PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION,

Petitioner-Appellee,

v.  No. 09-2263

WASHINGTON SUBURBAN SANITARY

COMMISSION,

Respondent-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(8:09-cv-00825-AW)

Argued: December 8, 2010

Decided: January 26, 2011

Before WILKINSON and NIEMEYER, Circuit Judges,

and Patrick Michael DUFFY, Senior United States District

Judge for the District of South Carolina,

sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Niemeyer and Senior Judge Duffy

joined.
COUNSEL

ARGUED: Todd James Horn, VENABLE, LLP, Baltimore,

Maryland, for Appellant. Susan Ruth Oxford, EQUAL

EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellee. ON BRIEF: George W. Johnston,

VENABLE, LLP, Baltimore, Maryland, for Appellant. P.

David Lopez, General Counsel, Carolyn L. Wheeler, Acting

Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Washington, D.C., for Appellee.

OPINION

WILKINSON, Circuit Judge:

The Washington Suburban Sanitary Commission

("WSSC"), a public utility, restructured its Information Technology ("IT") Department by eliminating essentially all of its

merit-system positions and replacing them with reorganized,

non-merit-system ones. Some of the displaced employees

filed an age discrimination complaint with the Equal Employment Opportunity Commission, alleging that WSSC conducted the restructuring in violation of the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

The EEOC subpoenaed WSSC for records related to the

restructuring and to the IT Department’s training practices,

employment policies, and discrimination history. WSSC

declined to comply: it argued that legislative immunity and

privilege shielded the materials because the restructuring was

partially accomplished through county budget processes.

After the EEOC dropped certain portions of its request, the

district court ordered WSSC to comply with the remainder of

the subpoena. 

2 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
WSSC now appeals that order, again pressing its claim to

legislative immunity and privilege. We recognize the great

importance of protecting legislators from intrusive and costly

inquiries into their legislative acts. But we decline to intervene in the EEOC’s investigation at this time. It is simply too

early to tell whether the investigation will ever involve the

application of coercive process against legislators and accordingly premature to address speculative claims of legislative

privilege. The order of the district court is therefore affirmed.

I.

A.

WSSC is a bi-county governmental body providing water

and sewer services to most of Prince George’s and Montgomery Counties in Maryland. See generally Md. Code Ann. art.

29, § 1-101 et seq.; Katz v. WSSC, 397 A.2d 1027, 1032 (Md.

1979) (characterizing WSSC as a state agency for sovereign

immunity purposes).1 It is led by six commissioners, and each

county selects three of the six. In 2005 WSSC hired a new

General Manager, Andrew Brunhart, and a new Chief Information Officer, Goutam Kundu. Kundu was in charge of

WSSC’s IT Department. Late that year Kundu conducted an

assessment of the IT Department and concluded that it needed

to be restructured, with essentially all of its current, meritsystem positions eliminated and replaced with newly created,

non-merit ones. WSSC contends that eliminating the old positions in favor of new, non-merit ones allowed WSSC to offer

higher salaries, thereby attracting more highly skilled employees and alleviating the problems that Kundu found to be

affecting the IT Department.

1The applicable provisions of Maryland law have been revised and relocated since the events in question, but without relevant substantive change.

See generally Md. Code Ann., Pub. Utils. § 16-101 et seq. (LexisNexis

2010). 

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 3
The proposed changes required an increase to the IT

Department’s proposed Fiscal Year ("FY") 2007 budget. General Manager Brunhart forwarded the changes, along with the

rest of the proposed WSSC budget, to the WSSC Commissioners. The Commissioners met to discuss the budget, and

they reviewed details regarding the proposed IT reorganization. The Commissioners voted to send the preliminary budget, including the changes stemming from the restructuring, to

a public hearing. In February 2006 Kundu made another presentation to the Commissioners regarding the reorganization,

and they voted in favor of the proposal. Shortly thereafter,

they unanimously approved the FY 2007 budget at a public

meeting, sending the proposed budget on to the county executives.

Maryland law required the county councils to review

WSSC’s budget and gave the councils authority to "add to,

delete from, increase, or decrease [a budget] item." Md. Code

Ann. art. 29, § 1-204(c)(1)(ii). Accordingly, WSSC also had

discussions with the councils about the proposed restructuring. County participants at a budget session asked for details

about financial aspects of the restructuring, and WSSC provided the county executives and county council members

information about the restructuring’s purpose and impact.

