_________________________________________ 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 ______________________________________________ REPLY BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________ NICHOLAS M. INZEO Acting Deputy General 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 Summary of Argument 1 Argument 3 I. Joining the Navajo Nation is feasible because the EEOC does not seek substantive relief from the tribe 3 II. This case is justiciable because the Department of the Interior has at most statutory, rather than constitutional, authority to make federal Indian policy 10 III. The EEOC did not waive the record-keeping claim 16 Conclusion 21 Certificate of Compliance Certificate of Service TABLE OF AUTHORITIES Cases Baker v. Carr, 369 U.S. 186 (1962) 11-12 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 17-19 Chao v. Bremerton Metal Trades Council, 294 F.3d 1114 (9th Cir. 2002) 15 County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) 14 Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 276 F.3d 1150 (9th Cir.), cert. denied, 123 S. Ct. 98 (2002) 3-4, 7-9 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) 15 Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997) 14 Goldwater v. Carter, 444 U.S. 996 (1979) 12, 16 Icon Group v. Mahogany Run Dev. Corp., 829 F.2d 473 (3d Cir. 1987) 5 In re The Glacier Bay, 944 F.2d 577 (9th Cir. 1991) 15-16 Koon v. United States, 518 U.S. 81 (1996) 3 Lake Mohave Boat Owners Ass’n v. Nat’l Park Serv., 78 F.3d 1360 (9th Cir. 1996) 6 McClendon v. United States, 885 F.2d 627 (9th Cir. 1989) 7 Nixon v. United States, 506 U.S. 224 (1996) 11-12 Penobscot Indian Nation v. Key Bank, 112 F.3d 538 (1st Cir. 1997) 19-20 Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d 317 (1st Cir. 2001), cert. denied, 534 U.S. 1127 (2002) 5 Russ v. Int’l Paper Co., 943 F.2d 589 (5th Cir. 1991) 17 S.F. Drydock v. Dalton, 131 F.3d 776 (9th Cir. 1997) 15 United States v. Hall, 472 F.2d 261 (5th Cir. 1972) 6 United States v. Navajo Nation, 123 S. Ct. 1079 (2003) 10 United States v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996) 15 Statutes 28 U.S.C. § 1345 7 28 U.S.C. § 2072 6 Title VII of the Civil Right Act of 1964, 42 U.S.C. § 2000e et seq. passim § 2000e 3, 8-9 § 2000e-2 8 § 2000e-5 7 43 U.S.C. § 1451 15 Other Authority Fed. R. Civ. P. 19 1, 3-10 Mark Tushnet, Law and Prudence in the Law of Justiciability, 80 N.C. L. Rev. 1203, 1213 (2002) 12 Neal Devins, Political Will and the Unitary Executive, 15 Cardozo L. Rev. 273 (1993) 15 SUMMARY OF ARGUMENT In our opening brief, the EEOC made three arguments: It is feasible to join the Navajo Nation as a necessary party, the legal issues in this lawsuit are justiciable, and there was no basis for the district court to grant summary judgment on the record-keeping claim. Peabody’s responses to each argument are grounded in mistaken assumptions. On the joinder issue, Peabody wrongly assumes that the EEOC is seeking to assert a claim against the Navajo Nation. The EEOC’s Title VII claims are against only Peabody. Thus, Peabody’s repeated protests that the tribe cannot be held liable for employment discrimination under Title VII are simply beside the point. Nothing in Title VII prevents the tribe’s joinder under Rule 19. And if joined the tribe would not be held liable for violating Title VII. The tribe should be joined because of its interest in the leases and the need to avoid conflicting judgments, interests that are at the core of Rule 19. On justiciability, Peabody wrongly assumes that the Department of the Interior has exercised constitutional authority to exempt Peabody from Title VII’s requirements. This is wrong in two respects: First, the Department of the Interior’s approval of the leases in this case does not signal an intent to exempt Peabody from federal law. Second, and more importantly, the Department of the Interior has no such constitutional power to do so even if it intended to. Rather, its authority extends only to implementing the policies legislated by Congress. Because this case involves (at most) a clash of congressionally determined policies, it falls squarely within the judiciary’s power to resolve. Peabody does not attempt to defend dismissal of the record-keeping claim on the merits; rather, it argues that the EEOC waived the claim. But Peabody wrongly assumes that the burden shifted to the EEOC to defend the adequacy of this claim. Because neither Peabody nor the district court ever asserted any inadequacy in the EEOC’s claim, the EEOC never shouldered the burden of justifying the claim. With these incorrect assumptions exposed, Peabody’s arguments, like the district court’s decision, are unsupportable. This Court should reverse the grant of summary judgment. ARGUMENT I. Joining the Navajo Nation is feasible because the EEOC does not seek substantive relief from the tribe. Peabody’s Rule 19 argument mistakenly presumes that the EEOC is seeking to “prosecute” the Navajo Nation under Title VII. As Peabody correctly notes, the tribe’s employment practices are