FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY  No. 06-16864

COMMISSION, D.C. No.

Plaintiff-Appellee, CV 06-0276 RCC  v. ORDER AND

FEDERAL EXPRESS CORPORATION, AMENDED

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, District Judge, Presiding

Argued and Submitted

June 13, 2008—San Francisco, California

Filed September 10, 2008

Amended March 3, 2009

Before: A. Wallace Tashima, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Tashima

2417
COUNSEL

Frederick L. Douglas, Memphis, Tennessee, for the

defendant-appellant. 

Susan R. Oxford (Anne Noel Occhialino on the brief), Equal

Employment Opportunity Commission, Washington, DC, for

the plaintiff-appellee. 

Laura Ann Giantris, McGuiness Norris & Williams, Washington, DC, for amici curiae The Chamber of Commerce of the

United States of America, and Equal Employment Advisory

Council. 

ORDER

The opinion filed September 10, 2008, and reported at 543

F.3d 531, is withdrawn and replaced by the Amended Opinion

filed concurrently with this order. With the filing of the

Amended Opinion, Judges McKeown and Gould vote to deny

the petition for rehearing en banc and Judge Tashima so recommends. The full court has been advised of the petition for

rehearing en banc and no judge of the court has requested a

vote on en banc rehearing. See Fed. R. App. P. 35(f). The

petition for rehearing en banc is denied. No further petition

for panel rehearing or rehearing en banc will be entertained.

2420 EEOC v. FEDERAL EXPRESS
OPINION

TASHIMA, Circuit Judge: 

We consider three issues pertaining to Federal Express Corporation’s (“FedEx”) refusal to comply with an administrative

subpoena issued by the Equal Employment Opportunity Commission (“EEOC” or “Commission”). First, we consider

whether FedEx’s compliance with an administrative subpoena

in another case, which resulted in FedEx providing the EEOC

with the same information that the EEOC seeks to compel in

this case, moots this appeal. We hold that it does not. Second,

we consider, as a matter of first impression, whether the

EEOC retains the authority to issue an administrative subpoena against an employer after a charging party has been

issued a right-to-sue notice and instituted a private action. We

hold that the EEOC does. Third and finally, we consider

whether the EEOC subpoena in this case, which does not seek

direct evidence of discrimination, but instead, seeks general

employment files in order to help the EEOC draft future information requests, seeks evidence “relevant” to a charge of systemic discrimination. We hold that it does. In light of these

holdings, we affirm the district court’s decision to enforce the

administrative subpoena. 

JURISDICTION

The district court had jurisdiction to determine the enforceability of an administrative subpoena pursuant to §§ 706(b)

and 710 of Title VII of the Civil Rights Act of 1964. 42

U.S.C. § 2000e-5(b) (requiring the EEOC to investigate

charges of discrimination); id. § 2000e-9 (granting to the

EEOC the investigatory and subpoena powers of the National

Labor Relations Board (“NLRB”) by incorporating 29 U.S.C.

§ 161, which provides that the district courts have jurisdiction

to determine the enforceability of an administrative subpoena). We have jurisdiction pursuant to 28 U.S.C. § 1291

because “an order of a District Court enforcing an administraEEOC v. FEDERAL EXPRESS 2421
tive subpoena is final and ripe for review.” EPA v. Alyeska

Pipeline Serv. Co., 836 F.2d 443, 445 (9th Cir. 1988).

BACKGROUND

On November 27, 2004, Tyrone Merritt filed a charge of

discrimination with the EEOC against FedEx on behalf of

himself and similarly situated African American and Latino

employees. Merritt alleged that FedEx’s Basic Skills Test, a

cognitive ability test which Merritt was required to pass to be

eligible for a promotion, had a statistically significant adverse

impact on African American and Latino employees. Merritt

also alleged that he had been personally denied promotion

opportunities, unfairly disciplined, and denied compensation

on account of his race. 

Merritt, through counsel, requested a right-to-sue notice

from the EEOC, which the EEOC issued to him on October

20, 2005. The EEOC, however, stated in that notice that it

would continue to process Merritt’s charge. On October 26,

2005, Merritt joined an already-pending class action against

FedEx. See Satchell v. Fed. Express, No. 3:03-cv-0259 (N.D.

Cal.). The Satchell action is limited geographically to FedEx’s

Western Region, an area encompassing eleven western states.

FedEx employees outside that region are ineligible to join that

action. 

Pursuant to its continuing investigation, the EEOC issued

an administrative subpoena to FedEx on February 10, 2006.

