Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission Petition for a Writ of Certiorari to the US Court of Appeals for the Ninth Circuit

    SUBJECT INDEX
Page

Opinion Below......................................... ....................  1
Jurisdiction.................................. ...... ..................-.......  I
Question,s Presented..................................................... 2
Statutory Prevision Involved ......................................'  2
Statement of the Case..............................   3

Reasons for Granting the Writ .................................  5
1.

The Ninth Circuit’s Refusal to Apply the Most 
Analogous State Statute of Limitations to the 
Back Pay Aspect of the EEOC’s Complaint 
is in Irreconcilable Conflict With Two Recent 
Decisions of the Court: of Ap :a!s for the Fifth 
Circuit .................................................................. 5

II.
The Applicability of Federal and Stale Statutes 

of Limitation to the EEOC’s Right to Sue Is 
of Critical. Pervasive, and Recurring Impor­
tance to the Judicial Administration of Title 
VII .................................   6

III.
The Ninth Circuit Erred in Refusing to Apply the 

Federal or Most Analogous Suite Statute of 
Limitations to the EEOC's Right to Sue ..........  8
A. The Supreme Court and the Federal 

Courts Have, in the Absence of Any Ap­
plicable Fcdcal Statute of Limitations, 
Repeatedly Applied the Most Analogous 
Stale Statute of Limitations to Complaints 
Brought Under Civil Rights Acts and 
Numerous Other Federal Statutes ...............  9

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B. The Supreme Court’s Only exception to
the Rule Applying State Statutes cl Limi­
tation When No Federal Limitation Exists 
Has Been Where the United States Gov­
ernment Was Suing to Collect Revenue 
for the United States Treasury or to Pre­
vent Injury to the United States Govern­
ment .......................-...................................  13

C. The Ninth Circuit's Reasons for Expand­
ing This Limited “Sovereign Immunity” 
Exception to Include Suits Brought by a 
Governmental Agenc\ to Recover Back 
Pay Claims for Private Individuals Are 
Not Persuasive ...........................................  14
1. The Ninth Circuit's Argument That

“Public Policy” Prevents Application 
of State Statutes of Limitation to 
EEOC Back Pay Claims ....................  14

2. The Ninth Circuit's Argument That
the EEOC Should Be Treated the 
Same as the NLRB in This Respect.. 17

Conclusion ..................................................................  19

Appendix. Opinion ......................................App. p. 1

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TABLE OF AUTHORITIES CITED
Cases Pa.ee

Adams v. Woods. 2 Cranch 336 ( i<S05) ................  12
Albemarle Paper Company v. Moody. 422 U.S.

405 (1975) ................   15
Campbell v. Haverhill. 155 U.S. 610 (1895) .......... 12
Curtncr v. United Stales, 139 U.S. 662 (1893) 13
Davis v. Corona Con! Co.. 265 U.S. 219 (1924)

EEOC v. Christianbera Garment Co., 376 F.Supp.
13

6
EEOC v. Eagle Iron Works. 367 F.Supp. 817 (S.D.

Iowa 1973) .............................................................  6
EEOC v. Griffin Wheel Co.. 51 1 F.2d 456 ( 5th Cir. 

1975). affirmed on rehearing, 521 F.2d 223 (5th
cfir. 1975) 5. 6

Fra nks v. B:Vvvmari J I'cimsrtertati on Co.. U.S.
—  ? 14 U.S.LAV. 1 7 TT A A (1 976) 15

.Tollnson v. \\: tiiway Ex Hi•ess Agency. Inc.. 1 O I U.S.
454 ( | 075 ) ...................... 5, 7. 15

Uni ted States v. Beebe, "i27 U.S. .338 (1888) 13
Uni ted States rr

V . a lies M Road Co.. 140
U.S. 599 ( 189!) 13

Un:ted States v. Dcs; Moine:s Nav ipation & R. Co..
i42 U.S. 5 1 0 ( 1  \\;92) 13

Uni icd Suites v. Georgia Power Co.. 474 F.2eI 906
( 5 th Cir. i 973) . .... 5, 6

Uni ted U-j o *" •' /■'. v. M; ISO nrv Contra etors A.ssoci ation
of Memphis. Inc.. 497 F.2d 87! ( 6th Cir. 1974)
.........................-................................................................  6

United Stales v. Nashville. Chattanooga &. St. Louis
Railway Co.. 118 U.S. 120 (1886) ....................  13

United States v. Summerlin, 310 U.S. 414 (1940)
................. .................................................................  13

United States v. Thompson. 98 U.S. 486 ( 1879) .... 13

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Statutes
Act of Feb. 26. j 845 (re custom duties): Barney 

v. Oelrichs. 138 U.S. 529 (189!) .......................

i at e

10
Civil Rights Act of 1 866: Johnson v. Rail[way Ex-

press / ige:ncv. Inc. , 42! U.S. 4■54 ( 1975 \) .......... 9
Civil Rig!fits Act of 11870: O'Sid ilivan v. Fe.MX, 23j

U. S. 31IS (1914) . 9
Civil Rights Act of 1964.. Title VII, See. 706(b).. 16
Civil Rigfits Act of 1964.. Title VI!, . 706(b)

(2 ) -- 16
Civil RightS Act of 1964. nr;. » . . I iltC VII, See. 706(b)

(4) .. 16
Civil Riahts Act of i 961. Title VII, Sec. 706(c)- 16
Civil Rights Act of 1964,, Title v n . See. 706(f).. 16
Civil Rights Act of 1964.. Title VI i. See . 706(f)

(1) .. 2
Civil Rig! its Act of 11964: United Stat C S  V . Georgia

Power Co.. 474 L.2d 906 (5 th Cir. 1973);
EEOC v. Griffin Wheel Co.. 5! 1 F.2d 456 (5th 
Cir. 1975 ) ................................................................  10

Clayton Antitrust Act: Englander Motors Inc. v. 
Ford Motor Co.. 293 F.2d 802 (6th Cir. 1961); 
Williamson v. Columbia Gas & Electric Corp.,
27 F.Supp. 198 ( I).Del. 1939). affirmed. 110 
F.2d 15 (3rd Cir. 1939). cert, denied. 310 U.S.
639 (19-10) .............................................................  11

Communications Act of i 934: Hufalino \L Micliigan 
Beil Telephone Co.. 404 F.2d 1203 (6th Cir. 
1968), cert, denied. 394 U.S. 987 (1969) .......... 11

Investment Company Act of 19-10: Esplin v. Hirschi,
402 F.2d 94 (10th Cir. 1968). cert, denied, 394 
U.S. 928 (1969) ..................................................... 11

Labor Management Relations Act: Autoworkers v. 
Hoosier Cardinal Corp., 383 U.S. 696 (1966) .... 10

Labor '■ 
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IN THE

October Term. 1976 
No.....................

O ccidental
fornia .

L ife  I nsurance  C ompany of Cali-

Petitioner,
vs.

E qual E m p l o y m e n t  O ppo rtu n ity  C om m ission ,
Respondent.

Petition for a Writ of Certiorari to tine United States 
Court of Appeals for the Ninth Circuit.

Petitioner prays that a writ of certiorari issue to 
review the judgment of the Court of Appeals for the 
Ninth Circuit entered on May 11, 1976, in the above- 
entitled case.

Opinion Belov/.
The opinion of the Court of Appeals, not yet officially 

reported, appears in the Appendix hereto. No opinion 
was rendered by the District Court for the Central
District of California.'

Jurisdiction.
The judgment of the Court of Appeals for the Ninth 

Circuit was entered on May 11, 1976, and this petition

'The Findings of Fact and Conclusions of Law made and 
entered by the District Court appear at 12 FEP 1298 (1976); 
the Court of Appeals’ Opinion follows at 12 FEP 1300 (1976).

—  — .......  ’: ..................... ------ ~—~



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for certiorari was filed within 90 days of that date. 
The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. Section 1254( 1).

Questions Presented.
Whether there is no time limitation whatsoever appli­

cable to the EEOC's right to sue under Title VII of the 
Civil Rights Act of 1964, as amended.

This question involves the following subsidiary ques- 
ions:

( 1) Whether the most analogous state statute of 
limitations is applicable to the EEOC's right to sue 
to collect back pay for private individuals;

(2) Whether the most analogous state statute of 
limitations is applicable to the EEOC's right to sue 
to obtain injunctive relief; and

(3) Whether the EEOC's right to sue is governed 
by any federal statute of limitations.

Statutory Provision Involved.
Section 706(f)(1) of Title VII of the Civil Rights 

Act of 1964. as amended. 42 U.S.C. Section 2000e 
et seq. (hereinafter “Title VII") provides in pertinent 
part:

“ | I | f  within one hundred and eighty days from 
the filing of |a |  charge . . . the Commission 
has not filed a civil action under this section 
. . . the Commission . . . shall so notify the 
person aggrieved and within ninety days after the 
giving of such notice a civil action may be brought 
against the respondent named in the charge . . . 
by the person claiming to be aggrieved. . . ."

