CHROMCRAFT CORP. v. UNITED STATES EQUAL EMP. OP. COM'N

JOHN R. BROWN, Chief Judge:

The EEOC appeals from a District Court order, 337 F.Supp. 653, setting aside the Commission's demand for production of evidence for use in an investigation of Title VII charges filed against the Company. The District Court's order followed a finding that the EEOC had not served the Company with notice of the pending charges within a reasonable time. We reverse.

On April 1, 1969, the Complainant filed a formal charge of prohibited race discrimination against the Company. At that time the regional office of the EEOC had a backlog of 333 pending charges of discrimination, with new filings averaging 75 per month. Consequently, it was over a year before one of the officers could begin an investigation of the charge. In accordance with Commission policy aimed at minimizing reprisals against complainants during this unfortunate but unavoidable hiatus, the Commission did not serve notice of the charge on the Company until an EEOC officer was available to begin the investigation—April 11, 1970. The Company objected to the investigation proposed by the Commission and accordingly a formal Demand was issued pursuant to 42 U.S.C.A. § 2000e-9(a). Within the 20 days proscribed by § 2000e-9(c), the Company instituted the present suit in the United States District Court seeking to modify or set aside the Commission's Demand for Access to Evidence.

At the time this action was commenced there was no statutory or regulatory provision establishing a time limitation within which an employer must have been served with a copy of the complaint.1 Nor is the equitable doctrine of laches applicable to a governmental agency acting to vindicate a public right.2 In fact, the only applicable statutory provision even tangentially touching upon this area of EEOC activity is that implicitly encompassed in the Administrative Procedure Act, 5 U.S.C. A. § 706.3

Section 706 limits judicial review of agency action and, in the absence of some other limitations provision, empowers federal courts only to "compel agency action unlawfully with-held or unreasonably delayed." Here the employer seeks a nullification of the agency action, not a court order compelling such action. Moreover, even were we to assume that this provision creates mandatory duties on administrative agencies sufficient to set aside agency action as unlawful if "unreasonably delayed," § 706 further requires that the reviewing court shall take due account "of the rule of prejudicial error." We read that Congressional mandate to require a showing of prejudice before agency action can be set aside for its lack of punctuality. Here no such showing of prejudice has been made.

Moreover, even if some prejudice—as yet unshown—might later surface or be demonstrated, no different result would follow since the District Court's conclusion that the EEOC acted unreasonably cannot be sustained. In the first place, the delay in investigating charges4 is clearly, as the District Court found, the result of an "undisputed workload and an overburdened staff,"5 and there is not any suggestion that it has resulted from slothfulness, lethargy, inertia or caprice. This Court is only too painfully aware of the inescapable backlog which inevitably develops when exploding dockets exhaust severely limited resources which are not increased in proportion to the ever-expanding demands and inundating filings. In the setting of such exacerbated circumstances, "agencies must exert the greatest resourceful, imaginative ingenuity in devising procedures which in a day of ever-expanding dockets will permit the regulatory process to function properly with reasonable dispatch." F.T.C. v. J. Weingarten, Inc., 5 Cir., 1964, 336 F.2d 687, 691-692. (Emphasis added.)

Given an inevitable and sizeable backlog, and the David-Goliath nature of the confrontation between "a single poor, ignorant employee with a grievance, not a sling shot in his hand, [and] a large industrial employer,"6 the EEOC sought ways to minimize the possibility of employer reprisals against charging employees during the hiatus before the Commission could actively begin its investigation. Having been given no direct statutory power to invoke judicial assistance to protect private complainants during this period of limbo,7 the EEOC had to resort to other means to satisfy its statutory obligation to protect congressionally created rights. One technique intended to accomplish this objective was the policy involved here— the procedure of not serving the charges upon the respondent until the investigation was imminent. Whether or not that policy was successful, desirable or wise, we need not—indeed cannot—determine here. So long as the policy "seeks only to accomplish legitimate objectives," Cf. Karr v. Schmidt, 5 Cir. (en banc), 1972, 460 F.2d 609, 617, we cannot declare it unreasonable. The District Court substituted his judgment for that of the administrative agency statutorily vested with the discretion and possessed of the experience-gained expertise to determine the most efficacious procedure for affecting the Act's goals.8 In the absence of proof of a dilatory attitude on the part of the Commission or its staff, this was error.

The EEOC's policy, motivated as it was by fears of destructive reprisals, did not result in unreasonable delay. Cf. Georgia Power Co. v. EEOC, 5 Cir., 1969, 412 F.2d 462; International Brotherhood of Electrical Workers, Local Union No. 5 v. EEOC, 3 Cir., 1968, 398 F.2d 248.9 Accordingly, the order of the District Court setting aside the Commission's Demand for Access to Evidence is reversed and the case is remanded to the District Court for a further action consistent with the principles herein enunciated.

Reversed and remanded