No

STATEMENT OF COUNSEL

In the EEOC’s and counsel’s judgment, one or more of the situations described in the “purpose” section of this Court’s Post-Judgment Form pertaining to petitions for panel rehearing exists. First, the EEOC submits that a material point of fact was overlooked because the panel fundamentally misunderstood counsel’s statement at oral argument upon which the panel explicitly based its decision in this case. See Memorandum (“Mem.”) at 2-3. Second, there has been an additional factual development while this appeal was pending to which the Court’s attention should be drawn. Accordingly, the EEOC respectfully submits this Petition for Panel Rehearing pursuant to Fed. R. App. P. 40 and Ninth Cir. R. 40-1.

ARGUMENT

I. The panel fundamentally misunderstood counsel’s statement at oral argument that, during the pendency of an EEOC investigation, “no one gets anything.”

In its memorandum disposition of October 7, 2014, the panel stated that, while the EEOC had taken the position in its briefs and before the district court that “the EEOC may make disclosures to aggrieved persons during the investigation to the extent deemed necessary to effectively enforce the law,” “in its oral argument, the EEOC did an about-face.” Mem. at 2. The court pointed to counsel’s statement at oral argument that “during the pendency of the charge/investigation, no one is getting anything,” which the court characterized as a “concession on this appeal.” Id. at 2-3. Accordingly, the panel vacated the confidentiality order and remanded this case to the district court, emphasizing that the EEOC’s statement at oral argument “is binding on it in any further proceedings in this case.” Id. at 3.

With the greatest respect for the panel and its efforts in this case, counsel did not do an “about-face” or concede that the EEOC may not make disclosures to witnesses or aggrieved individuals as necessary during an investigation. The EEOC’s position on the rules surrounding disclosures during investigations and thereafter did not change at oral argument. In fact, the EEOC’s position on this issue has been the same for years, well pre-dating this case, and is consistent with its published regulations and other guidance on the subject. See, e.g., 29 C.F.R. § 1601.22; EEOC Opening Br. 31-32; EEOC Reply Br. at 14-16.

In the passage the court understood to be a reversal of the EEOC’s position, counsel was not discussing disclosure of documents in the context of a charge investigation. Rather, she was answering a question about whether the Parra parties would be able to get information “through the back door” that they had been denied in their own suit. Counsel’s response, read in full, makes clear that outsiders cannot obtain information during the pendency of an investigation, but it in no way qualifies the EEOC’s general position that it can disclose information to witnesses and aggrieved individuals as necessary during an investigation :

CALLAHAN, J.: Well the fact that the Bashas [sic] were denied certain discovery and access to certain information which is going to be provided to you. Are they allowed to get through the back door what they can’t get through the front door?

EEOC: I want to be really clear on this. During the pendency of the investigation no one gets anything. FOIA and Section 83 only pertain to once a notice of right to sue has been issued. So during the pendency of the investigation no one gets anything. At most a witness in an investigative interview may be shown a document to refresh their recollection or ask them to comment on it but they are entitled to nothing and they can take nothing with them. After the investigation concludes, if their, once the Commissioners, the class of aggrieved persons who’re subject to the Commissioners’ Charge has been determined, they may pursue their rights to access elements of the file either through FOIA or through Section 83 of the Compliance Manual.

Oral Argument recording at 5:00-6:00 (emphasis added) (available at http://www.ca9.uscourts.gov/media/view.php?pk_id=0000012328).

Later in the argument, counsel continued:

EEOC: Now as far as prospectively, as I was explaining before, during pendency of the charge/investigation, no one is getting anything. Not Parra parties. Not anybody else parties. Not aggrieved persons. Nobody. It’s only after a Notice of Right to Sue has been issued, and only if the person is within the class, only information as to them, and only information that isn’t subject to a FOIA exemption or a Section 83

exemption . . . .

Oral Argument recording at 18:30-19:00. The EEOC is completely willing to be “bound” by its representations at oral argument in this case, but it cannot be “bound” by a concession it expressly did not make.