The subpoena directed FedEx to identify basic information

about the computer files that it maintains. The purpose of the

information request was to aid the EEOC in fashioning a more

detailed request if the need for more information should arise

later in the investigation. The EEOC did not request any specific information about specific employees, nor did it request

any employee files. The subpoena requested, in relevant part:

Please identify any computerized or machinereadable files that are or have been maintained by

2422 EEOC v. FEDERAL EXPRESS
you (or any other under contractual or other arrangement) since January 1, 2003 which contain data on

personnel activities. This type of file would include,

but not be limited to applicants, hiring, promotions,

testing, discipline, job analyses and evaluations, performance evaluations, demotions, employment history, amounts of pay, adjustments to pay, work

assignment, adjustments to work assignments, training, transfers, terminations, job status, and so forth.

FedEx refused to comply, filing a Petition to Revoke the

Subpoena with the EEOC. The EEOC denied that petition.

The EEOC then filed an action in district court to enforce its

subpoena. FedEx argued that the EEOC is divested of investigatory authority once the party alleging the discriminatory

practice initiates (or in this case joins) a private action. The

district court rejected FedEx’s argument and granted the

EEOC’s application to enforce the subpoena. Reasoning that

“[t]he 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 lack[s]’

jurisdiction,” the district court concluded that there were “no

defects in jurisdiction,” and that “the evidence requested is

relevant and material to the investigation.” FedEx timely

appealed. 

Subsequently, FedEx filed a Notice of Mootness and

Request for Dismissal of the appeal. FedEx represented that

it had complied with an administrative subpoena relating to a

charge filed by a different employee that is identical in every

respect to the subpoena issued in this case, i.e., it requested

the same information as the Merritt subpoena. The EEOC

opposes FedEx’s request.1

1We postponed consideration of the mootness issue so that it could be

considered together with our determination of the merits. 

EEOC v. FEDERAL EXPRESS 2423
STANDARD OF REVIEW

The district court’s order enforcing the EEOC’s administrative subpoena is reviewed de novo. Reich v. Mont. Sulphur &

Chem. Co., 32 F.3d 440, 443 (9th Cir. 1994); see also In re

Estate of Covington, 450 F.3d 917, 919 n.4 (9th Cir. 2006).

ANALYSIS

I. Mootness

As a threshold matter, we consider FedEx’s motion to dismiss this appeal on mootness grounds and conclude that this

appeal is not moot. FedEx argues that the appeal is moot

because it has fully complied with a subpoena in another proceeding, producing information to the EEOC that is “identical

to the Merritt subpoena in every respect.” Because of this production, FedEx argues further, “the EEOC now possesses all

information sought by the Merritt subpoena.”

[1] “A case is moot if the issues presented are no longer

live and there fails to be a ‘case or controversy’ under Article

III of the Constitution.” Pilate v. Burrell (In re Burrell), 415

F.3d 994, 998 (9th Cir. 2005). “The test for mootness of an

appeal is whether the appellate court can give the appellant

any effective relief in the event that it decides the matter on

the merits in his favor. If it can grant such relief, the matter

is not moot.” Id. (internal quotation marks and citations omitted). In other words, “[t]he court must be able to grant effective relief, or it lacks jurisdiction and must dismiss the

appeal.” Pub. Util. Comm’n v. FERC, 100 F.3d 1451, 1458

(9th Cir. 1996). 

[2] Even assuming that this case might otherwise be moot,

“[t]here are . . . four major exceptions to the mootness doctrine, for (1) collateral legal consequences; (2) wrongs capable of repetition yet evading review; (3) voluntary cessation;

and (4) class actions where the named party ceases to repre2424 EEOC v. FEDERAL EXPRESS
sent the class.” In re Burrell, 415 F.3d at 998. Two of these

exceptions apply in this case. 

[3] The collateral legal consequences exception applies

because, although the primary injury may have passed (FedEx

has now provided the sought-after information), there remains

“a substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment.” Id. at 999 (emphasis

omitted) (quoting Super Tire Eng’g Co. v. McCorkle, 416

U.S. 115, 122 (1974)). If we were to agree with FedEx’s legal

argument that the EEOC lacks the authority to investigate a

charge after the charging party initiates a private lawsuit, the

EEOC’s investigation would come to an end. If, on the other

hand, we affirm the district court, the EEOC will be able to

proceed with the Merritt investigation. If we demur from

deciding the legal questions presented by this litigation, the

EEOC’s authority to continue its investigation based upon the

Merritt charge would remain contested, and FedEx will be

uncertain whether it needs to comply with future requests for

information. Thus, a “collateral” injury survives that can be

remedied by this court even though the primary injury may

have been resolved. This conclusion is consistent with our

cases that have held that complying with an administrative

subpoena does not moot an appeal when “our decision affects

numerous collateral circumstances.” FDIC v. Garner, 126

F.3d 1138, 1142 (9th Cir. 1997); see Mont. Sulphur, 32 F.3d

at 443 n.4 (holding that just because the subpoenaed party has

“produced most and possibly all of the documents required by

the subpoena,” that “does not render the appeal moot, because

our decision will still have collateral consequences”); Alyeska

Pipeline Serv. Co., 836 F.2d at 445 (holding that a subpoena

appeal was not moot because reversal would result in documents being returned). 

