No. 04-1292
In the Supreme Court of the United States
PEMCO AEROPLEX, INC., PETITIONER
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
ERIC S. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General
Counsel
BARBARA L. SLOAN
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507
QUESTION PRESENTED
Whether the Equal Employment Opportunity Com mission is precluded from proceeding with a Title VII enforcement action alleging widespread racial harass ment against petitioner's African-American employees merely because the individual harassment claims of some of petitioner's African-American employees were previously resolved by settlement or adverse judgment in a non-class private suit against petitioner.
In the Supreme Court of the United States
No. 04-1292
PEMCO AEROPLEX, INC., PETITIONER
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-26) is reported at 383 F.3d 1280. The opinion of the district court (Pet. App. 27-34) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on September 13, 2004. A petition for rehearing was denied on December 23, 2004 (Pet. App. 35-36). The petition for a writ of certiorari was filed on March 23, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner is an Alabama corporation engaged in the business of maintaining and repairing military air planes. On December 9, 1999, 36 African-American em ployees brought suit in United States District Court for the Northern District of Alabama, alleging that peti tioner violated 42 U.S.C. 1981 by subjecting them to racial harassment and other discrimination. See Thomas v. Pemco Aeroplex, No. CV-99-AR-3280-S. Al though the suit was initially brought as a class action, plaintiffs withdrew their class claim after Pemco op posed certification, and plaintiffs prosecuted the case as 36 individual claims consolidated into a single action. Pet. App. 2.
In the meantime, the Equal Employment Opportun ity Commission (EEOC) was investigating multiple charges of race discrimination at petitioner's facilities, dating back to the late 1980s. In September 2000, the EEOC brought this Title VII enforcement action under the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., al leging that petitioner had subjected all of its 200 or more African-American employees to a racially hostile work environment during the 1990s. The EEOC sought injunctive relief and monetary compensation for these employees. The EEOC's suit was assigned to the same judge who was presiding over the private individual cases. Pet. App. 2-3.
Thereafter, the EEOC moved twice to consolidate its enforcement action with the private cases, once immedi ately after filing suit and again after discovery ended in the private cases. Petitioner vigorously opposed both motions, arguing that consolidation would cause the company extreme prejudice. Specifically, petitioner argued that, whereas the EEOC had alleged a single Title VII claim, the Thomas litigation involved dozens of individual plaintiffs, each with his or her own claims; thus, according to petitioner, much of the evidence of class-wide discrimination pertinent to the EEOC's suit would be irrelevant and prejudicial to the individual claims. Without explanation, the district court denied the motions to consolidate, although it granted the EEOC's request that discovery in either case could be used to the extent relevant in the other case. Pet. App. 3-4.
During discovery, EEOC attorneys attended most of the depositions of the Thomas witnesses and conferred with the Thomas attorneys on many occasions. In April 2002, after discovery ended in the Thomas litigation, nine of the Thomas plaintiffs accepted offers of judg ment; the claims of several others had been dismissed on other grounds. The remaining 22 plaintiffs went to trial before a jury in June 2002. EEOC attorneys attended some of the trial but did not sit at counsel table, offer evidence, examine witnesses, or otherwise participate in the trial. Pet. App. 4; see id. at 28.
On June 26, 2002, in 22 separate verdicts, the jury found that none of the 22 Thomas plaintiffs had been subjected to a hostile work environment between December 9, 1997, and June 3, 2002-the only period the jury was asked to consider. Thereafter, the court en tered judgment against those 22 plaintiffs and against petitioner as to the nine plaintiffs who had accepted of fers of judgment. Pet. App. 4-5.
2. Petitioner then moved for summary judgment in EEOC's enforcement action, arguing that it was barred by res judicata and collateral estoppel in light of the adverse judgments in the private action. Petitioner now claimed that EEOC's action and the Thomas litigation addressed the same question-whether a racially hostile work environment pervaded petitioner's work atmo sphere. According to petitioner, the jury had answered that question in the negative. Petitioner also now ar gued that the EEOC was in privity with the Thomas plaintiffs, noting that EEOC attorneys attended the trial, participated in joint discovery, and met with plain tiffs' counsel on numerous occasions. Pet. App. 5.
