UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


EEOC

v.

LUTHERAN SCL SVC


98-5245a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: In this proceeding to enforce an  administrative
subpoena, the Equal Employment Opportunity  Commission seeks access to
a report prepared by attorneys  for appellant Lutheran Social Services
summarizing the re- sults of an investigation into alleged violations
of Title VII.  The EEOC argues that Lutheran waived its claim that the
 report is protected by the attorney-client and work product 
privileges by failing to comply with a regulation requiring  subpoena
recipients to present any objections to the Commis- sion within five
days. We conclude that under the particular  circumstances of this
case Lutheran's failure to present its  objections pursuant to the
regulation cannot be viewed as a  waiver of its attorney-client and
work product privileges. In  addition, because Lutheran's lawyers
conducted their investi- gation "in anticipation of litigation," we
conclude that the  entire report is fully protected by the work


I


In July 1996, the board of Lutheran Social Services became  aware of
two anonymous memoranda accusing its president of  creating a hostile
work environment for female employees.  Responding to these
accusations, Lutheran placed the presi- dent on administrative leave
and hired the law firm of  Williams & Connolly to investigate the
accusations and advise  Lutheran as to its potential liability.
Williams & Connolly  interviewed sixteen employees, two former
employees, and  two former board members, advising each interviewee
that  Lutheran had retained the firm to investigate certain charges 
and asking each to keep the content of the interview confiden- tial.
Based on these interviews, Williams & Connolly pre- pared a report for
Lutheran's board that summarized and  categorized the interviews


statements) and assessed Lutheran's potential Title VII liabil- ity.
Only one copy of the report was made. Board members  were permitted to
read the report only in the presence of  Lutheran's permanent outside
counsel, Matthew Watson, and  were required to return the copy to him.
Shortly after  receiving the report, the board requested the
president's  resignation.


Almost ten months later, the EEOC began investigating  sex
discrimination charges filed by two former Lutheran  employees. The
Commission's investigator asked Lutheran  to produce several
documents, including the Williams & Con- nolly report. Lutheran turned
over everything the Commis- sion requested except the law firm's
report, claiming it to be  protected by the attorney-client privilege.
Following an ex- change of letters between the investigator and
Watson, in  which Watson reiterated Lutheran's claim of privilege, the
 EEOC issued a subpoena demanding production of the report  by
February 13, 1998. Addressed to Lutheran's Human  Resources Director,
the subpoena was dated January 30 and  sent on that date by certified


On about February 9, Lutheran retained Williams & Con- nolly to
represent it in connection with the subpoena. In a  February 13 letter
advising the EEOC investigator that  Lutheran had retained the firm, a
Williams & Connolly  associate stated that "the subpoena is improper
and our  client, therefore, does not intend to comply with it." Letter
 from Oliver Garcia, Williams & Connolly, to Aaron C. Blight,  EEOC
(Feb. 13, 1998). The letter concluded: "I would be  happy to discuss
this matter with you further." Id. Accord- ing to the associate, the
investigator later responded by  telephone, informing him that he was
referring the matter to  EEOC trial counsel but promising to contact
the associate  before taking further action. See Garcia Decl. p p 2,
5. The  investigator neither recalls nor denies making such a promise.
 See Blight Decl. p 3.


Shortly thereafter, the EEOC filed this enforcement action  in the
United States District Court for the District of Colum- bia. The
Commission alleged that Lutheran had waived its 


attorney-client privilege by failing to comply with EEOC  procedures
for challenging subpoenas. Codified at 29 C.F.R.  s 1601.16(b)(1)
(1998), those procedures provide that "[a]ny  person served with a
subpoena who intends not to comply  shall petition the issuing
Director ... to seek its revocation  or modification. Petitions must
be mailed ... within five  days ... after service of the subpoena."
The EEOC promul- gated this regulation pursuant to section 710 of the
Civil  Rights Act of 1964, as amended by the Equal Employment 
Opportunity Act of 1972, Pub. L. No. 92-261, s 7, 86 Stat.  103, 109
(1972) (codified at 42 U.S.C. s 2000e-9 (1994)), which  grants the
Commission all investigative powers possessed by  the National Labor
Relations Board under section 11 of the  National Labor Relations Act,
29 U.S.C. s 161 (1994). Sec- tion 11 of the NLRA in turn provides that
a party receiving  an NLRB subpoena may within five days file a
petition with  the Board seeking revocation or modification of the
subpoena  on the grounds that it either "does not relate to any matter
 under investigation" or "does not describe with sufficient 
particularity the evidence whose production is required." 29  U.S.C. s
161(1). On the merits, the EEOC argued that the  attorney-client
privilege does not protect statements made by  employees with
interests adverse to their employer. The  Commission also argued that
the work product privilege,  which protects only documents prepared
"in anticipation of  litigation," Fed. R. Civ. P. 26(b)(3), was
equally inapplicable  because at the time Williams & Connolly prepared
the report,  the prospect of Title VII litigation was "too


In defense, Lutheran challenged the legality of the EEOC's  section
1601.16(b)(1) procedures, arguing that the statute's  use of the word
"may" prohibited the Commission from  adopting mandatory procedures.
In the alternative, Luther- an argued that under the particular
circumstances of this  case--the Commission knew of Lutheran's
objections and  those objections were based on the attorney-client and
work  product privileges--its failure to follow the Commission's 
regulations should not be considered a waiver. Responding  to the
Commission's claim that the report was not privileged,  Lutheran said
that the report revealed confidential communi-


cations between the law firm and Lutheran, that it reflected  the
attorneys' "mental processes," and that the attorneys had  prepared it
in anticipation of litigation by Lutheran's presi- dent and


Without explanation and without reviewing the report, the  district
court directed Lutheran to produce the report, but  allowed it to
"redact any portion ... that constitutes legal  advice or
conclusions." EEOC v. Lutheran Soc. Servs., No.  98ms133 (D.D.C. June
11, 1998). Both sides appeal.


II


Lutheran first argues that the section 1601.16(b)(1) proce- dures
violate Title VII. Title VII confers on the EEOC the  same subpoena
authority the National Labor Relations Act  gives to the National
Labor Relations Board. See 42 U.S.C.  s 2000e-9. Section 11 of the
NLRA provides in full:


Within five days after the service of a subpena [sic] on  any person
requiring the production of any evidence in  his possession or under
his control, such person may  petition the Board to revoke, and the
Board shall revoke,  such subpena [sic] if in its opinion the evidence
whose  production is required does not relate to any matter  under
investigation, or any matter in question in such  proceedings, or if
in its opinion such subpena [sic] does  not describe with sufficient
particularity the evidence  whose production is required.