specifically exempted from Title VII. 42 U.S.C. § 2000e(b)(1). There is no quarrel over this point. But this case is against Peabody, not the tribe, and it involves Peabody’s employment practices, not the tribe’s. The tribe should be joined not because it has violated Title VII, but rather because of its interest in Peabody’s actions that we allege violate Title VII.1 Because we are neither challenging the Navajo Nation’s own employment practices nor seeking to hold the tribe responsible for Peabody’s practices, it is irrelevant that the tribe’s own employment practices are not covered by Title VII. It is even more irrelevant that the Attorney General has the exclusive authority to enforce Title VII with respect to the employment practices of state and local governments. As we explained in our opening brief, that sets this case apart from the Illinois cases on which Peabody relies, where the EEOC was prevented from joining a local government to a suit against a teachers’ union that challenged the employment practices of the governmental entity. Opening Br. at 11-14. The tribe should be joined because it may wish to defend its leases and to prevent Peabody from facing the possibility of inconsistent legal obligations. These are the interests that Rule 19 is designed to accommodate. See generally Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa II), 276 F.3d 1150, 1155-59 (9th Cir.) (explaining why the Navajo Nation is a necessary party to a Title VII claim challenging the validity of the leases), cert. denied, 123 S. Ct. 98 (2002). The tribe does not face the possibility of monetary liability to the EEOC or similar affirmative relief if it is joined. Nor does the tribe face the possibility that its own employment practices will be subjected to judicial scrutiny. Peabody notes (br. at 23) that the EEOC mentioned in the district court the possibility that once joined, the Navajo Nation might choose to raise broader issues that would bind the tribe more affirmatively: We are not certain what the Navajo Nation is going to do or say when they come before the Court. As we pointed out, it’s just as likely they may say, fine, this is a good chance for us to litigate this issue and determine whether or not our Navajo Preference in Employment Act is valid as opposed to Title VII for employers who are covered entities on the reservation. And I think that’s just as valid an idea that they would somehow say, no, they shouldn’t be before the Court. SER 160. We cannot speculate at this stage about whether the tribe will raise additional arguments if it is joined. But even if the tribe does nothing, the only consequence it will face is that it will be bound by the court’s ruling on the legality of the lease provisions. See, e.g., Penobscot Nation v. Ga.-Pac. Corp., 254 F.3d 317, 325 (1st Cir. 2001) (res judicata prevents tribe from relitigating issue decided in earlier case), cert. denied, 534 U.S. 1127 (2002); Icon Group v. Mahogany Run Dev. Corp., 829 F.2d 473, 478 (3d Cir. 1987) (“essential purpose[]” of Rule 19 is “to ensure that a judgment will have res judicata effect”). Lest anything that we said in the district court confused Peabody on this point, we make our position perfectly clear: We seek no affirmative relief from the Navajo Nation under Title VII, either in the form of damages or an injunction. We seek only to ensure (through res judicata) that the tribe cannot relitigate any of the issues decided in our suit against Peabody. Because the EEOC does not seek to hold the Navajo Nation liable under Title VII, joining the tribe under Rule 19 does not run afoul of 28 U.S.C. § 2072(b), which provides that the federal rules shall not enlarge any substantive rights. Peabody Br. at 21. Rule 19 allows a party to be joined even when the plaintiff has no direct cause of action against the joined party. Opening Br. at 14-15 (citing Lake Mohave Boat Owners Ass’n v. Nat’l Park Serv., 78 F.3d 1360, 1369 (9th Cir. 1996)). Peabody offers no response to Lake Mohave other than to point out that it did not involve the EEOC or Title VII. Peabody br. at 20 n.7. This is true, but beside the point, since Lake Mohave supports the EEOC’s interpretation of Rule 19. Peabody offers no contrary authority to support its unduly restrictive reading of Rule 19. Peabody’s attempt to characterize this issue as a question of subject-matter jurisdiction fails. Peabody br. at 28-32. The district court had jurisdiction over the EEOC’s lawsuit against Peabody. Opening br. at 1 (listing jurisdiction-conferring statutes); see also Peabody br. at 1 (agreeing that the district court had jurisdiction over the lawsuit as it was originally filed). Nothing in Title VII or any other federal law would strip the court of this jurisdiction simply because the Navajo Nation is joined as a party. Peabody’s discussion of 28 U.S.C. § 1345, which provides jurisdiction over actions by federal agencies expressly authorized to sue by statute, misses the point. Congress has given the EEOC the express authority to sue Peabody. 