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 ______________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PETITIONER-APPELLANT ______________________________________________________ RONALD S. COOPER GAIL S. COLEMAN General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, NW, Room 7034 Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The EEOC Preserved Its Argument That the District Court Lacked Authority to Condition Enforcement of the EEOC's Subpoena on the Entry of a Protective Order.. . . . . . . . . . . . . . . 1 B. This Court Should Reverse.. . . . . . . . . . . . . . . . . . . . 3 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Broska v. Henderson, 70 Fed. Appx. 262 (6th Cir. 2003). . . . . . . . . . . . 3 Costantino v. TRW, Inc., 13 F.3d 969 (6th Cir. 1994). . . . . . . . . . . . 3 Doe v. U.S., 253 F.3d 256 (6th Cir. 2001). . . . . . . . . . . . . . . . . . 4 EEOC v. Ala. Dep't of Youth Svcs., 2006 WL 1766785 (M.D. Aloa. June 26, 2006). . . . . . . . . . . . . . . . . . . . . . . . 9 EEOC v. Aon Consulting, inc., 149 F. Supp. 2d 601 (S.D. Ind. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). . . . . . . . . 10 EEOC v. C&P Tel., 813 F. Supp. 874 (D.D.C. 1993). . . . . . . . . . . . . . . 9 EEOC v. K-Mart Corp., 694 F.2d 1055 (6th Cir. 1982). . . . . . . . . . . . . 5 EEOC v. Roadway Exp., Inc., 750 F.2d 40 (6th Cir. 1984). . . . . . . . . . . 3 EEOC v. Univ. of Notre Dame Du Lac, 715 F.2d 331 (7th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 Johnson v. Nissan N.A., Inc., 146 S.W.3d 600 (Tenn. Ct. App. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Miles v. Boeing Co., 154 F.R.D. 112 (E.D. Pa. 1994). . . . . . . . . . . . 9 Morrison v. Philadelphia Housing Auth., 203 F.R.D. 195 (E.D. Pa. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Univ. of Pa. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . . . . . . . . . 8 U.S. v. Barrett, 837 F.2d 1341 (5th Cir. 1988) (en banc). . . . . . . . . 5, 6 U.S. v. Jose, 519 U.S. 54 (1996). . . . . . . . . . . . . . . . . . . . . 6 U.S. v. Jose, 131 F.3d 1325 (9th Cir. 1997) (en banc). . . . . . . . . . . 5-7 U.S. v. Monumental Life Ins. Co., 440 F.3d 729 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 U.S. v. Rockwell Int'l, 897 F.2d 1255 (3d Cir. 1990). . . . . . . . . . . . 7 U.S. v. Zolin, 809 F.2d 1411 (9th Cir. 1989), aff'd in part and vacated in part on other grounds, 491 U.S. 554 (1989). . . . . . . . . 6, 7 Whittingham v. Amherst Coll., 164 F.R.D. 124 (D. Mass. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Other Authority Fed. R. Civ. P. Rule 26(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Rule 45(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Rule 81. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Advisory Comm. Notes to Fed. R. Civ. P. 45. . . . . . . . . . . . . . . . . . 4 ARGUMENT In its opening brief, the EEOC urged this Court to reverse the district court's order of conditional enforcement of an EEOC subpoena. The EEOC argued that the district court had no power to enforce the EEOC's subpoena conditioned on the entry of a protective order. In its responsive brief, K-Mart argues that the EEOC waived this argument by not raising it in the district court. See Appellee Br. at 20-23. Contrary to K-Mart's claim, the EEOC did raise this issue below. (See R.6, Reply at 5.) For the reasons stated here and in the EEOC's opening brief, the EEOC asks this Court to reject K-Mart's arguments and to reverse the district court's judgment. A. The EEOC Preserved Its Argument That the District Court Lacked Authority to Condition Enforcement of the EEOC's Subpoena on the Entry of a Protective Order. In its reply brief in the district court, the EEOC argued that Title VII trumps any privacy interests that a respondent may have in materials subject to an EEOC subpoena. But see Appellee Br. at 21. The EEOC stated: "[T]o the extent [the alleged harasser] has such a [privacy] right, it must yield to the EEOC's statutory obligation to conduct a complete and thorough investigation into both his conduct, and