Nor will we dismiss a case as moot if the defendant voluntarily ceases the allegedly improper conduct, as FedEx has

EEOC v. FEDERAL EXPRESS 2425
done, but where the defendant remains free to return to the

challenged conduct at any time. As the Supreme Court put it:

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of

the practice. If it did, the courts would be compelled

to leave the defendant free to return to his old ways.

In accordance with this principle, the standard we

have announced for determining whether a case has

been mooted by the defendant’s voluntary conduct is

stringent: A case might become moot if subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected

to recur. The heavy burden of persuading the court

that the challenged conduct cannot reasonably be

expected to start up again lies with the party asserting mootness. 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528

U.S. 167, 189 (2000) (internal quotation marks, citations, and

brackets omitted); accord Anderson, 371 F.3d at 502 n.27. 

[4] Here, FedEx has given no assurance that it will not

challenge another administrative subpoena stemming from the

Merritt charge; instead, it states only that

since the EEOC has not made any additional

requests and has not even identified any information

it presumably lacks, FedEx has not objected to any

such requests. Indeed, depending on the nature of

any future [EEOC requests pursuant to the Merritt

charge], FedEx may not object especially since it

may have already provided the information in

response to the [other] subpoenas. 

Appellant’s Notice of Mootness at 3. Given FedEx’s own

equivocal representations — “FedEx may not object” — it

2426 EEOC v. FEDERAL EXPRESS
clearly has not met its “heavy burden of persuading the court”

that “it [is] absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” See Friends of

the Earth, 528 U.S. at 189. 

[5] For each of these reasons, we conclude that this appeal

is not moot and, therefore, deny FedEx’s request for dismissal

of the appeal. 

II. Enforceability of the Administrative Subpoena

[6] Turning now to the merits, we must first decide whether

the EEOC’s subpoena power ceases when the EEOC issues a

right-to-sue letter and the charging party initiates litigation

based upon that charge. This question presents an issue of

first impression in the Ninth Circuit. Our review of FedEx’s

challenges to the EEOC’s subpoena is limited. As we have

explained: 

The scope of the judicial inquiry in an EEOC or any

other agency subpoena enforcement proceeding is

quite narrow. The critical questions are: (1) whether

Congress has granted the authority to investigate; (2)

whether procedural requirements have been followed; and (3) whether the evidence is relevant and

material to the investigation. 

EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (9th

Cir. 2001) (quoting EEOC v. Children’s Hosp. Med. Ctr., 719

F.2d 1426, 1428 (9th Cir. 1983) (en banc), abrogated on other

grounds by Gilmer v. Interstate/Johnson Lane Corp., 500

U.S. 20 (1991), as recognized by Prudential Ins. Co. v. Lai,

42 F.3d 1299, 1303 (9th Cir. 1994)). FedEx’s challenge is

grounded on factor (1) that the EEOC lacked the authority to

investigate, and factor (3) that the evidence sought by the

EEOC was not relevant and material to the investigation. 

Regarding whether Congress has granted the authority to

investigate, we have “emphasized the ‘strictly limited’ role of

EEOC v. FEDERAL EXPRESS 2427
the district court when an agency subpoena is attacked for

lack of jurisdiction.” Children’s Hosp. Med. Ctr., 719 F.2d at

1430. “As long as the evidence 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.” Id. (internal citations omitted).

“[A] party may not defeat agency authority to investigate with

a claim that could be a defense if the agency subsequently

decides to bring an action against it.” Id. at 1429. The judicial

inquiry is narrow because “judicial review of early phases of

an administrative inquiry results in interference with the

proper functioning of the agency and delays resolution of the

ultimate question whether the Act was violated.” EEOC v.

Shell Oil Co., 466 U.S. 54, 81 n.38 (1984) (internal quotation

marks, emendations, and citations omitted). Here, we conclude that the EEOC has at least a plausible basis for jurisdiction to issue an administrative subpoena even after Merritt

filed his individual action. 

Title VII of the Civil Rights Act of 1964, as amended, proscribes various employment practices involving discrimination on the basis of “race, color, religion, sex, or national

origin.” 42 U.S.C. §§ 2000e-2, 2000e-3. The EEOC bears the

“[p]rimary responsibility for enforcing Title VII.” Shell Oil

Co., 466 U.S. at 61-62 (citing 42 U.S.C. § 2000e-5(a)). 

[7] “Title VII sets forth ‘an integrated, multistep enforcement procedure’ that enables the Commission to detect and

remedy instances of discrimination.” Id. (quoting Occidental

Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)). The

EEOC’s enforcement responsibilities are triggered by the filing of a charge of discrimination. Univ. of Pa. v. EEOC, 493

U.S. 182, 190 (1990). A charge may be filed by an individual

who alleges that he was discriminated against or by a Commissioner of the EEOC. 42 U.S.C. § 2000e-5(b); 29 C.F.R.