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On December ^7 107,0 t

Cl:argC of di~ ™ ™ « o n  *

X  thc’Taua, E Ca,,f0mi‘n hereinafter “Petitioner”)" 
(hereinafter he ° ? H,ro,ni‘J' Commiofon

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«  = - r  5 1 :  : - *  *
* e  date of her discharge by Petitioner. °'

Although the EEOC acknowledged receipt of M
Edclson is charge on December 30 ,« r  **>
did not form-,n./ r ,  , ° ’ l 9 , a  !lrc EEOClonnally l,lc the charge until March 9 ' 97 ,
This was the only charge which Ms Ed-I,on
f"Cd •*“'"«  Petitioner, and the EEOC aCm ^  
that this is acknowledges
herein is based. '  ' * * *  “P° "  emire <»™PWnI

Howeyer. it was not until February 27 1974

Edclson had S ^ T S S c T  ?
complaint seeking back nav for ‘' E° C f CU " s
vidua,s and initnietive re, ef A 7 ° “  ^  * *  
Court dismissed the E E O cC  c DiS' riC‘
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<*> ‘ '-native,y. asst:   d ^ T h l e  Vn '°  7
m> federal statute of limitations, the EEOCs P

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On May II, 1976, the Court of Appeals for the 
Ninth Circuit reversed on both grounds, holding that 
there was no lime limitation whatsoever on the reEOC s 
right to sue. First, the Court found that the 180- 
day languaae of Title VII docs not constitute a federal 
statute of limitations on the EEOC's right to sue, 
so that “there is simply no governing federal limitations 
period.” (A. p. 5). Second, the Court refused to apply 
the most analogous state statute of limitations to the 
EEOC's right to sue.

It is to these two holdings that this Petition for 
Certiorari is directed, particularly that aspect of' the 
holding in which the Court expressly ruled contrary to 
two recent decisions of the Court of Appeals for the 
Fifth Circuit which held that the EEOCs right to 
recover back pay for private individuals is governed 
k" die most analogous state statute of limitations.

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REASONS FOR GRANTING THE WRIT.
The Ninth Circuit's holding that the EEOC has 

an interminable right to sue to collect back pay for 
private individuals is in direct conflict with two recent 
decisions of the Fifth Circuit and contrary to numerous 
Supreme Court decisions which hold that the most 
analogous state statute of limitations should be applied 
in absence of an applicable federal statute of limitations, 
wnich rule has most recently been applied by the 
Supreme Court in a Civil Rights Act case in Johnson 
v. Railway Express Agency, Inc., 421 U.S. 454 ( 1975).

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I.
The Ninth Circuit’s Refusal to Apply the Most Anal­

ogous State Statute of Limitations to the Back Pay 
Aspect of the EEOC’s Complaint Is in Irrecon- 
ci,ab,c Conflict With Two Recent Decisions of the 
Court of Appeals for the Fifth Circuit.

In United States v. Georgia Rower Co., 474 F.2d 
906, 922-924 (5th Cir. 1973), the Fifth Circuit held 
that because there was no federal statute of limitations, 
the most analogous state statute of limitations was 
applicable to the back pay aspect of an employment 
discrimination suit brought by the United States Gov­
ernment under the Civil Rights Act of 1964. Thereafter, 
m EEOC v. Griffin Wheel Co.. 5! 1 F.2d 456, 458 
(5th Cir. 1975). affirmed on rehearing, 521 F ?d 
223 (5th Cir. 1975). another three-judge panel of 
the Fifth Circuit held that the most analogous state 
statute of limitations was applicable to the back pay 
aspect of an employment discrimination suit brought 
by the EEOC under the Civil Rights Act of 1964

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The Sixth Circuit in dicta lias exp. ..red its agreement 
with Georgia Power,~ and at least two district court 
decisions have reached the same result as Griffin 
Wheel:'

Nevertheless, the Ninth Circuit refused to apply the 
most analogous state statute of limitations to the back 
pay aspect of the EEOC complaint herein, finding 
instead that the EEOC's right to sue to recover 
back pay for private individuals was interminable. 
Expressly noting the contrary decisions of the Fifth 
Circuit, the Court stated. “We decline to follow its 
lead" (A. p. 11). The conflict between the Fifth 
and Ninth Circuits concerning the applicability of the 
most analogous state statute of limitations to the back 
pay aspect of an EEOC complaint is thus clear, 
unequivocal, and irreconcilable, and certiorari should 
be granted to resolve that issue.

II.
The Applicability of Federal and State Statutes of 

Limitation to the EEOC’s Right to Sue Is of 
Critical, Pervasive, and Recurring Importance to 
the Judicial Administration of Title VII.

Over the years the EEOC will be the party-plaintiff 
in thousands of cases across the United States, many 
of which will involve EEOC efforts to recover back pay

-In United Slates v. Masonry Contractors Association of 
Memphis, Inc., 497 F.2d 871. 877 (6th Cir. 1974), the Sixth 
Circuit stated:

“The appropriate statute of limitations for a Section 2000e- 
6 action |by the United States Government] is the limi­
tation period prescribed by the state where the court sits 
for an action which seeks similar relief brought in a court 
in that state."

'■'EPOC v. Eagle Iron Works, 367 F.Supp. 817 (S.D. Iowa 
1973), and EEOC  r. Cltristianherg Garment Co., 376 F.Supp 
1067, 1071-1073 (W.D. Va. 1974).

for private 
EEOC coin 
years after 
complaints t

Thus, wit 
EEOC com- 
one which 
enerev. ant: 
litigants i;v 
such issues : 
until this C 
the question 
cal to a m 
court resow 
EEOC com.

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statute of 1: 
discriminat: 
the Civil E 

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that the m< 
is applicable 
cant, rccurri 
rnent disci 
also governe 
its right to : 
by this Petit:

Finally, a 
issue is crib 
Title VII. 
takes severa: 
federal cow 
to sue is ini 
belief—and ;

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for private individuals. Furthermore, many of these 
EEOC complaints will undoubtedly be filed several 
years after the filing of the charge upon which these 
complaints are based.

Thus, whether any statute of limitations applies to 
EEOC complaints will be a constantly recurring issue, 
one which will continue to consume substantial time, 
energy, and resources of the federal courts and the 
litigants involved. Furthermore, litigation concerning 
such issues is certain to increase rather than to subside 
until this Court accepts review and definitively answers 
the question. Consequently, a prompt resolution is criti­
cal to a more effective utilization of limited federal 
court resources and a more expeditious resolution of 
EEOC complaints.

Furthermore, this Court has already resolved the 
statute of limitations issue with regard to employment 
discrimination suits brought by private individuals under 
the Civil Rights Act of 1866. holding in Johnson 
v. Railway Express Agency. Inc.. 421 U.S. 454 (1975), 
that the most analogous state statute of limitations 
is applicable to such suits. Accordingly, the most signifi­
cant, recurring timeliness issue which remains in employ­
ment discrimination cases is whether the EEOC is 
also governed by some statute of limitations or whether 
its right to sue is interminable—the very issue presented 
by this Petition for Certiorari.

Finally, an early Supreme Court resolution of this 
issue is critical to fulfillment of the purposes behind 
Title VII. At the present time, the EEOC frequently 
takes several years simply to file its complaint in the 
federal court, apparently presupposing that its right 
to sue is interminable. If die EEOC is wrong in this 
belief— and there are compelling reasons set forth below



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to believe that it is— its present practice of interminable 
delays clearly subverts the purpose of Title VII by 
preventing expeditious resolution of employment dis­
crimination claims. If, however, such interminable de­
lays are indeed what Congress intended, that should 
be established by Supreme Court decision, not ad­
ministrative fiat, for the adverse effect of such delays 
is obvious.

III.
The Ninth Circuit Erred in Refusing to Apply the Fed­

eral or Most Analogous State Statute of Limitations 
to the EEOC's Right to Sue.

Four choices exist concerning the timeliness of EEOC 
complaints: ( 1) the EEOC’s right to sue is governed 
by a federal statute of limitations, (2) the EEOC's 
right to sue is governed by the most analogous state 
statute of limitations, (3) the EEOC’s right to sue 
to collect back pay for private individuals is governed 
by the most analogous state statute of limitations, or 
(4) the EEOC's right to sue is interminable. The 
Ninth Circuit concluded that the most extreme, fourth 
option— the interminable right to sue—was the one 
Congress intended. That conclusion is plainly in error.

With regard to the first option—the 180-day pro­
vision of Title VII as a federal statute of limitations— 
Petitioner presented 18 pages of argument and authority 
to the Ninth Circuit showing why that was Congress' 
intent, and Petitioner remains convinced that thm "in­
clusion has substantial merit. Petitioner also presented 
argument to the Ninth Circuit in support of the second 
option—that the EEOC's right to sue. not just its 
right to collect back pay for private individuals, is 
governed by the most analogous state statute of limita­

tions. Bee: 
circuits on 
second op: 
ments on : 
the com pc ■ 
refusing— 
most anal- 
pay aspect 
the EEOC 
pay. Howe 
concerning 
to back p 
of private 
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options.

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I f - C f A V . 9 ■ a, TvV V , .>{>• :*• 7 c • ■ 5 * v I- v: •*
. ■ fy.v\

__
i ;  - '

k ;1 . .

e de- 
louid 

ad-
clays

j< 0 ( 3 .

cons

:oc
:rncd 
OC's 
state 

sue 
■Tied 
• . or 
The 
urth 
one 

rror.
pro-

ority 
t o s s '  

con­
oted 
ond 

its 
is 

1 ila-

tions. Because there is as yet no conflict among the 
circuits on the issues raised under either the first or 
second options. Petitioner will not summarize its argu­
ment: oit these points at this time, focusing instead on 
the compelling reasons why the Ninth Circuit erred in 
refusing—contrary to the Fifth Circuit—to apply the 
most analogous state statute of limitations to the back 
pay aspect o? the EEOC's complaint and holding that 
the EEOC has an interminable right to sue for back 
pay. However, if this Court grants the writ of certiorari 
concerning the applicability of state statutes of limitation 
to back pay claims asserted by the EEOC on behalf 
of private individuals. Petitioner submits that it would 
be advisable for this Court also to grant certiorari 
on the federal statute of limitations issue and the 
general state statute of limitations issue, thereby afford­
ing itself full consideration of all of the available 
options.

