                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-1947


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Petitioner − Appellant,

           v.

MARITIME AUTOWASH, INC.,

                Respondent − Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:15-cv-00869-GLR)


Argued:   March 24, 2016                  Decided:   April 25, 2016


Before WILKINSON and NIEMEYER, Circuit Judges, and David C.
NORTON, United States District Judge for the District of South
Carolina, sitting by designation.


Reversed and remanded by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Norton joined. Judge Niemeyer
wrote an opinion concurring in the judgment.


ARGUED: Paula Rene' Bruner, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.       John S. Vander
Woude, ECCLESTON AND WOLF, PC, Hanover, Maryland, for Appellee.
ON BRIEF: P. David Lopez, General Counsel, Jennifer S.
Goldstein,   Associate  General   Counsel,   Lorraine  C.  Davis,
Assistant General Counsel, U. S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.
WILKINSON, Circuit Judge:

     Appellee Maritime Autowash, Inc. employed Elmer Escalante,

an undocumented alien, at one of its two full-service carwashes.

Escalante     filed   a    complaint    against     Maritime     with    the     Equal

Employment Opportunity Commission, alleging discrimination under

Title   VII   of   the     Civil   Rights    Act   of   1964.   As    part     of   its

investigation, the EEOC issued a subpoena seeking information

from Maritime related to Escalante’s charges, which the employer

opposed. The district court denied the EEOC’s application for

subpoena enforcement.

     This matter thus arrives on appeal at a very early stage.

The only issue before us is judicial enforcement of the EEOC’s

subpoena. We cannot yet know whether the agency’s investigation

will uncover misconduct by the employer or ever ripen into a

lawsuit. Nor can we assess what causes of action or remedies

might lie down the road. All that the district court was called

upon to decide was whether the EEOC had authority to investigate

Escalante’s charges. We think the trial court erred in declining

to authorize that very preliminary step.

                                        I.

    In May 2012, Maritime hired Elmer Escalante as a vacuumer

at its carwash in Edgewater, Maryland. At the time, Escalante

lacked authorization to work in the United States. Maritime and

Escalante     offer       contrasting   narratives       of     his     hiring      and

                                         2
termination. According to the employer, Escalante was originally

hired under the name Angel Erazo. The Department of Homeland

Security (DHS) informed Maritime in May 2013 after inspecting

its    workplaces     that    Erazo     had       no    lawful    work   authorization.

Maritime contends it terminated “Angel Erazo” and hired the same

person under the name “Elmer Escalante” that same month.

       For his part, Escalante claims that he was hired in May

2012 under his legal name, not Angel Erazo. The head manager

told him on his second day at work that the name Elmer Escalante

did not match his social security number. The manager allegedly

advised Escalante to obtain new documents bearing a different

name,    which      Escalante    did.    He       went    by     Angel   Erazo   for   the

following year. Escalante describes how, following an inspection

by DHS in May 2013, Maritime’s owner and its general manager met

with    all   the    Hispanic    employees.            They    offered   those   without

proper work authorization $150 each, styled as a one-time bonus,

to help them acquire new documentation with new names. Escalante

obtained      a   different     social   security          number    corresponding      to

“Elmer    Escalante.”        Maritime    then          rehired    him    and   the   other

Hispanic employees with their new papers.

       On July 27, 2013, Escalante and other Hispanic employees

complained to Maritime of unequal treatment and discrimination

targeting Hispanics. All of them were terminated the day they

raised the complaint. Escalante then filed charges with the EEOC

                                              3
on February 6, 2014 for discrimination on the basis of national

origin and retaliation as prohibited under Title VII. The time

period identified in his complaint was May 2012 to July 2013.

The complaint details the unequal employment conditions facing

Hispanic employees at Maritime, including longer working hours,

shorter breaks, lack of proper equipment, additional duties, and

lower    wages.   Ten    other     terminated   Hispanic    employees     lodged

similar complaints with the EEOC. The Commission served Maritime

with a notice of the charges on February 25, 2014.

