UNIVERSITY OF PENNSYLVANIA, PETITIONER V. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION No. 88-493 In the Supreme Court of the United States October Term, 1988 On Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the Respondent TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory provisions involved Statement Summary of argument Argument: I. Comity does not invariably require dismissal of the second of two overlapping actions filed in different federal courts II. Dismissal of the EEOC's subpoena enforcement action would undercut the enforcement of Title VII and violate principles of comity, equity, and sound judicial administration A. The application of a first-filed rule in this case would undercut the procedure that Congress established to assure prompt and efficient enforcement of Commission subpoenas B. Granting priority to petitioner's preemptive lawsuit would disserve comity and wise judicial administration C. The court of appeals properly relied on the fact that an obvious and admitted objective of petitioner's preemptive suit was to avoid unfavorable federal precedent III. The court of appeals' decision created no risk of duplication of judicial effort or inconsistent judgments and did not violate any other considerations of wise judicial administration A. Petitioner's rulemaking claims were irrelevant to the enforceability of the Tung subpoena B. There was no reason to require the subpoena's enforceability to be determined in the same action as petitioner's separable rulemaking claims IV. The Court should not adopt a procedural rule that requires the Commission to establish the proper venue for a subpoena enforcement action in a forum in which an anticipatory suit has been filed Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A27) is reported at 850 F.2d 969. The orders of the district court (Pet. App. A34-A35) are unreported. The determination of the Equal Employment Opportunity Commission denying petitioner's application for modification of the Commission's subpoena (Pet. App. A29-A33) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 23, 1988. A petition for rehearing was denied on August 11, 1988 (Pet. App. A28). The petition for a writ of certiorari was filed on September 19, 1988, and was granted on December 12, 1988, limited to the second question stated in the petition. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of Sections 706(b), 709(a) and 710 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(b), 2000e-8(a), 2000e-9, and of Section 11 of the National Labor Relations Act, 29 U.S.C. 161, which is incorporated by reference in 42 U.S.C. 2000e-9, are reproduced in an appendix to respondent's brief in opposition (Br. Opp. App. 1a-3a). QUESTION PRESENTED Whether the district court was obligated to dismiss the EEOC's subpoena enforcement action in deference to petitioner's anticipatory suit, which was brought for the purpose of avoiding unfavorable legal precedent when the enforcement action was imminent. STATEMENT This subpoena enforcement action was initiated by the Equal Employment Opportunity Commission (the Commission or the EEOC) to enforce a subpoena served on petitioner, the University of Pennsylvania, in accordance with Title VII of the Civil Rights Act of 1964. The subpoena sought information relevant to a charge of discrimination filed by Rosalie Tung, an associate professor who was denied tenure by petitioner. The district court entered a judgment enforcing the subpoena, and the court of appeals affirmed. Petitioner maintains that the lower courts erred by failing to dismiss this action in deference to an action that it filed in the District of Columbia when subpoena enforcement proceedings were imminent. 1. Under Title VII, the Commission is responsible for investigating charges of discrimination filed by individuals or members of the Commission. /1/ To enable the Commission to discharge this responsibility, Title VII grants it access to "any evidence of any person being investigated * * * that relates to unlawful employment practices covered by (the Act) and is relevant to the charge under investigation." /2/ The Commission also has the authority to issue subpoenas "for any evidence of any person being investigated * * * that relates to any matter under investigation." /3/ Under the statute and applicable regulations, an employer who wishes to challenge such a subpoena must apply to the Commission, not a court, for revocation or modification of the subpoena. /4/ If an employer refuses to provide information responsive to a subpoena, the Commission is empowered to apply to the district court for the district within which "the inquiry is carried on" or the "person guilty of * * * refusal to obey is found or resides or transacts business" for an order compelling compliance. /5/ 2. Rosalie Tung, an Associate Professor in the Management Department of the Wharton School, was denied tenure by a vote of petitioner's Personnel Committee. In August 1985, she filed a charge of discrimination with the Commission (J.A. 23-26). As subsequently amended, the charge alleged that Tung had been the subject of discrimination on the basis of race, sex, and national origin (J.A. 27-28). In her charge, Tung expressed the belief that her Department Chairman, who she claimed had sexually harassed her, had submitted a negative letter to the Personnel Committee (J.A. 28-29). The charge also alleged that Tung's qualifications were equal to or better than those of five named male candidates for tenure who had received more favorable treatment (ibid.). Tung alleged that she had been given no reason for the decision to deny her tenure, but had discovered that the Personnel Committee had attempted to justify its decision "on the ground that the Wharton School is not interested in China-related research" (J.A. 29). This explanation, the charge suggested, was a pretext for discrimination -- i.e., "simply their way of saying they do not want a Chinese-American, Oriental, Woman in their school" (ibid.). The EEOC began an investigation into Tung's charge, and requested relevant information from petitioner. When petitioner refused to provide some of that information, the Commission issued a subpoena seeking: (i) copies of Tung's tenure file; (ii) copies of the tenure files of the five male candidates for tenure identified in Tung's charge; (iii) the identity, tenure status and qualifications of those individuals who comprised the tenure committees for petitioner's Management Department from June 1984 to the date of the subpoena; and (iv) the identity of all members of the Personnel Committee (J.A. 21-22). Petitioner refused to produce certain documents responsive to the first two of these specifications. It applied to the Commission for modification of the subpoena to exclude what it termed "confidential peer review information" -- specifically, letters of evaluation and "documents reflecting the internal deliberations of faculty committees considering applications for tenure" (C.A. J.A. 8-9) -- relating to Tung and the five male tenure candidates named in Tung's charge. On April 10, 1987, the Commission denied petitioner's application (Pet. App. A29-A33). The Commission explained that the documents that petitioner had withheld were "needed in order to make a determination on the allegations of employment discrimination made by Ms. Tung in her charge" -- i.e., "whether Ms. Tung was treated differently than those who received tenure" (id. at A30). Requiring production of this information, the Commission continued, was "fully supported by the applicable law in the Third Circuit, where this charge arose" (id. at A30-A31, citing EEOC v. Franklin & Marshall College, 775 F.2d 110 (3d Cir. 1985), cert. denied, 476 U.S. 1163 (1986)). The Commission refused to balance its need for this information against petitioner's asserted interest in confidentiality; it "reject(ed) such an approach in the instant case as it would impair the Commission's ability to fully investigate this charge of discrimination * * *" (Pet. App. A33). The Commission requested compliance with the subpoena within 20 days to avoid subpoena enforcement proceedings (ibid.). 3. Three days before the 20-day grace period expired, petitioner filed an action in the United States District Court for the District of Columbia. The complaint sought an order quashing the Commission's subpoena (J.A. 12-13, 14). It also requested declaratory relief on the basis of an allegation that the Commission had adopted "a rule which requires total and absolute disclosure by colleges and universities of all peer evaluation material used in making tenure decisions" (J.A. 4). This rule, the complaint alleged, had been promulgated in violation of the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. 553, and infringed petitioner's rights under the First and Fifth Amendments (J.A. 4, 8-12, 13-14). The Commission moved to dismiss this action on the grounds of improper venue, lack of subject matter jurisdiction, and failure to state a claim (C.A. Supp. J.A. 217-245). 4. On June 19, 1987, the Commission applied to the United States District Court for the Eastern District of Pennsylvania, by means of an application for an order to show cause, for an order enforcing its subpoena (J.A. 15-30). Petitioner moved to dismiss, arguing that the "first-filed rule" required dismissal of the subpoena enforcement action in view of the pendency of the District of Columbia suit (C.A. J.A. 29-43). On September 1, 1987, the court entered a brief order enforcing the Commission's subpoena and denying petitioner's motion to dismiss "as moot." Pet. App. A35. Two days later, the District of Columbia district court -- also without an opinion -- denied the EEOC's motion to dismiss petitioner's action (J.A. 31). That court later refused to stay its proceedings pending petitioner's appeal to the Third Circuit (J.A. 32). 