United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 30, 1999 Decided August 24, 1999
No. 98-5245
Equal Employment Opportunity Commission,
Appellee/Cross-Appellant
v.
Lutheran Social Services,
Appellant/Cross-Appellee
---------
Consolidated with
98-5401
Appeals from the United States District Court
for the District of Columbia
(No. 98ms00133)
Jonathan P. Graham argued the cause for appellant/cross-
appellee. With him on the briefs was Dan S. Sokolov.
John F. Suhre, Attorney, Equal Employment Opportunity
Commission, argued the cause for appellee/cross-appellant.
With him on the briefs was Philip B. Sklover, Associate
General Counsel.
Before: Silberman, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Dissenting opinion filed by Circuit Judge Silberman.
Tatel, Circuit Judge: In this proceeding to enforce an
administrative subpoena, the Equal Employment Opportunity
Commission seeks access to a report prepared by attorneys
for appellant Lutheran Social Services summarizing the re-
sults of an investigation into alleged violations of Title VII.
The EEOC argues that Lutheran waived its claim that the
report is protected by the attorney-client and work product
privileges by failing to comply with a regulation requiring
subpoena recipients to present any objections to the Commis-
sion within five days. We conclude that under the particular
circumstances of this case Lutheran's failure to present its
objections pursuant to the regulation cannot be viewed as a
waiver of its attorney-client and work product privileges. In
addition, because Lutheran's lawyers conducted their investi-
gation "in anticipation of litigation," we conclude that the
entire report is fully protected by the work product privilege.
I
In July 1996, the board of Lutheran Social Services became
aware of two anonymous memoranda accusing its president of
creating a hostile work environment for female employees.
Responding to these accusations, Lutheran placed the presi-
dent on administrative leave and hired the law firm of
Williams & Connolly to investigate the accusations and advise
Lutheran as to its potential liability. Williams & Connolly
interviewed sixteen employees, two former employees, and
two former board members, advising each interviewee that
Lutheran had retained the firm to investigate certain charges
and asking each to keep the content of the interview confiden-
tial. Based on these interviews, Williams & Connolly pre-
pared a report for Lutheran's board that summarized and
categorized the interviews (without revealing who made which
statements) and assessed Lutheran's potential Title VII liabil-
ity. Only one copy of the report was made. Board members
were permitted to read the report only in the presence of
Lutheran's permanent outside counsel, Matthew Watson, and
were required to return the copy to him. Shortly after
receiving the report, the board requested the president's
resignation.
Almost ten months later, the EEOC began investigating
sex discrimination charges filed by two former Lutheran
employees. The Commission's investigator asked Lutheran
to produce several documents, including the Williams & Con-
nolly report. Lutheran turned over everything the Commis-
sion requested except the law firm's report, claiming it to be
protected by the attorney-client privilege. Following an ex-
change of letters between the investigator and Watson, in
which Watson reiterated Lutheran's claim of privilege, the
EEOC issued a subpoena demanding production of the report
by February 13, 1998. Addressed to Lutheran's Human
Resources Director, the subpoena was dated January 30 and
sent on that date by certified mail.
On about February 9, Lutheran retained Williams & Con-
nolly to represent it in connection with the subpoena. In a
February 13 letter advising the EEOC investigator that
Lutheran had retained the firm, a Williams & Connolly
associate stated that "the subpoena is improper and our
client, therefore, does not intend to comply with it." Letter
from Oliver Garcia, Williams & Connolly, to Aaron C. Blight,
EEOC (Feb. 13, 1998). The letter concluded: "I would be
happy to discuss this matter with you further." Id. Accord-
ing to the associate, the investigator later responded by
telephone, informing him that he was referring the matter to
EEOC trial counsel but promising to contact the associate
before taking further action. See Garcia Decl. p p 2, 5. The
investigator neither recalls nor denies making such a promise.
See Blight Decl. p 3.
Shortly thereafter, the EEOC filed this enforcement action
in the United States District Court for the District of Colum-
bia. The Commission alleged that Lutheran had waived its
attorney-client privilege by failing to comply with EEOC
procedures for challenging subpoenas. Codified at 29 C.F.R.
s 1601.16(b)(1) (1998), those procedures provide that "[a]ny
person served with a subpoena who intends not to comply
shall petition the issuing Director ... to seek its revocation
or modification. Petitions must be mailed ... within five
days ... after service of the subpoena." The EEOC promul-
gated this regulation pursuant to section 710 of the Civil
Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972, Pub. L. No. 92-261, s 7, 86 Stat.
103, 109 (1972) (codified at 42 U.S.C. s 2000e-9 (1994)), which
grants the Commission all investigative powers possessed by
the National Labor Relations Board under section 11 of the
National Labor Relations Act, 29 U.S.C. s 161 (1994). Sec-
tion 11 of the NLRA in turn provides that a party receiving
an NLRB subpoena may within five days file a petition with
the Board seeking revocation or modification of the subpoena
on the grounds that it either "does not relate to any matter
under investigation" or "does not describe with sufficient
particularity the evidence whose production is required." 29
U.S.C. s 161(1). On the merits, the EEOC argued that the
attorney-client privilege does not protect statements made by
employees with interests adverse to their employer. The
Commission also argued that the work product privilege,
which protects only documents prepared "in anticipation of
litigation," Fed. R. Civ. P. 26(b)(3), was equally inapplicable
because at the time Williams & Connolly prepared the report,
the prospect of Title VII litigation was "too speculative."
In defense, Lutheran challenged the legality of the EEOC's
section 1601.16(b)(1) procedures, arguing that the statute's
use of the word "may" prohibited the Commission from
adopting mandatory procedures. In the alternative, Luther-
an argued that under the particular circumstances of this
case--the Commission knew of Lutheran's objections and
those objections were based on the attorney-client and work
product privileges--its failure to follow the Commission's
regulations should not be considered a waiver. Responding
to the Commission's claim that the report was not privileged,
Lutheran said that the report revealed confidential communi-
cations between the law firm and Lutheran, that it reflected
the attorneys' "mental processes," and that the attorneys had
prepared it in anticipation of litigation by Lutheran's presi-
dent and employees.
Without explanation and without reviewing the report, the
district court directed Lutheran to produce the report, but
allowed it to "redact any portion ... that constitutes legal
advice or conclusions." EEOC v. Lutheran Soc. Servs., No.
98ms133 (D.D.C. June 11, 1998). Both sides appeal.
