No. 09-2263 _____________________________________ UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellee, v. WASHINGTON SUBURBAN SANITARY COMMISSION, Respondent-Appellant. __________________________________________________________________ On appeal from the United States District Court for the District of Maryland at Greenbelt Hon. Alexander Williams, Jr., U.S.D.J., presiding Civil Action No. 8:09-cv-00825 __________________________________________________________________ RESPONSE BRIEF of APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER SUSAN R. OXFORD Acting Associate General Counsel Attorney, EEOC 131 M Street, N.E. LORRAINE C. DAVIS Washington, DC 20507 Assistant General Counsel (202) 663-4791; Fax: (202) 663-7090 susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings. . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 4 C. District Court Opinion. . . . . . . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. The district court properly ordered WSSC to comply with the EEOC's administrative subpoena. . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 RESPONSE TO WSSC's REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . 34 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 36 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20 (1st Cir. 1992). . . . . . . . . . . . . . . . . . . . . 23 Alexander v. Holden, 66 F.3d 62 (4th Cir. 1995). . . . . . .12, 22, 23, 25, 26 Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir. 1990), overruled by Berkley v. Common Council, City of Charleston, 63 F.3d 295 (4th Cir. 1995) (en banc). . . . . . . . . . . . . . 19, 20 Baraka v. McGreevey, 481 F.3d 187 (3d Cir. 2007). . . . . . . . . . . . 24, 31 Bastien v. Office of Senator Campbell, 390 F.3d 1301 (10th Cir. 2004). . . . . . . . . . . . . . . . . . 25, 31 Berkley v. Common Council, City of Charleston, 63 F.3d 295 (4th Cir. 1995) (en banc). . . . . . . . . . . 19, 20, 21, 24 Bogan v. Scott-Harris, 523 U.S. 44 (1998). . . . . . 18, 22, 23, 24, 31, 32 Burtnick v. McLean, 76 F.3d 611 (4th 1996). . . . . . . . . . . . 19, 20, 21 Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996). . . . . . . . . . . . 24, 27 Chateaubriand v. Gaspard, 97 F.3d 1218 (9th Cir. 1996). . . . . . . . . . 25 EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300 (4th Cir. 1992). . . . . . . . . . . . . . . 15, 16, 17, 27 EEOC v. City of Norfolk Police Dep't, 45 F.3d 80 (4th Cir. 1995). . . . . . 16 EEOC v. Federal Exp. Corp., 558 F.3d 842 (9th Cir.), cert. denied, 130 S.Ct. 574 (2009). . . . . . . . . . . . . . . . . . 29 EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997). . . . . . 15, 16 EEOC v. Maryland Cup Corp., 785 F.2d 471 (4th Cir. 1986). . . . . . . . . 27 EEOC v. Tire Kingdom, Inc., 80 F.3d 449 (11th Cir. 1996). . . . . . . . 17, 30 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). . . . . . . . . . . . . . 29 EEOC v. Wyoming, 460 U.S. 226 (1983). . . . . . . . . . . . . . . . . . 21 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). . . . . . 17, 29 Gravel v. United States, 408 U.S. 606 (1972). . . . . . . . . . . . . . . 24 Hollyday v. Rainey, 964 F.2d 1441 (4th Cir. 1992). . . . . . . . . 19, 20 In re Grand Jury, 821 F.2d 946 (3d Cir. 1987). . . . . . . . . . . . . . . 22 Kaahumanu v. County of Maui, 315 F.3d 1215 (9th Cir. 2003). . . . . . . . . 24 Karpel v. Inova Health Sys. Servs., 134 F.3d 1222 (4th Cir. 1998). . . . . .17 Katz v. WSSC, 284 Md. 503 (1979). . . . . . . . . . . . . . . . . . . . . 21 Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391 (1979). . . . . . . . . . . . . . . . . . . . . . . . 18 Rateree v. Rockett, 852 F.2d 946 (7th Cir. 1988). . . . . . . . . . . . . . 25 Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93 (4th Cir. 1993). . . . . 15 Schlitz v. Virginia, 854 F.2d 43 (4th Cir. 1988), overruled by Berkley v. Common Council, City of Charleston, 63 F.3d 295 (4th Cir. 1995) (en banc). . . . . . . . . . . . . . . 19, 20 Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995). . . . . . . . . . . . . . . 23 Supreme Court of Va. v. Consumers Union of the U.S., 446 U.S. 719 (1980). . . . . . . . . . . . . . . . . . . . 22, 23, 25, 27 Tenney v. Brandhove, 341 U.S. 367 (1951). . . . . . . . . . . . . . . 18, 22 United States v. Am. Target Adver., Inc., 257 F.3d 348 (4th Cir. 2001). . . . . . . . . . . . . . . . . . 15, 16 United States v. Brewster, 408 U.S. 501 (1972). . . . . . . . . . . . 25, 31 WSSC v. Bowen, 978 A.2d 678 (Md. 2009). . . . . . . . . . . . . . . . . 3, 10 Statutes 15 U.S.C. § 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. §§ 1331, 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 626(a). . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 17, 27 29 U.S.C. §§ 626(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 29 U.S.C. § 630(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21 Regulations 29 C.F.R. §§ 1626.4, 1626.13. . . . . . . . . . . . . . . . . . . . . . . . 17 Miscellaneous Bowen v. WSSC, CAL06-22334 (Md. Cir. Ct. Prince George's County). . . . . . 2 Washington Suburban Sanitary Commission v. Bowen, No. 2007-103 (Md.) 3 STATEMENT OF JURISDICTION The United States District Court for the District of Maryland had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1345 and Section 9 of the Federal Trade Commission Act of 1914, 15 U.S.C. § 49, incorporated into the Fair Labor Standards Act, 29 U.S.C. § 209, and, through that, into the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(a), which confers on federal district courts jurisdiction over applications by the Equal Employment Opportunity Commission (EEOC) to enforce an administrative subpoena brought under the ADEA. The district court entered final judgment enforcing the EEOC's subpoena on October 26, 2009. Apx.1600.<1> Washington Suburban Sanitary Commission (WSSC) filed a timely Notice of Appeal on November 4, 2009. Apx.1601. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court properly ordered WSSC to comply with the EEOC's modified administrative subpoena because the information it requests is relevant to the EEOC's investigation of the age discrimination charges filed against WSSC and WSSC's only asserted defense-legislative immunity-does not apply. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is an appeal from the district court's order enforcing an administrative subpoena that the EEOC served on WSSC pursuant to the ADEA, 29 U.S.C. §§ 626(a) and (b). On April 2, 2009, the EEOC filed an application for an Order to Show Cause (OSC) seeking enforcement of the EEOC's administrative subpoena pursuant to the ADEA. Apx.5-7 (R.1). The subpoena asked WSSC to provide 18 items in connection with EEOC's investigation of age discrimination charges that 15 former employees filed against WSSC. The district court issued the Order to Show Cause on April 28, 2009, and set the matter for hearing. Apx.82-83 (R.2). WSSC opposed the application on the grounds of legislative immunity and asked the district court to stay the EEOC's application pending a determination in a related state court proceeding involving the same former employees who filed these ADEA charges with the EEOC. Apx.84-103 (R.4). WSSC's opposition brief informed the district court that these employees had sued WSSC in Maryland state court challenging their terminations under state law. See Apx.89.