No. 02-17305 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. PEABODY COAL COMPANY, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of Arizona ______________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ______________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7022 Washington, DC 20507 (202) 663-4728 TABLE OF CONTENTS Table of Authorities ii Jurisdictional Statement 1 Statement of the Issues 2 Statement of the Case 2 Statement of Facts 5 Summary of Argument 7 Argument 8 I. The Navajo Nation can, and should, be joined as a necessary party 8 II. The court has the power to review the legality of Peabody's leases 16 III. The district court had no reason to dismiss the record-keeping claim 22 Conclusion 26 Statement of Related Cases 27 Certificate of Compliance Addendum Certificate of Service TABLE OF AUTHORITIES Cases Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) 18 Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), rev'd on other grounds sub nom. Milliken v. Bradley, 418 U.S. 717 10 Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) 24 Baker v. Carr, 369 U.S. 186 (1962) 18-20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 24 Clay v. Equifax, Inc., 762 F.2d 952 (11th Cir. 1985) 25 Couveau v. Am. Airlines, 218 F.3d 1078 (9th Cir. 2000) 25 Davis Cos. v. Emerald Casino, 268 F.3d 477 (7th Cir. 2001) 9 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117 (9th Cir. 1998) 2 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150 (9th Cir.), cert. denied, 123 S. Ct. 98 (2002) 9 Dredge Corp. v. Penny, 338 F.2d 456 (9th Cir. 1964) 8 EEOC v. Am. Fed'n of Teachers, Local 571, 761 F. Supp. 536 (N.D. Ill. 1991) 12 EEOC v. Elgin Teachers Ass'n, 45 Fair Empl. Prac. Cas. (BNA) 446 (N.D. Ill. Dec. 24, 1986) 12 EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071 (9th Cir. 2001) 10 EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086 (6th Cir. 1974) 15 EEOC v. Oak Park Teachers' Ass'n, 45 Fair Empl. Prac. Cas. (BNA) 444 (N.D. Ill. Dec. 31, 1985) 12-13 EEOC v. Unión Independiente de la Autoridad de Acueductos, 279 F.3d 49 (1st Cir. 2002) 13 Echazabal v. Chevron USA, 226 F.3d 1063 (9th Cir. 2000), rev'd, 536 U.S. 73 (2002) 18 Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221 (1986) 17-19, 21 Lake Mohave Boat Owners Ass'n v. Nat'l Park Serv., 78 F.3d 1360 (9th Cir. 1995) 14 League of Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 2002) 18 Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) 22 Massey v. Congress Life Ins. Co., 116 F.3d 1414 (11th Cir. 1997) 24-25 McLaughlin v. Int'l Ass'n of Machinists, 847 F.2d 620 (9th Cir. 1988) 8-9 Navajo Nation v. Peabody Holding Co., 209 F. Supp. 2d 269 (D.D.C. 2002) 6 Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002) 18 Stuart v. United States, 813 F.2d 243 (9th Cir. 1987), rev'd on other grounds, 489 U.S. 353 (1989) 16 TVA v. EPA, 278 F.3d 1184 (11th Cir. 2002) 19 United States v. Bowen, 172 F.3d 682 (9th Cir. 1999) 9 United States v. ICC, 337 U.S. 426 (1949) 19 United States v. Navajo Nation, — S. Ct. — , 2003 WL 716670 (U.S. Mar. 4, 2002) 6 United States v. Nixon, 418 U.S. 683 (1974) 19 Statutes 25 U.S.C. §§ 396a, 396e 6 28 U.S.C. §§ 1291, 1331, 1337, 1343, 1345, 2107 1 Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e et seq. passim § 2000e 11, 13-14 § 2000e-2 2 § 2000e-5 1, 11-15 § 2000e-8 1, 3, 23 Other Authority 29 C.F.R. § 1602.14 23 Fed. R. Civ. P. 12 8 Fed. R. Civ. P. 19 8-15 Fed. R. Civ. P. 56 8 Fed. R. Civ. P. 58 1 Fed. R. App. P. 4 1 Restatement (Second) of Contracts 21 JURISDICTIONAL STATEMENT The district court had jurisdiction to hear this Title VII lawsuit under 28 U.S.C. §§ 1331 (federal question), 1337 (federal statute regulating commerce), 1343 (civil rights), and 1345 (federal agency as plaintiff). Jurisdiction is also explicitly conferred by Title VII, 42 U.S.C. §§ 2000e-5(f)(3), 2000e-8(c). The district court granted Peabody's motion for summary judgment and entered a final judgment under Federal Rule of Civil Procedure 58. (RE 53.)<1> This Court has appellate jurisdiction under 28 U.S.C. § 1291. The district court's judgment was entered on September 26, 2002. (RE 53.) The EEOC filed a notice of appeal on November 21, 2002, within 60 days after the judgment was entered. (RE 54.) This appeal is therefore timely under 28 U.S.C. § 2107(b) and Federal Rule of Appellate Procedure 4(a)(1)(B). STATEMENT OF THE ISSUES 1. Can the Navajo Nation be joined as a necessary party to a lawsuit brought by the EEOC against a private employer when the EEOC seeks no independent relief from the tribe? 2. Is this case justiciable regardless of whether the Department of the Interior approved the leases that require Peabody to violate Title VII? 3. Did the district court err in granting summary judgment — without explanation — on the EEOC's record-keeping claim when Peabody did not advance any reason for dismissing it? STATEMENT OF THE CASE Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire applicants because of their national origin. 