     In    responding         to   the   charges,    Maritime      denied    all

allegations of discrimination and stated that Escalante had been

terminated for failing to appear for a scheduled work shift. By

Maritime’s account, “Elmer Escalante” had been employed for only

two months, from May 2013 to July 2013. Maritime relegated to a

single    footnote      the    fact   that   Escalante     had   worked     there

previously under the name of Angel Erazo. Maritime claimed that

it had terminated “Angel Erazo” in May 2013 pursuant to a DHS

inspection   that    revealed      Erazo’s   lack   of   work    authorization.

None of Maritime’s submissions to the EEOC touched upon whether

it had assisted Escalante in switching names and obtaining new

documentation, as he alleges it did.

     The EEOC served Maritime with a Request for Information

(RFI) on May 27, 2014 seeking personnel files, wage records, and

other employment data related to Escalante, the other charging

                                         4
parties, and similarly situated employees dating from January 1,

2012 to the time of the request. Maritime refused to provide

records for any Hispanic employee other than Escalante. It again

insisted that Escalante, as opposed to Angel Erazo, was hired in

May 2013 and accordingly limited its response to May to July

2013. Appellee further objected that certain of the agency’s

requests      were        unduly     burdensome,          overly       broad,       and/or

irrelevant.

       Faced with Maritime’s incomplete response to its RFI, the

EEOC    issued     a   subpoena     on     June    10,    2014     focused      only   on

Escalante’s charges. Maritime produced none of the subpoenaed

documents. The EEOC then filed an initial application seeking

enforcement of its subpoena, which the district court dismissed

without prejudice to allow the agency to correct certain factual

errors in its application. A second application for subpoena

enforcement followed on March 26, 2015.

       The   district      court    denied      that    application      in     a   letter

order    dated     June     23,    2015.    J.A.       315-16.   The    court       relied

primarily     on   this     circuit’s      decision      in   Egbuna     v.     Time-Life

Libraries, Inc., which held that a “plaintiff is entitled to

[Title VII] remedies only upon a successful showing that the

applicant was qualified for employment” and that being qualified

meant being “authorized for employment in the United States at

the time in question.” J.A. 316 (quoting 153 F.3d 184, 187 (4th

                                            5
Cir. 1998) (en banc) (per curiam)). From Egbuna’s reasoning, the

district     court      concluded     that     Escalante’s        lack      of      work

authorization    precluded      any   “standing       or   right       to   seek    the

remedies under Title VII” and thus left no viable basis for his

EEOC complaint. Id. “As the EEOC’s Application [for subpoena

enforcement] is premised solely on Escalante’s complaint, [the

application]     must     be   dismissed.”      Id.    The      EEOC     has     timely

appealed.

                                       II.

                                        A.

     We begin by emphasizing what we need not address in this

case. We are not addressing any defenses Maritime might raise

against the EEOC’s subpoena, such as the undue burdensomeness of

certain requests. We are not addressing the viability of any

cause of action that Escalante might eventually assert against

Maritime. We are not addressing the remedies that he might one

day claim. All that is further down the line. The only question

we must consider now is whether the EEOC’s subpoena, designed to

investigate Escalante’s Title VII charges, is enforceable. We

hold that it is.

     The EEOC is empowered to enforce Title VII’s provisions

against     employment     discrimination.       42    U.S.C.      §     2000e-5(a).

Central     to   that     enforcement        authority     is     the       power     to

investigate charges brought by employees, including the right to

                                        6
access “any evidence . . . that relates to unlawful employment

practices covered by [the statute],” id. § 2000e-8(a), as well

as   “the    authority       to    issue   administrative           subpoenas         and   to

request judicial enforcement of those subpoenas.” EEOC v. Shell

Oil Co., 466 U.S. 54, 63 (1984) (citing 42 U.S.C. § 2000e-9).

      The     district       court      plays          a    “limited”     role       in     the

enforcement of administrative subpoenas. EEOC v. City of Norfolk

Police Dep’t., 45 F.3d 80, 82 (4th Cir. 1995). “The [judicial

review] process is not one for a determination of the underlying

claim on its merits; Congress has delegated that function to the

discretion of the administrative agency. Rather, courts should

look only to the jurisdiction of the agency to conduct such an

investigation.” EEOC v. Am. & Efird Mills, Inc., 964 F.2d 300,

303 (4th Cir. 1992) (per curiam).

