_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________________________________________ No. 08-80089 _______________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Respondent, v. UNIVERSITY OF PHOENIX, INC. and APOLLO GROUP, INC., Defendants-Petitioners. _______________________________________________________ On Petition from the United States District Court for the District of Arizona _______________________________________________________ THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S OPPOSITION TO THE PETITION FOR INTERLOCUTORY APPEAL _______________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .ii BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PERMISSION TO APPEAL SHOULD BE DENIED BECAUSE THE UNIVERSITY HAS NOT SHOWN THAT THE REQUIREMENTS OF SECTION 1292(b) ARE MET OR THAT THIS IS AN EXCEPTIONAL CASE JUSTIFYING INTERLOCUTORY REVIEW . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir. 2000) . . .9, 17 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) . . . . . . . . . . . 15-16 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) . . . . . . . . . . . .12 EEOC v. Pemco Aeroplex, 383 F.3d 1280 (11th Cir. 2004) . . . . . . . . . . . . 15 EEOC v. Waffle House, 122 S. Ct. 754 (2002) . . . . . . . . . . . . . . . passim General Tel. Co. v. EEOC, 446 U.S. 318 (1980) . . . . . . . . . . . . . . . passim In re Bemis, 279 F.3d 419 (7th Cir. 2002) . . . . . . . . . . . . . . . . . 11, 15 In re Cement Antitrust Litig., 673 F.2d 1020 (9th Cir. 1982) . . . . . . . . 9, 20 James v. Price Stern Loan, Inc., 283 F.3d 1064 (9th Cir. 2002) . . . . . . . . . 9 Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) . . . . . . passim L.H. Meeker v. Belridge Water Storage Dist., 2007 WL 781889 (E.D. Cal. Mar. 13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . 14 Paige v. State of Cal., 102 F.3d 1035 (9th Cir. 1996) . . . . . . . . . . . . . 13 United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . 8 United States Rubber Co. v. Wright, 359 F.2d 784 (9th Cir. 1966) . . . . . . . . 9 STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 28 U.S. § 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim 42 U.S.C. § 2000e-5(c), (f) . . . . . . . . . . . . . . . . . . . . . . . . . . 12 TREATISES James Wm. Moore, 19 Moore's Federal Practice, § 203.31[1] (3d ed. 2000) . . . . .9 Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3930 415 (2d ed. 1996) . . . 10 BACKGROUND The Equal Employment Opportunity Commission alleges in this action that, beginning in 2001, a group of non-Mormon Admissions Counselors at the University of Phoenix's Online campus were subjected to various forms of discrimination in violation of Title VII. The complaint alleges that Robert Lein, William Davis, Harry Hamilton, and Darry Thornton, and a class of similarly situated current and former employees, whose job it was to recruit students to enroll in the University, were denied good leads on potential students, denied tuition waivers that would allow them to take classes at the University at no cost, denied promotions because of their religion, were subjected to disparate discipline for minor infractions, and, in some cases, were transferred to less desirable positions after they complained of discrimination. In addition, Lein was ultimately discharged in retaliation for complaining of discrimination. Lein, Davis, Hamilton, and Thornton filed charges of discrimination with the EEOC in the fall of 2003, then amended their charges to include retaliation claims in 2004. The complaint seeks relief for the charging parties and "a class of individuals who are not members of the Church of Latter Day Saints who were adversely affected by such [unlawful employment] practices." See First Amended Complaint at 1. The complaint throughout references the charging parties and "a class of individuals" (see id. at 8, 11, and 13), and alleges a widespread policy or practice of discrimination against non-Mormons. During the litigation, the Commission has provided the defendant with the names of individual non-Mormon Admissions Counselors who allegedly suffered similar types of religious discrimination during the same time period, and for whom the agency is seeking relief. On February 11, 2008 and February 26, 2008, the University filed motions to strike the claims brought by the Commission on behalf of these additional class members. The University argued first that the Commission could not seek relief on behalf of most of the identified class members because they never filed charges of discrimination with the EEOC. Second, the University argued that the Commission may not seek relief on behalf of two individuals, Wesley Jueckstock and Phyllis Stewart, because neither filed suit within 90 days of receiving a notice of dismissal of their charges. Additionally, the University argued that the Commission may not recover for Jueckstock because he entered into a settlement with the University's parent company (Apollo Corporation) resolving a dispute with the University over another matter, and signed a broad release of future claims against the University. Finally, the University argued that the EEOC's identification of individual