42 U.S.C. § 2000e-5(f)(1). There is nothing about the tribe’s joinder that limits the EEOC’s authority to sue Peabody. As Peabody concedes (br. at 27), this is not a case in which the tribe can invoke its sovereign immunity. Thus, the cases cited by Peabody (br. at 26) are inapposite, because all turn on the tribes’ sovereign immunity, which is a jurisdictional bar. McClendon v. United States, 885 F.2d 627, 629 (9th Cir. 1989). Peabody incorrectly characterizes as “dicta” this Court’s statement in Dawavendewa II that the EEOC has the power to sue an employer and join a tribe as a necessary party. Peabody br. at 29. The Dawavendewa II Court relied on this alternative forum in balancing the Rule 19(b) factors that determine whether a case should be dismissed when it is not feasible to join a necessary party. In that case, the tribe’s sovereign immunity prevented it from being joined to a private Title VII suit, and the question was whether the case should proceed without the tribe. One of the factors to be considered in this inquiry is whether there is an alternative forum for the plaintiff to obtain relief. Fed. R. Civ. P. 19(b). This Court employed an a fortiori argument: if prior cases hold that a lack of alternative forum is not a bar to dismissal, then this case is all the more appropriate for dismissal because there is the possibility of an alternative forum — namely, relief through a suit by the EEOC in which the tribe could be joined. 276 F.3d at 1162-63. Because Rule 19(b) is a balancing test, and each factor plays a role in determining the outcome, the discussion of this factor is integral to the Court’s analysis. The Dawavendewa II Court’s recognition that the EEOC can join the tribe under Rule 19 cannot be dismissed as dicta. Peabody’s argument, if taken seriously, would have dramatic consequences reaching far beyond this case. It would provide blanket immunity from Title VII (and probably many other federal laws) to any company that does business with tribes — a result at odds with the statute, which provides no such exception. Rather, Congress saw fit to exempt only tribes’ own employment practices, 42 U.S.C. § 2000e(b)(1), and a narrow Indian preference not at issue in this case, id. § 2000e-2(i). Peabody’s argument in this case would remove the careful limits to these exceptions that Congress set. Even more broadly, Peabody’s Rule 19 argument would allow any employer to insulate itself from Title VII by entering contractual arrangements with other entities not themselves covered by Title VII, such as companies with fewer than 15 employees. See 42 U.S.C. § 2000e(b). Under Peabody’s reasoning, because the non-covered entities would not be subject to suit under Title VII, they could not be joined as necessary parties under Rule 19. Cf. Dawavendewa II, 276 F.3d at 1157 (“[A] party to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to decimate that contract.”). Thus, a Title VII lawsuit against the covered entity that implicated the contractual arrangements presumably would have to be dismissed. And in this sense, Peabody’s argument has nothing to do with the division of enforcement authority between the EEOC and Attorney General that the district court relied on. Under Peabody’s view of Rule 19, nobody — neither the EEOC, nor the Attorney General, nor a private plaintiff — can join a party to a Title VII lawsuit for any purpose unless that party would be covered by the statute as an employer. Peabody’s arguments might have some force if we were seeking to use Rule 19 as a means to hold the tribe liable for entering a lease t hat violates Title VII. But here we seek nothing of the sort. The tribe’s presence is necessary to ensure that it is bound by the district court’s judgment as to the legality of the tribal-preference provisions. The tribe can, and should, be joined for this purpose. II. This case is justiciable because the Department of the Interior has at most statutory, rather than constitutional, authority to make federal Indian policy. Peabody’s political-question argument wrongly presumes that by approving the leases, the Department of the Interior intended to exempt Peabody from Title VII. As we explained in our opening brief at 16, there is little reason to believe that the Department of the Interior’s approval signals anything about its view as to whether the tribal employment preferences comply with Title VII, a law the Department of the Interior is not charged with enforcing. There is also substantial reason to doubt that the Department of the Interior played as central a role in determining the language of the leases as Peabody suggests. See United States v. Navajo Nation, 123 S. Ct. 1079, 1092 (2003) (explaining that the tribe, not the government, plays “the lead role in negotiating mining leases”). Even if one accepts that the Department of the Interior drafted or “required” (Peabody br. at 41) the leases’ language, however, there is no reason to think that it considered Title VII’s strictures in doing so. And because the Department of the Interior’s approval does not evidence an