29 U.S.C. s 161(1). According to Lutheran, by making the  subpoena
review process mandatory (i.e., requiring that a  party objecting to
the subpoena "shall petition" and that  petitions "must be mailed
...within five days," see 29 C.F.R.  s 160.16(b)(1)), the regulation
violates the statute's plain lan- guage, which uses optional terms
(i.e., "such person may  petition the Board to revoke"). Lutheran also
points out that  unlike section 11 of the NLRA, the regulation covers
any  objection, not just those based on relevance or particularity. 
Given that "Congress has directly spoken to the precise  question at
issue," argues Lutheran, "that is the end of the 


matter; for the court, as well as the agency, must give effect  to the
unambiguously expressed intent of Congress." Chev- ron U.S.A. Inc. v.
Natural Resources Defense Council, 467  U.S. 837, 842-43 (1984). We
need not resolve Lutheran's  Chevron argument, however, because
whatever authority the  EEOC has under the statute, we conclude that
it has no  power to strip federal courts of authority to determine
wheth- er the subpoena the agency seeks to enforce is lawful.


At the outset, we note that the EEOC conceded at oral  argument that
compliance with its section 1601.16(b)(1) proce- dures is not
jurisdictional, and for good reason: "[E]xhaus- tion is a
jurisdictional prerequisite," we have held, "[o]nly  when Congress
states in clear, unequivocal terms that the  judiciary is barred from
hearing an action until the adminis- trative agency has come to a
decision." I.A.M. Nat'l Pension  Fund Benefit Plan C v. Stockton Tri
Indus., 727 F.2d 1204,  1208 (D.C. Cir. 1984); see also id. at 1209
("Congress knows  how to withdraw jurisdiction expressly when that is
its pur- pose.") (internal quotation and citation omitted). An example
 of just such a clear and unequivocal statement appears in  section


No proceeding to review any order of the Commission  shall be brought
by any person unless such person shall  have made application to the
Commission for a rehearing  thereon....


.... No objection to the order of the Commission  shall be considered
by the court unless such objection  shall have been urged before the
Commission in the  application for rehearing unless there is
reasonable  ground for failure so to do.


16 U.S.C. s 825l (1994); see Platte River Whooping Crane  Critical
Habitat Maintenance Trust v. FERC, 876 F.2d 109,  112-13 (D.C. Cir.
1989) ("[T]he requirements imposed by the  [Federal Power Act] are
strict and go well beyond judicially- imposed standards requiring the
exhaustion of administrative  remedies prior to the exercise of
federal court jurisdic- tion.... Neither FERC nor this court has
authority to  waive these statutory requirements."). In contrast,


11 of the NLRA provides only that parties "may petition the 
[Commission] to revoke" a subpoena on the basis of relevance  and
particularity; nowhere does section 11 even imply, much  less
expressly state, that courts lack jurisdiction to hear  objections not
presented to the Commission.


Agreeing that section 1601.16(b)(1) does not deprive this  court of
jurisdiction to consider Lutheran's privilege argu- ments and arguing
that his position "does not implicate the  court's basic authority,"
our dissenting colleague (but not the  EEOC) nonetheless asserts that
section 1601.16(b)(1) prohib- its us from considering Lutheran's
arguments because the  regulation is "mandatory." Dissenting Op. at 4,
2. If "man- datory" means prohibiting courts from hearing issues not 
presented to the agency, however, we fail to understand how  a
regulation can be "mandatory" without being jurisdiction- al--or at
least the functional equivalent. Indeed, the import  of the cases
cited by the dissent is that mandatory language  prohibits courts from
considering arguments precisely when  the language is jurisdictional.
See Weinberger v. Salfi, 422  U.S. 749, 766 (1975) (distinguishing
between "statutorily spec- ified jurisdictional prerequisite[s]" and
"the judicially devel- oped doctrine of exhaustion"); I.A.M. Nat'l
Pension Fund,  727 F.2d at 1209 ("Congress knows how to withdraw
jurisdic- tion expressly when that is its purpose") (internal
quotation  and citation omitted); cf. Glisson v. United States Forest 
Serv., 55 F.3d 1325, 1327 (7th Cir. 1995) (holding that the 
"inflexible command of [the] statute" required exhaustion  without
deciding whether the command was jurisdictional).  And in the absence
of a statute clearly depriving courts of  jurisdiction to hear issues
not first presented to the agency,  we know of no principle of
administrative law--Chevron or  otherwise--that would permit an agency


Contrary to our dissenting colleague's suggestion, nothing  in Darby v.
Cisneros, 509 U.S. 137 (1993), supports the novel  proposition that an
agency may, without clear statutory au- thority, prevent Article III
courts from hearing issues not  first presented to the agency. See
Dissenting Op. at 4-5. In  Darby, a statute (section 10(c) of the APA)
expressly empow-


ered agencies to require exhaustion. Here, in contrast, the  APA is
inapplicable, and the governing statute (section 11 of  the NLRA)
delegates no such authority to the EEOC. And  Darby's holding--that
courts may not impose exhaustion  requirements in addition to those
contemplated by an agency  exercising its statutory authority under
section 10(c) of the  APA--hardly supports our dissenting colleague's
theory that  an agency may, without congressional authorization,
prevent  Article III courts from considering issues not first
presented  to the agency. As Darby itself put it: "Of course, the 
exhaustion doctrine continues to apply as a matter of judicial 
discretion in cases not governed by the APA," 509 U.S. at  153-54
(emphasis added)--meaning that courts may exercise  their traditional
authority to hear issues not presented to the  agency if the
circumstances surrounding noncompliance with  agency procedures are
sufficiently compelling. In McCarthy  v. Madigan, moreover, the
Supreme Court said quite clearly:  "Where Congress specifically
mandates, exhaustion is re- quired. But where Congress has not clearly
required exhaus- tion, sound judicial discretion governs." 503 U.S.
140, 144  (1992) (citations omitted); see also id. ("[E]xhaustion is
'a rule  of judicial administration,' ... and unless Congress directs 
otherwise, rightfully subject to crafting by judges") (quoting  Patsy
v. Board of Regents of Fla., 457 U.S. 496, 518 (1982)  (White, J.,
concurring in part)). Indeed, notwithstanding our  dissenting
colleague's characterization of section 1601.16(b)(1)  as
"non-jurisdictional but mandatory," he stops short of in- sisting that
there are no situations in which we may excuse  non-compliance,
recognizing that courts still enjoy authority  "to consider certain


Nor is there any basis for the proposition that our authori- ty to
excuse non-compliance means that section 1601.16(b)(1)  has "no legal
bite," that we have "no obligation to respect  agency rules," or that
"an employer [under] subpoena ...  could simply ignore the agency."
Dissenting Op. at 4, 3. To  the contrary, section 1601.16(b)(1)'s
mandatory language cre- ates a strong presumption that issues parties
fail to present  to the agency will not be heard in court. See United
States v. 