§ 1601.7(a). A Commissioner may file a charge when a victim

of discrimination is reluctant to file a charge for fear of

employer retaliation, see 42 U.S.C. § 2000e-5(b); 29 C.F.R.

2428 EEOC v. FEDERAL EXPRESS
§§ 1601.7(a), 1601.11 (2007), or when the Commissioner

believes that an employer has engaged in a “pattern or practice of discrimination,” 42 U.S.C. § 2000e-6(e), see Shell Oil

Co., 466 U.S. at 62. 

[8] Once the charge is filed, “[t]he EEOC is then required

to investigate the charge and determine whether there is reasonable cause to believe that it is true.” Occidental Life Ins.

Co., 432 U.S. at 359 (emphasis added); see also Univ. of Pa.,

493 U.S. at 190 (“The Act obligates the Commission to investigate a charge of discrimination[.]” (emphasis added)); 42

U.S.C. § 2000e-5(b) (EEOC “shall make an investigation

thereof”); 29 C.F.R. § 1601.15 (“The investigation of a charge

shall be made by the Commission[.]” (emphasis added)). “To

enable the Commission to make informed decisions at each

stage of the enforcement process, § 2000e-8(a) confers a

broad right of access to relevant evidence[.]” Univ. of Pa.,

493 U.S. at 191. The EEOC “is entitled to inspect and copy

‘any evidence of any person being investigated or proceeded

against that relates to unlawful employment practices covered

by [Title VII] and is relevant to the charge under investigation.’ ” Shell Oil Co., 466 U.S. at 63 (quoting 42 U.S.C.

§ 2000e-8(a)). In acquiring such evidence, the EEOC may

exercise all powers enjoyed by the NLRB under 29 U.S.C.

§ 161, including the authority to issue administrative subpoenas and to request judicial enforcement of those subpoenas.

42 U.S.C. § 2000e-9; Shell Oil Co., 466 U.S. at 63; accord

Univ. of Pa., 493 U.S. at 191. 

If the EEOC “determines after investigation that there is

reasonable cause to believe that the charge is true,” it must

“endeavor to eliminate [the] alleged unlawful employment

practice by informal methods of conference, conciliation, and

persuasion.” 42 U.S.C. § 2000e-5(b); see also 29 C.F.R.

§§ 1601.20, 1601.24(a). If those efforts don’t work, the EEOC

may then bring a civil action against the employer, 42 U.S.C.

§ 2000-e5(f)(1); 29 C.F.R. § 1601.27, in which the charging

party may intervene as a matter of right, 42 U.S.C. § 2000-

EEOC v. FEDERAL EXPRESS 2429
e5(f)(1). If the EEOC fails to bring such an action, the individual employee may bring an action against the employer

directly. Id. § 2000e-5(f)(1) (providing for issuance of a rightto-sue notice on dismissal of a charge or failure to resolve a

charge by conciliation within 180 days). The right-to-sue

notice may also be issued to the charging party upon request,

29 C.F.R. § 1601.28(a), or when the EEOC determines that

there is reasonable cause to believe that Title VII has been

violated, yet was unable to obtain voluntary compliance, but

decides not to bring an action against the employer, id.

§ 1601.28(b). The EEOC may intervene in the charging

party’s lawsuit at the court’s discretion. 42 U.S.C. § 2000e5(f)(1). 

Generally, when the EEOC issues a right-to-sue notice, it

terminates its processing of the charge, but not always: 

Issuance of a notice of right to sue shall terminate

further proceeding of any charge that is not a Commissioner charge unless [an enumerated official of

the Commision] determines at that time or at a later

time that it would effectuate the purpose of title VII

or the ADA to further process the charge. 

29 C.F.R. § 1601.28(a)(3). 

The EEOC has interpreted § 1601.28(a)(3) to mean that

“further processing the charge” includes further investigation:

Continue Processing After NRTS [Notice of Right to

Sue] Is Issued — Continue processing the charge

after issuing the NRTS whenever a cause LOD has

been issued and as follows: 

. . . . 

(e) To Otherwise Effectuate the Purposes of Title

VII/ADA — Ordinarily continue investigating when

2430 EEOC v. FEDERAL EXPRESS
the charge covers persons other than the requestor or

involves an acknowledged/documented respondent

policy or possible pattern of discrimination affecting

others; or when the DD otherwise determines that

continued action would effectuate the purposes of

Title VII/ADA. 