Both county councils addressed, to some degree, the proposed

restructuring. A subcommittee of the Prince George’s County

Council devoted a meeting to the topic, with some members

expressing concerns about the impact on current employees.

The full council, however, completed its review of WSSC’s

proposed budget, including the IT Department restructuring,

without recommending any changes.

Similarly, a subcommittee of the Montgomery County

Council received a report that contained an analysis of the

budget’s impact on employment. After a hearing at which one

council member expressed some concerns about the restructuring, the subcommittee as a whole made no recommenda4 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
tion either way.2

 The entire Montgomery County Council then

met, with some members again voicing concerns about eliminating the merit positions. However, the council ultimately

sent budget recommendations to Prince George’s County that

made no mention of the restructuring or of its accompanying

IT Department funding increase.

The two counties met to resolve unrelated disagreements

regarding the FY 2007 budget. After the counties failed at this

effort, however, the proposed budget became final by operation of law. Before implementing the restructuring, WSSC

notified current employees of the plan, encouraged them to

apply for positions in the restructured department, and provided them with transitional support. On July 21, 2006—after

all the new positions had been filled—current employees who

were not offered post-restructuring jobs were told that August

6 would be their last day on the job.

B.

Not everyone was happy about the restructuring. In October 2006, Colleen Bowen and fifteen other former employees

filed suit in Maryland state court against WSSC, the WSSC

Commissioners, Brunhart, and Kundu. Plaintiffs alleged that

the restructuring violated Maryland law and WSSC’s own

policies regarding merit system positions, that it violated the

plaintiffs’ due process rights, and that it impermissibly discriminated against them on the basis of their age. In December 2006, Bowen and fourteen others also filed age

discrimination charges against WSSC with the EEOC. They

2Some were concerned that WSSC lacked authority to eliminate the

merit positions. WSSC requested advice from the Maryland Attorney General’s Office on this question and was informed that under Md. Code Ann.

art. 29, § 11-103, it could eliminate the merit positions so long as it had

a bona fide reason to do so. WSSC also received permission to eliminate

the merit positions from the Secretary of the Maryland Department of

Budget and Management, the only official whose authorization was necessary for WSSC to eliminate the positions. 

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 5
alleged that WSSC discriminated against them in training

decisions made prior to the restructuring, that the restructuring was actually motivated by a desire to eliminate the older

workers and to avoid paying their approaching retirement

benefits, and that WSSC discriminatorily hired undertrained

younger workers to fill the new positions.

WSSC responded to the state and federal proceedings by

asserting legislative immunity and legislative privilege. The

state trial court dismissed without prejudice WSSC’s contentions, and in September 2007 the Maryland Court of Special

Appeals rejected WSSC’s appeal on the grounds that the ruling was not a final judgment. The Maryland Court of Appeals

granted WSSC’s petition for certiorari, but in the meantime

the EEOC requested additional information from WSSC and,

in May 2008, subpoenaed it. In April 2009 the EEOC sought

to enforce the subpoena in federal district court, though the

proceedings were stayed pending the Maryland Court of

Appeals’s decision. That court ultimately decided that it could

not hear WSSC’s interlocutory appeal, see WSSC v. Bowen,

978 A.2d 678, 683–87 (Md. 2009), leaving the district court

to adjudicate whether WSSC had to comply with the EEOC’s

subpoena.

The subpoena requested a broad range of documents, summarized here:

• Kundu’s employee file, as well as the complainants’ files, the files of former IT employees who

applied for post-restructuring positions, and the

files of those who made post-restructuring

employment decisions for WSSC.

• Analyses and standards WSSC used in deciding

to abolish the existing positions, along with

records of internal deliberations about that decision.

6 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
• Tests WSSC used in making employment decisions since 2005, as well as any criteria used in

making hiring decisions during and after the

restructuring.

• The names of everyone employed by WSSC

since 2005, everyone terminated because of the

restructuring, everyone who applied for postrestructuring positions, everyone hired for such

positions, everyone responsible for making postrestructuring hiring decisions, and every former

employee who was rehired after the restructuring.

• Advertisements used during and after the restructuring to advertise for IT Department positions.

• Documents related to training opportunities provided to IT Department employees since 2005.

• Job descriptions and requirements for IT Department positions since 2005, as well as the applications submitted for post-restructuring positions.