5. The Third Circuit affirmed the district court's order denying the motion to dismiss the subpoena enforcement action and enforcing the EEOC's subpoena (Pet. App. A1-A27). a. After recounting the history of the Third Circuit's application of the "first-filed rule," the panel noted that courts have "'the power' to enjoin the subsequent prosecution of proceedings involving the same parties and the same issues already before another court." Pet. App. A3 (quoting Triangle Conduit & Cable Co. v. National Elec. Products Corp., 125 F.2d 1008, 1009 (3d Cir.), cert. denied, 316 U.S. 676 (1942)). But, the court continued, that authority "is not a mandate directing wooden application of the rule without regard to rare or extraordinary circumstances, inequitable conduct, bad faith, or forum shopping" (ibid.). Having concluded that the application of the "first-filed rule" was discretionary, the court of appeals held that the district court did not abuse its discretion by refusing to dismiss the Commission's subpoena enforcement action (Pet. App. A4, A14). The court of appeals found that "(t)he timing of the University's filing in the District of Columbia indicates an attempt to preempt an imminent subpoena enforcement in the Eastern District of Pennsylvania" (id. at A16), and noted petitioner's acknowledgement that the decision in Franklin & Marshall "presented a problem with respect to its plan to contest the EEOC's refusal to modify the subpoena" (id. at A17). The court expressed concern that, if the District of Columbia Circuit would refuse to enforce the subpoena, "litigants from throughout the country will avoid local enforcement actions by first obtaining a favorable ruling in the District of Columbia" (ibid.), even though there was "no indication that Congress intended the District of Columbia courts to play such a pivotal role in Title VII enforcement" (id. at A18). The court concluded (ibid.): Because the first-filed rule is based on principles of comity and equity, it should not apply when at least one of the filing party's motives is to circumvent local law and preempt an imminent subpoena enforcement action. The court found further support for its conclusion in "two themes emphasized by Congress when it enacted Title VII" (Pet. App. A18). Application of the "first-filed rule" in this case, the court explained, would "undermine the congressional policy favoring prompt resolution of discrimination claims" and would discourage meaningful conciliation (id. at A19). The court concluded that "(t)he purposes of Title VII, along with this Court's precedent and the principles underlying the first-filed rule, are better served by rejecting the University's effort to dismiss the second-filed suit" (ibid.). b. Turning to the enforceability of the Commission's subpoena, the court of appeals ruled that petitioner was entitled to assert the First Amendment as a defense to compliance with the Commission's subpoena, but concluded that the Third Circuit's decision in Franklin & Marshall College required rejection of that defense (Pet. App. A22). The court did not reach the merits of petitioner's Administrative Procedure Act claims, holding that those claims did not constitute a valid defense to enforcement of the subpoena. The court explained that "(p)ursuant to an express congressional grant of authority, the EEOC is empowered to subpoena records relating to a charge of discrimination" (id. at A25). "Invalidation of an alleged EEOC subpoena 'rule' in an enforcement proceeding would not," therefore, "overrule the EEOC's statutory grant of investigative subpoena power in individual cases" (ibid.). The court found that the Commission had made the showings required by the statute for enforcement of its subpoena in this case, and that "consideration of the type of APA defense asserted by the University would impede the EEOC's statutory mandate to promptly investigate whether a Title VII violation has occurred" (ibid.). Finally, the court of appeals remanded the case to the district court for consideration of whether petitioner should be allowed to delete names and other identifying information from the disputed records before complying with the subpoena (Pet. App. A26-A27). With this exception, the court affirmed the district court's order enforcing the EEOC's subpoena (id. at A27). 6. This Court granted the petition for a writ of certiorari on December 12, 1988, limited to the second question presented, which raises the issue whether the lower courts erred in failing to dismiss this action (J.A. 33). SUMMARY OF ARGUMENT When cases involving identical issues are pending before two federal district courts, the general principle has been to avoid duplicative litigation. In many cases, that goal may be served by allowing only the first of two overlapping actions to proceed. That alternative, however, is not invariably the correct one. Wise judicial administration does not counsel any rigid, mechanical solution to such problems. In this case, petitioner filed a challenge to the Commission's subpoena in the District of Columbia, joined with other claims addressed to an allegedly unlawful Commission rule, when the filing of a subpoena enforcement action was imminent. The lower courts properly refused to dismiss the subsequent enforcement proceeding in deference to petitioner's anticipatory suit. Dismissal of the enforcement suit would have undercut the statutory procedure established by Congress to enable the Commission to enforce Title VII. Indeed, in an amendment to the Act passed in 1972, Congress withdrew the employer's right under the original statute to file an action challenging a request by the Commission for information. Petitioner and other employers should not be permitted to nullify this amendment, and secure dismissal of an action filed in accordance with Title VII, by filing a preemptive action under the Declaratory Judgment Act. Claims for anticipatory remedies may not be employed to undermine the avenues of judicial review that Congress has prescribed. Granting priority to petitioner's District of Columbia suit would also disserve the interests of comity. Applying a "first-filed rule" to a preemptive suit of this kind tends to multiply litigation in the federal courts and to discourage responsible efforts to settle disputes without litigation. Anticipatory relief is particularly inappropriate when it is sought as a means of avoiding a particular circuit's precedent. The interests of the federal judicial system and comity are served when federal courts refuse to allow anticipatory remedies to be used to transfer disputes for which Congress has prescribed a particular venue. By proceeding in this action, the lower courts did not create any risk of inconsistent judgments or duplication of effort. Petitioner's rulemaking claims, which are no defense to enforcement of the subpoena, will be heard and determined only in the District of Columbia. Questions concerning the enforceability of the subpoena were properly resolved by the courts below, and the District of Columbia courts will not address those questions. For related reasons, the usual preference for comprehensive, consolidated litigation does not apply to this case. Because any judgment regarding the Commission's alleged rule of disclosure could not affect the enforceability of the subpoena, an order compelling compliance should not await the time when petitioner's separable and immaterial rulemaking claims are ripe for decision. Petitioner's argument that the Commission should have been prohibited from filing its statutory enforcement action in the Eastern District of Pennsylvania -- and should instead have been required to establish its right to proceed in that forum through motions filed in the District of Columbia action -- is simply a reformulation of its proposed first-filed rule in a "procedural" guise. The effect of that proposal would be to substitute, for the summary and certain subpoena enforcement procedure that Congress provided, a circuitous procedural route that would necessarily pass through a forum of petitioner's choosing. That burdensome procedural proposal suffers from the very same shortcomings as petitioner's substantive first-filed rule and is even more rigid in its application. ARGUMENT I. COMITY DOES NOT INVARIABLE REQUIRE DISMISSAL OF THE SECOND OF TWO OVERLAPPING ACTIONS FILED IN DIFFERENT FEDERAL COURTS When cases involving identical issues are pending before two federal district courts, "though no precise rule has evolved, the general principle is to avoid duplicative litigation." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). In most "cases of concurrent jurisdiction, the Court which first has possession of the subject must decide it." Smith v. M'Iver, 22 U.S. (9 Wheat.) 