This is an appeal from a pair of district court orders entering broad and far-reaching confidentiality restrictions with respect to an EEOC administrative subpoena. In our opening brief (“OB”), we argued that the district court abused its discretion because Title VII’s statutory and corresponding regulatory regimes provide ample protection for confidential materials in EEOC investigations, including criminal penalties for violations by EEOC employees. We also noted that the subpoenaed materials here do not require special treatment because they are absolutely typical of just about every EEOC investigation involving disparate pay claims. We pointed out that, because there is no principled distinction between this investigation and so many others undertaken by the EEOC, the precedent set by affirmance of the district court’s confidentiality order in this case would likely have substantial consequences for the agency’s enforcement efforts in other cases.

In its answering brief (“AB”), Bashas’ argues that the EEOC waived its opportunity to appeal this decision because, although the Commission timely appealed from the orders entering the confidentiality provisions, the EEOC’s notice of appeal was not timely as to the court’s earlier order requiring the parties to submit proposed confidentiality orders. It then rehashes the same unsubstantiated conspiracy theory it attempted, and failed, to prove before the district court in opposing enforcement of the subpoena as a justification for the confidentiality order. Finally, it falsely depicts the regulatory and legal landscape as one without protection for the data at issue and as one that supports broad intrusion by courts into agency investigative procedures. We submit this reply brief to respond to these arguments, which are meritless, and to clarify the record.

A. The EEOC’s appeal in this case was timely and the EEOC did not waive its right to challenge the terms of the district court’s confidentiality order.

The EEOC properly and timely appealed from the district court’s two orders of December 8, 2011, entering the confidentiality order in this case, and fully preserved its right to appeal from the entry and terms of that order. Bashas’ does not raise a single meritorious or even logical argument to the contrary. Instead, it cites a plethora of case law standing for the unremarkable proposition that a district court’s order disposing of an issue on the merits may be final and appealable—as to the merits—even if it leaves collateral issues to be resolved in future orders. AB-22-26. Not a single one of these cases has any bearing on this case, which involves an appeal from the very collateral issue initially left unresolved.

The district court’s first order, entered on September 30, 2011, said virtually nothing about the terms of any future confidentiality order. The sum total of the “confidentiality order” language from that decision was as follows:

V. Confidentiality Order

Lastly, given the unique situation which this subpoena enforcement action presents, the court will require the parties within ten (10) days of the date hereof to file with the court, for its review and approval, a joint proposed confidentiality order.

For all of the reasons set forth herein, the court hereby ORDERS that:

* * *

(2) within ten (10) days of the date hereof the parties shall file with the court, for its review and approval, a joint proposed confidentiality order.

I-ER-84. Accordingly, Bashas’ misleads this Court when it states that “the district court [] gave no indication that its ruling was subject to change: ‘[c]learly the court contemplated … additional protections beyond those provided by statute and EEOC procedures.’ (ER 17 (emphasis added).)” AB-23. This quoted passage is from the second district court order of December 8, 2011, issued after the parties had already made their confidentiality submissions to the court. Regardless of what it may have said in December, the district court gave no indication back in September of the terms of the confidentiality order it intended to enter months later. Thus, the September order patently was not, as Bashas’ claims, “a full adjudication of the issues,” nor did it “clearly evidence[] the judge’s intention that it be the court’s final act in the matter.” Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 964 (9th Cir. 2003) (internal citation & quotation marks omitted).

Because it was totally unresolved, as of September 30, 2011, what the terms of the confidentiality order would be, it was also far from clear whether the EEOC would be filing an appeal in this case at all. This appeal concerns only the terms of the confidentiality order entered in December 2011. Although the EEOC expected, regretfully, that the district court would not be pleased that the parties had failed to agree on a confidentiality order, it nonetheless submitted its own proposed order on October 14, 2011. II-ER-122-27. The EEOC had no way of knowing what the final order entered by the district court would look like—it could have more closely resembled the EEOC’s proposal, been more of a hybrid of the two proposals, or, as it turned out, been almost identical to that proposed by Bashas’.

