No. 07-1612 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. K-MART HOLDING CORP., Respondent-Appellee. ______________________________________________________ On Appeal from the United States District Court for the Eastern District of Michigan Hon. Marianne O. Battani, Judge ______________________________________________________ PROOF BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER-APPELLANT _______________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel GAIL S. COLEMAN 1801 L Street, NW, Room 7034 Attorney Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Statement Regarding Oral Argument. . . . . . . . . . . . . . . ii Table of Authorities. . . . . . . . . . . . . . . . . . . . . iii Statement of Jurisdiction. . . . . . . . . . . . . . . . . . 1 Statement of the Issue. . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . 1 A. Course of Proceedings. . . . . . . . . . . . . . . . . 1 B. Statement of Facts. . . . . . . . . . . . . . . . . . 2 C. District Court Opinion. . . . . . . . . . . . . . . . . 5 Summary of Argument. . . . . . . . . . . . . . . . . . . . . 6 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Standard of Review. . . . . . . . . . . . . . . . . . 7 B. The district court had no power to condition enforcement of the EEOC's subpoena on the entry of a protective order. . . . . . 7 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Addendum: Designation of Appendix Contents Certificate of Service STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument so that it can address any questions this Court may have regarding the district court's lack of power to order conditional enforcement of an EEOC subpoena. TABLE OF AUTHORITIES Cases Brown v. Earthboard Sports USA, Inc., 481 F.3d 901 (6th Cir. 2007). . . 7 Doe v. U.S., 253 F.3d 256 (6th Cir. 2001). . . . . . . . . . . . 7-8 EEOC v. K-Mart Corp., 694 F.2d 1055 (6th Cir. 1982). . . . . . 8, 11 EEOC v. Roadway Exp., Inc., 750 F.2d 40 (6th Cir. 1984). . . 7, 12-13 EEOC v. Roadway Exp., Inc., 261 F.3d 634 (6th Cir. 2001). . . . . . 12 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . 12, 13 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . 12 U.S. v. Barrett, 837 F.2d 1341 (5th Cir. 1988) (en banc). . . . . . 9-11 U.S. v. Euge, 444 U.S. 707 (1980). . . . . . . . . . . . . . . . . . 11 U.S. v. Jose, 131 F.3d 1325 (9th Cir. 1997) (en banc). . . . . . 7, 9, 11 U.S. v. Markwood, 48 F.3d 969 (6th Cir. 1995). . . . . . . . . . . . 8 U.S. v. Monumental Life Ins. Co., 440 F.3d 729 (6th Cir. 2006). . . . . 9 U.S. v. Powell, 379 U.S. 48 (1964). . . . . . . . . . . . . . . . . . 8 U.S. v. Rockwell Int'l, 897 F.2d 1255 (3d Cir. 1990). . . . . . . . . 9 U.S. v. Zolin, 491 U.S. 554 (1989). . . . . . . . . . . . . . . . . . 9 Statutes 26 U.S.C. § 7213(a). . . . . . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-8(e). . . . . . . . . . . . . . . . . . 3, 11 42 U.S.C. § 2000e-9. . . . . . . . . . . . . . . . . . . . . 1 Rules and Regulations 29 C.F.R. § 1601.12(a)(3). . . . . . . . . . . . . . . . . . 8 29 C.F.R. § 1601.22. . . . . . . . . . . . . . . . . . . . . 3 Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION The district court had jurisdiction over this Title VII subpoena enforcement proceeding under 42 U.S.C. § 2000e-5(f)(3) and § 2000e-9. On February 1, 2007, the district court partly granted and partly denied the EEOC's application for an order to show cause why its subpoena should not be enforced. (R.8, Order, J.A. at __.) On March 14, 2007, the district court denied the EEOC's motion for reconsideration. (R.15, Order.) Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the EEOC filed a timely notice of appeal on May 9, 2007. (R.16, Notice, J.A. at __.) STATEMENT OF THE ISSUE Did the district court exceed its authority in conditioning enforcement of the EEOC's subpoena on the entry of a protective order? STATEMENT OF THE CASE This is an appeal from an order of the district court partly granting and partly denying the EEOC's application for an order to show cause why its Title VII subpoena should not be enforced. A. Course of Proceedings The EEOC filed an application for an order to show cause why its Title VII subpoena should not be enforced on December 7, 2006. (R.1, Application, J.A. at __.) The district court partly granted and partly denied this application on