A. The Supreme Court and the Federal Courts Have, in the 
Absence of Any Applicable Federal Statute of Limitations, 
Repeatedly Applied the Most Analogous State Statute of 
Limitations to Complaints Brought Under Civil Right:; Acts 
and Numerous Other Federal Statutes.

Many federal statutes contain no statute of limita­
tions, and thus the Supreme Court has repeatedly held 
that suits filed under such statutes are governed bv 
the most analogous state statute of limitations:

Civil Rights of 1866: Johnson v. Railway e x ­
press Agency. Inc., 421 U.S. 454. 462 
(1975):

Civil Rights Act of 1870: O'Sullivan v. Felix, 
233 U.S. 318. 322-324 (1914);

• ' i  p  ; " ,  ~ p ?
• - ■ mv -C <> ".V •:; •?».' V * ‘ • . • •• ■“:! *• * T » *• J ' * C •

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___ ...

.. i

— JO—
Labor Mm-,,,.,

701-705 0 9 6 6 )  "" 383 ^.S. 696.

O ". i'. Allciara ">03 I I S  1 Q n ° 08<‘ 8,'>n!u!iy
National n„„kJ  ^  ^  397 ('906);-

U S- 961. 463 ( 1947 w £  33!
-’ >2 U.S. 96. 97-98 0 9 4
«//o-<-.v. 299 u.s. 2/7 V'

Ac,: Campbell „  h
610, 6J3-6I8 0  89% .  ' W / "»- '55 U.S.

/<ict ° f  Feb. 26 JRiS /

Sim ilarly , t/ic fpdnr 1

° f "n,l!al'on 10 „ lhe; S  '’;'VC W *  « * e  statulcs 
TO fcd- a l  statute of which e„nlai„cd

O r//  ///o/z/.v ^ f7 of J9  
G^>rnja p / _  O / /W  5/67/^ v.
<*■ >973):
5 M F,2<. 456. 458.459 ( 5 % %  Co.,

Railway Labor A rt-  / ' )a

1974): 79°- 799 (2nd Cir.

£ " ,’" r Mmagement Repo -,!,
A c , „/, 9SV . ^  a D * c h » , ,e

* f ”o f  M a c h i n e

445 f ' 2d 545. 548-549 (5Z c ‘  * ”* " *
______.  ‘h " U '<- 904 U.S. 1024 0  97, % '  ,9 7 l>-

the aiithnI'/a!.H/ / ,“ '1-' 01 ""illations for ■ ,
Sections 15(b), J 6. e'U,Clcd b-v On stress in '1 9 ™  f j  ,Wulcri o u.s.c.



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orkcrs 
. 696.

■undry
906):'

331 
. Ray, 
Estate

5 U.S.

barney

latutes
'.laincd

:tes v. 
13 (5th 
■! Co., 
} *

■■■hi Air- 
mi Cir.

■̂■closure 
Intern. 

i ot hers, 
1971),

'it under 
15 U.S.C.

— 11—
Clacton Antitrust Act: Englander Motors Inc. 

v. Ford Motor Co., 293 F.2d 802. 804 (6th 
Cir. 1961); Williamson v. Columbia Gas & 
Electric Carp., 27 F.Supp. 198 (D.Dcl. 
1939), affirmed, 110 F.2d 15 (3rd Cir. 
1939). cert, denied, 310 U.S. 639 (1940),

Securities Exchange Act of 1934: Richardson 
v. Mac Arthur, 451 F.2d 35. 39 (10th Cir. 
1971); Douglas v. Glen E. Hinton Invest­
ments, In cS  440 F.2d 912, 914 (9th Cir. 
1971); Klein v. Bower, 421 F.2d 338, 343 
(2nd Cir. 1970); Morgan v. Koch. 419 F.2d 
993. 996-997 (7th Cir. 1969).

Communications Act of 1934: Bufalino v. Mich­
igan Bell Telephone Co.. 404 F.2d 1203. 
1208 (6th Cir. 1968). cert, denied, 394 U.S. 
987 (1969);

Investment Company Act of 1940: Esplin v. 
Hirschi, 402 F.2d 94. 101 (10th. Cir. 196S), 
cert, denied, 394 U.S. 92S ( 1969).

Thus, tire rule that state statutes of limitation are 
applied where no federal statute of limitations exists 
is firmly embedded in our jurisprudence, and with 
(T0od reason, the most basic of which stems from an 
elemental sense of due process, best summarized oy 
Chief Justice John Marshall’s statement in 1805 that 
an absence of some statute of limitations

“would be utterly repugnant to the genius of our 
laws. In a country within which not even treason 
can be prosecuted alter the lapse ot tluec vcais. 
it can scarcclv be supposed that an individual

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Zjkiifir. *„ * ■■ . >4 *
4  • *



would remain Forever liable to a pecuniary Forfei­
ture."

Adams v. Woods, 2 Craneh 336. 342 (1805).

Second, statutes of limitation are designed to pro­
tect both the courts and defendants from stale claims 
which depend upon evidence and witnesses the availabil­
ity and reliability of which have been impaired by 
the passage of time. E.g., Campbell v. Haverhill, 155 
U.S. 610. 617 (1895).

Third, given the well-established nature of the rule 
that state statutes of limitation will be applied in 
the absence of federal statutes of limitation, it is 
far more reasonable to assume that Congress intended 
that rule whenever a Federal statute of limitations was 
omitted than it is to presume that Congress intended 
the right to sue to be interminable. Hill. State Procedural 
Law in Federal Nor,-Diversity Litigation, 69 Harv. 
L. Rev. 66. 78-81. 91-92 (1955), and cases cited 
therein.

Thus, where the refusal to apply the most analogous 
state statute of limitations means that the right to 
sue is interminable, only the most compelling reasons 
could justify that result, which Chief Justice John Mar­
shall found “utterly repugnant to tire genius of our 
laws." Adams v. Woods, 2 Crunch at 342. Were it 
otherwise, quite obviously defendants would be unfairly 
and prejudicially subjected to potentially massive and 
totally unknown financial liabilities.

4

15.

appl
tiic
the
its •
the
to i
•j talc
Stak
Unit
(U;,:

from
nooy
(Uni
the i
U.S.
whici
roads
140 1
land
State:
vidua.
ana!'.'.
Unite
v. I 'm

Des A

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i 01-

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by 

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ule
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is

Jed
was
ided 
'■tnil 
arv. 
1 ted

•ous
to

sons
lar- 
our 
c it 
iirly 
and

—  13—

J5. The Supreme Court's Only Exception to the Rule Applying 
S(a!c Statutes oi Limitation When No ! edcral Limitation 
Exists Mas Been Where the United States Government Was 
Sninjr (o Collect Revenue for the United States 1 reasurv or 
to Prevent Injury to the United States Government.

The few Supreme Court decisions which refuse to 
apply the state statute of limitations to a suit by 
the United States Government invariably do so because 
the United States is suing as a sovereign to protect 
its rights as a sovereign, /.<?., to collect money for 
the United States Treasury or to prevent an injury 
to the United States Government itself. E.g.. United 
States v. Summerlin, 310 U.S. 414 (1940) (United 
Slates attempting to eniorce its claim against an estate), 
United States v. Thompson, 9S U.S. 486 (1879) 
(United States seeking recovery of funds embezzled 
from its Treasury); United States v. Nashville, Chatta­
nooga &. St. Louis Raihvay Co., 1 18 U.S. 120 ( 1886) 
(United States suing to collect on bonds owned by 
the United States); Davis v. Corona Coal Co., 265 
U.S. 219 ( 1924) (United States suing to enforce claims 
which arose during United States operation of rail­
roads): United States v. Dalles Military Road Co.. 
140 U.S. 599 (1891) (United States suing to recover 
land it had granted). However, whenever the United 
States Government has sued on behalf ot private indi­
viduals, the Supreme Court has held that the most 
analogous state statute of limitations is applicable. E.g., 
United Stales v. Reehc, 127 U.S. 338 (1888); Curtner 
v. United States. 149 U.S. 662 ( 1893): United Suites v. 
Des Moines Navigation ct R. Co., 142 U.S. 510 ( 1892).

U



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— 14—
C. The Ninth Circuit's Reasons for Lxpuuriing This Limited 

“Sovereign Immunity” Exception to Include Suits Hrought 
by a Governmental Agenev to Recover Rack Pay Claims for 
Private Individual.s Are Not Persuasive.

No Supreme Court decision to date has ever found 
tiie United States Government or one of its agencies 
immune from the state statute of limitations where 
the government or agency was suing to collect money 
on behalf of private individuals. That, of course, is 
what the EEOC would have this Court hold for the 
first time. Yet neither of the reasons offered by the 
Ninth Circuit for such a substantial departure from 
Supreme Court precedent has merit.

I. The Ninth Circuit's Argument That "Public Pol­
icy" Prevents Application of State Statutes of Lim­
itation to EEOC Back Pay Claims.

With no evident analysis of prior Supreme Court 
decisions or federal court decisions concerning the appli­
cability of state statutes of limitation to government 
suits brought under other federal statutes, the Ninth 
Circuit concluded that because an award of back pay 
to private individuals in an employment discrimination 
case serves a “public interest." state statutes of limitation 
could not be applied to such suits. There are at least 
two compelling answers to that argument.

