Opinion
8:01CV165.
November 27, 2001
MEMORANDUM AND ORDER
Before the court is Filing no. 5, the "Motion to Dismiss or in the Alternative for Summary Judgment" filed by the Defendant, the Equal Employment Opportunity Commission (EEOC). In Filing no. 5, the EEOC asks this Court to dismiss the action for lack of subject matter jurisdiction and failure to state a claim, or in the alternative, to grant summary judgment in the EEOC's favor. Pursuant to NELR 7.1(a) and (b), the parties have submitted briefs and indices of evidence for the court's consideration. (Filing nos. 6, 9.) For the reasons identified herein, the action is hereby dismissed.
BACKGROUND
The Plaintiff, Woodmen of the World Life Insurance Society (Woodmen), is a Nebraska corporation which maintains its principal place of business in Omaha, Nebraska. (Filing no. 9, Cummins aff. ¶ 6.) According to the Complaint, Woodmen is "a nonprofit, fraternal benefit society engaged in the business of offering a complete line of life insurance, annuity and fraternal benefits, such as youth and senior camps." (Filing no. 1, ¶ 1). The Defendant, the EEOC, is a federal agency which administers federal employment discrimination laws.
On approximately October 8, 1999, the Philadelphia District Office of the EEOC received a completed and verified form titled "Allegations of Employment Discrimination" from former Woodmen employee Louella Rollins (Rollins). (Filing no. 6, Ex. B, B-1.) The form, identified by the EEOC as an "intake questionnaire," included Rollins' handwritten account of employment discrimination by Woodmen. (Filing no. 6, Ex. B, B-1.) The intake questionnaire identified the last date of discrimination as February 11, 1999. (Filing no. 6, Ex. B, B-1.) The Philadelphia District Office then forwarded the intake questionnaire to the Denver District Office of the EEOC. (Filing no. 6, Ex. A.)
Rollins signed the form under penalty of perjury. (Filing no. 6, Ex. B, B-6.)
The EEOC Denver District Office is responsible for investigating discrimination charges in the midwest, including Nebraska. (Filing no. 6, Flores aff. ¶ 4.) Accordingly, the EEOC Denver District Office docketed the intake questionnaire as "Charge Number 320-A0-0132." (Filing no. 9, Ex. 1, A-2.) On November 17, 1999, the EEOC Denver District Office mailed Woodmen a document titled "Notice of Charge of Discrimination." (Filing no. 6, Ex. C.) The document states that "[y]ou are hereby notified that a charge of employment discrimination has been filed against your organization . . ." and identifies Title VII of the Civil Rights Act of 1964 as the basis of the charge. (Filing no. 6, Ex. C.) Under a section titled "circumstances of alleged violation," however, the form notifies Woodmen of a "Charge of Discrimination to follow in the near future." (Filing no. 6, Ex. C.)
On January 14, 2000, the EEOC Denver District Office received a typewritten "Charge of Discrimination" from Rollins which again described Woodmen's allegedly discriminatory conduct. The EEOC identifies the January 14, 2000, document as the "perfected charge" of discrimination. (Filing no. 6, Flores afff. ¶ 5, E.) The EEOC then forwarded a copy of the January 14, 2000 charge to the Nebraska Equal Opportunity Commission (NEOC). (Filing no. 6, Ex. F.) In a response dated February 9, 2000, the NEOC refused to docket the charge as "not timely under state statute." (Filing no. 6, Ex. G.)
Despite the NEOC's refusal to docket the charge, the EEOC sent a second "Notice of Charge of Discrimination" to Woodmen requesting information and a statement of position. (Filing no. 6, Ex. D.) Woodmen refused to produce the requested information, arguing the January 14, 2000 "perfected charge" of discrimination was untimely under 42 U.S.C. § 2000e-9.
42 U.S.C. § 2000e-9 requires complainants to file discrimination charges within 300 days of alleged discriminatory conduct.
