General Telephone Company of the Northwest, Inc. v. Equal Employment Opportunity Commission

PETITIONER:General Telephone Company of the Northwest, Inc.
RESPONDENT:Equal Employment Opportunity Commission
LOCATION:Congress

DOCKET NO.: 79-488
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 446 US 318 (1980)
ARGUED: Mar 25, 1980 / Mar 26, 1980
DECIDED: May 12, 1980

ADVOCATES:
James R. Dickens – on behalf of the Petitioners
Lawrence G. Wallace – on behalf of the Respondents

Facts of the case

Question

  • Oral Argument – March 26, 1980
  • Audio Transcription for Oral Argument – March 26, 1980 in General Telephone Company of the Northwest, Inc. v. Equal Employment Opportunity Commission

    Audio Transcription for Oral Argument – March 25, 1980 in General Telephone Company of the Northwest, Inc. v. Equal Employment Opportunity Commission

    Warren E. Burger:

    We will hear argument next in 79-488, General Telephone Company v. Equal Employment Opportunity Commission.

    Mr. Dickens, you may proceed whenever you are ready.

    James R. Dickens:

    Mr. Chief Justice, and may it please the Court.

    I am James Dickens, of Karr, Tuttle, Koch, Campbell, Mawer & Morrow, in Seattle, and I represent General Telephone, the petitioner herein.

    We have a very narrow procedural question before the Court.

    It is very simple.

    When the Equal Employment Opportunity Commission brings a class action under section 706(f)(1) of the Civil Rights Act, does it have to comply with Rule 23, and we believe it requires a very short answer and that is yes.

    William H. Rehnquist:

    Let me ask you this, if I may, Mr. Dickens.

    Why would EEOC bring a class action?

    It is entitled to sue as a litigant.

    I would have thought it could have gotten virtually all the benefits of its litigant status as a litigant on behalf of the government without denominating its action as a class action.

    James R. Dickens:

    Your Honor, the government has not in the prayer or in the complaint said that it is a class action, but by the scope of the complaint and the relief requested, we believe that it is clear that it is a class action.

    They moved at the trial court level to bifurcate the issue of class liability from the issue of individual damages.

    We then moved to dismiss the class action aspects of the case and they acknowledge that they were seeking relief for a class and that is what they are.

    We believe this is the way the statutory procedure is set up, they are seeking relief on behalf of an individual plus on behalf of the class.

    William H. Rehnquist:

    But by definition there is no individual in any conceivable class that the EEOC could represent other than itself, is there?

    James R. Dickens:

    No, Your Honor, that is where we believe that what Congress has done in accordance with its power to supersede the federal rules in whole or in part, it has declared that the commission is a properly suing party and therefore to that extent they have superseded the requirement of Rule 23(a) that it be a member of the class.

    As a consequence by statute we believe and we contend that Congress has made the commission a properly suing party under Rule 23.

    Having taken that step, they are a properly suing party, it is the same as the Court has held, for example, in Hunt v. Washington State Apple Commission, associations, state agencies and so forth do have standing to bring suit on behalf of a class, even if technically they are not a member of the class.

    Byron R. White:

    Who are all the members of the class?

    James R. Dickens:

    The other members of the class, that would depend on two things.

    First of all, we look to the charging parties.

    We have four charging parties here.

    They are four women employees at one facility out of 116 in one state out of five.

    Now —

    Thurgood Marshall:

    Are they of the same class as the EEOC?

    James R. Dickens:

    I didn’t say that.

    There have been cases in the lower court —

    Thurgood Marshall:

    Doesn’t a class action theory require that they all have the same claim?

    James R. Dickens:

    No, Your Honor, substantially —

    Thurgood Marshall:

    Doesn’t the class action require that all members of the class stand on the same footing?

    James R. Dickens:

    Yes, as a typicality requirement.

    Thurgood Marshall:

    Isn’t that true?

    James R. Dickens:

    Yes, Your Honor, it is.

    Thurgood Marshall:

    Now, who is on the same level as the EEOC?

    James R. Dickens:

    Your Honor, first of all the EEOC is —

    Thurgood Marshall:

    Who is on the same level as the EEOC?

