . . . . . . . . . . . . . . . . . . . . 11 EEOC Compliance Manual § 6.4. . . . . . . . . . . . . . . . . . . . . . . . 13 INTRODUCTION This is a subpoena enforcement action in which Federal Express ("FedEx") refused to comply with an EEOC subpoena on the grounds that the EEOC lacked the authority to continue its investigation because the charging party, Tyrone Merritt, had been issued a right-to-sue notice and had joined a private lawsuit ("Satchell lawsuit") based on his charge. The district court enforced the subpoena, and FedEx appealed. After briefing, FedEx argued that the appeal had been rendered moot by FedEx's compliance with a subpoena issued pursuant to a separate investigation of a charge filed by Paul Chiquete requesting the same information as the Merritt subpoena. A unanimous panel of this Court rejected FedEx's argument that the appeal was moot and affirmed the district court's order enforcing the subpoena. FedEx has filed a petition for rehearing en banc. Because the panel's decision does not satisfy the stringent requirements of Rule 35 for rehearing en banc, the petition should be denied. ARGUMENT Federal Rule of Appellate Procedure 35 imposes "rigid standards" for granting a petition for rehearing en banc. Fed. R. App. P. 35 advisory committee's notes. En banc review to correct an erroneous decision is warranted only when "necessary to secure or maintain uniformity of the court's decisions" due to a conflict with Supreme Court or Ninth Circuit precedent, or where the decision "involves a question of exceptional importance." Fed. R. App. P. 35(a) & (b); see 9th Cir. R. 35-1. FedEx argues that the panel's determinations as to mootness and the EEOC's authority to issue the subpoena warrant en banc review. A. The panel's decision that this appeal is not moot does not warrant rehearing en banc because it is consistent with this Court's precedent. The panel ruled that even if this case "might otherwise be moot," three exceptions to the mootness doctrine applied: (1) wrongs capable of repetition yet evading review; (2) collateral legal consequences; and (3) voluntary cessation. Op. at 7. FedEx first argues that the panel's application of the "wrongs capable of repetition yet evading review exception" was erroneous and in conflict with this Court's decision in EEOC v. St. Regis Paper Co., 717 F.2d 1302 (9th Cir. 1983), which the panel did not discuss. The panel did not need to discuss St. Regis, however, because that case is inapposite. In St. Regis, this Court held that the defendant's appeal from a district court order enforcing an EEOC subpoena was moot where, pending appeal, the defendant had turned over the requested information. This Court stated that "the EEOC is satisfied with St. Regis' compliance with the subpoena. No controversy presently exists, and questions regarding the enforceability of the subpoena are therefore moot." Id. at 1303. This Court went on to conclude that the evading-review exception did not apply, although St. Regis could potentially resist any subsequent EEOC subpoenas, because "such an action would not evade review unless St. Regis again voluntarily complied with the subpoena." Id. (also stating that the "enforcement of an administrative subpoena is not an action which ordinarily would escape appellate review because of the mere passage of time"). In contrast to St. Regis, in this case the EEOC has never represented that it was satisfied with FedEx's compliance with the subpoena. In fact, unlike the employer in St. Regis, FedEx has never actually complied with the subpoena in this case; instead, FedEx complied with the subpoena issued in the Chiquete investigation. FedEx's position throughout this litigation has been, and continues to be, that the EEOC lacks the authority to investigate Merritt's charge. Thus, unlike in St. Regis, in this case there is a present controversy. Additionally, as the panel noted, FedEx has "given no assurance that it will not challenge another administrative subpoena stemming from the Merritt charge." Op. at 11 (emphasis added). Thus, as the panel observed, FedEx may, at its discretion, moot this appeal by complying with the Chiquete subpoena only to "turn around and challenge the EEOC's next" subpoena based on Merritt's charge "with exactly the same legal arguments it raised" here, and then, FedEx can moot that appeal by complying with the subpoena, "and so on." Op. at 10-11 (emphasis added). Therefore, unlike in St. Regis, where there was no threat of an ongoing controversy that FedEx could manipulate to avoid appellate review, in this case the panel properly applied this Court's precedent in concluding that the evading- review exception applied because the duration of the challenged action was too short to be fully litigated before cessation of the action and there was a reasonable expectation that the EEOC would be subject to the same action again. Op. at 9 (stating that this Court has "'applied the evading-review doctrine where the duration of the controversy is solely within the control of the defendant'") (quoting Anderson v. Evans, 371 F.3d 475, 502 n.27 (9th Cir. 2004)). FedEx next argues that en banc review is necessary because the panel misapplied the collateral consequences doctrine. According to FedEx, the Ninth Circuit cases cited by the panel - Reich v. Montana Sulphur & Chemical, 32 F.3d 440 (9th Cir. 1994), FDIC v. Garner, 126 F.3d 1138 (9th Cir. 1997), and EPA v. Alyeska Pipeline Services, 836 F.2d 443 (9th Cir. 1988) - "fail to define 'collateral consequences'" and "appear to simply substitute" it for the evading- review "exception that St. Regis rejected." Petition at 6. This argument fails to satisfy Rule 35's requirement that the "panel decision conflict[] with" a Ninth Circuit decision, however, because a panel decision does not create a "conflict" merely because earlier decisions fail, in FedEx's view, to adequately flesh out the collateral consequences exception. In any event, the panel properly applied these cases in holding that the exception applies here because, even assuming FedEx's compliance with the subpoena, resolution of the appeal will determine "the EEOC's authority to continue its investigation" and, accordingly, whether FedEx must "comply with future requests for information." Op. at 8. As for the purported conflict between the Reich, FDIC, and Alyeska Pipeline decisions and St. Regis, there is no conflict because St. Regis never addressed the applicability of the collateral legal consequences exception and, as just discussed, St. Regis is inapposite. Finally, the Commission notes that this case is ill-suited for en banc review because even if the panel misapplied the collateral legal consequences and evading-review exceptions - which the Commission disputes - the panel's finding that this case is not moot would remain intact because FedEx has not challenged the panel's conclusion that the "voluntary cessation" exception applies. This exception applies "if the defendant voluntarily ceases the allegedly improper conduct" but "remains free to return to the challenged conduct at any time." Op. at 10. As FedEx implicitly concedes, the panel correctly concluded that this exception applies here because FedEx "has given no assurance that it will not challenge another administrative subpoena stemming from the Merritt charge." Op. at 11. B. The panel's decision that the subpoena should be enforced because jurisdiction was not "plainly lacking" does not warrant rehearing en banc because the decision is correct and because the Fifth Circuit's decision to the contrary was erroneous. FedEx additionally argues that the panel's holding that the subpoena should be enforced warrants en banc review based on two independent grounds: (1) the panel "wrongly decided" that the EEOC did not plainly lack the authority to issue the subpoena, which presents "a question of exceptional importance impacting all employers subject to Title VII"; and (2) the panel's decision conflicts with EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997). Petition at 6, 14. Neither asserted grounds, however, satisfies the "rigid standards" for en banc consideration. Fed. R. App. P. 35 advisory committee's notes. 1. The panel's decision was correct and affects only a few employers. Contrary to FedEx's arguments, the panel correctly concluded that "the EEOC did not 'plainly lack' the authority to issue the subpoena." Op. at 19. Significantly, FedEx's petition fails to acknowledge - as the panel did - that the scope of judicial review of an agency subpoena is "'quite narrow'" and that an administrative subpoena should be enforced unless jurisdiction is "'plainly lacking.'" Op. at 13 (quoting EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th Cir. 2001), EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1430 (9th Cir. 1983)). FedEx first asserts that the decision "improperly allows any EEOC charge to live on indefinitely without restriction as to geographic location and time period" regardless of resolution of the charging party's action, thus raising the specter of an upcoming avalanche of EEOC subpoenas devoid of temporal or geographic limits. Petition at 6. As an initial matter, FedEx's assertion that EEOC subpoenas are limitless is incorrect. "[U]nlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled" only "to evidence 'relevant to the charge under investigation.'" EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984) (quoting 42 U.S.C. § 2000e-8(a)). While Title VII's relevancy requirement has been broadly construed, it does not allow the EEOC unfettered access to any evidence, regardless of geographic location or time period. See Shell Oil, 466 U.S. at 69 (warning against construing the relevancy requirement so broadly as to make it "a nullity"); see EEOC v. United Air Lines, 287 F.3d 643 (7th Cir. 2002) (holding that EEOC subpoena sought information that was irrelevant to investigation of charge alleging discriminatory failure to contribute to the French social security system where the subpoena requested extensive information about employees living anywhere abroad). The scope of an EEOC subpoena is also, as the panel noted, restricted by the requirement that it not be overbroad. Op. at 34. Moreover, the subpoena here does include an appropriate temporal limit; it requests information about computerized files maintained only since January 1, 2003. As to the geographic scope, the subpoena certainly cannot be said to be overbroad because it seeks only general information about FedEx's computer files. See Op. at 34-35 (subpoena not overbroad). Next, FedEx argues that the panel's decision was erroneous because Congress could not have intended to allow EEOC investigations to continue after a charging party files suit, as "Congress placed temporal limitations