At least some of the confusion here appears to stem from the contextual meaning of the term “get”—a term “very general in its meaning and simple and familiar in its use.” Webster’s Third New Int’l Dictionary 953 (1976 ed.). In the exchange at 5:00, EEOC’s counsel was responding to a question posed by Judge Callahan in which she asked, essentially, whether the parties in Parra could “get” documents from the EEOC to which the district court had already denied them access. Counsel understood Judge Callahan to be asking whether the Parra parties could obtain documents through the Commissioner’s Charge investigation and then use those documents to further the Parra litigation. The answer to that question is no, because, as the EEOC has explained from the start, under no circumstances may aggrieved persons or witnesses to an EEOC investigation “get,” or obtain, documents to keep or take with them. See Webster’s Third New Int’l Dictionary 953 (listing first definition of “get” as “to gain possession of through one’s own efforts”); see also id. (listing synonyms of “get” as “obtain, procure, secure, acquire, gain, win”).

As EEOC’s counsel went on to explain, though, the fact that aggrieved persons and witnesses may not “get” information through the investigation does not mean that the agency’s investigators cannot show them documents from the charge file, only as necessary to further the investigation. See EEOC Opening Br. 33; EEOC Reply Br. 15; Oral Argument recording at 5:00-6:00. (Indeed, as the EEOC argued in both its briefs and at oral argument, one of the many problems with the confidentiality order entered by the district court in this case is that it barred the EEOC from even interviewing witnesses who would not sign confidentiality agreements, much less allowing the agency to show them charge file documents. EEOC Opening Br. 50-51; EEOC Reply Br. 26; Oral Argument recording at 10:00-10:20.) That said, custody of any such document remains with the agency at all times during the investigation, and the aggrieved party or witness may not copy, record, or retain the document in any form.

As EEOC’s counsel emphasized at oral argument, clarity on this point is critically important to any understanding of what is at issue here. Both before the district court and in its brief as respondent in this case, Bashas’ has persisted in its mistaken view that, during the EEOC’s investigation of the Commissioner’s Charge, an aggrieved party or witness could obtain documents from the charge file and use them for nefarious purposes. II-ER-258; Bashas’ Answering Br. at 2, 14, 19, 29-30. The EEOC’s point, both in its briefs and at oral argument in this appeal, is that this understanding is simply wrong. No aggrieved party or witness may obtain, or “get,” any documents from the charge file until the investigation has concluded, and even during the NRTS period, any documents given to an aggrieved party will first be sanitized pursuant to FOIA. EEOC Opening Br. 33-34; EEOC Reply Br. 14-16; Oral Argument recording at 5:00-6:00, 18:30-19:00.

To the extent counsel’s words at oral argument played any role in creating confusion for the panel on this point, she offers her sincere apology. But the EEOC did not “concede” at oral argument that it could never show documents to witnesses or aggrieved parties during the course of a charge investigation, only as necessary for the investigation—in fact, it explicitly restated that very position. We respectfully request that the Court reconsider its ruling on this point, as the premise on which it rests is factually incorrect.

II. Settlement is imminent in the Parra case.

Although the panel did not refer to this fact in its memorandum, the EEOC feels it necessary to call it to the Court’s attention, as it is directly relevant to the respondent’s position in this case. Throughout this subpoena enforcement matter, Bashas’ has argued that one—if not the—primary justification for a confidentiality order in this case is the possibility that one of the plaintiffs in Parra might obtain the information in the Commissioner’s Charge file and use it to advance that litigation. E.g., II-ER-258; Bashas’ Answering Br. at 2, 14, 19, 29-30. However, according to the public docket in the Parra matter in the District of Arizona, the parties have settled that case and are in the process of finalizing a settlement agreement. Parra v. Bashas’ Inc., No. 2:02cv591, docket entry nos. 325 (D. Ariz. entered Jul. 11, 2014) (notice of settlement by Bashas’); 341 (notes of October 16, 2014, telephonic settlement hearing), 344 (district court order of October 21, 2014, granting preliminary approval of proposed settlement agreement).

Accordingly, Bashas’ can no longer use the specter of the Parra litigation as a basis for arguing that a confidentiality order is required to govern the investigation of the Commissioner’s Charge in this case. Because the EEOC’s investigation of the Commissioner’s Charge has not concluded, this Court should take this material change of circumstances into consideration as it evaluates this appeal.

CONCLUSION

For the foregoing reasons, the EEOC respectfully requests that the panel rehear this matter and reconsider its memorandum disposition of October 7, 2010.