    James R. Dickens:

    Your Honor, the EEOC is on a level by itself.

    It is on the level with the charging parties.

    That is our position, that the typicality requirement, you look to the charging parties.

    The EEOC —

    William H. Rehnquist:

    Is that what Congress said when it authorized the EEOC to bring a suit on its own behalf, that it was to have the same status as the charging parties?

    James R. Dickens:

    Your Honor, we believe that is correct in the sense that it stands in their shoes.

    William H. Rehnquist:

    But is that what Congress said in the statute?

    James R. Dickens:

    Your Honor, the statute itself, as the Court is aware, doesn’t refer to this way or the other in the sense of is the standing the same or otherwise.

    We only have, as we had — and I know the Court has talked about this earlier today — the congressional history kept referring to cease and desist approach versus court enforcement approach and should we follow the normal rules of procedures.

    William H. Rehnquist:

    Well, what about the traditional action that was in existence long before ’72 enabling the Wage and Hour Administrator to sue to enforce practices of employers contrary to the Wage and Hour Fair Labor Standards Act.

    Now, could he have brought a class action?

    James R. Dickens:

    Your Honor, I don’t believe so because I think you have to look at the unique phrasing of the statute and in that situation you normally have authority on behalf of the administrator to bring and file suit on behalf of the government itself and you usually have questions of what is the relief.

    We are not talking about the relief.

    We are talking about the procedure, a procedure which is solely triggered in each case by the individual charging party.

    William H. Rehnquist:

    Well, what about the United States suing under the antitrust laws in a civil action to enjoin violations of the antitrust laws, could it bring that as a class action?

    James R. Dickens:

    Your Honor, the United States can bring an action in its own name for its own injury, but when it brings suit in a normal civil or criminal case it doesn’t usually bring suit on behalf of other private individuals who have been injured and seek to bind the defendant to those individuals if it wins but not have them bound if it loses.

    That is a critical distinction and that is what we have here.

    The government says if you lose, employer, you are bound to the class but if you are saying that in this case we have the same procedure either for a private litigant or for the government under section 706(f) is you trigger with the private individual, you investigate, determination, the commission says either we will let you sue or we will sue, if the individual sues the government admits, rule —

    William H. Rehnquist:

    I am surprised frankly that you concede that the civil actions authorized by Congress to be brought by the EEOC is analogous in any way to Hunt v. Washington State Apple Growers who are all private litigants.

    James R. Dickens:

    Your Honor, in Hunt that was a question of standing with regard to a state agency, the Washington State Apple Commission, and the question was standing by it as a state agency to bring suit on behalf of various growers in the state and this —

    Warren E. Burger:

    They were all members of the agency, were they not?

    James R. Dickens:

    No, Your Honor.

    They had some effect to the extent that they helped select the people who were on the agency, but it was not a private organization.

    Warren E. Burger:

    It was a quasi-public trade agency, it was a trade agency with legislative status, was it not?

    James R. Dickens:

    I don’t deny that, it was and that was part of the approach but the Court did say, as Your Honor is aware, having written the opinion, that it was a state agency and there was standing to bring suit on behalf of the group.

    We are not questioning the standing of the commission to bring suit.

    We are saying that the commission can bring suit and we are not questioning at this time, it is not a question as to the scope of what they can do.

    All we are saying is that when the commission brings suit and says, well, we will bring it instead of you, charging party, and we know you would have to comply with it, we want the same relief, we say they should comply with Rule 23 also.

    Thurgood Marshall:

    Isn’t it up to Congress to decide that?

    James R. Dickens:

    Yes, Your Honor, it is.

    Thurgood Marshall:

    Congress gave them the right, didn’t they?

    James R. Dickens:

    I am not denying they have a right to sue.

    Thurgood Marshall:

    And did they have to go further?

    James R. Dickens:

    Yes, Your Honor, they did.

    Thurgood Marshall:

    Did they have to go further?

    James R. Dickens:

    Yes, Your Honor, they did, if they were going to —

    Thurgood Marshall:

    I said have to.

    I didn’t say did or didn’t.

    James R. Dickens:

    No, Your Honor, I said they did.

    They would have had to go further to exempt the commission from Rule 23.