1 EEOC Compliance Manual § 6.4 (June 2006), available at

2006 WL 4672976.2

[9] Thus, we read Title VII, the relevant regulations, and

the EEOC’s interpretation of those regulations to mean that:

(1) the EEOC’s investigative mandate is triggered by the filing of a valid charge; (2) the EEOC may bring its own action

or may issue a right-to-sue notice to the charging party; and

(3) even though the EEOC normally terminates the processing

of the charge when it issues the right-to-sue notice, it can,

under limited circumstances, continue to investigate the allegations in the charge, which includes the authority to subpoena information relevant to that charge. Here, Merritt filed

a charge alleging personal discrimination and discrimination

against other similarly situated African Americans and

Latinos. The EEOC, pursuant to Merritt’s request, issued to

him a right-to-sue notice. The EEOC decided, however, to

continue investigating Merritt’s charge because it involved a

possible policy or pattern of discrimination affecting others.

We have found nothing to suggest that the EEOC exceeded its

authority in doing so. 

2The EEOC’s interpretation of its own regulation “is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the

regulation.’ ” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Bowles

v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); accord Fed.

Express Corp. v. Holowecki, 128 S. Ct. 1147, 1154 (2008); Miller v. Cal.

Speedway Corp., 2008 WL 3169130, at *11 (9th Cir. Aug. 8, 2008). The

EEOC’s interpretation that “further processing the charge” includes further investigation is neither plainly erroneous nor inconsistent with the

regulation. 

EEOC v. FEDERAL EXPRESS 2431
[10] Thus, we conclude that the EEOC did not “plainly

lack” the authority to issue the subpoena. See Children’s

Hosp. Med. Ctr., 719 F.2d at 1430. Because there is, at the

very least, a “plausible ground for jurisdiction,” the district

court did not err in enforcing the subpoena. See id.

The Fifth Circuit is the only other circuit to have addressed

the question of whether the EEOC’s authority to issue an

administrative subpoena ceases when the charging party files

suit. See EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997).

The Fifth Circuit concluded that “in a case where the charging

party has requested and received a right to sue notice and is

engaged in a civil action that is based upon the conduct

alleged in the charge filed with the EEOC, that charge no longer provides a basis for EEOC investigation.” Id. at 469-70

(emphasis in the original). For the reasons we discuss below,

we cannot agree with the Fifth Circuit. 

Hearst reasoned that Title VII’s multistep enforcement procedure, which according to the Hearst court is “divided into

four distinct stages: filing and notice of charge, investigation,

conference and conciliation, and finally, enforcement,” means

that once an action is brought based upon a charge, the time

for investigation has passed, and thus, the EEOC is divested

of subpoena authority. Id. at 468-69. As the Fifth Circuit saw

it, “once formal litigation is commenced,” the purposes of

Title VII are no longer furthered by the EEOC’s continued

investigation of the charge and, for that reason, the investigatory authority ceases once the charging party files suit. Id. For

a number of reasons, we cannot agree that the agency “plainly

lacks” the authority to issue an administrative subpoena after

the charging party files suit.3

3We note that Hearst did not review the administrative subpoena under

the deferential standard that our decision in Children’s Hospital requires.

Compare Hearst, 103 F.3d at 464 (noting that the EEOC cited our decision in Children’s Hospital, but implicitly rejecting our approach), with

Children’s Hosp. Med. Ctr., 719 F.2d at 1430 (holding that an administra2432 EEOC v. FEDERAL EXPRESS
First, the steps in the EEOC’s “multistep” enforcement procedure are not “distinct,” as the Hearst court characterized it.

The fact that one stage of the enforcement procedure is going

on does not mean that another stage has ceased. The Supreme

Court has described the multistep enforcement procedure as

an “integrated” procedure “that enables the Commission to

detect and remedy instances of discrimination.” Shell Oil Co.,

466 U.S. at 62. The investigation need not end simply because

the EEOC is trying to remedy the discrimination through conference and conciliation. As the Supreme Court put it, “[t]o

enable the Commission to make informed decisions at each

stage of the enforcement process, § 2000e-8(a) confers a

broad right of access to relevant evidence[.]” Univ. of Pa.,

493 U.S. at 191 (emphases added). Thus, the beginning of

another stage does not necessarily terminate the preceding

stage, and Title VII confers upon the EEOC investigatory

authority during each stage. 

We also disagree with Hearst’s notion that the charging

party can, through his or her actions (that is, by filing suit),

tive subpoena is to be enforced unless jurisdiction is “plainly lacking”).

