GENERAL TELEPHONE CO. v. EEOC

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

GENERAL TELEPHONE COMPANY OF THE NORTHWEST, INC., ET AL., Petitioners, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL., Respondents

No. 79-488

March 25, 1980

The above-entitled matter came on for oral argument at 2:33 o'clock p.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

JAMES R. DICKENS, ESQ., Karr, Tuttle, Koch, Campbell, Mawer & Morrow, 2600 Seattle-First National Bank Building, Seattle, Washington 98154; on behalf of the Petitioners

LAWRENCE G. WALLACE, ESQ., Office of the Solicitor General, Department of Justice, Washington, D. C. 20530; on behalf of the Respondents

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear argument next in 79-488, General Telephone Company v. Equal Employment Opportunity Commission.

Mr. Dickens, you may proceed whenever you are ready.

ORAL ARGUMENT OF JAMES R. DICKENS, ESQ., ON BEHALF OF THE PETITIONERS

MR. DICKENS: Mr. Chief Justice, and may it please the Court: I am James Dickens, of Karr, Tuttle, Koch, Campbell, Mawer & Morrow, in Seattle, and I represent General Telephone, the petitioner herein.

We have a very narrow procedural question before the Court. It is very simple. When the Equal Employment Opportunity Commission brings a class action under section 706(f)(1) of the Civil Rights Act, does it have to comply with Rule 23, and we believe it requires a very short answer and that is yes.

QUESTION: Let me ask you this, if I may, Mr. Dickens. Why would EEOC bring a class action? It is entitled to sue as a litigant. I would have thought it could have gotten virtually all the benefits of its litigant status as a litigant on behalf of the government without denominating its action as a class action.

MR. DICKENS: Your Honor, the government has not in the prayer or in the complaint said that it is a class action, but by the scope of the complaint and the relief requested, we believe that it is clear that it is a class action. They moved at the trial court level to bifurcate the issue of class liability from the issue of individual damages. We then moved to dismiss the class action aspects of the case and they acknowledge that they were seeking relief for a class and that is what they are. We believe this is the way the statutory procedure is set up, they are seeking relief on behalf of an individual plus on behalf of the class.

QUESTION: But by definition there is no individual in any conceivable class that the EEOC could represent other than itself, is there?

MR. DICKENS: No, Your Honor, that is where we believe that what Congress has done in accordance with its power to supersede the federal rules in whole or in part, it has declared that the commission is a properly suing party and therefore to that extent they have superseded the requirement of Rule 23(a) that it be a member of the class. As a consequence by statute we believe and we contend that Congress has made the commission a properly suing party under Rule 23. Having taken that step, they are a properly suing party, it is the same as the Court has held, for example, in Hunt v. Washington State Apple Commission, associations, state agencies and so forth do have standing to bring suit on behalf of a class, even if technically they are not a member of the class.

QUESTION: Who are all the members of the class?

MR. DICKENS: The other members of the class, that would depend on two things. First of all, we look to the charging parties. We have four charging parties here. They are four women employees at one facility out of 116 in one state out of five. Now --

QUESTION: Are they of the same class as the EEOC?

MR. DICKENS: I didn't say that. There have been cases in the lower court --

QUESTION: Doesn't a class action theory require that they all have the same claim?

MR. DICKENS: No, Your Honor, substantially --

QUESTION: Doesn't the class action require that all members of the class stand on the same footing?

MR. DICKENS: Yes, as a typicality requirement.

QUESTION: Isn't that true?

MR. DICKENS: Yes, Your Honor, it is.

QUESTION: Now, who is on the same level as the EEOC?

MR. DICKENS: Your Honor, first of all the EEOC is --

QUESTION: Who is on the same level as the EEOC?

MR. DICKENS: Your Honor, the EEOC is on a level by itself. It is on the level with the charging parties. That is our position, that the typicality requirement, you look to the charging parties. The EEOC --

QUESTION: Is that what Congress said when it authorized the EEOC to bring a suit on its own behalf, that it was to have the same status as the charging parties?

MR. DICKENS: Your Honor, we believe that is correct in the sense that it stands in their shoes.

QUESTION: But is that what Congress said in the statute?

MR. DICKENS: Your Honor, the statute itself, as the Court is aware, doesn't refer to this way or the other in the sense of is the standing the same or otherwise. We only have, as we had -- and I know the Court has talked about this earlier today -- the congressional history kept referring to cease and desist approach versus court enforcement approach and should we follow the normal rules of procedures.

QUESTION: Well, what about the traditional action that was in existence long before '72 enabling the Wage and Hour Administrator to sue to enforce practices of employers contrary to the Wage and Hour Fair Labor Standards Act. Now, could he have brought a class action?

MR. DICKENS: Your Honor, I don't believe so because I think you have to look at the unique phrasing of the statute and in that situation you normally have authority on behalf of the administrator to bring and file suit on behalf of the government itself and you usually have questions of what is the relief. We are not talking about the relief. We are talking about the procedure, a procedure which is solely triggered in each case by the individual charging party.

QUESTION: Well, what about the United States suing under the antitrust laws in a civil action to enjoin violations of the antitrust laws, could it bring that as a class action?

MR. DICKENS: Your Honor, the United States can bring an action in its own name for its own injury, but when it brings suit in a normal civil or criminal case it doesn't usually bring suit on behalf of other private individuals who have been injured and seek to bind the defendant to those individuals if it wins but not have them bound if it loses. That is a critical distinction and that is what we have here. The government says if you lose, employer, you are bound to the [ILLEGIBLE WORDS] are saying that in this case we have the same procedure either for a private litigant or for the government under section 706(f) is you trigger with the private individual, you investigate, determination, the commission says either we will let you sue or we will sue, if the individual sues the government admits, rule --

QUESTION: I am surprised frankly that you concede that the civil actions authorized by Congress to be brought by the EEOC is analogous in any way to Hunt v. Washington State Apple Growers who are all private litigants.