how Respondent dealt with complaints regarding his conduct." (R.6, Reply at 5 (emphasis added).) The EEOC further stated: "[T]he EEOC, which has the authority to subpoena such documents from employers, is not required to enter into a private confidentiality agreement with Respondent which may impede its ability to conduct a thorough investigation." (Id. (emphasis added).) Later, at oral argument, the EEOC's attorney advised the district court: "Respondents are required to produce those kinds of information." (R.12, Tr. at 4, J.A. at 109 (emphasis added).) With these categorical statements, the EEOC preserved its argument that the district court lacked any authority to condition enforcement of a subpoena on the entry of a protective order. The EEOC did not limit its argument to the facts of this case. But see Appellee Br. at 21. Rather, the EEOC argued that privacy interests are always secondary to the EEOC's interest in conducting thorough and complete investigations. (See R.6, Reply at 5.) By framing its argument in broad terms, the EEOC properly raised the question of the district court's authority. Although K-Mart is correct that the EEOC did not cite to U.S. v. Monumental Life Ins. Co., 440 F.3d 729 (6th Cir. 2006), or related cases until appeal, the EEOC's failure to cite those cases earlier does not prevent the EEOC from relying on them now. Citation of new authority is different from raising a new issue on appeal. Far from discouraging the citation of new authority, this Court affirmatively welcomes it. As the Court has explained: In effect, Defendants are urging us to adopt a rule prohibiting parties from submitting new citations of authority at the appellate level. Such a rule would undermine one of the fundamental purposes of our adversarial legal system, that of determining the legal premises properly applicable to a case. To this end, a new citation to relevant, binding authority is as welcome on appeal as in the court below. Costantino v. TRW, Inc., 13 F.3d 969, 981 n.13 (6th Cir. 1994) (citations omitted); see also Broska v. Henderson, 70 Fed. Appx. 262, 266 n.1 (6th Cir. 2003) ("It is the role of the district court (not the parties) to apply the law properly."). Because the EEOC simply cites additional authority on appeal in support of an argument it already made in the district court, K-Mart errs in charging the EEOC with waiver. Notwithstanding K-Mart's suggestion to the contrary, Appellee Br. at 20-23, this Court should decide whether the district court lacked authority to order conditional enforcement of an EEOC subpoena. B. This Court Should Reverse. As the EEOC explained in its opening brief, "[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). The district court's role in reviewing an administrative subpoena is extremely limited. Doe v. U.S., 253 F.3d 256, 262 (6th Cir. 2001). This Court has "never addressed the question of whether conditional enforcement is permissible." U.S. v. Monumental Life Ins. Co., 440 F.3d 729, 737 (6th Cir. 2006) (emphasis in original). Noting that the Federal Rules of Civil Procedure are generally applicable to administrative subpoena enforcement actions, see Fed. R. Civ. P. 81, K-Mart wrongly justifies the district court's conditional enforcement based on Rules 45(c) (permitting a district court to "quash or modify" a subpoena) and 26(c) (governing protective orders). Appellee Br. at 19, 24- 25. K-Mart does not mention that although the federal rules generally do apply to administrative subpoenas, these two specific rules do not. The advisory committee notes to Rule 45 clarify that the rule "does not apply to the enforcement of subpoenas issued by administrative officers and commissions pursuant to statutory authority . . . [and] the enforcement of such subpoenas by the district courts is regulated by appropriate statutes." Advisory Comm. Notes to Fed. R. Civ. P. 45 (1937 Adoption). The notes explain that Rule 26(c), governing protective orders, "corresponds" to Rule 45(c). Id. (1991 Amendment, Subdivision (c)). Because the two rules "correspond," Rule 26(c) is just