• Records of all IT Department hires, promotions,

discipline, and voluntary separations since 2005,

along with records of any allegation of age discrimination or retaliation lodged against WSSC

and of the WSSC’s formal and informal

employee policies.

During the district court proceedings, however, the EEOC

modified its request, dropping the items demanding records of

internal deliberations regarding the restructuring and of the

analyses and standards used in deciding whether to restructure. The district court ruled that while legislative privilege

might in theory defeat the EEOC’s subpoena power, the

EEOC’s modified subpoena asked for information about discrimination prior to and after the legislative restructuring

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 7
decision, not for information about the decision to restructure

itself. It therefore ordered WSSC to comply. WSSC appeals

that decision.

II.

Congress explicitly subjected "political subdivision[s] of a

State and any agency or instrumentality of a State or a political subdivision of a State" to the Age Discrimination in

Employment Act’s (ADEA) antidiscrimination requirements.

29 U.S.C. § 630(b). Although the ADEA does not abrogate

state sovereign immunity from private damages suits, see

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000), the

EEOC retains authority to enforce the ADEA’s provisions by

suing on its own, see S.C. State Ports Auth. v. Fed. Mar.

Comm’n, 243 F.3d 165, 176 (4th Cir. 2001) (stating that the

EEOC "can bring an action against a state under the ADEA

even though a private individual cannot do so"). 

Congress also granted the EEOC authority to "make investigations and require the keeping of records necessary or

appropriate for the administration of" the ADEA. 29 U.S.C.

§ 626(a). Along with this grant of investigative authority,

Congress gave the EEOC commensurate authority to subpoena information and gave district courts jurisdiction to

enforce those subpoenas. See id. (incorporating the subpoena

and enforcement powers found within 15 U.S.C. § 49). In the

ADEA context, the EEOC’s investigatory powers do not turn

on the particulars of a complainant’s charge; "the EEOC [has]

authority to investigate and enforce" independent of any

ADEA charge brought by aggrieved employees. EEOC v. Am.

& Efird Mills, Inc., 964 F.2d 300, 304 (4th Cir. 1992).

However, the EEOC’s subpoena authority has its limits. In

order for a district court to enforce an administrative subpoena, the EEOC must show that "(1) it is authorized to make

such investigation; (2) it has complied with statutory requirements of due process; and (3) the materials requested are rele8 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
vant." EEOC v. Lockheed Martin Corp., Aero & Naval Sys.,

116 F.3d 110, 113 (4th Cir. 1997) (quoting EEOC v. City of

Norfolk Police Dep’t, 45 F.3d 80, 82 (4th Cir. 1995)). Moreover, administrative subpoenas must not be "excessive or

unduly burdensome." Am. & Efird Mills, 964 F.2d at 303.

The EEOC’s subpoena power is also constrained by evidentiary privileges. In University of Pennsylvania v. EEOC,

493 U.S. 182, 195 (1990), the Court recognized this fact; it

rejected the University’s request for a peer review materials

privilege but spoke approvingly of other cases recognizing

evidentiary privileges that had "constitutional foundation[s]."

The circuit courts have agreed, refusing to enforce administrative subpoenas where the agency’s request would trample on

recognized privileges and upholding them where it would not.

See, e.g., U.S. Dep’t of Educ. v. Nat’l Collegiate Athletic

Ass’n, 481 F.3d 936, 938 (7th Cir. 2007) (rejecting an internal

investigations privilege but noting that "there are privileges

that can be used to keep information from government agencies"); EEOC v. Lutheran Soc. Servs., 186 F.3d 959, 969

(D.C. Cir. 1999) (dismissing an EEOC subpoena enforcement

action where the subpoena sought information protected by

the work product privilege).

Legislative privilege clearly falls within the category of

accepted evidentiary privileges. See, e.g., Burtnick v. McLean,

76 F.3d 611, 613 (4th Cir. 1996) (recognizing legislative privilege in Title VII, ADEA, and § 1983 actions). To understand

why the privilege is so well accepted, it is necessary to take

a step back and examine the parallel concept of legislative

immunity. Our legal system has broadly recognized the right

"of legislators to be free from arrest or civil process for what

they do or say in legislative proceedings." Tenney v. Brandhove, 341 U.S. 367, 372 (1951); see generally Whitener v.

McWatters, 112 F.3d 740, 743–44 (4th Cir. 1997) (tracing the

history of legislative immunity).