claimants through Fed. R. Civ. P. 26 discovery disclosure statements that provided minimal facts about the newly identified claimants failed to satisfy the pleading requirements under Fed. R. Civ. P. 8 announced by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). On May 2, 2008, the district court denied both of the University's motions to strike. The court rejected the University's argument that the Supreme Court's decision in Ledbetter v. Goodyear Tire and Rubber Co., 127 S. Ct. 2162 (2007), overruled longstanding precedent allowing the EEOC to bring claims on behalf of individuals who failed to exhaust the administrative procedures required by Title VII in private suits pursued by individuals. See Order at 6. The court stated, "Ledbetter is not directly on point. It involves an individual with unexhausted claims, and does not address the ability of the EEOC to bring unexhausted claims on behalf of a class." Id. The court emphasized that the Ledbetter decision "does not provide any reasoning that would support a reading that it intended to overrule the cases that had previously allowed the EEOC to assert unexhausted claims on behalf of a class" and noted that the decision does not discuss, much less overrule, EEOC v. Waffle House, 122 S. Ct. 754 (2002); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977); and General Tel. Co. of Northwest v. EEOC, 446 U.S. 318 (1980), all of which recognize the distinction between an individual employee's private cause of action and the EEOC's enforcement role in securing relief for a group of individuals. Order at 6. The court pointed out that the Title VII language on which Ledbetter was based discusses the inability of an individual to bring claims if "'the employee does not submit a timely EEOC charge.'" Order at 7 (quoting 42 U.S.C. 2000e-5(f)(1)). The court stated that this provision "does not address the ability of the EEOC to assert claims on behalf of a class, whether exhausted or not." Id. The court stated that requiring each class member to have filed a timely charge in order to be included in a class type of claim brought by the EEOC would defeat the purpose of giving the EEOC the authority to litigate class claims in the public interest. Id. The court surmised that either the EEOC would have pursued the most compelling charges individually, or determined the charges lacked merit, "making class disposition of the claims highly unlikely." Id. According to the district court, "[l]ogic dictates that the Supreme Court would have given a little more discussion to a decision that would have the practical effect of nullifying the EEOC's ability to bring class actions." Id. Because "Ledbetter did not address, and therefore could not affect, the EEOC's ability to bring unexhausted claims on behalf of a class," the court ruled that the claims of those individuals identified who had not filed charges would not be stricken. Id. The court also rejected the University's argument that the Commission's inclusion of the newly disclosed class members in a supplemental disclosure statement failed to satisfy the requirements of Fed. R. Civ. P. 8, as articulated in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), because these disclosures lacked a factual basis for the additional class members' claims. Order at 7-8. The court held that the Commission's First Amended Complaint satisfied Twombly's requirement that the complaint provide sufficient facts to state a claim for relief that is "plausible." Id. at 8. The court pointed out that the complaint sets out the facts of the charging parties' claims and states that the claims are also being asserted on behalf of a class whose membership has not been fully determined. Id. The court concluded that "[t]he later fleshing-out of the claims through disclosure of class members as they became known to counsel is sufficient to bring those claims into the realm of 'plausibility.'" Id. (quoting Twombly). The court also rejected the University's effort to strike the claims of Jueckstock and Stewart, who filed charges but did not file a lawsuit on their own behalf within 90 days of the dismissal of their charges. See Order at 9. The University sought to strike Jueckstock from the Commission's action for the additional reason that he had signed a waiver releasing all potential claims against the University as part of an unrelated settlement agreement. The district court also rejected that basis for striking him. The court held that, because the Commission's claims are not "merely derivative of the claims of the individuals it represents," "the EEOC is not barred from seeking relief on behalf of Jueckstock and Stewart by virtue of the fact that they are now individually barred from initiating a private enforcement action." Order at 9. According to the court, because "[t]he EEOC is charged with vindication of the public interest, and is not merely concerned with the enforcement of private rights," that Jueckstock and Stewart did not sue within 90 days of the EEOC's dismissal notice does not prevent the Commission from raising claims on their behalf. Id. at 9. The court also determined that the lack of a "cause" finding does not prevent the Commission