intent to exempt Peabody from Title VII, there is no potential clash with a federal agency’s policy in enforcing Title VII against Peabody. Peabody was not required to agree to any lease at all; it cannot blame others for drafting provisions with which it cannot legally comply. Peabody’s brief offers nothing in response to this point. But even assuming there were a potential clash, Peabody’s argument would still be incorrect, because it relies on a misconception about the political-question doctrine. The political-question doctrine arises out of the constitutional separation of powers. See Baker v. Carr, 369 U.S. 186, 210-11 (1962). In other words, a nonjusticiable political question arises only when a matter is constitutionally committed to the exclusive discretion of a political branch of government. Id. at 211 (noting that the political-question doctrine is a “delicate exercise in constitutional interpretation” to determine whether the Constitution commits a matter exclusively to another branch of government); Nixon v. United States, 506 U.S. 224, 240 (1993) (White, J., concurring in the judgment) (“[T]he issue is whether the Constitution has given one of the political branches final responsibility for interpreting the scope and nature of [a constitutionally granted] power.”). While this commitment need not always be explicitly textual, it must derive from the Constitution — if not from its text then from its structure or logic. Nixon, 506 U.S. at 240 (White, J., concurring in the judgment) (noting that political questions are usually inferred from the Constitution’s text and structure); Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (Powell, J., concurring in the judgment) (noting that the political-question doctrine may require “interstitial analysis” of the Constitution). The various formulations from Baker v. Carr that Peabody relies on, such as “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” are merely guides for conducting this constitutional inquiry. Cf. Mark Tushnet, Law and Prudence in the Law of Justiciability, 80 N.C. L. Rev. 1203, 1213 (2002) (noting that in its more recent cases, the Supreme Court has not invoked the last four of the six Baker v. Carr criteria, “to the point where it seems fair to say that the only real components of the doctrine are the first two: a textually demonstrable commitment to the political branches and the lack of judicially manageable standards”). Peabody’s discussion of this point (Peabody br. at 35 & n.13) omits the words “textually demonstrable” from the phrase “textually demonstrable constitutional commitment” in Baker v. Carr. As such, Peabody’s entire argument is grounded in a misunderstanding of the political-question doctrine — Peabody does not believe it must show that an issue is constitutionally committed to a political branch. In fact, Peabody’s concession that the issues in this case are not constitutionally committed to a political branch resolves the matter. If the Department of the Interior has no inherent constitutional authority to act, then a court’s decision in this case could have no effect on the constitutional separation of powers. Even aside from Peabody’s concession on this point, it should be obvious that the political-question doctrine is not implicated here. Peabody would have to show that the Constitution gives the Department of the Interior the unreviewable power to override otherwise applicable federal law (Title VII) for activities that take place on the Navajo reservation. But there is nothing about the separation of powers that supports this proposition. Unlike foreign relations, for example, control over the activities of non-Indian entities on reservation land is not reserved by the Constitution to the executive branch as a matter of text, structure, or logic. As Peabody recognizes, the Department of the Interior is merely implementing congressionally determined policies in carrying out its duties with respect to the Navajo Nation. Peabody br. at 40. Yet even the constitutional grant of authority to Congress to regulate commerce with tribes, which justifies the legislation the Department of the Interior carries out, “does not mean that litigation involving such matters necessarily entails nonjusticiable political questions.” County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 249 (1985). And “[i]f Congress’ constitutional authority over Indian affairs does not render [a] claim nonjusticiable, a fortiori, Congress’ delegation of authority to” the executive branch does not do so either. Id. Even if Peabody were correct that the Department of the Interior’s authority to approve leases encompasses the power to exempt those leases from Title VII’s requirements — a matter we vigorously dispute — this case would involve at most a statutory, not a constitutional, commitment of authority. This is insufficient to create a nonjusticiable political question. Id. n.24; see also, e.g., Fletcher v. United States, 116 F.3d 1315, 1333 (10th Cir. 1997) (Department of the Interior’s compliance with federal statutes governing Indian affairs does not present a political question). The EEOC continues to believe that this case can (and should) be resolved simply by reference to Title VII, but at most Peabody alleges that a decision in this case might result in a conflict between one federal statutory scheme (Title VII) and another (the statutes regarding Indian affairs). The underlying “policies” that Peabody alleges are in tension (br. at 45, 47) are both congressionally determined policies, not policies developed by the executive branch3 under direct constitutional authority. The courts are perfectly competent to carry out the “classic judicial task of reconciling many laws enacted over time[] and getting them to ‘make sense’ in combination.