42 U.S.C. § 2000e-2(a)(1). With respect to Native American applicants, this includes discrimination on the basis of tribal affiliation. Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa I), 154 F.3d 1117, 1119 (9th Cir. 1998) (“[D]iscrimination against Hopis constitutes national origin discrimination under Title VII.”). Although Title VII contains a narrow exception in certain circumstances allowing discrimination in favor of Indians living on or near a reservation, 42 U.S.C. § 2000e-2(i), that exception does not allow an employer to discriminate among the members of different tribes. Dawavendewa I, 154 F.3d at 1124 (“[T]he exemption does not include preferences based on tribal affiliation.”). In this case, the EEOC alleges that Peabody — a company that mines coal on the Navajo reservation under leases with the tribe — discriminated against Delbert Mariano, Thomas Sahu, Robert Koshiway, and other Native Americans by refusing to hire them because they are not Navajo. (RE 1-3.) We also allege that Peabody failed to retain employment applications as required by the record-keeping provision of Title VII, 42 U.S.C. § 2000e-8(c). (RE 1, 3.) Peabody has neither denied nor admitted that it discriminated against Mariano, Sahu, Koshiway, and other non-Navajo applicants. Rather, it has defended on the grounds that if it did discriminate, it did so only because its mining leases with the Navajo Nation require it to give preference to individuals of Navajo origin over non-Navajos. Peabody asserts that these leases insulate its employment practices from challenge under Title VII. Peabody sought summary judgment on the grounds that (1) although the Navajo Nation is a necessary party to this lawsuit, Title VII prohibits the EEOC from joining the tribe and (2) any question about the validity of the mining leases presents a nonjusticiable political question. The district court granted Peabody's motion for summary judgment. (RE 53.) The court agreed with both the EEOC and Peabody that the Navajo Nation was a necessary party to this lawsuit because of the tribe's interest in the mining leases. (RE 40.) But the court ruled that the Attorney General — not the EEOC — has exclusive authority under Title VII to join a governmental respondent as a necessary party. (RE 42.) Although the statute limits the term “respondent” to refer to employers against whom EEOC charges have been filed — which would not cover the Navajo Nation in this case — the court nonetheless concluded that the tribe was a governmental respondent that could not be joined by the EEOC. (RE 42-43.) The court also ruled that the case presented a nonjusticiable political question, since officials at the Department of the Interior approved the mining leases in question. (RE 50.) In the court's view, it could not resolve the EEOC's claim of discrimination against Peabody without making initial policy determinations that were committed to non-judicial discretion. (RE 50-51.) Any decision in this case, the court feared, would require it to show a lack of respect for a coordinate branch of government and would lead to potential embarrassment. (RE 51.) Although the court entered a final judgment for Peabody and dismissed the EEOC's complaint, the court gave no explanation for dismissing the EEOC's separate record-keeping claim. Peabody's motion for summary judgment did not present any argument for dismissing the record-keeping claim. Nor did the court raise the issue at oral argument on the summary-judgment motion. It simply dismissed the EEOC's entire complaint without differentiating between the two substantive claims for relief. STATEMENT OF FACTS Peabody runs coal-mining operations on the Navajo and Hopi reservations in northeastern Arizona. (RE 6.) The mining operations are authorized by leases each tribe entered with Peabody's predecessor-in-interest, the Sentry Royalty Company. (RE 6.) Peabody's leases require that it discriminate in its employment decisions on the basis of tribal affiliation by giving preference to tribal members. The leases of Navajo land state that Peabody “agrees to employ Navajo Indians when available in all positions for which, in the judgment of [Peabody], they are qualified.” (RE 18, 24.). Similar language requiring Hopi employment preferences appears in Peabody's lease of Hopi land. (RE 21.) Two of the leases allow the preferences in favor of Hopis and Navajos to be extended to Navajos and Hopis, respectively, by agreement between the two tribes, although there is nothing in the record to suggest that these provisions have been invoked. (RE 21, 25.) Federal law requires that the Peabody leases be approved by officials at the Department of the Interior. 