First, the decisions discussed above page 13 simply 
do not support the conclusion that a state statute 
of limitations is inapplicable whenever a "public in­
terest" may be served by the lawsuit. Rather, the only 
exception to the state statute of limitations rule has 
heretofore been limited by the Supreme Court to suits 
where the United States Government is suing as the 
sovereign, seeking to protect its rights as the sovereign.

The e.v 
lion of 
be com 
law sir 
immuni 
collect i

Thu-, 
the coi 
inappli 
by the 
ments : 
/(lb emu 
public ■ 
not sc: 
pay rec­
to the ■ 
in the 
more. , 
to be . 
Act of 
Exprey. 
applied 
d ism. is-, 
that til* 
action v 
state !;; 
entitled 
suit is b

The > 
policy" 
of limit 
policy"

•'.... t \
r,422 l



— 15

it CO 
:;iit 
for

and
lies

ney
is

die

'(>!-
:in-

nirt 
.ill- 
C 11L

'nth
pay
lion
.ion
cast

-ply
lute 

■ in- 
only 
has 

suits 
the 

den.

The except’on is. in other words, simply a manifesta­
tion of the doctrine of sovereign immunity. It would 
he completely inconsistent with the trends ol modern 
law suddenly to expand that doctrine of sovereign 
immunity to encompass government agency suits to 
collect money for private individuals.

Thus, prior Supreme Court decisions do not support 
the conclusion that a state statute of limitations is 
inapplicable whenever a “public interest" may be served 
by the lawsuit. Accordingly, this Court’s recent com­
ments in Franks v. Bowman i ranspoitation Co., and 
Albemarle Paper Company v. Moody" concerning the 
public purpose served by awards in Title VII cases do 
not serve to bring such lawsuits, or at least oack 
pay recovery thereunder, within any existing exception 
to the rule that state statutes of limitation are applied 
in the absence of federal statutes of limitation. Further­
more. as much could be said about a public purpose 
to be served by awards in suits under the Civil Rights 
Act of 1866. yet this Court in Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454, 462 (1975), 
applied a state statute of limitations to affirm the 
dismissal of such a cause of action, making clear 
that there is nothing “peculiar in a federal civil rights 
action which would justiiy special reluctance in applying 
state law.” Therefore, the EEOC's right to sue is not 
entitled to anv special exception simply because its 
suit is based on Title VII.

The second reason why that Ninth Circuit's “public 
polk " -.it-male for re IT Ting to apply the dale statute 
of limitations is erroneous is because, in fact, “public 
poliev'' and Congressional intent clearly rec/uire some

U.S..... . 44 U.S.LAV. 4356 \ 1976).
i;422 U.S. 405 (1975).



'
ij
I
i

I V C  ' C" . |  N §§ ■

■ ■' ■ ■ ' EC

—  1 6 —

lime limitation on the EEOC's right to sue. Title 
Vi! is replete with short specific time deadlines designed 
to guarantee prompt handling of all employment dis­
crimination charges.7 This elaborate statutory proce­
dure imposes strict time limitations on two parties 
to the process—the aggrieved party and the federal 
court. T’he issue here presented is whether Congress 
also intended the EEOC to operate within certain 
time limitations as well. In a statutory enforcement 
scheme that depends on all of the parties for success, 
it is inconceivable that Congress would have intended 
that only two of the parties—the aggrieved party and 
the federal court—be required to proceed expeditiously, 
particularly where the interminable delay of the third 
party—the EEOC— can effectively nullify any expedi­
tious action by the other two parties.

Furthermore, with no time limitation, the EEOC 
has absolutely no incentive to expedite its handling 
of charges. The EEOC can— and obviously does—take 
as long as it wants to. doing a great disservice not 
only to aggrieved parties but to respondents as well. 
While the EEOC has an obvious administrative desire 
for an interminable period in which to file suit, 
what Congressional purpose behind Title Vll is served 
by permitting— indeed, encouraging— such delay? Far 
from increasing compliance with the Act, such delays 
simply lessen the effectiveness of the EEOC and lessen 
the likelihood that truly aggrieved parties will turn 
to the EEOC for relief. Clearly, such delays impose

■See Sections 706(b) ,  (e) and (f) of Title VII, as evidence 
of the Congressional insistence on prompt action and particularly 
the several onerous time demands and limitations imposed on 
the federal district courts, such as requiring the court to assign 
such eases for hearing “at the earliest practicable date,” to cause 
such cases “ to be in every way expedited.," and “ immediately to 
designate a judse . . .  to hear and determine the case." Sections 
7 0 6 (b ) (2 )  and (4).

upon r, 
un reuse 
sive fin;

In si 
grcssic; 
process 
person- 
of fair 
thus 
result v 
of limit

2. T : 
Sh
A /

The 
refusin; 
the EE 
enforce 
enforce 
the sa: 
Yet cw 
that s' 
NLRB 
Court"-

sNeitk 
its co:ic!
to n l r :
decision 
the state 
delay in 
decision, 
after th. 
was dire 
issued. O 
at the i: 
of event 
in both 
state sla 
NLRU c

. -■ t-e . .
Y-v'W ' $



net!
dis-
vjc-
iies
oral
:rcss
:.ain
tent
O S S .

• rd

OC
ling 
tak e  
not 

veil, 
os ire 
suit, 
rvcci

days
ssen
turn
pose

• donee 
"iKir'iy 
. tl on 
: ssign
cause 

,e!\ to 
olions

—  1 7 —

upon respondents an unwarranted burden and a wholly 
unreasonable exposure to unknown and potentially mas­
sive financial liabilities.

In short, every aspect of Title VI1 envinccs a Con­
gressional conviction and insistence that the enforcement 
process move swiftly, for the benefit of the aggrieved 
persons and respondents and for the prompt realization 
of fair employment practices for all. “Public policy 
thus requires prompt EEOC handling ol charges, a 
result which will be assured only by applying a statute 
of limitations to such claims.
2. The Ninth Circuit's Argument That the Ec.OC 

Should Be Treated the Same as the NLRB m 
This Respect.

The second reason the Ninth Circuit oifered for
refusing to apply the state
the EEOCs complaint was
enforcement procedure;; are
enforcement procedure:s an<
the same with respect to state statutes of limitation. 
y ct cven assuming that this Court were to conclude 
that state statutes of limitation are inapplicable to 
NLRB complaints—an issue not yet decided by this 
Court''-__that conclusion cannot properly be extended

svephe- 0f' the eases cited by the Ninth Circuit to support 
its conclusion that state statutes of limitation arc mappl.cable 
to NL RB comnlaints arc Supreme Court decisions, and nu .hu  
decision made that specific holding, tor in iKMtncr ctisc was 
the sf'tutc of limitations argument directed at the N LRBs 
lehv in filin'.’ its complaint. For ail that appears m cither 

decision the NLRB's complaint issued within a icasommle turn 
! lcr the chance was filed; rather, in each ease the attach 
' i;r i V the NLRB's delay after its complaint had 
issued. Of course, statutes of limitation have always been directed 
.u t|uf timeliness of the filing of the complaint, not tnc pace 
f, Cents' thereafter. Therefore, while there is certainly dicta 
in tV)ih lower court decisions to support the conclusion that 
state' statutes of limitation are inapplicable to the tiling of 
NLRB complaints, neither case squarely so held.

i
k,
r\

r.
i '.
I
x

\

ErL .
L(



j

.

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■ ■ ' . ■ ■ - ■ • - ■ : . ■. W.-.-
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— 18—

to the EEOC, for the enforcement procedures of the 
two agencies are radically different.

The key distinction is that the EEOC must go to 
court and file its complaint in the federal district 
court before any legally cognizable adjudication occurs. 
By contrast, the NLRB never has to file a complaint 
in the federal district court as part of its normal 
enforcement procedure: rather, the NLRB issues its 
own complaint and the NLRB has been given full 
authority to function in lieu of. and in effect as. 
the federal district court. Thus, the only time the 
NLRB goes to federal court is to the appellate level.'1 
Obviously, state statutes of limitation have never been 
thought to apply either to internal agency procedures 
or to appeals; they are applicable to the filing of 
a complaint in a court, an act which the EEOC must 
do and the NLRB need never do. There is, in short, 
simply no “complaint" that a statute of limitations 
could apply to insofar as the NLRB is concerned.

This critical distinction between the NLRB enforce­
ment procedure and the EEOC enforcement procedure 
is all the more significant because it is the result 
of a deliberate Congressional decision to withhold from 
the EEOC the authority which the NLRB has always 
enjoyed, in both 1964 and in 1972. extensive efforts 
were made in Congress to give the EEOC full NLRB- 
type enforcement authority—and both efforts were re­
jected by Congress in favor of the present requirement 
that the EEOC initiate its enforcement efforts by the 
filing of a complaint in the federal district court. Thus, 
to hold the enforcement procedures of the two agencies

9Thc only exceptions are suits by the NLRB in federal 
district courts to obtain preliminary injunctive relief pending 
completion of the adjudicative process before the NLRB itself. 
29 U.S.C. Sections 160( j ) and (I).

to ' 
to 
it ll:

ina:

givi
bae
the
put-
res
the
this
Fift
resr
in e
full;
be r

P a t

O

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7 V;'V;'

[. ,. 
i .

•if the

go to 
•:'.strict 
'ccurs. 
plaint 
ormal 
:s its 
' full 
:t as.
- the 
:evei.:’ 
been 

durcs 
g c 
must

f

hort,
dons

orce- 
. 'dure 
esult 
from 
'.vays 
forts 
RB- 

e rc- 
ment 

the 
hus. 

ncies

—  1 9 —

*° be analogous is to ignore live Congressional refusal 
to give the EEOC the same enforcement authority 
it has given the NLRB.