The district court granted petitioner's motion. The court stated that the Thomas jury "found [in special interrogatories] that there had been no racially hostile environment at Pemco during the period under examina tion," which, according to the court, was the same as in EEOC's suit. Pet. App. 28, 30. The court also stated that the "core factual dispute"-that is, whether "a per vasively hostile racial environment existed at Pemco" during that time period-"was tried to the hilt in Thomas." Id. at 30. In the court's view, those issues and the evidence needed to prove them were "the same" as in EEOC's suit. Id. at 27.
Accordingly, the court stated, the issue "boils down to whether or not the EEOC and the Pemco employees and former employees it now undertakes to represent are in sufficient privity with the plaintiffs in Thomas" to preclude further litigation of EEOC's suit. Pet. App. 29. Without expressly finding privity, the court noted that the EEOC had the opportunity to participate in discov ery in Thomas and that counsel for the EEOC "with some frequency" sat in the courtroom during the Thomas trial as "an alert and interested observer." Ibid. Further, the court noted that the EEOC did not rule out the possibility that it could seek relief for the Thomas plaintiffs "despite the indisputable fact that [they] are foreclosed by the final judgments entered against them or in their favor." Id. at 30. The court concluded that a jury "found that no racially harassing environment existed at Pemco," and "[t]he EEOC is, or should be, bound by that finding." Id. at 33.
The court rejected the EEOC's contention "that by virtue of its statutory mandate it cannot be precluded by an adjudication in another case in which it was not a for mal party" because "it represents a larger public inter est." Pet. App. 32-33. The court reasoned that, "[c]arry ing this idea to its logical or illogical conclusion, the EEOC's case could proceed even if the named plaintiffs in Thomas had included every black employee and for mer black employee of Pemco." Id. at 32. The court stated that it "cannot find any public interest" in what it termed "such an outlandish expenditure of time and ef fort." Id. at 33. Concluding, therefore, that "the contro versy [had] been fully and fairly tried" and "finally dis posed of" in Thomas, the court dismissed EEOC's en forcement action. Ibid.
3. The court of appeals reversed. The court identi fied the issue on appeal as "whether the [EEOC] may proceed with a Title VII enforcement action charging the defendant * * * with company-wide racial harass ment, notwithstanding an adverse judgment rendered in a separate action brought by a number of individual plaintiffs who alleged racial harassment by the same defendant." Pet. App. 1. The court determined that the district court had misapplied the doctrines of collateral estoppel and res judicata in holding that the EEOC "was bound by the prior judgment even though the [EEOC's] suit covers employees who were not part of the earlier private suit and notwithstanding that the EEOC was twice denied the opportunity to consolidate its case with the private suit." Id. at 2. Finding that the EEOC was not in privity with the private plaintiffs, the court held that EEOC's enforcement action could proceed. Ibid.
In reaching its conclusion, the court of appeals noted that Eleventh Circuit "preclusion standards reflect the longstanding and deep-rooted principle of American law that a party cannot be bound by a judgment in a prior suit in which it was neither a party nor in privity with a party," Pet. App. 7, and that the requirement of privity is "particularly important where the party in the second action is a governmental agency reposed with independ ent statutory power to enforce the law and having inde pendent interests not shared by a private party," id. at 6. Thus, the court reasoned, the "threshold issue" is "whether the EEOC was in privity with the [Thomas] plaintiffs." Id. at 5. If not, the court concluded, "then plainly the EEOC cannot be bound by the judgment in that case no matter how identical the claims or similar the evidence may have been." Id. at 5-6.
According to the court, "only two of the recognized types of privity are even remotely plausible here: the theory of 'virtual representation,' or 'control' over the previous litigation." Pet. App. 9. Reviewing the record in this case, the court rejected both theories. The court concluded that it "can find no support for the suggestion that the Thomas plaintiffs were 'virtual representatives' of the EEOC in this case." Id. at 16. The court also found that "the EEOC did not control the Thomas pro ceedings," because it "did not require the original [Thomas] lawsuit to be filed," "did not hire or pay the private plaintiffs' attorneys," and "never directed the Thomas plaintiffs to file or abandon their suit or, for that matter, do anything else." Id. at 17.