<2> WSSC explained that the state trial court had denied without prejudice WSSC's motion to dismiss or for summary judgment on the ground of absolute legislative immunity. See Apx.89-90; see also Apx.168-70 (transcript of state trial court's June 1, 2007, decision). WSSC further informed the district court that its request for interlocutory review of this ruling was pending before the Maryland Court of Appeals, see Washington Suburban Sanitary Commission v. Bowen, No. 2007-103 (Md.), and WSSC asked the district court to abstain from proceeding on the EEOC's application until the state appellate court ruled. Apx.90-97. Alternatively, WSSC asked the district court to deny the EEOC's subpoena application on the grounds of legislative immunity. Apx.97-103. The district court stayed the EEOC's application. See Apx.1554-55 (R.7, Order, 5/15/09) (granting stay for up to six months). On September 11, 2009, WSSC notified the district court that the Maryland Court of Appeals had dismissed WSSC's appeal, ruling that the state trial court's rejection of WSSC's claim of legislative immunity was inappropriate for interlocutory review. R.9; see WSSC v. Bowen, 978 A.2d 678, 682 (Md. 2009); Apx.171. The district court heard argument on the merits of the EEOC's application and WSSC's opposition on October 9, 2009. Apx.1556-88 (R.11, Tr. 10/9/09). The EEOC indicated it no longer sought subpoena items number 2 and 3 (referred to as items B and C in the declaration accompanying the EEOC's application for an OSC). Apx.1579-80, 1583-85. On October 26, 2009, the district court ordered WSSC to comply with the EEOC's modified subpoena. Apx.1600 (R.13). B. Statement of Facts On December 21, 2006, Colleen Bowen and fourteen other former employees of the WSSC's Information Technology (IT) Department filed charges with the EEOC alleging age discrimination under the ADEA. Apx.26-27 ¶¶3-4.A; Apx.32-40. The charging parties, all of whom were over the age of 40 at the time, allege they lost their jobs as a result of an IT Department reorganization that resulted in WSSC's elimination of approximately 80 "merit system" positions. Apx.33-36. The charging parties further allege that WSSC denied them critical training opportunities because of their ages before the reorganization occurred and hired younger workers for the new, non-merit positions after the reorganization took effect. Apx.36-37. The Commission served notice of the charges on WSSC. See Apx.27 ¶4.B. WSSC responded on March 9, 2007, with a position statement denying any discrimination occurred and asserting that the charges were precluded, in any event, by "absolute legislative immunity." Apx.42-61. Specifically, WSSC asserted it had been required to "completely revamp the antiquated organizational and functional structure of its IT Department," and it had accomplished this by abolishing the existing merit system positions in the IT Department and creating new, non-merit positions at a higher salary range "that would allow WSSC to attract and retain the qualified IT personnel it needed." Apx.43. WSSC further asserted that the reorganization occurred "through a budgetary process" requiring approval by the county councils of Prince George's and Montgomery Counties and, therefore, the reorganization fell within "absolute legislative immunity" which barred the EEOC from investigating these ADEA charges. Id. To demonstrate the involvement of the Prince George's and Montgomery County Councils, WSSC attached to its Position Statement 46 documents associated with WSSC's proposed 2007 budget, proposed reorganization of the IT Department, and the county council budget review and approval process. See Apx.62-65 (listing 46 budget-related documents provided to the EEOC). Among other things, WSSC provided the EEOC its budget review schedule, Apx.361-62, county council resolutions imposing general spending limits on WSSC, Apx.363- 66, General Manager Budget Guidelines for WSSC's 2007 budget, Apx.367-68, and the proposed 2007 WSSC budget itself. Apx.474-593 (preliminary proposed budget); Apx. 677-967 (proposed budget). WSSC also provided EEOC with copies of the agendas and minutes for meetings held by WSSC and by the Prince George's and Montgomery County Councils where the IT reorganization was discussed, along with related correspondence.<3> The documents WSSC provided to the EEOC discuss such things as water/sewer fees and charges based on usage, existing and proposed debt service, and various potential construction projects. See, e.g., Apx.378-83, 389-91, 405-07. The documents contain a few direct references to the IT Department. WSSC's December 14, 2005, "IT Assessment," Apx.411-68, for example, noted (under the heading "People Skill Assessment") that "[m]ost IT staff have not kept up with technology changes," and that "[t]here are talented individuals [with] the aptitude and motivation to learn . . . deep within the organization" who have "never been asked to demonstrate their talent." Apx.417. The Assessment's recommendations to make IT more effective include additional training for IT staff on new technologies. Apx.425, 430 ("Accelerate Learning"). The documents also include a detailed general information sheet entitled "Frequently Asked Questions" that WSSC provided to its IT employees to apprise them of the impending reorganization and to inform them, among other things, how to apply for the new positions. See Apx.973-75. In this document, WSSC "strongly encourage[d] its employees to apply" for the new positions and promised "[e]very individual will have an opportunity to apply for any position in the new organization." Apx.974- 75; see also WSSC Brf. at 21 n.4. On March 7, 2008, the EEOC asked WSSC to provide additional information to assist in its investigation. Apx.75-79; see Apx.27 ¶¶4.E&F. WSSC refused, claiming absolute legislative immunity. Apx.214; Apx.28 ¶4.G. The EEOC advised WSSC that it could not claim immunity from an EEOC investigation and issued an administrative subpoena. Apx.66-74; see Apx.28 ¶¶4.H&I. The subpoena required WSSC to produce: * personnel files for the complainants, any former IT Department employees or consultants who applied for any job with WSSC following the reorganization, WSSC's Chief Information Officer, and all persons responsible for hiring, firing and discipline during and after WSSC's restructuring of the IT Department (item 1); * any tests WSSC used for hiring, retention, or promotion of IT employees or consultants from January 2005 to present (item 4); * IT Department job descriptions and the hiring criteria and job advertisements WSSC used for hiring IT employees and consultants after the reorganization (items 5, 12, and 14); * information on the training opportunities WSSC provided IT employees before and after the reorganization (item 13); * documents relating to WSSC's hiring, promotion, discipline, and termination policies, procedures, and decisions before and after the reorganization (items 15-16, 18); and * documents relating to any formal or informal complaints or allegations of age discrimination against WSSC from January 2005 to present (item 17). The subpoena also required WSSC to identify: * all employees and consultants employed with WSSC any time from January 2005 to the present (item 6); and * all IT Department employees and consultants who were terminated because of the reorganization, all persons who applied for jobs in the new IT Department, all