1 ne Ninth Circuits iNLRB analogy is thus totally 
inapposite.

Conclusion.
In tiie final analysis, the decision of the Ninth Circuit 

giving the EEOC an interminable right to sue to collect 
back pay for private individuals will plainly frustrate 
the Congressional intent that discrimination cases be 
pursued expeditiously and will just as plainly prejudice 
respondents in the defense of such suits. In view of 
tiic fact that the holding of the Ninth Circuit on 
tins issue is in direct conflict with decisions of the 
Lifth Circuit and in view of the fact that a definitive 
resolution of this issue is of enormous importance 
in employment discrimination cases, Petitioner respect­
fully submits that this Petition for Certiorari should 
be granted.

DATED: July 22. 1976.

Respectfully submitted.

L eonard S. J anofsky .
D ennis H. V aughn .
Howard C. Hay.

Attorneys for Petitioner.

* ••vU Hasting.-) <n ja nofsk y ,
Of Counsel.

it
V

Kline

-  J - : - v  *'

'“ A V ......



-

: . ■ . ■ ’ • ; . ■ • !" .
________ ________________ — — ------------t: ■ -w TO; ' "k

a p p e n d ix .

Opinion.

in the United States Court of Appeals, tor the Ninth

C*Eciua! Employment Opportunity Commission, Plain- 
J Z l l  V. Occidental Lil. Insurance Contpany 
of California. Defendant-Appellee. No. 75-1705.

Appeal from the United States Dtstrtct Cot,., (or
the Central District of California^
Before: WRIGHT, KILKENNY and TRASK. Ctrc. 

Indies. WRIGHT. Circuit Judge:

reverse and re.

mand.

PROCEEDINGS BELOW

n ,  Pccember 27. 1970. Tamar Edelson filed with
- FOC a charge against Occidental Life Insurance 

tnc EEC a - lleffi that she had been

2 = £ t = = = - = ' « T rtool place" was October 1970. the date o, her
discharge by Occidental. .

The EEOC referred the charge to the J “
- Practices Commission, in accordanceFair Employment Practices A i 4? U S C §

• .up nrovisions of Section 706(c) |42 s
9000e-Sfe)|. When that agency took no action, t c 
charge was formally filed with the EEOC on March

9-1971. ,
The EEOC undertook an ™  ™

ruary 25,
unaciiouN Gi — -

1972. its District Director issued Findings

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of Fact that Occidental had discriminated against Ms. 
Edclson and also K,d discriminated against many other 
employees through a variety of practices and policies. 
Occidental filed exceptions to the findings on March 
23. 1972. The EEOC issued its “Reasonable Cause” 
Determination on February 8. 1973 and during the 
following year, held a conciliation meeting with Occi­
dental.

When that effort proved unsuccessful, the EEOC 
filed tills action in district court on February 22, 1974.

That court granted Occidental’s motion to dismiss, 
finding that:

1. The EEOC has no authority to file suit more 
than 180 days after the filing of the underlying 
charge, or where, as here, the charge was tiled 
prior to the 1972 amendments to Title VII 
of the Civil Rights Act of 1964. more than 
1 80 days after the effective date of such amend­
ments:

2. Alternatively, the EEOC was barred from filing 
this suit by the California statute of limitations:

3. Alternatively, the EEOC was barred from pro­
ceeding on paragraphs 8(b) and 9(c) of its 
complaint because the allegations contained 
therein were outside the scope of the underlying 
charge: and

4. In any event, the EECc was barred from seek­
ing back pay for any alleged violations occur­
ring more than two years prior to the filing 
of the underlying charge.

By its appeal herein, the EEOC challenges only 
the first three findings by the court.

We
(

\ 42 
link
nan:

(
stal.

C
( b N

star

The 
the 1

'Ik
relcv:. 
the e 
a rich

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•A ■,» •■): v •' . ■. S ; t#v•■'■■. " o . •
• ' " ' '< ■ - •. • :■ >•••; :• , ■ . ;. :.v y

.. - ’si \, f'r. *- .̂ .-/Ci-̂--*ûk».A» *..0*..».»...
•'’*'Vn;. ’■■ "

••",««;■ .i;.

.,’•. ’.v*v•.'•*;•• . • • • ;‘cv -*.. ■ ■■ ■ '■•'.■ .’*• y‘. *". '.«6uUJJw .
• '% /W  
iI • ■ -;-.V ' t. "at: .7 -
. m & t

Ts. We hold:
jr (1) Tlie 180-dav language of Section 706(f)(1) [ .

os. [42 U.S.C. § 2000e-5 (f) (1) | does not constitute a i\ ■. ....
oh limitation upon the EEOC's ability to sue in its own f ■-C name; i" -
he (2) This action is not barred by any state by any r •'
ci- state limitations period; and J ‘ ' ‘ 7 !

(3) The EEOC properly included subparagraphs 8 1;
c

• 1 (b) and 9(c) in its complaint. 1 .■■c.;i • - . »-+.
II.

t • . . j. t .
r '■4. -s. THE 180-DAY LANGUAGE OF SECTION 706 i

■re (f)(1 )
“l 'T Section 706(f)(1) [42 U.S.C. § 2000e-5(f) (1) ]

cd states in pertinent part:'
'll [ 11f within one hundred and eighty days \ ¥  ■
an from the filing of such charge . . . the j EEOC |

has not filed a civil action under this section
the [EEOC] . . . shall so notify the person L - ,

aggrieved and within ninety days alter the giving 
of such notice a civil action may be brought

r];.f .1
o- against the respondent named in the charge (A) : ''

lr-
its by the person claiming to be aggrieved or (B)
;ed if such charge was filed by a member of the i. ..v
'ng [EEOC I. by any person whom the charge alleges 

was aggrieved by the alleged unlawful employment
t ■ ' *

-A.“ practice. t • . - ■,i* • , • *■ < • * -
u r- The district court found that the above statute precluded

| j *■ i .r. . i ■
ng the EEOC from bringing this action.

f ■ 4; :vv
r
fnlv 'Before the 1972 amendment of Section 706( f ) (1 ) .  the 

relevant time periods were 30 days for both the filing of 
the eh a rue with the EEOC, and filing suit after receipt of
a right-to-sue letter. f ■■

»' !.
« 1 '  ■Jt- y

■ I .. *V ,• 1 .■■■■•■,■• •• •';• T • . w V>. ; ‘i •-’ w v  .. • .- - !;r ■ vVP» f ' -..• . ; i i-

'
' . •■■:



_______ ___________ I> ----Liii*.----- .— --------------

—4-

The statute on its face contains no express limitation 
upon suit by the EEOC. Rather, it precludes civil 
action by the charging party for 180 days so that 
the EEOC may during that period pursue conciliation." 
If, after 180 days, the EEOC has neither filed a 
civil action nor achieved conciliation, the charging party 
may demand a “right-to-sue” letter. On receipt of it, 
the charging party has 90 days within which to sue. 
Should such private action be filed, the EEOC would 
apparently be restricted to intervention."

Fine 
we ad 
706(7 
EEOC 
that t 
the bn:

/

i

However, should the person concerned choose not The
to sue during the allotted 90 days, the EEOC is not suit v.
prohibited from suing thereafter. The statute in no limit;"
way limits the time within which it must sue, so long §340f
as the charging party has not done so.'1 \yc

This issue has been before the Courts of Appeals 
for the Third, Fourth. Fifth, Sixth, Eighth and Tenth 
Circuits. All have ruled that Section 706(f)(1)  [42 
U.S.C. § 2000e-5 (f)(1 )  | does not preclude suit by 
the EEOC after the ! 80-day period has run."'

"The charging party may sue before the 180-day period 
has run if:

(a) The EEOC finds no reasonable cause during that 
time period 142 U.S.C. S 2000e-5(b)];  or

(b) The EEOC dismisses the charge during that time 
period i42 U.S.C. § 2000e-5(f)( I )].

"H.R. Rep. No. 92-238. 92nd Cong.. 1st Scss. 12 (1971). 
1972 U.S.C.C.A.N. 2148. quoted in Equal Employment Op­
portunity Conwi'n v. Duval Carp., 528 F.2d 945, 948 n.4 
(10th Cir. 1976).

'The sole exception is that the EEOC must wait 30 days 
from the filing of the charge before filing suit. 142 U.S.C.
§ 2000c-5(f) ( I ) ] .

Equal Employment Opportunity Conun'n v. Duval Corp., 1 
528 F.2d 945, 947 (10th Cir. 1976); Equal Employment 
Opportunity Conmt’n r. Meyer liras. Duty Co., 521 F.2d 1364, 
1365 (8th Cir. 1975); Equal Employment Opportunity Conmt'n 
r. E.l. (luPont tie Nemours and Co.. 516 F.2d 1297 (3rd

[42 l 
EEOC 
privat 
no oti 
tion : 
EEOC.
no gev 
ploy in 
51 1 F
(5th C

It :
ac tion  
of lim

9
Cir. 19
herley-f

k  ^ Equal I
V vide R
X Op port. 

Cir. 19
r. Loe 
827, 82

5



Nation
■ c i\ i J 
' that 
tion.'

!pj-J „

party 
of it,
■ sue. 
•voulci

e net 
■s not 
n no 

> long

'peals 
I'e nth 

142 
4 by

,'cri od 

. that

time

'71).
Op-
n.4

days
S.C.