MR. DICKENS: Your Honor, in Hunt that was a question of standing with regard to a state agency, the Washington State Apple Commission, and the question was standing by it as a state agency to bring suit on behalf of various growers in the state and this --

QUESTION: They were all members of the agency, were they not?

MR. DICKENS: No, Your Honor. They had some effect to the extent that they helped select the people who were on the agency, but it was not a private organization.

QUESTION: It was a quasi-public trade agency, it was a trade agency with legislative status, was it not?

MR. DICKENS: I don't deny that, it was and that was part of the approach but the Court did say, as Your Honor is aware, having written the opinion, that it was a state agency and there was standing to bring suit on behalf of the group.

We are not questioning the standing of the commission to bring suit. We are saying that the commission can bring suit and we are not questioning at this time, it is not a question as to the scope of what they can do. All we are saying is that when the commission brings suit and says, well, we will bring it instead of you, charging party, and we know you would have to comply with it, we want the same relief, we say they should comply with Rule 23 also.

QUESTION: Isn't it up to Congress to decide that?

MR. DICKENS: Yes, Your Honor, it is.

QUESTION: Congress gave them the right, didn't they?

MR. DICKENS: I am not denying they have a right to sue.

QUESTION: And did they have to go further?

MR. DICKENS: Yes, Your Honor, they did.

QUESTION: Did they have to go further?

MR. DICKENS: Yes, Your Honor, they did, if they were going to --

QUESTION: I said have to. I didn't say did or didn't.

MR. DICKENS: No, Your Honor, I said they did. They would have had to go further to exempt the commission from Rule 23.

QUESTION: Why?

MR. DICKENS: Because the general rule is that the rules apply to all civil actions unless otherwise exempted or unless clearly superseded by Congress. Rule 1 says it applies.

QUESTION: Clearly superseded by Congress.

MR. DICKENS: That's correct, Your Honor.

QUESTION: Congress gave EEOC the right to bring this action on behalf of these people.

MR. DICKENS: That's correct.

QUESTION: And it didn't say class action. You said it should have said pursuant to Rule 23?

MR. DICKENS: No, Your Honor.

QUESTION: Well, what do you think Congress should have said? Or do you say that Congress should have said anything, that Congress intended Rule 23 to apply?

MR. DICKENS: Your Honor, I am saying that if Congress did not intend Rule 23 to apply, they should have said so.

Question: Why?

MR. DICKENS: Because that is the general rule. This Court and Congress have promulgated the federal rules. They have said in Rule 1 that --

QUESTION: The Congress did it.

MR. DICKENS: Yes, Your Honor, and this Court has authority also under its power in the statute to assist, too.

QUESTION: The jurisdiction of this Court as well as the other federal courts is determined by guess who?

MR. DICKENS: Well, it is determined by the Constitution, Your Honor.

QUESTION: Day by day by whom?

MR. DICKENS: By this Court, Your Honor, and by Congress.

QUESTION: I thought Congress had that power.

MR. DICKENS: Yes, they do also.

QUESTION: I thought they had the power to decide what jurisdiction this Court had.

MR. DICKENS: Yes, they do.

QUESTION: And they say that the federal courts shall have jurisdiction over actions by the EEOC on behalf of people, period, and that is what the federal government did. Now you say you have to add on to that Rule 23.

MR. DICKENS: Your Honor, I am saying that Rule 23 applies. They also did not mention --

QUESTION: Can the average citizen file a case who is a member of the class without making it a class action?

MR. DICKENS: If he only seeks --

QUESTION: Can he?

MR. DICKENS: Yes.

QUESTION: Well, that is what they are doing.

MR. DICKENS: No, Your Honor, they are not, they are seeking class relief, that is where we have the problem. If they only sought relief for the four charging parties, we have no problem, but they are seeking class right relief without the following of the general rule that --

QUESTION: Which they have a right to do under the act.

MR. DICKENS: Your Honor, I respectfully disagree. The act doesn't say that. It says that you have a right to file the action. If they file the action the private party files the action and want to make it a class action, Rule 23 applies.

Let me just briefly give the Court a little flavor for the facts. We mentioned some of them. We had four women employees in the Beaverton, Oregon facility file charges. That is one facility out of 116 and that is in one state out of five that General Telephone operates in.

The commission investigated and when it concluded it wanted to file a broad-based action and the action is as broad as possible. It mentions no specifics, no dates, no individuals, and requests injunction, affirmative action, it requests that people be made whole who are adversely affected, and request back pay.

We are not in this case questioning the scope of relief that can be granted. All we are trying to do quite frankly is avoid litigating this case now, in the future, and in the future. I would think -- there is no question that the court out our way doesn't want to try the case two or three times. But if the class is not bound by any decision that is reached, they can relitigate.

Furthermore, this Court has continued to say, in talking about Title VII cases, two principles which we contend are very applicable here. First of all, under Title VII it is the courts that are the final authority on Title VII and how it is implemented, and we agree. Secondly, this Court said in Rodriguez that the adherence to Rule 23 is indispensable -- the requirements of Rule 23. We agree, and that is what we are trying to do.

Now, here is what we have in this case, for example. I will give the Court I think a very concrete example of where in this situation the commission is making decisions that Congress intended the courts to make.

First of all, there is no question that because you allege something to be a class action, that does not make it a class action. We have good class action allegations and we have poor class actions. In this case, however, the commission has usurped the authority of the court in the class certification area by, number one, it said this is a class action. That is normally a determination court makes. And number two, it said the scope of the class is this broad.

Now, we contend that those are requirements that Congress intended the courts have in making that determination.

QUESTION: Do you contend that in addition to certification there should be notice to all the class members?

MR. DICKENS: Your Honor, I think that depends upon the type of class action that is certified, whether it is --

QUESTION: Well, it is one in which they ask the defendants to make all those persons adversely affected by unlawful employment practices.