532, 535 (1824). /6/ Nevertheless, this principle of comity is not absolute. As this Court stated in Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-184 (1952): Wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems. The factors relevant to wise administration here are equitable in nature. Necessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts. /7/ Often citing Kerotest, most courts have found that comity does not invariably require a court to grant priority to the first of two overlapping actions. /8/ Although the lower courts have used various formulations in describing the extent of the priority due to the first-filed suit, the Ninth Circuit's statement is typical (Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982) (quoting Church of Scientology of California v. United States Department of the Army, 611 F.2d 738, 750 (9th Cir. 1979)): Normally sound judicial administration would indicate that when two identical actions are filed in courts of concurrent jurisdiction, the court which first acquired jurisdiction should try the lawsuit and no purpose would be served by proceeding with a second action. However, this "first to file" rule is not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration. * * * * * * "Circumstances and modern judicial reality * * * may demand that we follow a different approach from time to time * * *." As these authorities reflect, comity does not embody "a firm legal principle requiring dismissal of the second-filed suit without regard to the circumstances of the case" (Pet. App. A14). When there are "factors of substance" (Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 424 (2d Cir. 1965)), that justify proceeding with the second of two suits, comity does not require otherwise. II. DISMISSAL OF THE EEOC'S SUBPOENA ENFORCEMENT ACTION WOULD UNDERCUT THE ENFORCEMENT OF TITLE VII AND VIOLATE PRINCIPLES OF COMITY, EQUITY, AND SOUND JUDICIAL ADMINISTRATION Petitioner's central contention is that the court of appeals misapplied the principle of comity. In its view, comity requires a court to dismiss the second of two overlapping actions, unless a different result can be justified in terms of "principles of sound judicial administration" (Pet. Br. 17-18). Petitioner also advocates a narrow view of the relevant "judicial administration calculus" (id. at 25). According to petitioner, courts must focus only on "conserving judicial resources, avoiding inconsistent results, and facilitating the comprehensive disposition of litigation" (id. at 18). Though these are often legitimate concerns, they do not exhaust the considerations relevant to the disposition of overlapping lawsuits. The lower courts' refusal to dismiss this subpoena enforcement action was fully justified by the need to preserve the integrity of the procedures Congress created to enforce Title VII -- a statute which, remarkably, is not cited once in petitioner's 40-page brief. Moreover, as the court of appeals emphasized, neither comity nor sound judicial administration supports the application of a "first-filed rule" when, as in this case, the effect would be to encourage preemptive lawsuits and discourage attempts to resolve disputes without litigation. A. The Application Of A "First-Filed Rule" In This Case Would Undercut The Procedure That Congress Established To Assure Prompt And Efficient Enforcement Of Commission Subpoenas Title VII and accompanying regulations establish a procedure for resolving disputes over the enforceability of Commission subpoenas. Under that procedure, an employer has the right to seek modification or revocation from the Commission, but not from a court. The Act specifies the party who is to initiate litigation over a subpoena -- the Commission -- and the forum in which that action is to be brought -- the district court for the district in which "the inquiry is carried on" or in which the person subpoenaed "is found or resides or transacts business." /9/ In this case, petitioner filed an anticipatory suit in the District of Columbia to avoid having the enforceability of the subpoena determined in accordance with this statutory procedure. It argues, nevertheless, that the principle of comity requires a court to dismiss the action prescribed by Title VII because it was not first in time. That argument is without merit. As between an anticipatory action and the enforcement action prescribed by Title VII, a court should grant priority to the action filed in accordance with the Act. 1. This Court has refused to allow anticipatory lawsuits to displace statutory procedures for determining an agency's entitlement to information. In Reisman v. Caplin, 375 U.S. 440 (1964), the Court directed the dismissal of an anticipatory suit challenging an IRS summons, holding that the enforceability of the summons should be determined if and when the IRS filed an action to enforce. The Court rejected the claim that the statutory enforcement proceeding would not provide an adequate opportunity to contest the legality of the summons, and remitted the plaintiffs to the procedures established by Congress in the Internal Revenue Code (id. at 450): Finding that the remedy specified by Congress works no injustice and suffers no constitutional invalidity, we remit the parties to the comprehensive procedure of the Code, which provides full opportunity for judicial review before any coercive sanctions may be imposed. /10/ Consistent with Reisman, the lower courts have consistently refused to entertain anticipatory challenges to administrative subpoenas issued and enforced through procedures indistinguishable from those prescribed by Title VII. /11/ The logic of these cases forecloses the claim that comity requires the dismissal of an administrative enforcement proceeding in deference to a prior-filed anticipatory suit. If it is impermissible to allow an anticipatory action to proceed when no enforcement proceeding has been brought, as Reisman held, the pendency of such an action cannot require dismissal of a later-filed enforcement suit. Consistent with this reasoning, the lower courts have refused to grant priority to suits designed to anticipate issues that have also been raised in pending administrative enforcement proceedings, without regard to the order of filing. /12/ 2. To dismiss this statutory enforcement proceeding on the strength of a first-filed rule would seriously impede the Commission's ability to enforce Title VII. That Act sets forth "'an integrated, multistep enforcement procedure' that enables the Commission to detect and remedy instances of discrimination." EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (quoting Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 359 (1977)). The Commission's statutory access to "any relevant evidence," backed by reliable procedures for enforcing its subpoenas, is a critical element of this enforcement scheme. To preserve the effectiveness of the Commission's investigatory authority, this Court and the lower courts have consistently rejected efforts to burden subpoena enforcement proceedings with cumbersome procedures. For instance, in Shell Oil, the Court rejected an interpretation of the statute and applicable regulations that would have made enforcement of a subpoena dependent upon the contents of a charge of discrimination. /13/ Recognizing that litigation over the form of the charge and the possibility of subsequent appeals "would substantially slow the process by which the EEOC obtains judicial authorization to proceed with its inquiries," the Court was unwilling to "place a potent weapon in the hands of employers * * * who wish * * * to delay as long as possible investigations by the EEOC." 466 U.S. at 81. Accord id. at 93 (O'Connor, J., concurring in part and dissenting in part) (the Commission has a "strong interest in avoiding a 'minitrial' on every discovery request"). The Court also reaffirmed that the Commission is entitled to enforcement of its subpoenas without any threshold showing on the merits of a charge. /14/ In keeping with the Act's emphasis on effective enforcement, an EEOC subpoena enforcement action "should be only a skirmish, quickly brought and just as quickly ended." In re EEOC, 709 F.2d 392, 402 (5th Cir. 1983). If a first-filed rule were applied so as to require dismissal of a subpoena enforcement action whenever an employer initiated a preemptive suit, it would be "a potent weapon in the hands of employers" who wish to delay the Commission's investigations. EEOC v. Shell Oil Co., 466 U.S. at 81. It is not difficult to plead claims for declaratory or injunctive relief based on allegations that a subpoena or associated regulation threatens to infringe an employer's constitutional rights. If the mere filing of such claims required the Commission to seek enforcement of its subpoena in the same action, at the time and place of the employer's choosing, recalcitrant employers would often file preemptive suits. Those filings would also undoubtedly be accompanied by attempts to complicate enforcement of a subpoena with the motions practice and discovery that are typical of civil litigation but totally out of place in a summary subpoena enforcement proceeding. In light of the number of investigations that the Commission conducts, its reliance on voluntary compliance with subpoenas, and the large number of subpoena enforcement proceedings that it initiates each year, the rule for which petitioner argues would seriously damage the Commission's ability to discharge its responsibilities under Title VII. /15/ 3. The history of Title VII's enforcement provisions reinforces this conclusion. In its original form, Title VII expressly allowed either the employer or the Commission to initiate judicial proceedings to determine the enforceability of the Commission's requests for information. The Commission