from seeking relief on behalf of Jueckstock and Stewart because the EEOC no longer issues "no cause findings" and the dismissals at issue merely indicate that the EEOC made no determination either way. Id. at 9-10. The court relied upon the Supreme Court's decision in Waffle House in ruling that Jueckstock's release of all potential claims against the University did not bind the Commission. Id. at 10. In the court's view, the prior settlement and release might affect the remedy that Jueckstock ultimately receives, but did not serve "as a proper basis for striking the claim altogether." Id. The University filed a motion to certify the following questions for interlocutory appeal pursuant to 28 U.S.C. § 1292(b): (1) whether, in an action in which the EEOC seeks relief under Title VII on behalf of a group of individuals, the EEOC may include in that group individuals who have not filed charges of discrimination with the agency; (2) whether the EEOC may seek relief for two individuals who failed to bring suit within 90 days of receiving a notice of dismissal from the agency; (3) whether the EEOC may seek monetary relief on behalf of an individual who entered into a prior settlement agreement in an unrelated case that included a release of all claims against the University; and (4) whether the EEOC's listing of claimants for whom it is seeking relief in Rule 26 disclosure statements without providing details of their claims satisfies Rule 8's pleading requirements. On May 20, 2008, the district court issued a one-paragraph order granting the University's request to certify the ruling for interlocutory appeal. The court neither listed the questions to be decided nor provided any explanation as to why the issues ruled upon in the earlier order met the requirements of § 1292(b). The court stayed the proceedings pertaining to the identified additional claimants pending resolution of this petition; discovery related to the original charging parties is continuing. ARGUMENT PERMISSION TO APPEAL SHOULD BE DENIED BECAUSE THE UNIVERSITY HAS NOT SHOWN THAT THE REQUIREMENTS OF SECTION 1292(b) ARE MET OR THAT THIS IS AN EXCEPTIONAL CASE JUSTIFYING INTERLOCUTORY REVIEW. None of the questions certified by the district court constitute "a controlling issue of law as to which there is substantial ground for difference of opinion" and as to which "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Therefore, the University has failed to meet its heavy burden of demonstrating that this is an exceptional case in which immediate appeal is warranted. Ordinarily, courts of appeals have jurisdiction only over "final decisions of the district courts." 28 U.S.C. § 1291. "The finality requirement . . . embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals." United States v. Nixon, 418 U.S. 683, 690 (1974). Section 1292(b) of the Judicial Code provides a limited exception to the finality requirement by granting the courts of appeals discretion to entertain an appeal from an interlocutory order when a district court determines that the order involves "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). However, interlocutory review is to be "used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982); see also United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (Certification under §1292 (b) is only to be used in "extraordinary cases."). The requirements of § 1292(b) "must be construed narrowly" and are subjected to "rigorous judgment." James v. Price Stern Loan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002) (citing Wright, Miller & Cooper). Even where a district court certifies a question for interlocutory review, the court of appeals "has discretion to reject the interlocutory appeal, and does so quite frequently." Id. In considering whether this Court should grant the University's petition to appeal, the requirements of § 1292(b) should be viewed as a whole. Although the statute may be broken down into separate elements for purposes of analysis, "in practice the courts treat the statutory criteria as a unitary requirement, and the decisions granting and discussing interlocutory appeals under [the statute] uniformly cite all three of the elements as being present in any particular case." James Wm. Moore, 19 Moore's Federal Practice, § 203.31[1], at 203-86-87 (3d ed. 2000); see also Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000) ("The criteria are conjunctive, not disjunctive."). In addition, the criteria tend to overlap. For example, "the requirement that an appeal may materially advance the ultimate termination of the litigation is closely tied to the requirement that the order involve a controlling question of law." Wright, Miller, & Cooper, 16 Fed. Prac. & Proc. § 3930 415, 432 (2d ed. 1996); see also L.H. Meeker v. Belridge Water Storage Dist., 2007 WL 781889, at *6 (E.D. Cal. Mar. 13, 2007) (two requirements are closely linked "because the district court should consider the effect of a reversal on the management of the case"). There is no substantial ground for difference of opinion here on the questions of whether the Commission may seek relief in a class claim for claimants who never filed charges of