FACTS NECESSARY TO UNDERSTAND THE QUESTIONS PRESENTED.. 2

I. The question whether the EEOC’s conciliation process is subject to judicial review meets all the statutory criteria for interlocutory review. 5

A. The issue presented is a pure question of law. 5

B. The issue is controlling because its resolution is likely to affect the future course of the litigation and head off protracted litigation. 5

C. Whether the EEOC’s conciliation process is subject to judicial review is, to say the least, contestable. 6

D. Deciding whether the EEOC’s conciliation process is subject to judicial review may materially advance the litigation. 16

II. The question of whether deferential or heightened scrutiny applies to EEOC conciliations also meets all the statutory criteria for interlocutory review. 16

III. Immediate appeal should be granted because this case raises an issue of exceptional importance to the government. 19

CONCLUSION.. 20

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS.. 1

CERTIFICATE OF SERVICE.. 2

APPENDIX.. 3

TABLE OF AUTHORITIES

Page(s)

Cases

Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir. 2000)..................... 2, 4, 5

AT&T Co. v. EEOC, 270 F.3d 973 (D.C. Cir. 2001)........................................................... 16

Bennett v. Spear, 520 U.S. 154 (1997).................................................................................. 15

Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831 (D.C. Cir. 2001)............. 8

Branch v. Phillips Petroleum Co., 638 F.2d 873 (5th Cir. 1981)..................................... 12

Circuit City v. EEOC, 75 F. Supp. 2d 491 (E.D. Va. 1999)............................................... 16

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)........................... 9

Doe v. Oberweis, 456 F.3d 704 (7th Cir. 2006)............................................................ passim

EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003)........................... 17

EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005).......................................... passim

EEOC v. CRST, No. 07-95, 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009)................... 12

EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012)....................... 5, 6, 20

EEOC v. E. I. duPont de Nemours & Co., 516 F.2d 1297 (3d Cir. 1975)................ 13, 14

EEOC v. Elgin Teachers Association, 27 F.3d 292 (7th Cir. 1994)........................ passim

EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996)..................................... 17

EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984)............................................... 17

EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir.1981)............................................. 17

EEOC v. Philip Servs. Corp., 635 F.3d 164 (5th Cir. 2011)............................................. 12

EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir. 1979)....................................... 17

EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241 (N.D. Ill. 1980)................................. 10

EEOC v. St. Alexius, No. 12-cv-7646 (N.D. Ill.).................................................................. 19

EEOC v. Zia, Co., 582 F.2d 527 (10th Cir. 1978)................................................................ 17

FTC v. Standard Oil Co., 449 U.S. 232 (1980)................................................... 8, 14, 15, 16

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968)................................................ 13

Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991).............................................................. 6

Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006)................................................................... 15

Lincoln v. Vigil, 508 U.S. 182 (1993)........................................................................ 10, 13, 14

Marbury v. Madison, 1 U.S. (Cranch) 137 (1803)................................................................. 6

Sackett v. EPA, 132 S. Ct. 1367 (2012)................................................................................ 11

Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656 (7th Cir. 1996)................................................................................................................................................... 5

Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979)............................................................... 8, 9

TRW, Inc. v. Andrews, 534 U.S. 19 (2001)........................................................................... 11

United States v. Morgan, 313 U.S. 409 (1941)...................................................................... 6

Webster v. Doe, 486 U.S. 592 (1988)........................................................................... 9, 10, 13

Statutes

5 U.S.C. § 704............................................................................................................................. 15

28 U.S.C. § 1292(b)............................................................................................................. 2, 4, 5

42 U.S.C. § 2000e-5(b)............................................................................................................ 1, 7

42 U.S.C. § 2000e-5(e)............................................................................................................ 2, 3

42 U.S.C. § 2000e-5(f)(1)......................................................................................... 1, 3, 7, 9, 12

Equal Employment Opportunity Act of 1972,86 Stat. 103, 42 U.S.C. § 2000e et seq.. 2

Rules and Regulations

Fed. R. Evid. 408....................................................................................................................... 11

Other Authorities

118 Cong. Rec. 3806 (Feb. 14, 1972)..................................................................................... 18