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000) (emphasis added); see also, e.g., Chao v. Bremerton Metal Trades Council, 294 F.3d 1114, 1119 (9th Cir. 2002) (when two federal statutes conflict, the ultimate resolution depends on congressional intent); United States v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir. 1996) (“[T]o the extent that statutes can be harmonized, they should be, but in case of an irreconcilable inconsistency between them the later and more specific statute usually controls the earlier and more general one.”); cf. S.F. Drydock v. Dalton, 131 F.3d 776, 779-80 (9th Cir. 1997) (concluding that two separate statutory schemes apply at once to an agency’s actions); In re The Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991) (finding two federal statutory schemes inconsistent and holding that the later-enacted statute controls). Whether the courts ultimately side with the EEOC’s or Peabody’s views of the Department of the Interior’s statutory authority, the courts ought not just throw their hands up and refuse to construe the relevant statutes. Because the Department of the Interior is merely carrying out congressional policy, there can be no contention here that it is exercising constitutionally reserved powers. Thus, judicial action would not infringe on the constitutional separation of powers. Regardless of whether the legal questions raised by this case are complex, they are justiciable. Cf. Goldwater, 444 U.S. at 999 (Powell, J., concurring in the judgment) (noting that while resolution of a constitutional question “may not be easy,” the case may still be justiciable). III. The EEOC did not waive the record-keeping claim. Peabody does not attempt to defend on the merits the district court’s grant of summary judgment on the EEOC’s record-keeping claim. Indeed, as explained in our opening brief at 23-24, there is no justification for this decision. Rather, Peabody argues that the EEOC waived the claim by failing to argue affirmatively in the district court for the independent viability of this claim. Peabody is mistaken, however, because Peabody — not the EEOC — bore the burden of proving that summary judgment is appropriate. Because neither Peabody nor the district court ever articulated a reason why the EEOC’s record-keeping claim is defective, the burden never shifted to the EEOC to defend its viability. As the party seeking summary judgment, Peabody bore the initial responsibility of explaining why summary judgment was appropriate for the record-keeping claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).4 Not until this burden is met does the party opposing summary judgment — here, the EEOC — need to defend the evidentiary sufficiency of its claim. Id.; see also id. at 328 (White, J., concurring) (“It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.”); Russ v. Int’l Paper Co., 943 F.2d 589, 591 (5th Cir. 1991) (“Simply filing a summary judgment motion does not immediately compel the party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case.”). The reason for this allocation of burdens is straightforward: There might be dozens of ways that a claim could fail, and it is both unfair and inefficient to make the summary-judgment opponent guess which one (or ones) the proponent means to assert when the proponent could easily clarify the matter. Requiring a summary-judgment opponent to affirmatively defend its claims without any articulated basis for challenge will waste the parties’ (and the courts’) resources by causing the opponent to set forth legal argument and amass evidence on every conceivable element of and affirmative defense to the claim, even though most of those are likely not in contention. This case presents a good example of the wisdom of the Celotex rule. Even after reading Peabody’s thorough brief, we still do not know why Peabody believes the record-keeping claim should fail. Is it because Peabody does not believe it is required by Title VII to keep records? Or because it believes it kept all the necessary records? Or because it believes the Navajo Nation is a necessary party to the claim? Or because it thinks the record-keeping claim presents a non-justiciable question? Or perhaps because it contends the EEOC’s claim is barred by laches? None of these arguments strikes us as plausible