      That    jurisdictional          question         is    central     to    the    instant

dispute.     Both    parties       agree   on      the      key   factual       issue     that

Escalante held no valid work authorization when he was hired by

Maritime. They disagree on how Escalante’s undocumented status

affects     the     EEOC’s        authority       to       investigate        his    charges.

Maritime argues that someone lacking proper work authorization

was never qualified for employment and therefore lacks any cause

of action or remedy under Title VII. According to appellee, “[a]

valid charge of discrimination ‘is a jurisdictional prerequisite

to judicial enforcement of a subpoena issue[d] by the EEOC.’”

                                              7
Appellee’s Br. 3-4 (quoting EEOC v. United Air Lines, Inc., 287

F.3d 643, 650 (7th Cir. 2002) (quoting Shell Oil Co., 466 U.S.

at 65)). Without a valid charge from the employee presenting a

viable   cause   of    action,   the   court   cannot     enforce    the   EEOC’s

subpoena against the employer.

     The   Commission      responds     that   it    is    not    obligated      to

demonstrate valid causes of action or remedies under Title VII

when seeking to subpoena information. All it must show is that

an “arguable” or “plausible” basis for its jurisdiction exists

and that its investigative authority is “not plainly lacking.”

Appellant’s Br. 10 (quoting EEOC v. Randstad, 685 F.3d 433, 442

(4th Cir. 2012)). The agency reads Title VII’s definition of

“employee” and related provisions to cover Escalante despite his

undocumented status, which at least authorizes the agency to

investigate      his   charge    of    national     origin       discrimination.

Whether causes of action or remedies ultimately arise from the

investigation,     the   Commission    argues,      has   no   bearing     on   its

subpoena power. In other words, courts may uphold the agency’s

subpoena authority without the need to pass on its view of Title

VII’s coverage of undocumented workers.

                                       B.

     The plain language of Title VII provides a “plausible” or

“arguable” basis for the EEOC’s subpoena in this case. Randstad,

685 F.3d at 442. The term “employee” in Title VII is defined

                                       8
broadly as any “individual employed by an employer.” 42 U.S.C. §

2000e(f).       The    anti-discrimination         provisions        use    similarly

expansive terms, making it illegal to “fail or refuse to hire or

to     discharge      any   individual,       or   otherwise       to     discriminate

against    any     individual”      and   listing        “national      origin”   as   a

protected characteristic. Id. § 2000e-2(a). Title VII allows any

“person claiming to be aggrieved” to file charges with the EEOC.

Id. § 2000e-5(b). Nothing explicitly bars undocumented workers

from filing complaints.

       Whether under the name Elmer Escalante or Angel Erazo, the

charging party in this case was employed at Maritime’s carwash,

and his charge of discrimination rests squarely on one of the

protected       grounds.    The    EEOC’s      investigation         of    Escalante’s

charges was therefore at least plausibly and arguably related to

the authority that Congress conferred upon the Commission. Since

Maritime challenged only the agency’s subpoena authority, the

district court should have stopped at that point and enforced

the subpoena accordingly. This is not a case where the agency

went    rogue    or    jumped     the   tracks     and    sought     to    investigate

something unrelated to its statutory charge.

       Maritime counters that a reviewing court must ascertain a

valid charge of discrimination, which must incorporate a viable

cause of action or remedy, as a “jurisdictional prerequisite” to

enforcing the agency’s subpoena. In other words, what Maritime

                                          9
was asking the district court to do was address Title VII’s

coverage of undocumented workers before deciding the issue of

subpoena       enforcement.     The     district      court     followed   Maritime’s

lead, concluding that no Title VII causes of action or remedies

were open to those lacking proper work authorization, and so the

EEOC had no authority to investigate their charges.