MR. DICKENS: Your Honor, I think that notice of some type will have to be given. Now, whether it is an opt-in, opt-out, that depends on how the court decides to approach it. It probably would be an opt-out type notice that a class action is pending and you may opt out if you do not desire to be bound. That is the normal situation I believe in this case. But I want to go back to --

QUESTION: How about settlement?

MR. DICKENS: Settlement, Your Honor, that is really a big problem quite frankly. They say let's settle and I say, well, I can't settle with you, some good plaintiff's lawyer is going to tell me, hey, that's a great settlement, let's file a new action on behalf of these people that settled and --

QUESTION: Under the government's approach, what about settlement?

MR. DICKENS: They are not bound, Your Honor. The class members aren't bound. We have a settlement, it doesn't bind the class member. It binds the employer. Once again, it is the same thing with a judgment. We are bound if we lose, we are bound if we settle. The class members, they can either take it or they can go their own merry way and either bring a separate action or whatever.

QUESTION: Well, what if the EEOC brings an action against your client simply seeking to enjoin practices in violation of the Civil Rights Act of 1964, do you think they have to bring that as a class action?

MR. DICKENS: No, I think there is a distinction act not so much under 706 but there can be a distinction, a dichotomy between injunctive relief prospectively and the situation where you are seeking individual may call relief under 706. It is in the latter situation where you are seeking to give back pay, you are seeking a seniority spot or slot, that is where I believe we should bind the class.

QUESTION: But what if they don't ask for -- what if they simply ask for an injunction?

MR. DICKENS: If they come in and ask for an injunction, probably they are not binding the class, although if it is under 706 I think it should. Now, 707 appears to be more of a situation where traditionally broad ranging injunctive relief under a pattern or practice case come in, but --

QUESTION: Then it is intentional.

MR. DICKENS: Pardon?

QUESTION: Then it is required to be intentional, too, isn't it?

MR. DICKENS: Yes. As the Court is probably aware, it has already heard one Title VII case today, there was a long debate in Congress in 1971 and '72 over how much authority to give the commission. Congress decided that the provisions under 706 permitting individuals to file suit was not working as well as it wanted, so we had the two approaches. We had the cease and desist, which would have given them an awful lot of authority similar to the National Labor Relations Board. Now, in that case the commission would have received the charge, they would have investigated the charge, they would have adjudicated the charge and would have prosecuted the charge like the board did. But Congress didn't go for that. They said no, you've got all the regular procedures. We are going to be fair to everybody. We are going to be fair to the defendants and the employer is going to be fair to the parties.

Now, we believe that what we are requesting is fully in accord with what Congress intended in granting court enforcement powers to the commission. They didn't give it unlimited authority. They gave it the same authority under 706 as the private individuals.

QUESTION: Mr. Dickens, on just one point.

MR.. DICKENS: Yes, sir.

QUESTION: Could it be that at a later stage in this proceeding you could raise this same point, this class action point?

MR. DICKENS: The question of not being able to--

QUESTION: I mean when it begins to hurt you.

MR. DICKENS: Well, Your Honor, I can raise it. Let's assume there is a subsequent lawsuit by a lot of employees --

QUESTION: All right, or some person already in this one.

MR. DICKENS: But, Your Honor, what happens in that case is that I am going to have as many different decisions as I have district courts in our five states that litigated. One court may say, well, you're bound by the prior decision if you accept relief; one court may say, well, you're not bound. They may go a variety of different ways. We don't think that is what the court intended or what this Court wants to do.

We've gone through the various parts of the history. There is no question that the courts are split on the matter. As I mentioned earlier, we believe that had Congress intended to exempt the commission from Rule 23, it would have done so. It is clear that in the legislative history Congress made two specific references and changes in two federal rules. It made a change in Rule 53 on special masters to insure that they would be able to handle these cases. They made a change in Rule 65. What you get out of that, you are well aware that Congress knew about the federal rules and knew how to make exceptions. It didn't make a similar exceptions for the commission under 706 for a class action.

Now, it did talk about in several cases in the post history and throughout the committee reports that the commission is a properly suing party. Under Rule 23 you can bring class action. We have all of that.

Now, when you look at what the commission can do under 706, it is the same as a private party. We are not seeking greater relief or anything else. The charge is triggered by a private individual in both cases. Investigation is the same in both cases. The conciliation is the same in both cases. The action is the same as a private party with the possible exception that the standing is broadened to include other unlawful practices discovered. We are not questioning the standing as such. The relief is the same as under 706(g) in both of the situations.

Now, when the private party instead brings the suit instead of the commission, all absent members of the class are bound. There is no dispute on that.

QUESTION: Mr. Dickens, let me just as you a little bit about how you handle the language of Rule 23(a) that says that one or more members of a class may sue or be sued as representatives of the class. Is it your theory that -- the EEOC, of course, is not a member of the class but is suing on behalf of the charging parties who are like the representative plaintiffs. Is that your theory?

MR. DICKENS: That's correct, Your Honor.

QUESTION: If that is true and your charging parties, say, are charging sex discrimination, say they are four female employees who claim there was discrimination on account of gender. Say the commission in its investigation decided they wanted to broaden the case to include some race discrimination charges, could they do so?

MR. DICKENS: They could if they discovered discrimination charges during their investigation in addition to sex as part of that investigation under the lower court decisions. This Court has never ruled upon that.

QUESTION: Then would the charging parties, if you look at it as the members of the class within the meaning of the rule as the charging parties, could they represent the victims of race discrimination charge was based on gender discrimination?

MR. DICKENS: Your Honor, what we are saying is this, is that as far as the typicality requirement, the typicality requirement is coextensive with the standing which the commission is to bring the suit. If they have standing to bring it on behalf of sex, fine. If they also have standing to bring it on behalf of race, fine. The question here isn't the standing. We recognize there are cases saying the commission may have broader standing than the individual charging parties. We aren't denying that. That is not an issue here.