    Thurgood Marshall:

    Why?

    James R. Dickens:

    Because the general rule is that the rules apply to all civil actions unless otherwise exempted or unless clearly superseded by Congress.

    Rule 1 says it applies.

    Thurgood Marshall:

    Clearly superseded by Congress.

    James R. Dickens:

    That’s correct, Your Honor.

    Thurgood Marshall:

    Congress gave EEOC the right to bring this action on behalf of these people.

    James R. Dickens:

    That’s correct.

    Thurgood Marshall:

    And it didn’t say class action.

    You said it should have said pursuant to Rule 23?

    James R. Dickens:

    No, Your Honor.

    Thurgood Marshall:

    Well, what do you think Congress should have said? Or do you say that Congress should have said anything, that Congress intended Rule 23 to apply?

    James R. Dickens:

    Your Honor, I am saying that if Congress did not intend Rule 23 to apply, they should have said so.

    Thurgood Marshall:

    Why?

    James R. Dickens:

    Because that is the general rule.

    This Court and Congress have promulgated the federal rules.

    They have said in Rule 1 that —

    Thurgood Marshall:

    The Congress did it.

    James R. Dickens:

    Yes, Your Honor, and this Court has authority also under its power in the statute to assist, too.

    Thurgood Marshall:

    The jurisdiction of this Court as well as the other federal courts is determined by guess who?

    James R. Dickens:

    Well, it is determined by the Constitution, Your Honor.

    Thurgood Marshall:

    Day by day by whom?

    James R. Dickens:

    By this Court, Your Honor, and by Congress.

    Thurgood Marshall:

    I thought Congress had that power.

    James R. Dickens:

    Yes, they do also.

    Thurgood Marshall:

    I thought they had the power to decide what jurisdiction this Court had.

    James R. Dickens:

    Yes, they do.

    Thurgood Marshall:

    And they say that the federal courts shall have jurisdiction over actions by the EEOC on behalf of people, period, and that is what the federal government did.

    Now you say you have to add on to that Rule 23.

    James R. Dickens:

    Your Honor, I am saying that Rule 23 applies.

    They also did not mention —

    Thurgood Marshall:

    Can the average citizen file a case who is a member of the class without making it a class action?

    James R. Dickens:

    If he only seeks —

    Thurgood Marshall:

    Can he?

    James R. Dickens:

    Yes.

    Thurgood Marshall:

    Well, that is what they are doing.

    James R. Dickens:

    No, Your Honor, they are not, they are seeking class relief, that is where we have the problem.

    If they only sought relief for the four charging parties, we have no problem, but they are seeking class right relief without the following of the general rule that —

    Thurgood Marshall:

    Which they have a right to do under the act.

    James R. Dickens:

    Your Honor, I respectfully disagree.

    The act doesn’t say that.

    It says that you have a right to file the action.

    If they file the action the private party files the action and want to make it a class action, Rule 23 applies.

    Let me just briefly give the Court a little flavor for the facts.

    James R. Dickens:

    We mentioned some of them.

    We had four women employees in the Beaverton, Oregon facility file charges.

    That is one facility out of 116 and that is in one state out of five that General Telephone operates in.

    The commission investigated and when it concluded it wanted to file a broad-based action and the action is as broad as possible.

    It mentions no specifics, no dates, no individuals, and requests injunction, affirmative action, it requests that people be made whole who are adversely affected, and request back pay.

    We are not in this case questioning the scope of relief that can be granted.

    All we are trying to do quite frankly is avoid litigating this case now, in the future, and in the future.

    I would think — there is no question that the court out our way doesn’t want to try the case two or three times.

    But if the class is not bound by any decision that is reached, they can relitigate.

    Furthermore, this Court has continued to say, in talking about Title VII cases, two principles which we contend are very applicable here.

    First of all, under Title VII it is the courts that are the final authority on Title VII and how it is implemented, and we agree.

    Secondly, this Court said in Rodriguez that the adherence to Rule 23 is indispensable — the requirements of Rule 23.

    We agree, and that is what we are trying to do.

    Now, here is what we have in this case, for example.