The court of appeals stressed that it would be "par ticularly rare" to find privity when the party to be bound is a governmental agency. Pet. App. 17. It is "a well- established general principle that the government is not bound by private litigation when the government's ac tion seeks to enforce a federal statute that implicates both public and private interests." Id. at 17-18 (quoting Herman v. South Carolina Nat'l Bank, 140 F.3d 1413, 1425 (11th Cir. 1998), cert. denied, 525 U.S. 1140 (1999). That is because governmental agencies such as the EEOC "have statutory duties, responsibilities and inter ests that are far broader than the discrete interests of a private party." Id. at 18. The court explained that EEOC's "enforcement role is incompatible with a find ing that its authority to bring an enforcement action is barred by a judgment in a private suit." Id. at 21. Fur ther, the court reasoned, "courts have concluded that the EEOC may proceed with an enforcement action even where the charging party's action has been resolved." Id. at 21 (citing, inter alia, EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)). It would thus be "truly anomalous to hold that the EEOC could be barred from bringing action here, when it is acting on behalf of many people who were not parties at all in the previous action." Id. at 22. See id. at 24 ("In addition to EEOC's own broad mandate, there are also 165 or more African-American employees of Pemco who did not participate" in Thomas.).
Finally, the court of appeals focused on the "equities of this case, which weigh strongly against a finding of privity." Pet. App. 25. The court observed that "Pemco is trying to bind the EEOC to the adverse result in the suit that it successfully kept the EEOC from participat ing in." Ibid. In the court's view, any such result would set a "grossly inequitable precedent: it would open the door for defendants to seek to keep the EEOC out of private litigation, and then try to preclude the EEOC- which may have more resources and effective legal rep resentation, and therefore a better chance of winning at trial, than private plaintiffs do-from suing on its own." Ibid. Permitting such tactics would "severely curtail the enforcement powers of the EEOC and other governmen tal agencies by allowing the dismissal of their cases due to the result of litigation over which they have no con trol." Id. at 25-26.
ARGUMENT
The court of appeals held that the EEOC may "pro ceed with a Title VII enforcement action charging the defendant * * * with company-wide racial harassment, notwithstanding an adverse judgment rendered in a sep arate action brought by a number of individual plaintiffs who alleged racial harassment by the same defendant." Pet. App. 1. That holding is correct and does not con flict with any decision of this Court or any other court of appeals. Further review is not warranted.
1. In EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), this Court held that the EEOC may litigate a claim of disability discrimination and seek victim-spe cific relief for an alleged victim of that discrimination even if the individual, having agreed to arbitrate his pri vate claim against his employer, could not seek such relief in court himself. The Court reasoned that the EEOC's claim is not "merely derivative" of claims brought by private plaintiffs, nor is the EEOC "merely a proxy for the victims of discrimination." Id. at 297 (cit ing General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980)). Rather, Title VII authorizes the EEOC to bring its own suit and to allege its own claim, which is separate from and independent of private claims challenging similar conduct by an employer; the statute "clearly makes the EEOC the master of its own case." See id. at 291. The Court recognized that, even when it sues seeking victim- specific relief, "it is the public agency's province * * * to determine whether public resources should be com mitted to the recovery of victim-specific relief." Id. at 291-292. "[I]f the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum." Id. at 292.1
Petitioner argues (Pet. 4) that the Eleventh Circuit's decision "conflicts" with this Court's decision in Waffle House. The Court in Waffle House stated that a plain tiff's conduct "may have the effect of limiting the relief that the EEOC may obtain in court" and the court di rected federal courts to preclude "double recovery by an individual." 534 U.S. at 296, 297 (quoting General Tel. Co., 446 U.S. at 333). Petitioner asserts (Pet. 5) that the decision in this case "allows the EEOC to obtain relief for the * * * Thomas plaintiffs," and that permitting such relief is inconsistent with Waffle House.