25 U.S.C. §§ 396a, 396e; see also United States v. Navajo Nation, — S. Ct. —, 2003 WL 716670, at *11 (U.S. Mar. 4, 2002) (describing the statute as giving the tribe “the lead role in negotiating mining leases with third parties,” with the Department of the Interior's approval necessary before the leases become effective). The Navajo leases, which were signed in 1964 and 1966, were approved by (respectively) an Assistant Area Director and an Area Director in the Department of the Interior's Bureau of Indian Affairs. (RE 19, 26.) The leases have been amended several times with approval of officials at the Department of the Interior, but no changes have been made to the Navajo employment preferences. (RE 13-14, 27.) See also United States v. Navajo Nation, 2003 WL 716670 at *5-7 (describing the history of the 1987 amendments to these leases in a breach-of-trust suit by the Navajo Nation against the federal government); Navajo Nation v. Peabody Holding Co., 209 F. Supp. 2d 269, 275-76 (D.D.C. 2002) (describing the same history in a RICO suit by the tribe against Peabody). The tribes and the Department of the Interior retain the power to cancel the leases if there is any violation of the terms of the leases. (RE 17, 21, 23-24.) SUMMARY OF ARGUMENT Title VII does not limit the court's power to join the Navajo Nation as a necessary party to a suit brought by the EEOC against a private employer. The statute divides enforcement authority between the EEOC and the Attorney General with respect to governmental respondents — that is, governmental entities acting as employers against whom EEOC charges have been filed. But this suit does not involve the Navajo Nation as an employer. The tribe's employment practices are explicitly exempted from Title VII. Thus, the division of authority between the EEOC and the Attorney General is entirely irrelevant here. The EEOC neither charges the Navajo Nation with violating Title VII nor seeks independent relief from the tribe on behalf of the victims of Peabody's discrimination. The tribe must be joined only to ensure that the court can order full relief against Peabody, whose employment practices the EEOC is tasked with policing. The dispute between the EEOC and Peabody over whether the mining leases exempt the company from Title VII's provisions is justiciable. The Department of the Interior's approval of these leases in no way prevents the court from determining whether they comply with federal law. To the contrary, this is an ordinary exercise in judicial review of an agency's interpretation of the law. Whether or not the EEOC is correct that the leases do not justify Peabody's national-origin discrimination, resolving that question is a matter for the courts — not the unbridled discretion of officials at a department that does not even enforce Title VII. Finally, regardless of the outcome of the EEOC's substantive claim of discrimination, this Court should remand for the district court to consider the EEOC's separate record-keeping claim. The record-keeping claim is viable independent of the other issues raised in this appeal, because the Navajo Nation is not a necessary party to this claim and the claim does not implicate the validity of the mining leases. Neither the district court nor Peabody has given any reason for dismissing the record-keeping claim. ARGUMENT I. The Navajo Nation can, and should, be joined as a necessary party. Although styled as a motion for summary judgment under Federal Rule of Civil Procedure 56, Peabody's dispositive motion should be treated as a motion to dismiss under Rule 12(b)(7). See Dredge Corp. v. Penny, 338 F.2d 456, 463-64 (9th Cir. 1964) (failure to join a party must be decided by motion to dismiss, not summary judgment). However Peabody's motion is characterized, this Court reviews the district court's ruling de novo. McLaughlin v. Int'l Ass'n of Machinists, 847 F.2d 620, 621 (9th Cir. 1988).<2> At this stage, the Court must accept as true all well-pleaded allegations in the EEOC's complaint. Davis Cos. v. Emerald Casino, 268 F.3d 477, 479 n.2 (7th Cir. 2001). This issue was raised in Peabody's motion for summary judgment and ruled on in the district court's opinion. The Navajo Nation must be joined as a party to this lawsuit. Federal Rule of Civil Procedure 19(a) provides that a necessary party “shall be joined” if feasible.<3> In this case, the Navajo Nation is necessary because it is a party to the lease with Peabody. See Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa II), 276 F.3d 1150, 1155-59 (9th Cir.), cert. denied, 123 S. Ct. 98 (2002). Without the tribe's presence, Peabody could be subject to inconsistent orders if the court enjoined Peabody from applying the Navajo employment preference in this case but the tribe secured an order enforcing the preference in another case. To protect the interests of both Peabody and the Navajo Nation, then, Rule 19(a) mandates that the court “shall order that the [tribe] be made a party” if joinder is feasible. Joining the Navajo Nation is feasible. Rule 19(a) lists only three circumstances where joinder is not feasible: (1) if joinder would deprive the court of subject-matter