       This has it all backwards. A court need not first address

causes    of    action     or   remedies     any   time    it    reviews      an   agency

subpoena. Maritime’s argument is premised on cases, primarily

EEOC     v.     Shell     Oil    Co.,     dealing       with     various      threshold

requirements for filing charges with the EEOC and for providing

notice    to    employers.      466     U.S.    54.     Shell    Oil,   for    example,

addresses how much information must be included in Title VII

charges and provided to the employer before the EEOC can secure

judicial enforcement of its subpoena.

       Those requirements are not at issue here. At the heart of

those cases raised by Maritime is § 706 of Title VII, which

provides, for instance, that charges be in “writing under oath

or affirmation,” “contain such information and be in such form

as the Commission requires,” and comply with a statutory filing

period. 42 U.S.C. § 2000e-5(b) (governing the form and content

of charges); id. § 2000e-5(e)(1) (requiring charges to be filed

within 180 days of the alleged unlawful conduct). This circuit

has    routinely        considered    when      these    threshold      requirements,

                                           10
particularly timeliness, form a “jurisdictional prerequisite” to

the   EEOC’s   investigation      such      that   non-compliance      precludes

subpoena enforcement. See, e.g., City of Norfolk Police Dep’t.,

45 F.3d 80 (considering the EEOC’s authority to investigate an

untimely charge).

      Here, Maritime does not contest Escalante’s compliance with

§ 706 or other threshold conditions. His charges are invalid,

Maritime argues, because an undocumented alien cannot present a

viable Title VII cause of action or remedy. That is much harder

to shoehorn into the concept of a “jurisdictional prerequisite”

for enforcing subpoenas. This court has not required the showing

of    a   viable   cause   of    action      or    remedy   at   the    subpoena

enforcement stage, and for good reason. Ensuring that charges

meet the guidelines on form, content, and timeliness is a far

cry from predicting and evaluating what relief on the merits the

charging party might ultimately claim.

      Courts   are   warned     not   to    venture   prematurely      into   the

merits of employment actions that have not been brought: “[a]t

the subpoena-enforcement stage, . . .‘any effort by the court to

assess the likelihood that the Commission would be able to prove

the claims made in the charge would be reversible error.’ The

EEOC’s authority to investigate ‘is not negated simply because

the party under investigation may have a valid defense to a



                                       11
later suit.’” Randstad, 685 F.3d at 449 (quoting Shell Oil, 466

U.S. at 72 n. 26; United Air Lines, Inc., 287 F.3d at 651).

       Maritime’s      approach    would    cram      substantive       questions     of

statutory coverage into the confines of subpoena enforcement.

Any    employer    wishing    to   dodge    a   subpoena       could    simply      raise

every     conceivable     obstacle     to       a     claimant’s       prospects     for

ultimate success. At the point where an investigation has barely

started and no lawsuit has been filed, the EEOC itself is hard-

pressed    to     determine    the   validity         of    the    charges.    Without

evidence, a record, and appropriate briefing, the court is even

less equipped to conduct full-blown merits review. To do so at

such an early juncture would “serve[] ‘not only to place the

cart before the horse, but to substitute a different driver [the

district court] for the one appointed by Congress [the EEOC].’”

Id. at 449-50 (quoting Graniteville Co. v. EEOC, 438 F.2d 32, 36

(4th    Cir.    1971)).   Regular    order          suggests      allowing    the   EEOC

investigation to run its course and reserving judgment on the

merits for a later time.

                                       C.

       The particular issue that Maritime presses -– whether and

to what extent Title VII covers undocumented aliens -– is a

novel and complex problem especially ill-suited to a premature

and absolute pronouncement. In presenting the issue, Maritime

relies    on    this    circuit’s    decision          in   Egbuna      v.   Time-Life

                                       12
Libraries, Inc., 153 F.3d 184, and the Supreme Court’s decision

in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002),

both    of     which       involve        undocumented             workers.      By     appellee’s

reading, Egbuna and Hoffman not only allow us to decide this

complicated question now, but in fact dictate a clear answer:

the    EEOC    has    no    authority         to    investigate         charges        brought    by

undocumented aliens.

