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`1
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` Cite as: 589 U. S. ____ (2020)
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` THOMAS, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` VF JEANSWEAR LP v. EQUAL EMPLOYMENT
` OPPORTUNITY COMMISSION
`
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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` No. 19–446. Decided April 6, 2020
`The petition for a writ of certiorari is denied.
`JUSTICE THOMAS, dissenting from the denial of certiorari.
`
`This case presents the question whether the Equal Em-
`ployment Opportunity Commission (EEOC) may continue
`to investigate an employer’s purported wrongdoing after is-
`suing a right to sue notice to a private party who, in turn,
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`has initiated her own litigation. The Seventh and Ninth
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`Circuits have determined that Title VII of the Civil Rights
`Act of 1964, 78 Stat. 253, grants the EEOC that power. See
`EEOC v. Union Pacific R. Co., 867 F. 3d 843, 848 (CA7
`2017); EEOC v. Federal Express Corp., 558 F. 3d 842, 851–
`852 (CA9 2009). The Fifth Circuit, on the other hand, has
`concluded that the plain text of Title VII prohibits such in-
`vestigations. See EEOC v. Hearst Corp., 103 F. 3d 462, 469
`(1997).
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`Though this split in authority is shallow, it directly im-
`plicates the EEOC’s core investigative powers. If the Fifth
`Circuit is correct that issuing a right to sue notice termi-
`nates the EEOC’s ability to investigate, then the EEOC
`may be wielding ultra vires power, impermissibly subject-
`ing employers to time-consuming investigations. I would
`grant certiorari to determine whether the agency is oper-
`ating within the confines of the authority granted by
`Congress.
`
`I
`A
`A preliminary analysis of the text suggests that the
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`2
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`VF JEANSWEAR LP v. EQUAL EMPLOYMENT
`OPPORTUNITY COMMISSION
` THOMAS, J., dissenting
`
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`EEOC may lack the authority to continue an investigation
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`after it has issued a right to sue notice. The basic provisions
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`governing the EEOC’s role in investigating discrimination
`claims are found in 42 U. S. C. §2000e–5. As relevant here,
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`the EEOC’s duties are triggered when it receives “a charge
`. . . filed by or on behalf of a person claiming to be ag-
`grieved.” §2000e–5(b); University of Pa. v. EEOC, 493 U. S.
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`182, 190 (1990). The EEOC must provide notice to the em-
`ployer “within ten days, and shall make an investigation
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`thereof.” §2000e–5(b) (emphasis added). “If the Commis-
`sion determines after such investigation that there is rea-
`sonable cause to believe that the charge is true, the Com-
`mission shall endeavor to eliminate any such alleged
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`unlawful employment practice by informal methods of con-
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`ference, conciliation, and persuasion.”
`Ibid. (emphasis
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`added). Otherwise, it will dismiss the charge. Ibid. “The
`Commission shall make its determination on reasonable
`cause as promptly as possible and, so far as practicable, not
`later than one hundred and twenty days from the filing of
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`the charge.” Ibid. But “[i]f a charge filed with the Commis-
`sion pursuant to subsection (b) is dismissed by the Commis-
`sion, or if within one hundred and eighty days from the fil-
`ing of such charge . . . the Commission has not filed a civil
`action under this section[,] . . . or the Commission has not
`entered into a conciliation agreement to which the person
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`aggrieved is a party, the Commission . . . shall so notify the
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`person aggrieved and within ninety days after the giving of
`such notice a civil action may be brought against the re-
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`spondent named in the charge.” §2000e–(5)(f )(1); see also
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`Fort Bend County v. Davis, 587 U. S. ___ (2019).