The Speech or Debate Clause provides such immunity from

suit to federal legislators. See U.S. Const. art. I, § 6, cl. 1. In

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 9
recognition of the immunity’s historical pedigree and practical importance the Supreme Court has extended it to a wide

range of legislative actors. See Bogan v. Scott-Harris, 523

U.S. 44, 49 (1998) (local legislators); Lake Country Estates,

Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391, 402–06

(1979) (regional legislators); Tenney, 341 U.S. at 372–76

(state legislators). It applies even where the legislative body

to which the individual legislator belongs lacks immunity for

its legislative acts, compare Owen v. City of Independence,

445 U.S. 622, 657 (1980) (municipalities do not enjoy immunity under § 1983), with Bogan, 523 U.S. at 49 (municipal

legislators do), and it covers all those properly acting in a legislative capacity, not just actual officeholders, see Supreme

Court of Va. v. Consumers Union of the U.S., 446 U.S. 719,

731–34 (1980).

Legislative immunity’s practical import is difficult to overstate. As members of the most representative branch, legislators bear significant responsibility for many of our toughest

decisions, from the content of the laws that will shape our

society to the size, structure, and staffing of the executive and

administrative bodies carrying them out. Legislative immunity provides legislators with the breathing room necessary to

make these choices in the public’s interest, in a way

"[un]inhibited by judicial interference [and] [un]distorted by

the fear of personal liability." Bogan, 523 U.S. at 52. It allows

them to focus on their public duties by removing the costs and

distractions attending lawsuits. It shields them from political

wars of attrition in which their opponents try to defeat them

through litigation rather than at the ballot box. And it

increases the caliber of our elected officials by preventing the

"threat of liability [from] significantly deter[ring] service,"

particularly in "local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability." Id. Legislative immunity thus reinforces representative

democracy, fostering public decisionmaking by public servants for the right reasons.

10 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
Legislative privilege against compulsory evidentiary process exists to safeguard this legislative immunity and to further encourage the republican values it promotes. See

Burtnick, 76 F.3d at 613. "Absolute immunity enables legislators to be free, not only from ‘the consequences of litigation’s

results, but also from the burden of defending themselves.’"

Id. (quoting Dombrowski v. Eastland, 387 U.S. 82, 85 (1967))

(emphasis added). Because litigation’s costs do not fall on

named parties alone, this privilege applies whether or not the

legislators themselves have been sued. See id.; MINPECO,

S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 859 (D.C.

Cir. 1988) ("A litigant does not have to name members or

their staffs as parties to a suit in order to distract them from

their legislative work. Discovery procedures can prove just as

intrusive."). Consequently, if the EEOC or private plaintiffs

sought to compel information from legislative actors about

their legislative activities, they would not need to comply. See

Burtnick, 76 F.3d at 613 (noting that the plaintiff would have

to make a prima facie ADEA case without testimony from

city council members unless they waived the privilege).

III.

WSSC does not challenge the subpoenaed items’ relevance,

the EEOC’s process in issuing the subpoena, or the burdens

WSSC would face in complying with it. We thus have no

occasion to consider these questions. Instead, WSSC insists

that the subpoena trenches upon legislative immunity and legislative privilege. It contends that the EEOC seeks to learn

whether age bias motivated WSSC’s decision to restructure

the IT Department, a topic which it argues will impermissibly

require testimony from the WSSC Commissioners and county

council members. WSSC also argues that because the restructuring decision inherently involved the employees whose

positions were abolished and decisions about how and whom

to hire after the restructuring, the modified subpoena cannot

be carved up into acceptable time periods that will not require

legislative testimony. While we agree wholeheartedly with

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 11
WSSC about the importance of legislative immunity and privilege, we do not believe the EEOC’s modified subpoena

threatens them at the present time.

A.

We note at the outset that these proceedings are at a very

preliminary stage. The EEOC is not bringing suit against

WSSC for ADEA violations; it is merely investigating possible age discrimination at WSSC. Moreover, the EEOC is only

in the early stages of that investigation. At this point, it is simply unknown whether the EEOC’s investigation will ripen

into a lawsuit against WSSC and, if so, whether either side in

that so–far-nonexistent lawsuit will seek coercive process

against legislative officials to make its case.

What we do know, however, is that none of the county

council members or the WSSC Commissioners has been subpoenaed to testify, and we have as yet no reason to believe

that WSSC’s production of the requested materials will

require that legislative officials divert their time and attention

away from their legislative duties. It would be premature to

refuse to enforce the modified subpoena now because a legitimate claim of privilege might ripen at some point down the

road.