"cnr
••64.
m'n
-'rd

adopt't|!enr2 ir!l ir i7hV lV od '" 'i ty P‘irsUilsivi:"
7 0 6 ( f ) (1 )  docs no, c o n s t t a  y ‘1nSU;,Se < * * * * »  
EEOC’s a;-'.-., . ,tl,tL a ''nutation upon the

th a t  the chstric " c o u r  10 ' Y - ' ” n a m e * VVe’ co n c lu d e

the basis of th« 180 d a v lCned bamng t,lis suit on80-day language in Section 706(f) ( I ) .

a p p l i c a b i l i t y  OF RELEVANT STATE 
LIMITATIONS PERIOD

- " - h o c

S r found caiif° r -  « s s s

|4 ? 'u ' .s .c .  i T o o o ^ T o n ? )  t  706ff><>) 
EEOC 10 file suit within so ,1 T  reC,“irc "K
private charge is filed with d n, a f  <to,e ,he
"<> «lhcr portion of Title , 7  T " *  being
,i0" «  « limitation « « P‘lb = o P - 'c p re ta -
EEOC must bring suit we find ,, Which t>K
no governing federal i n , l , , c , ' c  ,s simply 

opgo,.,,,,;,,; r< ;  °n;  pc™ d: )« •  ^
511 F.2d 456 45s „fg , " ' W  Co.,
(J ib  Or. 1975 ) 521 F.2d 223

It is well established that in
action, where Congress ho P W ? "  civiI rights
Of limitations, the slate st iun "0t 7 ° Vlded a statute r .— (- V ^ F i t e  statute jtpphed to simi| ;1|. |iti_

hi’r le v - c im i C o r f !  s n ’p ' n C o,un,‘n ~ 7 ~ fa ,~

*s.

LL

t- .A.r

fix

F . . .;

|  • ■ ; ■ • ; jj . ■. •• *• *
f v ;
r »'
i



A

— 6—

uation vvill be applied to the federal action. Johnson 
r. Railway Express Agency, Inc., 42! U.S. 454. 462 
(1975), and eases cited therein; Griffin v. Pacific 
Maritime Assn, 478 F.2d 1118, 1119 (9th Cir. 1973).

In its complaint the EEOC seeks both injunctive 
relief and back pay. By its prayer for injunctive relief 
the tEO C promotes public policy and seeks to vindicate 
rights belonging to the United States as sovereign, 
i hus. the EEOC's request for injunctive relief is not 

subject to any state limitations period. Griffin Wheel, 
supra, 51 J F.2d at 459; Kimberly-Clark, supra. 51! 
F.2d at 1359-60. Cf. United Stares r. Summerlin, 310 
U.S. 414 (1940). The district court erred insofar as 
it barred EEOC's request for injunctive relief on the 
basis of the California limitations period.0

We consider the request for back pay. Occidental 
argues that, even though the EEOC is party plaintiff, 
“ fi Insofar as the . . . suit constitutes a proper legal 
conduit for the recovery of sums due individual citi­
zens rather than the treasury, it is a private and not 
a public action. United States v. Georgia Power, 474 
F.2d 906. 923 (5th Cir. 1973). quoted in Griffin 
Wheel, supra, 51 1 F.2d at 458.

Since we cannot agree that EEOC's request for 
back pay must be treated as “private" in nature, we 
believe the district court erred in applying the California 
limitations period to bar the back pay request.

Our starting point is the recent statement of the 
Supreme Court in Franks v. Bowman Transp. Co.. 
........ U.S............  44 USLW 4356 (Mar. 24. 1976); * •

!:We express no opinion as to which, if any. state limitations 
statute would apply had an individual or a class, rather than 
the EEOC, been party plaintiff.

'•> \ ,.<V 

--.nUiU...

“ | CI lair, 
a majoi 
44 USE 
Analysis 
tunity A 
Rec. 7 1 (

The C 
U.S. 40: 
of Title '

As
Co. 
I of

pOS'
an i 
to :■ 
re a s 
that 
emp 
evai 
deav

_ vest;
in E 
Indu 

It 
pers 
of ur

Id. at 417

• •yA.Tt 'V' ; z-w. .r- y > gr v: - ;  " ' ■
i  .



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. .. y‘i s'-i • a '• ■ :

C
■

' ' . -A
• r. £

v t\. - ■
....

: e-AA- . A -  wE
:i

, . ... --L- I > ■**l,'liim»
• *••' ■*'<V ')1' :'. v /  '. •” f '• •• : ■v,‘i \ '■ , • •*• '• 4. r. .

—7—

“ | C | laims under Title VII involve the vindication of
a major public interest. . . . ’ Id. at .......  n.40.
44 USLW at 4365 n.40, quoting Section-By-Section 
Analysis, accompanying the Equal Employment Oppor­
tunity Act of 1972—Conference Report, IIS Cong. 
Rec. 7166. 7168 (1972).

The Court in Albermarle Paper Co. v. Moody, 422 
U.S. 405 ( 1975), discussed in some detail the nature 
of Title VII claims for backpay:

As the Court observed in Griggs v. Duke Power 
Co.. 401 U.S.. at 429-430, the primary objective 
| of Title VII j was a prophylactic one:

“It was to achieve equality of employment op­
portunities and remove barriers that have oper­
ated in the past to favor an indentifiable group 
of white employees over other employees."

Backpay has an obvious connection with this pur­
pose. If employers faced only the prospect of 
an injunctive order, they would have little incentive 
to shun practices of dubious legality. It is the 
reasonably certain prospect of a backpay award 
that “provide|s| the spur or catalyst which causes 
employers and unions to self-examine and to self- 
evaluate their employment practices and to en­
deavor to eliminate, so far as possible, the last 
vestiges of an unfortunate and ignominious page 
iii this country's history." United States v. /V. L. 
Industries. Inc.. 479 F.2d 354, 379 (CAS 1973).

It is also the purpose of Title VII to make 
persons whole for injuries suffered on account 
of unlawful employment discrimination.

Id. at 417-18. (Emphasis added.)

'A-M ‘■K> r.K - ’UM
a - 2 A;;

: a '<■ <. , VC •*’i • , • -• .■- , -:

1 t ’ r-'l- Ws

■. '■■■ ■ g |f :  : IS

i
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8—

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»

’ %

h
- J

i
. i

That an award of back pay promotes the primary 
statutory objective of deterrence' was also noted by 
the Sixth Circuit in Meadows v. Ford Motor Company, 
510 F.2d 939, 948 (6th Cir. 1975 ).

The Moody Court noted that “ ] 11 he backpay pro- 
vjjPon r • -'"•a,, v h i  >--.c .-vnresslv modeled on the
backpay provision of the National Labor Relations 
Act.” 422 U.S. at 419 and n .l l .  It is established 
doctrine that a back pay order under Section 10(c) 
of the National Labor Relations Act j 29 U.S.C.  ̂
160(c) | “ ‘is a reparation order designed to vindicate 
the public policy of tire statute by making the employees 
whole for losses suffered on account of an unfair 
labor practice.’ ” National Labor Relations Board v. 
J. H. Ratter-Rex Mfg. Co., 396 U.S. 258. 263 ( 1969), 
quoting Nathanson v. National Labor Relations Boaid, 
344 U.S. 25, 27 (1952).

It is true, of course, that whenever a party obtains 
relief under a federal statute, public policy is vindicated 
even though direct, immediately cognizable benefits 
may flow only to the individual. Thus, for example, 
private action under Title 42 U.S.C. $ 1981 is subject 
to stale limitations periods despite the fact that each 
recovery may be said to promote tne public policy 
embodied in the statute. See Johnson, supra, 421 U.S. 
454 ( 1975).

But certain federal acts, such as the National Labor 
Relations Act, are intended to be broadly prophylactic

"The Court in Moody stated that
“backpay should be denied only for reasons which, if 
applied generally, would not frustrate the central statutory 
purposes^of eradicating discrimination throughout the econ­
omy and making persons whole for injuries suffered 
through past discrimination.

422 U.S. at 421. (Emphasis added.)

■Jo:



imary 
•d by
\pany,

■ p ro­
il the 
a iions 
:ished 
10(c) 
•C. § 
dicatc 

tyees 
unfair 
rd v. 
969), 
hull'd.

Otains 
ieated 
unci'its 
.:r,ple, 
abject 

each 
policy 
i U.S.

Labor 
; lactic

..eh, if 
.atutory 
e econ- 
suffercd

-r-

— 9—

as well as remedial. See Section 1 | 29 U.S.C. § 151 j. 
Several circuits, including our own, have recognized 
that back pay orders promote the prophylactic as well 
as the remedial purposes of the National Labor Rela­
tions Act.'s

The National Labor Relations Board (NLRB) does 
not pursue the "adjudication of private rights.” Rather, 
it “acts in a public capacity to give effect to the 
declared public policy of the Act. . . National 
Licorice Co. v. National Labor Relations Board, 309 
U.S. 350, 362 (1940). “The fact that these proceedings 
| may j operate to confer an incidental benefit on private 
persons does not detract from this public purpose.” 
Nabors v. National Labor Relations Board, 323 F.2d 
686, 688-89 (5th Cir. 1963).

Accordingly, the NLRB, as an agency of the United 
States seeking enforcement of public rights, is not 
bound by state limitations statutes even when seeking 
back pay. Nabors, supra, at 688. See also ./. H. Rutter- 
Rex Mfg. Co. v. National Labor Relations Board, 
399 F.2d 356, 358, 362, 364 (5th Cir. 1968), rev’d 
on other grounds, 396 U.S. 258 ( 1969).’