Accordingly, as was both logical and prudent, the EEOC awaited the district court’s ruling on the confidentiality issue before deciding whether to take an appeal from it. See Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962) (“A pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action’: the touchstones of federal procedure.”). The consequences of a contrary rule in this context would be both flatly absurd and disastrous for this Court’s administrative workload. Without knowing how a district court will rule and whether either party will find it at all objectionable, parties would be forced to file notices of appeal with the Court to preserve their appellate rights just in case they don’t agree with a not-yet-existent future ruling and just in case the district court takes more than thirty days (or sixty days if the United States is a party) to issue that ruling. Fed. R. App. P. 4(a)(1)(A)-(B). In effect, parties would be required to file dual notices of appeal as to the same issue: once when a district court hints that it intends to rule on an issue in the future, and a second time when it does actually rule. This cannot be what the Supreme Court meant by a “pragmatic approach to finality.”

Despite Bashas’ attempts to portray it otherwise, the existing case law and appellate scholarship is not to the contrary. Orders granting or denying the enforcement of administrative subpoenas are certainly final and appealable as to the merits of those decisions. See generally 15B Charles Alan Wright et al., Federal Practice & Procedure § 3914.26 & n.7 (2d ed., database updated Apr. 2012) (hereinafter “Wright & Miller”). However, as Wright and Miller go on to explain, “[c]ourts should adhere to a simple rule in almost all circumstances: orders made in ongoing proceedings to determine the final remedy are not final. This rule usually is applied to bar appeals from orders that begin the remedial proceedings by directing the parties to submit proposed decrees ….” 15B Wright & Miller § 3915.4.

A far better analogy to the situation presented here than the law of divestiture in antitrust cases, such as Brown Shoe (see AB-23-24), is afforded by the extensive case law dealing with appeals from grants or denials of attorney’s fees after merits litigation.[1] As the Supreme Court held in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988), “a decision on the merits is a ‘final decision’ for purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.” However, if a party wishes to appeal from a district court’s disposition of a motion for attorney’s fees, this Court has held that such orders become final and appealable only when they fully dispose of the issue, including the amount of fees:

An order awarding attorney’s fees which does not fully dispose of the issue of attorney’s fees is not a final, appealable order. Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir. 1988). For example, if the district court explicitly provides for revision of the amount of the award, the order does not fully dispose of the attorney’s fees issue. Id. Indeed, an order “finding appellant liable for attorney’s fees and costs but without determining the specific amount of that award is not a final and appealable order.” Gates v. Central States Teamsters Pension Fund, 788 F.2d 1341, 1343 (8th Cir. 1986).

The district court’s first order imposing sanctions but not setting an amount was therefore not a final or appealable order. See Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir. 1987) (a court’s first decision, if later modified, is not final); Munich v. United States, 330 F.2d 774, 775 (9th Cir. 1964) (order requiring party to prepare dispositive order is not final).

Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir. 1989).

This Court’s long-standing approach to attorney’s fees litigation offers a logical, deeply pragmatic, and well-reasoned analogue to the confidentiality order scenario presented in this case. Hypothetically, if a district court were to grant summary judgment on the merits to a defendant in a Title VII case, and, at the end of the opinion, indicate that it wanted to see briefing on attorney’s fees, the plaintiff’s time for appeal on the merits (absent an appropriate tolling motion) would run from the date that judgment was entered. This Court’s case law makes clear, though, that the plaintiff’s time for appeal on the attorney’s fee issue would not run until that issue was fully resolved both as to liability and as to amount, even if the plaintiff made clear from day one that she did not believe that defensive attorney’s fees were warranted. This is the only sensible approach: the time for appeal cannot run as to an issue where there is no final determination.

Bashas’ insistence that the EEOC somehow waived its right to appeal the need for the district court’s confidentiality order on more specific grounds (AB-26) fares no better. Indeed, it is unclear what Bashas’ means when it states that the EEOC “failed to object” to the terms of the district court’s confidentiality order, but, whatever its intended meaning, it is simply incorrect.

If Bashas’ means that the EEOC never informed the district court that specific provisions of Bashas’ various proposals would interfere with the conduct of EEOC investigations, this representation is untrue. At various points during the proceedings below, the EEOC argued not only that the protections afforded by the existing statutory scheme were sufficient to safeguard Bashas’ interests, but that further specific restrictions would interfere with the agency’s ability to investigate this and other charges. See, e.g., II-ER-124 (EEOC’s proposed confidentiality filing of 10/14/11) (“The statutory confidentiality provisions already in place represent the balance Congress struck between the need for confidentiality and the need for the EEOC to be free to fulfill its congressional mandate. Imposing additional burdens and restraints on the EEOC beyond what the law already requires would impede its ability to conduct investigation.”); PSER-10 (transcript of evidentiary hearing of 10/13/09, R.41 at 118) (explaining that EEOC’s proposed confidentiality order “would provide the … protections that they’re seeking, recognizing that the information is protected as well by statute, and would not involve … things that are really litigation, such as making every witness sign a statement or … keeping separate files…. [T]he investigations are not set up that way, and it would definitely hamper the investigation.”); PSER-11-12 (id. at 138-39) (explaining that “if we had these kind of confidentiality orders that [were] proposed by Bashas’, we wouldn’t be able to investigate….[If] we can’t have anyone outside of the Phoenix office looking at information[, t]hat would certainly hamper an investigation. And to say we can’t disclose anything that Bashas’ has marked confidential … except as provided by this agreement, it doesn’t coincide with the regulations in FOIA.”).