sought information by issuing a "demand." /16/ When a demand had been made, the employer was authorized by the Act to file "a petition for an order * * * modifying or setting aside such demand" in federal court in the district in which it resided, was found, or transacted business. The Commission could seek an order requiring compliance with the demand in the same forum. /17/ In 1972, however, Congress repealed this system of demands for evidence and dual review, and gave the Commission the powers exercised by the National Labor Relations Board under the National Labor Relations Act. The employer no longer has a right under Title VII to challenge the legality of a request for information, which now takes the form of a subpoena, in a court. /18/ Only the Commission is authorized by Title VII to seek judicial review. /19/ Petitioner's formulation of the first-filed rule would make this amendment meaningless. If petitioner is right, employers would not only be free to bring the very action, under the authority of the Declaratory Judgment Act, that Congress withdrew under Title VII in 1972, but also could choose from a broader range of forums and could even secure the dismissal of any subsequent subpoena enforcement action filed in accordance with the procedure established by Title VII. The principle of comity surely cannot require a result so clearly at odds with the 1972 amendments to Title VII. 4. Petitioner does not dispute that its action included a request for an order quashing the Tung subpoena and was designed, in part, to secure a ruling on its defenses to that subpoena in a proceeding other than the Commission's imminent action to enforce. Nevertheless, it contends that because its action "was filed for purposes other than just preempting an enforcement proceeding" (Pet. Br. 31 (emphasis added)), the suit is not fairly described as preemptive. This exercise in semantics is beside the point. The reasons that require courts to respect the integrity of Title VII's enforcement procedures do not vanish simply because an employer joins additional claims to a request for an order quashing a Commission subpoena. Moreover, if those claims are defenses to the subpoena, they can and should be asserted in the subpoena enforcement proceeding. If they are not, as in this case (pp. 31-33, infra), they are immaterial to the subpoena's enforceability and should not impede the enforcement of the subpoena in the statutory proceeding Congress provided for that purpose. B. Granting Priority To Petitioner's Preemptive Lawsuit Would Disserve Comity and Wise Judicial Administration Even apart from Title VII, considerations of wise judicial administration and comity support the lower courts' refusal to dismiss this case in deference to petitioner's anticipatory lawsuit. Many courts have refused to apply a first-filed rule to a declaratory judgment action filed when a coercive suit was imminent. /20/ Such preemptive suits serve little useful purpose. Granting them priority encourages anticipatory filings, promotes conflicts among courts, and punishes responsible efforts to avoid litigation. Consequently, adherence to a first-filed rule in this context actually undercuts comity and wise judicial administration (see Pet. App. A18, A19). As the Seventh Circuit explained in dismissing a preemptive suit filed under circumstances similar to those of this case: This circuit has never adhered to a rigid "first to file" rule. We decline * * * to adopt such a rule here. As we have noted before, "(t)he wholesome purpose of (the Declaratory Judgment Act) would be aborted by its use as an instrument of procedural fencing either to secure delay or to choose a forum." * * * Although a "first to file" rule would have the virtue of certainty and ease of application, * * * the cost -- a rule which will encourage an unseemly race to the courthouse and, quite likely, numerous unnecessary suits -- is simply too high. /21/ 1. As the court of appeals recognized, these concerns are fully applicable to this case. Petitioner is "in the position of one who desires an anticipatory adjudication, at the time and place of its choice, of the validity of the defenses it expects to raise against * * * claims it expects to be pressed against it." Hanes Corp. v. Millard, 531 F.2d 585, 592-593 (D.C. Cir. 1976). However, "(t)he anticipation of defenses is not ordinarily a proper use of the declaratory judgment procedure. It deprives the plaintiff of his traditional choice of forum and timing, and it provokes a disorderly race to the courthouse." Ibid. Comity does not require courts to encourage such filings. This Court has made clear that a declaratory judgment is a discretionary remedy. Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 241 (1952). In determining whether to entertain a suit seeking such relief, a court may properly consider whether the issues in dispute will or can be resolved in a pending or foreseeable coercive suit, whether relief will serve the purposes of the Declaratory Judgment Act, and whether other interests of the judicial system will be harmed by proceeding with the action. See Brillhart v. Excess Ins. Co., 316 U.S. 491, 495 (1942). The exercise of discretion by the courts in which overlapping coercive and declaratory suits have been filed should not be replaced with a rigid first-filed rule. /22/ Any potential conflicts can be addressed through sensitivity to the interests at stake without an absolute rule of priority. See Kerotest, 342 U.S. at 185 ("apprehension (that) implies a lack of discipline and disinterestness on the part of the lower courts (is) hardly a worthy or wise basis for fashioning rules of procedure"). 2. The judicial system's substantial interest in encouraging the settlement of disputes without litigation also supports denying priority to petitioner's District of Columbia action. Petitioner filed that action during a grace period that the Commission had extended to give it an opportunity to comply voluntarily with the subpoena. Making the order of filing controlling in this situation "reward(s) Pearl Harbor tactics at the expense of the Marquis of Queensberry rules." Brierwood Shoe Corp. v. Sears, Roebuck & Co., 479 F. Supp. 563, 568 (S.D.N.Y. 1979). /23/ The courts' general interest in promoting settlements is buttressed, in this case, by Title VII's policy of encouraging conciliation of disputes. See Pet. App. A19. In Shell Oil Co., supra, all members of this Court recognized the importance that Congress attached to the voluntary resolution of disputes arising under this statute. /24/ This policy is not limited to disputes over the merits of a charge of discrimination. The Commission relies heavily on voluntary compliance with its subpoenas. When the Commission denies an employer's application for revocation or modification of an EEOC subpoena, it routinely gives the employer a grace period to produce responsive information before initiating a subpoena enforcement proceeding. This obviously sensible practice would become untenable if an employer could obtain dismissal of the subpoena enforcement proceeding by filing a preemptive suit during such a grace period. Neither comity nor sound judicial administration requires courts to apply a first-filed rule where, instead of mitigating conflicts between federal courts, it promotes anticipatory filings and discourage attempts to avoid litigation. The court of appeals was thus on strong ground when it concluded that "the principles underlying the first-filed rule" would be "better served by rejecting the University's effort to dismiss the second-filed suit" (Pet. App. A19). C. The Court Of Appeals Properly Relied On The Fact That An Obvious And Admitted Objective Of Petitioner's Preemptive Suit Was To Avoid Unfavorable Federal Precedent Petitioner contends that the court of appeals should not have relied on the fact that an admitted purpose of its District of Columbia suit was to avoid the Third Circuit's decision in Franklin & Marshall, Pet. Br. 23-30. /25/ Relying principally on Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), petitioner argues that "(c)onsideration of applicable law simply has no role to play in the judicial administration calculus" (Pet. Br. 25). There is no merit to this rigid view of comity. In deciding whether to grant priority to an anticipatory lawsuit, a court may properly consider whether that suit is designed to displace a traditional plaintiff's choice of forum or to exploit perceived variations in the precedents in the circuits. Nothing in this Court's cases suggests otherwise. In Piper v. Reyno, supra, the issue was whether plaintiffs in a tort action could avoid dismissal of their suit under the doctrine of forum non conveniens by demonstrating that an alternative forum would apply less favorable law to their claims. The Court held (id. at 247): The Court of Appeals erred in holding that plaintiffs may defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry. The Court did not hold that a court applying that doctrine may never consider a party's effort to obtain favorable law. /26/ More important, however, the holding in Piper cannot fairly be applied to anticipatory suits. By concluding in effect that a natural plaintiff does not have the unqualified privilege of choosing the law applicable to his claims, the Court was surely not adopting a rule that a natural defendant may exercise the privilege of choosing applicable law by filing an anticipatory suit. For instance, if a potential