                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 07 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT                                 No. 12-15238
OPPORTUNITY COMMISSION,
                                                 D.C. No. 2:09-cv-00209-RCB
              Petitioner - Appellant,

  v.                                             MEMORANDUM*

BASHAS’ INC.,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Arizona
              Robert C. Broomfield, Senior District Judge, Presiding

              Argued February 12, 2014, Submitted October 7, 2014
                           San Francisco, California

Before: CALLAHAN and M. SMITH, Circuit Judges, and KORMAN, Senior District
Judge.**

       The EEOC served Bashas’ Inc. with the subpoena at issue on this appeal.

Bashas’ refused to comply. Except for a few “requests which the [district] court

deem[ed] irrelevant,” the district court directed that Bashas’ comply with the EEOC’s

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
subpoena. After the parties failed to agree on the terms of a confidentiality order, the

district court entered one of its own. Only the EEOC appeals, arguing that the

confidentiality order entered by the district court is wholly unwarranted or,

alternatively, overbroad.

      In its brief on appeal, the EEOC took the position that it could make disclosure

of subpoenaed information prior to issuing a Notice of Right to Sue and closing its

investigation. Specifically, it stated that “the EEOC may make disclosures to

aggrieved persons during the investigation to the extent deemed necessary to

effectively enforce the law.”       Moreover, this position was consistent with its

argument in the district court that the statutory and regulatory framework gave it the

right to make such disclosure.

      Nevertheless, in its oral argument, the EEOC did an about-face. Thus, the

attorney arguing the case stated:

                    During pendency of the charge/investigation,
                    no one is getting anything. Not Parra parties.
                    Not anybody else parties. Not aggrieved
                    persons. Nobody. It’s only after a Notice of
                    Right to Sue has been issued, and only if the
                    person is within the class, only information as
                    to them, and only information that isn’t
                    subject to a FOIA exemption or a Section 83
                    exemption . . . .
                                        ***



                                           2
                   I want to be really clear on this [point].
                   During the pendency of the investigation, no
                   one gets anything. FOIA and Section 83 only
                   pertain to once a Notice of Right to Sue has
                   been issued.

      The EEOC’s position at oral argument may obviate the need for a

confidentiality order altogether. Indeed, counsel for Bashas’ admitted during oral

argument that, given the EEOC’s new position, he saw far less need for a

confidentiality order. He stated, “I guess I would say we don’t have a problem.”

      Under these circumstances, we remand to the district court for reconsideration

in light of the EEOC’s concession on this appeal. Moreover, we emphasize, as we

have previously held in a case involving a concession made by a party during oral

argument, that the EEOC’s “statement is binding on it in any further proceedings in

this case.” See Amberhill Props. v. City of Berkeley, 814 F.2d 1340, 1341 (9th Cir.

1987); see also Wagner v. Prof’l Eng’rs in Cal. Gov’t, 354 F.3d 1036, 1043 n.3 (9th

Cir. 2004) (finding party “judicially bound” to concession made at oral argument and

citing Amberhill). Because our disposition of the case is based on a concession and

not upon our independent analysis of the law, it should not be read as suggesting that

the EEOC would necessarily be bound to its concession in any other case.

      VACATED AND REMANDED.




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