persons who were hired for the new IT Department, all persons responsible for such hiring decisions during and after the reorganization, and all employees and consultants who were terminated from the IT Department and then re-hired in that department following the reorganization (items 7-11). See Apx.71-73; see also Apx.29-31 (listing subpoena items as "A through O" in paragraph 5 of the declaration accompanying the EEOC's OSC application). The subpoena also asked WSSC to produce "documents related to all analyses, reviews, and standards [WSSC] relied upon in its decision to abolish the IT department in 2006" and "records of all internal deliberations surrounding [WSSC's] decision to reorganize the IT department in 2006." Apx.71 (items 2 and 3); see Apx.28-29 ¶5 (listing these items as B and C). WSSC refused to comply with the subpoena and reasserted its position that the "budgetary, legislative decision to abolish the merit positions in [WSSC's] IT Department . . . trigger[ed] legislative immunity" which protected WSSC "not only from liability, but also from participating in discovery processes" such as the EEOC's investigation of these ADEA charges. Apx.80-81. WSSC informed the EEOC that it was awaiting a decision by the Maryland Court of Appeals that would "resolve or clarify the issue" of legislative immunity in the EEOC investigation. WSSC noted that the state appeal had been argued in March, and urged the EEOC to delay any action on the administrative subpoena until the Maryland Court of Appeals ruled. Id. The Maryland Court of Appeals still had not ruled almost a year later, when the EEOC sought enforcement of the administrative subpoena in district court on April 2, 2009. Apx.5-7 (R.1). WSSC opposed the EEOC's application. See Apx.28 ¶4.G; Apx.84-104 (R.4). WSSC contended, once again, that it was entitled to legislative immunity, asserting that a "separation of powers" privilege protected WSSC from having to produce information for the EEOC's investigation. WSSC asked the district court to abstain from addressing the EEOC's application until the state appellate court had ruled on WSSC's pending application for interlocutory review, Apx.91-97, or to deny the EEOC's application on the basis of legislative immunity, see Apx.98-102.<4> After the Maryland Court of Appeals denied WSSC's request for interlocutory review, Apx.171; see WSSC v. Bowen, 978 A.2d 678, 682 (Md. 2009), the district court heard arguments on the EEOC's application. Exercising its administrative discretion, the EEOC informed the court it no longer sought subpoena items 2 and 3: "documents related to all analyses, reviews, and standards [WSSC] relied upon in its decision to abolish the IT department in 2006," and "records of all internal deliberations surrounding [WSSC's] decision to reorganize the IT department in 2006." Apx.1583-85; see Apx.71.<5> The EEOC asked the court to enforce the remaining 16 subpoena items. Apx.1584-85. The EEOC explained that the age discrimination charges filed by these former employees contain, in essence, three distinct allegations: first, that before the reorganization, WSSC denied the charging parties training opportunities because of their ages; second, that during the reorganization, WSSC terminated them because of their ages; and third, that after the reorganization, WSSC hired younger employees for the new IT positions. Apx.1577-78, 1587. The EEOC indicated it no longer sought the two subpoena items that addressed the charging parties' second allegation-their claim that WSSC restructured the IT Department as a pretext for terminating older workers because of their ages. See Apx.1579-80 (taking "off the table" the questions addressing the rationale behind WSSC's decision to reorganize the IT department); Apx.1583-85 (stating the EEOC was no longer pursuing subpoena items 2 and 3). The EEOC asserted that the remaining items pertain to what happened before and after the reorganization, Apx.1580-81, and argued this information did not "implicate the legislative immunity privilege at all." Apx.1579. WSSC continued to oppose the entire subpoena even after the EEOC eliminated subpoena items two and three. WSSC asserted that "once you have legislative immunity out there, any issue that becomes inextricably intwined with that legislative immunity is off limits, and that's what we have here." Apx. 1586. C. District Court Opinion The district court rejected WSSC's assertion of legislative immunity or privilege and ordered WSSC to comply with the EEOC's modified administrative subpoena. Apx.1589-99 (R.12); Apx.1600 (R.13). Legislative immunity, the court noted, "protects legislators from suit arising from their legitimate legislative actions," and the derivative legislative privilege-which "prohibits evidence of legislative acts from being used against legislators in proceedings"-protects only "actions that are considered legislative." Apx.1594-95 (emphasis added). Thus, the court reasoned, WSSC's "legislative immunity argument will prevent enforcement of the EEOC's subpoena only to the extent that the WSSC actually engaged in legislative actions and that the subpoena seeks documents relating to any such legislative decision." Apx.1596. "[E]mployment and personnel decisions," the court observed, "generally involve administrative acts which would not invoke the protection of legislative immunity." Apx.1597 (quoting Alexander v. Holden, 66 F.3d 62, 65-66 (4th Cir. 1995)). The court found that the documents the EEOC seeks in the modified subpoena relate to actions of the WSSC that are administrative or executive in nature, "such as the hiring of new employees, training of employees, and disciplining of employees," and, therefore, are proper objects of an EEOC subpoena. Apx. 1598-99. SUMMARY OF ARGUMENT The district court properly enforced the EEOC's modified administrative subpoena and correctly rejected WSSC's only asserted objection-legislative immunity. The ADEA authorizes the EEOC to investigate claims of age discrimination against a governmental employer. Each of the items the EEOC seeks is relevant to the EEOC's investigation of whether WSSC discriminated against older employees of WSSC's Information Technology Department. In particular, the EEOC is investigating whether, because of their ages, WSSC denied older employees training opportunities before the reorganization and failed to rehire them for the newly-created positions after effectuating the reorganization. The EEOC's modified subpoena asks for information that will permit the EEOC to examine whether age bias motivated these pre- and post-reorganization personnel actions. The fact that county council approval of WSSC's 2007 budget was a precursor to WSSC's implementation of the IT Department reorganization does not prevent the EEOC from investigating whether WSSC violated the ADEA in its personnel decisions before and after the reorganization. Legislative immunity and its testimonial privilege are designed to protect legislators from being sued or having to testify about their reasons for enacting legislation. Thus, when a local legislature votes to approve an agency's budget, the local legislators need not explain their reasons for their votes. It does not follow, however, that an agency acting pursuant to such budgetary authorization falls outside the EEOC's investigatory reach. Such a rule would create an untenable