The arguments that the EEOC makes before this Court are the same substantive arguments it has made all along. If anything, the EEOC’s objections to specific confidentiality provisions may be more precisely detailed before this Court because this is the first opportunity the EEOC has had to respond to an actual, written confidentiality order as opposed to proposals and abstract arguments. Cf. Puerta v. United States, 121 F.3d 1388, 1341-42 (9th Cir. 1997) (observing that “[a]n argument is typically elaborated more articulately, with more extensive authorities, on appeal than in the less focused and frequently more time pressured environment of the trial court, and there is nothing wrong with that”).[2]

Or, Bashas’ may mean that the EEOC literally did not “object” to the district court’s entry of the confidentiality order on December 8, 2011, or to Bashas’ proposal of October 14, 2011, and that this somehow precludes the agency from appealing from its terms. This argument simply makes no sense. As a procedural matter, the district court entered an order on October 12, 2011, directing the parties to file their joint proposed confidentiality order two days later. III-ER-644. The parties filed their separate proposals on the due date, October 14, 2011. Id. The district court did not hold another hearing or invite further discussion; instead, it simply entered the confidentiality order at issue on December 8, 2011. Id. There was no opportunity for the EEOC to “object” to Bashas’ proposal at this stage prior to the district court’s acting on it.

After the district court ruled, the EEOC theoretically could have filed a motion for reconsideration as an “objection,” but given the district court’s explanatory order (R.109; I-ER-11) such a motion plainly would have been futile. As several courts have observed, motions for reconsideration are not mandatory, particularly in circumstances like these. See, e.g., In re Two Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 994 F.2d 956, 961 n.7 (1st Cir. 1993) (“[G]iven the clarity and definiteness of the trial court’s order, a post-trial motion for reconsideration was not required as a condition precedent to taking an appeal.”); Franki Foundation Co. v. Alger-Rau & Assocs., Inc., 513 F.2d 581, 587 (3d Cir. 1975) (“[T]he right to appeal is not conditioned upon the filing and prosecution of post-trial motions. In fact, there are many instances in which the filing of such motions would be an unnecessary and/or futile task.”).

Whatever Bashas’ may have meant to argue, the EEOC presented its arguments regarding Bashas’ proposals to the district court, the district court ultimately ruled on them in two orders on December 8, 2011, and this appeal was properly taken from those rulings.

B. The existing protections in Title VII’s statutory and regulatory scheme are more than adequate to address Bashas’ confidentiality concerns and do not provide a basis for judicial assertion of jurisdiction over an EEOC investigation.

In its Answering Brief, Bashas’ strains to portray this situation as one in which this Court must choose between a broad confidentiality order, on the one hand, and absolutely no protection for its confidential information, on the other. See AB-39 (“widespread dissemination of confidential information”). This is a grave mischaracterization of the truth—and, indeed, Bashas’ has no evidence, record or otherwise, to the contrary.

As we explained in our opening brief (OB-31-35), while an investigation is pending, the EEOC may not “make public in any manner whatever any information obtained by the Commission pursuant to its authority” to investigate charges. 42 U.S.C. § 2000e-8(e); 29 C.F.R. § 1601.22; see also PSER-8-9. The one exception to the bar on disclosure during the investigation is for parties (including respondents) and witnesses during the course of the investigation “where disclosure is deemed necessary for securing appropriate relief.” 29 C.F.R. § 1601.22. As a practical matter, what this means is that no one, party or not, may request the charge file until the investigation has concluded, and the EEOC may only show documents from the charge file to parties or witnesses during the investigation as necessary to further the investigation. Any EEOC employee who violates this rule is subject to criminal penalties, including a $1000 fine or imprisonment of up to a year upon conviction. It may be Bashas’ unsupported belief (AB-11) that criminal penalties, which would result in a conviction record as well as potential jail time, are too insignificant to be taken seriously by Commission employees, but this is not a view taken by Congress or shared by the EEOC.

