This appeal raises an issue of first impression in this and any circuit: Since Title VII directs district courts to process Title VII claims as expeditiously as possible, and since district courts should normally allow parallel enforcement actions brought by different federal agencies to proceed promptly and simultaneously, did the district court abuse its discretion by refusing, in June 2015, to modify the lengthy and indefinite stay it originally entered in March 2013 to allow the Commission to begin obtaining merits-related discovery from the defendant union before too many more years have passed? The EEOC believes that oral argument will assist the Court in resolving this issue.

This EEOC enforcement action alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court accordingly had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question), 1343(4) (civil rights action), and 1345 (U.S. as plaintiff).

The district court order being appealed was entered June 9, 2015. Docket entry (“R”) 52. The order denied the EEOC’s March 2015 motion to modify the stay of the agency’s action that the district court had initially imposed two years earlier. R-46 (EEOC motion to modify stay); R-36 (order staying EEOC’s action). The Commission filed a timely notice of appeal on August 7, 2015. R-54; Fed. R. App. P. 4(a)(1)(B)(ii) (60 days).

Although the June 2015 order is not a final judgment, it is appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), because the order conclusively determined an important issue that is separate from the merits and is effectively unreviewable on appeal from final judgment. Alternatively, the order is appealable under Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927 (1983), because the order put the Commission “effectively out of court.”

If this Court rejects both of these bases for appellate jurisdiction, the Commission asks this Court to deem the agency’s appeal a petition for a writ of mandamus. See Suarez-Valdez v. Shearson Lehman/Am. Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (per curiam) (when it is unclear whether the order being appealed is appealable, the court of appeals has discretion to “treat th[e] appeal as a petition for a writ of mandamus”).

Statement of the Issues

1. Does this Court have jurisdiction under the Cohen collateral-order doctrine because the June 2015 order conclusively determined an important issue that is separate from the merits and is effectively unreviewable on appeal from final judgment?

2. Does this Court have jurisdiction under Moses H. Cone because the June 2015 order put the Commission “effectively out of court”?

3. Did the district court abuse its discretion by entering an order that: (a) threatens to prevent the EEOC from obtaining discovery from the union for an additional three years or more, where the agency has already been prevented from doing so for 30 months (counting from when the other parties commenced discovery); (b) prevents the agency from enforcing Title VII on behalf of a class of black firefighters; (c) violates the statutory directive that Title VII litigation be expedited; (d) violates the rule that courts should normally allow two federal agencies to pursue parallel enforcement proceedings promptly and simultaneously; (e) gives the union a substantial and unfair tactical advantage; and (f) significantly reduces the likelihood of a voluntary settlement of these related actions?

4. If this Court determines that it lacks jurisdiction under Cohen or Moses H. Cone, should this Court grant a writ of mandamus on the ground that the district court has abused its discretion?

Statement of Related Proceedings

The district court is processing two related actions: Smith v. Consolidated City of Jacksonville, No. 3:11-cv-345 (M.D. Fla.), and United States v. Consolidated City of Jacksonville, No. 3:12-cv-451 (M.D. Fla.). Neither action has been appealed to this Court.

A class action challenging Jacksonville’s process for hiring firefighters under Title VII was filed in 1971: Coffey v. Brady, No. 3:71-cv-44 (M.D. Fla.). Judge Corrigan entered an order in February 2015 denying the plaintiffs’ contempt motion and dismissing the case. The plaintiffs have appealed: Coffey v. Brady, No. 15-11112 (11th Cir.). The issues in that appeal are not related to the issues raised in this appeal.

Statement of the Case

This is an appeal from an order entered June 9, 2015, by the U.S. District Court for the Middle District of Florida (Corrigan, J.) denying the EEOC’s motion to modify the stay of the agency’s action that the court imposed originally in March 2013. R-52 (order refusing to alter stay); R-36 (order staying EEOC’s enforcement action).

The Commission filed this Title VII enforcement action on April 30, 2012, naming the Jacksonville Association of Firefighters, the collective bargaining representative of the Jacksonville firefighters, as the sole defendant. R-1. The district court already had two related actions pending. In Smith v. Consolidated City of Jacksonville, No. 3:11-cv-345 (M.D. Fla.), the plaintiffs allege that the City of Jacksonville and the Jacksonville Association of Firefighters have discriminated against black applicants for promotion in the Jacksonville Fire and Rescue Department (“JFRD”) in violation of Title VII and § 1983. Smith R-1 (original complaint); Smith R-92 (fourth amended complaint). The Smith plaintiffs claim both disparate-treatment and disparate-impact violations.

On April 23, 2012, the Department of Justice (“DOJ”) sued the city, alleging that the process the city uses in promoting firefighters disproportionately screens out black candidates on the basis of their race in violation of Title VII. United States v. Consolidated City of Jacksonville, No. 3:12-cv-451 (M.D. Fla.), DOJ R-1^{^[1]} (complaint) at 12–14. DOJ named the union as a Rule 19 defendant, but sought no relief from the union. DOJ R-1 at 2, 14–15; Fed. R. Civ. P. 19.

One week later, the Commission sued the union alleging disparate treatment based on race in violation of Title VII. Specifically, the EEOC

alleges that the Union has violated Title VII by advocating for and negotiating in favor of a promotional process for selecting candidates for promotion in the JFRD . . . which has resulted in a disparate impact on black candidates and is not [job-related and consistent with business necessity].

R-1 (EEOC complaint) at 1–2, 16–17. The EEOC’s complaint alleges the following facts.[2]

A. Statement of Facts

The three lawsuits currently pending are not the first allegations of racial discrimination in the JFRD. In 1971 a group of black applicants sued the city alleging that the department discriminated in hiring based on race. Coffey v. Brady, No. 3:71-cv-44 (M.D. Fla.). The court entered a consent decree requiring affirmative action in hiring. R-1 at 3.

In the mid-1980s, line firefighters were either “privates” or “engineers.” Engineers could drive the fire trucks. Privates and engineers were both eligible to apply for promotion to lieutenant, the lowest-level officer position. R-1 at 4. In May 1987, the union asked the city to change the rules so that only engineers could be promoted to lieutenant. Id. The city’s Office of Equal Employment (“OEE”) responded to this proposal with “an absolute no!” Id. (emphasis in original). The department had many engineers, almost all of whom were white. According to the OEE, the proposed rule would therefore have reduced the number of black firefighters who could apply to be lieutenants from 91 (18% of the 513 firefighters) to 11 (3% of the 331 engineers). Id. The city rejected the union’s request in 1987 and again in early 1991. Id. at 4–5. But in November 1991, the union successfully negotiated with the city a CBA that required lieutenants to be engineers first, thus incorporating the proposed rule that the city had already rejected twice. Id. at 5.

In February 2006, nooses were found in the bunker gear of two black Jacksonville firefighters. R-1 at 5. At the mayor’s request, the city’s human rights commission investigated the department and ruled that “[f]ar too many instances of unfair or alleged discriminatory treatment grounded upon racial, ethnic and gender-based differences and disparities, and upon union affiliation or non-affiliation, occur and reoccur to be considered merely isolated incidents.” Id. at 5–6. The commission unanimously concluded that “the range and breadth of the problem areas within JFRD [are] truly distressing,” and that a number of the persons interviewed “acknowledge[d] . . . some level of racism in the department.” Id. at 6. The commission also found that the department often treated union members more favorably and that the department’s managers were closely aligned with the union to a disturbing extent. Id. at 6–7. To address these problems, the commission recommended that the department stop relying solely on a written test to promote firefighters, and that it incorporate oral exams, interviews, and exercises as well. Id. at 6.