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`Regardless of how the EEOC may approach this process
`in practice, these statutory provisions set out a clear time-
`table and a sequential series of steps for the EEOC to fol-
`low. After giving notice to the employer, it must engage in
`an investigation that comes to a definitive end either be-
`cause the EEOC has entered into a conciliation process or
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`

`

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` Cite as: 589 U. S. ____ (2020)
`
` THOMAS, J., dissenting
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`
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` because it has dismissed the charge. Further, the EEOC
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`must issue the right to sue notice after 180 days—60 days
`after the timeline contemplated by the statute for a reason-
`able cause determination, which triggers dismissal of a
`charge or conciliation efforts. Thus, at first glance, it ap-
`pears that the more natural reading of these provisions is
`that Congress “expected the EEOC to complete investiga-
`tions within 120 days[, l]eaving an additional 60 days for
`the EEOC to determine whether suit should be filed.”
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`Hearst, 103 F. 3d, at 467.
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`3
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`
`B
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`Whatever the correct interpretation of the text, however,
`the Ninth Circuit’s approach in Federal Express, 558 F. 3d
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`842, is highly problematic. The Ninth Circuit began by as-
`serting that it was bound to enforce an EEOC subpoena if
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`the agency’s jurisdiction was “plausible” and not “plainly
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`lacking.” Id., at 848 (internal quotation marks omitted).
`Next, the court noted that the EEOC has, through regula-
`tion, interpreted its own statutory authority to allow the
`agency to continue processing a charge after it has issued a
`right to sue notice. Id., at 850; see 29 CFR §1601.28(a)(3)
`(2019). To cap off its analysis, the Ninth Circuit gave
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`weight to the fact that the EEOC had further interpreted
`its own regulation allowing “‘further processing [of] the
`charge’” after issuing notice to “includ[e] further investiga-
`tion.” Federal Express, 558 F. 3d, at 850 (citing EEOC Com-
`pliance Manual §6.4 (2006)). Thus, under this dual layer of
`agency interpretation, the Ninth Circuit concluded that Ti-
`tle VII permitted the EEOC to continue with its investiga-
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`tion after issuing a right to sue notice. The Ninth Circuit
`acknowledged that its reading conflicted with the Fifth Cir-
`cuit’s decision in Hearst, 103 F. 3d 462. But it disagreed
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`with the Fifth Circuit primarily because it viewed Hearst as
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`conflicting with the EEOC’s role in vindicating the public’s
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`4
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`VF JEANSWEAR LP v. EQUAL EMPLOYMENT
`OPPORTUNITY COMMISSION
` THOMAS, J., dissenting
`
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`interest in eradicating employment discrimination.* Fed-
`eral Express, 558 F. 3d, at 852.
`
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`The Ninth Circuit’s analysis contains at least four flaws.
`Most egregiously, the Ninth Circuit failed to consider the
`most useful, and perhaps dispositive, evidence—the text of
`Title VII itself. Nor did it perform anything remotely re-
`sembling an independent assessment of that text. Even un-
`der Chevron U. S. A. Inc. v. Natural Resources Defense
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`Council, Inc., 467 U. S. 837 (1984), courts are instructed to
`engage in their own analysis of the statute to determine
`whether any gap has been left for the agency to fill. Id., at
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`843, n. 9; see also INS v. Cardoza-Fonseca, 480 U. S. 421,
`447–448 (1987). The Ninth Circuit, by contrast, bypassed
`the statutory text entirely.
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`Second, the Ninth Circuit’s approach to jurisdiction was
`highly suspect, if not outright erroneous. As the Ninth Cir-
`cuit has elsewhere recognized, all administrative agencies
`“are creatures of statute, bound to the confines of the stat-
`ute that created them.” United States Fidelity & Guaranty
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`Co. v. Lee, 641 F. 3d 1126, 1135 (2011). This fundamental
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`principle applies not only to substantive areas regulated by
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`an agency but also to the agency’s underlying jurisdiction.
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`There is no basis for applying a “plainly lacking” standard
`when assessing the authority of an agency to act, let alone
`to issue wide-ranging subpoenas that consume the time and
`resources of employers.
