On petition for writ of certiorari to the United States Court of
Appeals for the Eighth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice POWELL, with whom Mr. Justice STEWART and Mr.
Justice REHNQUIST join, dissenting.
The decision of the Court of Appeals in this case appears to be
inconsistent with recent decisions of this Court on principles
vital to the proper functioning of the federal courts. I therefore
dissent from the denial of certiorari.
Page 439 U.S.
1081 , 1082
I
In 1970, a civil rights organization and several individuals
filed a charge against petitioner with respondent Equal Employment
Opportunity Commission (EEOC). It was claimed that in discharging
an employee and in failing to promote another, petitioner had
discriminated on the basis of race. In 1972, an additional
complaint was lodged on behalf of a female employee who asserted
that petitioner's pregnancy-leave policies discriminated against
her on the basis of sex. Upon the unsuccessful conclusion of
conciliation efforts concerning these charges, the EEOC commenced
this action against petitioner in the District Court. The complaint
alleged broadly that petitioner had discriminated on the basis of
race in its hiring, promotion, apprenticeship, and other practices,
and on the basis of sex with respect to its maternity-leave and
disability benefits.
Each party served interrogatories on the other. The dispute
leading to this petition arose from the EEOC's refusal adequately
to answer interrogatories seeking the names of the individuals,
other than those named in the initial administrative charges,
against whom the EEOC believed petitioner had discriminated. Rather
than supply this information, the EEOC moved the District Court to
stay the filing of its answers while it completed its discovery
against petitioner. This motion was denied. The EEOC thereafter
submitted the following answer to the interrogatories: "The
Commission is unable at this time to identify other individuals
until it has completed its discovery."
Petitioner moved for sanctions against the EEOC under Fed.Rule
Civ. Proc. 37. At a hearing on this motion, the District Judge
reserved decision and directed the parties to confer. He stated
that if they could not agree on the matter, he would consider the
motion for sanctions. Further negotiations failed to produce an
agreement.
The District Court then granted, in part, petitioner's mo-
Page 439 U.S.
1081 , 1083
tion for sanctions. It concluded that the answers filed by the
EEOC were merely an attempt to postpone an adequate response until
after the EEOC's own discovery was completed. It further found that
"the EEOC has not in fact answered the interrogatories and has
wilfully ignored the Court's order . . . denying the requested
stay." 76 F.R.D. 143, 144 (1977). The court thought it obvious that
the EEOC had made "broad-based allegations, without any basis for a
belief in those allegations, and then . . . invade[d] the
defendant's records in an attempt to determine whether or not a
cause of action exists." Ibid. Rather than dismissing the complaint
outright, as requested by petitioner, the court ordered (1) that at
the trial on the merits it should be taken as established that
petitioner had not discriminated against anyone, with the possible
exception of the individuals named in the administrative charges
before the EEOC; (2) that the EEOC would not be permitted to
introduce evidence of discrimination against anyone other than
those named individuals; and ( 3) that the EEOC should pay
attorney's fees of $500. Sanctions of this kind are expressly
authorized by Rule 37(d).
The EEOC filed a notice of appeal from the District Court's
order. It argued to the Court of Appeals for the Eighth Circuit
that the sanctions order was appealable either as a collateral
order under Cohen v. Beneficial Loan Corp.,
337 U.S. 541 (1949), or
as a denial of an injunction under 28 U.S.C. 1292(a)(1). Petitioner
responded that the Court of Appeals lacked jurisdiction because the
sanctions order was not appealable before final judgment.
The Court of Appeals declined to decide the jurisdictional issue
as presented by the parties. Instead, it stated, "we find this an
appropriate case for the issuance of a writ of mandamus."
577 F.2d
43, 45 ( 1978). The court offered little by way of
justification for its issuance of the writ, a remedy not requested
by the EEOC. It merely noted its belief that petitioner, as well as
the EEOC, had "displayed dilatory tactics
Page 439 U.S.
1081 , 1084
during the discovery period," id., at 48, and that the
procedures leading to the sanctions had been irregular. [
Footnote 1] It also disagreed with the
District Court's finding that the EEOC's conduct amounted to
willful disobedience.