gap in the federal government's enforcement of statutory protections against age discrimination in local governmental workplaces. Since most public entities act pursuant to legislative appropriations, WSSC's premise, taken to its logical conclusion, would preclude investigation of and challenge to most governmental hiring and other personnel decisions. In any event, legislative immunity/testimonial privilege protects only legislative acts, and the district court properly found that none of the items the EEOC seeks are even arguably "legislative." There is no merit to WSSC's contention that the administrative and personnel actions it took concerning individual IT employees before the reorganization, and the IT hiring decisions it made after the budget was approved, were "integral steps" in the county council budget approval process. Indeed, WSSC's decision to replace 80 "merit" positions with non-merit positions did not even require county council approval, but only the approval of the Secretary of the Maryland Department of Budget and Management. The fact that the new IT positions had higher salary costs, and that the two county councils approved WSSC's budget covering those higher costs, does not create a cloak of legislative immunity or privilege over the administrative and executive actions WSSC took concerning individual IT staff before and after the two county councils approved WSSC's 2007 budget. The information the district court ordered WSSC to provide to the EEOC is not protected by legislative immunity or privilege. Since WSSC asserted no other defense to the EEOC's subpoena, the district court properly directed WSSC to comply. ARGUMENT A. Standard of Review This Court reviews a district court's order to enforce an administrative subpoena, including questions pertaining to the administrative agency's authority to conduct an investigation, for clear error. United States v. Am. Target Adver., Inc., 257 F.3d 348, 351 (4th Cir. 2001); EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113 (4th Cir. 1997) (citing Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93, 98 (4th Cir. 1993)). Where enforcement of an administrative subpoena depends on questions of statutory interpretation, this Court reviews the district court's interpretation of the authorizing statute de novo. EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300, 302 (4th Cir. 1992). B. The district court properly ordered WSSC to comply with the EEOC's administrative subpoena. The district court properly enforced the EEOC's subpoena. Legislative immunity or privilege does not protect a local governmental entity from an EEOC investigation into whether the entity discriminated against its employees because of their ages. In any event, legislative immunity applies only to "legislative" actions. The district court correctly held that none of the information the EEOC seeks in the modified subpoena is "legislative" in nature. See Apx.1593-99. The items requested in the subpoena do not, as WSSC argues, "involve 'integral steps' in the legislative budgetary process." WSSC Brf. at 32. Rather, the subpoena requests items that are typical of any EEOC investigation, such as copies of the charging parties' personnel files; the identities of the individuals who applied for the new IT positions and who were hired for those positions; and employment policies relevant to the EEOC's investigation of whether WSSC discriminated against older IT workers before and after the IT Department reorganization. This Court has stated that "[t]he scope of judicial review over administrative subpoenas is necessarily limited by the intent of such review process." Am. & Efird Mills, 964 F.2d at 303. Courts should not attempt to determine the underlying claim on its merits, but only whether the EEOC has jurisdiction to conduct such an investigation. Id.; see also Am. Target Adver., 257 F.3d at 351 (role of district court in enforcing administrative subpoenas is "sharply limited"). District courts should enforce an administrative subpoena if the federal agency demonstrates, as the EEOC did here, that "(1) [the agency] is authorized to make such an investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are relevant." See Lockheed Martin, 116 F.3d at 113 (quoting EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir. 1995), and Am. & Efird Mills, Inc., 964 F.2d at 302-03). WSSC has not questioned that the EEOC's subpoena satisfies the second and third elements, "due process" and "relevancy." See Apx.1592 n.2 (R.12 at 4n.2).<6> The first element-authorization to investigate-is satisfied here, as well. Section 7(a) of the ADEA, 29 U.S.C. § 626(a), grants the EEOC broad authority to investigate possible violations of the ADEA. See Am. & Efird Mills, 964 F.2d at 303-04. This investigatory authority exists independent of any particular charges filed with the EEOC alleging ADEA violations. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991) ("EEOC's role in combating age discrimination is not dependent on the filing of a charge") (citing 29 C.F.R. §§ 1626.4, 1626.13); EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 450-51 (11th Cir. 1996) (ADEA grants EEOC "broad power to investigate," independent of the filing of an employee charge). WSSC falls within the scope of the EEOC's investigatory authority, as the ADEA expressly defines "employer" to include local governmental entities like WSSC. See 29 U.S.C. § 630(b) ("employer" also means "a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State"). The fact that two county councils approved WSSC's proposed 2007 budget, including the higher salary costs associated with the IT Department reorganization, does not give WSSC "legislative immunity" from having to produce the information requested in the EEOC's subpoena, as WSSC suggests. See, e.g., WSSC Brf. at 31-34. It is true that local, regional, and state legislators enjoy legislative immunity from lawsuits challenging their legislative actions. See Bogan v. Scott-Harris, 523 U.S. 44, 48-50 (1998) (local legislators); Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391 (1979) (regional legislators); Tenney v. Brandhove, 341 U.S. 367 (1951) (state legislators). As the Supreme Court explained in Bogan, "[r]egardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability." 