    I will give the Court I think a very concrete example of where in this situation the commission is making decisions that Congress intended the courts to make.

    First of all, there is no question that because you allege something to be a class action, that does not make it a class action.

    We have good class action allegations and we have poor class actions.

    In this case, however, the commission has usurped the authority of the court in the class certification area by, number one, it said this is a class action.

    That is normally a determination court makes.

    And number two, it said the scope of the class is this broad.

    Now, we contend that those are requirements that Congress intended the courts have in making that determination.

    John Paul Stevens:

    Do you contend that in addition to certification there should be notice to all the class members?

    James R. Dickens:

    Your Honor, I think that depends upon the type of class action that is certified, whether it is —

    John Paul Stevens:

    Well, it is one in which they ask the defendants to make all those persons adversely affected by unlawful employment practices.

    James R. Dickens:

    Your Honor, I think that notice of some type will have to be given.

    Now, whether it is an opt-in, opt-out, that depends on how the court decides to approach it.

    It probably would be an opt-out type notice that a class action is pending and you may opt out if you do not desire to be bound.

    That is the normal situation I believe in this case.

    But I want to go back to —

    John Paul Stevens:

    How about settlement?

    James R. Dickens:

    Settlement, Your Honor, that is really a big problem quite frankly.

    They say let’s settle and I say, well, I can’t settle with you, some good plaintiff’s lawyer is going to tell me, hey, that’s a great settlement, let’s file a new action on behalf of these people that settled and —

    Byron R. White:

    Under the government’s approach, what about settlement?

    James R. Dickens:

    They are not bound, Your Honor.

    The class members aren’t bound.

    We have a settlement, it doesn’t bind the class member.

    It binds the employer.

    Once again, it is the same thing with a judgment.

    We are bound if we lose, we are bound if we settle.

    The class members, they can either take it or they can go their own merry way and either bring a separate action or whatever.

    William H. Rehnquist:

    Well, what if the EEOC brings an action against your client simply seeking to enjoin practices in violation of the Civil Rights Act of 1964, do you think they have to bring that as a class action?

    James R. Dickens:

    No, I think there is a distinction act not so much under 706 but there can be a distinction, a dichotomy between injunctive relief prospectively and the situation where you are seeking individual may call relief under 706.

    It is in the latter situation where you are seeking to give back pay, you are seeking a seniority spot or slot, that is where I believe we should bind the class.

    William H. Rehnquist:

    But what if they don’t ask for — what if they simply ask for an injunction?

    James R. Dickens:

    If they come in and ask for an injunction, probably they are not binding the class, although if it is under 706 I think it should.

    Now, 707 appears to be more of a situation where traditionally broad ranging injunctive relief under a pattern or practice case come in, but —

    William H. Rehnquist:

    Then it is intentional.

    James R. Dickens:

    Pardon?

    William H. Rehnquist:

    Then it is required to be intentional, too, isn’t it?

    James R. Dickens:

    Yes.

    As the Court is probably aware, it has already heard one Title VII case today, there was a long debate in Congress in 1971 and ’72 over how much authority to give the commission.

    Congress decided that the provisions under 706 permitting individuals to file suit was not working as well as it wanted, so we had the two approaches.

    We had the cease and desist, which would have given them an awful lot of authority similar to the National Labor Relations Board.

    Now, in that case the commission would have received the charge, they would have investigated the charge, they would have adjudicated the charge and would have prosecuted the charge like the board did.

    But Congress didn’t go for that.

    They said no, you’ve got all the regular procedures.

    We are going to be fair to everybody.

    We are going to be fair to the defendants and the employer is going to be fair to the parties.

    Now, we believe that what we are requesting is fully in accord with what Congress intended in granting court enforcement powers to the commission.

    They didn’t give it unlimited authority.

    James R. Dickens:

    They gave it the same authority under 706 as the private individuals.

    Thurgood Marshall:

    Mr. Dickens, on just one point.

    James R. Dickens:

    Yes, sir.

    Thurgood Marshall:

    Could it be that at a later stage in this proceeding you could raise this same point, this class action point?

    James R. Dickens:

    The question of not being able to–

    Thurgood Marshall:

    I mean when it begins to hurt you.