II
The opinion of the Court of Appeals appears to be seriously at
odds with the decisions of this Court in two respects, both of
which are important to federal judicial policy.
A.
The court below seems to have committed the compound error of
using the mandamus power to mask a questionable jurisdictional
decision. Our cases have emphasized the practical importance of the
final-judgment rule of 28 U.S.C. 1291, which goes to the
jurisdiction of the courts of appeals. As recently as last Term we
unanimously agreed that " '[r] estricting appellate review to
"final decisions" prevents the debilitating effect on judicial
administration caused by piecemeal disposition of what is, in
practical consequence, but a single controversy.' " Coopers &
Lybrand v. Livesay,
437 U.S.
463, 471 (1978 ), quoting Eisen v. Carlisle & Jacquelin,
417 U.S.
156, 170 (1974). Whether the District Court's sanctions order
comes within either of the exceptions to the final-judgment rule
suggested by the EEOC appears to be highly questionable. Rather
than dealing with the merits of
Page 439 U.S.
1081 , 1085
this important and dispositive issue, the Court of Appeals
simply side- stepped it by treating the appeal as a petition for a
writ of mandamus. This action is difficult to square with the
well-established rule that mandamus "is not to be used as a
substitute for appeal." Schlagenhauf v. Holder,
379 U.S.
104, 110 (1964).
It also seems evident that this was not an appropriate case for
mandamus. " '[O]nly exceptional circumstances amounting to a
judicial " usurpation of power" will justify the invocation of this
extraordinary remedy.' " Kerr v. United States District Court,
426 U.S.
394, 402, 96 S. Ct. 2119 (1976), quoting Will v. United States,
389 U.S.
90, 95 (1967). The petitioning party must show, among other
things, that his right to the issuance of the writ is " 'clear and
indisputable.' " Kerr v. United States District Court, supra, 426
U.S. at 403, 96 S. Ct. at 2124, quotingBankers Life & Cas. Co.
v. Holland,
346 U.S.
379, 384 (1953). A litigant does not have a clear and
indisputable right to a particular result in matters committed to
the discretion of the District Court. Will v. Calvert Fire Ins.
Co.,
437 U.S.
655, 665-666 (1978) (plurality opinion). As the decision to
impose sanctions under Rule 37 is discretionary with the District
Judge, see National Hockey League v. Metropolitan Hockey Club,
Inc.,
427 U.S.
639, 642 (1976), and the sanctions ordered in this case are
among those expressly authorized by Rule 37, the Court of Appeals'
resort to mandamus to review what appears to have been an otherwise
unappealable order is highly suspect.
B
The decision below is difficult to reconcile with our recent
decision in National Hockey League v. Metropolitan Hockey Club,
Inc., supra. In that case an antitrust action was dismissed under
Rule 37 because of the plaintiff's failure to comply with discovery
orders. The Court of Appeals reversed, apparently finding this
sanction too harsh. We summarily reversed the Court of Appeals. We
stressed that "the most
Page 439 U.S.
1081 , 1086
severe in the spectrum of sanctions . . . must be available to
the district court in appropriate cases, not merely to penalize
those whose conduct may be deemed to warrant such a sanction, but
to deter those who might be tempted to such conduct in the absence
of such a deterrent." 427 U.S., at 643, 96 S. Ct. at 2781. The
sanctions order in this case is less severe than that approved in
National Hockey League, and it was imposed for a virtually
identical reason: a willful failure to answer interrogatories.
Although the Court of Appeals rejected the District Court's finding
that the EEOC had willfully disregarded the court's order , "[t]he
question . . . is not whether this Court, or whether the Court of
Appeals, would as an original matter have [imposed the sanctions];
it is whether the District Court abused its discretion in so
doing." Id., at 642, 96 S. Ct. at 2780. Neither the EEOC nor the
Court of Appeals has convincingly demonstrated that an abuse of
discretion occurred here.
III
The decision of the Court of Appeals in this case not only
appears to be inconsistent with our recent decisions, but also
could discourage efforts to curb the widespread abuse of discovery
that is a prime cause of delay and expense in civil litigation. The
extent of this abuse has been of increasing concern. It was the
subject of close attention at the Pound Conference held in St.