After the investigation has concluded, the EEOC will release the contents of charge files only to those individuals with a Notice of Right to Sue (“NRTS”) that has not expired.[3] Bashas’ portrays the calculation of this time period as some sort of nefariously vague, discretionary decision by the EEOC (AB-30), but it is not: as the EEOC’s Compliance Manual explains, NRTSs expire in ninety days unless the person “arguably has a continuing right of judicial action (e.g., by tolling or waiver of the 90-day period).” EEOC Compliance Manual § 83.3(a).[4] Once the suit-filing period as to all individuals with NRTSs has passed, whether it be exactly ninety days or longer if tolling or waiver issues are involved, if no suit has been filed, the charge file is closed and its contents cannot be disclosed to anyone outside the EEOC at all. Id.[5] If a lawsuit has already been filed, both the charging party and the respondent may see the charge file. EEOC Compliance Manual § 83.3.

Moreover, as we explained in our opening brief (OB-33-35), even when contents of charge files are disclosed in accordance with Commission procedures, certain categories of information are removed or “sanitized” from the files first and would never be disclosed. These categories include confidential commercial information and trade secrets, covered in the EEOC Compliance Manual at § 83.4(e) and in the EEOC FOIA Reference Guide, § XI, available at http://www.eeoc.gov/eeoc/foia/hb-11.cfm. Any requests for disclosure of such information would be handled pursuant to the EEOC’s procedures detailed in these documents, and, as explained previously, if the EEOC determined that disclosure was warranted and Bashas’ disagreed with that decision, Bashas’ could seek an injunction in court by filing a “reverse FOIA” suit under the APA. OB-34-35; Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979).

Bashas’ response is essentially to complain that the EEOC cannot be trusted to do its job; that the EEOC, and not Bashas’ or a court, will be the one making the initial determination as to whether documents are entitled to protection under FOIA or Section 83 (AB-48); and that some of the litigants in Parra, who might end up being class members as to the Commissioner’s Charge, might be able to obtain information to which they are legitimately entitled as class members. As to the first point, as we described in our opening brief, the Supreme Court has observed that “administrative agencies are entitled [to a presumption] that they will act properly and according to law,” and Bashas’ has no evidence that the EEOC has done otherwise in this case.[6] FCC v. Schreiber, 381 U.S. 279, 296 (1965). Discussing non-confidential matters of public record with fellow attorneys in the private bar, reopening charge files, or failing to conduct an investigation according to whatever patterns Bashas’ deems “normal” are not improper, however much Bashas’ may disapprove. See OB-8-9, 41-42 n.6 (citing EEOC v. Fed. Express Corp., 558 F.3d 842, 854 (9th Cir. 2009)). And Bashas’ points to no support—because there is none—for the proposition that the EEOC must follow the same investigative procedures in every case, or that what occurred here was beyond the Commission’s authority. Rather, the existing authority is clear: the EEOC is required to investigate charges of discrimination, 29 C.F.R. § 1601.15, and its authority to do so is both broad and flexible. EEOC v. Waffle House, 534 U.S. 279, 296 n.11 (2002) (“We have generally been reluctant to approve rules that may jeopardize the EEOC’s ability to investigate and select cases from a broad sample of claims. Cf. EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984) (“[I]t is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired[.]”)).

As to the second point, the agency’s right to “exercise its discretion to determine what documents are exempt from public disclosure” was exactly one of the confidentiality provisions at issue in FTC v. Texaco. 555 F.2d 862, 884 (D.C. Cir. 1977). The D.C. Circuit rejected the analogous provision of the confidentiality order in Texaco because it “would unquestionably place the court in a position of supervision and control over the Commission in the exercise of its statutory duties.” Id.; see also id. at 884 n.62 (observing that “the Schreiber decision makes clear [] that it is the agencies, not the courts, which should, in the first instance, establish the procedures for safeguarding confidentiality”). The court held, “[a]t least until the subpoenaed information has been made available to the agency and it has had an opportunity to rule on specific requests for confidential treatment, such a protective order is premature and improper.” Id. Instead, the court ordered that the FTC should follow a procedure similar to the EEOC’s current FOIA procedure—it required the agency to give the respondent ten days’ notice prior to disclosing any confidential information on the grounds that “[s]uch a procedure would, of course, provide an opportunity for judicial review at some later date, if the producers believe that a particular proposed disclosure is improper.” Id. at 884-85.