WSSC contends that we need not wait around to learn

whether the EEOC will seek information regarding legislators’ motives and whether WSSC will need legislative testimony to defend itself. It argues that the EEOC’s own

statements, along with the complainants’ charges, demonstrate the EEOC’s intent to inquire after WSSC’s motive in

restructuring the IT department. Moreover, WSSC insists the

ADEA’s proof framework will require it to seek legislators’

testimony. Age discrimination plaintiffs must prove that "age

was the ‘but-for’ cause of the employer’s adverse action."

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009).

Thus to defend itself against the complainants’ allegations

12 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
that the restructuring was motivated by age, WSSC will eventually need testimony from WSSC Commissioners or county

council members.

WSSC’s arguments miss the mark. For starters, its contention that legislative immunity and privilege require that investigations be halted where the parties might one day seek

material protected by legislative privilege is questionable. It

is one thing to recognize that state legislative bodies possess

legislative immunity from suit. See Consumers Union, 446

U.S. at 733–34 (suggesting that state legislatures and their

subcommittees enjoy legislative immunity against § 1983

suits). It is another, though, to extend that immunity, at least

insofar as it is solely derived from some future hypothetical

need for legislators’ testimony, to investigations into other,

non-legislative acts.

While claims of legislative immunity and privilege may

assuredly be asserted to resist agency investigations into legislative acts, it is worth noting that our cases dismissing claims

on legislative immunity and privilege grounds involved fullblown lawsuits. See, e.g., Baker v. Mayor and City Council of

Baltimore, 894 F.2d 679 (4th Cir. 1990), overruled on other

grounds by Berkley v. Common Council of the City of

Charleston, 63 F.3d 295, 303 (4th Cir. 1995) (en banc);

Schlitz v. Virginia, 854 F.2d 43 (4th Cir. 1988), overruled on

other grounds by Berkley, 63 F.3d at 303. The threat to legislative immunity and privilege in such circumstances is more

acute than it is here; both sides have powers of coercive process, both sides are well aware of the evidence needed to

prove or defend against known claims, and both parties’

impending liability or recovery may thus depend on their ability to get legislators’ testimony. In Burtnick, moreover, we did

not order dismissal where the claims stemmed from the city

council’s vote to eliminate one filled position and create

another empty one, instead allowing the case against the

municipality to go forward but recognizing that individual

legislators must remain free from both suit and process. See

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 13
Burtnick, 76 F.3d at 612–13. While WSSC’s hybrid nature as

a state-created agency that is largely controlled by two counties may give it a stronger claim to legislative immunity than

the municipalities sued in Burtnick and Berkley, it would still

be too hasty to cut off the EEOC’s investigation into whether

WSSC’s unprivileged acts violated the ADEA just because a

meritorious claim to immunity or privilege might eventually

materialize.

We also cannot assume the EEOC’s investigation will follow the path WSSC projects. The EEOC has stated that it "is

not investigating WSSC’s motives for the reorganization,"

and WSSC may hold it to that declaration. Moreover, as mentioned above, the EEOC’s investigatory power here is not

inexorably tied to the complainants’ charges. See Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991).

Aspects of the complainants’ charge that would tread close to

impermissible areas do not fatally undermine the EEOC’s

authority to investigate other instances of age discrimination

that do not implicate the privilege and that the complainants

intimate occurred at WSSC. In particular, the EEOC can continue with its stated current investigatory goals—determining

whether WSSC discriminated in distributing training prior to

the restructuring and whether it discriminated in hiring after

the restructuring. The possibility that the agency may one day

wander into impermissible terrain is not sufficient reason to

halt what thus far seems a permissible inquiry.

B.

Indeed, we need not just take the EEOC’s word regarding

the scope of its scrutiny; its actions likewise suggest that

WSSC’s claim is premature. As mentioned above, the EEOC

made several efforts to avoid requesting potentially privileged

information. It properly rescinded its demand for records of

internal deliberations about the restructuring and for the standards used in deciding to restructure. Equally sound was its

decision to withdraw any investigation into the motives

14 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
underlying the decision to restructure. As the district court

suggested, following these lines of inquiry would have

brought the EEOC impermissibly close to privileged materials

regarding the WSSC Commissioners’ reasons for approving

the proposed restructuring and the county council members’

reasons for approving WSSC’s budget, a "quintessentially

legislative" act, Bogan, 523 U.S. at 55.