on Title VII's investigative period" in 42 U.S.C. § 2000e-5(f). Petition at 7. This argument is a non-starter because FedEx is just plain wrong about Congress's imposition of a temporal limit on EEOC investigations. As the panel noted, in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977), the Supreme Court explicitly rejected the notion that 42 U.S.C. § 2000e-5(f) imposes a time limit on EEOC investigations. Op. at 27, n.4. FedEx also argues that the panel erred in allowing an EEOC investigation to continue after a charging party files suit because doing so where an employer has "fully remedied" the discrimination "serves no real public policy objective." Petition at 8. As an initial matter, it is unclear whether the Satchell lawsuit, which is limited to employees in just eleven states, did fully remedy the discrimination alleged in Merritt's charge. It is entirely possible that the EEOC could obtain additional injunctive or monetary relief for the Satchell class members, relief for employees outside FedEx's Western Region (since Merritt's charge raises the specter of nationwide discrimination), or relief for victims of discrimination EEOC uncovers in a reasonable investigation of Merritt's charge. As the panel observed, the Supreme Court and this Court have long recognized that the "EEOC's investigatory authority serves a greater purpose than just investigating a charge on behalf of an individual." Op. at 25. While individuals are "guided by a desire to remedy" their "own discriminatory treatment . . . the EEOC is 'guided by the overriding public interest in equal employment opportunity asserted through direct Federal enforcement.'" Id. (quoting Gen. Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980)); see also EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987) (recognizing that EEOC and charging party have "independent" rights of action). Additionally, as the panel observed, the Supreme Court itself recently stated that "'whether public resources should be committed'" to the continuation of an EEOC investigation is within "'the public agency's province.'" Op. at 26 (quoting EEOC v. Waffle House, Inc., 634 U.S. 279, 291-92 (2002)). Thus, it is for the EEOC, not FedEx, to decide whether the public interest is served by continuing to process a charge of discrimination after a private suit has been filed - especially where, as here, the charge raises the specter of nationwide discrimination. FedEx further argues that the panel's reliance on EEOC v. Waffle House was misplaced because that case involved the EEOC's right to pursue victim- specific relief where a charging party had signed an arbitration agreement. Petition at 10-11. But the panel properly concluded that Waffle House's recognition that "the EEOC controls the charge regardless of what the charging party decides to do" supported the panel's conclusion that a charging party's actions - such as filing suit - cannot "divest the EEOC of authority." Op. at 23 (quoting Waffle House, 534 U.S. at 291, as stating that once "a charge is filed . . . the EEOC is in command of the process"). Next, FedEx argues that the panel erred in concluding that the EEOC's regulation at 29 C.F.R. § 1601.28(a)(3) "makes clear that the EEOC has concluded that a continuing investigation can further the public interest, even after the charging party has filed suit" because the regulation states only that the EEOC may continue to process a charge after issuance of a right-to-sue notice, not after a charging party files suit. Petition at 11-12. This is a meritless argument. Charging parties who request right-to-sue notices before the EEOC has completed its investigation clearly do so in anticipation of filing their own suits. FedEx also argues that because the agency has never amended § 1601.28(a)(3) to explicitly state that it can further process a charge after a charging party sues, the EEOC does not actually think it can continue an investigation after a charging party sues. Petition at 12. But there is no need to amend the regulation because, as just discussed, the clear import of the regulation is that the EEOC's investigative authority continues after a charging party's suit. Moreover, the EEOC has represented its view in this litigation that the regulation allows the agency to continue investigating after initiation of a private lawsuit, not just after the issuance of a right-to-sue notice. FedEx also argues that Section 83.4 of the EEOC's Compliance Manual, which directs the agency to disclose non-privileged information from an investigative file after a charging party files suit, "suggests that the Commission correctly considers its investigation closed when the charging party files suit." Petition at 12. FedEx fails to cite any authority for this proposition, which is baseless. The fact that the agency discloses non-privileged information after a charging party files a public lawsuit says nothing at all about the agency's view of its own investigative authority. Certainly, the agency can continue to use disclosed information in the continuation of its own investigation. FedEx also complains that the panel's decision would discourage conciliation because employers would "remain subject to additional investigation regardless of any steps they take to resolve the underlying claims of discrimination." Petition at 9. It is not entirely clear what FedEx means by this. An