Nothing in the Eleventh Circuit's decision suggests any conflict with Waffle House. The Court in Waffle House did note that a charging party's "conduct may have the effect of limiting the relief that the EEOC may obtain in court." 534 U.S. at 296. But the Court also noted that "no question concerning the validity of [the charging party's] claim or the character of the relief that could be appropriately awarded in * * * a judicial * * * forum is presented by th[e] record" in Waffle House. Id. at 297. As the Court stated, "[i]t is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek." Ibid. Simi larly here, the court of appeals held that EEOC's en forcement action was not barred by the judgments in Thomas. As in Waffle House, questions of relief were neither presented to nor resolved by the court of ap peals. See note 2, infra. This case accordingly presents no conflict with Waffle House on questions of relief.
2. Petitioner contends (Pet. 5) that further review is warranted to address what it contends is a conflict in the circuits on the question of "whether the EEOC is bound by a plaintiff's prior settlement and/or verdict when seeking the same relief on behalf of that individual."
a. This case does not present the question of whether the EEOC is precluded from bringing a Title VII enforcement action where the agency is seeking "the same relief" (Pet. 5) as was sought in a private suit. The EEOC in this case alleged company-wide racial harass ment potentially affecting all of petitioner's 200 or more African-American employees; the vast majority of those employees did not participate in Thomas. Although the Thomas suit was initially brought as a class action, plaintiffs withdrew their class claim after petitioner op posed class certification and proceeded as "individual plaintiffs consolidated in one action," each focused on relief for that particular plaintiff. Pet. App. 2. Thus, in addition to injunctive relief, the EEOC's suit seeks victim-specific relief for approximately 165 African- American employees who were not included in the Thomas suit and could not have obtained any relief from that suit no matter what the jury there had found. There is no theory under which the Thomas litigation would preclude litigation by those 165 individuals and no sound reason why the EEOC cannot litigate to vindicate the rights of those individuals.2
The courts of appeals are not divided on the question presented in this case. In the context of EEOC suits to enforce Title VII, the courts of appeals even before Waf fle House had uniformly held that, at least where, as here, the allegations in an EEOC enforcement action are broader than those in a private suit based on the same charge, the EEOC is not bound by the resolution of the private suit such that its enforcement action may not proceed. See, e.g., Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F.3d 814, 820 (7th Cir. 2000) (decision in private suit to which EEOC is not a party "will not formally preclude the EEOC" in its parallel action), cert. denied, 531 U.S. 1127 (2001); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) (EEOC may proceed in suit under Title VII and obtain injunctive relief even though charging party's claim for victim-specific relief was moot); EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975) (after termination of charging party's private suit, EEOC may bring its own suit predicated on, but not limited to, the same charge); EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361-1362 (6th Cir.) (same, adding that EEOC is not "privy" to private settlement to which it did not agree), cert. denied, 423 U.S. 994 (1975); cf. EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th Cir. 1993) (ADEA case; EEOC may proceed with its suit on behalf of single individual and obtain injunctive relief even though individual was barred by prior suit from seeking victim-specific relief). Like the decision in this case, those cases recognize that precluding an EEOC enforcement action under such circumstances would be contrary to the key role Congress envisioned that the EEOC would play in enforcing federal discrimination law. See, e.g., Goodyear Aerospace, 813 F.2d at 1542- 1543; Kimberly-Clark, 511 F.2d at 1361 & n.12.