The EEOC then issued an administrative subpoena for the requested information. See 42 U.S.C. § 2000e-9, 29 C.F.R. § 1601.16. Woodmen sought agency revocation of the subpoena, which the EEOC denied. Then, instead of waiting for the EEOC to enforce the subpoena in court, Woodmen brought the present action to quash the subpoena. Woodmen argues that the January 14, 2000, charge is untimely and therefore divests the EEOC of statutory jurisdiction to issue the subpoena. The EEOC filed the instant "Motion to Dismiss or in the Alternative for Summary Judgment" (Filing no. 5), and subsequently instituted subpoena enforcement proceedings in the United States District Court for the District of Colorado.
Woodmen is entirely silent regarding the earlier-filed "intake questionnaire." The EEOC, however, contends that the intake questionnaire was sufficient to constitute a proper and timely "charge" of discrimination under Title VII.
STANDARD OF REVIEW
A motion pursuant to Fed.R.Civ.P. 12(b)(1) challenges the actual existence of the Court's subject matter jurisdiction. The party asserting jurisdiction, here Woodmen, has the burden of proving that jurisdiction is proper. VS Ltd. P'ship v. Dep't of Hous. and Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (citation omitted). Although dismissal will not be granted lightly, Wheeler v. St. Louis Southwestern Ry. Co., 90 F.3d 327, 329 (8th Cir. 1996), "[t]he district court has the authority to consider matters outside the pleadings on a motion challenging subject matter jurisdiction under [Rule] 12(b)(1)." Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468, 470 (8th Cir. 1993).
ANALYSIS
In Title VII, Congress sought to "create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. Gen. Servs. Admin., 425 U.S. 820, 829 (1976). To achieve the goals of Title VII, Congress vested the EEOC with broad investigatory powers. EEOC. v. Shell Oil Co., 466 U.S. 54, 88 (1984);EEOC. v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987). Title VII grants the EEOC access to "any evidence of any person being investigated or proceeded against that relates to unlawful employment practices . . . relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a).
To obtain evidence relevant to the charge under investigation, the EEOC has the power to issue administrative subpoenas and the discretion to revoke them. See 42 U.S.C. § 2000e-9; 29 U.S.C. § 161; 29 C.F.R. § 1601.16. Administrative subpoenas are not, however, self-enforcing. See Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 195 (1946). To obtain enforcement in the face of noncompliance, the EEOC " may utilize the procedures of section 11(2) of the National Labor Relations Act, as amended, 29 U.S.C. § 161(2), to compel enforcement of the subpoena." 42 U.S.C. § 2000e-9; 29 C.F.R. § 1601.16(c) (emphasis added).
In this case, Woodmen could have waited until the EEOC sought enforcement of the subpoena, if ever, via the method identified in the administrative and judicial scheme of Title VII. See, e.g., In re Ramirez, 905 F.2d 97, 99 (5th Cir. 1990); General Fin. Corp. v. FTC, 700 F.2d 366, 368 (7th Cir. 1983). Waiting for enforcement is the usual course, as courts typically dismiss pre-enforcement challenges to administrative subpoenas because an adequate remedy at law is available if, and when, the agency files an enforcement action. See, e.g., Reisman v. Caplin, 375 U.S. 440, 446 (1964); In re Ramirez, 905 F.2d 97, 100 (5th Cir. 1990); Bell Fourche Pipeline Co. v. United States, 751 F.2d 332, 334 (10th Cir. 1984); Wearly v. FTC, 616 F.2d 662, 665-667 (3d Cir. 1980);Atlantic Richfield Co. v. FTC, 546 F.2d 646, 648-49 (5th Cir. 1977); Blue Ribbon Quality Meats, Inc. v. FTC, 560 F.2d 874, 876 (8th Cir. 1977);Anheuser-Busch, Inc. v. FTC, 359 F.2d 487, 489 (8th Cir. 1966). Nevertheless, Woodmen filed the present suit.