employer's incentive to conciliate arises from the possibility that the EEOC will file its own statutorily-authorized enforcement action, regardless of whether a charging party has filed his or her own suit. If, after conciliation occurred, additional acts of discrimination subsequently came to the EEOC's attention, the EEOC would have to conciliate those claims before instituting an enforcement action or intervening in a charging party's suit to expand the lawsuit. FedEx's argument, and particularly its undeveloped point about finality of judgments and claim splitting, therefore seems to be more a complaint about the fact the statute authorizes both the EEOC and a charging party to bring their own suits than about the issue addressed by the panel. Finally, FedEx argues that the decision will have "far reaching implications for all employers subject to Title VII" and therefore presents a case of exceptional importance. But any employment decision rendered by a panel in this Circuit can be said to have "far reaching implications for all employers." This fact alone, then, does not meet the stringent standard for en banc review. In any event, FedEx's assertion that this case will have a broad impact on employers is incorrect. As reflected in the EEOC's regulations and noted by the panel, it is only the unusual case in which the EEOC continues processing a charge after issuing a right-to-sue notice. Op. at 17 (citing 29 C.F.R. § 1601.28(a)(3)); see also 1 EEOC Compliance Manual § 6.4 (June 2006), available at 2006 WL 4672976 (directing EEOC investigators to "ordinarily continue investigating" a Title VII/ADA charge after issuing a right-to-sue notice when "the charge covers persons other than the requestor or involves an acknowledged/documented respondent policy or possible pattern of discrimination" or an official determines that "continued action would effectuate the purpose of Title VII/ADA"). The fact that the EEOC rarely continues an investigation after issuing a right-to-sue notice is underscored by the dearth of cases addressing the issue; since the EEOC gained litigation authority in 1972, there have been only two circuit decisions addressing this issue - this case and EEOC v. Hearst, 103 F.3d 262 (5th Cir. 1997). Thus, FedEx's argument that this case presents a question of exceptional importance because it will impact numerous employers just doesn't hold water. 2. The conflict with the Fifth Circuit's decision in Hearst does not warrant rehearing en banc. Although the panel's decision conflicts with EEOC v. Hearst, 103 F.3d 262 (5th Cir. 1997), this intercircuit conflict does not warrant rehearing en banc. Rule 35 was not intended to make "rehearing en banc mandatory whenever there is an intercircuit conflict." Fed. R. App. P. 35 advisory committee's notes. Instead, the panel's decision must also "substantially affect[] a rule of national application in which there is an overriding need for national uniformity." 9th Cir. R. 35-1 (emphasis added). Here, there is no "overriding need for national uniformity" because, as discussed, the issue of the EEOC's authority to issue a subpoena after a charging party has filed suit rarely arises. Additionally, as discussed above and in more detail below, the panel's unanimous decision is the correct one; it is the Fifth Circuit that has reached the wrong result on this issue. Accordingly, an intercircuit conflict will remain until the Fifth Circuit reconsiders the issue en banc or the Supreme Court addresses it. Here, the panel correctly distinguished and criticized Hearst because the Fifth Circuit failed to apply the deferential standard of review of administrative subpoenas that the Supreme Court and this Court have long required. Op. at 21 n.3. As the panel noted, that deferential standard requires that an administrative subpoena be enforced unless jurisdiction is "'plainly lacking.'" Id. (quoting Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) (en banc)); see Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) ("The evidence sought by the subpoena was not plainly incompetent or irrelevant to any lawful purpose of the Secretary in the discharge of her duties under the Act, and it was the duty of the District Court to order its production . . . ."). Unlike the panel in Hearst, the panel in this case properly applied this deferential standard in holding that the EEOC's subpoena should be enforced. The Hearst court also erred, as the panel observed, by failing even to consider the EEOC's regulation explicitly allowing the agency to continue processing a charge after issuing a right-to-sue notice when a designated official determines that doing so would "'effectuate the purpose of title VII.'" Op. at 26 (quoting 29 C.F.R. § 1601.28(a)(3)). The panel also properly concluded that "Hearst's notion that the charging party can, through his or her actions (that is, by filing suit), divest the EEOC of authority" is at odds with established Supreme Court and Ninth Circuit precedent recognizing that, unlike private litigants who file suit, the EEOC acts in the public interest in pursuing its enforcement actions, and those actions are independent of a charging party's. Op. at 25-26. More than twenty-five years ago, the Supreme Court recognized in General Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980), that the EEOC "is guided by the overriding public interest in equal employment