be held by the applicant on November 18, 1980, with respect to a charge
of discrimination brought against the respondent. The charging party did
not appear on that date, nor did the respondent bring the requested
information. As a result, the conference did not proceed at that time.
After the respondent had been requested, and again declined, to produce
the requested information, the applicant sent a letter to the respondent
stating that in the event the information was not received within 10
days, compulsory process would be instituted. The respondent in reply
asked that the charge be dismissed because of the charging party's
failure to attend the fact finding conference or, alternatively, that the
applicant issue a subpoena compelling the charging party to appear at such
a conference. The respondent did not produce the information as
The applicant thereafter issued an administrative subpoena, pursuant to
42 U.S.C. § 2000e—8(a), and the respondent filed a petition to
revoke or modify the subpoena, based upon the charging party's failure to
appear at the November 18, 1980, conference. The petition to revoke was
denied by the Acting Director of the Chicago District Office of the
Commission, and this action was filed. After it was learned that the
respondent had appealed the Acting Director's decision, this action was
dismissed with leave to reinstate. It was subsequently reinstated after
the appeal was denied by the full Commission in Washington, D.C.
The respondent has asked that this enforcement action be dismissed,
or, alternatively, that it be allowed to file its answer and
counterclaim, because of the applicant's alleged failure to comply with
the appropriate administrative procedures under Title VII. Specifically,
the respondent contends that the application does not set forth that the
subpoena was issued pursuant to the provisions of Title VII and not for
purposes of harassment. Additionally, the respondent argues that the
applicant is not entitled to enforcement of its subpoena because it did
not issue a subpoena at the respondent's request, as required by law. In
its counterclaim, the respondent in substance seeks issuance of a writ of
mandamus ordering the applicant to issue the requested subpoena, and has
stated in its answer that it is willing to comply with the applicant's
subpoena if the applicant in turn will issue the subpoena on behalf of
The range of issues that can be litigated in an enforcement proceeding
such as this is limited, and the scope of the district court's review is
extremely narrow, because of the government's interest in conducting an
expeditious investigation to carry out its mandated duties. United States
v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950);
Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90
L.Ed. 614 (1946); United States v. Anaconda Co., 445 F. Supp. 486
(D.D.C. 1977). The court need ascertain only whether "the inquiry is
within the authority of the agency, the demand is not too indefinite and
the information sought is reasonably relevant." United States v. Morton
Salt Co., supra, at 652, 70 S.Ct. at 368. In addition, the respondent may
challenge an agency's exercise of its subpoena power on the ground that
it is unreasonable, i.e., unduly burdensome. Oklahoma Press Publishing
Co. v. Walling, supra, at 208, 66 S.Ct. at 505.
The respondent has not contested the relevance of the information
sought by the subpoena nor the scope of the investigation, and it does
not contend that production of the information is unduly burdensome to
it. Rather, the respondent argues that the applicant has not alleged the
necessary elements to justify awarding the relief sought in the
application for enforcement, and that the applicant is without authority
because it has not completed its obligations under the applicable
With respect to the first contention, the respondent has averred that
the application before the court does not allege compliance with
administrative procedures prescribed under Title VII, or that the
investigation was conducted pursuant to Title VII and not for the purpose
of harassment. The respondent, however, has provided no
evidence from which the court could infer that the subpoena was brought
in bad faith or that it does not arise under Title VII and the rules and
regulations promulgated thereunder. In a summary proceeding of this
nature, the burden is on the party contesting enforcement to demonstrate
that grounds for that challenge exist. See Menzines, B., Administrative
Law, § 21.02 (1981). As a result, for purposes of this
proceeding, the application is sufficient on its face.
The second objection raised by the respondent to the enforcement of the
administrative subpoena is that the applicant refused to issue a subpoena
at the respondent's request, in violation of 29 U.S.C. § 161, which
was incorporated by 42 U.S.C. § 2000e—9. Regardless of the
merits of the respondent's argument, which will be discussed later in
this memorandum, the failure of the applicant to issue such a subpoena is
unrelated to the respondent's obligations under an administrative
subpoena. The respondent has not challenged the relevance of the subpoena
or the authority of the agency to conduct the investigation pursuant to
which the subpoena was issued. Indeed, the respondent has stated in its
proposed answer that it will comply with the applicant's subpoena if its
own request for a subpoena is honored.
Under 42 U.S.C. § 2000e—8, the Equal Employment Opportunity
Commission has the authority to subpoena and copy any evidence in
connection with the investigation of a charge of employment
discrimination. The obligation of the respondent to comply with the
administrative subpoena is not dependent upon any factors other than
those due process considerations enunciated above. Because there has been
no other challenge to the propriety of the subpoena, this court has no
other alternative than to enforce it.