118 Cong. Rec. 3807 (Feb. 14, 1972)..................................................................................... 10

EEOC Charge Statistics FY 1997 through FY 2012........................................................... 3

EEOC Litigation Statistics, FY 1997 through FY 2012........................................ 3, 15, 19

U.S. EEOC, Strategic Enforcement Plan FY 2013–2016................................................. 19

INTRODUCTION

This petition for interlocutory review presents the questions of whether the EEOC’s efforts to obtain voluntary compliance through conciliation are subject to judicial review, and if so, what kind of review is warranted. The answer to these questions will significantly affect the federal government’s ability to enforce the antidiscrimination laws.

Mach Mining, a company that has never hired a woman for a mining position and does not even have a women’s changing room, seeks to shift the focus of this case from whether it engaged in systemic hiring discrimination against women to whether the EEOC conciliated enough with it before filing suit.

But Title VII commits the presuit conciliation process to the EEOC’s discretion and thus is not reviewable: it is an “informal” and confidential process, and if the EEOC is unable to obtain an agreement “acceptable to the Commission,” the EEOC may bring suit to achieve compliance with the antidiscrimination laws. 42 U.S.C. § 2000e-5(b), (f)(1). This Court has not specifically decided the reviewability of conciliation.

This Court has, however, recognized that the decision that conciliation has failed lies with the EEOC, EEOC v. Elgin Teachers Association, 27 F.3d 292, 294 (7th Cir. 1994), and that other EEOC presuit conditions—the EEOC’s investigation and reasonable cause finding of discrimination—are not judicially reviewable, see EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005). For the reasons offered in Elgin and Caterpillar and more, non-reviewability extends to conciliation as well.

These questions of reviewability, as the district court recognized, satisfy the requirements of 28 U.S.C. § 1292(b)—(1) the appeal presents a question of law; (2) that is controlling; (3) contestable; and (4) will expedite the resolution of the litigation if decided now. And this Court has acknowledged its “duty . . . to allow an immediate appeal to be taken when the statutory criteria are met.” Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 677 (7th Cir. 2000).

QUESTIONS PRESENTED

1. May courts review the EEOC’s informal efforts to secure a conciliation agreement acceptable to the EEOC before filing suit?

2. If courts may review the EEOC’s conciliation efforts, should the reviewing court apply a deferential or heightened scrutiny standard of review?

FACTS NECESSARY TO UNDERSTAND THE QUESTIONS PRESENTED

In the Equal Employment Opportunity Act of 1972,86 Stat. 103, 42 U.S.C. § 2000e et seq., amending the Civil Rights Act of 1964, Congress established an integrated, multistep enforcement procedure which can culminate in the EEOC’s authority to bring federal civil actions on behalf of employment discrimination victims. The procedure begins when a charge is filed with the EEOC alleging that an employer engaged in unlawful discrimination. 42 U.S.C. § 2000e-5(e). The EEOC then notifies the employer of the charge and investigates it. Id. § 2000e-5(b).

If the Commission determines after the investigation that there is reasonable cause to believe that the charge is true, the Commission must then attempt to eliminate the unlawful employment practice “by informal methods of conference, conciliation, and persuasion.” Id. The process is to remain confidential: “Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. If “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action.” 42 U.S.C. § 2000e-5(f)(1). As a practical matter, relatively few charges result in EEOC-initiated lawsuits.[1]

This is one of those rare cases resulting in an EEOC suit. After attempting conciliation and informing Mach Mining that it was unable to secure an agreement acceptable to the Commission, R.32-1, at 9, the EEOC brought a class failure-to-hire sex discrimination case against Mach Mining. Id. at 1–2. In its Answer, Mach Mining alleged the “affirmative defense” that the EEOC failed to conciliate prior to filing suit. See R.10.

Mach Mining seeks extensive conciliation-related discovery, but resists discovery about its potentially discriminatory hiring practices. For example, Mach Mining has made 696 requests for admissions of fact, 645 of which pertain to the EEOC’s investigation or conciliation. See R.25. Yet Mach Mining has objected to merits-based discovery on the ground that information about specific claimants is undiscoverable because the “EEOC failed to investigate, reach a determination upon and/or conciliate.” Id. at 21, 23–30, 35–53.