February 1, 2007, (R.8, Order, J.A. at __), and it signed a protective order on February 12, 2007. (R.9, Protective Order, J.A. at __.) The EEOC moved for reconsideration on February 15, 2007. (R.10, Motion.) The district court denied that motion on March 14, 2007. (R.15, Order.) On May 9, 2007, the EEOC filed a timely notice of appeal. (R.16, Notice, J.A. at __.) B. Statement of Facts On August 11, 2005, a paralegal in K-Mart's legal department filed a sex discrimination charge with the EEOC, alleging that the Vice President of her department had subjected her to "sexist comments." (R.1, Ex. A, Charge.) She characterized the Vice President's conduct as "ongoing harassment." (Id.) The charging party also alleged that her supervisor "intimidates me and other female employees because he flaunts his relationship with the Executive Vice President, which results in his treatment of women going unchecked." (Id.) The EEOC initiated an investigation pursuant to Title VII of the Civil Rights Act of 1964. (R.1, Ex. B, Notice of Charge.) K-Mart responded only partially to the EEOC's request for information. On April 13, 2006, the EEOC served K-Mart with an administrative subpoena in an effort to acquire the rest of the documents it sought. (R.1, Ex. C, Subpoena.) K-Mart moved to revoke or modify the subpoena, (R.1, Ex. D, Petition), and the EEOC partially granted its request. (R.1, Ex. E, Determination.) Rather than seeking the complete contents of the alleged harasser's personnel file, as the subpoena had originally done, the modified subpoena sought only those documents "which relate to his conduct or behavior." (Id. at 12.) Additionally, the EEOC recognized that privileged documents would not have to be disclosed. (Id. at 10-12.) Notwithstanding these modifications to the subpoena, K-Mart refused to turn over any documents from the alleged harasser's personnel file. (R.1, Ex. F, Response at 5.) Instead, it offered to "make these documents available for an immediate physical inspection by the [EEOC] and/or produce copies of such documents to the EEOC upon receipt of an appropriate legal assurance or agreement that such documents will not be publicly disclosed by the Agency." (Id. at 5-6.) Rejecting the EEOC's non- disclosure regulations as inadequate, K-Mart's attorney told the EEOC, "I don't read the regulations you cite to prevent the EEOC from disclosing documents received during an investigation to a [c]harging party or his/her representative or for that matter, after the case is closed." (R.5, Ex. 5, Miglio E-Mail.) In December 2006, the EEOC filed the instant action. (R.1, Application, J.A. at __.) K-Mart responded that the subpoena was unenforceable because it rested on an invalid charge that did not allege severe or pervasive harassment. (R.5, Brief at 9-11.) K-Mart urged the court to strike the request for the alleged harasser's personnel file as irrelevant and an unwarranted invasion of privacy or, in the alternative, to issue a protective order regarding its contents. (Id. at 15-20.) The EEOC noted that for purposes of a subpoena enforcement action, a "valid" charge is merely one that complies with Title VII's procedural requirements. See 42 U.S.C. § 2000e-5(b) (charge must be in writing and under oath). Because the instant charge is procedurally sound, the EEOC argued, it is sufficient to support the administrative subpoena. (R.6, Reply at 1-2.) The EEOC also argued that the district court should not condition production of the personnel documents on the existence of a protective order. (Id. at 4-5.) Emphasizing the EEOC's statutory authority to conduct a thorough investigation, the EEOC stressed its need to examine the alleged harasser's conduct as well as K-Mart's response to any complaints about him. (Id. at 5.) Nothing in Title VII, the EEOC argued, conditions the EEOC's subpoena authority on the existence of a protective order. (Id.) C. District Court Opinion The district court ruled that K-Mart must turn over the disputed contents of the alleged harasser's personnel file, but it conditioned this ruling on entry of a protective order. (R.8, Order, J.A. at __.) The court noted that K-Mart "shouldn't be the one to [decide which documents are relevant] ... [b]ut also there's no reason to expose any of those things until such time as it becomes necessary in the