No. 06-16864 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. FEDERAL EXPRESS CORP., Defendant-Appellant. _______________________________________________________ On Appeal from the United States District Court for the District of Arizona, No. 06-276 _______________________________________________________ BRIEF OF PLAINTIFF-APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _______________________________________________________ RONALD S.COOPER EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, N.W., Room 7042 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings . . . . . . . . . 2 B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 2 C. Proceedings and Disposition Below. . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 10 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S ORDER ENFORCING THE EEOC'S ADMINISTRATIVE SUBPOENA.. . . . . . . . . . 13 A. The EEOC Retains the Authority to Issue an Administrative Subpoena after a Charging Party has been Issued a Right-to-Sue Notice and Instituted a Private Action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. Title VII's multistep enforcement scheme authorizes the EEOC to continue an investigation after a charging party has received a right-to-sue notice and filed suit.. . . . . . . . . . . . . . . . . . . . . . . . . . 16 2. The EEOC's regulations, which are entitled to deference, permit the EEOC to continue investigating a charge after the issuance of a right-to-sue notice.28 3. The district court properly adhered to its strictly limited role in determining that jurisdiction was not plainly lacking and therefore in enforcing the subpoena . . . . . . . . . . . . . . . . . . . . . . . . . 32 4. Hearst and its progeny were wrongly decided and do not control this case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 5. FedEx's legislative history argument falls flat because it relies on a proposed amendment that Congress never enacted.. . . . . . . . 39 6. This Court's precedent does not suggest that the EEOC's authority to investigate terminates upon the issuance of a right-to-sue notice and the filing of a private action. . . . . . . . . . . . . . . . . . . . . . 44 7. There is no authority for FedEx's contention that a district court must refuse to enforce a subpoena if the agency has an alternative means of procuring the information. . . . . . . . . . . . . . . . . . . 48 8. The EEOC's Compliance Manual does not require the Commission's investigation to terminate once a charging party files suit. . 49 B. The EEOC Established that the Subpoena Seeks Relevant Evidence.50 1. FedEx waived any relevancy argument.. . . . . . . . 50 2. The subpoena seeks relevant evidence. . . . . . . . 52 C. FedEx Failed to Meet its Burden of Showing that the Subpoena was Overbroad. . . . . . . . . . . . . . . . . . . . . . . . . . . 55 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 61 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . 63 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 64 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 65 TABLE OF AUTHORITIES Federal Cases Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 52 Blue Bell Boots v. EEOC, 418 F.2d 355 (6th Cir. 1969). . . . . 52 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . 28 EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . passim EEOC v. Commercial Office Prods., 486 U.S. 107 (1988). . . . . . . . . . . . . . . . . . . . . . . . 28, 30 EEOC v. Continental Airlines, No. 04-C3-055, 2006 WL 3505485 (N.D. Ill. Dec. 4, 2006) . . . . . . . . . 20 EEOC v. Elrod, 674 F.2d 601, 613 (7th Cir. 1982) . . . . . . . 52 EEOC v. Fed. Home Loan Mortgage, 37 F. Supp. 2d 769 (E.D. Va. 1999) . . . . . . . . . . . . . . . . . . . . . . 39 EEOC v. Goodyear Aerospace, 813 F.2d 1539 (9th Cir. 1987) . . . . . . . . . . . . . . . 17, 18, 19, 20 EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997) . . . .7, 35, 36, 37 EEOC v. Home Depot, 01-CV-1771 (S.D. Cal. 2001). . . . . . .7, 39 EEOC v. Huttig Sash & Door, 511 F.2d 453 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . 20, 21, 38 EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071 (9th Cir. 2001) . . . . . . . . . . . . . . . 9, 33, 34, 35 EEOC v. Kimberly-Clark, 511 F.2d 1352 (6th Cir. 1975). . . . . . . . . . . . . . . . . . . . 20, 21 EEOC v. Lockheed Martin Corp., 116 F.3d 110 (4th Cir. 1997)54, 57 EEOC v. Maryland Cup, 785 F.3d 471 (4th Cir. 1986) . . 25, 56, 59 EEOC v. N. Hills Passavant Hosp., 544 F.2d 664 (3d Cir. 1976) . . . . . . . . . . . . . . . 19, 40, 41, 42 EEOC v. Occidental Life Ins., 432 U.S. 355 (1977). 16, 17, 25, 26 EEOC v. Pacific Press Publishing Ass'n, 535 F.2d 1182 (9th Cir. 1976) . . . . . . . . . . . . . . . . . . . . 44, 45 EEOC v. Packard Electric Division, 569 F.2d 315 (5th Cir. 1978) . . . . . . . . . . . . . . . . . . . . 57, 58 EEOC v. Pemco Aeroplex, 383 F.3d 1280 (11th Cir. 2004) 18, 19, 20 EEOC v. Roadway Express, 750 F.2d 40 (6th Cir. 1984) . . . . . 52 EEOC v. Roadway Express, 261 F.3d 634 (6th Cir. 2001). . . . . 58 EEOC v. Shell Oil, 466 U.S. 54 (1984). . . . . . . . . . . passim EEOC v. St. Regis Paper, 717 F.2d 1302 (9th Cir. 1983) . . . . 14 EEOC v. Union Oil Co., 369 F. Supp. 579 (N.D. Ala. 1974) . . . 43 EEOC v. Waffle House, 534 U.S. 279 (2002). . . . . . . . . passim Endicott Johnson Corp. v. Perkins, 317 U.S. 501(1943). . . 14, 34 FTC v. Standard Oil, 449 U.S. 232 (1980) . . . . . . . . . . . 14 General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318 (1980)passim Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971). . . . . 54 Humble v. Boeing, 305 F.3d 1004 (9th Cir. 2002). . . . . . 50, 55 Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003) . . . . . 50, 51 Manpower, Inc. v. EEOC, 346 F. Supp. 126 (E.D.Wis. 1972) . 56, 57 Martini v. Federal Nat. Mortgage Ass'n, 178 F.3d 1336 . . . . . . . . . . . . . . . . . (D.C. Cir. 1999)30, 31, 32, 33 Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994) . . . . . . . 35 Reich v. Montana Sulphur & Chemical Co., 32 F.3d 440 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 12 Robinson v. Int'l Bhd. of Elec. Workers Local 134, 1989 LEXIS 3539 . . . . . . . . . . . . . . . . . . . (N.D. Ill. Apr. 5, 1989)30 United States v. Alameda Gateway, 213 F.3d 1161 (9th Cir. 2000)51 United States v. Fraser, No. 91-50105, 1991 WL 275383 (Dec. 20, 1991) . . . . . . . . . . . . . . . . . . . . 42 Univ. of Penn. v. EEOC, 493 U.S. 182 (1990). . . . . . . . . . 13 Federal Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 29 U.S.C. § 161. . . . . . . . . . . . . . . . . . . . . 1, 2, 13 42 U.S.C. § 2000e-5(a) . . . . . . . . . . . . . . . . . . . . 23 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . 13, 14, 15 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . passim 42 U.S.C. § 2000e-5(f)(2). . . . . . . . . . . . . . . . . . . 44 42 U.S.C. § 2000e-8(a) . . . . . . . . . . . . . . . . . . passim 42 U.S.C § 2000e-9 . . . . . . . . . . . . . . . . . . . 1, 2, 13 TABLE OF AUTHORITIES (con't) Federal Regulations 29 C.F.R. § 1601.25(d) . . . . . . . . . . . . . . . . . . . . 45 29 C.F.R. § 1601.28(a)(3). . . . . . . . . . . . . . . . . passim Federal Rules Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . . . . . . . .1 Fed. R. App. P. 28(a)(9)(A). . . . . . . . . . . . . . . . . . 50 Legislative History 118 Cong. Rec. 295 (1972) (statement of Sen. Williams) . . . . 41 118 Cong. Rec. S2300 (Feb. 22, 1972) . . . . . . . . . . . . . 43 H.R. Rep. No. 92-238 (1972). . . . . . . . . . . . . . . . 40, 41 S. Rep. No. 92-415 (1971). . . . . . . . . . . . . . . . . 40, 41 Miscellaneous Authority EEOC Compliance Manual § 6.4 . . . . . . . . . . . . . . . 29, 30 EEOC Compliance Manual § 83.4. . . . . . . . . . . . . . . . . 49 STATEMENT OF JURISDICTION a. The district court had subject matter jurisdiction over this subpoena enforcement action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9 (incorporating by reference 29 U.S.C. § 161 of the National Labor Relations Act). b. Pursuant to 28 U.S.C. § 1291, this Court has jurisdiction over this appeal from the district court's final order. c. The district court entered its order enforcing the subpoena on September 8, 2006. ER272. FedEx filed its timely notice of appeal on September 15, 2006. ER276. Fed. R. App. P. 4(a)(1). STATEMENT OF THE ISSUES 1. Whether the district court properly ruled that the EEOC retains the authority to issue and enforce a subpoena after the EEOC has issued a right-to-sue letter to a charging party who joins a lawsuit that encompasses claims raised in his charges. 2. Assuming that the EEOC retained the authority to issue the subpoena, whether the district court properly found that the subpoena sought relevant information. 3. Assuming that the EEOC met its burden of showing that it had the authority to investigate and that the subpoena sought relevant information, whether FedEx met its burden of showing that the subpoena was overbroad. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings This is a subpoena enforcement action pursuant to Section 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-9, which incorporates by reference Section 11 of the National Labor Relations Act, 29 U.S.C. § 161. The district court enforced the subpoena, and FedEx has appealed. B. Statement of Facts Tyrone Merritt, an African-American male, began working for FedEx on September 24, 1998, as an International Heavy Weight Handler, which is an entry- level position. ER29. In pursuit of his ultimate goal of entering FedEx's management, Merritt took the "Basic Skills Test" ("BST"), a cognitive ability test that FedEx required him to pass in order to be eligible for a promotion. ER29. Despite having a college degree in Electronic Business, Merritt failed the BST. ER29. Consequently, he was considered unqualified for any Courier, Ramp Transport Driver, or Customer Service Agent positions. ER29. On November 27, 2004, Merritt filed a charge of discrimination with the EEOC against FedEx on behalf of himself and "similarly situated African- American and Latino FedEx employees in FedEx's Western Region who have been denied promotional opportunities, been unfairly disciplined, and denied fair compensation as a result of their race." ER30. Specifically, Merritt alleged that the BST had a statistically significant adverse impact on African-American and Latino employees, which resulted in their disqualification from promotions to Courier, Ramp Transport Driver, or Customer Service Agent positions for which they were otherwise qualified. ER29. Merritt additionally alleged that he had applied for and been denied promotion to other positions for which he was qualified, including Dispatcher, Material Handler, and Ramp Agent, that were awarded to similarly situated Caucasian employees. ER29-30. Merritt also alleged that FedEx subjected him to harsher discipline than that imposed on similarly situated Caucasian employees and had discriminatorily denied him fair compensation due to racially biased disciplinary evaluation policies and practices. ER30. Finally, Merritt alleged as to himself only that FedEx denied him, but not other Caucasian employees, leave without pay. ER30. On December 10, 2004, the EEOC notified FedEx of the charge and began an investigation. ER32. On June 29, 2005, Merritt filed a supplemental charge alleging that he had again taken and failed the BST and therefore had not applied for Courier positions, which required that he pass the BST. ER35. He also alleged that he had been denied promotions to other positions that were awarded to less qualified Caucasian employees. ER35. Once again, Merritt brought his charge on behalf of himself and similarly situated African-American and Latino employees in FedEx's Western Region "who have been denied promotional opportunities, been unfairly disciplined, received unfair performance evaluation scores, and denied fair compensation as a result of their race." ER35. On October 6, 2005, Merritt's attorney requested a right-to-sue notice in order to add Merritt as a representative plaintiff in a