The Third Circuit recently reiterated this view in its decision in EEOC v. Kronos, Inc., ___ F.3d ___, No. 11-2834, 2012 WL 4040258 (3d Cir. Sep. 14, 2012) (“Kronos II”), an appeal from a subpoena enforcement action involving the district court’s entry of a confidentiality order. In Kronos II, where the confidential materials in question were employment tests, the court of appeals nonetheless struck down several provisions of the district court’s confidentiality order that were highly similar to the ones entered in this case. For example, the Third Circuit vacated ¶8 of the confidentiality order, which “essentially requires the EEOC to provide notice of any FOIA requests to Kronos, refuse to disclose information in a FOIA request if Kronos objects, and allow Kronos to intervene in any suit in which a party seeks to obtain confidential information from the EEOC.” 2012 WL 4040258, at *13. The court held:

As the EEOC points out, entry of ¶ 8 appears to reflect a presumption that all of the so-called “Confidential Information” produced by Kronos constitutes trade secrets or commercial information that is entitled to remain confidential.

* * *

Allowing Kronos to assert unilaterally that any information it discloses to the EEOC is automatically exempt under FOIA precludes EEOC officials from performing the analysis required by FOIA after a request for information is made. It is likely that much of the data disclosed by Kronos will indeed be exempt under 5 U.S.C. § 552(b)(4), which allows nondisclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Nonetheless, the District Court erred by impeding the EEOC’s ability to do its required analysis when faced with a FOIA request.

Id. at *14.

Bashas’ third concern is that some of the Parra plaintiffs might be able to see documents pertaining to the Commissioner’s Charge either as witnesses in investigative interviews or as class members. However, to the extent these individuals might have their own rights to see this information as potential litigants under the Commissioner’s Charge, neither the EEOC nor Bashas’ has any right to deny them access to that information. As we explained in our opening brief (OB-37), the Supreme Court in University of Pennsylvania v. EEOC made clear that Congress adopted and fashioned the confidentiality provisions of Title VII (and the same can certainly be said of FOIA), and that choice must be abided by as a rule of law. 493 U.S. 182, 192 (1990).

In terms of the Parra plaintiffs’ status in the Parra litigation, though, as we pointed out in our opening brief (OB-35-36), Bashas’ has no need of an additional “enforcement mechanism” here for one simple and obvious reason: Judge Broomfield has made it abundantly clear that the time frame of the Commissioner’s Charge is outside the scope of Parra. AB-9; SER-43. Thus, even if a Parra litigant were to turn out to be a member of the class of aggrieved persons in the Commissioner’s Charge, and even if that litigant were to receive a NRTS after the close of the investigation and seek his/her charge file, and even if s/he did thus receive information to which s/he was not entitled via discovery in Parra, Judge Broomfield certainly would not allow him/her to use that information in the Parra litigation (to say nothing of potential sanctions for attempting to violate a court order).

Indeed, it makes far greater sense to rely on Judge Broomfield to monitor any potential discovery violations or misuse of information in Parra—a case over which he currently presides—than to establish a precedent whereby district courts may assume near-total jurisdiction over agency investigations and police them. This was essentially the D.C. Circuit’s point in Texaco, and the “inherent authority” cases on confidentiality orders and subpoena enforcement (AB-37-39) do not hold otherwise.

The Supreme Court and this Court have both cautioned that the “inherent authority” of the courts to manage their own litigation is not boundless and is confined to litigation actually before the court. As the Supreme Court observed in Degen v. United States:

Courts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities. The extent of these powers must be delimited with care, for there is a danger of overreaching when one branch of the Government, without benefit of cooperation or correction from the others, undertakes to define its own authority…. Principles of deference counsel restraint in resorting to inherent power, and require its use to be a reasonable response to the problems and needs that provoke it.

517 U.S. 820, 823-24 (1996) (internal citations omitted). See also id. at 829 (“A court’s inherent power is limited by the necessity giving rise to its exercise.”).