jurisdiction; (2) if the party to be joined is not subject to service of process; or (3) if the party to be joined has a valid objection to venue. None of these circumstances is present here. Subject-matter jurisdiction is not in question because the tribe cannot invoke its sovereign immunity against the EEOC, a branch of the federal government. EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1075 (9th Cir. 2001). And neither Peabody nor the district court suggested that the tribe would not be amenable to service of process or would have a valid objection to venue. Because the conditions listed in Rule 19(a) are satisfied here, joinder is feasible and the tribe must be made a party. See Bradley v. Milliken, 484 F.2d 215, 251 (6th Cir. 1973) (“Under this rule joinder of necessary parties is required if jurisdiction over them can be obtained and if joinder will not defeat federal jurisdiction of the case.”), rev'd on other grounds sub nom. Milliken v. Bradley, 418 U.S. 717 (1974). The district court grafted an additional — and unique — requirement onto Rule 19(a)'s standard that applies only to cases brought by the EEOC: that the party to be joined may not be a governmental entity. The court gleaned this requirement from Title VII's division of enforcement power between the EEOC and the Attorney General. The court has misread Title VII, as the division of suit authority has no bearing on this case. Although the EEOC generally has full enforcement authority under Title VII, including the power to sue employers who have discriminated, the statute limits the EEOC's power in cases involving “a respondent which is a government, governmental agency, or political subdivision.” 42 U.S.C. § 2000e-5(f)(1). A “respondent” in this context means a governmental employer against whom an employment-discrimination charge has been filed with the EEOC. Id. § 2000e-5(b).<4> In the case of a governmental respondent, if the EEOC's efforts to conciliate the matter by informal means fail, the EEOC “shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent.” Id. § 2000e-5(f)(1). One district court in Illinois has read this provision as preventing the EEOC from using Rule 19 to join a school board — a governmental entity — as a defendant in a lawsuit against the teachers' union. EEOC v. Am. Fed'n of Teachers, Local 571, 761 F. Supp. 536, 539 (N.D. Ill. 1991); EEOC v. Elgin Teachers Ass'n, 45 Fair Empl. Prac. Cas. (BNA) 446, 447 (N.D. Ill. Dec. 24, 1986); EEOC v. Oak Park Teachers' Ass'n, 45 Fair Empl. Prac. Cas. (BNA) 444, 446 (N.D. Ill. Dec. 31, 1985). In the Illinois cases, the EEOC's claim against the union was based on the union's negotiating a discriminatory collective bargaining agreement with the school board. Local 571, 761 F. Supp. at 537; Elgin, 45 Fair Empl. Prac. Cas. at 447; Oak Park, 45 Fair Empl. Prac. Cas. at 445. Thus, it was the school board's practices as an employer covered by Title VII that were ultimately at issue in the case. The court reasoned that because the school board was a governmental respondent, the EEOC was obligated to “take no further action” against the board and to “refer the case to the Attorney General” instead. Local 571, 761 F. Supp. at 539. By naming the board as a Rule 19 defendant, the court concluded, the EEOC had taken further action. Id. And this, in the court's view, trammeled on the Attorney General's exclusive authority to litigate cases of employment discrimination by state and local governments. This reading of Title VII (which the district court purported to adopt in this case) makes sense only when the case involves a governmental respondent — that is, a state or local government acting as an employer. Thus, the case must challenge the employment practices of a governmental employer under Title VII. In those cases, the Illinois opinions suggest that the Attorney General's exclusive authority to bring suit precludes the EEOC from naming the governmental respondent as a Rule 19 defendant. Cf. EEOC v. Unión Independiente de la Autoridad de Acueductos, 279 F.3d 49, 52 (1st Cir. 2002) (noting without disapproval that the EEOC named the Puerto Rico governmental employer as a Rule 19 defendant for relief purposes in a suit against the union for its own discrimination). And even on this issue the cases are somewhat equivocal; one of the Illinois opinions explicitly states that the EEOC can assert its claims against the union by intervening in a private suit brought against both the governmental entity and the union, suggesting that there is nothing inherently wrong with the EEOC's participating in a case involving a governmental entity. Oak Park, 45 Fair Empl. Prac. Cas. at 446. Regardless of whether the Illinois cases are correct, however, their reading of Title VII has no effect on the EEOC's authority in this case because the Navajo Nation is not a “respondent.” Title VII explicitly exempts tribes such as the Navajo Nation from the statutory definition of an “employer.” 