discrimination with the agency or whether listing additional claimants in a disclosure statement that lacks facts about their claims is disallowed after the Supreme Court's Twombly decision. Indeed, the Commission's conduct of this litigation is wholly consistent with applicable standards enunciated by the Supreme Court and this Court and the University is unable to cite a single case to the contrary. When the EEOC sues, it does not stand in the shoes of the individuals on whose behalf it seeks relief. A suit by the EEOC is not, as alleged by the University, "indirect," nor is it an end-run around Title VII's administrative requirements. Instead, the Commission's authority is derived independently from Title VII and, as the Supreme Court recently reaffirmed in Waffle House, the EEOC's claim is not "merely derivative" of claims brought by private plaintiffs. Nor is "EEOC . . . merely a proxy for the victims of discrimination." 534 U.S. 279, 288, 297-98 (2002) (citing General Tel., 446 U.S. at 326); see also id. at 288 ("EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties"). Rather, Title VII "clearly makes the EEOC the master of its own case," authorizing the EEOC to bring its own suit and to allege its own claim, which is separate from and independent of private claims challenging similar conduct by an employer. See id. at 286, 291. In addition, the Commission "need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." General Tel. v. EEOC, 446 U.S. 318, 324 (emphasis added). When Congress amended Title VII in 1972 to authorize EEOC enforcement actions, it contemplated that the EEOC would "bear the primary burden of litigation." Id. at 326. While the agency does seek victim- specific relief in its suits, it does so primarily as a "law enforcement agency," In re Bemis, 279 F.3d 419, 421-22 (7th Cir. 2002), "act[ing] to vindicate the public interest in preventing employment discrimination" and is "guided by the overriding public interest in equal employment opportunity." General Tel., 446 U.S. at 326. Although the EEOC must satisfy Title VII's administrative prerequisites to filing suit by finding reasonable cause on a charge of discrimination and attempting to conciliate with the employer (see 42 U.S.C. § 2000e-5(b), (f)), these prerequisites were complied with here. Four timely charges anchor the Commission's claim alleging a pattern of religious discrimination directed at a group of non-Mormon employees. The Commission found reasonable cause to believe the University unlawfully discriminated against the charging parties and after efforts at conciliation failed, the Commission filed this lawsuit. During the course of its investigation, the Commission discovered that, like the charging parties, many other non-Mormon employees were subjected to the University's discriminatory practices. Consistent with well-settled Supreme Court and appellate precedent establishing that a complaint filed by the EEOC may include all claims discovered in a reasonable investigation of a charge of discrimination, the Commission included these individuals within the class of victims affected by the discrimination alleged in this suit. See, e.g., General Tel., 446 U.S. at 320 (EEOC brought gender discrimination suit based on four charges complaining of sex discrimination; the Commission alleged in the complaint a widespread pattern of sex discrimination and sought relief for the women affected by the challenged practices); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1101 (6th Cir. 1984) (because EEOC's complaint alleging sex discrimination against a group of employees in the charging party's division could have reasonably been expected to grow out of the charging party's individual charge of discrimination, no additional administrative proceedings were necessary); cf. Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir. 1996) (district court has jurisdiction over plaintiff's claim if it fell within the scope of the EEOC's actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge of discrimination). The University's reliance on the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), to argue that this longstanding, and recently reaffirmed, principle, has now been called into question, is misplaced. While it is true, as the University maintains, that Ledbetter "confirmed the rule . . . that an alleged practice not made the subject of a timely charge of discrimination with the EEOC may not later be challenged in court," Petition at 13, this ruling holds no significance for claims asserted by the EEOC in this case. The University's argument rests on a misreading and distortion of Ledbetter. Ledbetter says nothing, implicitly or explicitly, about the EEOC's ability to seek relief for individuals who have not filed charges. To the contrary, Ledbetter, a pay discrimination case, involved an analysis of when an individual must, to be timely and in order to sustain a lawsuit, file a charge challenging her discriminatory pay. The case concerned prerequisites to suit for a private individual. The Commission was not a party in the case and, most importantly, the case does not purport to address what is at issue here-the circumstances under