This Court has held that a protective order governing a party’s conduct unrelated to proceedings pending before the court is not a valid exercise of the district court’s inherent authority. Wharton v. Calderon, 127 F.3d 1201 (9th Cir. 1997). In Wharton, where there was a petition for habeas corpus pending in the district court, the court “issued a protective order prohibiting the respondent Warden of the San Quentin State Prison [] from communicating with 14 potential witnesses and two groups, except by noticed deposition.” Id. at 1202. The Court struck down the protective order at issue as an abuse of discretion, finding that the district court’s inherent authority did not extend to the regulation of attorneys not appearing before it or proceedings not before the court. Id. at 1206-07. It held:

As broad as the scope of the inherent power of a federal court may be, it does not encompass the protective order at issue here. It cannot be justified as a sanction, as an attorney disciplinary measure, or as necessary to control the courtroom or proceedings pending before the court. As an exercise of the court's inherent authority, the protective order was an abuse of discretion.

Id. at 1207.

The terms of the confidentiality order entered by the district court here go well beyond managing the litigation in front of it and intrude extensively into the agency’s internal handling and use of the information obtained. As we explained in our opening brief, the terms of the order include: disallowing use of information obtained via this investigation in other charge files,[7] forbidding interviews with witnesses who will not sign confidentiality agreements, and requiring that confidential information be stored in such a way that only EEOC employees actually working on the investigation have access to it. See OB-49-51. The Third Circuit in Kronos II expressed a similar concern in rejecting the portion of the district court’s confidentiality order that limited the EEOC’s use of the Kronos data to the charge at issue in the case and that required the EEOC to seek prior permission of the court before using “personal information regarding any Kroger employee, applicant, and/or test taker.” 2012 WL 4040258, at *15. The court held that the EEOC could use the data not only in connection with the investigation of other charges against the same employer, as the Supreme Court held in Associated Dry Goods, but also in investigating charges against other employers. Id. The court reasoned:

We explained [in Kronos I, 620 F.3d 287 (3d Cir. 2010)] that “[o]nce the EEOC begins an investigation, it is not required to ignore facts that support additional claims of discrimination if it uncovers such evidence during the course of a reasonable investigation of the charge.” 620 F.3d at 297. The District Court’s order effectively impedes the EEOC’s ability to pursue any such leads by denying the EEOC the ability to use the data provided by Kronos…. Nonetheless, once we have decided the documents sought are relevant to the charge of discrimination, any other improper behavior discovered during the course of the EEOC’s investigation may be pursued. Accordingly, the District Court’s limitations on the EEOC’s use of subpoenaed information is improper.

Id.

The district court here was essentially faced with a choice between two ways of managing a discovery issue in Parra. One option involves extensive, ongoing judicial oversight of a federal agency’s investigation outside of federal court, and the other simply requires the district court to continue managing Parra. Although we understand that the court was displeased with the EEOC for not reaching an agreement with Bashas’ on the confidentiality issue, it was an abuse of the court’s discretion for it to punish the agency by broadly dictating and confining the terms on which it would conduct its investigation. The existing, and quite substantial, scheme of statutory confidentiality protections, coupled with Judge Broomfield’s ongoing oversight in Parra, are more than sufficient to address Bashas’ concerns.

C. Affirmance of the district court’s confidentiality order in this case would result in serious negative consequences both for this and for other EEOC investigations.

As Bashas’ own conduct in this appeal proves, there will inevitably be grave consequences both in this case and in future investigations if every respondent to an EEOC subpoena is permitted to obtain a broad-ranging confidentiality order merely by alleging unproven wrongdoing on the part of the agency. In fact, Bashas’ attempt (AB-41) to use the proceedings in EEOC v. Buffalo Rock, No. 2:09mc2364 (S.D. Ala.), to buttress its arguments here provides precisely the “evidence” it claims is lacking (AB-46-47) that protective orders like the one it now seeks beget more such litigation. The difference between this case and Buffalo Rock is that, while Bashas’ and the district court characterize this case as involving “unique facts,” the facts to which they refer here are simply a host of accusations against the EEOC, which Bashas’ tried and failed to prove at a three-day evidentiary hearing.[8] See OB-41-42. Buffalo Rock, on the other hand, involved a real and unfortunate circumstance: the EEOC’s Birmingham District Office filed charge-related confidential information with the district court as part of a subpoena enforcement action and neglected to file it under seal. SER-250-51. The district court entered the confidentiality order in that case as a response to what it characterized as the EEOC’s “flagrant disregard for protection of the information.” SER-251.