on these facts, but that merely underscores the need for Peabody to articulate the basis for summary judgment in the first instance. Otherwise, the EEOC would be required to saddle the court with mounds of unnecessary material on what should be a fairly straightforward claim. Because Peabody never met its Celotex burden, its listing of the various pre-judgment stages at which the issue might have been raised (br. at 49-50) is immaterial. Peabody correctly notes that the EEOC conceded that the Navajo Nation is a necessary party to the discrimination claim. Because the tribe was necessary to one of the EEOC’s claims, the tribe is a necessary party to the case as a whole (and, in our view, should be joined). But this concession has nothing to do with the record-keeping claim on its own. Neither Peabody nor the district court ever suggested that the tribe is necessary to the record-keeping claim. Peabody’s suggestion (br. at 50-51) that to preserve this issue the EEOC had to file a motion for reconsideration after the district court’s entry of final judgment is incorrect. Except when challenging a jury verdict, a party generally does not have to file a post-judgment motion to preserve an issue for appeal. See, e.g., Penobscot Indian Nation v. Key Bank, 112 F.3d 538, 563 (1st Cir. 1997) (holding that there is no “obligation on the subject of a sua sponte summary judgment ruling to move for reconsideration in order to preserve its claims on appeal”). Once again, the reason for this rule is straightforward: Requiring post-judgment motions for reconsideration to preserve issues would inundate the courts with even more filings, the vast majority of which are unlikely to succeed. While the EEOC certainly could have asked the district court to reconsider its decision, we were not required to do so to preserve the issue for appeal. At most, Peabody here simply stated that it was seeking summary judgment against the EEOC’s whole case. Peabody never gave a reason why the record-keeping claim should fail. Thus, the burden never shifted to the EEOC to defend the viability of the claim. It follows that the EEOC did not waive the claim by not preemptively defending it at the summary-judgment stage. CONCLUSION Because the EEOC does not seek to hold the Navajo Nation liable under Title VII, it is feasible to join the tribe to this action. Because this case does not implicate the constitutional separation of powers, it is justiciable. And because Peabody failed to articulate any reason for granting summary judgment on the record-keeping claim, the burden never shifted to the EEOC to justify the claim. We ask this Court to reverse the district court’s judgment on all three points. 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 May 23, 2003 CERTIFICATE OF SERVICE I certify that on May 23, 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 Rd., Suite 700 Phoenix, AZ 85016 Attorneys for Defendant-Appellee Tod F. Schleier Bradley H. Schleier James M. Jellison Schleier Jellison & Schleier, PC 3101 North Central Ave., 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 May 23, 2003 1 The intra-circuit split over the standard of review for Rule 19 decisions (Peabody br. at 11-13) makes no difference to this case, where the issue — whether Title VII prevents the Navajo Nation from being joined to this suit — is purely legal. Because a legal error is by definition an abuse of discretion, it does not matter whether the standard of review is labeled “de novo” or “abuse of discretion.” Koon v. United States, 518 U.S. 81, 100 (1996); see also Dawavendewa v. Salt River Project Agric. Improvement & Power Dist. (Dawavendewa II), 276 F.3d 1150, 1154 (9th Cir.) (noting that a question of law regarding Rule 19 is reviewed de novo), cert. denied, 123 S. Ct. 98 (2002). 2 This Court need not decide whether the district court could enjoin the tribe from interfering with an injunction against Peabody as an exercise of the court’s inherent power to protect its judgments. Cf. United States v. Hall, 472 F.2d 261, 265 (5th Cir. 1972) (federal courts have the power to enjoin non-parties from taking actions that interfere with adjudicated rights). This issue does not turn on whether the tribe is made a Rule 19 party. 3 Peabody’s intimation (br. at 45-47) that the EEOC is not part of the Executive Branch is bizarre. As an independent law-enforcement agency, the EEOC falls squarely within the Executive Branch. Even the authority relied upon by Peabody agrees. See Neal Devins, Political Will and the Unitary Executive, 15 Cardozo L. Rev. 273, 285 (1993) (“The EEOC is technically located within the executive branch.”). That the agency was created by an act of Congress is of little import; the Department of the Interior also was created by statute. 43 U.S.C. § 1451 (codifying Act of March 3, 1849, ch. 108, 9 Stat. 395). 4 As explained in our opening brief at 24-25, although the district court has the power to grant summary judgment sua sponte after appropriate notice in some circumstances, it did not meet those requirements here.