The city has continued to rely solely on a written test despite the OEE’s recommendation. For at least the past decade, the CBAs between the city and the union have required the department to select candidates for promotion in the following way: The candidates take a written exam specific to the position desired; the candidates who pass the test (with a score of 70%) are placed on the eligible list; the eligible candidates are ranked in order by their test scores (augmented by seniority and veteran-preference points); and the city promotes the candidate at the top of that list. R-1 at 7–8. The EEOC’s complaint alleges that the union advocated and negotiated for the CBA provision requiring this promotional process even though—or because—the union knew that the process had a disparate impact on black candidates. Id. at 16–17.

The department administered promotional exams for the positions at issue two or three times (depending on the position) between 2004 and 2011. R-1 at 9, 12, 14–15. The Commission alleges, as does DOJ in its action, that the exams administered for promotion to engineer, and the exams administered for promotion to lieutenant, captain, and district chief in the suppression (or operations) division, had an unlawful disparate impact on black candidates: that is, the pass rates and promotion rates for black candidates were lower than for white candidates, and the difference was statistically significant. Id. at 9–16. The Commission further alleges that the exams were not job-related and consistent with business necessity. Id. at 9.

B. Course of Proceedings

In June 2012, the union moved to dismiss the Commission’s complaint. R-13. The next month, the EEOC moved to consolidate its action with DOJ’s. R-19. In October 2012, the district court held a hearing on the motions that had been filed in the three related cases. The district court acknowledged at the hearing that it was “having a hard time understanding or figuring out why the EEOC’s lawsuit is necessary or what purpose it’s going to serve in addition to the Department of Justice lawsuit.” R-42 (transcript of Oct. 2012 hearing) at 7–8. See also id. at 43 (Court asked EEOC attorney: “[W]hat’s happened here is the DOJ went ahead and filed their suit, and now y’all have kind of filed kind of a me-too lawsuit, haven’t you?”).

On March 30, 2013, the district court entered an order in all three actions addressing the pending motions. R-36. The district court denied the union’s motion to dismiss the Commission’s action. R-36 at 8–9.[3] The district court also denied the EEOC’s motion to consolidate its action with DOJ’s. Id. That denial was based on the court’s interpretation of 42 U.S.C. § 2000e-5(f)(1), which states that when the Commission has found cause on a charge naming a local government and has failed to secure a satisfactory conciliation agreement, “the Commission shall take no further action and shall refer the case to the Attorney General[,] who may bring a civil action against such respondent.” The court therefore ruled that the EEOC is barred from litigating any part of its Title VII claim against the city. R-36 at 9.

Finally, the court noted that the Commission’s disparate-treatment claim against the union depends on DOJ’s disparate-impact claim. R-36 at 6 (the parties “agree . . . that unless the City’s promotion process is found to have an unlawful disparate impact on black firefighters, most of the parties’ various other claims [including the EEOC’s disparate-treatment claim against the union] will not survive”). Accordingly, the district court ruled that “the EEOC suit will be stayed at least until the disparate impact issue is decided.” R-36 at 10. If the city prevails in the DOJ action on that issue, the court noted, the parties will not need to litigate the EEOC’s claim at all. Id. at 8–10.

In the same March 2013 order, the district court also addressed how DOJ’s disparate-impact claim would be litigated. The court accepted DOJ’s suggestion that the first phase of the liability portion of the case would address whether the tests in fact had a prima facie disparate impact on black candidates, leaving for future consideration the phase-two question of whether the tests were job-related and consistent with business necessity, and the phase-three question of whether the city could have used a less discriminatory promotion process. R-36 at 6–7 (incorporating the phase-one proposal in DOJ R-23 at 1 n.1 and in EEOC R-27 at 84–86).

The Commission promptly asked the district court to reconsider its stay order. R-37. The agency argued that the stay was immoderate in length and not justified by “a clear case of hardship or inequity.” Id. at 3–9 (quoting Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S. Ct. 163, 166 (1936)). The EEOC asked the court to modify the stay for

two narrow purposes: first, to resolve the remaining portion of the Union’s Motion to Dismiss (failure to conciliate); and second, to proceed with fact discovery only as to the Union’s actions and role regarding the maintenance of the promotional system contained in the Collective Bargaining Agreement. . . .

R-37 at 2. On July 29, 2013, the district court denied the motion. R‑39. The court reaffirmed its earlier determination “that the orderly progress of these cases dictate[s] that the determination of disparate impact [i]s a necessary preliminary finding.” Id. at 1. The court stated, however, that it was denying the motion

without prejudice to refiling if the initial phase of [the DOJ lawsuit] results in a finding of disparate impact (meaning that the Court would consider lifting the stay to permit the EEOC to prosecute its claim against the Union before waiting to see if the tests are job-related and consistent with business necessity).

Id. (emphasis added). In addition, the court ruled that

to the extent one of the EEOC’s concerns is that documents could be lost during the pendency of the stay, the Union is directed to retain all documents that could potentially relate to the issues raised by this case.

Id. at 1–2.

With the EEOC sidelined, DOJ, the city, and the union litigated phase one of DOJ’s disparate-impact claim. The court set May 2014 as the deadline for phase-one discovery and July 2014 as the deadline for filing phase-one Daubert and dispositive motions. DOJ R-61 at 2. The court held a hearing on those motions on May 13, 2015. R-50. In June 2015—22 months after phase-one discovery started—the district court ruled that DOJ had established its prima facie case of disparate impact. DOJ R-202.

C. The June 2015 District Court Order

On March 24, 2015, two years after the court first entered its stay, the Commission again asked the court to modify its order barring discovery by the agency. R-46. The agency argued that the stay was immoderate, and that the union had still not met its burden to establish the requisite hardship or inequity. Id. at 4–9. The EEOC again stressed that it sought to commence discovery only on the narrow question of “the Union’s role in advocating/negotiating in favor of the alleged discriminatory promotional process contained in the Union’s collective bargaining agreement with the City.” Id. at 1. The agency emphasized that its request was

very limited. [The] EEOC does not seek to participate in discovery or dispositive motions on the disparate impact issue being litigated by the DOJ, nor to begin discovery on damages. Nevertheless, [the] EEOC’s proposal would allow discovery on a limited, narrow, and specific issue so in the event th[at] the Court rules in the DOJ’s favor on the disparate impact issue, [the] EEOC and the Union [would be] in a position to move forward with dispositive motions and/or trial on liability—rather than just starting the lawsuit.

Id. at 1, 4. The court heard argument on May 13. R-52 at 1; R-50 (transcript of May hearing) at 236–58.

On June 9, 2015, in the order now being appealed, the district court denied the EEOC’s motion, stating that “it is premature to litigate a claim against the Union for its role in negotiating in favor of the promotion practice at issue unless and until the City’s promotion practice is found unlawful.” R-52 at 1–2. The court stated that although DOJ had prevailed in phase one, the government still was “a long way from proving the City liable.” Id. at 1. The court acknowledged that it had suggested in its July 2013 order that the stay could perhaps be lifted if and when DOJ prevailed on phase one. The court stated that it was now “[a]rmed with a greater appreciation for the significance of that finding,” and did “not find that it is a basis to lift the stay.” Id. at 2 n.2.

Addressing the EEOC’s concern that the long delay would negatively affect its discovery, the court noted that it had already ordered the union to retain all relevant documents. Id. at 2. The court further stated that “[t]he issues in the underlying case are complex and it makes no sense to add to the cost and complexity by reopening this lawsuit.” Id. at 2.

On the same day, the district court entered a scheduling order for phases two and three of the DOJ claim, which the court had decided to litigate simultaneously. DOJ R-203. The court directed the parties to complete discovery for phases two and three by late June 2016. DOJ R‑203 at 2. The order set no schedule for the Daubert and dispositive motions and no date for trial.

The Commission then filed this appeal of the June 2015 order refusing to modify the stay.

