MEMORANDUM AND ORDER
BRIEANT, District Judge.
Familiarity with all prior proceedings in this matter on the part of the reader is assumed.
Pursuant to Section 7 of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and § 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, the Equal Employment Opportunity Commission ("EEOC") sought an order from this Court directing Pan American World Airways, Inc. ("Pan Am") to comply with the terms of a subpoena duces tecum issued on January 14, 1983. The EEOC had initiated an investigation in response to about 13 separate employee complaints of age based discrimination with respect to the supervisory work force practices of Pan Am at its John F. Kennedy International Airport facility ("JFK"). Specifically, the complaints charged that since January 1980 Pan Am had engaged in a systematic practice of age based discrimination in executing its "Reduction in Force" ("RIF") program, whereby older, more experienced supervisors have been terminated or intimidated into retirement while younger, less experienced and lower paid supervisory personnel have been retained and promoted.
Pan Am resisted the subpoena, contending that it imposed an excessive burden on a struggling business seeking to cope with a changed business climate and rehabilitate itself, and also on the ground that much of the information sought was irrelevant and the scope was excessively broad and unrelated to the level of corporate discretion under investigation. In addition, Pan Am asserted to this Court that the statistical information sought by Part II of the subpoena was not a valid sample of the supervisory work force under investigation, and therefore a "useless fishing expedition." Pan Am also contended that the subpoena should be limited because its scope was inconsistent with the published "ADEA Case Processing Procedures" of the EEOC, and argued in a moving fashion to this Court that the tremendous bulk of data demanded by this subpoena, and the manpower necessary to accumulate this information would pose an unreasonable and excessive burden on its already precarious financial state.
This Court by a Memorandum and Order dated March 23, 1983 reached the following conclusion:
This Court concluded that the information sought was relevant and that the EEOC was acting within its investigatory powers to examine it. This Court also held that while the subpoena was burdensome, the Court was unable to find that compliance would "unduly disrupt or seriously hinder normal operation" of Pan Am, thereby imposing an excessive burden upon it. The Court directed Pan Am to permit the EEOC to make an on site examination of all relevant records, and held that following such discovery in place, production of any additional information necessary to comply with the provisions of Part II of the subpoena should be compelled only upon further formal application to the Court.
This determination was apparently unsatisfactory to both parties. However, no appeal was taken, and the process of compliance therewith commenced.
Some two months later and on June 23, 1983, the Supreme Court decided the case of Immigration and Naturalization Service v. Chadha, ___ U.S. ___, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). In Chadha, the Court held that the one-house legislative veto of an exercise by the Executive Branch of authority delegated by Congress (to the Attorney General) was unconstitutional and that such a provision was severable from the initial delegation, and void.
Possibly the Court in Chadha was unaware of the far reaching possibilities of its sudden discovery that the time honored process of legislative veto, authorized since 1932 in 295 separate Congressional procedures in 196 different statutes, was unconstitutional.
It was only a matter of time before litigants situated as is Pan Am would discern that the one house veto provision of the Reorganization Act of 1977 was also unconstitutional. The delegation of power from Congress to the President therein contained in turn permitted the President in 1978 to reorganize the Executive Branch of Government so as to transfer enforcement authority for the ADEA and the Equal Pay Act to the EEOC from the Department of Labor, which he did.
Chadha was followed shortly by a motion to dismiss a lawsuit in the United States District Court for the Southern District of Mississippi, EEOC v. Allstate Insurance Co., 570 F.Supp. 1224 (S.D.Miss., 1983). This action involved a suit under the Equal Pay Act, enforcement of which was transferred from the Department of Labor to the EEOC by the same Reorganization Plan No. 1 of 1978 which also transferred the ADEA enforcement function to the EEOC. Judge Barbour dismissed that action by summary judgment for lack of
The Court in Allstate also held (at 1228):
The Allstate decision evoked a motion from Pan Am, heard by this Court on October 26, 1983, to vacate its prior decision enforcing the subpoena. This Court's view of the significance of the issue thus raised and Pan Am's position in the matter could be discerned from colloquy between counsel for Pan Am and the Court as follows:
The Court attempted to resolve the problem presented by Chadha, followed by Allstate, in a manner considered both fair and pragmatic. By its oral order and decision of October 26, 1983, this Court held:
Thereafter, by a motion heard December 20, 1983, the EEOC sought relief from this Court's oral order of October 26, 1983, essentially upon its conclusion that Allstate was wrongly decided. It appeared at the oral argument of that motion that no attempt had been made by the EEOC to have the Department of Labor join in the subpoena in the case of Pan Am, and thereby remove any question as to the legitimacy of this investigation. Instead, the EEOC concentrated its attack on the conclusion reached in the Allstate case and supported here by Pan Am. Apparently the reasons, if any there be, for failing to do so relate to turf consciousness among bureaucrats within different departments of the same branch of Government, with which this Court has little patience.