II
Lutheran first argues that the section 1601.16(b)(1) proce-
dures violate Title VII. Title VII confers on the EEOC the
same subpoena authority the National Labor Relations Act
gives to the National Labor Relations Board. See 42 U.S.C.
s 2000e-9. Section 11 of the NLRA provides in full:
Within five days after the service of a subpena [sic] on
any person requiring the production of any evidence in
his possession or under his control, such person may
petition the Board to revoke, and the Board shall revoke,
such subpena [sic] if in its opinion the evidence whose
production is required does not relate to any matter
under investigation, or any matter in question in such
proceedings, or if in its opinion such subpena [sic] does
not describe with sufficient particularity the evidence
whose production is required.
29 U.S.C. s 161(1). According to Lutheran, by making the
subpoena review process mandatory (i.e., requiring that a
party objecting to the subpoena "shall petition" and that
petitions "must be mailed ...within five days," see 29 C.F.R.
s 160.16(b)(1)), the regulation violates the statute's plain lan-
guage, which uses optional terms (i.e., "such person may
petition the Board to revoke"). Lutheran also points out that
unlike section 11 of the NLRA, the regulation covers any
objection, not just those based on relevance or particularity.
Given that "Congress has directly spoken to the precise
question at issue," argues Lutheran, "that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress." Chev-
ron U.S.A. Inc. v. Natural Resources Defense Council, 467
U.S. 837, 842-43 (1984). We need not resolve Lutheran's
Chevron argument, however, because whatever authority the
EEOC has under the statute, we conclude that it has no
power to strip federal courts of authority to determine wheth-
er the subpoena the agency seeks to enforce is lawful.
At the outset, we note that the EEOC conceded at oral
argument that compliance with its section 1601.16(b)(1) proce-
dures is not jurisdictional, and for good reason: "[E]xhaus-
tion is a jurisdictional prerequisite," we have held, "[o]nly
when Congress states in clear, unequivocal terms that the
judiciary is barred from hearing an action until the adminis-
trative agency has come to a decision." I.A.M. Nat'l Pension
Fund Benefit Plan C v. Stockton Tri Indus., 727 F.2d 1204,
1208 (D.C. Cir. 1984); see also id. at 1209 ("Congress knows
how to withdraw jurisdiction expressly when that is its pur-
pose.") (internal quotation and citation omitted). An example
of just such a clear and unequivocal statement appears in
section 313 of the Federal Power Act:
No proceeding to review any order of the Commission
shall be brought by any person unless such person shall
have made application to the Commission for a rehearing
thereon....
.... No objection to the order of the Commission
shall be considered by the court unless such objection
shall have been urged before the Commission in the
application for rehearing unless there is reasonable
ground for failure so to do.
16 U.S.C. s 825l (1994); see Platte River Whooping Crane
Critical Habitat Maintenance Trust v. FERC, 876 F.2d 109,
112-13 (D.C. Cir. 1989) ("[T]he requirements imposed by the
[Federal Power Act] are strict and go well beyond judicially-
imposed standards requiring the exhaustion of administrative
remedies prior to the exercise of federal court jurisdic-
tion.... Neither FERC nor this court has authority to
waive these statutory requirements."). In contrast, section
11 of the NLRA provides only that parties "may petition the
[Commission] to revoke" a subpoena on the basis of relevance
and particularity; nowhere does section 11 even imply, much
less expressly state, that courts lack jurisdiction to hear
objections not presented to the Commission.
Agreeing that section 1601.16(b)(1) does not deprive this
court of jurisdiction to consider Lutheran's privilege argu-
ments and arguing that his position "does not implicate the
court's basic authority," our dissenting colleague (but not the
EEOC) nonetheless asserts that section 1601.16(b)(1) prohib-
its us from considering Lutheran's arguments because the
regulation is "mandatory." Dissenting Op. at 4, 2. If "man-
datory" means prohibiting courts from hearing issues not
presented to the agency, however, we fail to understand how
a regulation can be "mandatory" without being jurisdiction-
al--or at least the functional equivalent. Indeed, the import
of the cases cited by the dissent is that mandatory language
prohibits courts from considering arguments precisely when
the language is jurisdictional. See Weinberger v. Salfi, 422
U.S. 749, 766 (1975) (distinguishing between "statutorily spec-
ified jurisdictional prerequisite[s]" and "the judicially devel-
oped doctrine of exhaustion"); I.A.M. Nat'l Pension Fund,
727 F.2d at 1209 ("Congress knows how to withdraw jurisdic-
tion expressly when that is its purpose") (internal quotation
and citation omitted); cf. Glisson v. United States Forest
Serv., 55 F.3d 1325, 1327 (7th Cir. 1995) (holding that the
"inflexible command of [the] statute" required exhaustion
without deciding whether the command was jurisdictional).
And in the absence of a statute clearly depriving courts of
jurisdiction to hear issues not first presented to the agency,
we know of no principle of administrative law--Chevron or
otherwise--that would permit an agency to do so on its own.
Contrary to our dissenting colleague's suggestion, nothing
in Darby v. Cisneros, 509 U.S. 137 (1993), supports the novel
proposition that an agency may, without clear statutory au-
thority, prevent Article III courts from hearing issues not
first presented to the agency. See Dissenting Op. at 4-5. In
Darby, a statute (section 10(c) of the APA) expressly empow-
ered agencies to require exhaustion. Here, in contrast, the
APA is inapplicable, and the governing statute (section 11 of
the NLRA) delegates no such authority to the EEOC. And
Darby's holding--that courts may not impose exhaustion
requirements in addition to those contemplated by an agency
exercising its statutory authority under section 10(c) of the
APA--hardly supports our dissenting colleague's theory that
an agency may, without congressional authorization, prevent
Article III courts from considering issues not first presented
to the agency. As Darby itself put it: "Of course, the
exhaustion doctrine continues to apply as a matter of judicial
discretion in cases not governed by the APA," 509 U.S. at
153-54 (emphasis added)--meaning that courts may exercise
their traditional authority to hear issues not presented to the
agency if the circumstances surrounding noncompliance with
agency procedures are sufficiently compelling. In McCarthy
v. Madigan, moreover, the Supreme Court said quite clearly:
"Where Congress specifically mandates, exhaustion is re-
quired. But where Congress has not clearly required exhaus-
tion, sound judicial discretion governs." 503 U.S. 140, 144
(1992) (citations omitted); see also id. ("[E]xhaustion is 'a rule
of judicial administration,' ... and unless Congress directs
otherwise, rightfully subject to crafting by judges") (quoting
Patsy v. Board of Regents of Fla., 457 U.S. 496, 518 (1982)
(White, J., concurring in part)). Indeed, notwithstanding our
dissenting colleague's characterization of section 1601.16(b)(1)
as "non-jurisdictional but mandatory," he stops short of in-
sisting that there are no situations in which we may excuse
non-compliance, recognizing that courts still enjoy authority
"to consider certain traditional limited exceptions such as
futility or agency bias." Dissenting Op. at 4.