523 U.S. at 52 (citations omitted). The EEOC has not filed a lawsuit, however, but is merely investigating whether WSSC discriminated based on age. And, as noted above, the ADEA expressly authorizes the EEOC to conduct such an investigation. WSSC points to no authority that supports its claim that legislative immunity extends to the EEOC's age discrimination investigation and, specifically, to this EEOC subpoena. The fact that legislative immunity might protect the two county councils from a lawsuit challenging their approval of WSSC's 2007 budget, and that "legislative privilege" might protect individual council members from having to testify concerning their reasons for approving the budget, does not cloak WSSC with legislative immunity for personnel actions it undertook in anticipation of or pursuant to that budget. See Burtnick v. McLean, 76 F.3d 611, 612-13 (4th Cir. 1996). In Burtnick, this Court held that the City of Baltimore did not have legislative immunity from a lawsuit brought under the ADEA by an employee whom the City had discharged following the City Council's approval of a City budget eliminating the plaintiff's position. Id. at 612-13. This Court rejected the City of Baltimore's reliance on Baker v. Mayor and City Council of Baltimore, 894 F.2d 679 (4th Cir. 1990), for the principle that "the decision to eliminate Burtnick's position was legislative in nature" and, therefore, the City was "immune from suit under the legislative immunity doctrine." Burtnick, 76 F.3d at 612. This Court noted that Baker had been overruled in Berkley v. Common Council, City of Charleston, 63 F.3d 295, 300-02 (4th Cir. 1995) (en banc). Burtnick, 76 F.3d at 612. As a result, only the legislators themselves could rely on legislative immunity; the City had no such claim for its actions implementing the legislatively authorized dismissal of the plaintiff. Id. Like the City of Baltimore, WSSC wrongly relies on Baker-as well as Schlitz v. Virginia, 854 F.2d 43 (4th Cir. 1988), and Hollyday v. Rainey, 964 F.2d 1441 (4th Cir. 1992), see WSSC Brf. at 27-31-for the very principle this Court overruled in Berkley. This Court, sitting en banc in Berkley, stated: "To the extent that our opinions in Baker . . . [894 F.2d at 682] and Schlitz . . . [854 F.2d at 45- 46] can be read to confer legislative immunity on municipalities from suits brought under section 1983, those decisions are overruled." Berkley, 63 F.3d at 303 (footnote omitted). This principle is not a close question; in Berkley, this Court joined six other circuits in holding expressly that a municipality is not immune under section 1983 for the enactments and actions of its legislative body. Id. at 300. In Burtnick, this Court extended Berkley's holding to the ADEA, ruling the City had no legislative immunity from the plaintiff's federal statutory claim that age bias motivated the City to eliminate his position and terminate his employment. Burtnick, 76 F.3d at 613. WSSC correctly notes that, in Berkley, this Court preserved the right of individual legislators to claim legislative immunity and testimonial privilege. See WSSC Brf. at 28 n.6. This Court acknowledged this again in Burtnick when it held that an individual legislator (whom Burtnick had also named in his ADEA lawsuit) could claim immunity from suit and that the members of the City Council could claim a testimonial privilege. See Burtnick, 76 F.3d at 613. The testimonial privilege available to legislators, however, did not permit the City of Baltimore to evade having to defend its discharge of the plaintiff pursuant to the council- approved budget. Burtnick, 76 F.3d at 612-13. Although WSSC is a regional governmental entity and Burtnick and Berkley both involved municipalities, this Court's rationale in both cases applies equally here.<8> If the EEOC were to seek evidence from the Prince George's and Montgomery County Councils, the individual members of those two county councils might have a claim to legislative immunity and/or testimonial privilege. WSSC, however, has no proper claim of legislative immunity from the EEOC's investigation into whether WSSC discriminated against former IT Department employees because of their ages.<9> WSSC's claim of legislative immunity or privilege fails for the additional reason that the EEOC is not requesting any information that is legislative in nature. Legislative immunity, as the district court noted, "'insure[s] that the legislative function may be performed independently without fear of outside influence.'" Apx.1594-95 (quoting Supreme Court of Va. v. Consumers Union of the U.S., 446 U.S. 719, 731-32 (1980)). Consistent with this purpose, legislative privilege only protects "actions that are considered legislative." Apx.1595 (emphasis added).<10> See also Bogan, 523 U.S. at 54 ("Absolute legislative immunity attaches to all actions taken 'in the sphere of legitimate legislative activity.'") (quoting Tenney, 341 U.S. at 376); Alexander v. Holden, 66 F.3d 62, 65 (4th Cir. 1995) ("Legislative immunity only attaches to legislative actions. . . . Executive and administrative actions are not protected.") (citations omitted). Determining whether an act is "legislative" "turns on the nature of the act." Bogan, 523 U.S. at 54; see Alexander, 66 F.3d at 65-67. As the Supreme Court explained in Consumers Union, the Virginia Supreme Court's promulgation of the State Bar Code was a legislative act because it resulted in "'rules of general application'" that were "'statutory in character.'" 446 U.S. at 731 (citation omitted). In Alexander, this Court considered the actual functions of the county commissioners to determine whether their acts were legislative, or administrative, and concluded that an act is "legislative" when it involves the adoption of "prospective, legislative-type rules." 66 F.3d at 65, 67. Similarly, the First and Fifth Circuits consider action to be "legislative" when it involves "'establishment of a general policy' affecting the larger population" and "administrative" when it impacts or singles out specific individuals. Id. at 66-67 (citing Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 23 (1st Cir. 1992)) (other citations omitted). See also Smith v. Lomax, 45 F.3d 402, 406 (11th Cir. 1995) ("A legislative act involves policymaking rather than mere administrative application of existing policies. . . . [I]f the decision impacts specific individuals, rather than the general population, it is more apt to be administrative in nature.") (citations omitted). Other circuits employ similar considerations. The Third Circuit, for example, finds an act to be "legislative" when it is both "(1) substantively legislative, such as 'policy-making of a general purpose' or 'line-drawing'; and (2) procedurally legislative, such that it is 'passed by means of established legislative procedures.'" Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996) (internal citation omitted). The Ninth Circuit considers four factors, asking whether the act: (1) involves ad hoc decisionmaking or the formulation of policy; (2) applies to a few individuals or the public at large; (3) "is formally legislative in character"; and (4) "bears all the hallmarks of traditional legislation." Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003) (citation omitted). Applying these standards, courts have reached largely consistent conclusions as to whether actions are legislative or administrative. Voting for a budget is "quintessentially legislative." Bogan, 523 U.S. at 55; see also Berkley, 63 F.3d at 302. Introducing a budget for legislative approval, and signing an ordinance into law after it has been approved by the legislative body, are also legislative acts, even when they are performed by an executive official, because they are "integral steps in the legislative process." Bogan, 53 U.S. at 55. Likewise, "activities by legislators that directly affect drafting, introducing, debating, passing or rejecting legislation" are legislative because they are an "'integral part of the deliberative and communicative processes.'" Baraka v. McGreevey, 481 F.3d 187, 196 (3d Cir. 2007) (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)) (other citation omitted). On the other hand, "[a]ctivities that are '"casually or incidentally related to legislative affairs but not a part of the legislative process itself,"'" are not properly characterized as "legislative." Id. (quoting United States v. Brewster, 408 U.S. 501, 528 (1972)). In Consumers Union, the Supreme Court held that although the Virginia Supreme Court enjoyed immunity for its promulgation of general rules of attorney conduct, it could be held liable when it enforced those general rules in specific instances. 