       If only our job were that easy. Neither Egbuna nor Hoffman

was presented in the premature posture that we find ourselves in

now. In Egbuna, this court reviewed a grant of summary judgment

against an employee bringing a Title VII action for unlawful

retaliation. Hoffman asked the Court to review an NLRB order

awarding       an     employee       backpay        following         illegal         termination.

Neither       court    had     any       opportunity          to    consider      the       relevant

agency’s      subpoena       authority        or        how   it    related      to    the    relief

available to undocumented aliens. In short, those two decisions

do not control the outcome here.

       What     these      cases         do   throw       into       relief      are    the     hard

questions that arise when illegal immigrants invoke statutory

protections          against        employment            discrimination.             Hoffman     is

illustrative.         Even    as     the      Supreme         Court   reversed         the    NLRB’s

award    of    backpay       to     an    undocumented             alien,   it    affirmed       the

Board’s       authority        to        impose         other      sanctions      against        the

employer,       including           cease      and        desist       orders         and     notice

                                                   13
requirements. See Hoffman, 535 U.S. at 152. The lack of monetary

relief for the employee did not foreclose non-monetary remedies

the agency could use to rectify unlawful employment conditions.

The   whole      field    is   more     nuanced     and    less        categorical             than

Maritime suggests.

      When laid bare, Maritime’s challenge to the EEOC’s subpoena

envisions a world where an employer could impose all manner of

harsh     working       conditions      upon      undocumented             aliens,       and     no

questions     could      be    asked,      no   charges    filed,           and     no    agency

investigation even so much as begun. The employer is asking the

court for carte blanche to both hire illegal immigrants and then

unlawfully       discriminate        against      those        it     unlawfully          hired.

Maritime would privilege employers who break the law above those

who follow the law. And it would block the EEOC from shining

even the dimmest light upon the employer’s actions.

      So the agency must be allowed to do its job, but there are

limits to its powers too. None of this is intended to sanction

subpoena powers over any workplace grievance only speculatively

related to an agency’s statutory authority. We understand the

temptation for agencies to expand rather than contract their

spheres of influence. Subpoenas issued against individuals or

entities beyond an agency’s jurisdiction are ultra vires from

the     start,    and     courts     stand      ready     to        curb     that    kind       of

administrative      overreach.        If    subpoenas      are       unduly       burdensome,

                                             14
that too has long been subject to court challenge. But when, as

here, the agency is investigating charges plausibly within its

delegated powers, the courts should not obstruct. The district

court’s   judgment   is   hereby        reversed    and   remanded   with

instructions that the EEOC’s subpoena be enforced.

                                                   REVERSED AND REMANDED.




                                   15
NIEMEYER, Circuit Judge, concurring in the judgment:

       I share Judge Wilkinson’s sensible view that a “full-blown

merits review” is premature at the subpoena-enforcement stage.

Ante at 12.          But we have previously explained that an agency

must “show that the exercise of its jurisdiction is supported by

reasonable      cause     [when]      the   person       to    whom    the    subpoena     is

directed raises a substantial question that the court’s process

will be abused by enforcement.”                     EEOC v. S.C. Nat’l Bank, 562

F.2d   329,    332     (4th    Cir.    1977)     (emphasis          added).     Here,     the

employer has raised such a question, contending that the EEOC’s

issuance of a subpoena based on a charge filed against it by a

foreign   national        unauthorized         to    work      in    the   United    States

exceeds    the       scope     of     the   agency’s           statutorily      prescribed

investigative authority.               Judge Wilkinson elides this question

by   focusing     on    the    formalities          of   the    EEOC’s     jurisdictional

requirement.         I write separately to emphasize its substantive

component.

       In order to obtain judicial enforcement of a subpoena, “the

EEOC    must     show,”       among    other        things,      “that       . . .   it   is

authorized to make such investigation.”                        EEOC v. Wash. Suburban

Sanitary Comm’n, 631 F.3d 174, 180 (4th Cir. 2011) (internal

quotation marks and citation omitted).                      In the instant case, the

EEOC asserts that it derives its authority to investigate Elmer

Escalante’s complaint from Title VII, which provides that the

                                            16
Commission,      “[i]n    connection             with      any    investigation      of    a

charge,”   may    only    access          evidence      “that     relates    to   unlawful

employment practices covered by this subchapter and is relevant

to the charge under investigation.”                         42 U.S.C. § 2000e-8(a).