The EEOC moved for summary judgment on the conciliation “affirmative defense,” arguing that this Court’s previous conclusion that EEOC investigations are not subject to judicial review, see EEOC v. Caterpillar, Inc., 409 F.3d at 833, extends to the conciliation process as well. R.32. The district court disagreed, concluding that conciliation is subject to “some level of judicial review,” but recognized the circuit split as to what standard of review governs EEOC conciliations and that this Court has not yet weighed in. R.55, at 6.

The EEOC moved for reconsideration, or in the alternative, to certify an interlocutory appeal to this Court under 1292(b). R.59. On May 20, 2013, the court denied the reconsideration motion, but granted the motion to certify appeal. R.86 (see Appendix).

RELIEF REQUESTED

The EEOC seeks immediate appellate review of the district court’s January 28, 2013 Order, R.55 (see Appendix), reversal of that Order, and a remand to grant summary judgment in favor of the EEOC on Mach Mining’s conciliation “affirmative defense.”

REASONS FOR PERMITTING THE APPEAL

Section 1292(b) is directed at precisely this kind of case: it involves a contestable “pure question of law,” which “the court of appeals c[an] decide quickly and cleanly,” and immediate appellate review “could . . . head off protracted, costly litigation.” Ahrenholz, 219 F.3d at 677. This Court has acknowledged its “duty” to permit immediate appellate review under these circumstances. Id. Immediate review is particularly appropriate here because the questions are of profound practical importance to the government’s enforcement of the antidiscrimination statutes.

I. The question whether the EEOC’s conciliation process is subject to judicial review meets all the statutory criteria for interlocutory review.

A. The issue presented is a pure question of law.

As the district court put it, “There is no doubt that these questions are questions of law.” R.86, at 9. Resolution turns completely on an interpretation of Title VII. See Ahrenholz, 219 F.3d at 676 (the term “‘question of law’ as used in section 1292(b). . . refer[s] to a question of the meaning of a statutory . . . provision . . . .”). Where, as here, “a case turn[s] on a pure question of law . . . the court should be enabled to [decide it] without having to wait till the end of the case.” Id. at 677.

B. The issue is controlling because its resolution is likely to affect the future course of the litigation and head off protracted litigation.

This question is controlling because “its resolution is quite likely to affect the further course of the litigation, even if not certain to do so.” Sokaogon Gaming Enter. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir. 1996). The district court stated that the answers to the questions presented “could dramatically impact the size of the class” of women for whom the EEOC can seek relief. R.86, at 10. If the district court wrongly scrutinizes conciliation, or applies an overly rigorous standard in reviewing it, the class size may be quite different than if conciliation is unreviewable. See, e.g., EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 689–90 (8th Cir. 2012) (dismissing claim for relief for sexual harassment claimants on whose behalf the EEOC did not specifically conciliate).

A question of law may also be deemed ‘controlling’ if its resolution “might save time for the district court, and time and expense for the litigants.” Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991). Resolving reviewability now will resolve numerous questions regarding the appropriate scope of discovery, and prevent motions practice over the conciliation “defense” and the likely appeals.

C. Whether the EEOC’s conciliation process is subject to judicial review is, to say the least, contestable.

1. Title VII makes clear that conciliation is unreviewable because it is an action committed to agency discretion.

It is axiomatic that decisions committed to agency discretion are not reviewable. “Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation[.]” Marbury v. Madison, 1 U.S. (Cranch) 137, 170–71 (1803); see also United States v. Morgan, 313 U.S. 409, 413 (1941) (rejecting a challenge to the Secretary of Agriculture’s actions because “it was not the function of the court to probe the mental processes of the Secretary”).

Likewise, this Court has already recognized the principle that the EEOC’s decision to end conciliation when it “fail[s] to get all of what it wanted in bargaining” and subsequently to file suit to “back up its [conciliation] demand” is “a matter for the conscience of the person who authorized suit, rather than for the judiciary.”Elgin, 27 F.3d at 294.