Nor is there any basis for the proposition that our authori-
ty to excuse non-compliance means that section 1601.16(b)(1)
has "no legal bite," that we have "no obligation to respect
agency rules," or that "an employer [under] subpoena ...
could simply ignore the agency." Dissenting Op. at 4, 3. To
the contrary, section 1601.16(b)(1)'s mandatory language cre-
ates a strong presumption that issues parties fail to present
to the agency will not be heard in court. See United States v.
L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) ("Sim-
ple fairness ... requires as a general rule that courts should
not topple over administrative decisions unless the adminis-
trative body not only has erred but has erred against objec-
tion made at the time appropriate under its practice.").
Hardly a "distressing ... misuse of judicial power," Dissent-
ing Op. at 4, our holding is simply that no categorical bar
prevents us from considering whether the facts surrounding
Lutheran's failure to file a section 1601.16(b)(1) petition con-
stitute circumstances sufficiently extraordinary to defeat this
presumption, a task to which we now turn.
III
We think the circumstances of this case, when considered
in combination, excuse Lutheran's failure to present its
attorney-client and work product objections to the Commis-
sion. To begin with, instead of stating that a subpoena
recipient has five days to object or even pointing the recipient
to section 1601.16(b)(1), the subpoena (attached as an appen-
dix to this opinion) says only that it "is issued pursuant [to]
(Title VII) 42 U.S.C. s 2000e-9." Had Lutheran's Human
Resources Director, the subpoena's addressee, looked up
section 2000e-9, it would have referred her to section 161 of
Title 29 (section 11 of the National Labor Relations Act).
Had she then looked up section 161, she would have learned
that Lutheran "may" petition the EEOC if it objects to the
subpoena on the basis of either relevance or particularity.
Nothing on the face of the subpoena or in the statutes to
which it referred would have led her to believe that Lutheran
must petition the EEOC within five days, particularly given
that Lutheran's objection rested not on relevance or particu-
larity, but on the attorney-client and work product privileges.
Cf. Randolph-Sheppard Vendors of America v. Weinberger,
795 F.2d 90, 108 (D.C. Cir. 1986) (exhaustion required, in
part, because there was "no evidence ... of neglect on the
part of the agency").
To be sure, had Lutheran's permanent counsel, with whom
the EEOC investigator had been dealing, learned of the
subpoena within the five-day period (the record is silent on
this issue) and had he shepardized section 2000e-9, he would
have unearthed 29 C.F.R. s 1601.16(b)(1). But because the
subpoena itself did nothing to alert the recipient to the
Commission's procedures--indeed, by referring the recipient
to section 11 of the NLRA, the subpoena may well have
misled her into believing that Lutheran had no obligation to
file a petition with respect to objections not based on rele-
vance or particularity--Lutheran's failure to file a petition
was hardly unreasonable.
Even the EEOC investigator seems to have been unaware
of Lutheran's section 1601.16(b)(1) obligation. In response to
Williams & Connolly's February 13 letter claiming the sub-
poena to be "improper," the EEOC investigator never said,
"Sorry, you're too late. 29 C.F.R. s 1601.16(b)(1) requires
your client to have filed a petition with the District Director
within five days of receiving the subpoena." Instead, accord-
ing to the Williams & Connolly lawyer's affidavit, the investi-
gator agreed to "keep [the lawyer] posted on the EEOC's
decision and to contact [the lawyer] before taking further
action." Garcia Decl. p 5. True, the investigator does not
remember making such a statement, but neither does he deny
it, much less claim that he told the Williams and Connolly
lawyer about the section 1601.16(b)(1) procedures. Not until
the EEOC filed this enforcement action did it mention section
1601.16(b)(1).
Moreover, this is not a case where a subpoena recipient
raises an issue for the first time in court. To the contrary,
beginning with the very conversation in which the EEOC
investigator first requested the report, Lutheran repeatedly
claimed the document to be privileged. See Letter from
Aaron Blight, EEOC, to Matthew Watson, June 26, 1997.
Moreover, the EEOC official with whom the regulation re-
quired Lutheran to file its petition, the District Director, was
aware of the nature of Lutheran's objections. Signed and
issued by that very District Director, the subpoena expressly
states that the Commission seeks a copy of the report "refer-
enced in previous correspondence." It was in that "previous
correspondence" that Lutheran's permanent counsel detailed
his client's view that the report was privileged.
For all of these reasons, we think it would be inappropriate
to view Lutheran's failure to file a section 1601.16(b)(1)
petition as a waiver of its privilege claim. So concluding,
moreover, would do little if any damage to the integrity of the
Commission's section 1601.16(b)(1) procedures. As the Su-
preme Court has held, "The basic purpose of the exhaustion
doctrine is to allow an administrative agency to perform
functions within its special competence." Parisi v. Davidson,
405 U.S. 34, 37 (1972) (citing McKart v. United States, 395
U.S. 185, 194 (1969)). No such benefit would flow from
requiring exhaustion in this case, for the EEOC has no
expertise with respect to the attorney-client and work prod-
uct privileges. Indeed, expertise as to those privileges re-
sides in the federal courts. See Fed. R. Evid. 501 (The
question of privilege is to be "governed by the principles of
the common law as they may be interpreted by the courts of
the United States in the light of reason and experience.").
Therefore, even if Lutheran had filed a section 1601.16(b)(1)
petition, we would not defer to the EEOC's disposition of
Lutheran's privilege claims. See Director, Office of Thrift
Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307
(D.C. Cir. 1997) (according no deference to agency's views on
issues related to work product privilege). This case is thus
quite different from the more typical situation where a sub-
poena recipient's objections rest on relevance or particularity,
the two factors listed in 29 U.S.C. s 161. In such cases,
exhaustion is important because the EEOC possesses consid-
erable expertise with respect to relevance and particularity,
expertise to which we would comfortably defer. See id.
(agency's interpretation of relevance of subpoena deserves
deference because "[t]he scope of the investigation ... is very
much dependent on the agency's interpretation and adminis-
tration of its authorizing substantive legislation").