Moreover, Bashas’ presentation of the Buffalo Rock case to this Court is both selective and misleading. What Bashas’ neglects to inform the Court is that—as the public record reveals—the story did not end with the protective order of December 8, 2009, nor with the denial of the EEOC’s motion for reconsideration a month later. PSER-14-15 (Buffalo Rock district court docket). The EEOC appealed from the district court’s decision entering the confidentiality order, but, while the appeal was pending, the investigation concluded and the ninety-day suit-filing period lapsed without any lawsuits being filed. Because the time period in which the EEOC would have had any statutory authority to disclose the contents of the charge file had already run, the EEOC and the respondent agreed to a stipulated protective order—on significantly narrower terms than the original—and the EEOC dismissed its appeal. PSER-16 (Buffalo Rock stipulated protective order of March 29, 2011), 15 (appeal dismissed). The situation in Buffalo Rock was completely different from this case and does not provide a basis for affirming the confidentiality order here.

Next, Bashas’ complains (AB-46-47) that what it calls the EEOC’s “internal statistics” about its workload were not part of the district court record and that they cannot be considered on appeal. First, as we already explained in our opening brief, these are not “internal statistics” except insofar as they were compiled by the EEOC—they are taken from publicly filed documents available on the EEOC’s web site, including the agency’s FY2013 annual budget justification submitted to Congress and its FY2011 Performance & Accountability Report. See OB-45-46 & n.10. As such, and because they contain facts that are “not subject to reasonable dispute because [they] can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,” Fed. R. Evid. 201(b)(2), they are appropriate subjects for judicial notice. See, e.g., 9A Wright & Miller § 2409 & nn.19, 46 (statistics among the types of information historically most appropriate for judicial notice); Matthews v. Nat’l Football League Mgmt. Council, 688 F.3d 1107, 1113 & n.5 (9th Cir. 2012) (taking judicial notice of football team statistics on NFL web site); Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1016 & n.3 (9th Cir. 2012) (taking judicial notice of current official figures from Veterans’ Administration web site).

As we explained in our opening brief, these statistics—which were the subject of record testimony at the district office level by Berta Echeveste, Rayford Irvin, and Patricia Miner (OB-46-47)—reflect the reality of the EEOC’s investigative workload. Truly extraordinary circumstances may warrant different handling regardless of workload, but this case is in no way extraordinary. The data at issue here is wage and employee data of the sort at issue in virtually every single EEOC investigation involving disparate compensation. Bashas’ cites a string of (mostly unpublished district court) decisions (AB-36-37) for the proposition that employee data is confidential and entails legitimate privacy concerns, and the EEOC has no quarrel with that basic proposition. No one is suggesting that this type of data does not deserve protection—this is why Title VII has confidentiality protections built into the statute, why there are criminal penalties for violating the statute, and why some of the information in question cannot be disclosed at all, and the rest only under very limited circumstances. See, e.g., EEOC FOIA Reference Guide § XI (for example, “EEOC routinely uses [FOIA Exemption 6] to deny access to information such as home addresses, third party names, phone and social security numbers and medical information contained in personnel files”).

The statistics are important precisely because this investigation is so very run-of-the-mill in nature. Confidentiality orders may be warranted in a select few cases where the nature of the data is “exceptionally sensitive,” see EEOC v. Aon Consulting, Inc., 149 F. Supp. 2d 601, 608 (S.D. Ind. 2001), or where actual misconduct has occurred that warrants closer scrutiny by the district court. But if all that is required to justify a confidentiality order is for a respondent to make accusations it cannot prove in a case involving garden-variety employment data, then there is no theoretical backstop on the “special handling” that could be required. And Bashas’ own conduct here demonstrates that this is far from mere speculation.[9] As a result, the risk that many of the EEOC’s run-of-the-mill investigations could be subject to intrusive confidentiality orders like the one here is quite real.

On a final note, the EEOC wishes to assure the Court that it does indeed have a strong interest in the expeditious pursuit of justice in this and all cases. It is truly remarkable (albeit probably not surprising) that Bashas’ should accuse the EEOC otherwise. The original Commissioner’s Charge was issued in May 2007 and Bashas’ has resisted compliance with almost every single subpoena and request for information the agency has issued since, complying only partially or not at all and complaining that virtually every request was overbroad, improper, or both. [10] The EEOC has had to issue a total of five subpoenas so far in connection with this investigation alone (numbers PHX-07-42, PHX-07-43, PHX-08-24, PHX-09-19, and PHX-09-20).

As to why the EEOC has not sought to move forward with the investigation since December 8, 2011 (AB-44-45), we would have thought the explanation would be obvious: this appeal. The EEOC is awaiting final resolution of the confidentiality issue before moving forward.