litigation." (R.12, Tr. at 28, J.A. at __.) The court entered a protective order eleven days later, instructing that "[s]uch documents or their content shall not be disclosed by the EEOC except as is necessary to the investigator, other attorneys or legal department personnel, except upon further order of the Court." (R.9, Protective Order, J.A. at __.) The EEOC moved for reconsideration. (R.10, Motion.) The district court denied this motion on March 14, 2007. (R.15, Order.) SUMMARY OF ARGUMENT The district court had no power to enforce the EEOC's subpoena conditioned on the entry of a protective order. This Court has recognized that a subpoena enforcement proceeding is a summary process of limited scope. In light of the government's compelling interest in speedily investigating possible unlawful activity, a reviewing court may decide only whether to uphold or to nullify a subpoena, either in part or in its entirety. A court may not attach conditions to the enforcement of a subpoena because doing so might require ongoing judicial supervision. As both the Fifth and Ninth Circuits have recognized en banc, such ongoing supervision is inconsistent with the summary nature of an enforcement proceeding. Moreover, the protective order that the district court imposed in this case contradicts Title VII. In crafting that statute, Congress weighed the issue of confidentiality and specified the degree of protection it wished to grant to respondents during an EEOC investigation. K-Mart has shown no reason why the documents at issue here are entitled to more protection than the documents at issue in any other EEOC proceeding. ARGUMENT A. Standard of Review The district court's power to order conditional enforcement of an administrative subpoena is a matter of statutory interpretation subject to de novo review. U.S. v. Jose, 131 F.3d 1325, 1327 (9th Cir. 1997) (en banc); see also Brown v. Earthboard Sports USA, Inc., 481 F.3d 901, 909 (6th Cir. 2007) ("We review de novo the district court's legal conclusions, including matters of statutory interpretation."). B. The district court had no power to condition enforcement of the EEOC's subpoena on the entry of a protective order. The district court had no authority to condition enforcement of the EEOC's subpoena on the entry of a protective order. As this Court has recognized, "[a] subpoena enforcement proceeding is a summary process designed to decide expeditiously whether a subpoena should be enforced." EEOC v. Roadway Exp., Inc., 750 F.2d 40, 42 (6th Cir. 1984). In keeping with the streamlined nature of an enforcement proceeding, "a district court plays only a limited role." Doe v. U.S., 253 F.3d 256, 262 (6th Cir. 2001). Thus, "'while the court's function is neither minor nor ministerial' when deciding whether to enforce an administrative subpoena, 'the scope of the issues which may be litigated in an enforcement proceeding must be narrow, because of the important governmental interest in the expeditious investigation of possible unlawful activity.'" Id. at 263 (quoting U.S. v. Markwood, 48 F.3d 969, 979 (6th Cir. 1995)). The court's role in a subpoena enforcement proceeding is limited to determining two issues: (1) whether the administrative agency has satisfied the statutory prerequisites to issuing and enforcing the subpoena, and (2) whether the agency has satisfied the judicially created standards for enforcement articulated in United States v. Powell, 379 U.S. 48 (1964). Doe, 253 F.3d at 262. The statutory prerequisites demand the existence of a valid charge of discrimination - one that is in writing, under oath or affirmation, and that includes a "clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." EEOC v. K-Mart Corp., 694 F.2d 1055, 1062 (6th Cir. 1982) (quoting 29 C.F.R. § 1601.12(a)(3)). The Powell standards require "that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, [and] that the information sought is not already within the [agency's] possession." Powell, 379 U.S. at 57-58. A respondent who seeks to nullify an administrative subpoena is limited to arguing either that the agency has failed to meet one of the above standards or that the agency has abused the court's process. U.S. v. Markwood, 48 F.3d 969, 980 (6th Cir. 1995). Rather than seek to nullify a subpoena in its entirety, respondents may try to limit it