class action suit challenging FedEx's use of the BST in FedEx's Western Region. The EEOC issued the right- to-sue letter on October 20, 2005. ER38. Consistent with 29 C.F.R. § 1601.28(a)(3),<1> the EEOC stated in the notice that the EEOC would continue to process Merritt's charge. ER38. Merritt subsequently joined the class action lawsuit, Satchell v. Federal Express, 3:03-cv-0269 (N.D.Cal.). The plaintiffs in the Satchell lawsuit include African-American and Latino employees of FedEx's Western Region working as Handlers, Customer Service Agents, Ramp Transport Drivers, Dispatchers, and other positions. ER130. The claims in Satchell include allegations that FedEx denied minority workers promotions, provided them less compensation, and disciplined them more compared to Caucasian employees and that the BST has a statistically significant adverse impact on minorities. ER131,139. On February 10, 2006, the EEOC issued and served upon FedEx a subpoena duces tecum, No. PHX-06-18. ER40-44. The subpoena required FedEx to produce information needed for the EEOC's investigation of Merritt's charges. Specifically, the subpoena requested FedEx to "identify any computerized or machine-readable files that are or have been maintained by" FedEx "since January 1, 2003[,] which contain data on personnel activities." ER41. These files "would include, but not be limited to applicants, hiring, promotions, testing, discipline, job analyses and evaluations, performance evaluations, demotions, employment history, amounts of pay, adjustment to pay, work assignments, adjustments to work assignments, training, transfers, terminations, job status and so forth." ER41. The subpoena additionally requested that FedEx supply the definition of all codes used in the files, state whether any categories of employees were excluded from the files (and, if so, which ones), and provide information about any entities under a contractual arrangement with FedEx to maintain any computerized files. ER42. C. Proceedings and Disposition Below FedEx refused to respond to the subpoena and on February 17, 2006, served a petition to revoke or modify it. ER46-51. On March 9, 2006, the EEOC denied FedEx's petition. ER54-69. On March 29, 2006, the EEOC also denied FedEx's March 22, 2006, request for reconsideration. ER75-76. On April 3, 2006, FedEx informed the EEOC that it refused to comply with the subpoena, and on June 1, 2006, the EEOC filed its Application for Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced. ER1-3. The EEOC filed an Amended Application on July 5, 2006. ER77-97. The court granted the order on July 6, 2006, and ordered FedEx to show cause why it should not be compelled to comply with the subpoena. ER98-99. Following a hearing, on September 8, 2006, the district court granted the EEOC's application. ER268. The court began its order by noting that Title VII requires the EEOC to investigate charges of discrimination in order to make a reasonable cause determination and, if appropriate, to conciliate the charge. ER270. The court also noted that Title VII authorizes the EEOC to bring a civil action against an employer following the failure of conciliation. ER270. When the charging party has filed a private action, the court observed, Title VII permits the EEOC to intervene, subject to a court's permission. ER270. The court also stated that Title VII confers upon the EEOC "broad and liberally construed powers" to "root out" employment discrimination, which includes "broad access to any and all information relevant to the allegation(s) in order to prove or disprove a charge." ER270 (citing 42 U.S.C. § 2000e-8(a)). The district court acknowledged FedEx's argument that EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997), and EEOC v. Home Depot, 01-CV-1771 W (JAH) (S.D. Cal. 2001), controlled the case and compelled the conclusion that the EEOC lacks jurisdiction to continue processing a charge once a charging party has been issued a right-to-sue letter and has filed a private lawsuit. ER270-71. The court implicitly rejected this argument, noting that the EEOC's own regulations allow the Commission to continue processing a charge after the issuance of a notice of right to sue when an authorized official "‘determines . . . that it would effectuate the purpose of title VII . . . to further process the charge.'" ER271 (quoting 29 C.F.R. § 1601.28(a)(3)). After observing that Merritt's charges "raise the specter of a nationwide pattern of race-based discrimination by FedEx against African- American and Latino employees" and that the Satchell lawsuit is limited to FedEx employees in the eleven-state Western Region, the court concluded that "any ‘similarly-situated' African-American and/or Latino FedEx employee outside this region" would be "left with no satisfactory avenue for redress of possible discrimination claims" but for the "EEOC's continued involvement." ER271. Quoting the Supreme Court's holding in EEOC v. Waffle House, 534 U.S. 279, 291 (2002), that the EEOC is "master of its own case," the court concluded that "the EEOC shall determine when its investigation shall cease." ER272. The court further reasoned that without an investigation, the EEOC could not attempt conciliation, as required by Title VII, and could not intervene in a charging party's private suit, which is also permitted by Title VII. ER272. The court also concluded that a contrary holding would curtail the filing of Commissioner charges. ER272. Next, the court found that the "subpoena at issue [is] relevant to the charges being investigated." ER272. In reaching this finding, the court cited to Section 709 of Title VII, which allows the EEOC access to "‘any evidence'" "‘that relates to unlawful employment practices'" and "‘is relevant to the charge under investigation.'" ER272 (quoting 42 U.S.C. § 2000e-8(a)). According to the court, the "categories in later refinements of information requested by the EEOC are, if not directly relevant, sufficiently pertinent to the collection of relevant data that they fall under the umbrella of relevance and materiality. An examination of employee records is eminently reasonable in the investigation of discrimination charges." ER272. The court also rejected FedEx's argument that convenience to the EEOC was not a factor to consider in determining whether to enforce the subpoena. RE272-73. The court reasoned that "the nature of the underlying charges" made "the categories of information to be sought later [ ] especially relevant" and that the "subpoena as it is minimizes the burden both on FedEx's collection and the EEOC's receipt of relevant data." ER273. In a footnote, the court stated that if "convenience is indeed not a factor, FedEx is free to petition the Court so that it can collect and provide relevant employee data in toto." ER273. In its conclusion, the court stated that the "breadth of power granted the EEOC to investigate discrimination charges is such that validity of an administrative subpoena is not weakened unless the EEOC ‘plainly lacks' jurisdiction." ER273 (quoting EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1077 (9th Cir. 2001)). Finding that the EEOC had jurisdiction, the court went on to state that the "scope of the judicial inquiry in an EEOC or any agency subpoena enforcement proceeding is narrow." ER273. Citing EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426 (9th Cir. 1983), the court concluded that the three critical questions as to whether to enforce a subpoena had been met: 1) "Congress had granted the EEOC the power to continue investigating the current charges"; 2) the parties did not dispute that "procedural requirements" had been followed; and 3) "the evidence requested is relevant and material to the investigation." ER273. Accordingly, the court granted the EEOC's application. ER274. SUMMARY OF ARGUMENT The district court properly enforced the EEOC's administrative subpoena seeking information from FedEx about Merritt's charges, which raise allegations of nationwide discrimination against African-American and Latino workers. As FedEx admits, the scope of judicial inquiry in a subpoena enforcement action is quite narrow. A district court may not consider the merits of the underlying charge. Instead, a court must determine whether there is a valid charge (meaning that it satisfies the statute's requirements for what a charge must contain), the EEOC is authorized to investigate, the procedural requirements have been met, and the evidence sought is relevant and material to the investigation. If so, the court must enforce the subpoena unless the employer proves that the inquiry is overbroad or unduly burdensome. The district court properly applied this standard in enforcing the subpoena. FedEx has not disputed that Merritt's charges satisfy Title VII's charge requirements and are therefore valid. Nor has FedEx disputed that the EEOC satisfied all procedural requirements in issuing the subpoena. FedEx argues instead that Title VII prohibits "duplicative proceedings." By this, FedEx appears to mean both that Title VII prohibits an EEOC investigation from continuing after a charging party files suit and that Title VII prohibits the EEOC from filing a lawsuit after the charging party has initiated litigation. Both of these assertions are incorrect. Nothing in Title VII, Supreme Court or Ninth Circuit precedent, or Title VII's legislative history prohibits the EEOC from continuing its investigation after a charging party has filed suit or from filing its own enforcement action. The EEOC can, at a minimum, file its own suit seeking relief for victims excluded from the private action, seeking broader relief than that awarded in any private action, or alleging new violations ascertained during the course of a reasonable investigation. All of these options, however, require under Title VII that the EEOC first complete an investigation, find reasonable cause, and attempt conciliation before filing suit. The Commission's own regulations also explicitly permit the EEOC to continue processing a charge after issuing a right-to-sue notice when doing so effectuates the purposes of Title VII. FedEx failed to develop any substantive argument in its opening brief about why the information requested by the subpoena is not relevant and has therefore waived this argument. Even if this Court chooses to address it, this Court should affirm the district court's finding that the requested information is relevant. The Supreme Court has recognized that the "courts have generously construed the term ‘relevant" and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil, 466 U.S. 54, 68-69 (1984). The subpoena's request for information about FedEx's computer and machine-readable files that contain personnel data satisfies this generous standard because the information will enable the EEOC to better tailor future requests to obtain the most relevant data pertaining to the allegations in Merritt's charges. Finally, this Court should affirm the district court's finding that FedEx failed to show that the subpoena was overly broad. Contrary to FedEx's assertion on appeal, the subpoena does not request any personnel information. Instead, it narrowly requests information about FedEx's computer files containing this information from January 1, 2003, to the present. Because Merritt's charges raise the specter of nationwide racial discrimination in promotion, discipline, evaluation, and compensation, the subpoena's request cannot be said to be overly broad. STANDARD OF REVIEW The district court's order enforcing the EEOC's subpoena is reviewed de novo. Reich v. Montana Sulphur & Chemical Co., 32 F.3d 440, 443 (9th Cir. 1994). ARGUMENT THIS COURT SHOULD AFFIRM THE DISTRICT COURT'S ORDER ENFORCING THE EEOC'S ADMINISTRATIVE SUBPOENA. The district court properly enforced the EEOC's subpoena, and this Court should affirm that order. "The EEOC exists to advance the public interest in preventing and remedying employment discrimination . . . ." General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318, 331 (1980). Title VII generally directs the EEOC to investigate charges of discrimination, determine whether there is reasonable cause to believe charges are true, and to conciliate reasonable cause charges. 