Conceding that it lacks relevant expertise in this case, the
Commission argues that requiring exhaustion is nevertheless
appropriate because it gives the commissioners an opportuni-
ty to revoke or modify subpoenas, thus conserving judicial
resources. This is a worthy goal, but in this case the
Commission's General Counsel, charged by Title VII with
conducting litigation on the agency's behalf, see 42 U.S.C.
s 2000e-4(b) (1994), could have sought Commission clearance
before filing this action. Indeed, if the Commission wishes to
ensure (regardless of the actions of its General Counsel) that
it has an opportunity to review all subpoena enforcement
issues before they get to court, it can easily do so by adding
to the face of the subpoena, which already contains a "Notice
to Person Subpoenaed," something like the following:
If you have any objections to this subpoena, you must
include them in a petition filed with the issuing official
pursuant to 29 C.F.R. s 1601.16(b)(1). Petitions must be
mailed within five days of receiving this subpoena. Fail-
ure to follow these regulations may result in loss of any
ability to raise such objections in court.
Cf., e.g., Federal Trade Commission, Form 68-B, Subpoena
Duces Tecum (Sept. 1992) (notifying recipients that they have
twenty days to petition Commission Counsel to limit or quash
the subpoena).
Our conclusion that Lutheran has not waived its privilege
claims is reinforced by two additional considerations. First,
the attorney-client and work product privileges play an im-
portant role in Title VII's enforcement scheme. As the
Supreme Court has repeatedly emphasized, "[c]ooperation
and voluntary compliance were selected [by Congress] as the
preferred means for achieving th[e] goal [of eliminating those
practices and devices that discriminate on the basis of race,
color, religion, sex, or national origin]." Alexander v.
Gardner-Denver Co., 415 U.S. 36, 44 (1974); see also Ford
Motor Co. v. EEOC, 458 U.S. 219, 228-29 (1982). The EEOC
has likewise pointed to the importance of voluntary compli-
ance. See, e.g., 29 C.F.R. s 1601.24(a) ("Where the Commis-
sion determines that there is reasonable cause to believe that
an unlawful employment practice has occurred or is occur-
ring, the Commission shall endeavor to eliminate such prac-
tice by informal methods of conference, conciliation and per-
suasion. [42 U.S.C. s 2000e-5] In conciliating a case in which
a determination of reasonable cause has been made, the
Commission shall attempt to achieve a just resolution of all
violations found and to obtain agreement that the respondent
will eliminate the unlawful employment practice and provide
appropriate affirmative relief."). Voluntary compliance with
the law often depends on sound legal advice; sound legal
advice in turn often depends on the attorney-client and work
product privileges. See In re Sealed Case, 146 F.3d 881, 884
(D.C. Cir. 1998). Here, Lutheran did precisely what Con-
gress contemplated: It undertook an investigation to assess
its compliance with Title VII. What we said in In re Sealed
Case applies here as well:
[L]acking resources to pursue every suspected violation
of federal law, the government must depend on effective,
conscientious private lawyers to help clients comply vol-
untarily. The government might gain some short term
benefit by obtaining documents in this case, but the long-
range consequences could be quite damaging. Weaken-
ing the ability of lawyers to represent clients at the pre-
claim stage of anticipated litigation would inevitably re-
duce voluntary compliance with the law, produce more
litigation, and increase the workload of government law-
enforcement agencies.
In re Sealed Case, 146 F.3d at 887.
Second, rejecting the Commission's waiver claim will not
deny it access to any sources of possible evidence of discrimi-
nation. The Commission can easily obtain whatever evidence
of discrimination appears in the lawyers' witness summaries
by interviewing the witnesses itself. The only information
that the Commission would be unable to obtain from other
sources is Williams & Connolly's legal advice. As we have
just said, however, allowing access to such advice is inconsis-
tent with Title VII's enforcement scheme.
In sum, under the combined circumstances of this case, we
think it both unfair and unwise to penalize Lutheran for
failing to file a section 1601.16(b)(1) petition. Nothing in the
cases cited by the dissent from other circuits requires a
different result. See Dissenting Op. at 7-8. In Maurice v.
NLRB, for example, the Fourth Circuit did not hold--as the
EEOC urges us to hold here--that a subpoena recipient had
waived her objections by raising them for the first time in
federal court. See 691 F.2d 182 (4th Cir. 1982). Rather, the
court instructed the recipient to return to the agency--relief
neither sought by the EEOC in this case nor appropriate in
view of the fact that the Commission's brief makes it quite
clear that it considers Lutheran's privilege claims meritless.
See id. at 183; Athlone Indus., Inc. v. Consumer Prod. Safety
Comm'n, 707 F.2d 1485, 1489 (D.C. Cir. 1983) ("The desirabil-
ity of avoiding ... unfairness, the purely legal nature of the
issue presented, and the likely futility of further resort to the
Commission, all operate to convince us that it would be
unwise to adhere to the general rule of exhaustion in this
case.").
The dissent also cites Hedison Mfg. Co. v. NLRB, where
counsel promised an administrative law judge that he would
produce the subpoena recipient but then failed to do so at the
hearing arranged for that purpose. See 643 F.2d 32, 34 (1st
Cir. 1981). Far from erecting the jurisdictional barrier our
dissenting colleague reads into the case, the court held that
the company, by playing "a game of hare and hounds" with
the agency, id. (quoting United States v. Bryan, 339 U.S. 323,
331 (1950)), had failed to show "at least a modicum of candor
and good faith" and thus had no excuse for failing to exhaust.
Id.
In NLRB v. Frederick Cowan & Co., the court likewise
found that the company's actions exhibited "an utter abandon-
ment ... of normal agency procedures." 522 F.2d 26, 28 (2d
Cir. 1975). No abandonment occurred in this case. To the
contrary, Lutheran presented its objections to the investiga-
tor, and its counsel told us at oral argument that his client
would have preferred to present its objections to the Commis-
sion rather than endure lengthy and costly litigation in feder-
al court.
Finally, in EEOC v. Cuzzens, Inc., the subpoena recipient
ignored administrative remedies and argued for the first time
in district court that Title VII did not apply to it. See 608
F.2d 1062, 1063 (5th Cir. 1979) (per curiam). Although the
Fifth Circuit held that the recipient's failure to present the
objection to the Commission barred it from raising the objec-
tion as a defense to the enforcement action, id. at 1064, the
court made clear not only that this exhaustion requirement
was not absolute--it was inapplicable to "objections based on
constitutional grounds," id.--but also that nothing in its deci-
sion prevented Cuzzens from making the identical objection
in district court once the case ripened from an EEOC investi-
gation into an actual dispute on the merits. Not so here. If
the EEOC obtains access to the report, Lutheran's attorney-
client and work product privileges will be lost forever.*
IV
This brings us to the merits of Lutheran's privilege claim.