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`Third, reliance on and deference to the EEOC’s regula-
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`tion also seems inappropriate under this Court’s Chevron
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`framework. The regulation was originally promulgated be-
`fore this Court’s decision in Chevron. See 29 CFR §1601.28
`——————
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`*The Ninth Circuit also relied in part on this Court’s decision in EEOC
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`v. Waffle House, Inc., 534 U. S. 279 (2002), where this Court held that an
`employee’s agreement to arbitrate employment disputes did not prevent
`the EEOC from pursuing victim-specific relief in court. But that decision
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`conflicts with the principle that the EEOC takes a plaintiff as it finds
`him. See id., at 303–312 (THOMAS, J., dissenting).
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`5
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`
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` Cite as: 589 U. S. ____ (2020)
`
` THOMAS, J., dissenting
`
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`(a)(3) (1978). The associated rulemaking contains no indi-
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`cation that the agency invoked its interpretive authority or
`even believed it was interpreting the statute at all. See 42
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`Fed. Reg. 42025, 42030–42031, 47831 (1977); see also 37
`Fed. Reg. 9214–9220 (1973). Thus, it is hardly self-evident
`that, even under our precedents, Chevron deference should
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`apply. See Barnhart v. Walton, 535 U. S. 212, 222 (2002).
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`Last but not least, the Ninth Circuit’s invocation of the
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`EEOC Compliance Manual not only assumes that the reg-
`ulation is ambiguous—itself a dubious proposition—but
`also is premised on so-called Auer deference to the agency’s
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`interpretation of its own ambiguous regulation. Auer v.
`Robbins, 519 U. S. 452 (1997). This doctrine has rightly
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`fallen out of favor in recent years, as it directly conflicts
`with the constitutional duty of a judge to faithfully and in-
`dependently interpret the law. See Kisor v. Wilkie, 588
`U. S. ___, ___ (2019) (GORSUCH, J., concurring in judgment);
`Perez v. Mortgage Bankers Assn., 575 U. S. 92, 112 (2015)
`(THOMAS, J., concurring in judgment).
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`II
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`Leaving the Seventh and Ninth Circuit’s highly question-
`able interpretation undisturbed has wide-reaching ramifi-
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`cations for employers subject to litigation in those Circuits.
`In this case, for instance, a former salesperson employed by
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`petitioner VF Jeanswear LP filed a charge with the EEOC,
`alleging that she was demoted on the basis of her sex and
`age in violation of Title VII. §2000e–2(a)(1). After she filed
`a complaint in state court, the EEOC issued her a right to
`sue notice, indicating that it would not finish processing her
`charge within the allotted 180-day timeframe. The former
`employee proceeded to litigate her claims in federal court,
`and the EEOC did not intervene.
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`Meanwhile, the EEOC continued with its own, far
`broader investigation, including a subpoena directing VF
`Jeanswear to “[s]ubmit an electronic database identifying
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`

`

`6
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`VF JEANSWEAR LP v. EQUAL EMPLOYMENT
`OPPORTUNITY COMMISSION
` THOMAS, J., dissenting
`
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`all supervisors, managers, and executive employees at VF
`Jeanswear’s facilities during the relevant period,” including
`information such as the “position(s) held and date in each
`position” and, “if no longer employed, [the] date of termina-
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`tion, and reason for termination.” 2017 WL 2861182, *2 (D
`Ariz., July 5, 2017). Thus, the EEOC not only subjected VF
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`Jeanswear to a second investigation, but it also issued a
`subpoena covering material that departed significantly
`from the employee’s original, individualized allegations. As
`the District Court noted in refusing to enforce the sub-
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`poena, the EEOC sought information regarding positions
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`for which the employee never applied, and amounted to “a
`companywide and nationwide subpoena for discriminatory
`promotion, a discriminatory practice not affecting the
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`charging party.” Id., at *6.
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`Because the textual argument against the EEOC’s power
`to issue this subpoena seems strong, and the argument sup-
`porting it particularly weak, I respectfully dissent from the
`denial of certiorari.
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