42 U.S.C. § 2000e-5(b). Only after the failure of conciliation can the EEOC file its own enforcement action. 42 U.S.C. § 2000e-5(f)(1). As FedEx acknowledges, Title VII provides the EEOC broad authority to carry out its Congressional mandate to investigate charges of discrimination. Br. at 16; see Univ. of Penn. v. EEOC, 493 U.S. 182, 191 (1990) ("To enable the Commission to make informed decisions at each stage of the enforcement process," Congress imbued the EEOC with "a broad right of access to relevant evidence."). Specifically, Title VII provides that the EEOC "shall . . . have access to . . . any evidence . . . that relates to unlawful employment practices . . . and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). Should an employer refuse to answer a subpoena, the EEOC is authorized to seek its enforcement in court. 42 U.S.C. § 2000e-9 (incorporating by reference 29 U.S.C. § 161). FedEx has also conceded, as it must, that the "scope of the judicial inquiry in an EEOC or any other agency subpoena enforcement proceeding is quite narrow." EEOC v. Children's Hosp. Med. Ctr. of N. Cali, 719 F.2d 1426, 1428 (9th Cir. 1983). The reason for such narrow judicial inquiry is that judicial review of the early stages of an administrative inquiry causes "interference with the proper functioning of the agency" and "delay[s] resolution of the ultimate question whether the Act was violated." FTC v. Standard Oil, 449 U.S. 232, 243 (1980) (quoted in EEOC v. Shell Oil, 466 U.S. 54, 81 n.38 (1984)); EEOC v. St. Regis Paper, 717 F.2d 1302, 1304 (9th Cir. 1983) (subpoena enforcement actions are "summary procedure[s]" designed for "speedy investigation of EEOC charges"). A proper charge, meaning one that satisfies the requirements of 42 U.S.C. § 2000e-5(b), "is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC." Shell Oil, 466 U.S. at 65. Assuming a proper charge, the critical questions are whether the EEOC has shown that: (1) Congress has granted it the authority to investigate; (2) procedural requirements have been followed; and (3) the evidence is relevant and material to the investigation. Children's Hospital, 719 F.2d at 1428 (citing Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 508-09 (1943)). If the court finds that the EEOC made these showings, the subpoena must be enforced unless the court finds that the employer established that the subpoena was unduly burdensome or broad. Children's Hospital, 719 F.2d at 1428. Here, FedEx has not denied that Merritt's charges satisfy the requirements of 42 U.S.C. § 2000e-5(b). Thus, it is undisputed that the subpoena is based on a proper charge. Nor has FedEx denied that the EEOC satisfied all procedural requirements for the issuance of the subpoena. FedEx and amici argue, however, that the EEOC lacked authority to investigate the charges, the subpoena seeks irrelevant information, and the subpoena is overly broad. For the reasons explained below, the district court properly rejected these arguments.<2> A. The EEOC Retains the Authority to Issue an Administrative Subpoena After a Charging Party Has Been Issued a Right-to-Sue Notice and Instituted a Private Action. FedEx argues that once a charging party has received a right-to-sue letter and initiated private litigation based on allegations in the charge, as in this case, the EEOC lacks jurisdiction to continue its investigation because Title VII prohibits duplicative proceedings. FedEx additionally contends that Title VII prohibits duplicative lawsuits, meaning that once a private party commences a lawsuit, the EEOC is prohibited from doing so. Br. at 18. FedEx's arguments are unavailing because they reflect a fundamental misunderstanding of Title VII's enforcement scheme and the EEOC's pivotal role in it. 1. Title VII's multistep enforcement scheme authorizes the EEOC to continue an investigation after a charging party has received a right-to-sue notice and filed suit. FedEx contends that Title VII's enforcement scheme prohibits duplicate proceedings and therefore the EEOC lacked authority to continue its investigation into Merritt's charges once he joined the Satchell lawsuit. Br. at 14-20; see also Am. Br. at 16 (arguing that a reading of Title VII allowing the EEOC to continue investigating after a charging party sues is "senseless and wasteful"). In support, FedEx relies on its interpretation of Title VII and the Supreme Court's decisions in EEOC v. Occidental Life Ins., 432 U.S. 355 (1977), and EEOC v. Waffle House, 534 U.S. 279 (2002). FedEx, however, misapprehends Title VII's enforcement scheme and the EEOC's role in it. As originally enacted in 1964, Title VII limited the EEOC's role to that of investigation and conciliation of employment discrimination charges. Occidental, 432 U.S. at 358. If conciliation failed, the EEOC's role ended. Id. Although the EEOC could not institute an enforcement action, charging parties were authorized to institute private actions. Id. By 1972, Congress realized that "the ‘failure to grant the EEOC meaningful enforcement powers ha[d] proven to be a major flaw in the operation of Title VII,'" and that the statute needed to be amended. General Telephone, 446 U.S. at 325 (quoting S. Rep. No. 92-415, p.4 (1971)). Accordingly, Congress amended Title VII to give the EEOC authority to sue employers as a means "to implement the public interest as well as to bring about more effective enforcement of private rights." Id. at 326; 42 U.S.C. § 2000e-5(f)(1) (authorizing the Commission to bring a civil action against a private employer). The Supreme Court and this Court have repeatedly recognized the critical role the EEOC plays in enforcing Title VII and that this role differs significantly from that of a private individual suing to enforce Title VII. "When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination." General Telephone, 446 U.S. at 326. Accordingly, the Supreme Court has noted that under the 1972 amendments "the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties." Occidental, 432 U.S. at 368; see also General Telephone, 446 U.S. at 326 (holding that the "EEOC is not merely a proxy for the victims of discrimination and [its] enforcement suits should not be considered representative actions subject to Rule 23" and stating that under the 1972 amendments the EEOC "was to bear the primary burden of litigation"); EEOC v. Goodyear Aerospace, 813 F.2d 1539 (9th Cir. 1987) (recognizing that the "EEOC's right of action is independent of the employee's private action rights"). In Goodyear, this Court recognized the different motivations underlying EEOC and private actions, stating that the EEOC's "interests in determining the legality of specific conduct and in deterring future violations are distinct from the employee's interest in a personal remedy." Goodyear, 813 F.2d at 1542; see also EEOC v. Pemco Aeroplex, 383 F.3d 1280, 1294 (11th Cir. 2004) ("The EEOC's comprehensive mandate and authority to petition for broad injunctive and pecuniary relief stands in stark contrast to the interests of individual plaintiffs in employment actions."). Congress's intention to make the EEOC's new enforcement authority a supplement to – not a replacement of – the right of private individuals to file their own actions is also reflected in the statute's cross-intervention rights. See General Telephone, 446 U.S. at 326. Under the 1972 amendments, once the EEOC has filed an enforcement action, a charging party loses the right to institute an independent action against the employer but "shall have the right to intervene in a civil action brought by the Commission." 42 U.S.C. § 2000e-5(f)(1). Conversely, as FedEx acknowledges, Title VII provides that if the charging party receives a right-to-sue notice and institutes a private action, the EEOC may seek the court's permission to intervene "upon certification that the case is of general public importance." 42 U.S.C. § 2000e-5(f)(1). The EEOC may also move to expand the suit when it intervenes. Accordingly, in recognition of the EEOC's role in enforcing the public interest in eradicating discrimination, Title VII permits both the EEOC and a charging party to maintain their own claims. Permissive intervention, however, is not the EEOC's only litigation option after a charging party initiates litigation. While the statute includes cross-intervention rights, nowhere in Title VII is there any explicit qualification of the EEOC's general authority to institute its own action under Section 706(f)(1) of the statute, and at least one court has held that the EEOC can file its own separate action, even if it includes the same claims as the private action. EEOC v. N. Hills Passavant Hosp., 544 F.2d 664, 668 (3d Cir. 1976) (finding that nothing in Title VII precludes the EEOC from initiating its own action after the institution of a private suit). Where the EEOC's lawsuit seeks relief for individuals excluded from the private action, it is clear that Title VII authorizes the EEOC to file its own action. Pemco, 383 F.3d at 1283 (after 36 African- American employees filed a lawsuit alleging racial discrimination, the EEOC filed its own Title VII action alleging racial discrimination and seeking relief for all of the employer's 200 African- American employees);<3> Goodyear, 813 F.2d at 1543 (the charging party's settlement "does not moot the EEOC's right of action seeking injunctive relief to protect employees as a class and to deter the employer from discrimination");<4> EEOC v. Kimberly-Clark, 511 F.2d 1352, 1363 (6th Cir. 1975) (it "would not be duplicitious to allow" the EEOC's suit and the private party's suit to go forward where the EEOC's suit seeks relief that goes beyond that requested in the private action) (emphasis added). It is also clear that the EEOC can file an independent action based on violations not included in a charge but "ascertain[ed] in the course of a reasonable investigation." General Telephone, 446 U.S. at 331 (stating that EEOC actions are not limited to claims presented by charging parties); EEOC v. Huttig Sash & Door, 511 F.2d 453, 454-55 (5th Cir. 1975) (noting that the EEOC may use the filing of a charge "as a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices" in addition to those alleged in the charge and holding that after a private party dismisses his action, the EEOC can bring an action "predicated on, but not limited to" the charge); Kimberly-Clark, 511 F.2d at 1363 (holding that the EEOC is not limited to permissive intervention when its investigation of a charge reveals additional violations but may proceed with its own action). Indeed, to hold that the EEOC could not bring its own enforcement action based on violations ascertained during a reasonable investigation would have the perverse result of encouraging employers to settle private actions in order to prevent the EEOC from completing its investigation and bringing suit, which would contravene "the clear Congressional intent to end employment discrimination." Huttig Sash, 511 F.2d at 455. Accordingly, amici's assertion that the EEOC is "powerless to litigate" after a charging party has filed suit is erroneous. Am Br. at 15. Here, Merritt filed his charges against FedEx on behalf of himself and "similarly situated African-American and Latino FedEx employees in FedEx's Western Region who have been denied promotional opportunities, been unfairly disciplined, and denied fair compensation as a result of their race." ER30, ER35. As the district court noted, these allegations are sufficiently broad to raise the specter of a nationwide pattern of racial discrimination. ER271. The Satchell litigation, however, is limited to employees within FedEx's eleven-state Western Region. Thus, the EEOC could potentially file a lawsuit based on Merritt's charges seeking relief for employees outside the Western Region, meaning that in no way would either the lawsuit or the EEOC's investigation be a "duplicate proceeding." Additionally, if the EEOC's reasonable investigation of Merritt's charges reveals any additional violations, the EEOC could file a lawsuit including these claims, again meaning that neither the EEOC's investigation nor its suit could be characterized as a "duplicate proceeding." Before the EEOC could file any lawsuit, however, it would have to complete an investigation, determine where there is reasonable cause to believe a violation occurred, and attempt conciliation.