42 U.S.C. § 2000e(b)(1). No charges of discrimination have been filed against the tribe, and none could be. It is Peabody's, not the Navajo Nation's, employment practices that are at issue here. Although the district court suggested that “[n]o meaningful distinction exists between ‘respondent' and ‘defendant'” (RE 42-43), this ignores the statutory definitions in § 2000e-5(f)(1), which equates “respondent” with an employer against whom charges of employment discrimination have been filed, and § 2000e(n), which defines “respondent” as an entity covered by Title VII's substantive provisions. We do not — and could not — assert that the Navajo Nation violated Title VII. The division of authority between the EEOC and the Attorney General, therefore, has no application to this case. The EEOC does have the power to challenge Peabody's employment practices, however, because Peabody is a covered employer under Title VII. And to ensure that full relief would be available from Peabody, the court can — indeed, must — order that the tribe be joined as a necessary party. A party can be joined solely to fashion relief against the principal defendant for a statutory violation, even if the joined party could not be held liable under the statute for its own actions. See, e.g., Lake Mohave Boat Owners Ass'n v. Nat'l Park Serv., 78 F.3d 1360, 1369 (9th Cir. 1995) (holding that a private company could be joined under Rule 19 so that the court could fashion complete relief against a federal agency, even though the statutes at issue apply only to actions by the federal government). For example, filing a timely charge of discrimination is generally a prerequisite to bringing a Title VII lawsuit. 42 U.S.C. § 2000e-5. But even if no charge has been filed against a union, the union may be joined in a suit against the employer for purposes of relief. E.g., EEOC v. MacMillan Bloedel Containers, 503 F.2d 1086, 1095-96 (6th Cir. 1974). Thus, the Navajo Nation's exemption from Title VII does not prevent it from being joined as a necessary party in an otherwise proper Title VII suit. Nothing in Title VII limits the EEOC's power in cases where a non-respondent must be made a party to provide full relief. While Rule 19 may not authorize independent relief against a joined party, the very purpose of the rule is to allow parties to be joined as defendants when necessary even though the plaintiff does not have an independent cause of action against the joined parties. Here the EEOC seeks no independent relief from the Navajo Nation for Peabody's discriminatory employment practices. The tribe's presence is needed only because it is a party to the mining leases with Peabody. Thus, even though Title VII does not provide the EEOC with a cause of action against the Navajo Nation for inducing Peabody to violate Title VII, the tribe can be joined as a Rule 19 defendant in order to secure effective relief from Peabody. II. The court has the power to review the legality of Peabody's leases. The EEOC's discrimination claim implicates Peabody's mining leases. In particular, the EEOC's success in this lawsuit would imply that the tribal-employment-preference provisions in these leases are invalid. The leases — including the tribal employment preferences — were approved by officials at the Department of the Interior. The district court saw a “direct contradiction” between the views of the EEOC and the Department of the Interior. (RE 50.) But instead of resolving this question, the court punted by ruling that the issue presented a non-justiciable political question. (RE 50-51.) Whether a lawsuit is justiciable is a legal question reviewed de novo. Stuart v. United States, 813 F.2d 243, 247 (9th Cir. 1987), rev'd on other grounds, 489 U.S. 353 (1989). This issue was raised in Peabody's motion for summary judgment and ruled on in the district court's opinion. The district court misunderstood the political-question doctrine. The Department of the Interior is not charged with administering Title VII, so there is little reason to believe that its approval of the tribal employment preferences in Peabody's mining leases signals anything about the Department's view as to whether the leases comply with Title VII. But even if the Department's approval could be taken as a view that the leases comply with Title VII, reviewing that opinion is not “political” in some extraordinary sense. Rather, this case presents (at most) ordinary judicial scrutiny of an agency's interpretation to determine whether it is faithful to federal law. There is nothing inherently problematic about reviewing a federal agency's statutory interpretation. As the Supreme Court has explained, it “goes without saying” that the federal courts' task is to interpret congressional legislation, and the courts may not shirk this responsibility simply because a political branch has its own view. Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986). Japan Whaling concerned whether a federal statute required the Secretary of Commerce to certify Japan as out of compliance with an International Whaling Commission quota or whether the Secretary retained some discretion to refuse to certify even if Japan was in fact exceeding the quota. The situation was complicated by an executive agreement between the Secretary and Japan in which the Secretary agreed not to certify Japan if Japan took certain actions. But while recognizing the foreign-relation implications of the case, the Supreme Court insisted that its decision “calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented.” Id. at 230. The Court therefore held that the political-question doctrine did not bar the challenge to the Secretary's action. Id. Japan Whaling is not at all unique in this regard. The federal courts regularly review agencies' statutory interpretations to determine if they are correct. E.g., Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002) (rejecting the Department of Labor's interpretation of the Family and Medical Leave Act); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002) (rejecting the Commissioner of Social Security's actions under the Coal Industry Retiree Health Benefit Act). This is true even when the suit is not against the agency itself but rather some other defendant who relied on the agency's interpretation. E.g., League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1190 (9th Cir. 2002) (rejecting the EPA's interpretation of the Clean Water Act, on which the defendant U.S. Forest Service relied); Echazabal v. Chevron USA, 226 F.3d 1063, 1069 (9th Cir. 2000) (rejecting the EEOC's interpretation of the ADA, on which a private defendant relied), rev'd, 536 U.S. 73 (2002). And because the justiciability doctrine is about political questions rather than political cases, Baker v. Carr, 369 U.S. 186, 217 (1962), the court does not lose the power to decide the issues in this case simply because the party that disagrees with an agency's interpretation is another federal agency rather than a private party. Indeed, courts have adjudicated disputes about the meaning of federal law in the context of a direct lawsuit between two branches of the federal government. E.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (dispute between the President and Special Prosecutor); United States v. ICC, 337 U.S. 426, 430 (1949) (suit by the United States to review decision of a federal regulatory body); TVA v. EPA, 278 F.3d 1184, 1198 (11th Cir. 2002) (dispute between federal entities over the meaning of the Clean Air Act). This case, of course, is not as extreme as those; the EEOC is not suing the Department of the Interior over its approval of the Peabody mining leases. But this shows that there is nothing inherently troubling about a court's deciding which of two competing agency views is correct. Nor is there anything particular about the lease approvals in this case that makes them unsuitable for judicial review. The purpose of the political-question doctrine is to exclude from judicial review controversies that at their core are not legal in nature — those that “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling, 478 U.S. at 230 (emphasis added). The Supreme Court has listed a number of factors that are relevant to determining whether a case presents a non-justiciable political question: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217. The district court did not suggest that this case involves a matter committed by the Constitution's text to the Department of the Interior; or that the court could not discover manageable standards for resolving the dispute; or that there is an unusual need to adhere to political decisions already made. Rather, the court focused on the other Baker factors, concluding in particular that the case would require it to show a lack of respect for a federal agency (either the EEOC or the Department of the Interior) and lead to embarrassment from “multifarious pronouncements” by the federal government on one issue. (RE 51.) But that is no more true here than in any of the other cases in which a court reviews an agency's interpretation of federal law. The court gave no justification for its extraordinary conclusion that this interpretation by the Department of the Interior — unlike virtually any other agency decision — should be insulated from court review. The court also suggested that deciding this case “would of necessity require it to make an initial policy choice between the EEOC's enforcement of Title VII and its underlying policies against discrimination and the Secretary of the Interior's policies and practices with regards to Indian tribes,” but it did not explain why the court would have to make this abstract policy choice or why it was “of a kind clearly for non-judicial discretion.” (RE 50-51.) Interpreting legislation such as Title VII is the job of courts, using the ordinary tools of statutory construction. Japan