L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) ("Sim- ple
fairness ... requires as a general rule that courts should  not topple
over administrative decisions unless the adminis- trative body not
only has erred but has erred against objec- tion made at the time
appropriate under its practice.").  Hardly a "distressing ... misuse
of judicial power," Dissent- ing Op. at 4, our holding is simply that
no categorical bar  prevents us from considering whether the facts
surrounding  Lutheran's failure to file a section 1601.16(b)(1)
petition con- stitute circumstances sufficiently extraordinary to
defeat this  presumption, a task to which we now turn.


III


We think the circumstances of this case, when considered  in
combination, excuse Lutheran's failure to present its  attorney-client
and work product objections to the Commis- sion. To begin with,
instead of stating that a subpoena  recipient has five days to object
or even pointing the recipient  to section 1601.16(b)(1), the subpoena
(attached as an appen- dix to this opinion) says only that it "is
issued pursuant [to]  (Title VII) 42 U.S.C. s 2000e-9." Had Lutheran's
Human  Resources Director, the subpoena's addressee, looked up 
section 2000e-9, it would have referred her to section 161 of  Title
29 (section 11 of the National Labor Relations Act).  Had she then
looked up section 161, she would have learned  that Lutheran "may"
petition the EEOC if it objects to the  subpoena on the basis of
either relevance or particularity.  Nothing on the face of the
subpoena or in the statutes to  which it referred would have led her
to believe that Lutheran  must petition the EEOC within five days,
particularly given  that Lutheran's objection rested not on relevance
or particu- larity, but on the attorney-client and work product
privileges.  Cf. Randolph-Sheppard Vendors of America v. Weinberger, 
795 F.2d 90, 108 (D.C. Cir. 1986) (exhaustion required, in  part,
because there was "no evidence ... of neglect on the  part of the


To be sure, had Lutheran's permanent counsel, with whom  the EEOC
investigator had been dealing, learned of the 


subpoena within the five-day period (the record is silent on  this
issue) and had he shepardized section 2000e-9, he would  have
unearthed 29 C.F.R. s 1601.16(b)(1). But because the  subpoena itself
did nothing to alert the recipient to the  Commission's
procedures--indeed, by referring the recipient  to section 11 of the
NLRA, the subpoena may well have  misled her into believing that
Lutheran had no obligation to  file a petition with respect to
objections not based on rele- vance or particularity--Lutheran's
failure to file a petition  was hardly unreasonable.


Even the EEOC investigator seems to have been unaware  of Lutheran's
section 1601.16(b)(1) obligation. In response to  Williams &
Connolly's February 13 letter claiming the sub- poena to be
"improper," the EEOC investigator never said,  "Sorry, you're too
late. 29 C.F.R. s 1601.16(b)(1) requires  your client to have filed a
petition with the District Director  within five days of receiving the
subpoena." Instead, accord- ing to the Williams & Connolly lawyer's
affidavit, the investi- gator agreed to "keep [the lawyer] posted on
the EEOC's  decision and to contact [the lawyer] before taking further
 action." Garcia Decl. p 5. True, the investigator does not  remember
making such a statement, but neither does he deny  it, much less claim
that he told the Williams and Connolly  lawyer about the section
1601.16(b)(1) procedures. Not until  the EEOC filed this enforcement
action did it mention section  1601.16(b)(1).


Moreover, this is not a case where a subpoena recipient  raises an
issue for the first time in court. To the contrary,  beginning with
the very conversation in which the EEOC  investigator first requested
the report, Lutheran repeatedly  claimed the document to be
privileged. See Letter from  Aaron Blight, EEOC, to Matthew Watson,
June 26, 1997.  Moreover, the EEOC official with whom the regulation
re- quired Lutheran to file its petition, the District Director, was 
aware of the nature of Lutheran's objections. Signed and  issued by
that very District Director, the subpoena expressly  states that the
Commission seeks a copy of the report "refer- enced in previous
correspondence." It was in that "previous 


correspondence" that Lutheran's permanent counsel detailed  his
client's view that the report was privileged.


For all of these reasons, we think it would be inappropriate  to view
Lutheran's failure to file a section 1601.16(b)(1)  petition as a
waiver of its privilege claim. So concluding,  moreover, would do
little if any damage to the integrity of the  Commission's section
1601.16(b)(1) procedures. As the Su- preme Court has held, "The basic
purpose of the exhaustion  doctrine is to allow an administrative
agency to perform  functions within its special competence." Parisi v.
Davidson,  405 U.S. 34, 37 (1972) (citing McKart v. United States, 395
 U.S. 185, 194 (1969)). No such benefit would flow from  requiring
exhaustion in this case, for the EEOC has no  expertise with respect
to the attorney-client and work prod- uct privileges. Indeed,
expertise as to those privileges re- sides in the federal courts. See
Fed. R. Evid. 501 (The  question of privilege is to be "governed by
the principles of  the common law as they may be interpreted by the
courts of  the United States in the light of reason and experience.").
 Therefore, even if Lutheran had filed a section 1601.16(b)(1) 
petition, we would not defer to the EEOC's disposition of  Lutheran's
privilege claims. See Director, Office of Thrift  Supervision v.
Vinson & Elkins, LLP, 124 F.3d 1304, 1307  (D.C. Cir. 1997) (according
no deference to agency's views on  issues related to work product
privilege). This case is thus  quite different from the more typical
situation where a sub- poena recipient's objections rest on relevance
or particularity,  the two factors listed in 29 U.S.C. s 161. In such
cases,  exhaustion is important because the EEOC possesses consid-
erable expertise with respect to relevance and particularity, 
expertise to which we would comfortably defer. See id.  (agency's
interpretation of relevance of subpoena deserves  deference because
"[t]he scope of the investigation ... is very  much dependent on the
agency's interpretation and adminis- tration of its authorizing


Conceding that it lacks relevant expertise in this case, the 
Commission argues that requiring exhaustion is nevertheless 
appropriate because it gives the commissioners an opportuni- ty to
revoke or modify subpoenas, thus conserving judicial 


resources. This is a worthy goal, but in this case the  Commission's
General Counsel, charged by Title VII with  conducting litigation on
the agency's behalf, see 42 U.S.C.  s 2000e-4(b) (1994), could have
sought Commission clearance  before filing this action. Indeed, if the
Commission wishes to  ensure (regardless of the actions of its General
Counsel) that  it has an opportunity to review all subpoena
enforcement  issues before they get to court, it can easily do so by
adding  to the face of the subpoena, which already contains a "Notice 
to Person Subpoenaed," something like the following:


If you have any objections to this subpoena, you must  include them in
a petition filed with the issuing official  pursuant to 29 C.F.R. s
1601.16(b)(1). Petitions must be  mailed within five days of receiving
this subpoena. Fail- ure to follow these regulations may result in
loss of any  ability to raise such objections in court.