<5> If this Court were to adopt the argument FedEx advances on appeal, however, the Commission would be prevented from fully exploring the allegations raised in Merritt's charges, potentially leaving out in the cold thousands of FedEx employees outside the Western Region who might also have been victims of the racial discrimination alleged in Merritt's charges. Additionally, FedEx's argument, if adopted by this Court, would improperly preclude the EEOC from ascertaining during the course of its reasonable investigation whether FedEx has engaged in additional statutory violations not alleged in Merritt's charges and from filing any enforcement action based on those violations. These results would severely undermine the EEOC's ability to carry out its statutory mission – "to prevent any person from engaging in any unlawful employment practice." 42 U.S.C. § 2000e-5(a); see also Shell Oil, 466 U.S. at 61- 62 ("Primary responsibility for enforcing Title VII has been entrusted to the EEOC."), at 69 ("[I]t is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired."). It is no answer for FedEx to argue that "if the EEOC's interests are beyond the Satchell lawsuit, it may file a Commissioner's charge" or "solicit a similar charge from another party and seek the information pursuant to that charge." Br. at 31. Nothing in Title VII requires this, and FedEx cites no authority from this Court or the Supreme Court requiring this result. The EEOC has before it valid charges of discrimination that it is Congressionally mandated to investigate. While the Commission certainly is authorized to interact with individuals, including charging parties and witnesses, to determine if employers are engaging in violations, the Commission's primary role under Title VII is not to solicit charges but to "root out discrimination in employment" through conciliation and enforcement. Shell Oil, 466 U.S. at 77; General Telephone, 446 U.S. at 326 (Congress authorized the EEOC to bring a civil action in order to "implement the public interest as well as to bring about more effective enforcement of private rights."). To force the EEOC to go through the process of obtaining a Commissioner's charge, or to insist that it solicit a similar charge whenever a charging party has filed suit, would seriously delay the EEOC's ability to eradicate workplace discrimination. Amici also argue that requiring employers to respond to an EEOC investigation while defending against a charging party's lawsuit "will work a gross injustice on employers" because of the cost involved in doing so. Am. Br. at 11. Amici also assert, however, that requests from the "EEOC and plaintiff's counsel" would be "duplicative," making it hard to see the "gross injustice." If the requests are duplicative, there is only a minimal additional expense in responding to the EEOC's investigation. If the EEOC requests extra information, the Commission would be acting under its Title VII authorization to investigate charges of discrimination, and the cost to the employer of having to comply would not justify refusing to enforce the subpoena. Indeed, amici's argument on this point is really that the subpoena is overly burdensome. Because FedEx has failed to argue that the cost of complying with the subpoena is unduly burdensome, much less shown that compliance would threaten its normal business operations, this Court should reject amici's argument. See, e.g., EEOC v. Maryland Cup, 785 F.3d 471, 479 (4th Cir. 1986) (holding that the employer failed to show that the estimated $75,000 cost of complying with the subpoena was "unduly burdensome in light of the company's normal operating costs" or that "gathering the information would threaten its normal business operations"). Despite Title VII's explicit enforcement scheme authorizing the EEOC and charging parties to pursue their own separate claims, FedEx contends that the Supreme Court's opinions in Occidental and Waffle House support its view that the EEOC's investigative authority expires when a charging party files suit. As to Occidental, FedEx points to the Court's description of an action filed by a charging party as an "‘alternative enforcement procedure'" and the Court's statement that a private party dissatisfied with the progress of the EEOC's investigation "‘may elect to circumvent the EEOC procedures and seek relief through a private enforcement action.'" Br. at 20 (quoting Occidental, 432 U.S. at 361). According to FedEx, these statements "manifest[] the intent that either a private lawsuit proceeds or the EEOC investigation proceeds, not both." Id. Not so. In Occidental the Court rejected the employer's argument that the 180-day provision in Section 706(f)(1) of Title VII sets out a statute of limitations for EEOC actions, stating, "[r]ather than limiting action by the EEOC, the provision seems clearly addressed to an alternative enforcement procedure: If a complainant is dissatisfied with the progress the EEOC is making on his or her charge of employment discrimination, he or she may elect to circumvent the EEOC procedures and seek relief through a private enforcement action . . . ." Occidental, 432 U.S. at 361; see 42 U.S.C. § 2000e-5(f)(1). This statement merely acknowledges that after 180 days, Title VII gives charging parties an "alternative" to waiting for the EEOC's enforcement procedure to end. Nothing in Occidental supports an argument that the filing of a private lawsuit cuts off the EEOC's authority to complete its investigation, intervene in the charging party's lawsuit and seek to expand the lawsuit, or file its own lawsuit. In fact, the Court's holding in Occidental – that neither the 180-day limitation contained in Section 706(f)(1) nor any state statute of limitations imposes a limitation on when the EEOC can bring suit – underscores the unique role of the EEOC in enforcing Title VII. FedEx also relies on the Supreme Court's statement in Waffle House that if the EEOC files suit, "the employee has no independent cause of action, although the employee may intervene in the EEOC's suit" to support its contention that Title VII prohibits duplicate proceedings. Waffle House, 534 U.S. at 291; Br. at 18. Read in context, however, this statement means only that once the EEOC has filed suit, an employee is foreclosed from instituting a second judicial action but can intervene in the EEOC's action to assert her own claim. Id. The passage of the opinion in which the Court made this statement emphasizes that "once a charge is filed . . . the EEOC is in command of the process" and has exclusive jurisdiction over the charge for 180 days. Id. The Court also emphasized the EEOC does not need a charging party's consent to sue and that the EEOC, not the charging party, decides what relief to seek. Id. In this context, the Court's statement that "if, however, the EEOC files suit on its own, the employee has no independent cause of action, is logically read as referring to the fact that an employee cannot sue her employer in a separate lawsuit once the EEOC has already done so, not that the employee has no separate claim to assert. Nothing in this passage suggests, either explicitly or implicitly, that once a charging party sues, the EEOC's authority to investigate is cut off and the EEOC is precluded from filing any kind of enforcement action. Thus, the district court correctly recognized that although Merritt filed the charges of discrimination in this case, the EEOC is "‘master of its own case'" and therefore "shall determine when its investigation shall cease." ER272 (quoting Waffle House, 534 U.S. at 291) (emphasis added). Once the EEOC has completed its investigation, the Commission will be able to determine whether there is reasonable cause to believe that Title VII has been violated and, if so, can conciliate and, if appropriate, can at a minimum file its own enforcement action seeking relief for victims excluded from the Satchell litigation or for victims of violations ascertained during the EEOC's reasonable investigation. 2. The EEOC's regulations, which are entitled to deference, permit the EEOC to continue investigating a charge after the issuance of a right-to- sue notice. As the district court noted, the EEOC's regulations explicitly permit the agency to continue investigating a charge after issuing a right-to-sue notice. Section 1601.28(a)(3) states: "Issuance of a notice of right to sue shall terminate further proceeding of any charge not a Commissioner charge unless" an authorized official "determines at that time or at a later time that it would effectuate the purpose of title VII . . . to further process the charge." 29 C.F.R. § 1601.28(a)(3). Where, as here, a statute is silent on a particular issue, and the agency charged with the statute's enforcement fills the gap by regulation, the question for the court is whether the regulation "is based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984). If so, the regulation is entitled to deference. See id. at 844-45; see also EEOC v. Commercial Office Prods., 486 U.S. 107, 125 (1988) (O'Connor, J., concurring) (deference is "particularly appropriate" where regulation involves a "technical issue of agency procedure"). Despite the clear language of the regulation, FedEx nevertheless argues that the court erred in relying on it because it does not state whether the EEOC may "further process the charge" after the issuance of a right-to-sue notice and the initiation of litigation by the private party. Br. at 33-34. FedEx fails to cite any authority for this argument, which is meritless. Section 1601.28(a) addresses "Issuance of notice of right to sue upon request." Charging parties who request right-to-sue notices before the EEOC has disposed of their charges are clearly anticipating that they will be filing their own court actions. Thus, the regulation addresses the scenario in which a charging party has requested a right-to-sue notice – almost certainly in anticipation of private litigation – and authorizes the EEOC to continue processing the charge when an authorized official determines that doing so "would effectuate the purpose of title VII." FedEx also makes the half-hearted argument that the phrase "further process the charge" does not refer to further investigation "but rather, appears to contemplate administrative tasks associated with the charge such as issuing a second right-to-sue notice." Br. at 34. Nothing in the regulation itself suggests this interpretation and the EEOC's Compliance Manual refutes it. Section 6.4 of the EEOC's Compliance Manual is entitled "Continued Processing After [Notice of Right to Sue] is Issued." EEOC Compliance Manual § 6.4 (available on Westlaw database at FLB-EEOCCM) (emphasis added). Subsection (e) is entitled "To Otherwise Effectuate the Purposes of Title VII/ADA" and directs investigators to "ordinarily continue investigating when the charge covers persons other than the requestor or involves an acknowledged/documents respondent policy or possible pattern of discrimination affecting others." Id. at § 6.4(e) (emphasis added). Similarly, Section 6.4(d) states that if a subpoena is on appeal to EEOC headquarters when a right-to-sue notice is issued, the investigator should determine whether to "continue investigating," again implying that "continued processing" includes the continuation of the investigation. Id. at § 6.4(d). The only authority FedEx cites to support its assertion is an unpublished district court opinion issued eighteen years ago that merely recognizes that issuing a second right-to-sue notice