opportunity asserted through direct Federal enforcement." More recently - and several years after Hearst was decided - the Supreme Court said in Waffle House that Title VII "clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake." 534 U.S. at 291 (holding that EEOC could pursue victim-specific judicial relief although charging party had signed arbitration agreement). Additionally, as the panel noted, this Court has "echoed the view that the EEOC, and not the charging party, is the master of the case." Op. at 25-26 (quoting EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987), as holding that the EEOC and charging parties have "independent" actions). Contrary to FedEx's argument, the panel in this case also correctly concluded that Hearst conflicts with the Supreme Court's holding in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). Op. at 27 n.4. In Occidental, the Court held that Title VII did not impose any temporal limit on the EEOC's authority to file an enforcement action. 432 U.S. 355. While Hearst purported to distinguish Occidental on the grounds that it was not deciding "what independent enforcement authority remains with the EEOC now that the private parties" have filed suit but "only that the time for investigation has passed," 103 F.3d at 469, this is a meaningless distinction. Title VII prohibits the EEOC from filing suit (or intervening and seeking to expand a lawsuit) unless it has investigated, found reasonable cause, and unsuccessfully sought to conciliate its claim. Thus, as the panel noted, Hearst effectively accomplished "what the Supreme Court rejected in Occidental Life - the imposition of a time limit on the EEOC's authority over a charge." Op. at 28 n.4. FedEx also argues that it "logically follows" from Occidental's statement that a charging party dissatisfied with the EEOC's progress "may elect to circumvent the EEOC procedures and seek relief through a private enforcement action" that the EEOC's authority to investigate terminates when the charging party files suit. Petition at 17. To the contrary, the Court's statement that a charging party can "circumvent," or, to use FedEx's word, "bypass," EEOC procedures itself suggests that the EEOC's authority to investigate continues after a charging party files suit. Otherwise, the charging party would not be "circumventing" the EEOC's procedures but "terminating" them. FedEx also repeats Hearst's statement that although the EEOC's investigative authority terminates when a charging party files suit, the EEOC can pursue any interest it still has in the charge by intervening in the private suit, filing a Commissioner's charge, or soliciting another charge. Petition at 15 (citing Hearst, 103 F.3d at 469-70). To be sure, the Commission has these options. But their availability says nothing at all about the enforceability of a subpoena under 42 U.S.C. § 2000e-8(a). Moreover, exercising these options would likely take significant time and, due to differences in filing dates and the content of the charges, limit the scope of both the class and the relief the EEOC could seek. FedEx's related assertion that the EEOC's failure to exercise these options "waives its right to later assert the claims involved" because "once class litigation commences and a class is certified, the responsibility for vindicating the public interest shifts from the EEOC to the court" is equally misguided. Petition at 15. Courts are not advocates and therefore have no responsibility for "vindicating the public interest" in a class action or any other case. As the Supreme Court has repeatedly recognized, it is the EEOC that has the authority, responsibility, and discretion, to determine when litigation benefits the public interest. See, e.g., Waffle House, 534 U.S. at 291 (stating that Title VII "confers on the agency the authority to evaluate the strength of the public interest at stake" and that "it is the public agency's province - not that of the court - to determine whether public resources should be committed to the recovery of victim-specific relief") (emphasis added). CONCLUSION For the foregoing reasons, FedEx's petition for rehearing en banc should be denied. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. Rm. 5SW20L Washington, D.C. 20507 CERTIFICATE OF SERVICE I hereby certify that on December 8, 2008, I sent by overnight mail the original and 50 copies of this response to the Ninth Circuit Court of Appeals and two copies to: Frederick L. Douglas David A. Billions Federal Express Corp. 3620 Hacks Cross Rd. Building B, 3rd Fl. Memphis, TN 38125 (901) 434-8519 Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel, 5th Fl. 131 M St, N.E. Washington, D.C. 20507 *********************************************************************** <> <1> Amici also argue that the panel's decision that the EEOC had the authority to issue the subpoena warrants en banc review. Because amici's arguments largely overlap with FedEx's on this point, they are not addressed separately. Amici additionally argue that this Court should review en banc the panel's conclusion that the subpoena sought relevant evidence. Because FedEx did not raise this argument in its petition, however, we do not address it. <2> Consistent with the copy of the opinion attached to FedEx's petition, all citations are to Lexis's version of the opinion, which is at 2008 U.S. App. Lexis 19242 (Sept. 10, 2008).