Conciliation therefore is not reviewable because, as this Court has recognized, Title VII places it solely at the EEOC’s discretion:

· Title VII describes conciliation as an “informal method[]” and lists conciliation along with the terms “conference,” and “persuasion.” 42 U.S.C. § 2000e-5(b).

· It requires that conciliation be kept confidential—even from the court—mandating that “Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id.

· And it establishes that conciliation ends when there is an agreement acceptable to the EEOC or when the EEOC decides that it has been “unable to secure from the respondent a conciliation agreement acceptable to the Commission.” Id. § 2000e-5(f)(1).

In addition to Elgin, this Court has recognized, on at least two other occasions, that the EEOC’s presuit activities are within the agency’s domain and imposing extra-statutory judicial review is unwarranted based on the statute’s text and risks unnecessarily complicating Title VII litigation, with no offsetting benefit.

In EEOC v. Caterpillar —on interlocutory appeal—this Court concluded that the EEOC’s investigation and determination that there was reasonable cause to believe the charge of discrimination are not judicially reviewable. 409 F.3d at 833. Caterpillar challenged whether the EEOC’s suit was sufficiently related to the EEOC’s investigation, and argued that the investigation and reasonable-cause determination were subject to judicial review in order to find that out. Id. at 832. This Court rejected its argument, reasoning that since

courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission’s investigation. The existence of probable cause to sue is generally and in this instance not judicially reviewable.

Id.

In Doe v. Oberweis, 456 F.3d 704, 710 (7th Cir. 2006), the employer argued that an employee had a duty to cooperate in good faith with the EEOC during its investigation, and that an employee’s failure to do so should bar suit. This Court rejected such a standard and specifically recognized its risks:

We know from cases under the National Labor Relations Act, which requires unions and employers to bargain in good faith, how difficult it is to enforce such a duty, because it jostles uneasily with the right of each party to a labor negotiation to refuse an offer by the other even if a neutral observer would think it a fair, even a generous, offer.

Id. at 711. This Court was prescient: “To allow employers to inject such an issue by way of defense in every Title VII case would cast a pall over litigation under that statute.” Id. Taken together, Elgin, Caterpillar, and Doe, compel the conclusion that conciliation is unreviewable.

Administrative Procedure Act (“APA”) caselaw expounding the principle that actions committed to agency discretion are not reviewable also support the conclusion that conciliation is unreviewable. See Caterpillar, 409 F.3d at 833 (relying on APA cases to support conclusion that an EEOC investigation is not subject to judicial review: FTC v. Standard Oil Co., 449 U.S. 232, 242–43 (1980), which concluded that the FTC’s averment of “reasonable to believe that Standard Oil violated the FTC Act was not reviewable; Stewart v. EEOC, 611 F.2d 679, 683 (7th Cir. 1979), which concluded that the EEOC’s alleged failure to make timely reasonable cause determination was not reviewable; and Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 835–36 (D.C. Cir. 2001), which concluded that cause determinations are not judicially reviewable).

As APA caselaw makes clear, the determination that an action is “committed to agency discretion by law” can be supported one of three ways, all of which are manifested in this case. First, judicial review is not available when the governing “statutes are drawn in such broad terms that in a given case there is no law to apply.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971). In such cases, judicial review is not possible because there is no standard against which to judge the legality of the agency action. For example, in Webster v. Doe, the National Security Act authorized the CIA director to terminate an employee whenever he “shall deem such termination necessary or advisable in the interests of the United States.” 486 U.S. 592, 594 (1988). When a CIA employee challenged his termination, the Supreme Court held that the decision was unreviewable—there was no standard to apply because the statute placed the decision completely at the Director’s discretion. Id.

Here Title VII likewise provides no standard because only the EEOC can say whether a conciliation proposal was “acceptable to the Commission.” 42 U.S.C. § 2000e-5(f)(1). “This standard fairly exudes deference to the [EEOC] and appears . . . to foreclose the application of any meaningful judicial standard of review.” Cf. Webster, 486 U.S. at 600. Further, the statute describes conciliation as “informal” along with “conference” and “persuasion.” Each of these words is a “broad term that does not contain any law to apply.” Cf. Overton Park, 401 U.S. at 410.