Now that the EEOC seeks enforcement in a different federal court, Woodmen argues this Court should retain jurisdiction and quash the EEOC subpoena. Woodmen contends that the pending enforcement action cures any jurisdictional defects present when this suit was first filed because the enforcement action now renders Woodmen's declaratory judgment suit "ripe" for adjudication. Although Woodmen's suit can no longer be characterized as "pre-enforcement," this action is still not fit for judicial review.
As a threshold matter, the EEOC controls when and where to pursue subpoena enforcement. Title VII authorizes institution of enforcement proceedings only upon application by the administrative agency, not the employer. See 29 U.S.C. § 161(2); 29 C.F.R. § 1601.16; see also Mobil Exploration Producing U.S., Inc., v. Dep't of Interior, 180 F.3d 1192, 1200 (10th Cir. 1999) (concluding that similar statutory language "succinctly implies that only the district court in which the action is filed has jurisdiction" over the subpoena enforcement). Thus, absent enforcement proceedings filed by the EEOC, Title VII itself does not grant federal jurisdiction to review EEOC subpoenas. See Bell Atlantic Cash Balance Plan v. EEOC, 976 F. Supp. 376, 383 n. 19 (E.D.Va. 1997) (noting that title VII provides review only in three specific circumstances).
Section 11(2) of the National Labor Relations Act governs enforcement of subpoenas issued by the EEOC. Section 11(2) permits "any United States district court within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business," to enforce the subpoena "upon application by the [EEOC]." 29 U.S.C. § 161(2) (emphasis added).
Despite lack of a specific statute authorizing extra-enforcement review, Woodmen asserts this Court still has jurisdiction and the remedial power to quash the subpoena. To support its assertion, Woodmen cites only the general Federal Question Statute and the Declaratory Judgment Act. See 28 U.S.C. § 1331; 28 U.S.C. § 2201 -2202. Woodmen's Complaint (Filing no. 1) does not mention the Administrative Procedure Act (APA) as a basis for review.
Certain non-APA suits challenging agency action are cognizable in federal court. The exceptional case is Leedom v. Kyne, 358 U.S. 184, 188-90 (1958). See Nebraska State Legislative Bd., United Transp. Union v. Slater, 245 F.3d 656 (8th Cir. 2001) (recognizing Leedom as "`sanctioning [review] in a very narrow situation.'" (citation omitted)). In Leedom, neither the APA nor any other statute provided a cause of action to the plaintiffs. Nevertheless, the Supreme Court premised review on the "statutory provisions governing the general jurisdiction" and enjoined the agency from acting in clear "excess of its delegated powers and contrary to a specific provision "in its governing statute." Id. at 185, 188. In this case, however, Woodmen's suit does not present the narrow circumstances necessary to sustain jurisdiction underLeedom.
First, in Leedom it was unclear how, if ever, the plaintiffs would have obtained judicial review of clearly unauthorized agency action. See General Fin. Corp., 700 F.2d at 370. Here, Woodmen simply has to contest the EEOC subpoena in Colorado to obtain judicial review. See Id. Second,Leedom involved the agency's clear derogation of a statutory mandate where the "impropriety of the Board's action was conceded . . . ." Id. In this case, any impropriety by the EEOC is far from obvious. The parties dispute whether the Rollins charge of discrimination was untimely filed. If the EEOC's argument and evidence is credited, the Rollins allegations are facially valid and timely filed. Accordingly, the EEOC is not "flouting a clear legislative directive, as the Labor Board was doing inLeedom v. Kyne." Id.; see also Bell Atlantic, 976 F. Supp. at 382-83 (noting that Leedom is inapplicable where invalidity is not clearly apparent); cf. EEOC v. Tire Kingdom, Inc., 80 F.3d 449, 451-52 (11th Cir. 1996) (concluding that untimely filing does not divest EEOC of power to investigate ADEA violations).