constituted "further process[ing]" of the charge under Section 1601.28(a)(3). Br. at 34 (citing Robinson v. Int'l Bhd. of Elec. Workers Local 134, 1989 LEXIS 3539, at *10 (N.D. Ill. Apr. 5, 1989)). This opinion says nothing about whether "further processing" excludes continuing an investigation and therefore lends no support to FedEx's argument. Next, FedEx misrepresents the holding of Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999), when it asserts that the court in that case "determined 29 C.F.R. § 1601.28(a)(3) to be invalid." Br. at 34. The issue in Martini was not the validity of Section 1601.28(a)(3) but the validity of Section 1601.28(a)(2), which permits the EEOC, upon a complainant's request, to issue a right-to-sue notice "at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided, that" an authorized official determines it is unlikely that the Commission will finish processing the charge within 180 days. Martini, 178 F.3d at 1339. The employer in that case argued that the EEOC's regulation violated Section 706(b) of Title VII, which imposes a 180-day waiting period for private suits. Id.; 42 U.S.C. § 2000e-5(f)(1). The court ultimately agreed with the employer, reasoning that Section 706(b) imposes a "mandatory and unqualified" duty upon the EEOC to investigate and that an early right-to-sue notice conflicts with this duty because "an early right-to- sue notice typically terminates EEOC investigation of the charge, see 29 C.F.R. § 1601.28(a)(3)." Martini, 178 F.3d at 1346 (emphasis added). Thus, the court in Martini merely recognized that under Section 1601.28(a)(3) the issuance of a right-to-sue notice "typically" terminates an investigation. This is not because the Commission lacks authority to proceed, but because, as a practical matter, the Commission usually does not devote its scarce resources to pursuing investigations after a charging party has requested a right-to- sue notice. But in the unusual case – when an authorized official has determined that it would effectuate the purpose of the Act to continue processing the charge – the regulation permits the investigation to continue. It was in this context that the court dismissed the idea that the EEOC would actually exercise its option under Section 1601.28(a)(3) to continue to process a charge after a complainant had requested and received a right-to-sue notice before the end of the 180-day period, stating, as FedEx argues, "[w]e think it implausible that an agency as chronically overworked as the EEOC would either begin or continue to investigate charges for which it has authorized an alternative avenue of relief." Id.<6> Thus, not only did the Martini court not find Section 1601.28(a)(3) invalid, it actually emphasized the EEOC's duty under Title VII to investigate, which again underscores the EEOC's need to be able to continue processing a charge after issuing a right-to-sue notice. 3. The district court properly adhered to its strictly limited role in determining that jurisdiction was not plainly lacking and therefore in enforcing the subpoena. FedEx argues that once a charging party has sued, Title VII prohibits the EEOC from filing a "duplicative lawsuit." Br. at 18. "If the EEOC cannot institute a duplicative lawsuit," FedEx contends, "then it logically follows that it may not continue to investigate" after the charging party sues, and the EEOC lacked jurisdiction to issue the subpoena. Id. The problem with this argument is that it pertains to the merits of the EEOC's potential claim – i.e., whether the EEOC can bring a future lawsuit at all – and is therefore an improper defense to this subpoena enforcement action. See Children's Hospital, 719 F.2d at 1428 (stating that "agency jurisdiction is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency" and holding that the preclusive effect of a prior consent decree, if any, did not deprive the EEOC of jurisdiction). The only question before the district court, and the only question now before this Court, is whether the EEOC has the authority under Title VII to continue an investigation after a charging party has sued. The answer to this narrow question is yes. This Court has recognized that "a party may not avoid an administrative subpoena on the ground that it has a valid defense to a potential subsequent lawsuit" except in "limited circumstances when the defense is ‘jurisdictional' in nature – i.e., when the agency lacks jurisdiction over the subject of the investigation." EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076-77 (9th Cir. 2001). This Court has said, however, that "even where this [jurisdictional] exception is concerned, the role of a court reviewing a subpoena attacked on jurisdictional grounds is ‘strictly limited.'" Id. at 1077 (citation omitted). "As long as the evidence sought is relevant, material and there is some ‘plausible' ground for jurisdiction, or to phrase it another way, unless jurisdiction is ‘plainly lacking,' the court should enforce the subpoena." Children's Hospital, 719 F.2d at 1430 (citation omitted); see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (stating that if "the evidence sought by the subpoena [i]s not plainly incompetent or irrelevant to any lawful purpose" it should be enforced). In accordance with its "strictly limited" role in reviewing jurisdictional challenges to subpoena enforcement actions, this Court has only rarely held that an employer may challenge the EEOC's jurisdiction at the subpoena enforcement stage. See, e.g., Karuk Tribe, 260 F.3d 1071 (allowing employer to challenge at the subpoena enforcement stage whether the ADEA applies to Indian tribes). Here, the district court correctly concluded that this case does not present one of these rare circumstances. ER273 (citing Karuk Tribe, 260 F.3d at 1077). FedEx has never disputed that it is subject to Title VII or claimed that responding to the subpoena would cause it irreparable injury. Cf. Karuk Tribe, 260 F.3d at 1077 (finding that forcing the defendant, a tribal entity, to respond to the subpoena if the ADEA did not apply to it would irreparably injure its sovereignty). Nor has FedEx ever denied that Merritt's charges raise allegations of racially disparate treatment and disparate impact that are potentially actionable under the statute. Cf. Karuk Tribe, 260 F.3d at 1078 (stating that "this case presents the question whether the" defendant "is subject to the ADEA at all, whatever the facts"). Given the EEOC's "special expertise in interpretation" of Title VII and the fact that FedEx "could, under some set of facts, be found in violation of federal law" – since FedEx admits it is subject to Title VII and that Merritt's allegations of racial discrimination fall under the statute – this Court should find that jurisdiction is not plainly lacking. Id. at 1077-78 (noting that the EEOC lacks expertise in interpreting the ADEA with respect to Indians and distinguishing Endicott Johnson and Children's Hospital as involving "parties that were clearly subject to the federal laws that authorized the administrative investigations"). 4. Hearst and its progeny were wrongly decided and do not control this case. The district court properly declined to follow the Fifth Circuit's opinion in EEOC v. Hearst, 103 F.3d 462 (5th Cir. 1997), which supplies most of the reasoning contained in FedEx's brief. As a Fifth Circuit decision, Hearst is not controlling in this circuit. Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). It was also wrongly decided. In Hearst, as in this case, the employer argued that the EEOC had no authority to issue subpoenas as part of an investigation into two charges of discrimination because the charging parties had requested right-to-sue notices and instituted private actions based on those charges. Id. at 463. Specifically, the defendant argued that because the charging parties, who had brought state law claims, were time-barred from filing suit under Title VII, so was the EEOC. Id. at 464. Although the defendant's argument focused on the 90-day limitation period in Section 706(f)(1) for filing suit after receipt of a right-to-sue notice, the court focused on the 180-day notice provision in Section 706(f)(1). Id. at 468 n.4. The court devoted more than half of its opinion to explaining why "if Title VII were interpreted as we believe the text demands, we logically could conclude only that the EEOC's investigation of a charge must also end . . . after the 180-day period passed – irrespective of whether the charging party elected to sue." Id. at 467. The court reluctantly acknowledged, however, that "this view of Title VII has been rejected by the courts," including the Supreme Court in Occidental and a prior panel of the Fifth Circuit, which have held that the EEOC can file suit more than 180 days after a charge has been filed. Id. at 464-68. Seemingly frustrated over its inability to impose upon the EEOC a 180-day limitation period for completing an investigation or for filing suit, the court went on to partially effectuate its view that there should be a limitation period by holding that once the EEOC issues a right-to-sue notice and a private action is filed, the EEOC's authority to investigate ceases. Id. at 469. According to the Hearst court, the initiation of private litigation ends any need for the EEOC to determine whether Title VII has been violated and to conciliate any disputes, which negates the need for an investigation. Id. Should the EEOC have "any further interest," the court stated, "it may intervene . . . or if its interest extends beyond the private party charge . . . it may file a Commissioner's charge." Id. Hearst is inconsistent with Occidental. The court in Hearst purported to distinguish Occidental on the grounds that it was not deciding "what independent enforcement authority remains with the EEOC now that the private parties have initiated their own enforcement proceedings" but was deciding "only that the time for investigation has passed." Id. This is a meaningless distinction. As discussed above, Title VII prohibits the EEOC from filing suit (or intervening and seeking to expand the lawsuit) unless it has investigated, found reasonable cause, and unsuccessfully sought to conciliate its claim. By holding that the EEOC's investigation terminates when a charging party files suit, the court effectively accomplished what the Supreme Court rejected in Occidental – the imposition of a time limit on the EEOC's ability to file a lawsuit. The Hearst court also failed to explain how its holding could be harmonized with the Supreme Court's finding in General Telephone that Congress intended for the EEOC "to implement the public interest as well as to bring about more effective enforcement of private rights" and that the "EEOC is not merely a proxy for the victims of discrimination." General Telephone, 446 U.S. at 326. The Hearst court additionally failed to harmonize its holding that the filing of a private action cuts off the EEOC's investigation with its prior precedent in Huttig Sash holding that the EEOC can bring suit predicated on, but not limited to, a charge of discrimination, even after the charging party has filed suit and that litigation has ended. Huttig Sash, 511 F.2d at 454. In Huttig Sash, the Fifth Circuit recognized that an EEOC investigation may lead to evidence of Title VII violations that extend beyond the specific allegations in a charge. Id. at 455. When this happens, the EEOC has the authority to bring suit to enforce Title VII as to these newly discovered violations, regardless of whether a charging party has initiated a private action. Id. at 455-56. Under Hearst, however, the EEOC's authority to investigate terminates upon the filing of a private action. Because Title VII requires a finding of reasonable cause before the EEOC can initiate a lawsuit, which in turn is contingent upon the completion of an investigation, Hearst precludes what Huttig Sash explicitly allows – the initiation of an EEOC lawsuit after a charging party has filed a private action. Thus, the court's opinion in Hearst is contrary to precedent from the Supreme Court and its own circuit. This Court should also decline to follow Hearst because it is at odds with EEOC v. Waffle House. In Waffle House the Court held that Title VII "clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake." Id. at 291 (holding that a private party's arbitration agreement does not prevent the EEOC from seeking victim-specific relief). According to the Hearst court, however, the EEOC ceases to be the "master of its own case" at the moment a charging party files a private action, which cuts off the EEOC's authority to continue its investigation and, necessarily, to file its own enforcement action. Because this result is plainly contrary to Waffle House, this Court should decline to follow Hearst and its progeny. See EEOC v. Fed. Home Loan Mortgage, 37 F. Supp. 2d 769 (E.D. Va. 1999) (adopting the reasoning of Hearst and refusing to enforce the EEOC's subpoena); EEOC v. Home Depot, Inc., No. 01-CV-1771 (S.D. Cal. Nov. 8, 2001) (same). 