Cf., e.g., Federal Trade Commission, Form 68-B, Subpoena  Duces Tecum
(Sept. 1992) (notifying recipients that they have  twenty days to
petition Commission Counsel to limit or quash  the subpoena).


Our conclusion that Lutheran has not waived its privilege  claims is
reinforced by two additional considerations. First,  the
attorney-client and work product privileges play an im- portant role
in Title VII's enforcement scheme. As the  Supreme Court has
repeatedly emphasized, "[c]ooperation  and voluntary compliance were
selected [by Congress] as the  preferred means for achieving th[e]
goal [of eliminating those  practices and devices that discriminate on
the basis of race,  color, religion, sex, or national origin]."
Alexander v.  Gardner-Denver Co., 415 U.S. 36, 44 (1974); see also
Ford  Motor Co. v. EEOC, 458 U.S. 219, 228-29 (1982). The EEOC  has
likewise pointed to the importance of voluntary compli- ance. See,
e.g., 29 C.F.R. s 1601.24(a) ("Where the Commis- sion determines that
there is reasonable cause to believe that  an unlawful employment
practice has occurred or is occur- ring, the Commission shall endeavor
to eliminate such prac- tice by informal methods of conference,
conciliation and per- suasion. [42 U.S.C. s 2000e-5] In conciliating a


a determination of reasonable cause has been made, the  Commission
shall attempt to achieve a just resolution of all  violations found
and to obtain agreement that the respondent  will eliminate the
unlawful employment practice and provide  appropriate affirmative
relief."). Voluntary compliance with  the law often depends on sound
legal advice; sound legal  advice in turn often depends on the
attorney-client and work  product privileges. See In re Sealed Case,
146 F.3d 881, 884  (D.C. Cir. 1998). Here, Lutheran did precisely what
Con- gress contemplated: It undertook an investigation to assess  its
compliance with Title VII. What we said in In re Sealed  Case applies


[L]acking resources to pursue every suspected violation  of federal
law, the government must depend on effective,  conscientious private
lawyers to help clients comply vol- untarily. The government might
gain some short term  benefit by obtaining documents in this case, but
the long- range consequences could be quite damaging. Weaken- ing the
ability of lawyers to represent clients at the pre- claim stage of
anticipated litigation would inevitably re- duce voluntary compliance
with the law, produce more  litigation, and increase the workload of
government law- enforcement agencies.


In re Sealed Case, 146 F.3d at 887.


Second, rejecting the Commission's waiver claim will not  deny it
access to any sources of possible evidence of discrimi- nation. The
Commission can easily obtain whatever evidence  of discrimination
appears in the lawyers' witness summaries  by interviewing the
witnesses itself. The only information  that the Commission would be
unable to obtain from other  sources is Williams & Connolly's legal
advice. As we have  just said, however, allowing access to such advice
is inconsis- tent with Title VII's enforcement scheme.


In sum, under the combined circumstances of this case, we  think it
both unfair and unwise to penalize Lutheran for  failing to file a
section 1601.16(b)(1) petition. Nothing in the  cases cited by the
dissent from other circuits requires a  different result. See
Dissenting Op. at 7-8. In Maurice v. 


NLRB, for example, the Fourth Circuit did not hold--as the  EEOC urges
us to hold here--that a subpoena recipient had  waived her objections
by raising them for the first time in  federal court. See 691 F.2d 182
(4th Cir. 1982). Rather, the  court instructed the recipient to return
to the agency--relief  neither sought by the EEOC in this case nor
appropriate in  view of the fact that the Commission's brief makes it
quite  clear that it considers Lutheran's privilege claims meritless. 
See id. at 183; Athlone Indus., Inc. v. Consumer Prod. Safety  Comm'n,
707 F.2d 1485, 1489 (D.C. Cir. 1983) ("The desirabil- ity of avoiding
... unfairness, the purely legal nature of the  issue presented, and
the likely futility of further resort to the  Commission, all operate
to convince us that it would be  unwise to adhere to the general rule
of exhaustion in this  case.").


The dissent also cites Hedison Mfg. Co. v. NLRB, where  counsel
promised an administrative law judge that he would  produce the
subpoena recipient but then failed to do so at the  hearing arranged
for that purpose. See 643 F.2d 32, 34 (1st  Cir. 1981). Far from
erecting the jurisdictional barrier our  dissenting colleague reads
into the case, the court held that  the company, by playing "a game of
hare and hounds" with  the agency, id. (quoting United States v.
Bryan, 339 U.S. 323,  331 (1950)), had failed to show "at least a
modicum of candor  and good faith" and thus had no excuse for failing


In NLRB v. Frederick Cowan & Co., the court likewise  found that the
company's actions exhibited "an utter abandon- ment ... of normal
agency procedures." 522 F.2d 26, 28 (2d  Cir. 1975). No abandonment
occurred in this case. To the  contrary, Lutheran presented its
objections to the investiga- tor, and its counsel told us at oral
argument that his client  would have preferred to present its
objections to the Commis- sion rather than endure lengthy and costly
litigation in feder- al court.


Finally, in EEOC v. Cuzzens, Inc., the subpoena recipient  ignored
administrative remedies and argued for the first time  in district
court that Title VII did not apply to it. See 608 


F.2d 1062, 1063 (5th Cir. 1979) (per curiam). Although the  Fifth
Circuit held that the recipient's failure to present the  objection to
the Commission barred it from raising the objec- tion as a defense to
the enforcement action, id. at 1064, the  court made clear not only
that this exhaustion requirement  was not absolute--it was
inapplicable to "objections based on  constitutional grounds,"
id.--but also that nothing in its deci- sion prevented Cuzzens from
making the identical objection  in district court once the case
ripened from an EEOC investi- gation into an actual dispute on the
merits. Not so here. If  the EEOC obtains access to the report,
Lutheran's attorney- client and work product privileges will be lost


IV


This brings us to the merits of Lutheran's privilege claim.  Without
examining the report in camera and apparently  limiting itself to
determining whether the report was protect- ed by the attorney-client
privilege, the district court ordered  disclosure of the document with
legal advice and conclusions  redacted. Lutheran argues, as it did in
the district court,  that the entire report is protected because, in
addition to  containing legal advice, it summarizes confidential
client-to- lawyer communications. Describing the report as also
reveal- ing the questions the lawyers asked, the answers the wit-
nesses gave, and the lawyers' summary and categorization of  the
information received, Lutheran argues that the entire  report is also
protected by the work product privilege because  it reveals Williams &
Connolly's "mental impressions, conclu- sions, opinions, or legal
theories." Fed. R. Civ. P. 26(b)(3).  The EEOC disagrees, claiming
with respect to the attorney- client privilege that statements made by