We believe that it is well-established that an administrative subpoena is to

be enforced unless agency authority is plainly lacking. See, e.g., Endicott

Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (“The evidence

sought by the subpoena was not plainly incompetent or irrelevant to any

lawful purpose of the Secretary in the discharge of her duties under the

Act, and it was the duty of the District Court to order its production for

the Secretary’s consideration.”); FTC v. Ken Roberts Co., 276 F.3d 583,

587 (D.C. Cir. 2001) (reaffirming holding that “enforcement of an agency’s investigatory subpoena will be denied only when there is ‘a patent

lack of jurisdiction’ in an agency to regulate or to investigate”); United

States v. Sturm, Ruger & Co., 84 F.3d 1, 5-6 (1st Cir.1996) (“We have

repeatedly admonished that questions concerning the scope of an agency’s

substantive authority to regulate are not to be resolved in subpoena

enforcement proceedings. . . . As long as the agency’s assertion of authority is not apocrypha, a procedurally sound subpoena must be enforced.”);

Donovan v. Shaw, 668 F.2d 985, 989 (8th Cir.1982) (“It is well-settled

that a subpoena enforcement proceeding is not the proper forum in which

to litigate the question of coverage under a particular federal statute.”).

Hearst ignored that body of law. 

EEOC v. FEDERAL EXPRESS 2433
divest the EEOC of authority. As the Supreme Court recognized, the EEOC controls the charge regardless of what the

charging party decides to do. See EEOC v. Waffle House, Inc.,

534 U.S. 279, 291 (2002) (“[O]nce a charge is filed, . . . under

the—statute the EEOC is in command of the process.”); cf. id.

at 297 (“We have recognized several situations in which the

EEOC does not stand in the employee’s shoes.”). 

In Waffle House, the Court was faced with deciding

“whether an agreement between an employer and an

employee to arbitrate employment-related disputes bars the

[EEOC] from pursuing victim-specific judicial relief, such as

backpay, reinstatement, and damages, in an enforcement

action[.]” Id. at 282. The Supreme Court concluded that the

employee’s arbitration agreement did not hinder the EEOC’s

ability to prosecute the charge, reasoning that: 

[T]he EEOC takes the position that it may pursue a

claim on the employee’s behalf even after the

employee has disavowed any desire to seek relief.

The statute 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.

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. And

if the agency makes that determination, the statutory

text unambiguously authorizes it to proceed in a

judicial forum. 

Id. at 291-92. We have echoed the view that the EEOC, and

not the charging party, is the master of the case. See EEOC

v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir.

1987) (“The EEOC’s right of action is independent of the

employee’s private action rights.”). 

We further disagree with Hearst’s conclusion that Title

VII’s purposes are no longer served by a continuing investiga2434 EEOC v. FEDERAL EXPRESS
tion after the charging party has filed suit. The EEOC’s investigatory authority serves a greater purpose than just

investigating a charge on behalf of an individual. See Waffle

House, 534 U.S. at 287. That is, “[t]he EEOC is not merely

a proxy for victims of discrimination, but acts also to vindicate the public interest in preventing employment discrimination.” See Goodyear Aerospace Corp., 813 F.2d at 1542

(internal quotation marks omitted). The individual, of course,

is guided by a desire to remedy his or her own discriminatory

treatment, whereas the EEOC “is guided by the overriding

public interest in equal employment opportunity asserted

through direct Federal enforcement.” Gen. Tel. Co. v. EEOC,

446 U.S. 318, 326 (1980) (internal quotation marks and ellipses omitted). By continuing to investigate a charge of systemic discrimination even after the charging party has filed

suit, the EEOC is pursuing its obligation to serve the public

interest. Indeed, Hearst failed even to consider 29 C.F.R.

§ 1601.28(a)(3), which makes clear that the EEOC has concluded that a continuing investigation can further the public

interest, even after the charging party has filed suit. Compare

Hearst, 103 F.3d at 462-70 (failing to discuss or cite 29

C.F.R. § 1601.28(a)(3)), with 29 C.F.R. § 1601.28(a)(3)

(authorizing the continuing processing of a charge, even after

the charging party has filed suit, when “it would effectuate the

purpose of title VII”). 

Finally, with respect to the Hearst decision, Hearst held

that the EEOC was divested of authority even though nothing

in § 706(f)(1) of Title VII indicates that the EEOC’s investigatory powers over a charge cease when the charging party

files a private action. See 42 U.S.C. § 2000e-5(f)(1). As the

Supreme Court has concluded, “[a]bsent 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 continuing investigation of a charge.4 Waf4We also note that the Hearst court’s conclusion was clearly motivated

by a desire to impose time limits on EEOC authority. See Hearst, 103 F.3d

EEOC v. FEDERAL EXPRESS 2435
fle House, 534 U.S. at 291-92; cf. Occidental Life Ins. Co.,

432 U.S. at 361 (“Nothing in § 706(f)(1) indicates that EEOC

enforcement powers cease if the complainant decides to leave

the case in the hands of the EEOC rather than to pursue a private action.”). 