defendant in a tort suit initiated a preemptive action in a jurisdiction under which the potential plaintiff's cause of action would be barred, Piper v. Reyno could not possibly require a court hearing the tort plaintiff's subsequently filed suit to ignore the fact that the anticipatory action was designed to deny the natural plaintiff his choice of forum and extinguish his claim. See Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165 (7th Cir.), cert. denied, 395 U.S. 959 (1969). /27/ Many courts have recognized that the Declaratory Judgment Act was not intended to facilitate a natural defendant's attempt to secure a favorable forum for resolution of a dispute that will soon be made the subject of a coercive lawsuit. /28/ Similar considerations apply to attempts to displace Congress's choice of a forum for specific statutory actions. By refusing to grant priority to claims for anticipatory relief that are designed to avoid the law of a particular circuit, a court is not "necessarily and consciously favor(ing) one party (for whom the law of the forum is beneficial) over the other party" (Pet. Br. 26) or suggesting that a plaintiff cannot file suit in "the most appropriate forum * * * but instead must file in the forum where the plaintiff has the least chance of success -- in order to escape a charge of 'forum shopping'" (Pet. Br. 28). Rather, that court is defending the useful predictability that flows from respecting Congress's choice of a forum for a particular type of suit and recognizing the weakness of an anticipatory plaintiff's claim to choose an alternative forum where the precedents may be more favorable. See H.L. Green Co. v. MacMahon, 312 F.2d 650, 652 (2d Cir. 1962), cert. denied, 372 U.S. 928 (1963) ("no litigant has a right to have the interpretation of one federal court rather than that of another determine his case"). The court of appeals properly placed some weight on these considerations in refusing priority to petitioner's action. It acknowledged that petitioner's attempt to avoid application of the Franklin & Marshall decision to this case, "standing alone," might be "insufficient to justify departure from the first filed rule." Pet. App. A17. However, it also recognized that petitioner's strategy "creates several problems that cannot be ignored" (ibid.), including encouraging litigants opposing Commission subpoenas to flock to a particular circuit (id. at A17-A18). This degree of reliance on petitioner's obvious and acknowledged attempt to avoid Franklin & Marshall was entirely legitimate. /29/ III. THE COURT OF APPEALS' DECISION CREATED NO RISK OF DUPLICATION OF JUDICIAL EFFORT OR INCONSISTENT JUDGMENTS AND DID NOT VIOLATE ANY OTHER CONSIDERATIONS OF WISE JUDICIAL ADMINISTRATION. Petitioner also argues that its District of Columbia lawsuit was entitled to priority because that action was broader than the subpoena enforcement action and because allowing both suits to proceed would create a risk of inconsistent judgments. Pet. Br. 18-21. However, the District of Columbia action was broader than the enforcement proceeding only because it included claims -- aimed at an allegedly unlawful Commission "rule" -- that were no defense to the subpoena. There was no reason to dismiss or delay the Commission's statutory enforcement action pending resolution of those claims. Similarly, because the subpoena's enforceability would not be affected in any event by the existence or legality of the Commission's alleged absolute disclosure rule, there could be no meaningful inconsistency between a timely order enforcing the subpoena and any ruling that the District of Columbia might later issue with respect to any such "rule." A. Petitioner's Rulemaking Claims Were Irrelevant To The Enforceability Of The Tung Subpoena As was noted above, Title VII itself grants the Commission access to "any evidence" that is "relevant to the charge under investigation" and the authority to issue a subpoena for "any evidence" that "relates to any matter under investigation." /30/ Thus, the Commission is not required to resort to rulemaking to establish its authority to secure relevant evidence. If information responsive to a subpoena is relevant and not privileged, the Act itself requires its production, and an order enforcing the subpoena must be entered. In this regard, the statute draws no distinction between universities and any other employer. Though educational institutions were initially exempt from the provisions of Title VII, Congress withdrew that immunity in 1972. /31/ The Committee Report accompanying this legislation explained (H.R. Rep. No. 238, 92d Cong., 1st Sess. 19 (1971)): There is nothing in the legislative background of Title VII, nor does any national policy suggest itself to support the exemption of these educational institution employees -- primarily tachers -- form Title VII coverage. Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment. /32/ In this case, the court of appeals found that the Commission had established its statutory entitlement to enforcement of its subpoena (Pet. App. A25). Under the Third Circuit's precedent and the facts of this case, it could reach no other conclusion. The Third Circuit's decision in Franklin & Marshall foreclosed recognition of any First Amendment privilege excusing production of the requested information. /33/ Nor did petitioner argue that the information requested by the subpoena was irrelevant within the meaning of the statute as construed in Shell Oil (Pet. App. A24). Any such argument would have been untenable. Tung's charge alleged that the denial of her tenure was attributable in part to an unfairly derogatory letter authored by the Chairman of her Department. J.A. 28-29. Petitioner refused to produce that letter. C.A. J.A. 5. The charge also alleged that five male candidates for tenure whose qualifications were no better than Tung's had been treated more favorably than she was. J.A. 29. Petitioner refused to produce portions of their files. C.A. J.A. 8. Finally, petitioner argued that its peer review privilege should cover not only evaluations of Tung's scholarship by her reviewers, but also "documents reflecting the internal deliberations of faculty committees considering applications for tenure" (C.A. J.A. 9). Plainly, the Commission's statutory entitlement to "any relevant evidence" encompassed the contemporaneous documents from which it could determine whether the non-discriminatory reasons that had been advanced as justifications for denying Tung tenure were the real reasons for that decision. /34/ When it denied petitioner's application for modification of its subpoena, the Commission carefully articulated its need for the documents responsive to the subpoena. /35/ Under these circumstances, the existence or legality of any "rule" of the type that is in issue in the District of Columbia was completely irrelevant to the enforcement of the subpoena. B. There Was NO Reason To Require The Subpoena's Enforceability To Be Determined In The Same Action As Petitioner's Separable Rulemaking Claims Contrary to petitioner's argument, the lower courts' decision to proceed in this case did not create any risk of inconsistent judgments, duplication of effort, or piecemeal litigation. Pet. Br. 18-21. These considerations thus did not require the lower courts to withhold the narrow rulings they were authorized to make under Title VII. 1. Enforcement of the subpoena created no risk of inconsistent judgments. The lower courts in this case expressed no opinion on the existence or validity of any rule issued by the Commission. /36/ Accordingly, the District of Columbia courts remain free to adjudicate the legality of the Commission's rules and to issue any appropriate judgments addressed to them without interference from the lower courts in this case. Because the existence and legality of any alleged Commission rule was wholly irrelevant to enforcement of the subpoena, there would be no meaningful inconsistency between an order enforcing the subpoena and any conclusion that the District of Columbia court might reach. As for the Tung subpoena, unless the lower courts' order is reversed, the doctrines of collateral estoppel and res judicata will preclude the entry of an order by another court quashing the subpoena. Thus, neither of the parties in this action runs any risk of being subject to conflicting obligations arising from judgments in these two cases. /37/ 2. The division of labor that has resulted from the lower courts' enforcement of the Tung subpoena involves no duplication of judicial effort. The District of Columbia court need not concern itself with the particulars relevant to the enforceability of the Tung subpoena. On the other hand, the lower courts in this case correctly determined that they need not reach the questions whether the Commission has or has not adopted a rule of the sort attributed to it by petitioner and whether any such rule would be enforceable. All of the discovery and other proceedings relevant to that claim have been confined to the District of Columbia. 