    James R. Dickens:

    Well, Your Honor, I can raise it.

    Let’s assume there is a subsequent lawsuit by a lot of employees —

    Thurgood Marshall:

    All right, or some person already in this one.

    James R. Dickens:

    But, Your Honor, what happens in that case is that I am going to have as many different decisions as I have district courts in our five states that litigated.

    One court may say, well, you’re bound by the prior decision if you accept relief; one court may say, well, you’re not bound.

    They may go a variety of different ways.

    We don’t think that is what the court intended or what this Court wants to do.

    We’ve gone through the various parts of the history.

    There is no question that the courts are split on the matter.

    As I mentioned earlier, we believe that had Congress intended to exempt the commission from Rule 23, it would have done so.

    It is clear that in the legislative history Congress made two specific references and changes in two federal rules.

    It made a change in Rule 53 on special masters to insure that they would be able to handle these cases.

    They made a change in Rule 65.

    What you get out of that, you are well aware that Congress knew about the federal rules and knew how to make exceptions.

    It didn’t make a similar exceptions for the commission under 706 for a class action.

    Now, it did talk about in several cases in the post history and throughout the committee reports that the commission is a properly suing party.

    Under Rule 23 you can bring class action.

    We have all of that.

    Now, when you look at what the commission can do under 706, it is the same as a private party.

    We are not seeking greater relief or anything else.

    The charge is triggered by a private individual in both cases.

    Investigation is the same in both cases.

    The conciliation is the same in both cases.

    The action is the same as a private party with the possible exception that the standing is broadened to include other unlawful practices discovered.

    James R. Dickens:

    We are not questioning the standing as such.

    The relief is the same as under 706(g) in both of the situations.

    Now, when the private party instead brings the suit instead of the commission, all absent members of the class are bound.

    There is no dispute on that.

    John Paul Stevens:

    Mr. Dickens, let me just as you a little bit about how you handle the language of Rule 23(a) that says that one or more members of a class may sue or be sued as representatives of the class.

    Is it your theory that — the EEOC, of course, is not a member of the class but is suing on behalf of the charging parties who are like the representative plaintiffs.

    Is that your theory?

    James R. Dickens:

    That’s correct, Your Honor.

    John Paul Stevens:

    If that is true and your charging parties, say, are charging sex discrimination, say they are four female employees who claim there was discrimination on account of gender.

    Say the commission in its investigation decided they wanted to broaden the case to include some race discrimination charges, could they do so?

    James R. Dickens:

    They could if they discovered discrimination charges during their investigation in addition to sex as part of that investigation under the lower court decisions.

    This Court has never ruled upon that.

    John Paul Stevens:

    Then would the charging parties, if you look at it as the members of the class within the meaning of the rule as the charging parties, could they represent the victims of race discrimination charge was based on gender discrimination?

    James R. Dickens:

    Your Honor, what we are saying is this, is that as far as the typicality requirement, the typicality requirement is coextensive with the standing which the commission is to bring the suit.

    If they have standing to bring it on behalf of sex, fine.

    If they also have standing to bring it on behalf of race, fine.

    The question here isn’t the standing.

    We recognize there are cases saying the commission may have broader standing than the individual charging parties.

    We aren’t denying that.

    That is not an issue here.

    Whatever they have standing to bring, that determines the typicality.

    John Paul Stevens:

    But in answer to Mr. Justice Marshall you in effect said, well, the rules apply unless Congress says they don’t.

    James R. Dickens:

    That’s correct.

    John Paul Stevens:

    But if you just read the rules, they wouldn’t cover this double capacity kind of suit.

    James R. Dickens:

    No, Your Honor —

    John Paul Stevens:

    The rule would really cover maybe a sex discrimination suit or any kind that would be an appropriate class for your charging party.

    James R. Dickens:

    Your Honor, your typicality, your reference is back to number one, the charging parties and, number two, the people who were not charging parties but who may have had claims that were discovered.

    It can be both groups.

    You may have to handle a case somewhat differently but there is no problem.

    We have many class actions where you have different types of claims or you may separate those.

    James R. Dickens:

    We are not contesting that.

    That is not a question.