D. Standards of Review

The arguments concerning appellate jurisdiction and mandamus are matters the district court did not address and that this Court determines de novo. The June 2015 order refusing to modify the stay is an order concerning discovery that this Court normally reviews for an abuse of discretion. Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101, 1105 (11th Cir. 2015). “A ruling based on an error of law is an abuse of discretion.” Smith v. Casey, 741 F.3d 1236, 1244 (11th Cir. 2014). The Commission submits that the district court’s order violated 42 U.S.C. § 2000e-5(f)(5). This Court “review[s] de novo the interpretation of a federal statute.” Lary, 780 F.3d at 1104.

Summary of Argument

The district court initially stayed the Commission’s action against the union in March 2013 pending a determination in a different lawsuit (DOJ’s) alleging that a different defendant (the city) violated Title VII. In July 2013 and again in June 2015, the court denied the Commission’s narrow request to modify the stay to allow the Commission to obtain liability-related discovery from the union. Although the court’s June 2015 order refusing to modify the stay is not a final judgment, it is appealable under the collateral-order doctrine because it satisfies that doctrine’s three-part test.

First, the court’s June 2015 order conclusively determined that the Commission will not be permitted to obtain discovery from the union until DOJ establishes the city’s liability in DOJ’s separate action. The court’s two denials of the Commission’s motions for reconsideration confirm that this ruling is conclusive.

Second, the question addressed in the court’s June 2015 order—when the EEOC is allowed to begin discovery—is both “separate” from the issue of whether the union violated Title VII and “important” because the stay’s continuation for another three years or more, after having already been in place for more than two years, threatens to undermine the Commission’s ability to obtain evidence to support its claim. The issue is important, in addition, because Congress has made redressing workplace discrimination a national priority by authorizing and empowering the EEOC to file lawsuits to redress alleged employment discrimination and by directing district courts to ensure all Title VII cases are heard “at the earliest practicable date” and “in every way expedited.” 42 U.S.C. §§ 2000e-5(f)(1), (5).

Third, the court’s order is effectively unreviewable on appeal from final judgment because as time passes, evidence will inevitably become lost or more difficult to uncover. If the EEOC must wait until final judgment to obtain review of this stay order, there will be no way for the agency to establish what evidence was lost due to the passage of time and no way for the court to remedy the harm.

Alternatively, the June 2015 order is appealable under the “effectively out of court” doctrine. The order is keeping the Commission “out of court”—unable even to conduct discovery—for a total of five years of more.

On the merits, the district court’s stay is a substantial and ongoing abuse of discretion. The order barring discovery is indefinite in duration because there is no way of knowing when the district court will make a determination concerning the city’s liability. The stay is immoderate because it has already been in place for more than 30 months and is likely to continue for another three years or more. A delay of such duration will inevitably impair the Commission’s ability to obtain evidence supporting its claim, particularly because the Commission expects to rely extensively on the testimony of witnesses as opposed to written documents.

Additionally, the district court abused its discretion because the stay violates the well-established rule that courts should normally allow two federal agencies to litigate parallel enforcement proceedings simul-taneously, even when the two agencies are pursuing the same entity and alleging the same violation, which is not the case here. Further, as noted above, Title VII directs district courts to hear Title VII claims as expeditiously as possible and bars courts from staying a Title VII action longer than 60 days. Finally, the June 2015 order gives the union an unfair tactical litigation advantage and makes settlement of these related actions less likely.

If this Court rules that the June 2015 order is not appealable under the “collateral order” or “effectively out of court” doctrines, this Court should treat the Commission’s appeal as a petition for a writ of mandamus and grant the writ. The court’s order is not merely an ordinary abuse of discretion. Since Title VII requires district courts to process Title VII claims expeditiously and limits stays of Title VII proceedings to 60 days, the district court lacked the statutory authority or discretion to stay discovery by the Commission for such a lengthy period. This Court should grant mandamus to prevent the district court from continuing to act so far outside the contours of its authority and discretion.

Argument

I. The Order Refusing to Modify the Stay is Appealable Under the Cohen Collateral-Order Doctrine or Under the Moses H. Cone “Effectively Out of Court” Doctrine.

The district court’s June 2015 order continuing its March 2013 stay on discovery, while not a final judgment, is appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949), because it conclusively determined an important issue that is separate from the merits, and it cannot be effectively reviewed on appeal from final judgment. Alternatively, it is appealable under Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927 (1983), because it is keeping the Commission “effectively out of court.”

A. The order is appealable under the Cohen collateral-order doctrine.

Orders that are not final judgments are nevertheless appealable under Cohen if they fall into the small class of orders that

[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.

Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1355 (11th Cir. 2014). The district court’s June 2015 order refusing to modify its 2013 stay to permit the EEOC to commence discovery meets each prong of this “stringent” test, id., and is therefore appealable under Cohen.

[1] The order conclusively determined the issue.

The district court’s June 2015 order refusing to modify the stay conclusively resolved the issue of whether the Commission will be barred from conducting discovery from the union until the city is found liable for an unlawful disparate impact in DOJ’s action. R-52 at 1–2. When the district court originally denied the EEOC’s first motion to modify the stay back in July 2013, the court stated that its ruling was

without prejudice to [the agency’s] refiling [it] if the initial phase of [the DOJ suit] results in a finding of disparate impact (meaning that the Court would consider lifting the stay to permit the EEOC to prosecute its claim against the Union before waiting to see if the tests are job-related and consistent with business necessity).

R-39 at 1. Two years later, however, the district court ruled that DOJ’s success in establishing its first-phase prima facie showing of disparate impact is not “a basis to lift the stay.” R-52 at 2 n.2. The court stated that “it is premature to litigate a claim against the Union for its role in negotiating in favor of the promotion practice at issue unless and until the City’s promotion practice is found unlawful.” R-52 at 1–2 (emphasis added). Thus, while the July 2013 order was tentative on its face, the June 2015 order conclusively states that the Commission will not be permitted to seek discovery from the union until after the court determines that the city is liable for an unlawful disparate impact.

In this respect, the district court’s June 2015 order resembles the order in United States v. Bertoli, 994 F.2d 1002 (3d Cir. 1993), which the Third Circuit found “conclusively determined the disputed question.” Id. at 1012. In that case, after a law firm represented a criminal defendant during extensive pretrial proceedings, the defendant sought leave to proceed pro se, and the law firm sought leave to withdraw as standby counsel. The court denied the firm’s motion and ordered one of the firm’s two name partners to attend the trial, which was expected to last two to four months, as standby counsel. The court denied reconsideration of this order and denied a stay pending appeal. Id. at 1006–10. The Third Circuit ruled that the challenged order was issued “with the expectation that [it would] be the final word on the subject.” Id. at 1011. The Third Circuit reasoned that the district court had the power to amend its order, but “[wa]s unlikely to do so,” because it “has already held a hearing, issued an extensive opinion on the matter and denied the firm’s motion for reconsideration.” Id. Accordingly, the court of appeals ruled that the district court had “conclusively determined the disputed question and . . . any possibility that it would amend the order is too remote to deny finality.” Id. at 1012.[4] Similarly here, the district court has twice refused to lift or modify its March 2013 stay, even after holding a hearing on the Commission’s March 2015 motion, and its June 2015 order shows that “no further consideration is contemplated”—at least until after the city is found liable. Bertoli, 994 F.2d at 2011.

The district court’s theoretical freedom at any time to reconsider its decision does not undermine the finality of the June 2015 order. There are many orders “that a district court ordinarily would expect to reassess and revise . . . in response to events occurring in the ordinary course of litigation.” Holt v. Ford, 862 F.2d 850, 852 (11th Cir. 1989) (en banc); see id. at 853 n.3 (order denying appointed counsel “should be presumed tentative unless expressly made final”). Here, however, the order stated definitively that litigation of the Commission’s action “is premature . . . unless and until the City’s promotion practice is found unlawful.” R-52 at 1–2. Since the district court refused twice to modify the stay, the likelihood of the court changing its mind “is too slight to affect the finality of the court’s decision.” In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1307 (7th Cir. 1984). The order thus satisfied the first Cohen requirement.