446 U.S. at 736. And in Alexander, this Court ruled that a board of county commissioners' vote to eliminate the salary of the board's clerk, which ultimately terminated the employment of the existing clerk, was an administrative act, not a legislative one, because the board's action was directed at removing a specific person and installing someone else, rather than "adopting prospective, legislative-type rules." 66 F.3d at 67. As this Court has observed, a "legislator's employment and personnel decisions are generally administrative acts" falling outside the ambit of "legislative" actions. Id. at 66 (reviewing case law from this and other circuits). See also Bastien v. Office of Senator Campbell, 390 F.3d 1301, 1318 (10th Cir. 2004) (legislator's "personnel decision" is not a "legislative act" entitled to immunity); Chateaubriand v. Gaspard, 97 F.3d 1218, 1220-21 (9th Cir. 1996) (legislators' employment and personnel decisions generally considered administrative, rather than legislative, acts); Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988) (same). Viewed against these standards, it is evident that the information the district court ordered WSSC to produce for the EEOC is not "legislative." Rather, the information is typical of an EEOC inquiry into an employer's personnel decisions involving hiring, firing and discipline. As noted above, see supra at pp. 7-8, the EEOC's subpoena asks WSSC to produce, among other things, the personnel files for the complainants and for other relevant IT Department or WSSC employees, including those responsible for the IT Department hiring decisions during and after the reorganization. The subpoena also requests WSSC's job descriptions, hiring criteria, and job advertisements for the IT positions in question, as well as any tests WSSC used for hiring, retention, or promotion of IT staff and any training WSSC made available for IT staff before and after the reorganization. The subpoena asks WSSC to produce documents reflecting the agency's policies and decisions on hiring, promotion, discipline, and termination, and documents relating to any other age discrimination complaints WSSC received during the relevant time period. In addition to these documents, the subpoena asks WSSC to identify the employees and consultants who worked in the IT Department before the reorganization and the persons who applied for and those who were hired for IT positions after the reorganization. See Apx.71-73. None of the requested subpoena items attempts to examine any actions or decisions that involve "prospective, legislative-type rules," see Alexander, 66 F.3d at 67, or "rules of general application" that are "statutory in character." See, e.g., Consumers Union, 446 U.S. at 731. Rather, each item in the EEOC's modified subpoena seeks traditional employment records, such as personnel files, or information relating to specific administrative/managerial-type acts, such as WSSC's ad hoc decisions to allocate training opportunities among existing employees or to hire specific individuals to fill the new IT positions. These items are well-grounded in the EEOC's statutory authority to investigate charges of age discrimination. See Am. & Efird Mills, Inc., 964 F.2d at 303-04 (identifying EEOC's statutory authority to investigate ADEA charges); EEOC v. Maryland Cup Corp., 785 F.2d 471, 476 (4th Cir. 1986) (reversing district court's refusal to enforce EEOC subpoena for personnel information). The EEOC's broad statutory authority to investigate whether individual employment and personnel decisions of a local governmental employer were "because of age" in violation of the ADEA, see 29 U.S.C. § 626(a), does not evaporate whenever those personnel decisions, as here, either precede or follow a specific legislative budget authorization. See Carver, 102 F.3d at 101. Otherwise, the majority of employment actions of governmental entities would escape any scrutiny under federal fair employment statutes. The fact that two county councils approved WSSC's 2007 budget does not alter the non-legislative character of the personnel information and documents sought in the EEOC's modified subpoena. There is absolutely no need to "delve deeply into the legislative budgetary process," as WSSC wrongly posits, see WSSC Brf at 10, to ascertain that the EEOC's requested items are not legislative in nature. WSSC offers two arguments, both unavailing, for why it believes the district court's enforcement order requires WSSC to produce information that is "legislative" in nature. First, WSSC appears to argue that, because the charging parties included in their ADEA charges the claim that age bias motivated the reorganization that caused their discharges, the EEOC is necessarily investigating that claim. See WSSC Brf. at 27 (noting that "[t]he heart of Claimants' charge is that the IT reorganization was motivated by age-bias" and suggesting that EEOC's investigation necessarily must assess that allegation); see also id. at 25 (improperly attributing to EEOC the charging parties' claim that "the entirety of the decision to reorganize the IT department was motivated by a desire to terminate the older employees"). Second, WSSC argues that even without subpoena items 2 and 3, the EEOC's investigation intrudes on matters that are "legislative" because all of WSSC's IT Department decisions and actions, even those before and after the reorganization, were "integral steps in the legislative process." See WSSC Brf. at 31-34. Neither argument has any merit. First, the fact that the charging parties assert age discrimination in their discharges, in addition to age discrimination in training opportunities, does not mean that the EEOC is necessarily investigating whether the IT Department reorganization and the accompanying discharges were motivated by age bias, as WSSC appears to argue. See WSSC Brf at 25-27. The fact that a charging party mentions, or fails to mention, a particular allegation does not dictate how the EEOC may choose to conduct its investigation.<11> To the contrary, the EEOC is "the master of its own case." See EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (ADA claim). This is true, not only when the EEOC files a lawsuit, id., but even more so when the EEOC conducts an investigation. See EEOC v. Federal Exp. Corp., 558 F.3d 842, 852-53 (9th Cir.) (citing Waffle House for the principle that the EEOC, not the charging party, controls the scope of the EEOC's investigation), cert. denied, 130 S.Ct. 574 (2009). And although this is true under all of the statutes the EEOC enforces, it is particularly true under the ADEA, where the statute authorizes the EEOC to conduct investigations even without the filing of a charge. See, e.g., Gilmer, 500 U.S. at 28 (EEOC's role in combating age discrimination not dependent on filing of a charge); Tire Kingdom, 80 F.3d at 450- 51 (ADEA gives EEOC "broad power to investigate" independent of the filing of a charge). The fact that Bowen and the other charging parties alleged their discharges were based on age does not determine the nature or scope of the EEOC's investigation, and the EEOC's subpoena must be evaluated on its face, not based on WSSC's speculation as to the EEOC's investigatory focus based on what the charge alleges. On its face, it is evident that the district court's order enforcing the EEOC's subpoena does not require WSSC to produce any "legislative" information. The only items the district court found even arguably legislative in nature-WSSC's reasons for reorganizing the IT Department-are not part of the district court's order.