Without examining the report in camera and apparently
limiting itself to determining whether the report was protect-
ed by the attorney-client privilege, the district court ordered
disclosure of the document with legal advice and conclusions
redacted. Lutheran argues, as it did in the district court,
that the entire report is protected because, in addition to
containing legal advice, it summarizes confidential client-to-
lawyer communications. Describing the report as also reveal-
ing the questions the lawyers asked, the answers the wit-
nesses gave, and the lawyers' summary and categorization of
the information received, Lutheran argues that the entire
report is also protected by the work product privilege because
it reveals Williams & Connolly's "mental impressions, conclu-
sions, opinions, or legal theories." Fed. R. Civ. P. 26(b)(3).
The EEOC disagrees, claiming with respect to the attorney-
client privilege that statements made by employees with
__________
* We fail to see the relevance of Swidler & Berlin v. United
States, 524 U.S. 399 (1998). See Dissenting Op. at 8 n.3. Rejecting
a balancing test, Swidler & Berlin held that the attorney-client
privilege survives the death of the client. That has nothing to do
with the issue in this case, i.e., whether a subpoena recipient's
failure to file a section 1601.16(b)(1) petition prevents it from raising
its objections in court--objections which in this case happen to rest
on the attorney-client privilege.
adverse interests to their employer are unprotected, and with
respect to the work product privilege that the report was not
prepared in anticipation of litigation. Because we find the
work product privilege dispositive, we begin with it.
To resolve the parties' competing work product claims, we
ask " 'whether, in light of the nature of the document and the
factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of
the prospect of litigation.' " Senate of Puerto Rico v. United
States Dep't of Justice, 823 F.2d 574, 586 n.42 (D.C. Cir. 1987)
(quoting Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure s 2024 (1970)). In In re Sealed
Case, we held that for a document to meet this standard, "the
lawyer must at least have had a subjective belief that litiga-
tion was a real possibility, and that belief must have been
objectively reasonable." 146 F.3d at 884. Applying that test
to the facts of that case, we found that documents prepared
by counsel for the Republican National Committee in re-
sponse to news reports questioning the legality of its relation-
ship with another organization, the National Policy Forum,
had been prepared in anticipation of litigation even though
the Federal Election Commission had yet to file a formal
complaint. We relied on an affidavit from an RNC lawyer
that stated, "I was ... aware that the chairman of the FEC
had announced that the FEC was investigating cases involv-
ing allegations of illegal contributions in U.S. elections.... I
was further aware that the [National Policy Forum] had been
criticized in the press as an organization used by the RNC to
evade federal campaign finance laws, and thus I had a
significant concern that litigation over this issue was proba-
ble." Id. at 886. Another RNC lawyer stated, "[F]rom the
time the NPF was formed, I and the RNC were concerned
about the substantial likelihood of potential litigation...."
Id. at 886.
Lutheran faced a virtually identical situation. Like the
RNC, it had not been sued at the time it hired outside
counsel. Also like the RNC, Lutheran hired counsel because
it feared litigation. In her affidavit, a Lutheran board mem-
ber stated, "To prepare for the possibility of a lawsuit by the
president, the Board wanted a careful investigation and legal
analysis of the allegations against him...." LePard Decl.
p 4. She further "agreed" with Williams & Connolly that the
investigation "should also be conducted in anticipation of a
suit being brought on grounds of a hostile work environment
for women." Id. p 5. The Williams & Connolly lawyer to
whom the Board first spoke said he advised the Board that
"the investigation [into hostile work environment] should also
be conducted in preparation for a discrimination suit brought
by a disgruntled current or former employee." Graham Decl.
p 2. In terms of demonstrating a genuine fear of litigation,
we see no significant difference between these affidavits and
the affidavits in In re Sealed Case.
Offering no evidence to counter Lutheran's affidavits, the
EEOC hypothesizes that Lutheran undertook its investiga-
tion in the "ordinary course of business," which, the Commis-
sion says, includes looking into whether the organization was
complying with the relevant laws regarding discrimination in
the workplace. See EEOC Br. at 27. Even if accurate, the
Commission's recharacterization of Lutheran's motivation
does nothing to undermine Lutheran's contention that it
genuinely feared litigation. Indeed, fear of EEOC or
employee-initiated litigation may well be the very reason why
an employer hires outside counsel to determine whether it is
complying with Title VII.
Turning to the objective prong of the work product test,
the EEOC argues that Williams & Connolly could not have
prepared its report "in anticipation of litigation" because the
litigation Lutheran feared was "too remote and speculative."
EEOC Br. at 24. But the prospect of litigation in this case
was no less speculative than in In re Sealed Case. There, we
found that news reports hinting at illegal behavior coupled
with the RNC's fear of litigation provided sufficient objective
support for the lawyer's assertion that they had prepared the
documents "in anticipation of litigation." See 146 F.3d at
885-86, 888. Here too evidence suggests that litigation lay
just over the horizon. Lutheran had documents in which its
own employees (perhaps future plaintiffs) directly accused the
president of creating a hostile work environment. That those
documents were anonymous and the charges nonspecific does
nothing to undermine the objective reasonableness of Luther-
an's fear of litigation. And just as in In re Sealed Case,
where the RNC's fear of litigation was eventually confirmed
when the FEC filed suit, Lutheran's fear was confirmed when
two of its employees filed EEOC charges based on allegations
contained in the anonymous memoranda.
Finally, no compelling need requires disclosure of the
Williams & Connolly report. As we have noted, the Commis-
sion can obtain all of the factual information it seeks by
conducting its own interviews. Although it would certainly be
easier for the Commission to see the law firm's report, the
work product privilege's very purpose is to prevent a party
from "perform[ing] its functions ... on wits borrowed from
the adversary." Hickman v. Taylor, 329 U.S. 495, 516 (1947)
(Jackson, J., concurring).
Because the EEOC does not challenge Lutheran's claim
that the report reveals its lawyer's mental impressions, we
find the entire report protected by the work product privi-
lege. We therefore have no need to consider whether the
attorney-client privilege also protects the report. This case is
remanded to the district court to dismiss the Commission's
enforcement action.
So ordered.
APPENDIX
[Appendix not available electronically.]
Silberman, Circuit Judge, dissenting: The majority ex-
tends its magic wand over the parties and waives appellant's
obligation to exhaust its administrative remedies. I believe
that the court lacks the unbridled discretion it asserts and, in
any event, that appellant is not entitled to such favored
treatment.