The legislative history also supports the view that there is no standard to govern review. Senator Javits, responding to a proposal to require judicial review of EEOC conciliation, found the suggestion “inconceivable,” stating “we would substitute the court for the parties insofar as settlement was concerned.” 118 Cong. Rec. 3807 (Feb. 14, 1972). When Senator Ervin queried how the EEOC would demonstrate that no conciliation agreement was reached, Senator Javits replied that the EEOC would simply “certify [that] for the record.” Id. He could not imagine a court reviewing the EEOC’s decision beyond that:

I do not know what the court would decide or how a court could probe into the minds of the Commission, whether they did or did not, in good faith, decide that they would or would not work out a conciliation agreement which the respondent might have wished. . . . If they settle, they do. If not, they do not and they go to court. This tries to introduce a totally different standard than anything encompassed by our laws or practice.

Id. In the end, the proposal to require judicial review of conciliation was “soundly rejected.” EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980).

Second, an agency decision is also considered “committed to agency discretion by law” when the statute suggests that Congress intended the agency to have final authority over a decision. In Webster, for example, the Director was authorized to terminate any employee when he “deem[s] such termination necessary.” 486 U.S. at 594; see also Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (holding that the allocation of funds from a lump-sum appropriation was not subject to judicial review because it “reflects a congressional recognition that an agency must be allowed flexibility[.]”). Here Title VII likewise places the discretion solely with the EEOC—”acceptable to the Commission”—and does not mention any judicial review of that decision.

Moreover, in determining “[w]hether and to what extent a particular statute precludes judicial review,” courts look not “only [to] its express language,” but also at “inferences of intent drawn from the statutory scheme as a whole.” Sackett v. EPA, 132 S. Ct. 1367, 1373–74 (2012). That conciliation is informal and confidential indicates that Congress considered the conciliation process to be the EEOC’s domain and not reviewable. Title VII commands that “[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” Id. § 2000e-5(b). Congress considered keeping conciliation confidential so important that it specified criminal penalties if “any person . . . makes public information in violation of this subsection.” Id. If Congress envisioned judicial review, it would make no sense to proscribe parties from disclosing conciliation information to the court.

This is why the district court’s notion that the confidentiality requirement can be analogized to Fed. R. Evid. 408—which proscribes using compromise offers or negotiations on the merits but allows such evidence to be used for collateral purposes—is incorrect. See R.86, at 7–8. First, “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW, Inc. v. Andrews, 534 U.S. 19, 28 (2001). Rule 408 makes the collateral use explicit, whereas Title VII makes only one exception to the confidentiality provision: when all “concerned persons” consent to its use.

Second, knowing that what is said or done during conciliation may eventually find its way into litigation, even if the information is used in a non-merits manner, “would risk a decrease in the open communication necessary to reach voluntary settlements during the conciliation process.” See EEOC v. Philip Servs. Corp., 635 F.3d 164, 169 (5th Cir. 2011) (refusing to enforce oral conciliation agreement because keeping conciliation communications and actions out of court was necessary to preserve the conciliation process itself); Branch v. Phillips Petroleum Co., 638 F.2d 873, 881 (5th Cir. 1981) (“[P]rospect of disclosure or possible admission into evidence of proposals made during conciliation efforts would tend to inhibit the kind of free and open communication necessary to achieve unlitigated compliance with . . . Title VII.”). Yet because of judicial review, employers now have an incentive to view conciliation not as an open communication that leads to voluntary compliance, but as just another part of a trenched litigation battle to come.[2]

Title VII mentions a court’s role in conciliation only in the context of cases initially brought by private plaintiffs in which the EEOC intervenes. In such cases, “[u]pon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.” 42 U.S.C. § 2000e-5(f)(1).

This too supports the notion that courts have no role in reviewing the conciliation process. “Upon request,” the court may pause the proceedings not to review conciliation but to further the Commission’s—not the court’s—efforts to obtain voluntary compliance. Moreover, that the court’s role is mentioned only in this context suggests that courts have no role in cases where the EEOC does not intervene, but rather initiates suit directly.