Whatever they have standing to bring, that determines the typicality.

QUESTION: But in answer to Mr. Justice Marshall you in effect said, well, the rules apply unless Congress says they don't.

MR. DICKENS: That's correct.

QUESTION: But if you just read the rules, they wouldn't cover this double capacity kind of suit.

MR. DICKENS: No, Your Honor --

QUESTION: The rule would really cover maybe a sex discrimination suit or any kind that would be an appropriate class for your charging party.

MR. DICKENS: Your Honor, your typicality, your reference is back to number one, the charging parties and, number two, the people who were not charging parties but who may have had claims that were discovered. It can be both groups. You may have to handle a case somewhat differently but there is no problem. We have many class actions where you have different types of claims or you may separate those. We are not contesting that. That is not a question.

I wanted to reserve ten minutes for rebuttal and at this time would like to do that.

MR. CHIEF JUSTICE BURGER: You have less than ten left.

MR. DICKENS: Fine.

MR. CHIEF JUSTICE BURGER: So you may reserve it.

MR DICKENS: Fine. Thank you very much.

MR. CHIEF JUSTICE BURGER: Mr. Wallace, you have time to open at least.

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE RESPONDENTS

MR. WALLACE: Thank you, Mr. Chief Justice, and may it please the Court:

Outside of the context of Title VII, no court has ever held that a suit by the United States or one of agencies to enforce federal Law must proceed as a class action its behalf of the affected members of the public even though there are many contexts in which such suits arise, and the contrary practice has been common place.

We reviewed in some detail in our brief this Court's decision in Porter v. Warner Holding Company which involved the rent control legislation of the World War II era. Back pay cases are common under the National Labor Relations Act; actions to recover on behalf of an affected group of employees are common under the Fair Labor Standards Act.

QUESTION: But in those they have express authority to do it, don't they?

MR. WALLACE: Well, they are --

QUESTION: I mean on behalf of named parties or unnamed parties?

MR. WALLACE: There is statutory authority, that is correct, but --

QUESTION: Suppose there weren't and suppose the United States --

MR. WALLACE: Actually there was not in Porter v. Warner Holding Company.

QUESTION: Suppose there was only authority to bring suits on behalf of named parties.

QUESTION: Mr. Wallace, there was in Porter v. Warner Holding Company, that was what the argument was about. Our other order was construed by the majority to be such statutory authority.

MR. WALLACE: It wasn't express statutory authority.

QUESTION: Yes, but it was construed to be.

MR. WALLACE: It was interpreted that way.

QUESTION: Suppose the only authority --

MR. WALLACE: There was a lot of emphasis on the equitable power of the court to award the relief.

QUESTION: Suppose the authority is only to bring suit on behalf of named parties of which there are certainly plenty of examples, do you think the United States under Rule 23 could nevertheless bring a class action?

MR. WALLACE: Well, we haven't really faced that question.

QUESTION: You should say no. You should say that you are really just exercising a strictly special statutory authority to bring --

MR. WALLACE: There are situations where the United States represents individuals and is a lawyer for individuals under the veterans reemployment law or in cases where there is a state taxation of servicemen, and I am not sure that the United States could not move under Rule 23 in those circumstances, if it saw fit to.

QUESTION; So you think it might then be a real representative under Rule 23?

MR. WALLACE: I don't know.

QUESTION: I thought your argument was that it wasn't.

MR. WALLACE: It really is functioning as counsel for named persons. It is not suing in its own name under those statutes. When the cases reach this Court the name of the United States is not a party. The United states is serving as counsel for individuals that it is authorized by statute to represent to court [ILLEGIBLE WORDS] situations.

QUESTION: You're saying that the [ILLEGIBLE WORDS] parties are bringing a class action.

MR. WALLACE: In situation [ILLEGIBLE PARAGRAPH] under those societies. It is [ILLEGIBLE WORD] situation been there Congress has authorized to to courts on or the Attorney General to sue in their own capacity to enforce the law.

QUESTION: Mr. Wallace as I understand your position, even if they grant you the right to bring the suit in the name of the EEOC and even if you have the right to bring the suit in the name of the EEOC on behalf [ILLEGIBLE WORDS], you don't have the right to also ask for relief for the whole class?

[ILLEGIBLE PARAGRAPHS]

March 26, 1980, Wednesday, Washington, D.C.

The above-entitled matter came on for further oral argument at 10:03 o'clock a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

LAWRENCE G. WALLACE, ESQ., Office of the Solicitor General, Department of Justice, Washington, D. C. 20530, on behalf of the Respondents

JAMES R. DICKENS, ESQ., Karr, Tuttle, Koch, Campbell, Mawer & Morrow, 2600 Seattle-First National Bank Building, Seattle, Washington 98154; on behalf of the Petitioners

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will resume argument in 79-488, General Telephone v. Equal Employment Opportunity Commission.

Mr. Wallace, you may proceed when you are ready.

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE RESPONDENTS

MR. WALLACE: Thank you, Mr. Chief Justice and may it please the Court:

Just before the Court rose yesterday, Mr. Justice Marshall asked me what would be wrong with our having to comply with Rule 23 in suits in which make whole relief is sought as well as injunctive relief. Basically there would be three things that would be wrong with this. They are somewhat interrelated.

The first is there is no reason to think that Congress intended so sharp a change from the traditional practice in suits by the government or its agencies. Not only was Congress presumably familiar with the pattern of government litigation under many other statutes, but there had indeed been 69 suits filed by the Attorney General between 1964 and 1972 under section 707 of this act, some of which had sought relief that would benefit a class of persons such as preferential hiring order, constructive seniority and the like, and in none of those cases had it ever been suggested by anyone that Rule 23 procedures need be used and --

QUESTION: How many of those involved claims for monetary relief?