b. Petitioner errs in contending (Pet. 8) that New Orleans Steamship Ass'n v. EEOC, 680 F.2d 23 (5th Cir. 1982), suggests to the contrary. In that case, the Fifth Circuit held that "the EEOC may challenge a transac tion which was the subject of prior judicial scrutiny in a private [Title VII] suit, if the subsequent challenge seeks different relief." Id. at 25 (emphasis added). In this case, the EEOC indeed seeks broader (and therefore different) relief from that sought in the earlier private action. Accordingly, the Eleventh Circuit's holding in this case that EEOC may seek such relief is consistent with the decision in New Orleans Steamship Ass'n.3
The other cases cited by petitioner in support of its claim of conflict did not arise under Title VII, but in stead arose under the Age Discrimination in Employ ment Act (ADEA), 29 U.S.C. 621 et seq. See Pet. 6-7 (citing EEOC v. United States Steel Corp., 921 F.2d 489 (3d Cir. 1990); EEOC v. North Gibson Sch. Corp., 266 F.3d 607 (7th Cir. 2001)). In holding that the EEOC may not seek monetary relief that would be unavailable to specific victims, the courts in those cases relied on "the ADEA's distinctive scheme," which, according to those courts, makes the EEOC the "representative" of individual victims. North Gibson Sch. Corp., 266 F.3d at 615 (stating that "the drafters of the ADEA consciously departed from the enforcement scheme of Title VII"); United States Steel Corp., 921 F.2d at 494; see id. at 494 n.4 (stating that "the framers of the ADEA consciously departed" from "the enforcement scheme of Title VII"). The EEOC disagrees with that reasoning. But in any event, it does not extend to Title VII. As this Court held in General Tel. Co. v. EEOC, 446 U.S. at 326, "[t]he EEOC is not merely a proxy for the victims of discrimi nation" under Title VII. Even "[w]hen the EEOC acts, albeit at the behest of and for the benefit of specific indi viduals, it acts also to vindicate the public interest in preventing employment discrimination." Ibid. The Sev enth Circuit implicitly recognized that distinction in Ameritech, 220 F.3d at 821, where it held that the EEOC would not be bound by a judgment in a private Title VII case to which it was not a party. Accord In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002) (EEOC does not sue as representative of discrimination victims; "pri mary role is that of a law enforcement agency").
In any event, all of the cases relied on by petitioner predate this Court's decision in Waffle House. Since Waffle House, both the Fifth and Seventh Circuits have issued decisions indicating that, because of its interest in law enforcement, a federal agency such as the EEOC may obtain relief for a victim of discrimination even if that individual could not obtain the same relief himself. See United States v. Mississippi Dep't of Pub. Safety, 321 F.3d 495 (5th Cir. 2003) (government is authorized to bring suit under Americans with Disabilities Act even though private suit would be barred by Eleventh Amendment, noting that government may determine whether public resources should be committed to recov ery of victim-specific relief); EEOC v. Board of Regents, 288 F.3d 296, 299-300 (7th Cir. 2002) (same, under ADEA). Those rulings indicate that, contrary to peti tioner's suggestion, those circuits would not disagree with the Eleventh Circuit's holding in this case.
3. Finally, petitioner argues (Pet. 11-12) that fur ther review should be granted on what petitioner de scribes as an "issue of first impression" to ensure that the EEOC is denied "a second chance to try a class-wide hostile environment claim based on the same evidence [the Thomas plaintiffs] unsuccessfully presented in an effort to prove the same work environment was hostile." The fact that, in petitioner's terms (Pet. 11), this case "will decide the preclusive nature of twenty-two jury verdicts" does not make it of sufficient general impor tance to warrant further review by this Court.
Even if it were less fact-bound, petitioner's claim that the Thomas litigation should have precluded this action would not warrant further review, because the court of appeals correctly held that, under any recog nized theory, the EEOC was not in privity with the Thomas plaintiffs. See generally Pet. App. 5-25. Peti tioner bases its privity arguments on the theories that the Thomas plaintiffs were the "virtual representative" of the EEOC and that the EEOC "assist[ed] in the pros ecution or defense of [the Thomas] action." Pet. 13-14. This Court, however, flatly rejected similar attenuated notions of privity in Richards v. Jefferson County, 517 U.S. 793, 801-803 (1996), and South Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 167-168 (1999).
