basic principle that no one should disagree with and that's this unlike other federal agencies the e e o c authority to investigate is not unlimited it's  be tied to an actual charge a valid charge and in all the years that the e e o c has been issuing subpoenas going back to the one nine hundred seventy s there's never been one case we have not found one in the commission is not cited one in which a court has held that the e e o c may continue to investigate even after a court has ruled on the merits that the underlying charge should be further investigation is needed to decide whether to bring a charge sometimes there's no and it seems reasonable to allow that brought the issue to the agency's attention i am having trouble here the key to this is that the way congress structured title seven is proposition and no one could disagree with the reverse is also true there's no case that says these three can't keep going the only the only case we know of where there was a full resolution was an arbitration case and the u s he was allowed to continue well if you want to speaking of the waffle house case in that case the supreme court did not touch the question of the how long the investigative function continues that's no that's exactly right but that's it's my point there well on time out their sense their jurisdiction depends on a charge of the charge now been resolved this whole thing is moot why are we even discussed and exactly in that case since the an arbitrator decides it or court decides it it's still the people who brought the charge or still done there done what the and the ego there is no charge i mean your theory is the charge there's no one bringing a charge or a court it shouldn't and this is i would go back to this court's decision and united airlines where the court very clearly stated that  even there once the court decided that the e e o c has no justification to continue an investigation if there is a valid defense and that's and that's what the important distinction between waffle house in this case is waffle house who's asking the question may the commission go forward with an enforcement action and it can this case ask them far different question may it continue with this investigative function even after the supporting its claim that the e e o c is not required to file a separate commissioner's charge when it's covers additional discrimination during an investigation and of enforcement exactly right and i think this is where the waffle house he goes does become instructive because there's the phrase that the commission is the master of it's charge and that's just the point the e e o c holds the  for how long it's going to investigate it can investigate for two months it can investigate for a year it can investigate for two years that's up to the e e o c but when it decides and this is its functions and that's why this limited investigation is so important in why it's so in why it's unlike any other federal agency that once it makes its own decision then the purpose of the investigation we're not judge easterbrook seems to have decided for the seventh circuit and watkins that once the charges filed the yosi is free to continue regardless of what happens with the private parties right or it could continue unless and this is you know walk ins that was a case where the the commission had not issued a right to sue letter and that's a critical to critical distinction watkins there the problem was that the party was trying to basically knock off the investigation with the settlement before a right to sue got or had been trying to find some qualification and i realized rick has a tendency to write in sweeping phrases but i'm for trying to find any qualification in the language that he is and watkins he says to sum up a valid charge was filed and it gave the e e o c the party investigate period that's correct and that the critical distinction is that but again the awful house is not an investigation case it's an enforcement case and that's an important distinction here because it's no one would keep the e e o c from simply saying where we're going to go forward with an enforcement case i would have prevented yes you can you can always after it's completed this investigation you can you can decide that yet the e e o c would like to go forward with enforcement rather than let the private party go forward that's its choice it always has that choice and it could intervene at any point if you or your argument is essentially that under their own procedural rules they're done once the a private parties are given a right to sue letter with this important qualification a choose regardless of what happens with the private party action but there but there the statute and even common sense i would suggest trying to says there's got to be an end you can't continue forever when the charge is dead yeah  your position allow an employee is stonewall the e e o c until a case is resolved on the merits and then claim there's no longer a basis to investigate i mean i am i am concerned in a situation like the one we have here where the merits were decided in the northern district of illinois and the e e o c subpoena actions were litigated in the eastern district of wisconsin just that allow enforcement proceeding if we don't comply but if they're stonewalling a private party having issued a notice of right to sue so they would they could intervene but you're saying they can't do their own independent investigation anymore once the one they right to sue the private party that brought the original charge is now litigating that issue the employer is being obstructive or the the individual doesn't have the resource has the e e o c can obviously intervene in that lawsuit they can enter why can't  proceed with up for their investigation because here's the critical point is once the issue that right to sue letter in the private party begins its litigation the e e o c cannot then but there's no there's nothing in the rule that says b o c can't do that there's this there's no statement in the rule that says that's the end of the e e o c is authority other than to intervene in a lawsuit the fifth circuit agrees ninth circuit doesn't agree and we don't even really have to decide because we're out at another end which is why the claim is done right and we're saying before you even get to the the nice circuit this circuit split our cases even beyond that because now we've got a decision on the merits but the charge is debt if the charges dead at that point the statute there's no point to investigating anymore these deals he is given two options either in intervene or file a commissioner's charge but what would be the point would be the purpose  investigating a charge that's now debt it can't do anything other than do what the statute said here your other two options those are the tools that he has two other tools this other tool it serves no useful purpose it's called the statute itself is telling us that there is an end point here it can't go on forever i know you want to save your time but i understand you to be arguing that it's want you to settle this as a term of the settlement no more no more settlement