which the Commission may seek relief for a class of individuals. The University continues to complain, however, that Ledbetter "pertains to the viability of stale discrimination claims, not just to the identity of the plaintiff attempting to litigate those claims." Petition at 14. Again, this is of no moment here because unlike the plaintiff in Ledbetter, the Commission's suit in this case is based on timely charges filed by four individuals. The 40-some claimants identified as victims were subject to the same alleged pattern of discrimination during the same time period as the four original charging parties. As the district court stressed, nowhere in the Ledbetter decision does the Supreme Court mention, much less overrule, its earlier decisions in General Telephone, Waffle House, and Occidental Life Ins. v. EEOC, 432 U.S. 355 (1977), all of which hold that the EEOC and an individual are not interchangeable in bringing suit. These cases make clear that the EEOC is autonomous in its decision to seek victim-specific relief as a method of vindicating the public interest in eradicating discrimination. Title VII "clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. . . . [I]f the agency makes that determination [to commit public resources to the recovery of victim-specific relief], that statutory text unambiguously authorizes it to proceed in a judicial forum" Waffle House, 524 U.S. at 291-92; see also id. at 291 ("[O]nce a charge is filed, . . . the EEOC is in command of the process."). The EEOC "is guided by 'the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.'" General Tel., 446 U.S. at 326; see also EEOC v. Pemco Aeroplex, 383 F.3d 1280, 1291 (11th Cir. 2004) ([G]overnmental agencies have statutory duties, responsibilities, and interests that are far broader than the discrete interests of a private party."); Bemis, 279 F.3d at 421 ("The EEOC's primary role is that of a law enforcement agency and it is merely a detail that it pays over any monetary relief obtained to the victims of the defendant's violation rather than pocketing the money itself and putting them to the bother of suing separately."). This Court should not presume that the Supreme Court in Ledbetter intended to overrule this longstanding precedent without even mentioning Waffle House, decided only five years before Ledbetter was issued, as well as General Tel. and Occidental Life.. The final question certified for interlocutory review-whether the EEOC's identification of claimants in a disclosure statement lacking detailed facts about the individuals is sufficient under Bell Atlantic v. Twombly, 127 S. Ct. 1955 (1974), to state a claim-also does not present a question as to which there is substantial ground for difference of opinion. The University claims that even if the EEOC may seek relief for the additional class members, the inclusion of their names in a series of supplemental disclosure statements fails to satisfy the requirements of Fed. R. Civ. P. 8. This argument misses the mark. Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." In Twombly, the Supreme Court held that a pleading must contain "only enough facts to state a claim to relief that is plausible on its face." 127 S. Ct. at 1974. The EEOC's complaint states that it is bringing a Title VII action "to correct unlawful employment practices on the basis of religion, and to provide appropriate relief to Robert Lein, William Davis, Harry Hamilton, and Darry Thornton, and a class of individuals who are not members of the Church of Jesus Christ of Latter Day Saints ("LDS"), who were adversely affected by such practices." First Amended Complaint at 1. The complaint also alleges that the University discriminated against the four charging parties "and a class of individuals, based on their religion, non-LDS, by treating them less favorably with regard to terms and conditions of employment including distribution of enrollment leads, granting of tuition waivers, and/or reprimands." Id. at 1-2. As the district court held, this is more than sufficient to meet Twombly's plausibility threshold. The University is really challenging the sufficiency of the Commission's disclosure statements, which constitutes a discovery dispute, not a Twombly issue, and certainly does not warrant interlocutory review. The contents of the EEOC's disclosure statements regarding the individual claimants are admittedly vague, but are not subject to Rule 8's or Twombly's standards. In addition, the EEOC supplemented its disclosures with additional facts about the newly identified claimants, making the University's vagueness concerns moot and an inappropriate basis for striking these additional claimants from the group for whom the Commission seeks relief. Moreover, to meet § 1292(b)'s requirements, the University must also establish that immediate appeal may materially advance the ultimate termination of the litigation by showing that resolution of the questions certified "promise to speed up the litigation." Ahrenholz, 219 F.3d at 676 (emphasis in original). A reversal of the district court's denial of the University's motion to strike as to the first and fourth question-which pertain to 40-something claimants who