__________

n * We fail to see the relevance of Swidler & Berlin v. United  States,
524 U.S. 399 (1998). See Dissenting Op. at 8 n.3. Rejecting  a
balancing test, Swidler & Berlin held that the attorney-client 
privilege survives the death of the client. That has nothing to do 
with the issue in this case, i.e., whether a subpoena recipient's 
failure to file a section 1601.16(b)(1) petition prevents it from
raising  its objections in court--objections which in this case happen
to rest  on the attorney-client privilege.


adverse interests to their employer are unprotected, and with  respect
to the work product privilege that the report was not  prepared in
anticipation of litigation. Because we find the  work product
privilege dispositive, we begin with it.


To resolve the parties' competing work product claims, we  ask "
'whether, in light of the nature of the document and the  factual
situation in the particular case, the document can  fairly be said to
have been prepared or obtained because of  the prospect of
litigation.' " Senate of Puerto Rico v. United  States Dep't of
Justice, 823 F.2d 574, 586 n.42 (D.C. Cir. 1987)  (quoting Charles
Alan Wright & Arthur R. Miller, Federal  Practice and Procedure s 2024
(1970)). In In re Sealed  Case, we held that for a document to meet
this standard, "the  lawyer must at least have had a subjective belief
that litiga- tion was a real possibility, and that belief must have
been  objectively reasonable." 146 F.3d at 884. Applying that test  to
the facts of that case, we found that documents prepared  by counsel
for the Republican National Committee in re- sponse to news reports
questioning the legality of its relation- ship with another
organization, the National Policy Forum,  had been prepared in
anticipation of litigation even though  the Federal Election
Commission had yet to file a formal  complaint. We relied on an
affidavit from an RNC lawyer  that stated, "I was ... aware that the
chairman of the FEC  had announced that the FEC was investigating
cases involv- ing allegations of illegal contributions in U.S.
elections.... I  was further aware that the [National Policy Forum]
had been  criticized in the press as an organization used by the RNC
to  evade federal campaign finance laws, and thus I had a  significant
concern that litigation over this issue was proba- ble." Id. at 886.
Another RNC lawyer stated, "[F]rom the  time the NPF was formed, I and
the RNC were concerned  about the substantial likelihood of potential


Lutheran faced a virtually identical situation. Like the  RNC, it had
not been sued at the time it hired outside  counsel. Also like the
RNC, Lutheran hired counsel because  it feared litigation. In her
affidavit, a Lutheran board mem- ber stated, "To prepare for the
possibility of a lawsuit by the 


president, the Board wanted a careful investigation and legal  analysis
of the allegations against him...." LePard Decl.  p 4. She further
"agreed" with Williams & Connolly that the  investigation "should also
be conducted in anticipation of a  suit being brought on grounds of a
hostile work environment  for women." Id. p 5. The Williams & Connolly
lawyer to  whom the Board first spoke said he advised the Board that 
"the investigation [into hostile work environment] should also  be
conducted in preparation for a discrimination suit brought  by a
disgruntled current or former employee." Graham Decl.  p 2. In terms
of demonstrating a genuine fear of litigation,  we see no significant
difference between these affidavits and  the affidavits in In re


Offering no evidence to counter Lutheran's affidavits, the  EEOC
hypothesizes that Lutheran undertook its investiga- tion in the
"ordinary course of business," which, the Commis- sion says, includes
looking into whether the organization was  complying with the relevant
laws regarding discrimination in  the workplace. See EEOC Br. at 27.
Even if accurate, the  Commission's recharacterization of Lutheran's
motivation  does nothing to undermine Lutheran's contention that it 
genuinely feared litigation. Indeed, fear of EEOC or 
employee-initiated litigation may well be the very reason why  an
employer hires outside counsel to determine whether it is  complying


Turning to the objective prong of the work product test,  the EEOC
argues that Williams & Connolly could not have  prepared its report
"in anticipation of litigation" because the  litigation Lutheran
feared was "too remote and speculative."  EEOC Br. at 24. But the
prospect of litigation in this case  was no less speculative than in
In re Sealed Case. There, we  found that news reports hinting at
illegal behavior coupled  with the RNC's fear of litigation provided
sufficient objective  support for the lawyer's assertion that they had
prepared the  documents "in anticipation of litigation." See 146 F.3d
at  885-86, 888. Here too evidence suggests that litigation lay  just
over the horizon. Lutheran had documents in which its  own employees
(perhaps future plaintiffs) directly accused the  president of
creating a hostile work environment. That those 


documents were anonymous and the charges nonspecific does  nothing to
undermine the objective reasonableness of Luther- an's fear of
litigation. And just as in In re Sealed Case,  where the RNC's fear of
litigation was eventually confirmed  when the FEC filed suit,
Lutheran's fear was confirmed when  two of its employees filed EEOC
charges based on allegations  contained in the anonymous memoranda.


Finally, no compelling need requires disclosure of the  Williams &
Connolly report. As we have noted, the Commis- sion can obtain all of
the factual information it seeks by  conducting its own interviews.
Although it would certainly be  easier for the Commission to see the
law firm's report, the  work product privilege's very purpose is to
prevent a party  from "perform[ing] its functions ... on wits borrowed
from  the adversary." Hickman v. Taylor, 329 U.S. 495, 516 (1947) 
(Jackson, J., concurring).


Because the EEOC does not challenge Lutheran's claim  that the report
reveals its lawyer's mental impressions, we  find the entire report
protected by the work product privi- lege. We therefore have no need
to consider whether the  attorney-client privilege also protects the
report. This case is  remanded to the district court to dismiss the
Commission's  enforcement action.


So ordered.


APPENDIX


[Appendix not available electronically.]


Silberman, Circuit Judge, dissenting: The majority ex- tends its magic
wand over the parties and waives appellant's  obligation to exhaust
its administrative remedies. I believe  that the court lacks the
unbridled discretion it asserts and, in  any event, that appellant is
not entitled to such favored  treatment.