[2] The order resolved an important issue separate from the merits.

The June 2015 order also satisfies the second Cohen requirement: that the order “resolve an important issue completely separate from the merits of the action.” Royalty Network, 756 F.3d at 1355 (emphases added). We address the “separate” factor first.

The district court’s June 2015 order addressed an issue completely separate from the merits of the Commission’s claim that the union engaged in intentional race discrimination: when the EEOC can begin seeking discovery from the union. The timing of that discovery is independent of the issues that will govern the union’s liability under Title VII. Cf., e.g., Forbus v. Sears Roebuck & Co., 958 F.2d 1036, 1039–40 (11th Cir. 1992) (whether release was ratified is separate from merits of ADEA claim), abrogated on other grounds, Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S. Ct. 1992 (1994); Cont’l Ill. Sec., 732 F.2d at 1307 (issue of whether the allegedly privileged report prepared by the corporation should be made public was “clearly separable from the merits of the underlying securities litigation”). Nor would an appeal here “interfere with the litigation in the district court,” a factor that at least one circuit court has considered significant in finding an order collateral. Palmer v. City of Chicago, 806 F.2d 1316, 1319–20 (7th Cir. 1986). The court has stayed the Commission’s action completely, so there is no ongoing litigation with which an appeal could interfere. Likewise, an appeal of the June 2015 order would not interfere with the litigation of DOJ’s separate action against the city.

The issue raised here is important because the stay is hampering the Commission’s efforts to act in the public interest by enforcing Title VII. Congress indicated in Title VII that “it considered the policy against discrimination to be of the ‘highest priority.’” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 1019 (1974). Indeed, enforcement of Title VII is so important that Congress expressly directed district courts to process Title VII claims as expeditiously as possible: “It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.” 42 U.S.C. § 2000e-5(f)(5) (emphasis added); id. § 2000e-6(b) (same, for actions brought under § 707). Circuit courts have reiterated this statutory mandate. See, e.g., Collazo v. Bristol-Myers Squibb Mfg., 617 F.3d 39, 54 (1st Cir. 2010) (reminding the district court on remand “of its duty to cause the case to be ‘in every way expedited’”); EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974) (“The designated judge has the responsibility to set the case for ‘hearing at the earliest practicable date and to cause the case to be in every way expedited.’”); Titus v. Mercedes Benz of N. Am., 695 F.2d 746, 761 n.8 (3d Cir. 1982) (Garth, J., dissenting) (noting that “the district court judge was under statutory compulsion to expedite this case—a Title VII action—in every way”). This statutory language underscores the importance of the issue that the district court’s June 2015 order resolved.

Title VII enforcement actions brought by the EEOC are especially important. “The EEOC’s primary role is that of a law enforcement agency,” and courts should refrain from entering orders that “would interfere with the Commission’s exercise of its prosecutorial discretion.” In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (Posner, J.).; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 291–92, 122 S. Ct. 754, 763 (2002) (Title VII “clearly makes the EEOC the master of its own case,” and “it is the [Commission’s] province—not that of the court—to determine whether [and when] public resources should be committed to the recovery of victim-specific relief.”); cf. EEOC v. Shell Oil Co., 466 U.S. 54, 69, 104 S. Ct. 1621, 1631 (1984) (Court’s statement that “it is crucial that the Commission’s ability to investigate charges of systemic discrimination not be impaired” presumably applies as well to the agency’s ability to litigate those charges). Accordingly, courts should give EEOC enforcement actions priority particularly when—as here—the EEOC is litigating a Title VII claim on behalf of a class. See Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 326, 100 S. Ct. 1698, 1704 (1980) (when the Commission brings a Title VII class action, it “vindicate[s] the public interest in preventing employment discrimination”).

In sum, since Title VII expressly directs courts to expedite Title VII proceedings, since EEOC enforcement actions on behalf of a class of employees are important and should be given litigation priority, and since the timing of the EEOC’s discovery is entirely separate from the merits of the union’s liability under Title VII, the district court’s order refusing to modify its stay satisfies the second prong of the Cohen doctrine.

[3] The order is effectively unreviewable on appeal from final judgment.

The June 2015 order also satisfies Cohen’s third prong, because the order is effectively unreviewable if the Commission has to wait until appeal from a final judgment in its action. The passage of time increases the likelihood that witnesses will become unavailable and that the memories of those witnesses who remain will fade. See, e.g., Davis v. Walker, 745 F.3d 1303, 1308–09 (9th Cir. 2014) (“[L]engthy and indefinite stays . . . create a danger of denying justice by delay. Delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.”); SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1377 (D.C. Cir. 1980) (en banc) (if DOJ moves too slowly, “witnesses may die or move away, memories may fade, or enforcement resources may be diverted”). Thus the primary harm that the EEOC faces as a result of the district court’s stay is that the agency, when it is finally allowed to conduct discovery, will fail to uncover relevant evidence that it might have uncovered had it been permitted to seek discovery starting now.

This harm cannot be remedied on appeal from final judgment because if discovery is delayed, there is simply no way for the EEOC to establish what evidence was lost. Furthermore, since the lost evidence cannot be recovered, the court of appeals would have no way to remedy the harm suffered by the agency. In an appeal filed in 2019 or later,^{^[5]} the Commission will not be able to show that discovery that was not conducted earlier would have been more fruitful than the discovery the agency actually conducted years later.

“[T]he decisive consideration [in applying the third prong of the Cohen test] is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107, 130 S. Ct. 599, 605 (2009). Here, the Commission’s Title VII enforcement action on behalf of a class serves a “substantial public interest.” See supra pp. 30–31. That stay of discovery is effectively unreviewable if review must await the entry of final judgment.

This case is unlike Mohawk, where the Court ruled that discovery orders erroneously overriding a privilege can be adequately remedied on appeal after final judgment:

Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.

Mohawk, 558 U.S. at 109, 130 S. Ct. at 606–07. But an appellate court cannot remedy an erroneous order delaying Commission discovery for a lengthy and indeterminate period, because there is no way to identify or recover—after the delay—the evidence that the agency could have uncovered if its discovery had not been so drastically stayed.

[4] The June 2015 order falls in a category of orders appealable under Cohen.

The Supreme Court in Mohawk stated that a court applying Cohen should focus not on the particulars of the case in front of it—an “individualized jurisdictional inquiry”—but rather on “the entire category to which a claim belongs.” Mohawk, 558 U.S. at 107, 130 S. Ct. at 605 (quoting Dig. Equip., 511 U.S. at 868, 114 S. Ct. at 1996). This case belongs in the category of Title VII enforcement actions in which the district court has entered an order unjustifiably staying the plaintiff’s merits discovery for an indefinite period lasting longer than two years after the complaint was filed.

This category is similar to those already recognized by the courts, such as orders denying the claimed right of a civil or criminal defendant to avoid being subjected to the contemplated proceeding. See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1199 (11th Cir. 2009). Thus a civil defendant claiming absolute or qualified immunity can appeal an order denying his motion to dismiss, as can a criminal defendant alleging double jeopardy. See, e.g., Danner Constr. Co. v. Hillsborough Cty., Fla., 608 F.3d 809, 812 n.1 (11th Cir. 2010) (order denying defendant county’s motion to dismiss on immunity grounds appealable under Cohen); United States v. Wittig, 575 F.3d 1085, 1095 (10th Cir. 2009) (order denying criminal defendant’s motion to dismiss on double-jeopardy grounds appealable under Cohen).