5. FedEx's legislative history argument falls flat because it relies on a proposed amendment that Congress never enacted. FedEx argues that the legislative history of the Equal Employment Opportunity Act of 1972 establishes "Congress's intent to divest the EEOC of its power to investigate a charge once a right to sue notice is issued and the charging party commences litigation." Br. at 20-21. According to FedEx, the "original bills governing EEOC enforcement of civil rights laws" manifest Congress's concern that duplicative proceedings would result if the EEOC's jurisdiction continued past the filing of a private action. Br. at 21 (emphasis added). The problem with this argument, however, is that the House and Senate reports on which FedEx relies pertain to proposed amendments to Title VII that never governed the EEOC at all because Congress never enacted them. See generally North Hills, 544 F.2d at 668-72 (explaining why the legislative history upon which FedEx relies fails to support its argument). By 1972, Congress realized that the "failure to grant the EEOC meaningful enforcement powers" in the Civil Rights Act of 1964 had "proven to be a major flaw in the operation of Title VII." S. Rep. No. 92-415, at 4 (1971) (Addendum D). Accordingly, Congress resolved to amend Title VII. Id.; H. R. Rep. No. 92- 238, at 3 (1972), as reprinted in 1972 U.S.C.C.A.N. 2137, 2139 (Addendum C). Congress was divided, however, over what kind of enforcement powers to give the EEOC. The majority in both houses favored granting the EEOC "cease-and- desist" authority that would have given the EEOC quasi-judicial power to issue complaints, hold hearings, issue cease-and-desist orders, and seek enforcement of its orders in the courts, while the minority favored granting the EEOC the authority to file enforcement actions in federal court after the failure of conciliation. See H. R. Rep. No. 92-238, at 30-31 (1972), as reprinted in 1972 U.S.C.C.A.N. 2137, 2167-68 (Addendum C); S. Rep. No. 92-415, at 17-18 (October 2, 1971) (Addendum D). In accordance with the majority view, committees from both the House and the Senate recommended amending Title VII to authorize the EEOC to issue cease-and-desist orders. Id. Both reports expressed concern about the interrelationship between the EEOC's new enforcement authority and "the existing private right of action" and stated that "duplication of proceedings should be avoided." H. R. Rep. No. 92-238, as reprinted in 1972 U.S.C.C.A.N. 2137, 2148 (Addendum C); S. Rep. No. 92-415, at 24 (Addendum D). The "duplication of proceedings" referred to duplication between an EEOC administrative cease-and- desist proceeding and a private lawsuit. See North Hills 544 F.2d at 669. Therefore, both committees included in the proposed bill a provision terminating the Commission's jurisdiction (over the administrative proceeding) upon the filing of a private right of action. Id. Similarly, when Senator Williams introduced the proposed amendment, he stated that "duplication of proceedings is avoided by termination of one at the commencement of the other" so that the EEOC is divested of jurisdiction when an individual files a private action. 118 Cong. Rec. 295 (1972) (statement of Sen. Williams) (Addendum E). Congress, however, never enacted the proposed amendment. Instead, Congress was ultimately persuaded by the minority's view that the court approach would be more effective than the administrative approach. Consequently, Congress amended Title VII giving the EEOC the authority to sue in court to enforce Title VII. See 42 U.S.C. § 2000e-5(f)(1). Significantly, the amendment Congress enacted actually omitted the provision terminating the Commission's jurisdiction over an administrative proceeding upon the filing of a private action. Id.; see also North Hills, 544 F.2d at 669. Thus, "the quoted reference" in the reports "regarding the preclusion of duplicative administrative and judicial proceedings is entirely meaningless as an illumination of Section 706(f)(1)." North Hills, 544 F.2d at 669. Had Congress intended to amend Title VII to include language terminating the EEOC's authority to continue an investigation after a charging party sues, Congress certainly could have done so since it clearly considered this language at the time it amended Title VII and rejected it. That Congress chose not to adopt this language demonstrates Congress's rejection of the idea that a private party can cut off the EEOC's statutory authority to investigate charges of discrimination merely by filing a private action. See United States v. Fraser, No. 91-50105, 1991 WL 275383, at *1 (9th Cir. Dec. 20, 1991) (attached) (concluding that the failure of the Sentencing Commission to submit a proposed amendment to Congress after considering it showed an intent not to include it). FedEx's citation to EEOC v. Union Oil Co., 369 F. Supp. 579 (N.D. Ala. 1974) is also unavailing. In that case, which has never been cited by this Court, the district court held that the "EEOC loses its power to sue under Section 706(f)(1) upon filing of a private suit involving the same charge." Id. at 586 (emphasis added and footnote omitted). The court never considered the narrower question presented here: whether the EEOC can continue its investigation after a charging party sues. As FedEx points out, in reaching its conclusion the court speculated that the omission from the final bill of the provision cutting off the EEOC's jurisdiction indicated "a belief that the same result was accomplished through the combining of Commission and private party powers in a single subsection with sequential suit rights and cross-rights of intervention." Id. at 585. The only support cited by the court for its interpretation of the legislative history was a passage from the section-by-section analysis of the amended bill stating that "In providing for the individual right to sue in the event that action by the Commission is unsatisfactory or unresponsive, it is not intended that duplication of proceedings should be allowed." Id. (citing 118 Cong. Rec. S2300 (Feb. 22, 1972)). For the reasons set forth above, the court's analysis is incorrect. The court's opinion also lacks persuasive value because the court itself stated that it had "some doubt" about its conclusion. Id. at 580. 6. This Court's precedent does not suggest that the EEOC's authority to investigate terminates upon the issuance of a right- to-sue notice and the filing of a private action. FedEx contends that the district court erred in overlooking this Court's opinions in EEOC v. Pacific Press Publishing Ass'n, 535 F.2d 1182 (9th Cir. 1976), and EEOC v. Children's Hospital, 719 F.2d 1426, which, according to FedEx, "indicate[]" that this Court "would reach the same conclusion as Hearst." Br. at 27. This Court's opinions in Pacific Press and Children's Hospital preceded the Fifth Circuit's decision in Hearst by more than a decade and did not decide the issue presented by Hearst or raised in this appeal. Therefore, the district court did not err in not considering these cases. In Pacific Press, this Court decided an issue the parties had never even briefed: whether the EEOC could seek a preliminary injunction under 42 U.S.C. § 2000e-5(f)(2) when the charging parties had already filed a private action. Pacific Press, 535 F.2d at 1184-85. This Court concluded that the EEOC could not, reasoning that the statute allowed the EEOC to seek a preliminary injunction only "pending final disposition of such charge" and that once the private action was initiated, the charge was no longer "pending final disposition." Id. at 1186.<7> Thus, the issue in Pacific Press was whether the EEOC could obtain preliminary injunctive relief after the filing of a private action, not whether the EEOC's investigation of charges that raise allegations of nationwide discrimination can continue after the issuance of a right-to-sue notice and the filing of a private action limited to employees in eleven states. Significantly, there was no allegation in Pacific Press – as there is in this case – that the EEOC stated in the right-to-sue notice that it was going to continue processing the charge. Therefore, this Court did not consider the Commission's regulation in effect at the time stating that issuance of a right-to-sue notice "‘shall suspend further Commission proceedings unless'" an authorized official "‘determines that it is in the public interest to continue such proceedings.'" Id. at 1189 (dissent) (quoting 29 C.F.R. § 1601.25(d) and noting that neither Title VII nor the Commission's regulations state that a private party's suit terminates the EEOC's administrative phase). Pacific Press is also distinguishable because there the EEOC's action was limited to the two individuals who had already filed a private action, whereas in this case the EEOC's investigation of Merritt's charges, and the Commission's potential action based on his charges, encompasses individuals who cannot join the Satchell lawsuit because that suit is limited to employees in FedEx's Western region. Finally, Pacific Press preceded the Supreme Court's decision in Waffle House, in which the Court stated the EEOC is "master of its own case" and that "absent textual support for a contrary view, it is the public agency's province – not that of the court – to determine whether public resources should be committed to the recovery of victim- specific relief." Waffle House, 534 U.S. at 291. Nor did the district court err in not applying Children's Hospital. In Children's Hospital this Court rejected the hospital's argument that the EEOC lacked jurisdiction to issue subpoenas because the charging parties were limited to the remedies provided by an earlier consent decree. Children's Hospital, 719 F.2d at 1428. This Court emphasized the "strictly limited" role of a district court when an employer attacks a subpoena based on jurisdiction and concluded that although the hospital's res judicata argument might be a defense to a future lawsuit, it did not present a jurisdictional bar to the EEOC's investigation. Id. at 1430. In the penultimate paragraph of its opinion, this Court mentioned in passing what might happen after the subpoenas were enforced and the EEOC had gathered the evidence: . . . the Commission may decide the charges lack [a] reasonable basis and the matter will end if the charging parties do not wish to pursue it. If the Commission finds the charges substantiated, it may be able to secure voluntary compliance with the law . . . . An alternative scenario is a suit by the Commission or the charging parties. Id. Focusing on the final sentence from the passage above, FedEx asserts that, "[c]learly, there are two options: either the EEOC can investigate and attempt conciliation or the charging party can file suit." Br. at 29. This assertion is erroneous. As the above passage establishes, this Court clearly acknowledged in Children's Hospital that the Commission can also file suit following the failure of conciliation. Furthermore, while FedEx would have this Court believe that either a charging party or the Commission may pursue a lawsuit, but not both, Title VII does not support this false dichotomy. Title VII authorizes the EEOC to file its own action going beyond the scope of the charging party's private suit and to remedy any violations it uncovers during the course of a reasonable investigation. Accordingly, Children's Hospital does not support FedEx's argument that "the EEOC's power to investigate expires once the charging party files suit." Br. at 29. 