Paul, Minn., in April 1976, and it was scrutinized further by the
Pound Conference Follow-Up Task Force. [
Footnote 2] The Task Force, chaired by then Judge Griffin
B. Bell, recommended that the appropriate organizations of the
bench and bar should "accord a high priority to the problem of
abuses in the use of pretrial procedures . . . with a view to
appropriate action by state and federal courts." 3 Fol-
Page 439 U.S.
1081 , 1087
lowing the studies that ensued the Section of Litigation of the
American Bar Association submitted recommendations for substantial
changes in the provisions of the Rules of Civil Procedure
respecting pretrial discovery. [
Footnote 4] The Committee on Rules of Practice and
Procedure of the Judicial Conference, after considering these and
other recommendations, has circulated for comment a number of
proposed amendments to the Rules. [
Footnote 5] In a letter to the Committee, Attorney General
Bell stated:
"It has been my experience as a judge, practicing lawyer and now
as Attorney General that the scope of discovery is far too broad
and that excessive discovery has significantly contributed to the
delays, complexity and high cost of civil litigation in the federal
courts." 6
I have referred briefly to the concern that exists with respect
to abuse of discovery to emphasize that, at least until rule
changes can be made, there is a pressing need for judicial
supervision in this area. The district court before which a case is
being litigated is in a far better position than a court of appeals
to supervise and control discovery and to impose
Page 439 U.S.
1081 , 1088
sanctions for its abuse. Here, the District Court found that the
EEOC had " in fact [failed to] answe[r] . . . interrogatories" and
also had " wilfully ignored the Court's order." 76 F.R.D., at 144.
It is a serious matter for a court of appeals to undercut a
district court's authority on questions of this kind, which are
peculiarly within its discretion and competency. [
Footnote 7]
IV
Accordingly, because it appears that the decision below
misapplied the relevant decisions of this Court with respect to
interlocutory appeals and the use of mandamus, and also because its
decision may deter district courts from imposing appropriate
sanctions promptly where abuses of discovery occur, I would grant
the petition.
Footnotes
Footnote 1 The Court of
Appeals thought the procedures had been irregular because, in its
opinion, the EEOC had not been given a sufficient opportunity to
present its side of the story before sanctions were imposed . The
District Court's action, however, was premised on the conclusion
that the EEOC had simply persisted in doing what it had been
forbidden to do when the motion to stay was denied. Thus, even if
the Court of Appeals were correct that the adversary proceedings
that preceded the sanctions order may have been unduly truncated, a
district court should not be required to prolong argument over a
matter within its discretion and already decided.
Footnote 2 See Report of
Pound Conference Follow-Up Task Force, 74 F.R.D. 159, 191-192
(1976).
Footnote 3 Id., at 192. See
also Erickson, The Pound Conference Recommendations: A Blueprint
for the Justice System in the Twenty-first Century, 76 F.R.D. 277,
288-290 (1978); Bell, The Pound Conference Follow- Up: A Response
from the United States Department of Justice, 76 F.R.D. 320, 328
(1978).
Footnote 4 See ABA Report of
the Special Committee for the Study of Discovery Abuse, Section of
Litigation (1977). Comments on these proposals were offered by the
Justice Department's Office for Improvements in the Administration
of Justice, see United States Department of Justice, The Annual
Report of the Attorney General of the United States 1977, pp. 13-15
( 1978), and by the Board of Regents of the American College of
Trial Lawyers.
Footnote 5 See Judicial
Conference of the United States Committee on Rules of Practice and
Procedure, Preliminary Draft of Proposed Amendments to the Federal
Rules of Civil Procedure (1978).
Footnote 6 Letter to Hon.
Roszel C. Thomsen, Chairman, Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States, June 27,
1978, from Hon. Griffin B. Bell.
Footnote 7 One need not
disagree with the Court of Appeals that petitioner also was at
fault in the apparently acrimonious discovery disputes in this
case. The District Court supervising the trial concluded that the
EEOC's abuse was flagrant enough to warrant sanctions. That
petitioner's hands may not have been entirely clean would not seem
to justify the drastic action of overturning this decision by
mandamus.
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