The category proposed here, orders unjustifiably staying discovery on Title VII claims for over two years, protects a plaintiff’s right to obtain relevant evidence before it is lost, a right which is just as worthy of protection as a defendant’s right to avoid litigation. Title VII requires district courts to process Title VII claims as expeditiously as possible. 42 U.S.C. § 2000e-5(f)(5). Thus any order staying discovery on a plaintiff’s Title VII claims for two years is suspect unless the stay is clearly justified by some other legal doctrine.[6]

The district court believed that it was preventing or minimizing any harm to the Commission here by ordering the union to preserve any relevant documents. R-52 at 2. But the EEOC’s disparate-treatment claim requires proof that the union acted with discriminatory intent. EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1273 (11th Cir. 2000) (“[D]isparate treatment claims require proof of discriminatory intent.”). It is unlikely that the union documented its discriminatory intent and far more likely that the Commission will uncover such evidence through the testimony of witnesses. The Commission needs to depose the union representatives who negotiated with the city to ask them if the union supported and/or insisted on the challenged CBA provision and, if so, why, and also to seek evidence of pretext. The order requiring document preservation does nothing to prevent the harm that the EEOC faces by having this type of discovery delayed for years.

B. This court has jurisdiction to review the June 2015 order because the order put the EEOC “effectively out of court.”

The Supreme Court held in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927 (1983), “that a stay order which places the appellant ‘effectively out of court’ is a final order for purposes of [28 U.S.C.] § 1291.” Am. Mfrs Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 1523 (11th Cir. 1984) (citing Moses H. Cone, 460 U.S. at 10, 103 S. Ct. at 934). There is no formula that determines finality under this doctrine: rather, “the requirement of finality is to be given a ‘practical rather than a technical construction.’” Hines v. D’Artois, 531 F.2d 726, 730 (5th Cir. 1976) (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S. Ct. 308, 311 (1964)); see also CTI-Container Leasing v. Uiterwyk Corp., 685 F.2d 1284, 1287 (11th Cir. 1982) (same). This Court has repeatedly reaffirmed the “effectively out of court” rule.

The former Fifth Circuit held in Hines^{^[7]} that the stay entered there put the plaintiffs effectively out of court because it required them to file Title VII charges with the EEOC and exhaust those administrative remedies. Id. at 731. The stay would have lasted at least 18 months and possibly five years and therefore imposed an “extended state of suspended animation.” Id. Similarly, this Court held in CTI-Container Leasing that the district court order staying the plaintiff’s breach-of-lease claims pending resolution of proceedings in the Iran–United States Claims Tribunal, a stay of indeterminate length, placed the plaintiff “effectively out of court” because it imposed an “extended state of suspended animation.” 685 F.2d at 1288. This Court applied the same doctrine to find stays appealable in Edward D. Stone, 743 F.2d at 1523–24 (order staying plaintiff’s federal action pending resolution of a related state-court action that would not even resolve the issues raised in plaintiff’s action put plaintiff effectively out of court and was “therefore final and appealable under § 1291”), and more recently in King v. Cessna Aircraft Co., 505 F.3d 1160, 1168 (11th Cir. 2007) (order staying plaintiff’s federal action pending resolution of proceedings in Italian court put plaintiff effectively out of court indefinitely, and this Court therefore had “jurisdiction to review the order”).

Here the district court had already barred the EEOC from obtaining discovery from the union for 30 months from when the other parties commenced discovery, and the June 2015 order extended that prohibition for another three years or more. The order therefore imposed an extended state of suspended animation and put the Commission effectively out of court for an indefinite period. Cf. Hines, 531 F.2d at 731-32 (where stay would last at least 18 months and possibly as long as five years, the parties “would have been served just as well by a stay pending the arrival of Godot”). The order is accordingly final and appealable under § 1291. Hines, 531 F.2d at 731; King, 505 F.3d at 1168.

As the Ninth Circuit noted in finding jurisdiction over an order staying litigation under the “effectively out of court” doctrine, “lengthy and indefinite stays . . . create a danger of denying justice by delay[] [where d]elay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” Blue Cross & Blue Shield of Alabama v. Unity Outpatient Surgery Center, Inc., 490 F.3d 718, 724 (9th Cir. 2007)); see also id. at 723 (noting that the majority of circuits to consider the question have found appellate jurisdiction over stay orders that impose lengthy or indefinite stays, and listing cases). That principle applies equally here. The general rule against the inconvenience and expense of piecemeal appellate review is outweighed here by the danger that delayed appellate review of the ongoing stay will undermine the EEOC’s ability to prove its claim against the union. See Hines, 531 F.2d at 730 (quoting Gillespie, 379 U.S. at 152–53, 85 S. Ct. at 311) (establishing these factors as “the most important competing considerations” in determining finality).

In Miccosukee Tribe, this Court found a stay order not appealable under the “effectively out of court” doctrine, but that case is readily distinguishable. In that non-Title VII case, the would-be appellants were not “out of court” the way the Commission is here: they had already obtained discovery and litigated a summary judgment motion, and they were litigating many of the same issues in a parallel action they had filed against the same defendants. 559 F.3d at 1193–96. This Court held that the would-be appellants could not force the district court to allow them to go to trial when they wanted to, especially when that trial would probably waste substantial judicial resources. Id. at 1196–98. Here, in contrast, the Commission is not asking to go to trial. It has not yet obtained any discovery, and the multi-year stay on discovery threatens to prevent the agency from obtaining relevant evidence to support its claims. “The danger of denying [the Commission] justice by delay . . . outweighs [the union’s] possible inconvenience and [the] costs of piecemeal review.” CTI-Container Leasing, 685 F.2d at 1287. The Court should accordingly grant review.

II. The District Court Abused Its Discretion by Refusing to Modify the Stay to Allow Discovery to Begin.

The Commission’s lawsuit alleges that the union intentionally advocated and negotiated for a promotional process that has a disparate impact on black candidates. To establish that claim, the EEOC needs to conduct discovery about the actions and intentions of the union’s representatives going back at least to 2004, when the union negotiated a recent CBA with the city, and possibly to 1991, when the union negotiated the first CBA that required candidates for lieutenant to have been promoted to engineer first, a requirement that substantially reduced the pool of black candidates eligible for promotion to lieutenant. See supra pp. 7–8. For the reasons spelled out infra, the order refusing to allow the EEOC to begin discovery abused the court’s discretion.

A. The stay abuses the district court’s discretion because it is likely to bar the EEOC from beginning discovery for a total of five years or more.

The Supreme Court reaffirmed back in 1936 the basic principle that each plaintiff in a federal court has the right to litigate its own case promptly. Landis v. N. Am. Co., 299 U.S. 248, 255, 57 S. Ct. 163, 166 (1936) (“Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.”). Therefore, any order staying litigation must be moderate in length and justified by a “clear case of hardship or inequity” established by the party seeking the stay. Id. (“[T]he suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to [someone] else.”), id. at 256 (the stay must be “not immoderate in extent and not oppressive in its consequences”); see also Hines, 531 F.2d at 733 (quoting Landis). The union has never established the requisite clear hardship or inequity here. Furthermore, the stay has already lasted for 30 months and appears likely to continue for several more years. The order refusing to modify it is therefore an abuse of the district court’s discretion.

The district court’s stay bars the Commission from obtaining discovery from the union until the court finds the city liable for an unlawful disparate impact in DOJ’s separate suit against the city. R-52. Thus, the stay is indeterminate because no one knows when the court will issue its liability finding in the DOJ action. Based, however, on the nature of DOJ’s case, its progress thus far, and the manner in which such claims are generally resolved, a reasonable projection suggests that the stay will probably last until at least June 2018.