Absent a specific review statute or the narrow circumstances authorizing review in Leedom, all declaratory and injunctive lawsuits seeking review of agency action are "subject to an implicit limitation."Lane v. United States Dept. of Agric., 187 F.3d 793, 795 (8th Cir. 1999) ( citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 (1993)). Because declaratory and injunctive remedies are discretionary, courts must determine whether the issues presented are "ripe" for judicial review. Lane, 187 F.3d at 795. In practice, ripeness requires a showing of harm and the absence of an adequate remedy at law. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967) (noting issues must be fit for review and the parties must suffer hardship if review is withheld); Lane, 187 F.3d at 795 (identifying ripeness "factors"); John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 147-152 (1998) (recognizing that a suit brought under the court's equity jurisdiction requires proof of irreparable harm and lack of an adequate remedy at law); 5 U.S.C. § 702, 704 (granting review to parties aggrieved by "final agency action for which there is no other adequate remedy in a court . . . .").
To meet these standards, Woodmen contends that venue in Colorado is improper and complains about the cost of litigating in such an "improper" forum. Woodmen further argues that this action must be "ripe" for adjudication because the EEOC has now instituted enforcement proceedings in Colorado.
First, even assuming that venue is more appropriate in Nebraska, the expense of litigating in Colorado does not constitute sufficient harm to Woodmen to justify this Court taking jurisdiction. Woodmen apparently had no qualms about litigating in Nebraska before litigation was necessary, and it is well established that "mere litigation expense, even substantial and unrecoupable costs, does not constitute irreparable injury." Fed. Trade Comm'n v. Standard Oil Co. of California, 449 U.S. 232, 244 (1980) (citation omitted). Defending an enforcement action is a necessary cost attendant to Title VII, and Woodmen has not demonstrated how litigation in Colorado adversely affects its daily business. Lane, 187 F.3d at 795 (recognizing "direct and immediate impact" on daily business as a ripeness factor); cf. Mississippi Chem. Corp. v. EEOC, 786 F.2d 1013, 1018 (11th Cir. 1986) (maintaining multiple records is typical and required by Title VII).
Improper venue is a waivable objection which does not, by itself, create the hardship necessary to warrant jurisdiction. Accordingly, this Court declines to decide whether venue is improper in Colorado. The Court agrees with the EEOC that Woodmen's "remedy is to argue improper venue in the Colorado action." (EEOC Reply Brief at 1 n. 1.)
Second, Woodmen is not faced with a serious dilemma. The classic dilemma justifying review under the Declaratory Judgment Act appears inAbbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967) (Abbott Labs). In Abbott Labs, complying with a final FDA rule immediately subjected the plaintiffs to significant economic costs. Refusing to comply immediately subjected the plaintiffs to potentially serious criminal and civil penalties. Woodmen's situation is different. Under Title VII, any order to comply with a subpoena comes after the opportunity for judicial review. "The subpoenaed party faces actual harm only after a successful enforcement action has been brought and, as a result of such action, the subpoenaed party has been ordered to comply." Shea v. Office of Thrift Supervision, 934 F.2d 41, 46 (3d Cir. 1991); see also Georator Corp. v. EEOC, 592 F.2d 765, 767-68 (4th Cir. 1979) (noting that only the district court may fix liability).
Third, Woodmen has not alleged or shown how the proceedings contemplated by Title VII are inadequate. Even if the Colorado court limits the scope of subpoena enforcement proceedings, Woodmen may again raise its untimeliness defense if and when the EEOC or Rollins chooses to pursue a discrimination lawsuit. In this case, the steps in Title VII are sufficient to protect Woodmen's rights, and exercising jurisdiction here simply impedes the process. See Lane, 187 F.3d at 795; see also Minnesota Citizens Concerned For Life v. FEC, 113 F.3d 129, 132 (8th Cir. 1997) (stating that a declaratory judgment action which deprives the agency of "enforcement flexibility" is not a constraint "lightly imposed.").