    I wanted to reserve ten minutes for rebuttal and at this time would like to do that.

    Warren E. Burger:

    You have less than ten left.

    James R. Dickens:

    Fine.

    Warren E. Burger:

    So you may reserve it.

    James R. Dickens:

    Fine.

    Thank you very much.

    Warren E. Burger:

    Mr. Wallace, you have time to open at least.

    Lawrence G. Wallace:

    Thank you, Mr. Chief Justice, and may it please the Court.

    Outside of the context of Title VII, no court has ever held that a suit by the United States or one of agencies to enforce federal Law must proceed as a class action its behalf of the affected members of the public even though there are many contexts in which such suits arise, and the contrary practice has been common place.

    We reviewed in some detail in our brief this Court’s decision in Porter v. Warner Holding Company which involved the rent control legislation of the World War II era.

    Back pay cases are common under the National Labor Relations Act; actions to recover on behalf of an affected group of employees are common under the Fair Labor Standards Act.

    Byron R. White:

    But in those they have express authority to do it, don’t they?

    Lawrence G. Wallace:

    Well, they are —

    Byron R. White:

    I mean on behalf of named parties or unnamed parties?

    Lawrence G. Wallace:

    There is statutory authority, that is correct, but —

    Byron R. White:

    Suppose there weren’t and suppose the United States —

    Lawrence G. Wallace:

    Actually there was not in Porter v. Warner Holding Company.

    Byron R. White:

    Suppose there was only authority to bring suits on behalf of named parties.

    John Paul Stevens:

    Mr. Wallace, there was in Porter v. Warner Holding Company, that was what the argument was about.

    Our other order was construed by the majority to be such statutory authority.

    Lawrence G. Wallace:

    It wasn’t express statutory authority.

    John Paul Stevens:

    Yes, but it was construed to be.

    Lawrence G. Wallace:

    It was interpreted that way.

    John Paul Stevens:

    Suppose the only authority —

    Lawrence G. Wallace:

    There was a lot of emphasis on the equitable power of the court to award the relief.

    Byron R. White:

    Suppose the authority is only to bring suit on behalf of named parties of which there are certainly plenty of examples, do you think the United States under Rule 23 could nevertheless bring a class action?

    Lawrence G. Wallace:

    Well, we haven’t really faced that question.

    Byron R. White:

    You should say no.

    Byron R. White:

    You should say that you are really just exercising a strictly special statutory authority to bring —

    Lawrence G. Wallace:

    There are situations where the United States represents individuals and is a lawyer for individuals under the veterans reemployment law or in cases where there is a state taxation of servicemen, and I am not sure that the United States could not move under Rule 23 in those circumstances, if it saw fit to.

    Byron R. White:

    So you think it might then be a real representative under Rule 23?

    Lawrence G. Wallace:

    I don’t know.

    Byron R. White:

    I thought your argument was that it wasn’t.

    Lawrence G. Wallace:

    It really is functioning as counsel for named persons.

    It is not suing in its own name under those statutes.

    When the cases reach this Court the name of the United States is not a party.

    The United states is serving as counsel for individuals that it is authorized by statute to represent to court in those situations.

    Byron R. White:

    You’re saying that the naming parties are bringing a class action.

    Lawrence G. Wallace:

    In situation for example where we decide not to petition for certiorari we typically notify then that they have thier right to hire their own councel and do so if they want to proceed with the case and though we have determined that we will not go ahead with it the case is really thier case under those statutes.

    It is quite different from the kind of situation here where Congress has authorized to to courts on or the Attorney General to sue in their own capacity to enforce the law.

    Thurgood Marshall:

    Mr. Wallace as I understand your position, even if they grant you the right to bring the suit in the name of the EEOC and even if you have the right to bring the suit in the name of the EEOC on behalf of the for name complainer, you don’t have the right to also ask for relief for the whole class?

    Lawrence G. Wallace:

    Unless we tend to comply with — we meet the standards of rule 23, I believe that it is their position.

    Thurgood Marshall:

    What is wrong with it?

    Lawrence G. Wallace:

    Well, I think most of that we will have to await tomorrow but that is —

    Warren E. Burger:

    We will resume at 10 o’clock.