The modified subpoena skirts these potentially intrusive

topics and focuses on evidence likely regarding unprivileged

administrative personnel decisions. Take for example the

request for lists of IT Department employees since 2005, the

criteria used in making employment decisions since then, and

records of allegations of age discrimination lodged after that

time. This material likely goes toward WSSC’s administrative

decisions regarding training the IT Department’s particular

employees and responding to specific discrimination claims,

not toward the county councils’ decision to approve the budget or the WSSC Commissioners’ work in preparing or passing along that budget. In the absence of evidence that these

activities were part of the legislative process in some fashion,

and with no evidence that legislators set the criteria for or participated in such decisions, we find no basis for declining to

enforce the modified subpoena. See United States v. Jefferson,

546 F.3d 300, 310 (4th Cir. 2008).

The modified subpoena’s requests for documents regarding

events after the restructuring likewise appear to relate to

administrative rather than legislative acts. It asks for records

regarding the job descriptions for the new positions, the applications submitted for those positions, the criteria used in making the post-restructuring hiring decisions, and the names of

former IT Department employees who applied for the posts.

As far as we can tell at this early stage, these materials speak

to particularized administrative decisions regarding how and

whom to hire after the restructuring, not to the county councils’ reasons for approving the budget or to any generally

applicable, legislatively established policy regarding those

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 15
positions. The decisions also seem the kind that likely would

be made by staff rather than by legislators themselves. We

have no reason at this juncture to believe that legislative officials took part in making these hiring decisions, or even if

they did, that they could fairly be characterized as legislative

acts. See Alexander v. Holden, 66 F.3d 62, 65–66 (4th Cir.

1995).

Calling the activities that the modified subpoena seeks to

investigate here "integral steps in the legislative process,"

Bogan, 523 U.S. at 55, would, at least on our present state of

knowledge, expand legislative privilege beyond its proper

bounds. Legislative acts, the ones for which the immunity and

privilege are granted, typically involve the "adopt[ion of] prospective, legislative-type rules," Alexander, 66 F.3d at 67,

rules that "‘establish[ ] . . . a general policy’ affecting the

larger population," id. at 66 (quoting Acevedo-Cordero v.

Cordero-Santiago, 958 F.2d 20, 23 (1st Cir. 1992)). They also

generally bear the outward marks of public decisionmaking,

including the observance of formal legislative procedures.

See, e.g., Baraka v. McGreevey, 481 F.3d 187, 198 (3d Cir.

2007). By contrast, "legislators’ employment and personnel

decisions are generally administrative acts" because they most

often affect specific individuals rather than formulate broad

public policy. Alexander, 66 F.3d at 66. By extending blanket

protection to WSSC’s pre-restructuring and post-restructuring

employment activities, rejecting the modified subpoena at this

stage would upset this relatively stable classification system

and cast doubt on our previous decisions establishing it.

IV.

Litigation by its nature features dark and bright sides of the

moon. The dark side of subpoenas such as this lies in their

threat to needed bureaucratic innovation and restructuring and

in their potential threat to vitality and independence in the legislative branch. Legislative immunity and legislative privilege

protect legislators from the perils of individual liability and

16 EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION
the distractions of compulsory process. We have these doctrines for apparent and important reasons. The public must be

able to make its electoral selection from a wealth of qualified

candidates, not simply the few undeterred or unaffected by the

threat of financial liability, and those selected must be able to

focus their entire energies on discharging their public duties,

free from concerns about personal consequences and the hassles of lawsuits.

The other, brighter lunar side of course is the ability of

Americans to work without the discrimination that the legislative branch has itself condemned. And the modified subpoena

thus far advances this legislative intent without impairing legislative independence. At this preliminary stage of the investigation the EEOC has not sought testimony from the WSSC

Commissioners or from county council members, and we do

not yet know whether its investigation will even evolve into

a lawsuit or whether defending such a suit would require legislators’ testimony or involvement. The EEOC has also demonstrated its willingness to avoid infringing on potentially

privileged territory, and the remaining materials it seeks

appear to go largely to administrative employment decisions.

On the present record, we see no basis for not enforcing the

subpoena. The order of the district court is accordingly

affirmed.

AFFIRMED

EEOC v. WASHINGTON SUBURBAN SANITARY COMMISSION 17