Title VII of the Civil Rights Act, passed 35 years ago, was
amended in 1972 to give the EEOC the exact investigative
powers previously conferred 52 years ago on the NLRB.
Accordingly, 29 U.S.C. s 161(1) applies to subpoenas issued
as part of the investigative process by both the NLRB and
the EEOC. Although it is set forth in the majority opinion, I
quote it again:
Within five days after the service of a subpena [sic] on
any person requiring the production of any evidence in
his possession or under his control, such person may
petition the Board to revoke, and the Board shall revoke,
such subpena [sic] if in its opinion the evidence whose
production is required does not relate to any matter
under investigation, or any matter in question in such
proceedings, or if in its opinion such subpena [sic] does
not describe with sufficient particularity the evidence
whose production is required.
The NLRB issued a regulation interpreting or implement-
ing that statutory provision in 1947. See 12 Fed. Reg. 5657,
5660 (1947). The current version of the regulation provides
that "[a]ny person served with a subpoena ..., if he or she
does not intend to comply with the subpoena, shall, within 5
days after the date of service of the subpoena, petition [the
regional director, or if during the hearing, the administrative
law judge] in writing to revoke the subpoena." 29 C.F.R.
s 102.31(b) (1999).
Not surprisingly in 1972, the same year Title VII was
amended to give the EEOC the investigatory powers of the
NLRB, the EEOC issued a virtually identical regulation, see
37 Fed. Reg. 9218 (1972), the current version of which
provides that "[a]ny person served with a subpoena who
intends not to comply shall petition the issuing Director or
petition the General Counsel, if the subpoena is issued by a
Commissioner, to seek its revocation or modification. Peti-
tions must be mailed to the Director or General Counsel, as
appropriate, within five days ... after service of the subpoe-
na." 29 C.F.R. s 1601.16(b)(1) (1999).
The appellant makes much of the distinction between the
statute's "may" and the regulation's "shall," but I think that
is a tempest in a teapot. The statute could not have used
"shall" because it does not include the qualifying phrase
"person ... who intends not to comply"; it speaks to every-
one served with a subpoena. Obviously, it would make no
sense for Congress to tell someone who is served and has no
objection to producing information that he or she shall peti-
tion to revoke. The most reasonable interpretation of the
statute, accordingly, is that it is equivalent to the regulation--
that the process is obligatory if one wishes to object to a
subpoena. There can be no other reason why Congress
imposed a five-day limitation.1 It certainly would have been
senseless for Congress to provide that a party may petition
within five days, but that nothing is to stop the party from
petitioning after the five days. The permissive "may" was
used, not to create a five-day period that any party can
disregard at will, but merely to make clear--quite sensibly--
that objections are optional. And if a party who objects to a
subpoena must petition the agency to revoke within five days,
it follows that the exhaustion requirement is mandatory. The
majority would do well to bear in mind that the provision in
question is part of the NLRB's (and the EEOC's) investiga-
tive powers, and it is certainly understandable that Congress
__________
1 Lutheran suggests that the five-day limitation means instead
that the agency is prohibited from seeking enforcement of the
subpoena until the revocation period expires. But setting a time
limit within which objections are to be filed by recipients would be a
positively bizarre way of limiting the agency's power. The argu-
ment also assumes that the agency might actually attempt to
enforce the subpoena within the five-day period, which strikes me
as ridiculous since subpoena recipients typically are given more
than five days within which to produce the requested material
(Lutheran was given nearly two weeks).
should wish such agencies to be armed against efforts to
frustrate and delay their investigation. If an employer
against whom such a subpoena is issued could simply ignore
the agency or say, "I'll see you in court," the investigative
process would be significantly impaired.
If the statute is to be honored, the district court should not
entertain, in a subpoena enforcement proceeding, a respon-
dent's objection that should have been raised first before the
agency.2 That is simply another way of saying the exhaustion
requirement is mandatory. See McCarthy v. Madigan, 503
U.S. 140, 144 (1992) ("Where Congress specifically mandates,
exhaustion is required.") (emphasis added). To be sure, the
EEOC did not argue that the statute created a jurisdictional
bar to the district court's consideration of appellant's claim,
unquestionably because s 161(1) is not phrased in terms of
jurisdiction. Cf. Weinberger v. Salfi, 422 U.S. 749, 756 (con-
struing a statutory exhaustion requirement that operates by
divesting district courts of jurisdiction except in cases of final
agency decisions). And we have said that exhaustion is a
jurisdictional prerequisite "[o]nly when Congress states in
clear, unequivocal terms that the judiciary is barred from
hearing an action until the administrative agency has come to
a decision," I.A.M. National Pension Fund Benefit Plan C v.
Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984)--a
requirement that s 161(1) may well not meet (despite its
obvious implication). But although it does not speak to our
jurisdiction, the statute seems to me to impose a mandatory
obligation on targets of subpoenas.
The majority not only conflates a statutory provision limit-
ing our jurisdiction with a statute or regulation governing
parties' behavior, it also ignores the distinction between a
mandatory exhaustion requirement created by statute or
regulation, and the judicially-created common law doctrine of
exhaustion. See Weinberger, 422 U.S. at 765-66 (distinguish-
__________
2 It is rather misleading to ask as the majority does whether
the appellant has "waived" its attorney-client privilege; the ques-
tion is better phrased as whether the appellant forfeited its claim by
not raising it in a timely fashion before the agency.
ing between "statutorily specified jurisdictional prerequi-
site[s]" and "the judicially developed doctrine of exhaustion").
The latter is a judge-made rule that admits of various pruden-
tial exceptions; the former is not. See I.A.M. National
Pension Fund, 727 F.2d at 1208; Glisson v United States
Forest Service, 55 F.3d 1325, 1327 (7th Cir. 1995) ("But to the
extent that [exhaustion] is a doctrine of federal common law
rather than the inflexible command of a statute, it is to be
applied with due regard for its underlying purpose and for
considerations that may in particular cases counsel for a
waiver."). It is relatively open to us to relax the rigors of
exhaustion doctrines we ourselves have created, but a statuto-
ry or authorized regulatory command is entitled to more
respect--even if not phrased in judicial jurisdictional terms.
It may well be (there are really no cases in point) that a non-
jurisdictional but mandatory exhaustion requirement allows a
court to consider certain traditional limited exceptions such as
futility or agency bias. But to call the exhaustion require-
ment non-jurisdictional--the majority's extensive argument to
that effect is really a red herring--is not to allow a court to
treat it as if it had no legal bite. The majority seems to be
under the impression that it has no obligation to respect
agency rules unless we are told by Congress that we lack
jurisdiction to do otherwise. In my view, this case does not
implicate the court's basic authority, still less its jurisdiction,
but rather illustrates the more familiar, but nevertheless
distressing, misuse of judicial power to override rather than
defer to a reasonable agency rule. We are "prohibited," as
the majority puts it, from hearing appellant's argument not
because we lack power to do so but because we are a court of
law.