3. The usual preference for the "comprehensive disposition of litigation" has no force in this case (Pet. Br. 18-21). Even if the "whole of the war" /38/ that petitioner would prefer to litigate is in the District of Columbia, there is no good reason to make Rosalie Tung's charge a hostage for the duration. As petitioner aptly points out, three years after its complaint was filed, its District of Columbia action "has continued to plow forward to decision on the myriad questions not presented by the more limited enforcement action" (Pet. Br. 20). There is absolutely no reason why the Commission's investigation or its reasonable cause determination on Tung's allegations should await the final outcome of those "myriad claims." It would have been an abuse of discretion -- as well as a violation of principles of wise judicial administration and the enforcement scheme of Title VII -- to dismiss this summary subpoena enforcement action with a view to having a determination on the enforceability of the subpoena await the time when petitioner's separable and immaterial rulemaking claims were ripe for decision. /39/ IV. THE COURT SHOULD NOT ADOPT A PROCEDURAL RULE THAT REQUIRES THE COMMISSION TO ESTABLISH THE PROPER VENUE FOR A SUBPOENA ENFORCEMENT ACTION IN A FORUM IN WHICH AN ANTICIPATORY SUIT HAS BEEN FILED Petitioner urges the Court to adopt a "clear rule" that the court in which the first of two overlapping actions is filed must determine which of the two should proceed. Pet. Br. 36-40. Under this "procedural" version of the first-filed rule, once a party files an action, its opponent must present all of its claims on the merits as counterclaims and challenge the legitimacy of the forum through motions made in that action. See Pet. Br. 38-39. If, instead, it files a second action, the court in that action must dismiss the complaint or stay its proceedings until the first court rules on where the parties' dispute will be resolved. Whatever its merits as a means of addressing multi-sided patent or commercial litigation -- the subject of all of the cases cited in petitioner's brief (Pet. Br. 37-38 & nn. 34-35) -- this procedural rule is just as direct a threat to the Commission's enforcement of Title VII as the substantive version of the first-filed rule advocated elsewhere in petitioner's brief. In fact, upon examination, that "procedural" rule would be even more rigid and mechanical, and thus even less supportable, than its substantive counterpart. The application of the "procedural" version of petitioner's first-filed rule to the facts of this case illustrates the point. Under that rule, once petitioner had filed its preemptive action, the district court in the Eastern District of Pennsylvania would have been obligated to dismiss or stay the Commission's summary enforcement action automatically. It would not have been entitled to pause even to address the considerations of wise judicial administration that petitioner recognizes are appropriate subjects of judicial concern. To be sure, this dismissal would have been accompanied by an explanation that the appropriate procedure for obtaining enforcement of the subpoena in the forum Congress prescribed would be to file a counterclaim in the District of Columbia and then seek a transfer of that action back to the Eastern District of Pennsylvania. The injury that such a rule would inflict on the Commission's ability to enforce Title VII is obvious. In place of a certain and summary action in the forum that Congress provided for enforcement of its subpoenas, the Commission would be left with a circuitous procedural path necessarily winding through a forum of petitioner's choice. /40/ For the same reasons discussed at length above, comity cannot justify placing this procedural superstructure on the subpoena enforcement procedure prescribed by Title VII. See pp. 14-22, supra. /41/ The "complicated problems for coordinate courts" (Kerotest, 342 U.S. at 183) that arise from attempts to invoke anticipatory remedies cannot be made to disappear with petitioner's deceptively simple procedural rule. Regardless of whether the problems arising from overlapping suits are framed in substantive or procedural terms, courts will have to proceed with sensitivity to the claims in issue, the interests implicated by any statutes involved, and the prerogatives of coordinate courts. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General THOMAS W. MERRILL Deputy Solicitor General STEPHEN L. NIGHTINGALE Assistant to the Solicitor General CHARLES A. SHANOR General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel HARRY F. TEPKER, JR. Attorney Equal Employment Opportunity Commission Washington, D.C. 20507 FEBRUARY 1989 /1/ Section 706(b) of Title VII of the Civil Rights Act of 1964 (hereinafter Title VII), 42 U.S.C. 2000e-5(b). /2/ Section 709(a) of Title VII, 42 U.S.C. 2000e-8(a). /3/ Section 11(1) of the National Labor Relations Act, 29 U.S.C. 161(1), incorporated in Section 710 of Title VII, 42 U.S.C. 2000e-9. /4/ 29 U.S.C. 161(1), incorporated in 42 U.S.C. 2000e-9; 29 C.F.R. 1601.16(b). /5/ Section 11(2) of the National Labor Relations Act, 29 U.S.C. 161(2), incorporated in 42 U.S.C. 2000e-9. /6/ There is, of course, no jurisdictional bar that precludes two courts from simultaneously entertaining overlapping in personam actions. Kline v. Burke Constr. Co., 260 U.S. 226 (1922). /7/ Contrary to petitioner's suggestion, the Court did not rule "in favor of a first-filed action" in Kerotest (Pet. Br. 19). Rather, it joined the Third Circuit in reversing a judgment of the district court that had been based on rigid application of the first-filed rule. See Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 92 F. Supp. 943, 947 (D. Del. 1950). Though the Court declined to favor any particular approach to the problems raised by overlapping suits, it did observe that the case law did not reflect "any rigid rule" of priority like that the district court had applied. 342 U.S. at 184 n.3. /8/ See, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 155 (1967) ("A court may * * * in its discretion dismiss a declaratory judgment or injunctive suit if the same issue is pending in litigation elsewhere."); Columbia Plaza Corp. v. Security National Bank, 525 F.2d 620, 627 (D.C. Cir. 1975); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-219 (2d Cir. 1978), cert. denied, 440 U.S. 908 (1979); William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 179 (2d Cir. 1969); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 424 (2d Cir. 1965); Upchurch v. Piper Aircraft Corp., 736 F.2d 439 (8th Cir. 1984); Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93 (9th Cir. 1982); Church of Scientology of California v. United States Department of Army, 611 F.2d 738, 749-750 (9th Cir. 1979). /9/ 42 U.S.C. 2000e-9, incorporating 29 U.S.C. 161(2). /10/ See also FTC v. Standard Oil Co. of California, 449 U.S. 232, 243 (1980) ("Judicial review should not be a means of turning prosecutor into defendant before adjudication concludes."); Katzenbach v. McClung, 379 U.S. 294, 296 (1964) (delcaratory relief "should not be granted where a special statutory procedure has been provided"); Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 246-247 (1952); FTC v. Claire Furnace Co., 274 U.S. 160, 174 (1927); Fed. R. Civ. P. 57 Advisory Committee Note, 28 U.S.C. App. at 626 (1982). /11/ Wearly v. FTC, 616 F.2d 662 (3d Cir.), cert. denied, 449 U.S. 822 (1980); American Motors Corp. v. FTC, 601 F.2d 1329 (6th Cir.), cert. denied, 444 U.S. 941 (1979); Atlantic Richfield Co. v. FTC, 546 F.2d 646 (5th Cir. 1977); Anheuser-Busch, Inc. v. FTC, 359 F.2d 487 (8th Cir. 1966). See also Elliott v. American Mfg. Co., 138 F.2d 678, 679 (5th Cir. 1943) (observing, in case challenging NLRB investigation, that it is not "appropriate for the courts to interfere prematurely in the proceedings of the public boards and commissions, nor to depart without good reason from the procedure the statutes lay down in respect of them"); Foreman v. Thalmayer, 393 F. Supp. 1396 (N.D. Tex. 1975) (refusing to hear action challenging EEOC subpoena in advance of subpoena enforcement action). These cases conclusively rebut petitioner's suggestion that "there seems to be little harm in a litigant's use of the Declaratory Judgment Act to expedite resolution of issues that are likely to arise in an impending action." Pet. Br. 31 n.29. As this case demonstrates, moreover, the purpose and effect of such suits is rarely to expedite the resolution of issues that Congress has committed to a summary enforcement proceeding. /12/ General Electric Co. v. FTC, 411 F. Supp. 1004, 1011 (N.D.N.Y. 1976); United States v. Cincinnati Transit, Inc., 337 F. Supp. 1068, 1070 (S.D. Ohio 1972). General Electric is particularly apt. In that case, the FTC had ordered electrical manufacturers to provide it with specified information and set a due date for compliance. Before the due date, some of the affected companies filed actions seeking declaratory judgments that the agency's request for information was unlawful. After the due date had passed, the FTC filed an action in the District of Columbia seeking enforcement of its order. The district court hearing the anticipatory suits ordered them transferred to the District of Columbia, where the enforcement proceeding was pending. One ground for this ruling was the court's conclusion that the legality of the order should be determined in the FTC's enforcement action, "which has fewer procedural and pretrial tangles and which was specifically created by Congress for such purposes" (411 F. Supp. at 1011). /13/ We note that the Shell Oil case began as an action to enjoin an investigation by the EEOC and, in connection therewith, to quash a Commission subpoena; a subsequent EEOC subpoena enforcement action was transferred and consolidated with the employer's injunctive suit. 466 U.S. at 59-60. The propriety