MR. WALLACE: None of them up until 1972 did, although some decided shortly thereafter did include claims for monetary relief. The legislative history indicates that the newly authorized governmental suits under section 706 were to be assimilated to the section 707 suits to the point where the sponsors of the legislation said section 707 would essentially become a redundancy in the law and that everything could be accomplished under section 706 that previously could be accomplished only under section 707.

QUESTION: Well, would that same be true vice versa that everything could be accomplished under 707 that could be accomplished under 706?

MR. WALLACE: Providing the pattern of practice criterion could be met which is required to bring a 707 suit and get relief, which is not required under 706.

QUESTION: The two were virtually interchangeable in the view of the sponsors except for that quality?

MR. WALLACE: Except for that quality, as far as we can see in the legislative history.

QUESTION: Then why did the sponsors want 706?

MR. WALLACE: The government to be able to sue under 706 as well as 707?

QUESTION: Yes.

MR. WALLACE: Apparently it was the idea that the commission would become the primary enforcement mechanism and that there would be -- that the law would be enforced primarily by governmental suits rather than private suits and that the government should not have to sue only in pattern or practice cases. Even though if one takes a generous enough view of pattern or practice, most cases could be sit into the pattern or practice terminology, but not all cases. That seemed to be the predominant thinking. I think it was really part of the compromise between those who thought that the commission should have the cease and desist authority and those who thought that court enforcement should continue to be the method of enforcement, but that the commission would have the responsibility of bringing most of the court cases.

The second thing that would be wrong with this, and this cuts it seems to me a little more deeply into the case, is that it would cast the government in an inappropriate role in enforcement of the statute, and in some ways this is among the most important things about the Court's opinion in this case, the role to be envisioned for the government in the enforcement of Title VII.

The commission and the Attorney General have never understood that role to be the role of a proxy for individual complainants or for any particular class of persons, and there is no lawyer-client relationship established with any particular group of persons as there is in the statutes that we discussed yesterday, where possibly the government could bring a class action where it is serving as a lawyer for particular individuals.

The commission's assignment and the Attorney General's assignment in the cases that they are to bring or he is to bring is to enforce the law rather than to act on behalf of any individuals. This is indicated on the face of the statute itself, which is section 706 is set forth on page A34 of the appendix to the petition for certiorari, and it starts off saying the commission is empowered as hereafter provided to prevent any person from engaging in any unlawful employment practice as set forth in the other provisions, not to represent any group of individuals, and there are other references that are consistent with this view of the government's role in enforcement. I want to refer to only one of them.

On page A-37, in section (f)(l) there, it says, "If within thirty days," et cetera, "the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action. . ." The responsibility is to see to it that the law is enforced. If the commission is satisfied that the agreement properly implements the law, there is no obligation to any particular group or class of persons to make sure that they are satisfied.

Of course, if they won't agree to the agreement, there might be litigation in any event, but the commission would not have the responsibility to conduct that litigation.

QUESTION: What about an action by the administrator of the Fair Labor Standards Act, would --

MR. WALLACE: It is really a similar responsibility to enforce the law. It happens that in --

QUESTION: Could he bring a class action?

MR. WALLACE: They never have. They never have had to. It has always been, the practice has always been that they have statutory authority to seek the relief for -- to see to it that the law is complied with and that those who have been denied proper wages are made whole. It is part of the statutory authority. There never has been the use of Rule 23 in those cases.

Those cases don't present some of the complexities and considerations and the possibilities for divergence of the public interest from private interests that are involved in Title VII. The standards are very clear under the Fair Labor Standards Act. It is almost once you've done your factual investigation, it is almost a mathematical exercise.

Title VII is very different from that. Even if one takes a rather one-sided view of the government's enforcement responsibilities, if you pose an example of getting rightful place seniority relief under this Court's decision in Franks v. Bowman Transportation Company, for example, the question is who is entitled to that rigthful place in seniority relief in many situations, what classes of employees. If it can be secured only for a particular racial group, that is more advantageous to the members of that class than if it is broadened to include other ethnic or gender groups.

On the other hand, if it isn't broadened to include these other groups, they are being disadvantaged by the granting of it to the first group. There are strains here, there are possibilities of competition among claimants so that the commission would be embarked on a treacherous course if it thought of its role as anything other than seeing to it that the law is properly enforced. If it thought of itself as to be cast in the role of a representative for any particular group and --

QUESTION: What if it thought the law wasn't being properly enforced, why can't it gain everything it wants by a simple injunction?

MR. WALLACE: Well, there is make whole relief and part of what the legislative history reflected was that the commission was to be able to get broader based relief and more comprehensive relief, similar to the relief that had been secured in class actions brought by private individuals theretofore under section 706, even though for other purposes the action by the commission or the Attorney General was to be assimilated to the familiar kind of action under 707.

The example that I have given is really two one-dimensional examples because Title VII protects the rights of all persons not to be discriminated against on the basis of their race and their sex or their sex or the other classifications, and while the commission, the United States are of course committed to an effective enforcement policy of putting an end to discrimination wherever it is found, to finding effective remedies to make whole the victims of discrimination and to prevent its reoccurrence.

As this Court is well aware, sometimes remedies can be excessive. Sometimes this Court has found remedies that we have contended for to be excessive, and they can in extreme cases become an instrument that treats other unfairly, an instrument of discrimination in themselves. And when the United States or the commission brings its weight and its resources into the enforcement of this law, it must be with an awareness of all of the rights that will be affected, including other rights that were respected under Title VII, collective bargaining rights, managerial prerogatives, and the like. It must not approach these cases with a one-dimensional view that it is serving only as a representative of a particular class of individuals. That to us is at the heart of this case and that is our understanding of the way Congress expected governmental authorities to carry out their responsibilities under this statute, just as they do under any other statute. It is a law enforcement responsibility.