as inapplicable to administrative subpoena enforcement proceedings as is Rule 45(c). The EEOC's opening brief articulates the proper standards for enforcing EEOC subpoenas issued pursuant to Title VII. Just like IRS summonses, see U.S. v. Jose, 131 F.3d 1325 (9th Cir. 1997) (en banc); U.S. v. Barrett, 837 F.2d 1341 (5th Cir. 1988) (en banc), EEOC subpoenas are not subject to conditional enforcement. See EEOC v. K-Mart Corp., 694 F.2d 1055, 1066 (6th Cir. 1982) (standards governing IRS summonses "have been followed in subpoena enforcement actions initiated by the EEOC, the Internal Revenue Service, and the Securities and Exchange Commission"); see also Opening Br. at 11-12 (like the statute authorizing IRS summonses, Title VII mandates that the enforcement agency conduct aggressive investigations and contains statutory penalties for unauthorized release of subpoenaed information). In an effort to lessen the impact of relevant precedent, K-Mart misrepresents the Ninth Circuit's reasoning in its en banc opinion prohibiting conditional enforcement. See Appellee Br. at 38 (discussing U.S. v. Jose, 131 F.3d 1325). According to K-Mart, the Ninth Circuit "suggested that the type of protective order at issue in the instant case may be acceptable" because Jose involved the IRS's internal use of summoned documents whereas the instant case involves potential disclosure outside the EEOC. Appellee Br. at 38. The Ninth Circuit, however, said nothing that would support K-Mart's reading. The Court expressly declined to distinguish Jose from other precedents based on its facts because it wanted to decide whether conditional enforcement of an administrative subpoena could ever be legal. 131 F.3d at 1329 n.2. Before Jose, the Ninth Circuit had permitted conditional enforcement in U.S. v. Zolin, 809 F.2d 1411, 1416 (9th Cir. 1987), aff'd in part and vacated in part on other grounds, 491 U.S. 554 (1989). The Supreme Court's ruling affirming Zolin has no precedential weight because the Court was evenly divided, see Jose, 131 F.3d at 1329 n.3, thus the Ninth Circuit was free to reconsider this legal issue. The Ninth Circuit decided to take the issue for en banc consideration in part because its rule was at odds with the Fifth Circuit's on this question. See U.S. v. Barrett, 837 F.2d 1341 (5th Cir. 1988) (en banc). Faced with a conflict between the circuits, the Ninth Circuit decided Jose on the broadest possible grounds. The Court said: "We recognize that the present case can be distinguished . . . on its facts. . . . However, we, like the Supreme Court [in U.S. v. Jose, 519 U.S. 54, 56 (1996)], note the inter circuit conflict between the Ninth and Fifth Circuits on the issue of any conditional enforcement and proceed to resolve this conflict." 131 F.3d at 1329 n.2 (emphasis added). K-Mart observes that the Third Circuit permits conditional enforcement, Appellee Br. at 40-42 (citing U.S. v. Rockwell Int'l, 897 F.2d 1255, 1261 (3d Cir. 1990)), but it does not note critical weaknesses in the relevant Third Circuit case. First, the Third Circuit relied almost entirely on the Ninth Circuit's subsequently overruled opinion in Zolin. Rockwell Int'l, 897 F.2d at 1261. Although the reasoning in Zolin was evidently persuasive to the Third Circuit, it did not remain persuasive to the Ninth Circuit, which overruled it en banc. Jose, 131 F.2d at 1329. Also, the Third Circuit's opinion in Rockwell does not even mention that subpoena enforcement proceedings are intended to be summary in nature. 897 F.2d at 1261. K-Mart devotes four pages of its brief to EEOC v. University of Notre Dame Du Lac, 715 F.2d 331 (7th Cir. 1983), a case which is not on point. Appellee Br. at 26-29. In University of Notre Dame Du Lac, the Seventh Circuit created a new qualified academic freedom privilege for peer review materials and remanded for the district court to impose a protective order in connection with an EEOC subpoena. 