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the EEOC respectfully requests that the district court’s order mandating the entry of a confidentiality order in this case, and the confidentiality order itself, be vacated.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@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 6,986 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 2007 in Palatino Linotype 14 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: September 24, 2012

[1] In fact, Wright & Miller specifically note that Brown Shoe represents a “special” and atypical circumstance particular to antitrust divestiture cases. See id. § 3915.4 (“The [Brown Shoe] opinion spoke extensively of the need to take a pragmatic approach to finality. The Court also relied, however, on the danger that an appeal of both liability and remedy would be so protracted that changing market conditions might make it impossible to effectuate whatever divestiture plan might be approved, and on the belief that it had suffered no ill consequences from its habit of reviewing antitrust decrees requiring divestiture before the actual decree was formulated.”)

[2] In any case, as both the Supreme Court and this Court have repeatedly observed, “the waiver rule is not one of jurisdiction, but discretion.” United States v. Northrop Corp., 59 F.3d 953, 958 n.2 (9th Cir. 1995); see also, e.g., Singleton v. Wulff, 428 U.S. 106, 121 (1976).

[3] With respect to a Commissioner’s Charge, such individuals are not entitled to see the entire charge file as to the whole class; rather, they may only see “[s]tatistics, documents, or other information relevant to the alleged aggrievement of the class member.” EEOC Compliance Manual § 83.6(b).

[4] Available at http://www.eeoc.gov/eeoc/foia/section83.cfm.

[5] In footnote 2 on page 32 of the EEOC’s Opening Brief, we stated, mistakenly, that none of the parties to the Parra litigation are members of the class of aggrieved persons encompassed by the Commissioner’s Charge. Given the class described in the Commissioner’s Charge, it is possible that some of the Parra plaintiffs could turn out to be class members, although their status may not be determinable until the end of the investigation. We regret the inadvertent misstatement in the opening brief and any confusion it may have caused. However, as discussed infra pages 22-23, it makes no difference to the confidentiality issues in this case whether any of the Parra plaintiffs should turn out to be class members here because Judge Broomfield has already denied them the right to use any information they might obtain from this charge file in Parra.

[6] Bashas’ also complains that there is “no evidence in the record to support” the EEOC’s statement that it is unaware of any circumstance where a witness or charging party has breached his or her nondisclosure obligations. AB-30 n.10. Given the notorious difficulty of proving a negative, it is hard to envision the form of proof Bashas’ would have the Commission produce, and it certainly offers no evidence otherwise.

[7] Bashas’ appears to think (AB-49) that this concern on the EEOC’s part, like everything else in this case, is about Parra. It is not. It is standard EEOC procedure to include the same information in multiple charge files involving the same respondent where relevant. See EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 604 (1981); EEOC Compliance Manual § 83.6(a)(2). We do not know what future charges may be filed involving Bashas’ as to which as-yet-unseen information from the investigation may prove relevant.

[8] Bashas’ terms this the “EEOC’s characteriz[ation]” (AB-33), but this is exactly what the district court stated. The court recounted, in its second decision entering the confidentiality order, that “Bashas’ was unable to prove [its abuse of process] theory with the requisite degree of proof,” but went on to state that it nonetheless had “grave concerns [] regarding the close ties between the EEOC and counsel for the plaintiffs in Parra,” and cited this as the basis for the confidentiality order. I-ER-13. If any impropriety occurred, Bashas’ had every opportunity to make its case, but even the district court found that it did not succeed.

[9] Nor has it escaped the notice of Bashas’ own counsel that having documents unnecessarily subject to restricted handling is both burdensome and problematic. PSER-2-3 (Bashas’ counsel objecting to having hearing testimony placed under seal because “[i]t imposes an enormous administrative burden not only on the Court, but also on my staff to have things that are filed under seal without their being proper cause for there to be”).

[10] Bashas’ is again incorrect when it states (AB-10-11 n.4) that “[i]n any event, the EEOC now asserts it did want two copies of the file for each and every individual in Bashas’ database. (OB 5.)” Bashas’ is apparently confused again by the same language from Subpoena PHX-08-24, which was being quoted in the EEOC’s opening brief. The EEOC stands by the explanation it gave the district court: that it was only asking for a total of two sample files (SER-173), and that Bashas’ counsel never communicated her belief that the EEOC was asking for two copies of 40,000 files (SER-178).