The third way a court determines that actions are committed to agency discretion is when the agency decisions are “of the sort” that had been “traditionally unreviewable.” See Webster, 486 U.S. at 609 (Scalia, J., dissenting on a different point); see also Lincoln, 508 U.S. at 192 (agency’s allocation of funds from a lump-sum appropriation is unreviewable in part because it was an “administrative decision traditionally regarded as committed to agency discretion”).

The conciliation efforts specified in Title VII were initially unreviewed because enforcement was through private lawsuits and “voluntary conference, persuasion, and conciliation” by the EEOC. See, e.g., Jenkins v. United Gas Corp., 400 F.2d 28, 30 (5th Cir. 1968). “Believing that the voluntary compliance approach had been singularly unsuccessful in eliminating employment discrimination, Congress added court enforcement to EEOC’s arsenal of powers.” EEOC v. E. I. duPont de Nemours & Co., 516 F.2d 1297, 1301 (3d Cir. 1975).

It seems odd to believe that Congress both granted the power to bring suit to buttress the EEOC’s ability to obtain voluntary compliance and remedy discrimination, but circumscribed the EEOC’s authority by making a formerly unreviewable process reviewable, bogging down EEOC enforcement actions from the outset. Cf. Standard Oil, 449 U.S. at 242 (“[J]udicial review to determine whether the Commission decided that it had the requisite reason to believe would delay resolution of the ultimate question whether the Act was violated.”). A better reading is that “Congress may well have believed that employers would be more likely to respect Title VII’s mandates if they were required to deal with an agency capable of taking the matter to court should the conciliation process break down.” E.I. duPont, 516 F.2d at 1301.

To be clear, the EEOC recognizes it has a statutory responsibility to conciliate before bringing a civil action, and “[o]f course, an agency is not free simply to disregard statutory responsibilities.” See Lincoln, 508 U.S. at 193. But that does not mean that every statutory responsibility of an agency is judicially reviewable. See, e.g., Caterpillar, 409 F.3d at 833; Elgin, 27 F.3d at 294.The EEOC faces other checks: “Congress may always circumscribe agency discretion . . . by putting restrictions in the operative statutes, [and] of course, . . . an agency’s decision to ignore congressional expectations may expose it to grave political consequences.” Lincoln, 508 U.S. at 193.

Moreover, the EEOC does not need court intervention to engage in conciliation. The district court was simply wrong when it stated that “[w]ithout court review th[e] statutory command [to engage in conciliation] is meaningless.” R.86, at 4. The EEOC, on its own, has an enormous incentive to conciliate in good faith. The EEOC relies on conciliation to resolve cases in which it finds reasonable cause—the only cases in which conciliation comes into play, attempting conciliation in 4,000 to 6,000 cases a year. EEOC All Statutes FY 1997–2012, http://eeoc.gov/eeoc/statistics/ enforcement/all.cfm. In fiscal year 2012, for example, nearly 37% of cases in which the EEOC found cause were resolved in conciliation. Id. Even in the cases where conciliation fails, the EEOC brings suit in but a fraction: there were 2,974 failed conciliations in 2011, but only 261 federal suits; in 2012, 2,616 and 122. Id.; see also Litigation Statistics, supra. Therefore, as this Court has observed, the risk that the EEOC will “thwart the conciliation process and as a result thrust additional cases on the federal courts is [at most] a slight one.” Doe, 456 F.3d at 710.

2. An EEOC decision that conciliation failed is not a final agency action, and thus is not reviewable.

Not only does Title VII exude deference to the agency’s decisionmaking on conciliation, but conciliation is also not reviewable because it is not a final agency action. See 5 U.S.C. § 704 (limiting review to only final agency actions). The EEOC’s decision that conciliation has failed is not a final agency action because it is interlocutory in nature—it does not resolve the dispute—and the decision creates no rights or obligations and no legal consequences flow from it. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997);cf. Laber v. Harvey, 438 F.3d 404, 416 (4th Cir. 2006) (“[T]he EEOC has no power to order the private-sector employer to take corrective action even if it finds reasonable cause exists.”).