Even if the statute itself were thought ambiguous as ap-
plied to this case, the NLRB-EEOC regulations--interpreta-
tions of s 161(1) that deserve deference, see Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984)--unquestionably make exhaustion obligatory and clear-
ly cover all potential defenses such as attorney-client privi-
lege. The Supreme Court has recognized that agencies may
promulgate regulations mandating exhaustion which are to be
enforced by courts, see Darby v. Cisneros, 509 U.S. 137, 154
(1993), and surely a reasonable regulatory interpretation or
elaboration of a statutory exhaustion requirement qualifies as
such. I do not see how the majority justifies ignoring this
regulation's obligatory nature. That is equivalent to holding
the mandatory exhaustion regulation unenforceable and re-
placing it with a judge-made, equity-inspired, permissive doc-
trine. As this court asked once before: "If an agency rule
requires, without exception, that a party must take an admin-
istrative appeal before petitioning for judicial review, on what
basis may a court excuse non-compliance?" Marine Mam-
mal Conservancy, Inc. v. Department of Agric., 134 F.3d 409,
411 (D.C. Cir. 1998). My answer is: certainly not the basis
made up to fit this case.
The majority sideslips Darby's recognition that agencies
may impose regulatory exhaustion requirements by limiting
Darby to situations where the agency's regulatory exhaustion
requirements are authorized by statutes that speak in juris-
dictional terms. But Darby expressed no such limitation; the
Darby Court was not even concerned with limiting the power
of agencies to create exhaustion requirements; it was con-
cerned with limiting the power of courts to do so. Nor does
Darby confuse (as does the majority) the concept of mandato-
ry exhaustion requirements imposed on parties with statutory
provisions that strip courts of jurisdiction. Thus the Court
concluded that s 10(c) of the APA "has limited the availability
of the doctrine of exhaustion of administrative remedies to
that which the statute or rule clearly mandates." 509 U.S. at
146 (emphasis added).
Rather inconsistently the majority insists that it shows no
disrespect for the agency's rule. Instead, it is simply correct-
ing the agency's "error." See Maj. Op. at 8-9, quoting
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,
37 (1952) ("[C]ourts should not topple over administrative
decisions unless the administrative body ... has erred.").
But the majority never identifies the error it is targeting, and
it should be obvious that it simply does not like the rule.
Even assuming the exhaustion requirement were not man-
datory, in which case we could freely "balance the interest of
the individual in retaining prompt access to a federal judicial
forum against countervailing institutional interests favoring
exhaustion," McCarthy, 503 U.S. at 146, I do not think it
would be appropriate to excuse Lutheran's default. Since
Lutheran has not claimed one of the recognized exceptions to
the exhaustion requirement, see id. at 146-49--the majority
takes a different tack. It reasons instead that, since the issue
of the existence or scope of attorney-client and work product
privilege is not one that is committed to agency "expertise,"
there is no basis for enforcing the exhaustion requirement
here. That conclusion rests on the erroneous premise that
the only real purpose of an exhaustion requirement is "to
allow an administrative agency to perform functions within its
special competence." Parisi v. Davidson, 405 U.S. 34, 37
(1972). But the leading exhaustion case cited by Parisi,
quoted by the majority, is McKart v. United States, 395 U.S.
185 (1969), and McKart spoke of exhaustion as having various
purposes, including enabling the agency to create a factual
record, to apply its expertise, and to exercise its discretion.
See id. at 194 (observing that the exhaustion doctrine's fur-
therance of executive and administrative autonomy is "partic-
ularly pertinent where the function of the agency and the
particular decision sought to be reviewed involve exercise of
discretionary powers" or application of special expertise).
More recently in McCarthy, the Court again said that "[e]x-
haustion concerns apply with particular force when the action
under review involves exercise of the agency's discretionary
power or when the agency proceedings in question allow the
agency to apply its special expertise." McCarthy, 503 U.S. at
145 (emphasis added).
When a target of an NLRB or EEOC subpoena formally
asserts an attorney-client or work product privilege pursuant
to the regulation, we should expect, and EEOC's counsel
confirmed at oral argument, that the matter is escalated
above the litigation attorney to a more senior official of the
agency--perhaps the general counsel himself. And, as we
should also expect, that might well lead to a modification (or
even abandonment) of the agency's subpoena. It is hard to
imagine any agency decisions more laced with discretion than
such investigative and prosecutorial determinations. Cf.
Heckler v. Chaney, 470 U.S. 821, 830-35 (1985) (discussing
discretionary nature of agency decisions not to undertake
enforcement action). That we would not defer to such a
decision, once made, does not detract at all from the impor-
tance of permitting the agency to resolve the question in the
first instance. I cannot understand the majority's disposition
to dismiss this sort of agency discretion as beneath our notice,
let alone respect.
Understandably reluctant to be specific about the precise
nature of the sweeping discretionary power it arrogates to
itself, the majority does not make reference to doctrines of
equity. Yet the judicial posture the majority assumes goes
far beyond even the balancing of institutional and individual
interests that traditionally accompanies non-mandatory com-
mon law exhaustion. Its judgment seems ultimately to rest
on little more than its determination that the "combined
circumstances of this case" make it "unfair" to hold that
Lutheran has forfeited its privilege claim, which I suppose
translates into a new doctrine of judicial will, i.e., it pleases us
not to support the EEOC's exhaustion rule.
But since the provision of Title VII and the EEOC regula-
tion at issue in this case simply followed the NLRA and
Labor Board regulation, s 1601.16(b)(1) perforce must be
interpreted and applied just as we would treat the NLRB's
counterpart regulation (and vice versa). And the Board's
exhaustion requirement has long been enforced by the federal
courts, without any reference to the majority's broad notions
of "equity." See, e.g., Maurice v. NLRB, 691 F.2d 182, 183
(4th Cir. 1982); Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 34
(1st Cir. 1981); NLRB v. Frederick Cowan & Co., 522 F.2d
26, 28 (2d Cir. 1975). In the only circuit case on point, the
counterpart EEOC exhaustion requirement was similarly en-
forced. See EEOC v. Cuzzens of Georgia, Inc., 608 F.2d
1062, 1063-64 (5th Cir. 1979) (per curiam); see also EEOC v.