The Civil Rights Act of 1964 grew out of Congres­
sional awareness of the continued, pervasive discrimina-

P I t ;'

vat

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■sMarriott Carp. v. Rational Labor Relations Board. 491 
F.2d 367, 371 (9th Cir. 1974); National Labor Relations 
Board v. United Marine Division, Local 33, National Maritime 
Union, AFL-CIO, 417 F.2d 865, 868 (2nd Cir. 1969); Trinity 
Valley Iron R Steel Co. v. National Labor Relations Board, 
410 F.2d 1161, 116S (5th Cir. 1969); Nabors r. National 
Labor Relations Board, 323 F.2d 686. 688-89 (5th Cir. 1963).

'•‘In Rntter-Rex, after ruling that state limitations statutes 
did not apply to the NLRB's action, the Fifth Circuit modified 
the Board’s order because of inordinate administrative delay 
to the prejudice of defendant. The Supreme Court reversed 
and ordered enforcement of the back pay order in its entirety. 
In doing so. the Court assumed the inapplicability of state 
limitations periods.

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- J O -
tion against minorities, particularly NegiO'-s, in vot.n_. 
access to public facilities, public education and employ­
ment. As the Committee on the Judiciary of the House 
of Representatives reported:

Considerable progress has been made in elimi­
nating discrimination in many areas. . . • Never­
theless, in the last decade it has become increasing­
ly clear that progress has been too slow and that 
national legislation is required to meet a national 
need which becomes ever more obvious. . . I This 
Act] is designed as a step toward eradicating 
significant areas of discrimination on a nationwide 
basis. It is general in application and national .
in scope.

H. Rep. No. 914, 1964 U.S.C.C.A.N. 2391. 239a 
(1964).

Thus, despite the existence in 1964 of such remedial 
statutes as the Civil Rights Acts of 1866, 1870 and 
1871 i 42 U.S.C. §§ 1981-881, Congress believed that 
some additional federal action was necessary to further 
the public objective of elimination of nationwide dis­
crimination."' It decided that this objective could 
best be pursued by federal agency enforcement.

The original Section 706 of the Civil Rights Act 
of 1964, 78 Stat. 259-61, established an enforcement 
scheme to be implemented primarily by the EEC» . 
In 1972 Congress made it even more clear that tne 
vast majority''of complaints will be handled through 
the offices of the EEOC or the Attorney General. . . .

U.S.C. S 1981 o i l  the one l i a n a ,  

421 U.S. ai 461.

■ni.le VII on the oilier.



— I l —

Scction-By-Scction Analysis, supra. 1 ! 8 Conti. Rcc. at 
7168. ,

The basic function of the EEOC, as with the NLRB, 
is to prevent and eliminate unlawful employment “prac­
tices and devices, primarily through “conference, con­
ciliation, and persuasion." Alexander v. Gardner-Denver 
Co.. 415 U.S. 36. 44 (1974): Section 706(a) & 
(b) [42 U.S.C. § 2000e-5(a) & (b ) | .  The EEOC 
has the power to investigate, promote voluntary com­
pliance. and bring suit upon failure of conciliation 
efforts."

The EEOC vindicates public policy by suing in 
federal court, as does the NLRB bv seeking enforcement 
of its orders in the courts of appeals. This is so 
regardless of the type of relief sought by cither. As 
in labor law. so in Title VII law. the fact that private 
parties may benefit from public agency action does 
not detract from the public nature of those proceedings.

We are aware that the Fifth Circuit has reached 
a contrary result in at least two cases. Griffin Wheel, 
supra. 51 1 r.2d at 458-59: Georgia Power, supra, 
474 F.2d at 922-23. We decline to follow its lead.

Both of those cases were decided before the Supreme 
Court decisions in Moody, supra, and Franks, supra. 
Moreover, the court in Georgia Power, 474 F.2d at 
921, relied on the decision of the Supreme Court 
in Ruiter-Rcx, supra, but ignored the Court’s statement 
therein that “back pay . . . is . . . desicncd to 
vindicate . . . public policy. . . 396 U.S. at
263.

"Unlike the NLRB, the FEOC has no adjudicative powers. 
Yet the NLRB must itself seek court enforcement of its orders.

X



1

I

3

I
i

■!I

j

Occidental directs our attention to the Court’s deci­
sion in Johnson, supra. The Court there held that 
a federal cause of action under Title 42 U.S.C.  ̂ 1981 
was governed by “the most appropriate | limitation 
period | provided by state law.” 421 U.S. at 462. 
However, Johnson involved a private claimant litigating 
under Section 1981, while this case involves a public 
agency enforcing Title VII rights.

Also, the Johnson Court did not qualify its holding 
according to the type ot relief sought. Indeed, by 
discussing the availability under Section 1981 of “both 
equitable and legal relief,” 421 U.S. at 460. the Court 
intimated that state limitations periods would apply 
to private actions brought under Section 1981, regard­
less of the type of relief sought.

Earlier in this opinion we joined the Fifth a^u 
Sixth Circuits, in Griffin Wheel and Kimberly-Clark 
respectively, in ruling that state limitations periods 
do not govern the EEOC’s request for injunctive relief. 
Nothing in Johnson dictates a contrary conclusion. 
Similarly, Johnson does not preclude us from concluding 
that a request by the EEOC for back pay, in vindication 
of public policy, is likewise immune from state limita­
tions1' periods.1:1

rhere are sound practical considerations in support 
of our conclusion. First, subjecting the EEOC to state

’-It appears that the EEOC would likewise be immune 
from the defense of laches. Cj. United Slates v. Summerlin, 
310 U.S. 414, 416 (1940); Nabors v. National Labor Relations 
Board, 323 F.2d 686, 688 (5th Cir. 1963). But see Griffin 
Wheel, supra, 511 F.2d at 459 n.5; Georgia Power, supra, 
474 F.2d at 923. However, since the issue was not raised 
herein, we need not address it.

’ ’•The court in Kimberly-Clark seemed to so conclude, al­
though it did not make clear what tvpe of relief was at issue 
511 F.2d at 1359-60.

15 '

. _ "—r-— ------------ --------------- ------------------------- ------------ - ,
, : . ■ ■ ■  -v v ■:>.■. . .  ■ a 4 • . - . ■ v  ; :■ ■■•

■ ■ i C ■ ■ . . V' : v. ; • ■ • ' -V-
■ 06 04 .. V .7 Vie.

■ * ■ ' . . ii.,:7 ■ .. ■ >;



Court's dcci- 
jre held that 
J.S.C. § 1981 
to (limitation 
U.S. at 462. 
,iant litigating 

elves a public

,[y its holding 
.. Indeed, by 
1981 of "both 
50, the Court 
would apply 
1981. regard-

,.'.e Fifth and 
Kimberly-Clark 
..lions periods 
.junctive relief, 
ry conclusion, 
'oni concluding 
. in vindication 
in state limita-

ons in support 
EEOC to state

wise be immune 
cs v. Summerlin,
: Labor Relations 
. But see Griffin 
'a Power, supra, 

: whs not raised

so conclude, al- 
clief was at issue.

—  13—

limitations periods, often as short as one yeai, wou.d 
frustrate its attempts to resolve disputes by means 
of administrative "conference, conciliation, and pat- 
suasion,” 142 U.S.C. § 2000e-5(b)i, rather than by 
court action.’"

Second, it would be cumbersome to determine the 
applicability of state limitations statutes accoK.mg to 
the type of relief sought. As the Sixth Circuit stated 
in Meadows, supra,  510 F.2u at 945-46:

"(Back pay | may not properly be viewed as a 
mere adjunct of some more basic equity. It is 
properly viewed as an integral part of the whole 
of relief which seeks not to punish the respondent 
but to compensate the victim of discrimination.

It is unreasonable to give the EEOC an open ticket 
for equitable relief, but to impose time constraints 
on back pay claims even though they are "an integral 
part of the whole of relief sought.

Third, Section 706(g) [42 U.S.C. § 2000e-5(g)[ 
provides: “Back pay liability shall not acciue from 
a date more than two years prior to the filing of 
a charge with the Commission | EEOC | .” Thus, an 
employer need not produce past employment records 
except for the period of time the charge is pending, 
and the preceding two years.

Finally, despite the absence of a controlling federal 
limitations period, at least two factors are at work

~ Johnson, supra, 421 U.S. at 462 & n.7: Griffin 
Wheel, supra, 511 F.2d at 459.

'•'Clearly the cause of action “accrues on the last date 
on which the allegedly unlawful act or pracUce occurs. Co ­
lins v. United Airlines. Inc., 514 F.2d 594 3%  A n~  ( ^  
C t  1975)' Griffin Wheel, supra, 511 F._d at 4 .9  n.6. Cf. 
, V .............. ’........ m  IIS  -it 462.



• nev.--,■' __s_

\ - M -
, to minimize EEOC dalliance. First, the charging party
1 may demand a right-to-sue letter should the EEOC
' fail to obtain voluntary compliance or to sue within
j 180 days of the original filing. Section 706(f)(1)
j [42 U.S.C. § 2000e-5 ( f ) (1 )] ;  Johnson, supra, 421

U.S. at 458. Second, in extreme cases a federal district 
) court could compel agency action. See Sections 6(b)
I and 10e(A) of the Administrative Procedure Act [5

U.S.C. §§ 555(b), 706(1)]. Cf. National Labor Rela= 
tions Board v. J. //. Rutter-Rex Mfg. Co., 396 U.S.
258, 266 & n. 3 (1969) (dictum). a

We conclude that the district court erred insofar 
j as it barred the EEOC’s back pay claim on the basis
] of the California limitations period.
I (

I

■ j
i■i
I
1
)
i

IV.
SCOPE OF THE EEOCS COMPLAINT

In her original charge filed with the EEOC, Ms. 
Edelson alleged that Occidental refused, on account 
of sex, to provide her with maternity leave, other 
pregnancy benefits, insurance, vacation benefits and sen­
iority rights.