did not file charges with the EEOC, and who were listed only in disclosure statements - would have minimal impact on the scope of the litigation. Although the University asserts that the effect on discovery, trial, and settlement of a reduction of claimants from 50 to 4 "hardly needs explanation," even if this Court were to review these questions now and strike the newly identified claimants, neither the length nor cost of discovery and trial would be "materially" reduced. The University asserts, wrongly, that the district court will have to preside over a series of individual mini trials for each victim of the religious discrimination alleged by the Commission, and thus a ruling that would allow the court to hear evidence regarding "only six, as opposed to nearly 50, separate discrimination claims" would reduce the number of days needed for trial and conserve judicial resources. See Petition at 12. The University misapprehends the nature of the Commission's case when it argues that "individual claims predominate" in this litigation. Id. at 11. To the contrary, the Commission challenges a widespread pattern of discriminatory behavior by the University adversely affecting a group of non-Mormon Admission Counselors during a distinct time period. This class-type action is not equivalent to a number of individual discrimination suits strung together in which each will require a separate trial. The Commission is building its case through depositions and documents production about the charging parties that requires examination of the University's policies, procedures, and the actions of their managers. The parties have stipulated to 25 depositions per side, many of which have already been completed. That number is unlikely to be reduced even if the Commission is limited to seeking relief for only the four charging parties. Many of the identified claimants worked with the four charging parties and are potential witnesses to the alleged pattern of discrimination. The forms of discrimination alleged cover a wide range of behavior involving multiple levels of supervision: the assignment of leads about potential students, the awarding of tuition waivers, the discipline imposed on non-Mormons compared to other Admissions Counselors, transfers of Admission's Counselors, and other forms of retaliation. All these areas will be examined by the Commission in the course of developing its case. Although limiting the class of claimants to the four charging parties would have some impact on the total number of documents exchanged and witnesses to be put on at trial, it would not "materially advance the ultimate termination of the litigation" as § 1292(b) requires. The second and third questions certified by the district court-whether the Commission may seek relief for Jueckstock and Stewart when neither claimant filed suit within 90 days of receiving a dismissal of their charges, or for Jueckstock after he signed a settlement agreement releasing all future claims against the University-involve a total of two individuals who have already been deposed. Disqualifying them from obtaining relief at this point would have no measurable effect on the resolution of the case; it is still an action being litigated by the EEOC on behalf of a group of individuals and challenging a pattern of widespread discrimination that is proceeding to trial. Thus the question of whether these individuals are entitled to relief does not rise to the level of a controlling question of law that will advance the termination of the litigation. CONCLUSION The questions certified by the district court go to the number of individuals who may potentially be entitled to relief should the EEOC prevail at trial. The rules of finality contemplate that such unremarkable issues be decided in the usual course of appellate review upon final judgment. Because certification is to be "used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation," Cement Antitrust Litig., 673 F.2d at 1026, this Court should deny the University's petition. The University has not established that the questions certified meet the statutory requirements or that this is an extraordinary case necessitating immediate appellate review. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ JULIE L. GANTZ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of June, I served one copy of the foregoing opposition by Federal Express next business day service, postage pre-paid, to the following counsel of record: William R. Hayden Richard A. Derevan Martha E. Gibbs Todd E. Lundell SNELL & WILMER LLP 1 Arizona Center 400 East Van Buren Phoenix, AZ 85004 Patricia Ann Kirtley KIRTLEY WELLS PC 3800 North Central Avenue Suite 615 Phoenix, AZ 85012 Julie L. Gantz Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 *********************************************************************** <> <1> In its motion to strike Jueckstock as a claimant, the University argued that the EEOC could not obtain relief of any kind for Jueckstock because of the release he had signed with the University's parent company. See Def. Motion to Strike Claims Asserted at 8. It now seeks to argue only that the EEOC may not obtain monetary relief for him.