and that's where this court said you're trying to stifle the settlement process by doing that that's not our case our cases some specific facts that kind of put to rest this notion that the charge at issue here in the litigation regarding the charge by the private parties is the same thing as what's being investigated by the commission now the charge that was filed by the charging parties was indicating that they had been discriminated against on the basis of race and in retaliation for gauging a protected activity when you know tips or you pacific fail to let them take the test for the a f p promotion process when they went to district favorite party decided not to not to pursue one of them they decided not to pursue that exactly they decided not to pursue exactly the chart claim that is at issue in the commission's investigation and the e e o c chose not to intervene to press say is now the important claim that the e e o c wants to investigate was not going to be perceived as president it may be any purpose to intervening in trying to push that advance for because again the commission is even had a chance to determine whether there is merit to that charge when there is a process the commission that again reiterating what was announced by the supreme court in waffle house that is the commission that has control over the investigation administrative process and that control survives any resolution between the charging parties and the imp a logical process here and they thought they were going to be o c but it is true that the original process resulted in a right to letter and unlike  about what happened here what the commission's actually investigating and what was litigated is that again is recognized in watkins motor winds and elsewhere there is a broader public interest the commission is interested in vindicating and it goes beyond the interests of the parties and the courts shouldn't be interpreting the statute in the commission of the order to undermine the commission's ability to indicate on behalf of the broader class and that's exactly what we're trying to do here permitting the charging parties to determine when the commission into the investigation goes directly against th to investigate after charges and trial and isn't it unduly let me just jump on that because i'm interested in that as well that it isn't unduly burdensome for the e e o c to continue investigating a charge several years after the right to sue notice has been issued so really sensually the same question as judge rover's well your honor specifically before i get to the notion of what authority the resurrection i just want to say that you know determining whether or not there's some kind of burden that there's something that's unfair and something that's a message to incumbent on the employer during the process that's a case by case of terminations we can have a charging party who makes what could be facially almost a frivolous claim and then something that stands for a larger proposition and they are determined what occidental stood for and say it was that for example the one hundred eighty day time frame it's in the statute speaks to the protection congress wanted for the charging party to be able to protect and indicate the wrong rights but the court also said well if the commission  distinction that what we're investigating here is different from what they what they tried to parse litigated in court and again this notion that the allowing the charging parties to go ahead and limit the commission can have real consequences because in this case you know it's the charging parties made there they they pursued their private action and then when they lost the appeal to this court now again this court the commission is investigating whether or not there was a pattern or practice of race discrimina the a s b hiring process and what this court noted on appeal was that the charging parties had done a woeful job of developing the record on exactly that process what this court stated if i may quote quickly is that is worth noting at the outset and again this is in earth's and jones vs union pacific railroad company seven ninety three f third six ninety four and this is at six ninety seven ninety eight so in other words if in the private case an adequate counsel po that but because again that's because of the purpose behind the statute and empowering the commission to continue investigating beyond what ever conduct the charging party me you could even see simply issue a commissioner's charge i possible valid claim to go forward based on what happened these charges parties yet we can somehow just turn around and issue a commissioner's charge without there being any valid factual basis for doing so i think that's absurd  ion of course you could that in the face of a principle that says that there is no more possible violation when there's been an an adjudication by a private party that seems to be in conflict and then in terms of the amicus your your your position would be you but with all due respect to the court there was no authority offered in support of that proposition and it runs directly contrary to what the supreme court said in shell oil which predates you know to do it where the supreme court said and this is a four six six us seven o two no question whether or not the commission can enforce it it's not about whether or not there are some ready to the merits of the charge before the commission is allowed to perform its administered function how much time does one want to address the overall theme that the commission needs to have somehow unending authority in order to protect the public interest and in many ways that was not amending its counsel said if this goes on too long i mean a motion can be filed the before the district court because you really don't have any statutory support for your position or case law that supports you in terms of setting a deadline in it in terms of your right like because of the our position is that if you read that the structure in that it has to tools it always does have the tools and it is the master of its charge you can take as long as it wants to investigate but it has issued a right to sue without underneath it right but if it decides to do that or if it doesn't i don't know it may take as long as it wants to issue right but you're saying by issuing the right to sue relinquishing any further powers for this and this tool but it then he has the tool to intervene and also has the tools to file the commissioner's charge and that's the way the statute put together to prevent yeah because if it is earning with a council that is not skilled or the pleadings are and in terrible shape the e e o c could be bounced also by what happens in that particular case if they intervene well if they if they intervene early they're going to develop the case in a way that they think protects the overall public interest aside from whatever you choose that right you want to say is sometimes and they're at odds in the price of the private lawsuit and the charge and and that's that's how the statute is put together i see my my time is up unless the rather questions thank you thank you thanks to both