We concede at the outset of our discussion that the decision in Allstate is not binding precedent upon this Court. Indeed it would not be binding were its author appointed for this district. See Farley v. Farley, 481 F.2d 1009, 1012 (3rd Cir. 1973), which holds:
See also, United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982) (law of the case); Aknin v. Phillips, 424 F.Supp. 104, 105 (S.D.N.Y.1976) (this court may disregard conflicting decision of the Third Circuit).
However, this does not suggest that the decision in Allstate, which gives thoughtful consideration to all aspects of this problem presently before us, should be disregarded. This is particularly true when there is no clear signal from the Supreme Court to assist the inferior courts in dealing with a host of foreseeable post-Chadha problems. Whether Judge Barbour is right or wrong in his analysis will depend entirely on the analysis of higher courts. No jurisprudential purpose will be served, and scarce judicial resources on all levels will be wasted if we, and every other district judge who happens to have an Equal Pay Act or ADEA lawsuit on his or her docket should immediately woo the Muse and set down a lengthy opinion having the same 50-50 chance of being right as the Allstate opinion has.
However, as Jimmy Durante used to say, "everybody wants to get inta de Act," and it was only a matter of time before another equal and coordinate district court found it desirable to add to the learning on the point. Familiarity with Muller Optical Co. v. EEOC, 574 F.Supp. 946, not yet reported (W.D.Tenn., November 10, 1983), is assumed. In Muller Optical, Judge Odell Horton reviewed the same issues dealt with in Allstate, supra, and expressed his dissatisfaction, as he had the right to do, with that decision, holding, correctly, that
The Court in Muller Optical went on to distinguish Chadha because with respect to the Reorganization Act the one-house veto had not been exercised. Indulging in what it characterized as an "unavoidable attempt at clairvoyance," the court considered the issue of severability, reaching a different conclusion than Allstate, for reasons expressed therein which this Court finds no more and no less rational and persuasive than the reasoning relied on in Allstate to support a contrary result.
The order denying an injunction, in Muller Optical, like the judgment of dismissal in Allstate, was appealable, and indeed an appeal to the Sixth Circuit was docketed on November 29, 1983. Indeed, as to Allstate, we have been informed by counsel that the Supreme Court has already noted probable jurisdiction for direct appeal, and a separate appeal has been docketed in the Fifth Circuit on October 19, 1983.
Flush with victory after Muller Optical, the EEOC presented the instant motion to be relieved from this Court's order of October 26, 1983.
That motion, heard December 20, 1983, is denied. This Court perceives no significant change in circumstances merely because of the subsequent issuance of the Muller Optical opinion. We think our temporary resolution of the issue as of October 26, 1983 was then and remains now reasonable, practical and fair. No legitimate excuse is proffered for failing to proceed thereunder. Although the Secretary of Labor has never been asked to authorize the subpoena, this Court regards as highly speculative Pan Am's suggestion, or hope, that he would not do so if asked, because of the claimed burdensome and meritless character of the underlying grievance.
The appeal as of right which could have been taken from our October 26, 1983 order was not taken. There is no significant change in the relevant facts, merely by the issuance of the Muller Optical opinion.
Were respondent genuinely concerned with this particular investigation, it could have obtained ratification and participation from the Secretary of Labor, more than two months ago. Alternatively, it may seek legislative relief from the Congress, either limited to this enforcement function, or extending to a general amnesty or ratification of all that has been done since 1932 in reliance on the presumed constitutionality (or more likely, the presumed non-justiciability) of the one-house veto. Indeed it could move for reconsideration by the Supreme Court of the Chadha case itself, so as to obtain a stay similar to that granted in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), or a declaration of non-retroactivity. Or, it can litigate Allstate and/or Muller Optical to their ultimate unpredictable denouement.
Apparently, as our hearing of December 20, 1983 made clear, the EEOC will do none of these. Rather, it has developed an apparent strategy to wage total litigation on eleven or twelve different fronts wherever and whenever it can, requiring district courts in every circuit to relitigate the issue of Allstate—Muller Optical so that each Circuit may rule separately thereon, with ultimate recourse to the Supreme Court to resolve the foreseeable conflict in the Circuits. This appears to me to be unnecessary, unfair to the employers and employees alike, and wasteful as well as expensive. We should not allow our scarce judicial resources to be squandered in such a profligate fashion.