715 F.2d at 339. Citing the unique context of higher education, the Seventh Circuit concluded that its ruling "strikes the appropriate balance between the need to preserve the integrity of the peer review process and the need to adequately investigate proper charges of discrimination in higher education." Id. Those considerations are irrelevant to the instant case. The EEOC does not dispute that privileged materials may be protected in a subpoena enforcement proceeding. The Seventh Circuit considered the disputed materials in Notre Dame within the context of privilege and, as K- Mart notes, the Supreme Court subsequently overruled the Seventh Circuit's holding on this ground. See Appellee Br. at 29 n.12 (citing University of Pa. v. EEOC, 493 U.S. 182, 189 (1990)). While it is true that the Supreme Court did not rule on the validity of a protective order in an administrative subpoena enforcement hearing not involving privileged material, see id., the reason it did not do so is that the Third Circuit in the case before it had not ruled on that question. Notre Dame had not ruled on the question either. Unlike in Notre Dame, the instant case does not involve arguably privileged materials. K-Mart sought and obtained a protective order for the types of employment documents that the EEOC normally subpoenas in the course of its investigations. Nothing in Notre Dame suggests that these ordinary, unprivileged documents should be subject to the same type of balancing test that the Seventh Circuit applied (prior to being overruled) in the case of putatively privileged academic peer review materials. The other cases that K-Mart cites are equally unavailing. The majority of cited cases involve private litigation, not administrative subpoena enforcement actions. See Appellee Br. at 29-31 (citing Morrison v. Philadelphia Housing Auth., 203 F.R.D. 195 (E.D. Pa. 2001); Whittingham v. Amherst Coll., 164 F.R.D. 124 (D. Mass. 1995); Miles v. Boeing Co., 154 F.R.D. 112, 115 (E.D. Pa. 1994); Johnson v. Nissan N.A., Inc., 146 S.W.3d 600, 606 (Tenn. Ct. App. 2004)). These cases shed no light on whether the district court has authority to order conditional enforcement of an EEOC subpoena. The three cases in which district courts did issue protective orders in EEOC subpoena enforcement proceedings were wrongly decided, and the EEOC's discretionary decision not to appeal should not suggest otherwise. See Appellee Br. at 31-32 (citing EEOC v. Ala. Dep't of Youth Svcs., 2006 WL 1766785 (M.D. Ala. June 26, 2006); EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601 (S.D. Ind. 2001); EEOC v. C&P Tel., 813 F. Supp. 874 (D.D.C. 1993)). K-Mart argues that it behaved reasonably in this case by offering the EEOC a pre-enforcement opportunity to inspect (but not take possession of) the subpoenaed documents. Appellee Br. at 9-11. However, respondents to a subpoena may not unilaterally decide whether or not to comply. K-Mart's refusal to turn over the subpoenaed documents in the absence of a protective order hampered the EEOC's investigation by delaying and interfering with the EEOC's enforcement efforts. The EEOC's inability to share the subpoenaed documents with the charging party has also complicated the EEOC's conciliation efforts. As the Supreme Court has recognized, "[D]isclosure 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." EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 601 (1981). CONCLUSION As described more fully in the EEOC's opening brief, the district court had no authority to condition enforcement of the EEOC's subpoena on the entry of a protective order. For the reasons stated above and in the EEOC's opening brief, this Court should reverse the order of conditional enforcement. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant 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 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one signed original and six copies of the foregoing Brief of the EEOC as Petitioner-Appellant with the Court by first-class mail, postage pre-paid, on this 14th day of November, 2007. I further certify that I served two paper copies of the foregoing brief this 14th day of November, 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 i 1