Title VII of the Civil Rights Act, passed 35 years ago, was  amended in
1972 to give the EEOC the exact investigative  powers previously
conferred 52 years ago on the NLRB.  Accordingly, 29 U.S.C. s 161(1)
applies to subpoenas issued  as part of the investigative process by
both the NLRB and  the EEOC. Although it is set forth in the majority
opinion, I  quote it again:


Within five days after the service of a subpena [sic] on  any person
requiring the production of any evidence in  his possession or under
his control, such person may  petition the Board to revoke, and the
Board shall revoke,  such subpena [sic] if in its opinion the evidence
whose  production is required does not relate to any matter  under
investigation, or any matter in question in such  proceedings, or if
in its opinion such subpena [sic] does  not describe with sufficient
particularity the evidence  whose production is required.


The NLRB issued a regulation interpreting or implement- ing that
statutory provision in 1947. See 12 Fed. Reg. 5657,  5660 (1947). The
current version of the regulation provides  that "[a]ny person served
with a subpoena ..., if he or she  does not intend to comply with the
subpoena, shall, within 5  days after the date of service of the
subpoena, petition [the  regional director, or if during the hearing,
the administrative  law judge] in writing to revoke the subpoena." 29
C.F.R.  s 102.31(b) (1999).


Not surprisingly in 1972, the same year Title VII was  amended to give
the EEOC the investigatory powers of the  NLRB, the EEOC issued a
virtually identical regulation, see  37 Fed. Reg. 9218 (1972), the
current version of which  provides that "[a]ny person served with a
subpoena who  intends not to comply shall petition the issuing


petition the General Counsel, if the subpoena is issued by a 
Commissioner, to seek its revocation or modification. Peti- tions must
be mailed to the Director or General Counsel, as  appropriate, within
five days ... after service of the subpoe- na." 29 C.F.R. s
1601.16(b)(1) (1999).


The appellant makes much of the distinction between the  statute's
"may" and the regulation's "shall," but I think that  is a tempest in
a teapot. The statute could not have used  "shall" because it does not
include the qualifying phrase  "person ... who intends not to comply";
it speaks to every- one served with a subpoena. Obviously, it would
make no  sense for Congress to tell someone who is served and has no 
objection to producing information that he or she shall peti- tion to
revoke. The most reasonable interpretation of the  statute,
accordingly, is that it is equivalent to the regulation-- that the
process is obligatory if one wishes to object to a  subpoena. There
can be no other reason why Congress  imposed a five-day limitation.1
It certainly would have been  senseless for Congress to provide that a
party may petition  within five days, but that nothing is to stop the
party from  petitioning after the five days. The permissive "may" was 
used, not to create a five-day period that any party can  disregard at
will, but merely to make clear--quite sensibly-- that objections are
optional. And if a party who objects to a  subpoena must petition the
agency to revoke within five days,  it follows that the exhaustion
requirement is mandatory. The  majority would do well to bear in mind
that the provision in  question is part of the NLRB's (and the EEOC's)
investiga- tive powers, and it is certainly understandable that




__________

n 1 Lutheran suggests that the five-day limitation means instead  that
the agency is prohibited from seeking enforcement of the  subpoena
until the revocation period expires. But setting a time  limit within
which objections are to be filed by recipients would be a  positively
bizarre way of limiting the agency's power. The argu- ment also
assumes that the agency might actually attempt to  enforce the
subpoena within the five-day period, which strikes me  as ridiculous
since subpoena recipients typically are given more  than five days
within which to produce the requested material  (Lutheran was given


should wish such agencies to be armed against efforts to  frustrate and
delay their investigation. If an employer  against whom such a
subpoena is issued could simply ignore  the agency or say, "I'll see
you in court," the investigative  process would be significantly


If the statute is to be honored, the district court should not 
entertain, in a subpoena enforcement proceeding, a respon- dent's
objection that should have been raised first before the  agency.2 That
is simply another way of saying the exhaustion  requirement is
mandatory. See McCarthy v. Madigan, 503  U.S. 140, 144 (1992) ("Where
Congress specifically mandates,  exhaustion is required.") (emphasis
added). To be sure, the  EEOC did not argue that the statute created a
jurisdictional  bar to the district court's consideration of
appellant's claim,  unquestionably because s 161(1) is not phrased in
terms of  jurisdiction. Cf. Weinberger v. Salfi, 422 U.S. 749, 756
(con- struing a statutory exhaustion requirement that operates by 
divesting district courts of jurisdiction except in cases of final 
agency decisions). And we have said that exhaustion is a 
jurisdictional prerequisite "[o]nly when Congress states in  clear,
unequivocal terms that the judiciary is barred from  hearing an action
until the administrative agency has come to  a decision," I.A.M.
National Pension Fund Benefit Plan C v.  Stockton Tri Indus., 727 F.2d
1204, 1208 (D.C. Cir. 1984)--a  requirement that s 161(1) may well not
meet (despite its  obvious implication). But although it does not
speak to our  jurisdiction, the statute seems to me to impose a


The majority not only conflates a statutory provision limit- ing our
jurisdiction with a statute or regulation governing  parties'
behavior, it also ignores the distinction between a  mandatory
exhaustion requirement created by statute or  regulation, and the
judicially-created common law doctrine of  exhaustion. See Weinberger,
422 U.S. at 765-66 (distinguish-




__________

n 2 It is rather misleading to ask as the majority does whether  the
appellant has "waived" its attorney-client privilege; the ques- tion
is better phrased as whether the appellant forfeited its claim by  not
raising it in a timely fashion before the agency.


ing between "statutorily specified jurisdictional prerequi- site[s]"
and "the judicially developed doctrine of exhaustion").  The latter is
a judge-made rule that admits of various pruden- tial exceptions; the
former is not. See I.A.M. National  Pension Fund, 727 F.2d at 1208;
Glisson v United States  Forest Service, 55 F.3d 1325, 1327 (7th Cir.
1995) ("But to the  extent that [exhaustion] is a doctrine of federal
common law  rather than the inflexible command of a statute, it is to
be  applied with due regard for its underlying purpose and for 
considerations that may in particular cases counsel for a  waiver.").
It is relatively open to us to relax the rigors of  exhaustion
doctrines we ourselves have created, but a statuto- ry or authorized
regulatory command is entitled to more  respect--even if not phrased
in judicial jurisdictional terms.  It may well be (there are really no
cases in point) that a non- jurisdictional but mandatory exhaustion
requirement allows a  court to consider certain traditional limited
exceptions such as  futility or agency bias. But to call the
exhaustion require- ment non-jurisdictional--the majority's extensive
argument to  that effect is really a red herring--is not to allow a
court to  treat it as if it had no legal bite. The majority seems to
be  under the impression that it has no obligation to respect  agency
rules unless we are told by Congress that we lack  jurisdiction to do
otherwise. In my view, this case does not  implicate the court's basic
authority, still less its jurisdiction,  but rather illustrates the
more familiar, but nevertheless  distressing, misuse of judicial power
to override rather than  defer to a reasonable agency rule. We are
"prohibited," as  the majority puts it, from hearing appellant's
argument not  because we lack power to do so but because we are a