<12> Second, WSSC's pre- and post-reorganization activities are not "integral steps" in the legislative process of budget approval, as WSSC asserts. See WSSC Brf. at 31-34. WSSC's preparation of a proposed budget and its submission of that budget to the two county councils might properly be considered such an "integral step." See Bogan, 53 U.S. at 55. WSSC's decisions to grant or withhold training opportunities to IT staff before and after the reorganization, and WSSC's disciplinary decisions, are, however, wholly unrelated to either the budget process generally or the 2007 budget specifically (when the reorganization occurred). These personnel decisions were not "steps" in the budget approval process, or any other legislative process. They were, at most, "casually or incidentally related to" the budget approval and, as such, not properly characterized as legislative. See Baraka, 481 F.3d at 196; see also United States v. Brewster, 408 U.S. 501, 528 (1972) (Speech and Debate Clause "does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself"). Likewise, even if one assumes that hiring staff for the newly-created non- merit positions was the next logical step after the county councils approved the necessary budget, that fact does not make those hiring decisions "legislative" in nature. No legislator had any say in who was hired for the new positions, and there is no record evidence that the county council members voted on general guidelines for those hiring decisions. Rather than being "integral" to the budget process, the selection of individual applicants to fill vacant job positions is a quintessential executive or administrative act. An agency's actions do not warrant "legislative immunity" simply because they were undertaken pursuant to some budgetary or other legislative authorization. Legislative immunity is proper only if the acts themselves were an actual part of the legislative process. Bogan, 53 U.S. at 55. Thus, it is immaterial that WSSC's annual budget requires approval by the Prince George's and Montgomery County Councils, or that the 2007 budget approved by those two county councils provided WSSC with the funds to replace the 80 merit system IT positions with non-merit system positions. Under this Court's precedent, legislative immunity/privilege would extend to the county councils' budget decisions, but not to the administrative and executive decisions WSSC made pursuant to this legislative authorization.<13> In sum, legislative immunity does not apply here because the EEOC's administrative subpoena seeks only documents associated with WSSC's executive and administrative decisions before and after the reorganization-decisions that were not legislative acts themselves nor "integrally related" to any legislative action of the two county councils that approved WSSC's 2007 annual budget. A governmental entity like the WSSC cannot claim absolute legislative immunity from an EEOC investigation merely because the entity undertakes personnel actions that are funded by a legislatively-authorized budget. If that were the case, the ADEA would be rendered largely ineffective with respect to local governmental entities, particularly since, at some level, all governmental conduct is necessarily legislatively authorized. The documents and information the EEOC seeks are not protected by legislative immunity, and the district court properly enforced the EEOC's administrative subpoena. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to affirm the district court's order enforcing the EEOC's administrative subpoena. RESPONSE TO WSSC'S REQUEST FOR ORAL ARGUMENT The EEOC's ability to obtain information from employers like WSSC lies at the core of the agency's legal duty to investigate allegations of employment discrimination. Notwithstanding WSSC's efforts to obscure the straightforward nature of this case, the district court properly applied the deferential standard for judicial enforcement of an EEOC subpoena, and the EEOC sees no need for oral argument in WSSC's appeal from the district court's order. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford _____________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Washington, D.C. 20507 Tel (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,204 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Susan R. Oxford Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: July 2, 2010 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and eight copies of the Appellant EEOC's Opening Brief with this Court on July 2, 2010, by UPS, postage pre-paid, and served two copies of said brief on the same date by the same means on counsel for Washington Suburban Sanitary Commission at: Todd J. Horn, Esq. VENABLE LLP 750 East Pratt Street Baltimore, Maryland 21202 /s/ Susan R. Oxford ----------------------- Susan R. Oxford Attorney EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov *********************************************************************** <> <1> "Apx.#" refers to the page in the Appendix filed by Appellant Washington Suburban Sanitary Commission. "R.#" refers to the district court docket number. <2> The charging parties filed their action in state court in October 2006. See Bowen v. WSSC, CAL06-22334 (Md. Cir. Ct. Prince George's County) (Apx.186-213). <3> WSSC included the agenda and minutes for its December 14, 2005, and February 2, 2006, meetings and the accompanying public "Fact Sheets" and reports explaining why WSSC needed to reorganize the IT Department. Apx.369-473 (December 14, 2005); Apx.633-76 (February 22, 2006). WSSC also included agendas, reports, and minutes for county council meetings held on March 16, 2006 (Prince George's County), Apx.1028-1104, and during the spring of 2006 (Montgomery County Council), Apx.1105-1287. The county council documents contain scattered references to the IT reorganization. WSSC also provided copies of correspondence between various government officials discussing the IT reorganization. See, e.g., Apx.1288-1329. <4> The district court granted a limited stay. Apx.1554-55. <5> During the initial hearing on May 14, 2009-when the district court granted WSSC's request for a stay-the EEOC had orally modified the subpoena to eliminate item 3 (which asked WSSC to "[p]roduce records of all internal deliberations surrounding [WSSC's] decision to reorganize the IT department in 2006"). See Apx.71, 1543-44. <6> A party may also defeat enforcement of an EEOC subpoena by showing the EEOC's request is "excessive or unduly burdensome." See Am. & Efird Mills, 964 F.3d at 303. WSSC did not assert such a concern below with respect to the EEOC's subpoena, see Apx.1579-80, and has not suggested any such concern in its opening brief on appeal. Thus, any argument that the EEOC's subpoena is excessive or unduly burdensome is now waived. See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (with very narrow exceptions, issues not raised before