The parties to DOJ’s action have completed the first phase of litigating DOJ’s disparate-impact claim. In June 2015, the district court ruled that DOJ has established a prima facie disparate impact. DOJ R-202. The district court has decided to litigate phases two and three simultaneously rather than sequentially. The district court directed the parties to complete their discovery on phases two and three by June 24, 2016. DOJ R-203 at 2. The court did not set a schedule for the Daubert and dispositive motions, but the parties will not be able to file those motions until July 2016 at the earliest. In phase one, the parties filed their Daubert and dispositive motions in July 2014, and the district court resolved them in June 2015. Based on how long it took the court to resolve the first phase, if the parties file their Daubert and dispositive motions on phases two and three in July 2016, it will likely take until June 2017 to resolve those motions.

The issues raised in phases two and three of DOJ’s disparate-impact claim will probably not be resolved on summary judgment. In some instances courts have been able to resolve phases two and three on summary judgment, but usually only when one of the parties has failed to present sufficient evidence on a crucial issue. See, e.g., NAACP v. N. Hudson Reg’l Fire & Rescue, 665 F.3d 464, 481–82 (3d Cir. 2011) (affirming summary disposition in plaintiff’s favor because defendant offered insufficient evidence of business necessity); El v. Se. Penn. Transp. Auth., 479 F.3d 232, 245–47 (3d Cir. 2007) (affirming summary judgment for defendant because plaintiff failed to contest defendant’s evidence of business necessity); Smith v. City of Des Moines, Iowa, 99 F.3d 1466, 1470–73 (8th cir. 1996) (same); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119–20 (11th Cir. 1983) (affirming summary judgment for defendant because defendant established business necessity and plaintiffs failed to offer evidence of a less discriminatory alternative).

More often, however, courts have had to conduct trials to resolve the second and third phases of a disparate-impact claim. See, e.g., EEOC v. Dial Corp., 469 F.3d 735, 742–43 (8th Cir. 2006) (affirming district court’s post-trial disparate-impact finding); Int’l Bhd. of Elec. Workers v. Miss. Power & Light Co., 442 F.3d 313, 317–19 (5th Cir. 2006) (same); Allen v. Entergy Corp., 193 F.3d 1010, 1013–15 (8th Cir. 1999) (affirming judgment on verdict for defendant); Lanning v. Se. Penn. Transp. Auth., 181 F.3d 478, 389–94 (3d Cir. 1999) (reversing district court’s post-trial finding of business necessity); Houghton v. SIPCO, Inc., 38 F.3d 953, 959 (8th Cir. 1994) (reversing judgment on verdict for plaintiff).[8]

In this case, based on how DOJ and the city litigated phase one, each of those parties is likely to offer sufficient evidence of the phase on which it bears the burden of proof and sufficient evidence to raise a factual dispute on the other phase. Accordingly, the district court will probably need to conduct a trial to resolve phases two and three of DOJ’s disparate-impact claim. Preparing for and conducting the trial and resolving the post-trial motions would presumably consume at least an additional year (ending in June 2018), and quite possibly significantly longer.

Estimated Timeline for Resolving Phases Two and Three

June 2016	End of discovery (DOJ R-203 at 2)
July 2016	Estimated deadline for filing Daubert and dispositive motions
June 2017	Estimated date for resolving Daubert and dispositive motions
June 2018	Earliest likely date by which district court will have conducted the trial and resolved the post-trial motions

These calculations suggest that the district court, which has already prevented the EEOC from conducting discovery from the union for two years (counting from when the other parties commenced discovery), will likely continue to bar the agency from seeking discovery for at least an additional three years, for a total of five years from the beginning of discovery, and more than six years from the filing of the agency’s complaint.^{^[9]}

As discussed supra at pages 32–33, this substantial delay in commencing discovery will probably prevent the Commission from obtaining evidence supporting its claim that it could have obtained had it been permitted to conduct discovery starting now. This harm to the agency helps establish that the district court’s June 2015 order imposes an immoderate stay that abuses the court’s discretion. See Clinton v. Jones, 520 U.S. 681, 707–08, 117 S. Ct. 1636, 1650–51 (1997) (order staying trial until after President left office abused district court’s discretion because “delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party”).

The stay here is strikingly similar to the stay the Fifth Circuit addressed in In re M.J. Beebe, No. 95-20244, 1995 WL 337666 (5th Cir. May 15, 1995). Two related cases were pending before the district court in Beebe, both alleging similar securities-fraud claims against many of the same defendants. In December 1992, the district court stayed the Beebe action until after the trial in the related action, Cogan. Over time, the Beebe plaintiffs filed several motions asking the court to allow them to complete discovery, but the district court denied them. In April 1995, the Beebe plaintiffs filed a petition for a writ of mandamus, which the Fifth Circuit granted. The court ruled that the initial stay order was proper, because all parties then expected Cogan to be tried soon and quickly. 1995 WL 337666, at *3. But that did not happen. The court of appeals next reviewed the district court’s continuing refusal to permit discovery by the Beebe plaintiffs. The court found the Beebe plaintiffs’ need to complete discovery “compelling”:

[A] continued delay in permitting Petitioners to acquire documents and depose witnesses necessary to the eventual pursuit of their cause of action could well lead permanently to the loss of those documents or those recollections, thereby forever impeding the search for truth in this litigation.

Id. at *4. The Fifth Circuit noted that staying discovery “does not conserve significant judicial resources,” because discovery is conducted by the parties with limited judicial involvement. Id. at *5. The court concluded:

[A]t this point the continued proscription on all discovery is almost certainly having an adverse, rather than salutary, effect on the litigation. Most troubling is the very real potential that valuable information regarding important issues in the case may be lost forever should this stay be maintained as to discovery. . . . [A]t a minimum, the district court must permit discovery to proceed expeditiously and unimpeded.

Id. The district court’s June 2015 order should be vacated for the same reasons.

B. The June 2015 order abuses the district court’s discretion because it violates two Title VII provisions.

First, Title VII requires district courts to process Title VII claims as expeditiously as possible. See supra p. 29. 42 U.S.C. § 2000e-5(f)(5) states: “It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.” The district court’s continued refusal to permit discovery by the EEOC is an abuse of the court’s discretion in the face of this explicit statutory directive.

Second, Title VII authorizes district courts to stay Title VII proceedings for a maximum of 60 days in order to allow time for further administrative proceedings or conciliation. 42 U.S.C. § 2000e-5(f)(1) (last sentence). This Court held in Hines that this provision bars district courts from staying Title VII proceedings for periods longer than 60 days. 531 F.2d at 735 (“A district court hearing a Title VII case, then, would be acting in clear derogation of the plaintiffs’ statutory rights if it entered [a stay exceeding 60 days].”), 737 (“Such a stay should not remain in effect for more than sixty days.”).[10]

C. The June 2015 order violates the rule that when two federal agencies bring related enforcement actions, courts should normally allow them to proceed simultaneously.

The district court’s abuse of discretion is even more apparent given that the court should never have stayed the Commission’s enforcement action in the first place. It is well settled that when Congress grants parallel enforcement authority to two different federal agencies, the courts should allow the agencies to conduct simultaneous enforcement proceedings, even where those proceedings focus on the same allegedly unlawful activity. This is true even when one proceeding is criminal and the other is civil, and even when both agencies are pursuing the same entity, neither of which is true here. Here, since the EEOC and DOJ lawsuits are both civil proceedings and the two agencies are suing different entities, the district court should allow the Commission to conduct discovery on its claim against the union at the same time as DOJ conducts discovery on its separate claim against the city.