7. There is no authority for FedEx's contention that a district court must refuse to enforce a subpoena if the agency has an alternative means of procuring the information. FedEx argues that "the district court erred in allowing the EEOC to continue the Merritt investigation" because the EEOC has an alternative means of procuring the requested information. FedEx points to a similar charge of discrimination filed by another of its employees, Paul Chiquete, and notes that the EEOC served on FedEx a subpoena based on that charge. Because Chiquete has not filed suit, FedEx has not contested the subpoena. Br. at 32. Therefore, FedEx argues, "the termination of the EEOC's jurisdiction to investigate Merritt's charge in no way impacted its ability to address the claims asserted in the charge because the EEOC is currently investigating those very claims in the Chiquete matter." Id. Accordingly, FedEx contends, "the district court erred in allowing the EEOC to continue the Merritt investigation." Id. FedEx fails to cite any binding authority for the proposition that a district court must refuse to enforce a subpoena if the EEOC may obtain the same information based on a different charge. Br. at 31-32. Nothing in Title VII supports this assertion. Instead, the statue states that the EEOC "shall make an investigation" after a charge is filed and that the EEOC "shall . . . have access to . . . any evidence . . . that relates to unlawful employment practices covered by this title and is relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). FedEx would have this Court read into the statute a requirement that the text does not even hint at – that the EEOC is entitled to evidence only if there are no other pending charges of a similar nature that could also form the basis of a subpoena request. FedEx's assertion in this regard is also somewhat disingenuous. Chiquete could file suit at any time. If the Court adopted FedEx's argument in this case, then upon the filing of Chiquete's suit the Commission would be unable to obtain the information it now seeks. Thus, this Court should reject FedEx's argument. 8. The EEOC's Compliance Manual does not require the Commission's investigation to terminate once a charging party files suit. FedEx contends that the "only [] logical inference" to be drawn from Section 83.4 of the EEOC's Compliance Manual (Addendum G), which states that information should be disclosed to an employer if the charging party has filed suit, is that the EEOC itself considers an investigation closed once a charging party has filed suit. Br. at 35-36. This argument is meritless. As already discussed, the Commission's regulation at 29 C.F.R. § 1601.28(a)(3) explicitly permits an EEOC investigation to continue after it issues a right-to-sue notice. This regulation, then, sets forth the Commission's view that its investigation can continue past the issuance of a right-to-sue notice and, by implication, past the initiation of a lawsuit by a private party. Therefore, the EEOC's denial of FedEx's FOIA request for a copy of the file on Merritt's charges does not dictate the conclusion that the EEOC is without authority to continue an investigation after a charging party has initiated litigation. To the contrary, that denial was entirely consistent with the statement in the right-to-sue notice that the EEOC would continue processing his charges. ER38. B. The EEOC Established that the Subpoena Seeks Relevant Evidence. 1. FedEx waived any relevancy argument. FedEx waived any argument that the subpoena seeks irrelevant evidence by failing to develop it on appeal. This Court has repeatedly held that "[i]ssues raised in a brief but not supported by argument are deemed abandoned absent manifest injustice." Humble v. Boeing, 305 F.3d 1004, 1012 (9th Cir. 2002); see also Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) ("[I]n general, we will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief.") (citations and quotation marks omitted); Fed. R. App. P. 28(a)(9)(A) (stating that the argument section of a brief "must contain" "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies"). FedEx's only reference in its Argument section to the relevancy requirement comes at pages 39-40 of its brief. In its heading, FedEx asserts that the court erred in finding that the subpoena seeks relevant information. Br. at 39. FedEx also cites cases setting out the general requirement that the EEOC show relevancy. Br. at 39-40. But FedEx fails to set forth any substantive argument as to why the information requested by the subpoena in this case is irrelevant. Br. at 40. The only sentence in the text pertaining to the subpoena in this case is, "As the subpoena at issue impermissibly requires FedEx to identify information related to matters outside the scope of Merritt's original and supplemental charges, the district court decision to enforce the subpoena should be reversed." Id. This is a conclusion, not an argument, and is unsupported by any citation to the record or cases. FedEx's footnote on page 40 is also insufficient to raise its argument because it, too, contains no citation to any authority and because this Court has held that an argument raised in a lone footnote without citation to any authority has been waived. United States v. Alameda Gateway, 213 F.3d 1161, 1168 (9th Cir. 2000). Finally, amici's discussion of the relevancy requirement is at least somewhat developed, but absent exceptional circumstances this Court does "not address issues raised only in an amicus brief." Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719 n.10 (9th Cir. 2003). 2. The subpoena seeks relevant evidence. Even if this Court were to find that FedEx properly raised the relevancy issue on appeal, this Court should affirm the district court's finding that the EEOC showed that the subpoena requested relevant information. ER272; Children's Hospital, 719 F.2d at 1428 (EEOC has the burden to show relevancy). Congress granted the EEOC broad power to obtain access to any evidence that is "relevant to the charge under investigation." 42 U.S.C. § 2000e-8(a). "Since the enactment of Title VII, courts have generously construed the term ‘relevant' and have afforded the Commission access to virtually any material that might cast light on the allegations against the employer." Shell Oil, 466 U.S. at 68-69 (emphasis added); see also EEOC v. Roadway Express, 750 F.2d 40, 43 (6th Cir. 1984) (holding that the relevancy requirement "does not . . . force the EEOC only to review evidence concerning the specific charge"); EEOC v. Elrod, 674 F.2d 601, 613 (7th Cir. 1982) (agency may seek any information that "touches a matter" under investigation); Blue Bell Boots v. EEOC, 418 F.2d 355, 358 (6th Cir. 1969) (holding that information concerning "job classifications or hiring situations other than those of the complaints" is relevant to showing a pattern of race discrimination and "in framing a remedy") (cited with approval in Shell Oil, 466 U.S. at 69, n.20). The district court properly concluded that "the subpoena at issue [is] relevant to the charge[s] under investigation" and that the "categories in later refinements of information requested by the EEOC are, if not directly relevant, sufficiently pertinent to the collection of relevant data that they fall under the umbrella of relevance and materiality." ER272. The court also addressed FedEx's argument that although the subpoena requested information that would make it more convenient for the EEOC to fashion future requests for employee data, "convenience" was not a factor to be considered. Id. The court rejected this argument, finding that the information the EEOC intended to request later was relevant to the charges and that the subpoena simply "minimize[d] the burden on FedEx's collection and the EEOC's receipt of relevant data." ER273. Finally, the court called FedEx's bluff, stating that "if convenience is indeed not a factor, FedEx is free to petition the Court so that [FedEx] can collect and provide relevant employee data in toto." Id. at n.1. The court's finding of relevance was correct. Merritt's charges raise broad allegations of a pattern and practice of racial discrimination as to promotions, discipline, unfair performance evaluations, and fair compensation, and raised allegations of both disparate treatment and disparate impact, based on FedEx's use of the BST. The subpoena simply requests that FedEx provide information about its computer and machine-readable files that will enable the EEOC to issue future requests for information about FedEx's employment practices that conform to the way in which FedEx maintains its files. ER41-42. Given the nature and broad scope of Merritt's charges, the subpoena is eminently reasonable because it requests "material" that will "cast light on the allegations against" FedEx. Shell Oil, 466 U.S. at 68-69. Although FedEx argued below that the subpoena was irrelevant because it requested information about FedEx's computer files instead of about its employee records or practices, the Fourth Circuit has held that an EEOC's subpoena request for "identification of the computerized personnel information maintained by" an employer "is directly relevant to [EEOC's] investigation" of a pattern of age discrimination, noting that "identification of computer files allows the Commission to tailor subsequent requests to obtain the most relevant data." EEOC v. Lockheed Martin Corp., 116 F.3d 110, 113-14 (4th Cir. 1997); see also Graniteville Co. v. EEOC, 438 F.2d 32, 41-42 (4th Cir. 1971) (holding that the EEOC's request for the key to the employer's computer codes indicating the department and job assignments of employees was "highly relevant" to charge allegations of discriminatory promotion policies and classification of jobs by race), disapproved on other grounds, Shell Oil, 466 U.S. at 62 n.11. In its section on the purported overbreadth of the subpoena, FedEx argues that Lockheed is somehow inapposite to this case because there more than 20 former employees contacted the EEOC and here there is just a single charge, but this distinction has nothing to do with whether a request for information about an employer's computer files is relevant. Br. at 42. Moreover, because Merritt's brought his charges on behalf of himself and similarly situated African-American and Latino employees in FedEx's eleven-state Western region, the EEOC's investigation in this case – as in Lockheed – concerns systemic discrimination. Amici also argue that Lockheed is distinguishable because the EEOC's ADEA authority, unlike its Title VII authority, is not dependent on a charge being filed, but the Fourth Circuit's analysis did not rest on this distinction, either explicitly or implicitly. Am Br. at 23-24. C. FedEx Failed to Meet its Burden of Showing That the Subpoena was Overbroad. Because the EEOC established that it has the authority to issue the subpoena and it requests relevant evidence, the burden was on FedEx to show that the subpoena was overbroad.