Even if the statute itself were thought ambiguous as ap- plied to this
case, the NLRB-EEOC regulations--interpreta- tions of s 161(1) that
deserve deference, see Chevron U.S.A.  Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837  (1984)--unquestionably make
exhaustion obligatory and clear- ly cover all potential defenses such
as attorney-client privi- lege. The Supreme Court has recognized that
agencies may  promulgate regulations mandating exhaustion which are to
be  enforced by courts, see Darby v. Cisneros, 509 U.S. 137, 154 


(1993), and surely a reasonable regulatory interpretation or 
elaboration of a statutory exhaustion requirement qualifies as  such.
I do not see how the majority justifies ignoring this  regulation's
obligatory nature. That is equivalent to holding  the mandatory
exhaustion regulation unenforceable and re- placing it with a
judge-made, equity-inspired, permissive doc- trine. As this court
asked once before: "If an agency rule  requires, without exception,
that a party must take an admin- istrative appeal before petitioning
for judicial review, on what  basis may a court excuse
non-compliance?" Marine Mam- mal Conservancy, Inc. v. Department of
Agric., 134 F.3d 409,  411 (D.C. Cir. 1998). My answer is: certainly


The majority sideslips Darby's recognition that agencies  may impose
regulatory exhaustion requirements by limiting  Darby to situations
where the agency's regulatory exhaustion  requirements are authorized
by statutes that speak in juris- dictional terms. But Darby expressed
no such limitation; the  Darby Court was not even concerned with
limiting the power  of agencies to create exhaustion requirements; it
was con- cerned with limiting the power of courts to do so. Nor does 
Darby confuse (as does the majority) the concept of mandato- ry
exhaustion requirements imposed on parties with statutory  provisions
that strip courts of jurisdiction. Thus the Court  concluded that s
10(c) of the APA "has limited the availability  of the doctrine of
exhaustion of administrative remedies to  that which the statute or
rule clearly mandates." 509 U.S. at  146 (emphasis added).


Rather inconsistently the majority insists that it shows no  disrespect
for the agency's rule. Instead, it is simply correct- ing the agency's
"error." See Maj. Op. at 8-9, quoting  United States v. L.A. Tucker
Truck Lines, Inc., 344 U.S. 33,  37 (1952) ("[C]ourts should not
topple over administrative  decisions unless the administrative body
... has erred.").  But the majority never identifies the error it is
targeting, and  it should be obvious that it simply does not like the


Even assuming the exhaustion requirement were not man- datory, in which
case we could freely "balance the interest of 


the individual in retaining prompt access to a federal judicial  forum
against countervailing institutional interests favoring  exhaustion,"
McCarthy, 503 U.S. at 146, I do not think it  would be appropriate to
excuse Lutheran's default. Since  Lutheran has not claimed one of the
recognized exceptions to  the exhaustion requirement, see id. at
146-49--the majority  takes a different tack. It reasons instead that,
since the issue  of the existence or scope of attorney-client and work
product  privilege is not one that is committed to agency "expertise,"
 there is no basis for enforcing the exhaustion requirement  here.
That conclusion rests on the erroneous premise that  the only real
purpose of an exhaustion requirement is "to  allow an administrative
agency to perform functions within its  special competence." Parisi v.
Davidson, 405 U.S. 34, 37  (1972). But the leading exhaustion case
cited by Parisi,  quoted by the majority, is McKart v. United States,
395 U.S.  185 (1969), and McKart spoke of exhaustion as having various
 purposes, including enabling the agency to create a factual  record,
to apply its expertise, and to exercise its discretion.  See id. at
194 (observing that the exhaustion doctrine's fur- therance of
executive and administrative autonomy is "partic- ularly pertinent
where the function of the agency and the  particular decision sought
to be reviewed involve exercise of  discretionary powers" or
application of special expertise).  More recently in McCarthy, the
Court again said that "[e]x- haustion concerns apply with particular
force when the action  under review involves exercise of the agency's
discretionary  power or when the agency proceedings in question allow
the  agency to apply its special expertise." McCarthy, 503 U.S. at 


When a target of an NLRB or EEOC subpoena formally  asserts an
attorney-client or work product privilege pursuant  to the regulation,
we should expect, and EEOC's counsel  confirmed at oral argument, that
the matter is escalated  above the litigation attorney to a more
senior official of the  agency--perhaps the general counsel himself.
And, as we  should also expect, that might well lead to a modification
(or  even abandonment) of the agency's subpoena. It is hard to 
imagine any agency decisions more laced with discretion than 


such investigative and prosecutorial determinations. Cf.  Heckler v.
Chaney, 470 U.S. 821, 830-35 (1985) (discussing  discretionary nature
of agency decisions not to undertake  enforcement action). That we
would not defer to such a  decision, once made, does not detract at
all from the impor- tance of permitting the agency to resolve the
question in the  first instance. I cannot understand the majority's
disposition  to dismiss this sort of agency discretion as beneath our
notice,  let alone respect.


Understandably reluctant to be specific about the precise  nature of
the sweeping discretionary power it arrogates to  itself, the majority
does not make reference to doctrines of  equity. Yet the judicial
posture the majority assumes goes  far beyond even the balancing of
institutional and individual  interests that traditionally accompanies
non-mandatory com- mon law exhaustion. Its judgment seems ultimately
to rest  on little more than its determination that the "combined 
circumstances of this case" make it "unfair" to hold that  Lutheran
has forfeited its privilege claim, which I suppose  translates into a
new doctrine of judicial will, i.e., it pleases us  not to support the
EEOC's exhaustion rule.