instead. Whether they are successful may depend on what type of limitation they seek. This Court has distinguished between two types of limitations on subpoenas. The first type - partial enforcement - "narrows the scope of the summons by limiting the type and amount of documents that the summoned party must produce." U.S. v. Monumental Life Ins. Co., 440 F.3d 729, 737 (6th Cir. 2006) (emphasis in original). Such a limitation is permissible. Id. The second type - conditional enforcement - "would [] impose[] restrictions on the [agency's] use of summoned materials." Id. (emphasis in original). A court-imposed protective order falls into this latter category. Although this Court has never addressed whether conditional enforcement is permissible, see id., the Fifth and Ninth Circuits have held that it is not in IRS summons proceedings. U.S. v. Jose, 131 F.3d 1325, 1329 (9th Cir. 1997) (en banc); U.S. v. Barrett, 837 F.2d 1341, 1350 (5th Cir. 1988) (en banc). The one time that the Supreme Court considered the issue, it was evenly divided on the subject and thus upheld the district court's conditional enforcement order. U.S. v. Zolin, 491 U.S. 554, 561 (1989). The rationale of the Fifth and Ninth Circuits for rejecting conditional enforcement of IRS summonses is equally applicable to EEOC subpoena enforcement actions. Ruling en banc, the Fifth Circuit held that a district court cannot conditionally enforce an IRS summons by subjecting the IRS to a protective order while it conducts a tax investigation. The Court noted the negative impact that a contrary ruling would have on IRS investigations. "If a court were to [conditionally enforce a subpoena]," it said, "it would then potentially have to become involved in the proceeding again at a later date to ensure compliance with the conditions it imposed. There is no evidence of a Congressional intent to burden the 'summary' nature of summons enforcement proceedings by allowing the district court to conditionally enforce a summons." Barrett, 837 F.2d at 1349. The Fifth Circuit added that the existence of civil and criminal penalties in the authorizing statute for unlawful disclosure of subpoenaed information suggests that "the intent of Congress was definitely not to burden the summary nature of the enforcement proceedings" with concerns about protecting confidentiality. Id. at 1350. The Court concluded: "If good faith and a legitimate purpose are found to exist, the summons should be enforced. If they are not present, enforcement should be denied. There is no middle ground because to create that remedy would unduly hamper the investigative efforts of the [administrative agency]." Id. The Ninth Circuit reached the same conclusion. Overruling previous panel decisions to the contrary, the en banc Court agreed with the Fifth Circuit that "'the sole purpose of the enforcement proceeding is to ensure that the [agency] has issued the summons for proper purpose and in good faith.'" Jose, 131 F.3d at 1329 (quoting Barrett, 837 F.2d at 1349). The Court cited Supreme Court precedent granting the IRS "broad latitude" in its investigatory process and refusing to circumscribe the agency in ways that had not been dictated by Congress. Id. (citing, e.g., U.S. v. Euge, 444 U.S. 707, 715 (1980)). The Ninth Circuit concluded, "the district court is strictly limited to enforcing or denying IRS summonses." Id. An EEOC subpoena is just as immune from conditional enforcement as the IRS summonses at issue in Barrett and Jose. This Court already applies the same standards to subpoena enforcement proceedings initiated by the EEOC as it does to summons enforcement proceedings initiated by the IRS. K-Mart, 694 F.2d at 1066. Like the statute that authorizes IRS summonses, Title VII contains statutory penalties for unauthorized release of subpoenaed information. Compare 26 U.S.C. § 7213(a) (tax code) with 42 U.S.C. § 2000e-8(e) (Title VII). Moreover, the EEOC - like the IRS - is statutorily authorized to conduct aggressive investigations in order to ferret out illegal conduct. See EEOC v. Roadway Exp., Inc., 261 F.3d 634, 642 (6th Cir. 2001) ("Title VII gives the EEOC very broad powers of investigation and affords the EEOC access to 'virtually any material which might cast light on the allegations against the employer.'") (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 