For the foregoing reasons, we decline to adopt Hearst’s

rationale as the law of this Circuit, preferring instead a

at 468 (“[M]any cases pend for years in ‘administrative limbo’ with the

EEOC, as information grows stale and memories fade. . . . Finality is

apparently not a word in the EEOC lexicon.”). The Hearst court lamented

that § 2000e-5(f)’s provision which provides that “[after 180 days] the

Commission . . . shall so notify the person aggrieved and within ninety

days after the giving of such notice a civil action may be brought . . . (A)

by [any charging parties] or (B) by [persons aggrieved by a practice challenged in a Commissioner’s charge],” imposed no time limits on EEOC

authority. Id. at 466-67. To that court, “the purpose of the notice at the end

of the 180-day period primarily must be to signify the end of agency

action with respect to the charge.” Id. at 467. Hearst recognized, however,

that “[i]f Title VII were interpreted as [it] believe[d] the text demands, [it]

logically could conclude only that the EEOC’s investigation of a charge

must also end, absent some extenuating circumstance peculiar to the case

under investigation that invokes principles of equity, after the 180-day

period passed—irrespective of whether the charging party elected to sue,”

but, as the Hearst court noted, the Supreme Court had already decided differently. Id. at 467-68 (citing Occidental Life Ins. Co., 432 U.S. at 366).

Undeterred, the Fifth Circuit reasoned that the “case before [it was] not

controlled by Occidental.” Id. at 469. Thus, the Hearst court could still

conclude that “the time for investigation ha[d] passed.” Id. By holding that

the EEOC’s investigatory authority terminates after a charging party files

suit, the Fifth Circuit sought to accomplish what the Supreme Court

rejected in Occidental Life—the imposition of a time limit on the EEOC’s

authority over a charge. See Hearst, 103 F.3d at 468-69. We are not persuaded by this approach—a lower court should examine a case in light of

the reasoning as well as the narrowest possible holding of a Supreme

Court decision. See Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996)

(“When an opinion issues for the Court, it is not only the result but also

those portions of the opinion necessary to that result by which we are

bound.”); Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)

(“We hold that the issues decided by the higher court need not be identical

in order to be controlling.”). 

2436 EEOC v. FEDERAL EXPRESS
straightforward reading of Title VII and the relevant regulations. 

Finally, we note that FedEx makes a series of arguments,

all of which boil down to this: Title VII prohibits the EEOC

from initiating a lawsuit based upon a charge after the charging party files suit, and therefore the EEOC lacks the authority to continue investigating a charge with respect to which it

no longer has the authority to bring an action. As should be

clear from our preceding discussion, FedEx’s contention that

Title VII prohibits the EEOC from initiating an EEOC action

based upon Merritt’s charge once Merritt has filed his action

is, at best, a dubious statement of the law. See Waffle House,

534 U.S. at 297 (“We have recognized several situations in

which the EEOC does not stand in the employee’s shoes.”);

Goodyear Aerospace, 813 F.2d at 1542 (“The EEOC’s right

of action is independent of the employee’s private action

rights.”). 

[11] Nevertheless, we need not decide whether the EEOC

has the authority to bring such a lawsuit. That question should

be decided in a case where the EEOC actually brings a duplicative lawsuit, not in an action to enforce an administrative

subpoena. See Karuk Tribe Hous. Auth., 260 F.3d at 1077-78

(noting that when we review an administrative subpoena we

will “decline[ ] to resolve . . . potential defenses to enforcement actions”); Children’s Hosp. Med. Ctr., 719 F.2d at 1429

(“[A] party may not defeat agency authority to investigate

with a claim that could be a defense if the agency subsequently decides to bring an action against it.”). For example,

in Children’s Hospital, we concluded that “whether res judicata might bar a subsequent lawsuit was simply irrelevant to

the inquiry whether the EEOC could issue administrative subpoenas . . . .” See Karuk Tribe Hous. Auth., 260 F.3d at 1076

(discussing Children’s Hosp., 719 F.2d at 1429). Here, we

conclude that whether the EEOC may be barred from bringing

a subsequent lawsuit based upon the Merritt charge is simply

EEOC v. FEDERAL EXPRESS 2437
irrelevant to whether the EEOC could issue an administrative

subpoena based upon that charge. 

For all of these reasons, we hold that the EEOC retains the

authority to issue an administrative subpoena against an

employer even after the charging party has been issued a

right-to-sue notice and instituted a private action based upon

that charge. 

III. Does the subpoena seek relevant information

Next, FedEx contends that the subpoena seeks irrelevant

information and is overbroad. 

A. Relevant information

[12] “[C]ourts must enforce administrative subpoenas

unless the evidence sought by the subpoena is plainly incompetent or irrelevant to any lawful purpose of the agency.” Id.

at 1076 (internal quotation marks and citations omitted);

accord Children’s Hosp. Med. Ctr., 719 F.2d at 1428. Relevancy is determined in terms of the investigation rather than

in terms of evidentiary relevance. See Children’s Hosp. Med

Ctr., 719 F.2d at 1428 (“[T]he evidence [must be] relevant

and material to the investigation.” (emphasis added)). Moreover, the relevancy requirement is “not especially constraining.” Shell Oil Co., 466 U.S. at 68. The term “relevant” is

“generously construed” to “afford[ ] the Commission access

to virtually any material that might cast light on the allegations against the employer.” Id. at 68-69. 