Finally, Woodmen's claim that the enforcement proceeding renders this action reviewable ignores the distinction between an extra-enforcement action for declaratory and injunctive relief and an enforcement proceeding explicitly required by statute. Under Title VII, the statutory enforcement proceeding is the very way in which the EEOC's "administrative decision is formalized," and only then are "its effects felt in a concrete way by the challenging parties." Abbott Labs, 387 U.S. at 148-49. While the institution of the enforcement proceeding arguably constitutes final agency action, Woodmen's suit still lacks the remaining elements necessary to justify pre-enforcement and extra-enforcement review. Lane, 187 F.3d at 795.
The same conclusion applies when Woodmen's claims are evaluated under the APA. Section 704 of the APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Section 704 provides a general cause of action to parties aggrieved by agency behavior when no other adequate avenue for relief exists. In this case, however, Woodmen possesses a perfectly adequate means of contesting the validity of the EEOC administrative subpoena. As noted by Judge Posner in Abbs v. Sullivan, 963 F.2d 918, 927 (7th Cir. 1992), "[a] challenge to administrative action . . . falls outside the grant of jurisdiction in section 10(c) of the Administrative Procedure Act when the only harm the challenger seeks to avert is the inconvenience of having to go through the administrative process before obtaining a definitive declaration of his legal rights." Here, there is no showing that the applicable administrative and judicial review provisions are inadequate, or that the harm of complying with those provisions generates the harm necessary to sustain an extra-enforcement lawsuit.
Although Woodmen never mentions the Administrative Procedure Act (APA) in its Complaint (Filing no. 1), Woodmen cites the APA in its responsive brief to avoid the EEOC's sovereign immunity defense. Woodmen argues that the "[APA] clearly provides for actions such as this . . . ." (Woodmen Resp. Brief. at 6.) See, e.g., Randall v. United States, 95 F.3d 339, 346 (4th Cir. 1996) (noting "[f]ederal jurisdiction may be sustained on the basis of a statute not relied upon or alleged in the pleadings. Thus, if the allegations in Plaintiff's complaint are sufficient to support jurisdiction under a provision . . . such as the APA, this court is authorized to examine the case under that provision.")
Furthermore, even if Woodmen's suit were fit for review, it would still be subject to discretionary dismissal. Suits seeking declaratory and injunctive relief are equitable in nature. Abbott Labs, 387 U.S. at 155. When "asked to employ its historic powers as a court of equity," a federal court has the authority to decline jurisdiction. Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 120 (1981) (Brennan, J., concurring). In this case, dismissal serves principles of comity and efficient judicial administration.
Although federal courts generally favor the first-filed suit in situations of concurrent federal jurisdiction, Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1005 (8th Cir. 1993), dismissal of the first-filed suit is occasionally appropriate to avoid intrafederal duplicative litigation. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (advocating avoidance of duplicative litigation); see also Missouri v. Prudential Health Care Plan, Inc., 259 F.3d 949, 952 (8th Cir. 2001) (dismissing first-filed action); EEOC v. Univ. of Pennsylvania, 850 F.2d 969, 977 (3d Cir. 1988) (same). Here, Woodmen's declaratory judgment raises a "red flag" indicative of a preemptive strike. Northwest Airlines, 989 F.2d at 1007. Dismissal properly avoids the potential for inconsistent decisions between different federal courts located in different federal circuits. Moreover, dismissal conserves judicial resources and avoids legitimizing the practice of filing anticipatory challenges to administrative action.Id.; see also Prudential Health Care, 259 F.3d at 956.
CONCLUSION
THEREFORE, IT IS ORDERED:
Woodmen's action to quash the EEOC's subpoena is not fit for review. Woodmen has not demonstrated the requisite harm or absence of a remedy at law necessary to warrant jurisdiction. Even if jurisdiction were proper, discretionary dismissal would still be appropriate to conserve judicial resources and avoid duplicative intrafederal litigation.
(1) That Filing no. 5, the "Motion to Dismiss or in the Alternative for Summary Judgment" filed by the Defendant, the Equal Employment Opportunity Commission, is granted; and
That the above-designated action is hereby dismissed without prejudice.