Although petitioner purports to rely (Pet. 13-14) on this Court's decision in Montana v. United States, 440 U.S. 147, 153-154 (1979), that case is inapposite. Mon tana does not speak of "virtual representation" at all; given a federal agency's law enforcement interests, the theory is ill-suited to enforcement actions such as this one by the EEOC. See Pet. App. 17-25 (discussing case law). Nor was the EEOC's role in Thomas remotely comparable to the level of control or "assistance" exer cised by the United States in Montana, where the Gov ernment required the original lawsuit to be filed in state court, reviewed and approved the complaint, paid the attorney's fees and costs, directed the appeal to the Montana Supreme Court, appeared and submitted an amicus brief in the Montana Supreme Court, directed the filing of a notice of appeal to this Court, and effectu ated the plaintiff's abandonment of that appeal when the Government filed its own suit in district court. See Pet. App. 16 (citing 440 U.S. at 155); compare Pet. App. 17 (EEOC did not sit at counsel table during trial in this case, examine witnesses, proffer evidence, or exert any control over decisions including what claims to assert and whether to appeal).
Moreover, as the court of appeals recognized, "the equities of this case * * * weigh strongly against a finding of privity." Pet. App. 25. In successfully oppos ing consolidation of this action with Thomas, petitioner argued that EEOC's action, claim and evidence were "substantially different" from those in Thomas. District docket No. 6 (Defendant's Response to EEOC's 1st Con solidation Motion 1-5). Further, petitioner informed the district court:
The [Thomas] case consists of [a number of] individ ual cases filed together. Each of [these] Plaintiff's cases * * * must stand on its own merits. The EEOC's case is obviously much broader in that it does not allege that any particular employee has been subjected to a hostile environment. Instead, it alleges class-wide discrimination and opens the door to evidence that would be potentially wholly inadmis sible in [Thomas].
District docket No. 30 (Defendant's Response to EEOC's 2d Consolidation Motion 3). In light of those arguments, petitioner should not now be heard to argue that the suits are so similar that this Court should inter cede to ensure that the EEOC may not try its action separately.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
ERIC S. DREIBAND
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General
Counsel
BARBARA L. SLOAN
Attorney
Equal Employment
Opportunity Commission
JUNE 2005
1 This Court and others have held in a variety of other contexts that private suits do not preclude federal agencies with enforcement powers from bringing factually related claims. See, e.g., City of Richmond v. United States, 422 U.S. 358, 373 n.6 (1982) (prior appellate judgment in Voting Rights Act case is not given estoppel effect in later suit by United States); Herman v. South Carolina Nat'l Bank, 140 F.3d 1413, 1424-1425 (11th Cir. 1998) (Department of Labor not precluded from pursuing an ERISA claim despite a prior private suit), cert. denied, 525 U.S. 1140 (1999); Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 692 (7th Cir. 1986) (same; holding that "Government is not barred by the doctrine of res judicata from maintaining independent actions to enforce federal statutes implicating both public and private interests merely because independent private litigation has also been commenced or concluded"); Donovan v. Cunningham, 716 F.2d 1455, 1462-1463 (5th Cir. 1983) (same), cert. denied, 467 U.S. 1251 (1984); United States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 58 (5th Cir. 1979) (Department of Justice not precluded from pursuing Voting Rights Act violation by prior resolution of a private claim).
2 In light of the procedural posture of this case, the Eleventh Circuit did not address the question whether and under what circumstances any of the Thomas plaintiffs could benefit from EEOC's enforcement action if and when liability is established. EEOC's action was dismissed even before discovery was complete. Compare Docket entry No. 52 (9/10/02 order extending discovery in EEOC's suit until 12/31/02), with Pet. App. 27 (granting summary judgment on 12/13/02). Assuming the trial is bifurcated, matters relating to relief may be deferred until after the trial on liability. At that time, should the EEOC prevail on the merits and decide to seek victim-specific relief for any Thomas plaintiff in addition to other injured African-American employees, petitioner will have ample opportunity to litigate that issue.
3 In addition, New Orleans Steamship Ass'n was premised in part on the need to avoid duplicative litigation. See Baker (Truvillion) v. King's Daughters Hosp., 614 F.2d 520, 524 (5th Cir. 1980), cited in New Orleans Steamship Ass'n, 680 F.2d at 25-26 & n.8. In light of the EEOC's repeated unsuccessful attempts to consolidate this case with Thomas, that rationale would not apply here. Indeed, it was peti tioner's strenuous opposition to consolidation that essentially ensured that a separate trial would be required for EEOC's more compre hensive action.