<8> Children's Hospital, 719 F.2d at 1428. FedEx failed to meet its burden of proof. On appeal, FedEx contends that the "demand for personnel information concerning applicants, hiring, job analyses, evaluations, demotions, training, and terminations" are beyond the scope of the claims in the charge. Br. at 41; see also Br. at 42 (asserting that the subpoena requests "personnel information"). This contention, however, mischaracterizes the nature of the subpoena request. The subpoena does not request any personnel information at all. Instead, it permissibly seeks only information about FedEx's computer or machine-readable files that contain this type of information and about codes that are used in them. It is well established that the EEOC "has the authority to compel the company to produce evidence that does not presently exist in documentary form," Maryland Cup, 785 F.2d at 478, and FedEx does not categorically argue that the EEOC cannot obtain information about FedEx's computer systems. For the reasons discussed above explaining why this information is relevant, this Court should find that the request for it is not overly broad. Although FedEx cites Manpower, Inc. v. EEOC, 346 F. Supp. 126 (E.D.Wis. 1972), this district court opinion does not advance FedEx's argument. In Manpower, the court found all of the information requested by the EEOC's subpoena relevant except for the agency's request for "any and all like or related records." Id. at 128-29. Here, the EEOC is not seeking any records at all. The subpoena requests information about "any computerized or machine-readable files" that "contain data on personnel activities." ER41. This is a narrow request. While FedEx points to the "and so forth" language in the request, that language comes at the end of a long list of examples of what kind of data might be in those files – it does not, as in Manpower, serve as a "catch-all" description of documents the EEOC is requesting. Id. In fact, the subpoena is designed to solicit information from FedEx that will enable the EEOC to draft a future request for employee documents that will not be overly broad. The EEOC's ability to do this is made more critical by the systemic nature of the allegations in the charges. Lockheed Martin, 116 F.3d at 114 (holding that "the efficient search for relevant information is imperative in a case" involving multiple claims and that without identification of computerized information maintained by the employer "both the EEOC and the employer could be overwhelmed by the sheer quantity of information needed to address each claim treated individually"). Citing EEOC v. Packard Electric Division, 569 F.2d 315, 318 (5th Cir. 1978), FedEx also argues that the subpoena is overbroad "as to the requested class information." Br. at 41. Once again, however, the subpoena does not request any information about any particular class of employees; it merely requests information about FedEx's computer and machine-readable files containing this information. Even if the subpoena had requested employee information, Packard Electric is inapposite. In that case, the EEOC was investigating individual charges of discrimination complaining of "relatively narrow factual situations" but issued a subpoena seeking "broad statistical information as to the . . . entire work force." Id. at 316. On appeal, the court held that the district court's conclusion that this evidence was irrelevant to the investigation was not clearly erroneous. Id. at 318. Here, in contrast, Merritt filed his charges on behalf of himself and other minority employees in eleven Western states and made allegations raising the specter of nationwide discrimination. Therefore, even if the EEOC's subpoena had requested information about FedEx employees outside its Western Region, Packard would be distinguishable. Amici also argue that the subpoena is overbroad because it requests a "roadmap" of all computerized files although Merritt's charges allege discrimination only as to promotions, discipline, evaluations, compensation, and leave. Am. Br. at 21-22. The EEOC's investigation of a charge, however, is not limited to the allegations in the charge. See, e.g., EEOC v. Roadway Express, Inc., 261 F.3d 634, 639 (6th Cir. 2001) (holding that subpoena requested relevant information although it asked for evidence about gender and race discrimination as to certain categories of positions that were not alleged in the charge). The five broad categories of employment actions alleged in Merritt's charges, together with his allegation of a pattern and practice of racial discrimination spanning eleven states, warrants asking for basic information about all of FedEx's computer files with personnel information. FedEx additionally argues that the subpoena's temporal scope is overbroad because Merritt's December 2, 2004, charge complains about his failure to pass the BST over a year before filing his charge and is therefore untimely. Br. at 42-43. It is difficult to understand FedEx's argument on this point because FedEx appears to be making an improper backdoor attack on the timeliness of the charge, not the temporal scope of the subpoena (in fact, FedEx does not even mention the temporal scope of the subpoena, which reasonably requests information about computerized files maintained since January 1, 2003).<9> See, e.g., Maryland Cup, 785 F.2d at 476 (subpoena request for information during the three years preceding a charge was relevant to whether the company engaged in a pattern of discrimination). In any event, FedEx's argument as to the timeliness of the charge is wrong, as FedEx fails to acknowledge that on June 29, 2005, Merritt supplemented his charge, alleging that he took and failed the BST on May 24, 2005. ER34-35. Moreover, Merritt's original charge complained of being denied "multiple promotions" on unspecificed dates and explicitly complained of disparate treatment that occurred within 300 days of the filing of his charge. ER30 (complaining of harsher discipline received in "February of this year" and of being denied leave without pay "approximately six months ago"). Accordingly, there is no timeliness issue that could even theoretically impact the temporal scope of the subpoena. Finally, FedEx argues that the subpoena is geographically overbroad because it seeks personnel data regarding employees outside the Western Region. Br. at 43-44. As has been thoroughly discussed, however, the subpoena does not seek any personnel data about any employee. If and when the EEOC ever issues a subpoena requesting personnel data regarding employees outside the Western Region, FedEx can raise its geographical argument then. Amici additionally contend that when the agency issues a subpoena seeking information pertaining to issues outside the charge, it "disposes of the statutory notice requirement and unfairly robs the employers of [its] ‘due process guarantees.'" Am. Br. at 25. Amici's argument on this point is somewhat convoluted, but it seems that amici are contending that FedEx did not have notice that Merritt's charges raised the specter of nationwide discrimination or that the EEOC might therefore seek general information about FedEx's computer and machine readable files. Thus, amici seem to suggest, the subpoena request is overbroad. This is not an argument FedEx made in its brief, and it lacks merit. Merritt's charges explicitly state that they are brought on behalf of himself and similarly situated African-American and Latino employees in FedEx's Western Region, which encompasses eleven states, and complain about a pattern and practice of discrimination. ER29-30, 34-35. Thus, FedEx had notice that the EEOC would be investigating allegations of systemic discrimination in at least eleven states. Because the charge allegations are so broad, FedEx also had sufficient notice that the EEOC might institute a broader investigation and might, at the very least, inquire about FedEx's computer and machine readable files containing personnel information. CONCLUSION For the reasons stated above, the Commission requests that this Court affirm the court order enforcing the EEOC's subpoena. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE S. DAVIS Acting Associate General Counsel ___________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Rm. 7042 Washington, D.C. 20507 (202) 663-4724 March 8, 2007 STATEMENT OF RELATED CASES This appeal is not related to any other known case pending in this Court. CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i). The brief contains 13,995 words. ______________________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief this 8th day of March, 2007, by overnight mail, postage pre-paid, to the following: Counsel for Defendant-Appellant David A. Billions Federal Express Corporation 3620 Hacks Cross Rd., Bldg. B, 3rd Fl. Memphis, TN (901) 434-8533 I, Anne Noel Occhialino, hereby certify that I mailed two courtesy copies of the foregoing brief this 8th day of March, 2007, by U.S. Mail to the following: Counsel for Amici Rae T. Vann Laura Anne Giantris McGuiness Norris & Williams, LLP 1015 Fifteenth St. NW, Ste. 1200 Washington, DC 20005 (202) 789-8600 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION, Office of General Counsel 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 (P)(202) 663-4724 (F)(202) 663-7090 *********************************************************************** <> <1> Section 1601.28(a)(3) states, “Issuance of a notice of right to sue shall terminate further proceeding of any charge not a Commissioner charge unless” a designated EEOC official “determines at that time or at a later time that it would effectuate the purpose of title VII . . . to further process the charge.” 29 C.F.R. § 1601.28(a)(3) (emphasis added). A designated official made this determination. ER38. <2> Because most of the amici’s arguments are the same as FedEx’s, this brief only refers to the amici’s arguments when they differ from FedEx’s. <3> The Commission notes that the EEOC is not in privity with the Satchell plaintiffs and therefore would not be bound by any judgment in the Satchell litigation. See Pemco, 383 F.3d 1280 (the EEOC is not in privity with private plaintiffs). <4> This Court also held in Goodyear that the EEOC’s claim for back pay on behalf of the charging party was mooted by her settlement agreement, suggesting that the EEOC could not file its own action seeking the same relief as that achieved in a private action. Goodyear, 813 F.2d at 1543. In Waffle House the Court cited Goodyear as an example of a case in which the charging party’s actions “may have the effect of limiting the relief that the EEOC may obtain in court,” but the Court’s opinion left this issue open. Waffle House, 534 U.S. at 296-97. It is thus unclear after Waffle House whether a private party’s settlement precludes the EEOC from seeking additional, but not duplicative, monetary relief. See also EEOC v. Continental Airlines, No. 04-C3-055, 2006 WL 3505485 (N.D. Ill. Dec. 4, 2006) (applying Waffle House where the charging party settled her suit and holding that the EEOC could seek monetary relief at trial but that the amount awarded would be offset by the amount paid under the settlement) (attached). <5> The district court reasoned that an EEOC investigation must be able to continue after a charging party files suit because Commissioner charges are predicated upon the EEOC’s initial investigation of a charge. ER272. While prior to 1972 this was true, Commissioner charges need not now be predicated on charges. See Shell Oil, 466 U.S. at 62. <6> The Court’s belief was incorrect, as this case demonstrates. <7> This Court also concluded that charges subsequently filed “may theoretically still be subject to the administrative process” but that “their close relationship with the first charge, now the subject of a private action, makes injunctive relief . . . inappropriate.” Id. <8> Although FedEx asserts in its heading at page 39 that the subpoena is unduly burdensome, it fails to develop this argument at all and therefore waived it. See Humble, 305 F.3d at 1012. <9> Even if FedEx’s argument could be construed as a challenge to the timeliness of Merritt’s charges, “[t]his [C]ourt has held that it is premature to allow a party being investigated to raise a statute of limitations defense to an EEOC demand for documents; even assuming that the timeliness of a complaint is jurisdictional . . . the agency should be allowed to investigate to make the determination whether the violation is continuing nature, thereby providing it with jurisdiction.” Children’s Hospital, 719 F.2d at 1429-30.