district court are waived on appeal). <7> Although Berkley did not mention Hollyday when it stated it was overruling Schlitz and Baker on this point, Hollyday likewise provides no support for WSSC because only one member of the panel, Judge Hall, endorsed the legislative immunity principle for which WSSC cites Hollyday. See WSSC Brf. at 30-31 (citing Hollyday, 964 F.2d at 1443). Judge Butzner dissented entirely, 964 F.2d at 1446-49, and Judge Luttig, who authored the opinion in Berkley, expressly declined to join Judge Hall's reliance on legislative immunity (for the reasons this Court later adopted in Berkley). Compare, e.g., id. at 1444-46, with Berkley, 63 F.3d at 296-99. Thus, Judge Hall's view provides no precedent for this Court. <8> In Katz v. WSSC, 284 Md. 503 (1979), the Maryland Court of Appeals held that WSSC is properly characterized as a state agency for purposes of determining the applicability of the doctrine of sovereign immunity in the context of individual tort actions filed against WSSC. Id. at 512. "State agency" status does not alter the analysis here, however. The ADEA defines "employer" to include a state or political subdivision of a state and any agency of the state or political subdivision. See 29 U.S.C. § 630(b). This congressional authorization overrides any claim of "sovereign immunity." As the EEOC informed WSSC when the EEOC issued this subpoena, the doctrine of preemption displaces a state agency's claim of immunity from investigation by the EEOC of possible discrimination based on age. See Apx.66-67 (citing, among other cases, EEOC v. Wyoming, 460 U.S. 226, 243 (1983)). <9> WSSC incorrectly asserts that the district court actually decided that "legislative immunity could apply to WSSC's reorganization of the IT Department because it was 'reviewed [as] part of the budgetary process by local legislators'" and that this "decision" "has not been challenged by the EEOC." See WSSC Brf at 23 (citing Apx.1596-98). Both of WSSC's assertions are wrong. The district court did not actually decide whether WSSC is entitled to legislative immunity here. See Apx.1598-99 (noting that "only a few of the items in the EEOC's subpoena [those the EEOC no longer seeks] contain the possibility of being classified as legislative actions"; explaining further that "this Court need not address [the extent that the WSSC is entitled to legislative immunity] because the pending matter before this Court is not a suit against the WSSC") (emphases added). To the extent the district court's statements can be read to suggest the court believed WSSC might be protected by legislative immunity under some circumstances, the district court is, in our view, simply wrong. <10> The court further correctly noted that "legislative privilege is 'one of non- evidentiary use [of legislative acts against a legislator], not one of non- disclosure.'" Apx.1595 (quoting In re Grand Jury, 821 F.2d 946, 958 (3d Cir. 1987)). <11> For example, WSSC asserts that "the Bowen Claimants do not claim age discrimination because they were not selected for the new positions." WSSC Brf. at 33 (citing Apx.32, 35) (emphasis omitted). Even if true, this is immaterial to the EEOC's investigation. As explained above, the EEOC is the master of its own ADEA investigation. The charging parties allege that when WSSC told existing IT employees that their merit-system IT positions were being eliminated, WSSC represented they would have the opportunity to apply for the new, non-merit IT jobs being created. Apx.36. The charging parties further allege that younger employees from outside WSSC were hired for the new positions. Apx.37-39. Based on these allegations, the EEOC has chosen to investigate whether the charging parties or any other former IT staff applied for the new positions and were not hired because of their ages. <12> WSSC misstates the nature of what is at issue in this appeal when it asserts, throughout its opening brief, that the EEOC seeks to investigate the motives for WSSC's reorganization of its IT Department. See, e.g., WSSC Brf. at 1, 2, 4-5, 10. The EEOC is not investigating WSSC's motives for the reorganization. Nevertheless, it is the EEOC's view that if the EEOC had not exercised its administrative discretion to focus its investigation on WSSC's pre-reorganization training decisions and post-reorganization hiring decisions, the ADEA would permit the EEOC to investigate whether age bias motivated WSSC to abolish the 80 merit positions and replace them with non-merit positions. WSSC's decision to reorganize its IT Department was an executive or administrative decision concerning the internal structure of its staff, not a matter of general policy affecting the public at large. Significantly, WSSC did not need county council approval to eliminate these "merit" positions; it needed (and obtained) the approval of only the Secretary of the Maryland Department of Budget and Management. See Apx.112, 114-16, 120, 160-61. The fact that WSSC chose a reorganization model that involved an increase in its annual budget and that WSSC is required to submit its proposed budgets for county council approval, see Apx.116-17, 120-23, did not alter the administrative nature of WSSC's decision to convert the IT jobs from "merit" to "non-merit" positions. Thus, although legislative privilege might protect the two county councils from having to disclose why they approved WSSC's 2007 budget (information the EEOC has never sought), it would not protect WSSC from having to produce the information requested in subpoena items 2 and 3 concerning WSSC's reasons for replacing 80 merit system positions with non-merit positions. Cf. Bastien, 390 F.3d at 1315-16 (existence of a legislative vote authorizing a discriminatory employment action would protect only the voting body, not the entity that implemented the discriminatory act). Since the EEOC decided not to pursue those two subpoena items, however, the EEOC's entitlement to this information is not before this Court. <13> The voluminous materials from the Bowen state court record extract, which WSSC included in its appendix, see Apx.352-1537, and to which WSSC cites repeatedly in its opening brief, see, e.g., WSSC Brf. at 11-21, are wholly irrelevant to the issues before this Court. Notably, in the proceedings below, WSSC never called the district court's attention to any particular pages from this record extract, in either its legal memoranda, see Apx.84-103, or during oral argument, see Apx.1538-53, 1556-88. On appeal, WSSC refers to the Bowen record extract to demonstrate that "WSSC Commissioners and County Councils . . . unequivocally considered the elimination of merit positions and the creation of new positions as part of the budgetary review process." Appellant's Br. at 33. The EEOC does not contest that WSSC submitted a proposed budget to the two county councils that provided additional funding to cover the higher salaries of the non-merit IT positions WSSC created with the approval of the Secretary of the Maryland Department of Budget and Management, nor does the EEOC contest that the two county councils approved that budget. See supra at p.30-31 n.12. By taking WSSC's motive for the reorganization "off the table," however, see Apx.1580, the EEOC eliminated any need for this Court to refer to the 1,200 pages of the Bowen record extract that WSSC included in its appellate appendix.