And this element of detachment of the commission or of the Attorney General from the particular interests involved is reflected in many details of practice under the act. The commission need not include all of the issues raised by a charging party in its suit, if it concludes that some of them are without merit, and it is not limited to the issues raised by the charging party or even to the interests that the charging party represents because the failure to include the interests of others found to be victims of this discrimination might result in the suit working to their detriment in some circumstances actually, and the commission's responsibility is to enforce the law in a more comprehensive manner.

Moreover, the charging party is not bound when the commission thinks there is no merit in the charge at all and refuses to bring suit. The charging party can still bring a suit.

QUESTION: Of course, the problem doesn't arise unless a suit is brought and that is --

MR. WALLACE: Well, that's right.

QUESTION: I didn't get your third reason in answer to --

MR. WALLACE: Well, I haven't gotten to it yet.

QUESTION: Oh, I wanted to make sure I hadn't missed it. Okay.

MR. WALLACE: My second one ran out and -- the third reason, Mr. Justice, is that Rule 23 doesn't fit the situation as the terms of Rule 23 are ordinarily understood. The rule would really have to be distorted considerably to be applied here. The commission is not an employee of General Telephone Company of the Northwest, nor is it an association of such employees. It is not controlled by those employees. It is not bound to represent their interests in any way. Its responsibilities, its claims in this case are not typical of any class. And in light of its law enforcement responsibilities and responsibilities to other categories of the public, there are difficulties in saying --

QUESTION: Well, isn't that an argument as to why it shouldn't bring a class action?

MR. WALLACE: Well, I think if one thing emerges with clarity from the legislative history it is that Congress intended that in actions by the commission and by the Attorney General, all of the relief that had heretofore been available in class actions by individuals would be available.

The whole effort in 1972 was to make enforcement more effective and to make the commission and the Attorney General the primary enforcement mechanism.

QUESTION: But the fair labor standards administrator has the right to seek back wages for people who have been discriminated against, too, doesn't he?

MR. WALLACE: That is correct, without having to comply with Rule 23, and that is exactly the analogy we think is here action.

MR. WALLACE: And neither do we. It is only the Court of Appeals for the Fifth Circuit that has called it a class action and said that we have to comply with Rule 23.

QUESTION: Isn't this in a sense much ado about nothing then?

MR. WALLACE: Well, I think there can be a great deal of litigation stimulated by the question of whether Rule 23 has been complied with. As the Court is familiar with its own cases, there can be a great deal that is another layer of litigation added to these cases if --

QUESTION: Well, how would the opting out process go, applying Rule 23 here?

MR. WALLACE: We have considerable difficulty seeing how it would operate. As far as we are aware, no one is bound in the first place. Part of the contention being made here is that all individuals should be bound, and that is the reason to make it a class action, but that in itself seems to us inconsistent with the way Congress has set up the statute.

As I just mentioned, no one is bound by the fact that the commission decides that there is no merit at all in their claim, why should they be bound by a [ILLEGIBLE WORDS]

QUESTION: Of course, in one cases you've got a lawsuit and in the other case you don't.

MR. WALLACE: You do.

QUESTION: Isn't it somewhat unusual to take the position that it is perfectly fair to say that a particular individual as a member of the class has claim for back pay as a result of alleged discriminatory practices, can be litigated in full on his behalf by the government and the government can lose and then he can file the same lawsuit all over again? Isn't there something that troubles you a little bit about that?

MR. WALLACE: It is not as usual as it seems, putting it that way. It is something very similar to the antitrust laws. If the government wins an antitrust lawsuit --

QUESTION: Under the antitrust laws, the government does not bring a suit on behalf of private parties and doesn't get relief for private parties.

MR. WALLACE: That is exactly the situation here, there --

QUESTION: No, you are asking for back pay for these people.

MR. WALLACE: Well, you can get the relief here as you would under the Fair Labor Standards Act, but no because the government has lost its case. They can still bring a suit on their own for the same alleged violation.

QUESTION: But the difference is that here you are asking for monetary relief on behalf of particular individuals, which is not the case in the antitrust context.

MR. WALLACE: But it is in the Fair Labor Standards Act. It is true that --

QUESTION: Well, is it settled under the Fair Labor Standards Act that if the government brings a suit on behalf of a group of wage earners and fails to recover on their behalf, that they can nevertheless relitigate the issue?

MR. WALLACE: As far as I am aware, they can. They are free to. It just doesn't happen very often and we haven't found it happening very often here. One of the most effective things is if the government prevails then people can be required to waive any further claim in accepting the benefits of the judgment that the government does get and --

QUESTION: Has the government ever brought a claim that denominated a class action under the Fair Labor Standards Act?

MR. WALLACE: Not that I am aware of.

QUESTION: Is it your position, Mr. Wallace, that the commission could not bring a class action even if it wanted to?

MR. WALLACE: This Court said is the way --

QUESTION: Well, what is your position? I am not asking you about ours, I'm asking you about yours.

MR. WALLACE: We have attempted to bring them in the Fifth Circuit since the D. H. Holmes decision. It is not an easy matter.

QUESTION: What is your position here in argument before this Court, that the commission cannot bring a class action?

MR. WALLACE: We would not take that position. If in order to get the relief that Congress contemplated in the 1972 act we had to proceed under Rule 23 and had no other option under this Court's decision, we would proceed under Rule 23 as-best we could.

QUESTION: But your position in argument here is that the commission cannot bring a class action suit under Rule 23, is it?

MR. WALLACE: It is that it would be inappropriate, but I wouldn't take the position that it cannot because if we are forced to in order to effectuate the congressional policy that the commission get this relief as the primary enforcement tool, we will do it.

QUESTION: A good deal of the force of your

MR. WALLACE: Well, I don't think the force of our argument disappears.

QUESTION: You say it is a wholly inappropriate thing, it is unworkable, that Rule 23 clearly is not designed for this sort of an action on the part of the commission, and yet you say the commission can bring a class action.

MR. WALLACE: I am only saying that if we are required to we will try to proceed that way.