The Supreme Court has already concluded that an agency’s initiation of enforcement proceedings is not a “final agency action” subject to judicial review. See Standard Oil, 449 U.S. at 241 (concluding that the FTC’s “averment of ‘reason to believe’ that [Standard Oil] was violating the [Federal Trade Commission] Act” was not a final agency action because it “represents a threshold determination that further inquiry is warranted and that a complaint should initiate proceedings”). The Court rejected Standard Oil’s argument that it should be able to challenge the initiation of the action because of the burden of having to defend itself. Id. at 244; see also AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (AT&T could not challenge EEOC decision to bring suit, but “would instead simply [have to] defend itself against the suit”);Circuit City v. EEOC, 75 F. Supp. 2d 491, 509 (E.D. Va. 1999) (“failure of [EEOC] conciliation” is not a final agency action.).

Taken together, Title VII’s text and other indicia of legislative intent compel the conclusion that Congress left presuit conciliation efforts to the EEOC’s discretion and did not intend judicial review of this informal and confidential process. Or at the least, there are substantial grounds for a difference of opinion about this.

D. Deciding whether the EEOC’s conciliation process is subject to judicial review may materially advance the litigation.

As the district court correctly reasoned, if this appeal is not allowed, Mach Mining’s numerous discovery requests pertaining to conciliation will bog this case down and “undoubtedly delay the termination of this litigation.” Certification Order, R.86, at 11. If this Court, however, grants review and “concludes that the EEOC’s conciliation process is not justiciable, this case will proceed exponentially faster absent [Mach Mining’s] numerous conciliation-related discovery requests.” Id.

II. The question of whether deferential or heightened scrutiny applies to EEOC conciliations also meets all the statutory criteria for interlocutory review.

Assuming some review is warranted, what standard governs is a pure legal question on which the circuits are split. The circuit split alone demonstrates that there is substantial ground for a difference of opinion, and whatever standard this Court adopts will affect this litigation’s course because it could affect the class size and the scope of discovery. Deciding now will materially advance the litigation.

The Second, Fifth, and Eleventh Circuits have required courts to evaluate “the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances.” EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981)); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir. 1996). Under this standard, the EEOC must at least: (1) outline to the employer the reasonable cause for its belief that a violation of the law has occurred; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Id.

The Fourth, Sixth, and Tenth Circuits, on the other hand, have adopted a more deferential standard. Under this standard, a court “should only determine whether the EEOC made an attempt at conciliation. The form and the substance of . . . . conciliation[] is within the discretion of the EEOC . . . and is beyond judicial review.” EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); see also EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979) (“The law requires . . . no more than a good faith attempt at conciliation.”); EEOC v. Zia, Co., 582 F.2d 527, 533 (10th Cir. 1978) (“[W]e agree that a court should not examine the details of the offers and counteroffers between the parties[.]”).

And several circuits, including this one, along with the Third, Ninth and D.C. Circuits have not addressed whether the EEOC’s conciliations efforts are judicially reviewable, or—assuming some review—what standard of review applies.

As for what standard should apply, crafting a workable standard would be very difficult. Even a very deferential standard of review where the EEOC simply demonstrates that it made a proposal and the employer rejected it presents problems without providing much benefit. This kind of review risks unnecessarily formalizing the conciliation process, in contravention of the statute’s admonition that conciliation be “informal,” or, in the alternative, as Senator Williams—an opponent of conciliation reviewability—recognized, courts would be reviewing an incomplete record, one that does not accurately represent what took place.[3]

Any further review, on the other hand, would require adding a standard not expressly authorized by the statute. The statute says nothing about reviewing conciliation to ensure that the EEOC engaged in “good-faith” conciliation. As this Court has noted in rejecting an employee good-faith showing, the Supreme Court has “admoni[shed] that no requirements beyond those in the statute should be imposed.” Doe, 456 F.3d at 710. Thus a “good-faith” “gloss on Title VII is confessedly adventurous, and . . . will distress originalists.” Id.

Not only would a good-faith standard add to the statute, but it would also require violation of an express statutory provision. A court cannot review the informal conciliation process under any standard without “us[ing] as evidence in a subsequent proceeding” what was “said or done” during the “informal” conciliation.[4] And, in any event, a “good-faith” standard of cooperation in conciliation would be “difficult . . . to enforce.” Doe, 456 F.3d at 711.