The subpoena in this case asks FedEx only to identify any

computerized files that it has or currently maintains. FedEx,

the district court, and the EEOC all agree that that information

is not necessarily relevant in an evidentiary sense. That is, the

information sought is not itself evidence of discriminatory

treatment in violation of Title VII. Rather, the information

2438 EEOC v. FEDERAL EXPRESS
will help the EEOC craft additional information requests that

may produce evidence of discriminatory treatment. 

The Fourth Circuit has addressed this issue in a case

involving very similar facts, holding that the evidence sought

was relevant: 

[I]dentification of the computerized personnel information . . . is directly relevant to its investigation

. . . . 

Such data permits the Commission to better focus

its investigation. [T]his information will enable the

EEOC to perform its investigative function by allowing it to frame more specific requests which will

limit the possibility that irrelevant or unnecessary

material will be produced for the EEOC to review.

The efficient search for relevant information is

imperative in a case like this, where the Commission

must investigate not one or two claims against the

company, but nearly two dozen. Without this means

of locating pertinent data, both the EEOC and the

employer could be overwhelmed by the sheer quantity of information needed to address each claim

treated individually. 

EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116

F.3d 110, 114 (4th Cir. 1997) (internal quotation marks omitted). We agree with and adopt the Fourth Circuit’s analysis.

[13] The EEOC’s need to focus the investigation is even

more pressing in this case. In Lockheed Martin, the EEOC

was investigating “nearly two dozen claims,” whereas here,

the EEOC is investigating a charge that alleges systemic discrimination affecting African American and Latino employees

in FedEx’s eleven-state Western region. “In sum, in asking

[FedEx] to identify what computerized personnel files it had

maintained, the EEOC subpoenaed relevant information, i.e.,

EEOC v. FEDERAL EXPRESS 2439
information that affords it an opportunity to determine what

material ‘might cast light on the allegations against the

employer.’ ” Lockheed Martin Corp., 116 F.3d at 114 (quoting Shell Oil Co., 466 U.S. at 69). Thus, the subpoena seeks

information “relevant and material to the investigation.” See

Children’s Hosp. Med. Ctr., 719 F.2d at 1428 (emphasis

added). 

B. Overbroad

Finally, FedEx makes two distinct arguments that the subpoena is overbroad. First, FedEx argues that the subpoena is

overbroad because the EEOC “demand[s] personnel information concerning applicants, hiring, job analyses, evaluations,

demotions, training, and terminations, [that] ha[ve] no relevance to the specific claims of discrimination asserted in the

charges.” This argument simply rehashes the relevancy argument that we have already rejected. The subpoena need not

request only evidence that is specifically relevant to proving

discrimination; the requested information need only be “relevant and material to the investigation.” Id. 

[14] Next, FedEx argues that the subpoena is overbroad as

to the requested class information because “[w]hen there is an

individual charge, a district court should decline a companywide subpoena if the EEOC has not offered evidence of the

relevancy of the company-wide data.” We disagree. Merritt’s

charge, although brought by an individual, alleges a pattern

and practice of racial discrimination. Because it raises the

specter of systemic discrimination, the EEOC has the authority to investigate charges of discrimination beyond the alleged

individual discrimination specifically committed against Merritt. The district court should not “decline” to enforce such a

subpoena. To the contrary, it should enforce it as the EEOC

plainly has jurisdiction to seek company-wide data. 

The EEOC, by requesting identification of computerized

files instead of the files themselves, has refrained from impos2440 EEOC v. FEDERAL EXPRESS
ing on FedEx an overbroad request. Because the charge allegations are so broad, the EEOC has demonstrated restraint by

requesting identification of the computerized files and not the

files themselves. The information sought by the EEOC will

afford it the opportunity to make sure that it doesn’t request

vastly more information than it needs. As the EEOC correctly

points out, “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 subpoena is not overbroad. 

CONCLUSION

To enable the EEOC to make informed decisions at each

stage of the enforcement process, Congress has conferred

upon it a broad right of access to relevant evidence. Given this

broad grant of power, it can hardly be said that the EEOC

plainly lacks jurisdiction. Because Congress granted the

EEOC the authority to investigate (and nothing in Title VII

divests the EEOC of that authority when a charging party files

suit) and because the evidence requested by the EEOC is relevant and material to the investigation, the district court did not

err in enforcing the EEOC’s administrative subpoena. The

judgment of the district court is 

AFFIRMED. 

EEOC v. FEDERAL EXPRESS 2441