QUESTION: But you are arguing --

MR. WALLACE: There are many difficulties --

QUESTION: You are arguing before us that you are not required to.

MR. WALLACE: That we are not required to and that it is inappropriate.

QUESTION: And is it part of your argument that the commission cannot do it -- you say no, it is not.

MR. WALLACE: I don't think we can go that far, Mr. Justice, I think --

QUESTION: Even if you went that far and this Court just didn't agree with you and said you are just wrong, you can't go that -- you can bring one.

MR. WALLACE: We would comply.

QUESTION: But you had just been told you were

MR. WALLACE: Well, we see great difficulty.

QUESTION: So I don't know why you don't just say your position is that you can't bring it, because if we disagree with you, you can.

MR. WALLACE: Well, we have been trying to do it in the Fifth Circuit, but it is hard for me to stand here and say that our position is we can't.

QUESTION: It is our rule as well as Congress' rule.

MR. WALLACE: Yes.

QUESTION: But you say the Fifth Circuit decision is entirely wrong.

MR. WALLACE: Yes, and we will certainly discontinue that practice should this Court agree with our position. We do think it is wrong.

QUESTION: And yet you say you can do it.

MR. WALLACE: We are trying to. We don't fit very well into any of the provisions of Rule 23. An amicus supporting us in this Court argues that we can't be a proper representative of them. There are many reasons why a class of claimants could feel uncomfortable with us as their representative in a class action. For one thing, our position in Title VII litigation can't be unaffected by the fact that the government is often a defendant in title VII suits. The commission does have responsibility to enforce Title VII within the government. The Solicitor General has a responsibility to defend the government in such cases before this Court.

Our attitude about the use of civil service examinations in the states has to be affected by the similarity of the use of civil service examinations in the federal government and the fact that many of these examinations have been developed with help from the federal government.

We may have reason to think that Congress approves of the merit system of employment and would want Title VII reconciled with that approach to governmental employment, but there are people who disagree with us on this.

QUESTION: Mr. Wallace, after a lawsuit has been filed and you've made all the decisions that enforcement is appropriate, in a case such as the one before us, is it the practice of the EEOC to give notice to the persons for whom it seeks monetary relief?

MR. WALLACE: I don't think there is a practice to give comprehensive notice. Very often the word gets around --

QUESTION: I understand.

MR. WALLACE: -- and the charging party would involved in civil rights organizations, but there is not a systematic notice given to all persons.

QUESTION: But in your response to Mr. Justice Marshall, as I understand it, your three points is that Congress didn't intend it, it is inappropriate for the government, and third, the language of Rule 23 and the concept of Rule 23 just doesn't fit. But you don't argue that there would be any special burden on the government of compliance?

MR. WALLACE: Well, I think it would --

QUESTION: You could include that as one of your three points.

MR. WALLACE: Right. As we understand it, there is no notice requirement when injunctive relief is --

QUESTION: I understand that, but you don't give as an answer to Mr. Justice Marshall -- Mr. Justice Marshall asked you, as a practical matter, what difference it would make, and you gave three legal answers, but you didn't say anything about any burden on the government to file.

QUESTION: Well, as a practical matter, it will create a burden on the litigation itself. It will encumber Title VII litigation with a lot of issues about adequacy of representation typicality, whether you are really a become bones of contention in the litigation. It will hobble effective enforcement of Title VII.

QUESTION: Not as I understand your opponent's position. If I understand him correctly, he says that you can enlarge the class beyond the typicality requirement that would be appropriate if the specific charging parties were the class representatives, that you are not so limited. So it doesn't seem to me you really are going to have much of a typicality problem. The problem rather, as I understand, would be for you to give notice of the people that you intend to include within the perimeters of the litigation and so the judge will know and everybody will know who is bound, and that is about all there is to it.

MR. WALLACE: Well, there could be contentions about adequacy of representation, but not made by the defendant ordinarily --

QUESTION: Well, I would think that it would be pretty hard to claim that the government doesn't represent them adequately.

MR. WALLACE: This is really an amendment of Rule 23, of changing what the criteria would ordinarily mean. And if the Court were to say that, it wouldn't be a meaningful thing to call it a Rule 23 suit. It wouldn't [ILLEGIBLE SENTENCE]

QUESTION: The feature that when the lawsuit was over the rights of the parties who had been placed within the class early in the proceeding would have been settled once and for all and you wouldn't have to worry about another lawsuit. That is the thing they are seeking to accomplish, and I don't really see why that is such a terrible suggestion.

MR. WALLACE: Well, it might make it easier for the commission to negotiate settlements if they could represent that everyone will be bound by them. But we recognize that but we don't think that that is the role that Congress assigned to the commission --

QUESTION: I understand.

MR. WALLACE: -- that there is reason enough that people should be bound or that the difficulties as a practical matter are such that the law should be stretched in this direction.

We have mentioned in the last two or three pages of our brief why as a practical matter duplication of litigation is unlikely to occur, certainly because all the relief is equitable in nature and there won't be double remedies of any kind.

MR. CHIEF JUSTICE BURGER: Your time has expired now, Mr. Wallace.

[ILLEGIBLE SENTENCE]

MR. CHIEF JUSTICE BURGER: Do you have anything further?

ORAL ARGUMENT OF JAMES R. DICKENS, ESQ., ON BEHALF OF THE PETITIONERS--REBUTTAL

MR. DICKENS: Yes, Your Honor.

QUESTION: Mr. Dickens, before you start I am interested in the same subject that Mr. Stevens has been pursuing, the risk of duplicative litigation. The government's brief says on page 35 at the top that the risk of duplicating litigation can be minimized by the exercise of the District Court's equitable powers under 706(g).

MR: DICKENS: Your Honor --

QUESTION: I would like to hear you discuss that, and you have cited a number of cases in your brief. What has been the actual experience?