Whaling, 478 U.S. at 230. In spite of the “significant political overtones” in this case, id., the court may not shirk its responsibility to apply federal law. Nor does the Department of the Interior's power to cancel the leases create a real possibility of conflict within the federal government. Even if the Department were to cancel the leases should the tribal employment preferences be held invalid — sheer speculation at this point — that would indicate only that the Department viewed the leases' terms as having been frustrated. Cf. Restatement (Second) of Contracts §§ 152, 264 (supervening illegality may make a contract voidable because of mutual mistake). The Department's action in canceling the leases would not constitute a rejection of the federal courts' interpretation of Title VII, because canceling the leases is not the same as proclaiming that the leases comply with Title VII. There is nothing inconsistent — and hence no reasonable possibility of multifarious pronouncements by the federal government — in saying that, on the one hand, tribal preferences violate Title VII and, on the other hand, the leases can be canceled when their provisions cannot be satisfied. At bottom, neither the court nor Peabody has explained how — or why — the Constitution commits to the Department of the Interior the unreviewable discretion to create exceptions to Title VII. The Department has no such power in the first place, let alone the power to do so without judicial scrutiny. This case presents an ordinary, justiciable question — does the Department of the Interior's approval of the tribal preference give Peabody a defense in a Title VII case? — rather than the sort of extraordinary question whose resolution is barred by the political-question doctrine. III. The district court had no reason to dismiss the record-keeping claim. The EEOC's record-keeping claim should be adjudicated by the district court because it is viable independent of the discrimination claim against Peabody. This Court reviews the district court's grant of summary judgment de novo. Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). This issue was never raised explicitly by Peabody but was implicitly ruled on by the district court's entry of final judgment. Title VII requires a covered employer to preserve records that would help determine whether it has committed an unlawful employment practice. 42 U.S.C. § 2000e-8(c). Among the documents that must be preserved are “application forms submitted by applicants,” which generally must be kept on file for at least one year. 29 C.F.R. § 1602.14. In our complaint, we alleged that Peabody had failed to retain employment applications and sought an injunction compelling Peabody to comply with its record-keeping duties. (RE 1, 3-4.) Although the district court entered a final judgment for Peabody on all of the EEOC's claims, it gave no explanation for dismissing the record-keeping claim. Indeed, Peabody's motion for summary judgment — the only motion the court granted in its opinion — does not mention the record-keeping claim even once. And Peabody's concomitant motion to dismiss, which the court did not grant, discusses the record-keeping claim only in the course of arguing that the EEOC is not entitled to a jury trial on that claim (a point we did not contest in our response). (R. doc. 24, at 10; doc. 28, at 7 n.3.) Nor did Peabody make any argument for dismissing the record-keeping claim at the summary-judgment hearing. In short, the EEOC had no reason to believe that Peabody was seeking more than partial summary judgment on the discrimination claim. The EEOC's record-keeping claim is not tied to our discrimination claim. Peabody is an employer covered by Title VII, and therefore it has an obligation to preserve employment applications. There is no reason that the Navajo Nation would be a necessary party to that determination, because Peabody's record-keeping duties do not interfere with its contractual obligations under the mining leases. Similarly, the Department of the Interior's position on tribal employment preferences has no effect on Peabody's record-keeping duties. Peabody has not alleged that either the tribe or the Department ordered Peabody not to keep the records required by Title VII. Thus, regardless of this Court's decision on the other issues raised in this appeal, the record-keeping claim is viable. Peabody bears the burden of proving that summary judgment is appropriate on the record-keeping claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). While Peabody is not necessarily required to submit its own evidence negating our claim, it “bears the initial responsibility of informing the district court of the basis for its motion.” Id. Peabody must at least articulate why it believes there is no genuine issue of material fact about its record-keeping violation so that the EEOC can rebut with admissible evidence. The district court does have the power to grant summary judgment sua sponte, but only if it gives sufficient notice to the litigants and an opportunity to provide a factual basis for the claim. Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993); see also Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997) (requiring a minimum of ten days' notice). Here, the district court never informed the EEOC that it was considering summary judgment on the record-keeping claim. A district court also is obligated to explain the reasoning behind its grant of summary judgment, particularly when the reasons would not otherwise be clear. Couveau v. Am. Airlines, 218 F.3d 1078, 1081 (9th Cir. 2000) (per curiam); see also Clay v. Equifax, Inc., 762 F.2d 952, 957 (11th Cir. 1985) (“The unexplained summary judgment order not only denies to the appellate court the tools of review but conceals what the court did and why and leaves the appeals court, like the proverbial blind hog, scrambling through the record in search of an acorn. This is antithetical to proper performance of the review function.”). The district court therefore erred in dismissing the EEOC's record-keeping claim without articulating any reason why the claim fails as a matter of law. CONCLUSION The district court's holdings rest on the misconception that Peabody's leases insulate its employment practices from Title VII. If allowed to stand, they would empower tribes and federal agencies to create their own exceptions to federal antidiscrimination laws, without any oversight by the courts. This Court should reverse and remand for the district court to join the Navajo Nation as a necessary party and adjudicate both of the EEOC's claims against Peabody. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel __________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7022 Washington, DC 20507 (202) 663-4728 March 7, 2003 STATEMENT OF RELATED CASES The EEOC is not aware of any related cases pending in this Court. ADDENDUM 42 U.S.C. § 2000e § 2000e. Definitions For purposes of this subchapter— * * * (b) The term “employer” means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty?five employees (and their agents) shall not be considered employers. * * * (n) The term “respondent” means an employer, employment agency, labor organization, joint labor?management committee controlling apprenticeship or other training or retraining program, including an on?the?job training program, or Federal entity subject to section 2000e-16 of this title. 42 U.S.C. § 2000e-5 § 2000e-5. Enforcement Provisions * * * (b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor?management committee controlling apprenticeship or other training or retraining, including on?the?job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor?management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. * * * (f) (1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section, is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance. * * * Federal Rule of Civil Procedure 19 Rule 19. Joinder of Persons Needed for Just Adjudication (a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in the proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. * * * CERTIFICATE OF SERVICE I certify that on March 7, 2003, I caused copies of this brief to be served by First-Class Mail, postage prepaid, to the following: Cathy Catterson, Clerk of Court United States Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Lawrence J. Rosenfeld Mary E. Bruno John F. Lomax, Jr. Greenberg Traurig, LLP 2375 East Camelback Road, Suite 700 Phoeniz, AZ 85016 Attorneys for Defendant-Appellee Tod F. Schleier Bradley H. Schleier James M. Jellison Schleier Jellison & Schleier, PC 3101 North Central Avenue, Suite 800 Phoenix, AZ 85012 Attorneys for Applicants in Intervention ____________________________ BENJAMIN N. GUTMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7022 Washington, DC 20507 (202) 663-4728 March 7, 2003 1 Cites to “RE” are by page to the Excerpts of Record. Other record cites are by district court docket document number and page. 2 Some cases suggest that an abuse-of-discretion standard governs review of joinder decisions. E.g., United States v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999). Even these cases, however, recognize that legal rulings underlying the court's exercise of its discretion are reviewed de novo. Id. Because this case turns on a purely legal question — the interpretation of statutory language in Title VII — the standard is de novo under either view. 3 The relevant provisions of Rule 19 and Title VII are set forth in the addendum to this brief. 4 “Respondent” can also refer to an employment agency, labor organization, or joint labor-management committee against whom an EEOC charge has been filed, but in the context of governmental entities it is difficult to imagine that any of these would be relevant. See also id. § 2000e(n) (defining “respondent” to mean “employer” or another covered entity).