County of Hennepin, 623 F. Supp. 29, 31-32 (D. Minn. 1985);
EEOC v. Roadway Express, Inc., 569 F. Supp. 1526, 1528-29
(N.D. Ind. 1983). The majority would distinguish these cases,
pointing out that Cowan and Hedison, for example, involved a
level of party misconduct not found here. Yet in all of the
cases, courts refused to entertain objections to subpoenas
that had not been presented to the issuing agency; in none of
them was there a suggestion that open-ended equitable bal-
ancing was appropriate or even permissible. This case then
is the first serious challenge to important Labor Board and
EEOC regulations that go back several decades. The majori-
ty's superficially narrow holding--forgiving Lutheran's failure
to exhaust given the "combined circumstances of this case,"
Maj. Op. at 13--should not obscure the far-reaching conse-
quences of its decision. Every case, after all, has its circum-
stances, and every chancellor's foot a different length. See
generally Antonin Scalia, The Rule of Law as a Law of Rules,
56 U. Chi. L. Rev. 1175 (1989).3
Finally, even assuming we had the extraordinarily broad
equitable discretion the majority claims, I believe there is no
reason for invoking it in this case. Traditional equitable
doctrines do not help Lutheran here. The EEOC has not
waived its exhaustion argument, nor would tolling be of much
use since Lutheran never made its privilege objection in
writing at any time4 (as opposed to objecting after the five
days passed), see Jones v. Runyon, 91 F.3d 1398, 1400 n.1
(10th Cir. 1996) (distinguishing the requirement of a timely
EEOC filing from the requirement of an EEOC filing). And
__________
3 Judge Tatel, dissenting in In Re Sealed Case, 124 F.3d 230,
239-40 (D.C. Cir. 1997), powerfully argued that a loosey-goosey
balancing test as applied to attorney-client privilege issues was
inappropriate. The Supreme Court agreed. See Swidler & Berlin
v. United States, 524 U.S. 399 (1998). In that case, the clear rule
favored private lawyers, whereas here the loosey-goosey approach
adopted by the majority apparently bails out some private lawyers.
4 As the majority indicates, Lutheran did inform the EEOC by
letter that it thought the subpoena "improper" and that it did not
intend to comply. But as I read the regulation, that letter, in
addition to being untimely, was fatally deficient not only because it
was not sent to the Director who issued the subpoena, but more
importantly because the regulation requires the complaining party
to state specifically the grounds of non-compliance, see 29 C.F.R.
s 1601.16(b)(2).
although the majority suggests that agency officials misled
Lutheran into thinking that it was not obligated to comply
with the regulation--which I take to be an estoppel notion
though the majority does not say so--the majority bases this
suggestion on Lutheran's lawyer's assertion that an EEOC
investigator told him that Lutheran would be notified before
the agency took any action. It does not seem to matter that
this conversation took place well after the five-day period had
elapsed, or that the EEOC investigator does not recall mak-
ing the statement.
A careful parsing of the majority's opinion reveals that the
only real ground upon which my colleagues rely to tilt the
equities in favor of appellant is the one they "begin" and end
with. See Maj. Op. at 9-10.5 That is, the subpoena stated,
that "it is issued pursuant [to] 42 U.S.C. s 2000e-9," but did
not explicitly alert appellant's Human Resources Director, to
whom the subpoena was sent, that under EEOC's regulation
(and for that matter the statutory provision that s 2000e-9
incorporates), appellant had five days to object formally.
But it is well settled that inaccurate or ineffective notice
from a government agency is an excuse for non-compliance
with an EEOC time limit only when the agency is "required
to provide notice of the limitations period." Bowden v.
United States, 106 F.3d 433, 438 (D.C. Cir. 1997). Like the
regulation at issue in Bowden, 29 C.F.R. s 1601.16(b)(1) does
not require that the agency provide notice of the limitations
period for objections. As we held in Bowden, even if we
thought it would be "sensible and simple" for the EEOC to
list the regulation on the face of the subpoena, "the agency
__________
5 The majority thinks it also significant that Lutheran orally
informed an EEOC investigator (not the District Director) of its
objections and that the District Director was (the majority infers)
aware of Lutheran's objections. Apparently my colleagues are
willing to excuse a party's non-compliance with agency regulations
when the party comes "close enough"--in this case, informal con-
versations with the wrong person that took place before the subpoe-
na ever issued. That is, to say the least, a rule of administrative
law of which I am not aware.
had no duty to do so" and thus Lutheran's failure to comply
with the regulations cannot be excused on that ground. Id.
As for the supposed unfairness to Lutheran in not receiving
notice of a federal regulation, I do not know whether to laugh
or cry. Any lawyer experienced in the employment law field,
of course, would be familiar with the regulation, but I think
we should assume that any competent lawyer receiving such
a subpoena would spend the ten minutes necessary to deter-
mine the applicable law. (The majority is willing to assume
that Lutheran's Human Resources Director could locate
s 161(1) of the Labor Act from the cross-reference in Title
VII, but thinks it requires some great feat of legal ingenuity
to locate the applicable regulation.) Even if the Human
Resources Director had not sent the subpoena to Lutheran's
counsel in time (as the majority observes, the record is silent
on this issue), that would be no excuse. In today's world, any
person in such a job who did not consult counsel immediately
would be guilty of gross negligence. Perhaps the import of
the majority's opinion is that the NLRB and the EEOC, if
they wish their exhaustion regulations honored, will have to
give the recipients the administrative law equivalent of a
Miranda warning, including a list of counsel who have shown
competence in employment law.
The majority's last point is that we should excuse Luther-
an's failure to exhaust because voluntary compliance with
Title VII is an important value, and because that value
depends on safeguarding the attorney-client and work prod-
uct privilege. That conflates the merits of Lutheran's privi-
lege claim with the need for an exhaustion requirement. The
Congress and the EEOC, which administers this investigato-
ry regime, believes that a mandatory exhaustion requirement
is a necessary and useful component of it. Though voluntary
compliance is an important value, and overzealous agency
investigation without regard to claims of privilege could un-
dercut that value, it is for the agency, not for this court, to
strike the balance. Why the majority cannot see (thinking ex
ante rather than ex post) that its holding will actually under-
mine voluntary compliance--by encouraging subpoena recipi-
ents to flout agency regulations and to gamble on garnering
equitable relief from a court--is beyond me. See generally
Frank H. Easterbrook, Foreword: The Court and the Eco-
nomic System, 98 Harv. L. Rev. 4, 10-12 (1984). In any
event, I can accept the majority's policy preference no more
than I can subscribe to its assertion of discretionary power.
I dissent.