of this procedure was not before the Court in Shell Oil. Moreover, unlike this case, the employer's claims went to the legality of the investigation as a whole. Even by implication, therefore, Shell Oil does not suggest that an employer can choose the forum in which the enforceability of a subpoena will be determined by joining a request that the subpoena be quashed with claims, like petitioner's rulemaking claims, that do not affect the Commission's authority to conduct an investigation. /14/ 466 U.S. at 72 n.26. See EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987). In Tempel Steel, the Seventh Circuit explained that the role of a court asked to enforce a subpoena is "sharply limited" and continued: Such proceedings are designed to be summary in nature. * * * As long as the investigation is within the agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena. * * * * * * If every possible defense, procedural or substantive, were litigated at the subpoena enforcement stage, administrative investigations obviously would be subjected to great delay. Accord, e.g., EEOC v. A.E. Stanley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983), cert. denied, 466 U.S. 936 (1984); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 308-310 (7th Cir. 1981); EEOC v. University of Pittsburgh, 643 F.2d 983, 985 (3d Cir.), cert. denied, 454 U.S. 880 (1981); EEOC v. South Carolina National Bank, 562 F.2d 329 (4th Cir. 1977); EEOC v. University of New Mexico, 504 F.2d 1296, 1303 (10th Cir. 1974). See United States v. Powell, 379 U.S. 48, 57-58 (1964); United States v. Morton Salt Co., 338 U.S. 632, 652 (1950); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943). /15/ Subpoena enforcement actions are an important aspect of the EEOC enforcement program. The chart below summarizes the number of such actions brought and resolved in this decade (EEOC, A Report on the Operations of the Office of General Counsel: October 1986 - September 1987 (July, 1988)): SUBPOENA ENFORCEMENT ACTIONS FILED AND RESOLVED 1980-1988 1980 1981 1982 1983 1984 1985 1986 1987 Filed 32 76 77 59 88 125 99 97 Resolved N/A N/A N/A 48 48 90 76 103 The number of subpoenas issued by the EEOC is far greater than the number of enforcement actions. Most employers comply voluntarily with subpoenas, no doubt in part because of the courts' unwillingness to allow delay in subpoena enforcement actions. /16/ Section 710 of Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 264. /17/ Sections 710(b) and (c) of Title VII of the 1964 Act, Pub. L. No. 88-352, 78 Stat. 264. /18/ 29 U.S.C. 161(1), incorporated in 42 U.S.C. 2000e-9. /19/ The legislative history of this amendment is sparse. However, it indicates that Congress intended to give the Commission more effective means of securing information in order to enhance its enforcement of the Act. The Senate Committee Report stated (S. Rep. No. 415, 92d Cong., 1st Sess. 2 (1971)): As a result of six years experience with title VII, and in order to accommodate the enforcement power provided for in this bill, a number of administrative changes are contained in S. 2515. They include expanded record-keeping requirements and subpoena power, authority for the Commission to conduct its own litigation, and additional protections for aggrieved persons. The Commission's enhanced subpoena power was in keeping with the overall thrust of the legislation, which was to increase the effectiveness of the Commission. As the House Report explained (H.R. Rep. No. 238, 92d Cong., 1st Sess. 3 (1971)): It is essential that seven years after the passage of the Civil Rights Act of 1964, effective enforcement procedures be provided the Equal Employment Opportunity Commission to strengthen its efforts to reduce discrimination in employment. See S. Rep. No. 415, supra, at 4-5. /20/ E.g., Tempco Electric Heater Corp. v. Omega Engineering, Inc., 819 F.2d 746, 749-750 (7th Cir. 1987); Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir. 1983); Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir. 1982); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-219 (2d Cir. 1978), cert. denied, 440 U.S. 908 (1979); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967); Yoder v. Heinhold Commodities, Inc., 630 F. Supp. 756, 760-762 (E.D. Va. 1986); Consolidated Rail Corp. v. Grand Trunk Western R.R., 592 F. Supp. 562, 567-570 (E.D. Pa. 1984); State Farm Fire & Casualty Co. v. Taylor, 118 F.R.D. 426, 430 (M.D.N.C. 1988). See also National Emblem Ins. Co. v. Washington, 482 F.2d 1346, 1348 (6th Cir. 1973). Petitioner acknowledges the existence of these cases, but argues that they turned on "other considerations." Pet. Br. 34 n.33. In its view, the cases support the proposition that "the true anticipatory nature of a first-filed suit does not, without more, justify a departure from the first-filed rule" (ibid.). This reading of the cases is untenable. In each of them, it is clear that the court placed substantial weight on this factor. /21/ Tempco Elec. Heater Corp. v. Omega Engineering, Inc. 819 F.2d 746, 750 (7th Cir. 1987) (quoting American Automobile Ins. Co. v. Freundt, 103 F.2d 613, 617 (7th Cir. 1939)). Accord, e.g., Perez v. Ledesma, 401 U.S. 82, 119 n.12 (1971) (Brennan, J., dissenting) ("The federal declaratory judgment is not a prize to the winner of a race to the courthouse."); Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164-1165 (10th Cir.), cert. denied, 456 U.S. 1007 (1982) (The Declaratory Judgment Act was not designed to be a "substitute for the rules of civil procedure" or "yet another weapon in a game of procedural warfare."). /22/ Brillhart implicitly rejected any rigid first-filed rule for declaratory judgment suits. See 6A J. Moore, Moore's Federal Practice, Paragraph 57.08(6.-1), at 57-62 (1987). /23/ See Columbia Pictures Ind., Inc. v. Schneider, 435 F. Supp. 742, 747-748 (S.D.N.Y. 1977) ("Potential plaintiffs should be encouraged to attempt settlement discussions (in good faith and with dispatch) prior to filing lawsuits without fear that the defendant will be permitted to take advantage of the opportunity to institute litigation in a district of its own choosing before plaintiff files an already drafted complaint."). /24/ 466 U.S. at 77-78 ("(W)hen it originally enacted Title VII, Congress hoped to encourage employers to comply voluntarily with the Act." Though that "hope proved overly optimistic, * * * Congress did not abandon its wish that violations of the statute could be remedied without resort to the courts, as is evidenced by its retention in 1972 of the requirement that the Commission, before filing suit, attempt to resolve disputes through conciliation"); id. at 90 (O'Connor, J., concurring in part and dissenting in part) (noting that conciliation should be encouraged because the "Act's overriding goal is not to promote the employment of lawyers but correct discriminatory practices quickly and effectively"). /25/ There is no doubt that avoiding Franklin & Marshall was a substantial factor in petitioner's choice of forum. During oral argument in the district court, counsel for petitioner acknowledged that "that may have been a consideration" that led to its filing in the District of Columbia. C.A. J.A. 56. In this Court, the University does not suggest otherwise. Rather, it argues that its reliance on this factor "is not objectionable" (Pet. Br. 27) and should have no weight when there are other considerations which arguably support its choice of forum (id. at 27-29). /26/ Id. at 254. Moreover, the Court confirmed that the doctrine of forum non conveniens was designed for a situation in which "a plaintiff chooses a particular forum, not because it is convenient, but solely in order to harass the defendant or take advantage of favorable law." Id. at 249 n.15. /27/ Similarly, in Van Dusen v. Barrack, 376 U.S. 612, 626-640 (1964), the Court construed 28 U.S.C. 1404(a) so that a transfer under that section would not result in a change in applicable law. The purpose of this holding was to permit transfers that facilitated the efficient disposition of lawsuits while preserving the "venue privilege" exercised by natural plantiffs (id. at 627) -- in that case, allowing the representatives of decedents to choose a forum in which their claims would not be barred by the statute of limitations. The Court's reasoning would not reach a situation in which the defendants in that case filed an anticipatory suit in a jurisdiction in which the suit would have been outside the period of limitations and asserted the "first-filed rule" as a bar to subsequent suits by the plaintiffs. /28/ See, e.g., William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 179 (2d Cir. 1969) (A "special circumstance() justifying a departure from the 'first-filed' rule of priority * * * is where forum shopping alone motivated the choice of the situs for the first suit."); Hanes Corp. v. Millard, 531 F.2d 585, 592-593 (D.C. Cir. 1976) (anticipatory use of declaratory judgment process "deprives the plaintiff of his traditional choice of forum"); Tempco Elec. Heater Corp. v. Omega Engineering, Inc., 819 F.2d at 750 (declining to adopt "rigid 'first to file' rule" in part because "(t)he wholesome purpose of declaratory acts would be aborted by its use as an instrument * * * to choose a forum"); American Automobile Ins. Co. v. Freundt, 103 F.2d 613, 617 (7th Cir. 1939) (forum shopping is abuse of declaratory judgment action). /29/ Even if it were not, reversal of the judgment would not be