GENERAL INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellant

491 F.2d 133 7 Fair Empl.Prac.Cas. 106 , 7 Empl. Prac. Dec. P 9086 GENERAL INSURANCE COMPANY OF AMERICA, Plaintiff-Appellee, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellant. No. 71-1592. United States Court of Appeals, Ninth Circuit. Jan. 15, 1974. Chester F. Relyea, Regional Atty. (argued), EEOC San Francisco, Cal., Equal Employment Opportunity Comm., Washington, D.C., for defendant-appellant. Bruce Maines, H. Weston Foss (argued), J. David Andrews of Perkins, Coie, Stone, Olsen & Williams, Seattle, Wash., for plaintiff-appellee. Before MERRILL and HUFSTEDLER, Circuit Judges, and HILL, * District judge. MERRILL, Circuit Judge: 1 Three charges have been filed with the Commission asserting that petitioner-appellee has been guilty of unfair employment practices. The Commission, dissatisfied with the extent of information voluntarily produced, served the petitioner with a Demand for Access to Evidence. Petitioner then initiated these proceedings with its petition for an order setting aside the demand. The Commission countered with a motion for entry of an order of enforcement. The District Court entered an order denying the Commission's motion and the Commission…

Three charges have been filed with the Commission asserting that petitioner-appellee has been guilty of unfair employment practices. The Commission, dissatisfied with the extent of information voluntarily produced, served the petitioner with a Demand for Access to Evidence. Petitioner then initiated these proceedings with its petition for an order setting aside the demand. The Commission countered with a motion for entry of an order of enforcement. The District Court entered an order denying the Commission’s motion and the Commission has appealed.

The District Court refused enforcement of the demand on two grounds.

1. It concluded that as to one charge the Commission lacked jurisdiction by reason of failure of the charging party to seek relief through state authorities before filing a charge with the Commission. We disagree.

Section 706(b) of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-5(b), requires such deference to state proceedings in the case of a state “which has a state or local law prohibiting the unlawful employment practice alleged, and establishing or authorizing a State or local authority to grant or seek relief from such pz’actice or to institute criminal…

(specially concurring):

I concur in the result reached by the majority and in their articulation of the grounds upon which the result is reached. I do not fully join in the opinion and write this special concurrence only to indicate my view that Footnote 2 should not be a part of the opinion. Being unnecessary to the decision of the case, the footnote is dictum. It discusses a situation not presented in the instant case, i. e., the disposition in the trial court of a case in which the Commission acted without deferring to state authority and the trial court (or appellate court) later holds that it should have deferred. Since our holding in the instant case is that the Commission was not required to defer to state authority, I deem it unwise and inappropriate to comment upon what should be done in other eases involving a different result. As the Supreme Court said in United States and Interstate Commerce Commission v. Alaska Steamship Company, et al., 253 U.S. 113 , 40 S.Ct. 448 , 64 L.Ed. 808 (1920):

My commitment to judicial self-restraint in opinion-writing is so deeply held that I feel it necessary to place this special concurrence on the record.