But since the provision of Title VII and the EEOC regula- tion at issue
in this case simply followed the NLRA and  Labor Board regulation, s
1601.16(b)(1) perforce must be  interpreted and applied just as we
would treat the NLRB's  counterpart regulation (and vice versa). And
the Board's  exhaustion requirement has long been enforced by the
federal  courts, without any reference to the majority's broad notions
 of "equity." See, e.g., Maurice v. NLRB, 691 F.2d 182, 183  (4th Cir.
1982); Hedison Mfg. Co. v. NLRB, 643 F.2d 32, 34  (1st Cir. 1981);
NLRB v. Frederick Cowan & Co., 522 F.2d  26, 28 (2d Cir. 1975). In the
only circuit case on point, the  counterpart EEOC exhaustion
requirement was similarly en- forced. See EEOC v. Cuzzens of Georgia,
Inc., 608 F.2d  1062, 1063-64 (5th Cir. 1979) (per curiam); see also
EEOC v.  County of Hennepin, 623 F. Supp. 29, 31-32 (D. Minn. 1985); 
EEOC v. Roadway Express, Inc., 569 F. Supp. 1526, 1528-29  (N.D. Ind.
1983). The majority would distinguish these cases,  pointing out that
Cowan and Hedison, for example, involved a 


level of party misconduct not found here. Yet in all of the  cases,
courts refused to entertain objections to subpoenas  that had not been
presented to the issuing agency; in none of  them was there a
suggestion that open-ended equitable bal- ancing was appropriate or
even permissible. This case then  is the first serious challenge to
important Labor Board and  EEOC regulations that go back several
decades. The majori- ty's superficially narrow holding--forgiving
Lutheran's failure  to exhaust given the "combined circumstances of
this case,"  Maj. Op. at 13--should not obscure the far-reaching
conse- quences of its decision. Every case, after all, has its circum-
stances, and every chancellor's foot a different length. See 
generally Antonin Scalia, The Rule of Law as a Law of Rules,  56 U.


Finally, even assuming we had the extraordinarily broad  equitable
discretion the majority claims, I believe there is no  reason for
invoking it in this case. Traditional equitable  doctrines do not help
Lutheran here. The EEOC has not  waived its exhaustion argument, nor
would tolling be of much  use since Lutheran never made its privilege
objection in  writing at any time4 (as opposed to objecting after the
five  days passed), see Jones v. Runyon, 91 F.3d 1398, 1400 n.1  (10th
Cir. 1996) (distinguishing the requirement of a timely  EEOC filing
from the requirement of an EEOC filing). And 




__________

n 3 Judge Tatel, dissenting in In Re Sealed Case, 124 F.3d 230,  239-40
(D.C. Cir. 1997), powerfully argued that a loosey-goosey  balancing
test as applied to attorney-client privilege issues was 
inappropriate. The Supreme Court agreed. See Swidler & Berlin  v.
United States, 524 U.S. 399 (1998). In that case, the clear rule 
favored private lawyers, whereas here the loosey-goosey approach 
adopted by the majority apparently bails out some private lawyers.


4 As the majority indicates, Lutheran did inform the EEOC by  letter
that it thought the subpoena "improper" and that it did not  intend to
comply. But as I read the regulation, that letter, in  addition to
being untimely, was fatally deficient not only because it  was not
sent to the Director who issued the subpoena, but more  importantly
because the regulation requires the complaining party  to state
specifically the grounds of non-compliance, see 29 C.F.R.  s


although the majority suggests that agency officials misled  Lutheran
into thinking that it was not obligated to comply  with the
regulation--which I take to be an estoppel notion  though the majority
does not say so--the majority bases this  suggestion on Lutheran's
lawyer's assertion that an EEOC  investigator told him that Lutheran
would be notified before  the agency took any action. It does not seem
to matter that  this conversation took place well after the five-day
period had  elapsed, or that the EEOC investigator does not recall
mak- ing the statement.


A careful parsing of the majority's opinion reveals that the  only real
ground upon which my colleagues rely to tilt the  equities in favor of
appellant is the one they "begin" and end  with. See Maj. Op. at
9-10.5 That is, the subpoena stated,  that "it is issued pursuant [to]
42 U.S.C. s 2000e-9," but did  not explicitly alert appellant's Human
Resources Director, to  whom the subpoena was sent, that under EEOC's
regulation  (and for that matter the statutory provision that s
2000e-9  incorporates), appellant had five days to object formally.


But it is well settled that inaccurate or ineffective notice  from a
government agency is an excuse for non-compliance  with an EEOC time
limit only when the agency is "required  to provide notice of the
limitations period." Bowden v.  United States, 106 F.3d 433, 438 (D.C.
Cir. 1997). Like the  regulation at issue in Bowden, 29 C.F.R. s
1601.16(b)(1) does  not require that the agency provide notice of the
limitations  period for objections. As we held in Bowden, even if we 
thought it would be "sensible and simple" for the EEOC to  list the
regulation on the face of the subpoena, "the agency 




__________

n 5 The majority thinks it also significant that Lutheran orally 
informed an EEOC investigator (not the District Director) of its 
objections and that the District Director was (the majority infers) 
aware of Lutheran's objections. Apparently my colleagues are  willing
to excuse a party's non-compliance with agency regulations  when the
party comes "close enough"--in this case, informal con- versations
with the wrong person that took place before the subpoe- na ever
issued. That is, to say the least, a rule of administrative  law of
which I am not aware.


had no duty to do so" and thus Lutheran's failure to comply  with the
regulations cannot be excused on that ground. Id.


As for the supposed unfairness to Lutheran in not receiving  notice of
a federal regulation, I do not know whether to laugh  or cry. Any
lawyer experienced in the employment law field,  of course, would be
familiar with the regulation, but I think  we should assume that any
competent lawyer receiving such  a subpoena would spend the ten
minutes necessary to deter- mine the applicable law. (The majority is
willing to assume  that Lutheran's Human Resources Director could
locate  s 161(1) of the Labor Act from the cross-reference in Title 
VII, but thinks it requires some great feat of legal ingenuity  to
locate the applicable regulation.) Even if the Human  Resources
Director had not sent the subpoena to Lutheran's  counsel in time (as
the majority observes, the record is silent  on this issue), that
would be no excuse. In today's world, any  person in such a job who
did not consult counsel immediately  would be guilty of gross
negligence. Perhaps the import of  the majority's opinion is that the
NLRB and the EEOC, if  they wish their exhaustion regulations honored,
will have to  give the recipients the administrative law equivalent of
a  Miranda warning, including a list of counsel who have shown 


The majority's last point is that we should excuse Luther- an's failure
to exhaust because voluntary compliance with  Title VII is an
important value, and because that value  depends on safeguarding the
attorney-client and work prod- uct privilege. That conflates the
merits of Lutheran's privi- lege claim with the need for an exhaustion
requirement. The  Congress and the EEOC, which administers this
investigato- ry regime, believes that a mandatory exhaustion
requirement  is a necessary and useful component of it. Though
voluntary  compliance is an important value, and overzealous agency 
investigation without regard to claims of privilege could un- dercut
that value, it is for the agency, not for this court, to  strike the
balance. Why the majority cannot see (thinking ex  ante rather than ex
post) that its holding will actually under- mine voluntary
compliance--by encouraging subpoena recipi- ents to flout agency


equitable relief from a court--is beyond me. See generally  Frank H.
Easterbrook, Foreword: The Court and the Eco- nomic System, 98 Harv.
L. Rev. 4, 10-12 (1984). In any  event, I can accept the majority's
policy preference no more  than I can subscribe to its assertion of
discretionary power.  I dissent.