In the course of its investigation the EEOC discov­
ered apparent discrimination against unmarried female 
employees in the distribution of "pregnancy-related ben­
efits.” It also discovered apparent discrimination against 
male employees in the administration of the retirement 
system. Although these forms of alleged discrimina­
tion were not mentioned in the original charge, the 
EEOC included them in subparagraphs 8(b) and 9(c) 
of its complaint. Occidental argued successfully below 
that these charges should be dismissed as being outside 
the scope of the original charge.

—.""I!—

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g party
' e e o c
within

( f ) (D  
a, 421 
district 

.s 6(b) 
[5 

Rela­
ys U.S.

insofar 
c basis

C, Ms. 
.ccount 
. other 
,nd sen-

discov- 
fernalc 

jd ben- 
against 
're meat 
.rimina- 
_e, the 
,d 9(c)
' below 
outside

— 15—

As amended in 1972, Section 710 of Title VII 
provides:

For the purpose of all hearings and investigations 
conducted by the [EEOC) or its duly authorized 
agents or agencies, section i i of the National 
Labor Relations Act (49 Stat. 455; 29 U.S.C. 
161) shall apply.

| S6 Stat. 109; 42 U.S.C. § 2000e-9 |

While the investigation in this case preceded the 1972 
amendment of Section 710, it is clear that the prior 
statute was similar in scope. See Motorola, Inc. v. 
McLain. 484 F.2d 1339, 1342-44 (7th Cir. 1973); 
Granitcviile Co. v. Equal Employment Opportunity 
Coinin'/!, 438 F.2d 32, 39 (4th Cir. 1971).

Section 11(1) of the National Labor Relations Act 
(29 U.S.C. § 161 (1 ) | provides in part that the NLRB 
may gain access to “any evidence of any person being 
investigated or proceeded against that relates to any 
matter under investigation or in question.’’ This lan­
guage was given a broad reach in National Labor 
Relations Board v. Wyman-Gordon Co., 394 U.S. 759, 
768 ( 1969).

Section 709(a) of Title VI! [42 U.S.C. § 2000c- 
8(a)] today provides, as it did in 1964:

In connection with any investigation of a charge 
filed under section 706, the Commission or its 
designated representative shall at all reasonable 
times have access to, for the purposes of examina­
tion, and the right to copy any evidence of any 
person being investigated or proceeded against 
that relates to unlawful employment practices cov­
ered bv this title and is relevant to the charge 
under investigation.



—

• !

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— 16—
Had Occidental believed that the EEOC s investi­

gation exceeded the permissible statutory scope, it could 
have refused the EEOC’s demand for access and sought 
adjudication of its rights."1 Occidental did not do 
so. Thus we can only conclude that the EEOC investiga­
tion was reasonable and that the information supporting 
the allegations in subparagraphs 8(b) and 9(c) was 
acquired during that reasonable investigation.

In Equal Employment Opportunity Comm’n v. Gen­
eral Electric Co., .... F.2d ..... .... (4th Cir. Jan. 22. 
1976), the Fourth Circuit held:

.So long as fdiscovery of] the new discrimination 
arises out of the reasonable investigation of the 
charge filed, it can be the subject of a reasonable 
cause” determination, to be followed by an otlei 
by the Commission of conciliation, and. if con­
ciliation fails, by a civil ’■ without the filing 
of a new charge on such claim of discrimination. 
In other w'ords, the original charge is sufficient 
to support action by the EEOC as well as a 
civil suit under the Act for any discrimination 
stated in the charge itself or \discovered j in the 
course of a reasonable investigation of that charge, 
provided such discrimination was included in the 
reasonable cause determination of the EEGv_ and 
was followed by compliance with the conciliation 
procedures fixed in the Act.

(Emphasis in original.) Accord, Equal Employment 
Opportunity Comm’n v. Huttig Sash &. Door Co.. 511

Loca! No. 104, Shed Metal Workers International 
Ass'n v. Equal Employment Opportunity t omm n, 4j ) F._u 

941 41 (9th Cir 1971): Circle K Corp. v. Equal Em- 
d L ^ u ' t ^ n u m E  Coinin’n, 50. F.2d 1052 (10th Cir. 
1974); JoslinD rr Goods Co. v. Equal Employment Opportunity 
Comm’n, 483 F.2d 178 (10th Cir. 1973); Motmola, Inc. 
v. McLain, supra; Graniteville Co., supra.

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t

esti-
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do
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ting
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ition
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lion, 
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ation

ment 
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itional
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— 17—

F.2d 453, 455 (5th Cir. 1975); Equal Employment 
Opportunity Comm’n v. Kimberly-Clark Corp., 511 
F.2d 1352, 1363 (6th Cir. 1975). We agree with 
the reasoninc of the Fourth, Utth and Sixth Circuits.1'

In this case, Occidental received adequate notice 
during administrative investigation of the substance ot 
the issues subsequently raised in subparagraphs 8(b) 
and 9(c) of the EEOC’s complaint. Reference was 
made to those issues in both the District Director's 
Findings of Fact (February 25, 1972), and the EEOC’s 
Determination of Reasonable Cause (February 8, 
1973). Thus the EEOC complied with the statute 
by presenting these issues for conciliation. See Section 
706(f)(1) [42 U.S.C. § 2000e-5(f)(1)).

We note that the EEOC itself could independently 
bring charges based upon the information it reasonably 
acquired during the investigation of Ms. Edelson’s 
charge. See Section 706(b) [42 U.S.C. § 2000e-5(b) |. 
To require the EEOC to pursue that route, rather 
than allowing it to include the new charges along 
with the original one in a single Determination of 
Reasonable Cause, would be to champion form over 
substance and to generate "an inexcusable waste of

'•In so agreeing we do not depart in any respect from 
our recent decision in Ouhichon v. North American Rockwell 
Corp., 482 F.2d 569 (9th Cir. 1973), in which we stated: 

“When an employee seeks judicial relief for incidents 
not listed in his original charge to the EEOC, the judicial 
complaint nevertheless may encompass any discrimination 
like or reasonably related 'to the allegations of the EEOC 
charge, including new acts occurring during the pendency 
of the charge before the EEOC."

Id. at 571.
Ouhichon involved the complaint of a private party, he being 

subject to traditional notions of standing. We deal here with 
a complaint liled by a public agency seeking vindication ol 
public rights.



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valuable administrative resources” and “intolerable de­
lay,” in violation of statutory purpose. General Electric,
supra, ...... F.2d at ......, 1 1 C.C.H.—Empl. Prac.
Dec. at 6614.

It remains true that Ms. Edelson would not have 
had “standing” to charge Occidental with discrimination 
against unmarried female employees (Ms. Edelson was 
married), or against male employees with respect to 
retirement. However, as we have discussed earlier, the 
EEOC is charged with the vindication of public policy, 
not merely with the enforcement of private rights. 
In this case, enforcement by the EEOC of the objec­
tives to Title VII should not be frustrated because 
a private charging party may not have had “standing” 
to make a particular claim.

Finally, it is argued that “amendment” by the EEOC 
of the original charge may operate to the detriment 
of the charging party. In this case such a result is 
speculative. In any case, the charging party should 
be able to intervene in either the administrative or 
judicial proceeding to insure that his or her rights 
are fully protected. See Section 706(f)(1) [42 U.S.C. 
§ 2000e-5(f) (1) ].

For the above reasons, we conclude that the district 
court erred in dismissing subparagraphs S(b) and 9(c) 
of the EEOC's complaint.

V.
CONCLUSION

The judgment of the district court is reversed and 
the cause is remanded for further proceedings consistent 
with this opinion.

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PROOF CF SERVICE BY MAIL

I am a citizen of the United States and a resident of the City and County of 
Los Angeles; I am over the age of eighteen years and not a party to the 
within action; my business address is: 6500 Flotilla Street, Los Angeles,

California.

q .q JiuLv 22 ............. . 197.6.., I served the within
p m ‘f i j i l" P 0 R ” i" jra f" 6 ?  C ST IO PJIE I i n  r e :  “S c c i d e n i a l  L i f e  
le x s u ra tic s  CoizpEiny oE C n l ix o r n ir .  vs<  —otual au. ' A —  v 
0*o‘co3 ‘bvini'fcy CloGTiissioii^ i n  "dis Sv.p'fc.ugGcu’- i*> o i

qj. a - —O od UO U> •yy-.-iA • OA-U. ' .,3 c+ „*raf, O c to b e r  T o rn , 1976$N o„. . . . .

on th e ...................a t to ? ’a©y.a.................................. in said action, by placing
3  copies thereof enclosed in a sealed envelope with postage fully
prepaid, in the United States post office mail box at Los Angeles, Califor­

nia, addressee a mows.

SOLICITOR GENERAL 
DEPLE'irULNT OF JUSTICE 
"Jaahington EC 20330

E Q l^ S S lo S & r T  0PP0RTU1IITI CffiLUSSIOi; 
2/..Cl'-Ey S t r e e t  KW 
M ashington DC 20506
ttjt 7?g QQHDOil
EQUAL ELPL0H22IT CPPORiUrETY COlillSSIOI! 
Foe: P io sa  S u ite  1010 
San F ran c isco , CA 94102

I certify (or declare), under penalty of perjury, that the foregoing is true 

and correct.

Executed on............£ * ? ...? ? ................... 19& ~, at Los Angeles, California

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