appropriate. The need to preserve the integrity of Title VII's enforcement procedures and well-established principles of judicial administration would require affirmance in any event. /30/ 42 U.S.C. 2000e-8(a), 2000e-9 (incorporating 29 U.S.C. 161(1) (emphasis added). /31/ Section 3 of the Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, Section 3, 86 Stat. 103-104. Petitioner errs, therefore, in attributing the Commission's evenhanded enforcement of the statute to a Commission rule, rather than the statute itself. See Pet. Br. 3-4 n.1. /32/ The report also noted that "particularly in institutions of higher education, women have been relegated to positions of lesser standing than their male counterparts" and that a study showed that while men were hired on the basis of "prestige and compatability," "women were generally considered to be outside of the prestige system altogether." H.R. Rep. No. 238, supra, at 20. /33/ The Court's grant of certiorari does not include the question whether the First Amendment gives a university a privilege to withhold relevant information. For the reasons set forth in our brief in opposition (pp. 7-13), we believe that the Third Circuit has correctly refused to balance away the Commission's entitlement to peer review information when it is relevant to a charge under investigation. /34/ Even those courts that have adopted a "balancing approach" to discovery in private actions under Title VII have granted discovery of peer review materials when, as in this case, a university relies on alleged deficiencies in the tenure candidate's scholarship to deny tenure. See Gray v. Board of Higher Education, 692 F.2d 901, 908-909 (2d Cir. 1982); Lynn v. Regents of the University of California, 656 F.2d 1337, 1347-1348 (9th Cir. 1981), cert. denied, 459 U.S. 823 (1982). In discharging its statutory mandate to investigate charges of discrimination, the Commission must be allowed to examine a university's deliberations with respect to an application for tenure for signs of bias, prejudice, and stereotypes. EEOC v. Tufts Institution of Learning, 421 F. Supp. 152, 159-161 (D. Mass. 1975). Such investigations do not involve second-guessing legitimate academic judgments; the Commission does not sit as a "Super-Tenure Review Committee." Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980). At the same time, "an alleged perpetrator of discrimination cannot be allowed to pick and choose the evidence which may be necessary for an agency investigation." Franklin & Marshall College, 775 F.2d at 116. /35/ The Commission stated (Pet. App. A30, A31-A32): The information is necessary in order to determine whether Ms. Tung was treated differently than those who received tenure. * * * There has not been enough data supplied in order for the Commission to determine whether there is reasonable cause to believe that the allegations of sex, race and national origin discrimination is true. The Commission is mandated by statute to investigate charges of alleged discrimination. The Commission would fall short of its obligation if it stopped its investigation once a Respondent has * * * provided the reasons for its employment decisions, without verifying whether that reason is a pretext for discrimination. /36/ In fact, the Commission vigorously denies that any such "rule" exists. In a series of individual cases, the Commission has refused to withdraw or modify requests for relevant information on the basis of the "peer review" privilege or balancing approach that some universities have advocated. Its position, which is fully consistent with the law and common sense, is that it cannot be required to conduct an APA rulemaking before adjudicating defenses that are inconsistent with its statutory entitlement to relevant evidence. See Pet. Br. 3-4 n.1. In any event, these issues are before the District of Columbia courts. It would thus be inappropriate for this Court to accept petitioner's invitation to assume the correctness of its position on the existence and effect of any alleged "rule" as the basis for a decision in this case. See, e.g., Pet. Br. 3. /37/ In its brief, petitioner suggests that the court of appeals concurred in its argument that a judgment in its favor on its rulemaking claim would be inconsistent with a judgment enforcing the subpoena (Pet. Br. 9-10, 21). In fact, the court of appeals only took note of that argument, before dismissing any apparent anomaly as a problem "of the University's own making" (Pet. App. A8-A9). /38/ Pet. Br. 19 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. at 183). Kerotest, of course, does not suggest that the more comprehensive suit must be given priority in every case. In Kerotest, the Third Circuit was presented with a choice between having the validity of certain patents resolved in (1) a single action in which the patent owner, the manufacturer of allegedly infringing products, and a distributor of those products were all present and (2) separate suits between the patent owner and the distributor and the patent owner and the manufacturer. The prospect of inconsistent judgments and duplication of effort and the advantages of the more comprehensive suit in that situation were self-evident. This case presents no comparable choice. /39/ Petitioner argues, in passing, that the judgment should be reversed because the district court failed to articulate a proper reason for denying the motion to dismiss and because the court of appeals "supplied the missing statement of reasons." Pet. Br. 22 & n.17. However, any procedural shortcoming in the district court's disposition of petitioner's motion to dismiss would not justify returning this case to the district court for another round of litigation. The court of appeals was in as good a position as the district court to consider the factors relevant to the disposition of this case -- i.e., the procedures and policies of Title VII, the separability of issues relating to the Tung subpoena and petitioner's rulemaking claims, the anticipatory nature of petitioner's suit, and petitioner's apparent effort to avoid Third Circuit precedent. Further, the district court unquestionably had jurisdiction to decide the merits of this case and discretion to proceed, so it would be an unjustifiable waste of resources to remand for a statement of reasons. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126 (1968); Church of Scientology of California v. United States Dept. of the Army, 611 F.2d at 750. Similar considerations should govern this Court's review. The question before this Court is whether an order enforcing a subpoena, based upon findings that responsive information is relevant and unprivileged, issued by courts empowered by Title VII to make those determinations, should be vacated so that there can be more litigation on the same issues in the same or different courts. There is no reason to require that result in the absence of a showing that a serious error has been made. That was the standard that this Court applied in Kerotest (342 U.S. at 184): Even if we had more doubts than we do about the analysis made by the Court of Appeals, we would not feel justified in displacing its judgment with ours. Petitioner is not prejudiced in any cognizable sense by enforcement of the subpoena in the venue prescribed by Title VII, and a remand on procedural grounds would only further delay the disposition of Tung's charge, a point that should not be overlooked. /40/ In this case, moreover, by the time the Commission filed this subpoena enforcement action, it had filed a motion to dismiss the District of Columbia suit. Thus, application of the petitioner's "clear rule" would have required the Commission to mark time while it waited for the District of Columbia's ruling on that motion before it could have filed its application to enforce the subpoena as a counterclaim. EEOC subpoena enforcement proceedings are not governed by the ordinary pleading requirements applicable to civil actions. EEOC v. Bay Shipbuilding Corp., 668 F.2d at 308-309. For instance, those proceedings are initiated, as in this case, by an application for an order to show cause, not a complaint. Bay Shipbuilding also indicated that the counterclaim provisions of Fed. R. Civ. P. 13 are not applicable. Ibid. For this reason, as well as to avoid undercutting Title VII, the Commission's application for enforcement was not a compulsory counterclaim in the District of Columbia action. See Foreman v. Thalmayer, supra. /41/ Finally, even if the Court were to favor the rule that petitioner has suggested, this would not be a case in which to apply it. In its reply brief in the court of appeals, petitioner argued that the Commission should have filed its application to enforce the Tung subpoena as a compulsory counterclaim. Pet. C.A. Rep. Br. 2 n.2, 13-14. See also C.A. J.A. 12-13 (presenting same argument to district court). However, it did not articulate the rule it now urges on this Court -- i.e., that the court of appeals should have directed dismissal of the suit without even making the discretionary judgment referred to in Kerotest and its progeny. Petitioner also did not refer the court of appeals to any of the authorities that are presented as support for this rule in its brief in this Court. It would be inappropriate to roll back all of the proceedings below on the basis of a rule that had not previously been applied in the Third Circuit and was not presented to that court. See Youakim v. Miller, 425 U.S. 231, 234 (1976).