MR. DICKENS: Your Honor, let me just give the Court the closest analogy I can. The AT&T consent decree was probably what prompted this litigation. This I think occurred in about 1969 or 1970. The government, the EEOC and the AT&T entered into a consent decree in the Third Circuit. There was no binding effect upon anyone else.

The union challenged that all the way up to this Court and petition for cert was denied. There were challenges in every other, almost every other circuit throughout the country and those are cited in our brief. People were unhappy with what had been negotiated. They were not bound by it. They were entitled to bring their own actions. So you had a multiplicity of litigation which we are trying to avoid.

We have had a couple of questions about the Fair Labor Standards Act. That is a red herring. That is a unique statute. Congress recognized in that situation that Rule 23 would apply unless it made an exception. Congress did this: To file a private action under the Fair Labor Standards Act, you have to file a written consent. Rule 23-type actions are not permitted.

So the only people bound are those who file a written consent, and the only people who get relief are those who file a written consent to be a party plaintiff.

If the government brings a Fair Labor Standards case, the right of action is terminated. There is no further private right of action. So we have in the Fair Labor Standards Act what we are asking for here, we want some finality. We want to resolve litigation.

QUESTION: Well, what can a court of equity do if an employee declines to take the award that is available to him and decides he wants to bring a suit?

MR. DICKENS: Your Honor, section 706(e) really refers to the remedy and there is no question that because of the type of situation we have, we are talking about in many cases you cannot just give an award of back pay. We believe that 706(c) was drafted to provide for the remedy and not for the procedure. The Court may say, well, you can't have your relief if you are going to bring a second suit, and may say you can -- what we run into, however, will be the situation we believe that you may have some people declining their relief and bringing the second action thinking they can get more; you will have as many different decisions as you have district courts. And I do not believe in Title VII this Court, which has consistently sought uniformity in its interpretation, wants a case by case approach.

QUESTION: We said something about that may bear on this, I'm not sure, in the Roper case --

MR. DICKENS: Yes, Your Honor.

QUESTION: -- to the effect that the tender and the payment of the full amount due and interest, all the relief, all the monetary relief initially sought is not the end of the matter in a class action. I am not sure how that would ultimately filter its way into this setting.

MR. DICKENS: Your Honor, one thing you did say in that case -- and I have read the case -- is that you thought it would be a waste of judicial resources to stimulate successive lawsuits by other aggrieved parties, and we concur and that is what we are trying to avoid here.

QUESTION: Mr. Dickens, what you do if one of these women filed suit on her own?

MR. DICKENS: Your Honor --

QUESTION: And not as a class action.

MR. DICKENS: Your Honor, we would litigate that. It would resolve it on its own.

QUESTION: You couldn't turn it into a class action, could you?

MR. DICKENS: Your Honor, she would only be requesting individual relief, we wouldn't want to.

QUESTION: I see. Then you could have as many suits as you had people.

MR. DICKENS: That is possible. In the present case, the government however has requested class-wide relief. They have mentioned during the argument up here that, well, you know, maybe we don't want to do this but we are not bringing this on behalf of the people, yet they have requested class-wide relief.

All we are saying is if you request class-wide relief, comply with Rule 23. If you want individual relief for the charging parties in a prospective injunction, no Rule 23.

QUESTION: They consider this as incidental to the injunction.

MR. DICKENS: Your honor, that is an improper --

QUESTION: With some cases to back it up.

MR. DICKENS: Your Honor, I know cases that back up their position. They are talking about remedy and not about procedure. There are cases that say when the government can sue in its own name, without having the charge trigger by a private party, perhaps incidental to the court's equity powers they can get relief. We are talking about the procedure, not about the remedy.

In this case, at the front end they are saying we are suing for these people, we want personal relief for them.

QUESTION: Where did they say they are suing for the people?

MR. DICKENS: Your Honor, the complaint --

QUESTION: They said they are suing pursuant to the statute.

MR. DICKENS: No, Your Honor, what they have said was in very broad language, for all these people that have been excluded from these two categories of craft jobs and managerial jobs, we want --

QUESTION: Where is that?

MR. DICKENS: Your Honor, it is in the complaint, paragraph 13, which is in the appendix, pages 7 to 11. Here is the class they allege: They allege that unlawful exclusions, two classes, including women from craft jobs and from managerial jobs --

QUESTION: Where do they say class?

MR. DICKENS: Your Honor, they don't say class in the complaint.

QUESTION: I didn't think they did.

MR. DICKENS: No, they do not. But the --

QUESTION: Not maybe not, they didn't.

MR. DICKENS: They did not. They did move, however, to bifurcate the issue of class liability and they acknowledged in their memo opposing our motion that, "The commission acknowledges that it seeks relief for a large class of women" --

QUESTION: Where are you reading from?

MR. DICKENS: Your Honor, I am reading from the record, page 215. It is --

QUESTION: Not in the appendix?

MR. DICKENS: No, Your Honor, it is in the record itself. The appendix has some references, and I think it is in our brief, but the record, page 245, they say. "The commission acknowledges that it seeks relief for a large class of women in this lawsuit."

The lower court and the Court of Appeals both said this is a section 706 class action people, would that have been a class action?

MR. DICKENS: Your Honor --

QUESTION: Aren't you giving too much weight to the word "class"?

MR. DICKENS: No, Your Honor, I think not.

QUESTION: You caught them using it, so you are going to lay it on.

MR. DICKENS: Pardon?

QUESTION: You caught them using the word "class" so you are going to get the most out of it.

MR. DICKENS: No, Your Honor. They want individual class relief and that is what they want. They want it and we say fine, but we would like procedures which are well recognized.

QUESTION: I suppose your position is that if a lawyer who is presumed to know about Rule 23 class actions was the word "class action" when he is representing a large group of people that he means a class action.

MR. DICKENS: Your Honor, I have to agree with that, yes.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 10:37 o'clock a.m., the case in the above-entitled matter was submitted.)