In the
United States Court of Appeals
For the Seventh Circuit

No. 01-8038

In Re Bemis Company, Inc.,

Petitioner.

Petition to Appeal from the United States District
Court for the Southern District of Indiana, Terre Haute Division.
No. TH 01-0112-C T/H--John D. Tinder, Judge.

Submitted January 11, 2002--Decided January 11,
2002/1--Opinion January 25, 2002



  Before Posner, Easterbrook, and Rovner,
Circuit Judges.

  Posner, Circuit Judge. Rule 23(f) of the
Federal Rules of Civil Procedure
authorizes us to accept appeals from
orders granting or denying motions for
class certification in Rule 23 class
actions. The EEOC has brought a Title VII
suit against Bemis Company on behalf of
five named, and a "class" of other, black
employees of the company. See 42 U.S.C.
sec.sec. 1981a(a)(1), 2000e-5(f), (g)(1).
The complaint seeks compensatory and
punitive damages and other relief for
what it claims is racial harassment of
the employees constituting the class.
Bemis answered, contending that the EEOC
had failed to comply with Rule 23 and
could not do so because the case does not
meet the requirements of the rule. The
EEOC moved to strike this part of the
answer on the ground that the Supreme
Court had held in General Telephone of
the Northwest, Inc. v. EEOC, 446 U.S. 318
(1980), that suits brought by the EEOC on
behalf of a class are not subject to Rule
23. The district court granted the motion
and Bemis has petitioned us to accept an
appeal from that order under Rule 23(f).
The EEOC argues that we have no
jurisdiction to consider Bemis’s petition
because the district court’s order did
not grant or deny class certification. We
disagree. Bemis’s answer to the complaint
asserts that the case cannot proceed as a
class action without compliance with Rule
23. The rejection of that position was
the functional equivalent of denying a
motion to certify a case as a class
action, a denial that Rule 23(f) makes
appealable (at our discretion).

  But we cannot grant the relief sought by
Bemis because the EEOC is indeed exempt
from Rule 23. That is the holding of
General Telephone and of course we have
no authority to overrule decisions of the
Supreme Court. The distinctions that
Bemis urges are threadbare: General
Telephone did not involve harassment, the
EEOC here is not alleging an intentional
company-wide pattern or practice of
discrimination, and it is seeking
compensatory and punitive damages rather
than merely injunctive relief and back
pay as in General Telephone (which was
decided before common-law-type damages
could be awarded in Title VII suits). We
do not begin to see what these
differences have to do with the reasoning
of General Telephone. The main reason the
Supreme Court thought Rule 23
inapplicable to EEOC class actions was
that the EEOC is not an exact or even
close counterpart to the class
representative (and class lawyer) in a
Rule 23 class action. The EEOC’s primary
role is that of a law enforcement agency
and it is merely a detail that it pays
over any monetary relief obtained to the
victims of the defendant’s violation
rather than pocketing the money itself
and putting them to the bother of suing
separately. Having to persuade the
district court that the class was
numerous and homogeneous and that the
EEOC’s interest was aligned with that of
the class members, the sort of things
that compliance with Rule 23 would
entail, would interfere with the
Commission’s exercise of its
prosecutorial discretion. It would be
like a court’s undertaking to decide
whether the Justice Department, in
bringing a suit attacking price fixing,
was being adequately solicitous of the
private interests of the victims of the
defendant’s conduct. "[T]he EEOC is
authorized to proceed in a unified action
and to obtain the most satisfactory
overall relief even though competing
interests are involved and particular
groups may appear to be disadvantaged.
The individual victim is given his right
to intervene for this very reason. The
EEOC exists to advance the public
interest in preventing and remedying
employment discrimination, and it does so
in part by making the hard choices where
conflicts of interest exist." General
Telephone of the Northwest, Inc. v. EEOC,
supra, 446 U.S. at 331.

  That at any rate was the line taken by
the Court in General Telephone and we
cannot find anything in the present case
that would have led the Court to carve an
exception for this case. It is of course
possible that this case is less
appropriate for class treatment--maybe as
Bemis argues there is a huge variance in
the nature and extent of the injuries
suffered by the members of the class. But
the Court did not hold in General
Telephone that the case before it met the
standards of Rule 23. The whole point was
that the EEOC doesn’t have to meet those
standards, a holding that embraces this
case as well. See also EEOC v. Dinuba
Medical Clinic, 222 F.3d 580, 587-88 (9th
Cir. 2000). What Bemis’s argument comes
down to is that if the Court had known
about a case like this, maybe it would
have decided General Telephone
differently. Maybe so, though we greatly
doubt it; but we cannot disregard Supreme
Court holdings on the basis of such
conjectures.

  Any doubt about the validity or scope of
General Telephone has been laid to rest
by the Supreme Court’s decision, rendered
just days after our order denying Bemis’s
petition, in EEOC v. Waffle House, Inc.,
No. 99-1823, 2002 WL 46763 (U.S. Jan.
15, 2002). In the course of holding, with
many approving references to General
Telephone, that even after the addition
of compensatory and punitive damages to
the EEOC’s arsenal of remedies the EEOC
does not sue as the representative of the
discriminated-against employees who may
benefit from the relief it obtains and
hence is not barred from suing by the
fact that the employees had agreed to
submit their claims to binding
arbitration, the Court stated that Title
VII "makes the EEOC the master of its own
case and confers on the agency the
authority to evaluate the strength of the
public interest at stake." Id. at *7.
"The EEOC does not stand in the
employee’s shoes." Id. at *10.

FOOTNOTE

/1 With the notation that an opinion explaining
our reasons would follow.