The D.C. Circuit adopted this principle in its unanimous en banc decision in SEC v. Dresser Industries, Inc., 628 F.2d 1368 (D.C. Cir. 1980). Dresser had made “questionable foreign payments” that allegedly violated the Securities and Exchange Act of 1934. That act authorizes the SEC to bring civil enforcement actions, and it authorizes DOJ to bring criminal proceedings. In late January 1978, DOJ began presenting evidence against Dresser to a grand jury. The grand jury subpoenaed documents from Dresser in late April. Dresser filed a motion to quash the subpoena in district court, but in May the court denied that motion and enforced the subpoena, and Dresser complied. Id. at 1373–74. Meanwhile, the SEC had opened a formal investigation into Dresser’s foreign payments in April 1978 and issued a subpoena seeking relevant documents. Dresser did not comply, and the SEC sought enforcement of its subpoena in district court. When the court issued an order enforcing the SEC subpoena, Dresser appealed. Id. at 1374–75.

On appeal, Dresser argued that the district court should have stayed the SEC’s civil investigation until after the termination of DOJ’s criminal proceeding. Id. at 1370. The court of appeals disagreed and affirmed the order enforcing the SEC subpoena. Id. at 1384. The court noted that the 1934 act is one of many federal laws that can be enforced both civilly and criminally. Both types of enforcement are important, the court ruled, and courts should normally allow both criminal and civil investigations to proceed quickly and simultaneously. Id. at 1374–77.

If the SEC suspects that a company has violated the securities laws, it must be able to respond quickly . . . . Similarly, Justice must act quickly if it suspects that the laws have been broken. . . . [Therefore,] we should not block parallel investigations by these agencies in the absence of “special circumstances” in which the nature of the proceedings demonstrably prejudices substantial rights of the investigated party or of the government.

Id. at 1377 (emphasis added).

Civil proceedings, the Dresser court stated, should sometimes be stayed pending the outcome of criminal proceedings if there is “evidence of agency bad faith or malicious governmental tactics” or a need to protect the rights of “a party under indictment for a serious offense” who is simultaneously “required to defend a civil or administrative action involving the same matter.” Dresser Indus., 628 F.2d at 1375–76. Those situations, the court of appeals held, were not present in the Dresser case. Id. at 1376. In rejecting Dresser’s arguments, the D.C. Circuit reiterated the importance of allowing the two investigations to proceed simultaneously: “The SEC must often act quickly [to enforce the 1934 act]. . . . For the SEC to stay its hand might well defeat its purpose.” Id. at 1380.

Other courts have followed Dresser and affirmed orders denying stays of an agency’s civil enforcement action even when the defendant was also subject to criminal proceedings for the same or related violations. See FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 626–29 (6th Cir. 2014) (where defendant asked district court to stay FTC’s civil enforcement action because criminal authorities were investigating defendant for same violations and had seized its records, district court did not abuse discretion in denying stay) (citing Dresser); Keating v. Office of Thrift Supervision, 45 F.3d 322, 324–26 (9th Cir. 1995) (where defendant in OTS administrative hearing asked ALJ to stay proceedings pending resolution of federal indictment for related violations, ALJ did not abuse discretion in denying stay) (citing Dresser); SEC v. First Fin. Group of Tex., 659 F.2d 660, 666–69 (5th Cir. Oct. 21, 1981) (rejecting defendants’ arguments that district court should have stayed SEC’s civil enforcement action against them once federal grand jury began criminal investigation of same violations) (citing Dresser).

The Dresser court thus rejected the company’s argument that the SEC’s civil investigation of the company’s violations should have been stayed pending the resolution of DOJ’s criminal investigation of the same corporation for the same violations. Here, in contrast, DOJ is not investigating or prosecuting any party criminally. Rather, DOJ and the EEOC are each pursuing civil enforcement actions, and they are litigating against different defendants alleging different types of violations and seeking different types of relief. Such parallel enforcement actions are required by Title VII, which gives only DOJ the authority to sue the city and gives only the EEOC the authority to sue the union.^{^[11]} If the district court in Dresser properly refused to stay the SEC’s civil investigation of the company’s violations even though DOJ was simultaneously investigating the same violations by the same corporation in criminal proceedings, it follows a fortiori that the district court here should not have stayed discovery in the Commission’s action alleging race-based disparate-treatment violations by the union just because DOJ is pursuing a parallel action alleging race-based disparate-impact violations by the city.

D. The June 2015 order abuses the district court’s discretion because it gives the union an unfair litigation advantage and reduces the likelihood of settlement.

The stay gives the union a substantial and unfair tactical advantage. The district court has permitted the union to challenge DOJ’s claim aggressively, even though the union faces no liability in the DOJ action.^{^[12]} At the same time, the district court has prevented the Commission from litigating its claim, or even from obtaining discovery to support that claim. See Travelers Indem. Co. v Madonna, 914 F.2d 1364, 1371 (9th Cir. 1990) (one factor in weighing Colorado River stay is whether party opposing stay is seeking tactical advantage of applying federal court rules); cf. VirtualAgility, Inc. v. Salesforce.com, Inc., 759 F.3d 1307, 1309 (Fed. Cir. 2014) (court considering stay under America Invents Act must consider whether stay grants moving party “a clear tactical advantage”); In re 15375 Memorial Corp., 589 F.3d 605, 618 (3d Cir. 2009) (good faith in filing bankruptcy petition is assessed in part by determining whether it was filed “merely to obtain a tactical litigation advantage”).

Moreover, the stay significantly reduces the likelihood of settlement, because it has removed the union’s incentive to settle. The union faces no liability in the DOJ action (because DOJ is seeking no relief from the union), and, by virtue of the stay, faces no liability in the EEOC action for years to come. See In re Tutu Water Wells CERCLA Litig., 326 F.3d 201, 208 (3d Cir. 2003) (a principal incentive to settle is to reduce one’s “maximum potential liability”); Clauson v. New England Ins. Co., 254 F.3d 331, 340–41 (1st Cir. 2001) (party’s incentive to settle normally varies with that party’s potential liability).

This Court should accordingly vacate the district court’s stay order, as it has done at least twice before in similar situations. In Hines, the district court had stayed litigation of the plaintiffs’ § 1981 and § 1983 claims, stating that the stay would not be lifted until the plaintiffs filed Title VII charges with the EEOC and exhausted those administrative remedies. This Court vacated the stay order because § 1981 and § 1983 claims can be pursued without exhausting Title VII administrative remedies and because exhausting those remedies would have postponed litigation of the plaintiffs’ § 1981 and § 1983 claims for at least 18 months and possibly more than five years. 531 F.2d at 731–36. The stay, this Court ruled, was “‘immoderate and hence unlawful,’ and the order entering the stay must be reversed.” Id. at 736.

Similarly, in CTI-Container Leasing the district court had stayed the breach-of-lease claims brought by one domestic corporation against another domestic corporation pending a jurisdictional decision by the Iran–United States Claims Tribunal, because the defendant corporation had cross-claims against two Iranian entities. 685 F.2d at 1285. This Court ruled that this stay was indefinite in length and therefore immoderate, and the district court should instead have stayed only the defendant corporation’s claims against the Iranian entities. Id. at 1288–90. “We cannot uphold,” this Court held, “such an indefinite or immoderate stay.” Id. at 1288. See also Davis, 745 F.3d at 1311 (order staying prisoner’s § 1983 claims until he regained competency vacated as abuse of discretion); Cherokee Nation of Okla. v. United States, 124 F.3d 1413, 1418 (Fed. Cir. 1997) (order staying tribes’ breach-of-duty claims vacated as immoderate and unjustified); McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982) (order staying prisoner’s § 1983 claims for no good reason until his release from prison seven or possibly fourteen years in the future vacated as abuse of discretion). This Court should accordingly vacate the stay and direct the district court to allow the Commission to conduct discovery against the union immediately.

III. If The June 2015 Order is Not Appealable, This Court Should Treat This Appeal as a Petition for a Writ of Mandamus and Grant It.