Subpoena enforcement proceedings are summary in nature. Federal Trade
Commission v. Texaco, Inc., 555 F.2d 862 (D.C.Cir. 1977). The statute
pursuant to which this action was brought, 29 U.S.C. § 161(2),
specifically provides that enforcement of an administrative subpoena is
begun "upon application," not upon complaint. The respondent has had
ample opportunity to raise any objections through its motion to dismiss.
There is, therefore, no need for the filing of an "answer," and leave to
do so is denied. See Equal Employment Opportunity Commission v. Bay
Shipbuilding Corp., 668 F.2d 304 (7th Cir. 1981).
Of more concern to the court, however, is the respondent's request for
leave to file a counterclaim. Although not articulated as such, the
counterclaim is essentially a complaint for the issuance of a writ of
mandamus directing the Commissioner to issue a subpoena on behalf of the
respondent. This request is based upon 29 U.S.C. § 161, which states
"The [Commission], or any member thereof, shall upon
application of any party to such proceedings,
forthwith issue to such party subpenas requiring the
attendance and testimony of witnesses or the
production of any evidence in such proceeding or
investigation requested in such application."
The issuance of such a subpoena has been interpreted as a mandatory act
not requiring the exercise of any discretion. Lewis v. National Labor
Relations Board, 357 U.S. 10, 78 S.Ct. 1029, 2 L.Ed.2d 1103 (1958);
National Labor Relations Board v. Dahistrom Metallic Door Co., 112 F.2d 756
(2nd Cir. 1940).
The applicant has declined to issue a subpoena requiring the charging
party to appear at the fact-finding conference, based upon Regulation
29 C.F.R. § 1601.16(a), which provides in part:
"Neither the person claiming to be aggrieved, the
person filing the charge on behalf of such person,
nor the respondent shall have the right to demand
that a subpoena be issued."
The applicant contends that despite the language contained in
29 U.S.C. § 161, the legislative history of 42 U.S.C. §
2000e—9 and the nature of the Commission's investigatory function
mandate that that portion of the regulation is an appropriate exercise
of its authority to establish procedural regulations. The applicant has
also cited Equal Employment Opportunity. Commission v. Goodyear Tire &
Rubber Co., Inc., 22 E.P.D. ¶ 30, 614 (N.D. Ohio 1979), which
sustained the validity of the Commission's practice in the face of a
challenge identical to that raised here.
Although the Equal Employment Opportunity Commission may not subvert
the essential meaning of the statutes it is entrusted to administer, its
interpretation of the most effective administration of Title VII is
entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424,
427, 91 S.Ct. 849, 851, 28 L.Ed.2d 158 (1971); American Airlines v.
Secretary of Labor, 578 F.2d 38 (2nd Cir. 1978); Bell v. Brown,
557 F.2d 849 (D.C.Cir. 1977). And administrative regulation will be
overturned only if the party objecting to it demonstrates that the
agency's interpretation is unreasonable and the application lacks a
rational foundation. Gulf Oil v. Hickel, 435, 440 (D.C.Cir. 1970).
The substance of the respondent's argument is that § 1601.16(a) is
improper because it violates the literal language of 29 U.S.C. § 161,
thereby denying the respondent a right to which it is entitled. Title VII
was amended in 1972 to give the Commission the authority to conduct
investigations of charges of employment discrimination and to enforce
orders where it was determined that employment discrimination existed,
1972 U.S.Code Cong. & Admin. News, pp. 2137, 2138. In so doing, Congress
intended to simplify investigations, rather than complicate them with
protracted pleadings and motions, in order to remove burdens that had been
placed upon both the federal courts and the parties. Id. at p. 2146.
To that end, the Commission may conduct a "fact-finding conference,"
which is an optional informal investigation by the Commission to assess
the merits of a charge before commencing formal agency proceedings.
29 C.F.R. § 1601.15(c). In light of the informal nature of the
conference, it is entirely reasonable for the Commission to determine
that its function is best served by issuing subpoenas solely on its own
behalf, and not at the request of the charging party or the respondent.
The validity of the Commission's determination has been upheld in at
least one case. See Equal Employment Opportunity Commission v. Goodyear
Tire & Rubber Co., supra. That decision reached the proper conclusion,
and, accordingly, the respondent is denied leave to file its
The court observed earlier in this memorandum that the respondent
raised no other objections to enforcement of the administrative
proceeding. Since no questions of fact exist, no evidentiary hearing on
the enforcement of the subpoena is required. EEOC v. Bay Shipbuilding
Corp., supra; EEOC v. Quick Shop Markets, Inc., 526 F.2d 802 (8th Cir.
For the reasons set forth in this memorandum:
IT IS HEREBY ORDERED that the respondant is to comply with the subpoena
duces tecum (No. CH81—08) served upon it by the applicant on or
before March 1, 1982;
IT IS FURTHER ORDERED that the respondent's motion to dismiss the
application for the entry of an order to show cause why the subpoena
should not be enforced is denied; and
IT IS FURTHER ORDERED that the respondent's motion for leave to file
its answer and counterclaim is denied.
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