Thus, only the Senator Javits standard will do—the EEOC certifies that it engaged in conciliation and reached no acceptable resolution. This would ensure that the EEOC not shortcut conciliation, but unlike even a so-called deferential review it would not risk complicating litigation and undermining conciliation itself.

III. Immediate appeal should be granted because this case raises an issue of exceptional importance to the government.

The leadership of the EEOC unanimously decided in 2006 to focus the agency’s limited enforcement resources on systemic discrimination. See U.S. EEOC, Strategic Enforcement Plan FY 2013–2016 (explaining the prior priorities), available at http://www.eeoc.gov/eeoc/plan/sep.cfm.

The EEOC is filing fewer federal suits, in part because of this focus on systemic discrimination. For example, in fiscal year 1999, the EEOC filed 438 merits-based suits; by fiscal year 2010 that dropped to 250; and last year there were only 122. Litigation Statistics, supra. The EEOC is using its limited resources to attack the worst kinds of discrimination that affect the largest number of people. And this, the EEOC believes, is one of those cases.

Whether a court or others may disagree with that use of its limited resources, at bottom, that decision is one of prosecutorial discretion. See Elgin, 27 F.3d at 294. A court’s role is to determine whether the EEOC is right in the particular case—did this employer engage in the discrimination that the EEOC alleges? If the EEOC failed to investigate or conciliate and made a mistake, it will lose on the merits, and if the suit is unreasonable, it may even be subjected to fees.

Employers, like Mach Mining, know that they cannot attack the enforcement priorities themselves, but spurred by recent decisions imposing heightened review of conciliation, they have come up with an alternative—treat conciliation not as an opportunity to resolve discrimination complaints, but as a means to defend the suit.

No good can come of countenancing this emerging litigation tactic. It will not encourage good-faith conciliation. It only encourages employers to view conciliation not as dispute resolution but as another front in a litigation battle, where gamesmanship rather than candor is rewarded. See CRST, 679 F.3d at 694 (Murphy, J., dissenting) (searching review of conciliation “reward[ed] CRST for withholding information from the Commission”).

CONCLUSION

Under Title VII, courts are to make de novo determinations on the merits when conciliation is unsuccessful, not delve into a process that is expressly left to the EEOC’s discretion and bears no legal consequence. Review of conciliation provides no benefit, and risks only protracting litigation and undermining conciliation.

The petition for interlocutory appellate review should be granted.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel /s/ Eric A. Harrington

ERIC A. HARRINGTON

LORRAINE C. DAVIS Attorney

Acting Associate General Counsel

EQUAL EMPLOYMENT

CAROLYN L. WHEELER OPPORTUNITY COMMISSION

Assistant General Counsel Office of General Counsel

131 M Street, NE

Washington, DC 20507

(202) 663-4716

eric.harrington@eeoc.gov

[1] In fiscal year 2012, for example, 99,412 discrimination charges were filed, EEOC Charge Statistics FY 1997 through FY 2012, http://eeoc.gov/eeoc/statistics/ enforcement/ charges.cfm, yet the EEOC initiated only 122 merits-based suits, EEOC Litigation Statistics, FY 1997 through FY 2012, http://eeoc.gov/eeoc/statistics/enforcement/litigation .cfm (hereinafter, Litigation Statistics).

[2] Just since the district court decision in EEOC v. CRST, No. 07-95, 2009 WL 2524402 (N.D. Iowa Aug. 13, 2009), which concluded that the EEOC failed to adequately conciliate, defendants in at least 27 Commission cases—not counting this case—have mounted vigorous challenges to conciliation. (A Westlaw search on May 31, 2013 for “conciliation /s EEOC & CRST & da(after 2008)” yields 27 opinions on this topic.)

[3] Senator Williams believed review of conciliation would be problematic because no record would be made of informal conferences, phone calls, and meetings, and the formalized record would not accurately represent what happened. 118 Cong. Rec. 3806 (Feb. 14, 1972).

[4] The conflict between the statute’s confidentiality mandate and judicially-created judicial review is coming to a head in another case in this circuit. See EEOC v. St. Alexius, No. 12-cv-7646 (N.D. Ill.).