If this Court decides that the district court’s June 2015 order is not appealable under Cohen or Moses H. Cone, the Court should treat this appeal as a petition for a writ of mandamus, as it did in Fernandez-Roque v. Smith, 671 F.2d 426, 430–31 (11th Cir. 1982), where the order that the federal government sought to appeal was not appealable, but the appeal raised an important legal challenge to the district court proceedings. See also Suarez-Valdez v. Shearson Lehman/Am. Express, Inc., 858 F.2d 648, 649 (11th Cir. 1988) (per curiam) (when it is unclear whether the order being appealed is appealable, the court of appeals has discretion to “treat th[e] appeal as a petition for a writ of mandamus”). This is particularly appropriate when, as here, the district court is acting beyond its authority by ignoring the statutory directive to process the Commission’s action as expeditiously as possible. See id. at 649–50 (Tjoflat, J., concurring) (acknowledging appropriateness of mandamus “in extraordinary situations, such as when the district court acts beyond the scope of its authority”); see also Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 729 (D.C. Cir. 2012) (granting mandamus to vacate stay that “exceeded the proper exercise of authority of the district court”).

This Court grants mandamus, an extraordinary remedy, only when the petitioner shows that “its right to issuance of the writ is clear and indisputable.” In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003). The Commission has an indisputable right to mandamus relief here both because Title VII requires expedited processing of Title VII claims and because, absent constitutional problems not present here, district courts should allow two federal government agencies to pursue parallel enforcement actions simultaneously against even the same entity, let alone, as here, against different entities. The EEOC has established the criteria for mandamus here because the district court’s order refusing to allow discovery violates governing law in both of these respects. See Belize Soc. Dev., 668 F.3d at 731 (plaintiff had an indisputable right to mandamus because district court’s stay violated governing law).

Conclusion

Accordingly, the Commission respectfully urges this Court to vacate the June 2015 order refusing to modify the stay and direct the district

court to allow the agency to commence immediately the limited discovery it has requested.

[1] “DOJ R-x” refers to docket entry x in DOJ’s lawsuit, No. 3:12-cv-451 (M.D. Fla.).

[2] The district court has permitted no discovery in this action. The Commission therefore relies on the factual allegations in its complaint.

[3] The union had advanced three arguments for dismissing the EEOC’s action. First, it argued that the city was an indispensable party to the agency’s action that, under 42 U.S.C. § 2000e-5(f)(1), could not be joined. R-13 at 9–14. The district court rejected this argument, ruling that it could grant the EEOC injunctive relief against the union even if the city could not be joined. R-36 at 8–9.

Second, the union argued that the agency’s complaint contained insufficient factual allegations to make its claim plausible. R-13 at 14–20. The district court ruled that the Commission stated a claim against the union under Howard v. Int’l Molders Union, 779 F.2d 1546 (11th Cir. 1986). R-36 at 8–9.

Finally, the union argued that the EEOC had failed to satisfy its conciliation requirement. R-13 at 21–25. The district court deferred addressing this contention, R-36 at 8 n.9, and has not yet addressed it.

[4] The Third Circuit ruled the order was not appealable because it did not satisfy the third Cohen prong. (The court instead granted mandamus to vacate the order. 994 F.2d at 1015.) Its decision, however, is instructive on when an order conclusively determines a question.

[5] The district court directed the parties to DOJ’s action to complete discovery on phases two and three of DOJ’s disparate-impact claim by June 2016. If the parties file their Daubert and summary judgment motions in July 2016 and the district court resolves those motions at about the same pace as it resolved the phase-one motions, the district court will probably resolve them in June 2017. The court will probably need to conduct a trial on phases two and three, and that trial will take until at least June 2018. For a detailed discussion of these projections, see infra pp. 44–49.

After the city is found liable, the EEOC and the union would begin discovery on the Commission’s claim. Even if the agency’s claim is resolved on summary judgment, the earliest a final judgment could be entered would be sometime in 2019 or later.

[6] For example, a stay order might be justified by a Title VII defendant’s claim of qualified or absolute immunity. See, e.g., Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994 n.10 (5th Cir. 1995) (“[T]he issue of qualified immunity is a threshold question, and [u]ntil this threshold immunity question is resolved, discovery [on the merits] should not be allowed.”) (last brackets added).

A stay might also be justified on other grounds. See Brown v. Danson, Inc., No. 1:11-cv-820, 2012 WL 3600100, at *2 (S.D. Ohio Aug. 21, 2012) (staying discovery on plaintiff’s Title VII claim for short period pending resolution of defendant’s motion to dismiss based on res judicata); Matlock v. Denver Health & Hosp. Auth., No. 12-cv-3164, 2013 WL 3944127, at *2–4 (D. Colo. July 31, 2013) (staying discovery on plaintiff’s state employment-discrimination claim until plaintiff receives and files requisite right-to-sue notice). Stay time imposed for legitimate reasons would not count toward the two-year period that defines this category of Cohen orders.

[7] Decisions issued by the former Fifth Circuit before October 1, 1981, are binding precedent in this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

[8] See also Newark Branch, NAACP v. Town of Harrison, N.J., 940 F.2d 792, 801–05 (3d Cir. 1991) (affirming district court’s post-trial ruling that defendant had not shown business necessity).

[9] This calculation assumes that the district court would allow the EEOC to conduct discovery after the district court determination of liability even if the city seeks an interlocutory appeal to challenge that determination. The district court’s logic might, however, lead it to continue the stay until that appeal is resolved.

[10] Hines addressed an order staying an employment-discrimination claim under § 1981, not a Title VII claim. But the Hines court used the Title VII provision to find the stay of the § 1981 claim unlawful. Since the Title VII provision bars staying a § 1981 claim for longer than 60 days, it a fortiori bars staying a Title VII claim for that period.

[11] See 42 U.S.C. § 2000e-5(f)(1) (second sentence) (authorizing DOJ, and only DOJ, to sue sate- and local-government entities); id. (third sentence) and § 2000e-2(c)(3) (authorizing EEOC to sue labor organizations that “cause or attempt to cause an employer to discriminate” in violation of Title VII). See EEOC v. Seafarers Int’l Union, 394 F.3d 197, 206–07 (4th Cir. 2005) (affirming district court’s order denying union’s motion to dismiss Commission’s enforcement action); United States v. City of New York, No. 07-CV-2067, 2007 WL 2581911, at *5 (E.D.N.Y. Sept. 5, 2007) (in DOJ’s Title VII action against New York City alleging a disparate-impact violation in hiring firefighters, court noted that DOJ cannot sue the firefighters’ union “because [the union] is not a state or local governmental entity”).

[12] In its answer to the DOJ’s complaint, the union raised approximately 18 affirmative defenses. DOJ R-22, ¶¶ 1–16 (one each in ¶¶ 1–15, and three in ¶ 16). The union opposed intervention by the Smith plaintiffs as a class and by the NAACP and the Jacksonville Brotherhood of Firefighters. DOJ DE R-34–35. It then opposed those proposed intervenors’ right to respond to the union’s arguments, DOJ R-37, and it filed a surreply on the issue, DOJ R-40.

The union has demanded a jury trial in the DOJ action even though it faces no liability there and neither DOJ nor the city wants a jury trial. DOJ R-45. The union was the only party to oppose the case management order proposed by the plaintiffs. DOJ R-54. The union opposed the plaintiffs’ request for a temporary restraining order. DOJ R-93.

The union retained an expert, who testified at the hearing on the first phase, R-50 at 213–22, and the union moved to exclude the testimony of two of the plaintiffs’ experts, DOJ R-128. The union moved for summary judgment and opposed the plaintiffs’ motion for summary judgment. DOJ R-156.

Conclusion

Certificate of Compliance with Rule 32

Certificate of Service