68-69 (1984)). Although K-Mart is correct that Title VII's confidentiality provisions are not as comprehensive as those in the challenged protective order, these are the provisions that Congress chose. Rejecting a university's attempt to characterize peer-reviewed materials as privileged, the Supreme Court noted: To be sure, the protection of confidentiality that § 2000e-8(e) provides is less than complete. But this, if anything, weakens petitioner's argument. Congress apparently considered the issue of confidentiality, and it provided a modicum of protection. Petitioner urges us to go further than Congress thought necessary to safeguard that value, that is, to strike the balance differently from the one Congress adopted. Petitioner, however, does not offer any persuasive justification for that suggestion. Univ. of Pa. v. EEOC, 493 U.S. 182, 192-93 (1990) (footnote omitted). This reasoning applies equally well to the imposition of a protective order as a condition to enforcing a subpoena. Cf. Roadway Exp., 750 F.2d at 43 ("The EEOC is under a statutory mandate to maintain the confidentiality of any information obtained by it in connection with an investigation. This statute is sufficient protection for [the responent's] employees ...."). Under Title VII, the EEOC has an unqualified right to obtain relevant information - not merely to seek it. Univ. of Pa., 493 U.S. at 192; see also Shell Oil, 466 U.S. at 72 (Title VII demands "that the employer disgorge any evidence relevant to the allegations of discrimination contained in the charge"). Conditioning access to information on the EEOC's submitting to a protective order impedes the EEOC's exercise of this unqualified right. This Court should not condone any practice which "substantially slow[s] the process by which the EEOC obtains judicial authorization to proceed with its inquiries." Shell Oil, 466 U.S. at 81. CONCLUSION The district court had no authority to condition enforcement of the EEOC's subpoena on the existence of a protective order. For the reasons stated above, the EEOC respectfully requests that this Court reverse the order of conditional enforcement. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 gail.coleman@eeoc.gov ADDENDUM Designation of Appendix Contents The EEOC, in accordance with Sixth Circuit Rule 30(b), designates the following items for inclusion in the joint appendix: 1. District court docket sheet. 2. R.1, Application for Order to Show Cause. 3. R.8, Order. 4. R.9, Protective Order. 5. R.12, Transcript of Show Cause Motion Hearing, pages 26-28. 6. R.16, Notice of Appeal. CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one signed original of the foregoing Proof Brief of the EEOC as Petitioner-Appellant with the Court by first-class mail, postage pre-paid, on this 1st day of August, 2007. I further certify that I served two paper copies of the foregoing proof brief this 1st day of August, 2007, by first-class mail, postage pre-paid, to the following counsel of record: Terrence J. Miglio Keller Thoma 440 E. Congress, 5th Floor Detroit, MI 48226-2918 _________________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 gail.coleman@eeoc.gov *********************************************************************** <> <1> See 29 C.F.R. § 1601.22 (with limited exceptions, EEOC may not disclose charge or investigator materials "prior to the institution of any proceeding ... involving such charge or information"); see also 42 U.S.C. § 2000e-8(e) ("Any officer or employee of the Commission who shall make public in any manner whatever any information in violation of this subsection shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000, or imprisoned not more than one year."). <2> The parties also argued regarding the contents of K-Mart's privilege log. (See R.1, Memo at 8-10; R.5, Brief at 12.) The EEOC does not appeal from any decisions pertaining to those documents. <3> Among the federal appellate courts, only the Third Circuit has held that a district court may conditionally enforce a subpoena. See U.S. v. Rockwell Int'l, 897 F.2d 1255, 1261 (3d Cir. 1990). In reaching its holding, the Court focused only on its concern that the judicial process not be abused. It did not mention the countervailing concern that subpoena enforcement proceedings are intended to be summary in nature. Id.