Indeed, the Supreme Court has cautioned that, under Title VII,

the EEOC’s power to issue subpoenas must be tethered to the

investigation of a “valid charge,” distinguishing the EEOC from

other   agencies         that        enjoy       more       “plenary”       investigative

authority.       EEOC v. Shell Oil Co., 466 U.S. 54, 64-65 (1984)

(emphasis added).        As the Court has explained,

     In construing the EEOC’s authority to request judicial
     enforcement of its subpoenas, we must strive to give
     effect to Congress’ purpose in establishing a linkage
     between the Commission’s investigatory power and
     charges of discrimination.   If the EEOC were able to
     insist that an employer obey a subpoena despite the
     failure of the complainant to file a valid charge,
     Congress’ desire to prevent the Commission from
     exercising unconstrained investigative authority would
     be thwarted.   Accordingly, we hold that the existence
     of a charge that meets the requirements set forth in
     § 706(b), 42 U.S.C. § 2000e-5(b), is a jurisdictional
     prerequisite to judicial enforcement of a subpoena
     issued by the EEOC.

Id. at 65 (emphasis added).

     While    Judge      Wilkinson         views     Shell       Oil’s    “jurisdictional

prerequisite”     satisfied          as     long    as     certain       formalities      are

fulfilled,    see     ante      at    10-11,        § 706(b)       also     contains      the

substantive   requirement            that    a     valid    charge       allege   that    the

employer “has engaged in an unlawful employment practice,” 42


                                             17
U.S.C. § 2000e-5(b).          Judicial enforcement of a subpoena issued

by the EEOC must therefore insist that the sought-after evidence

relate    to   a     charge    that     plausibly          alleges      “an    unlawful

employment practice.”         Id.

     It   is   not   immediately       clear       that    this    component    of   the

jurisdictional prerequisite is satisfied in this case –- where

all parties agree that Escalante is a foreign national who is

unauthorized to work in the United States –- given this court’s

precedent casting doubt on whether Title VII covers employment

relationships expressly prohibited by immigration statutes.                           See

Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 188 (4th Cir.

1998) (en banc) (per curiam) (holding that an unauthorized alien

whose former employer refused to rehire him lacked a cause of

action under Title VII because ruling otherwise “would sanction

the formation of a statutorily declared illegal relationship”

“[g]iven Congress’ unequivocal declaration [in the Immigration

Reform and Control Act of 1986] that it is illegal to hire

unauthorized    aliens”).           Where    “the    person       to   whom   [an   EEOC]

subpoena is directed raises a substantial question” that the

subpoena specifically seeks to facilitate the investigation of

alleged   employment     practices          that    are    categorically       excluded

from Title VII, S.C. Nat’l Bank, 562 F.2d at 332, courts must

engage    in   serious    consideration            of     the   agency’s      potential

encroachment before concluding that its enforcement request is

                                            18
supported by a “plausible” or “arguable” basis for jurisdiction,

ante at 8.    Such consideration would be consistent with both our

“limited” role at the subpoena-enforcement stage, ante at 7, and

the Supreme Court’s insistence that we not “thwart[]” “Congress’

desire to prevent the Commission from exercising unconstrained

investigative authority,” Shell Oil, 466 U.S. at 65.

     Moreover,     examining   whether      the    EEOC’s    application    for

subpoena enforcement exceeds its substantive jurisdiction would

not place us in “a world where an employer could impose all

manner of harsh working conditions upon undocumented aliens, and

no questions could be asked, no charges filed, and no agency

investigation even so much as begun.”               Ante at 14.      It would

simply recognize that an investigation of the employer’s alleged

civil and criminal violations of the immigration laws may fall

more appropriately under the purview of other agencies, whose

jurisdictions are defined by other, more applicable statutory

parameters.

     Nonetheless,     I   concur     in    the    judgment   to   enforce   the

subpoena in this case because, although the facts pertaining to

Escalante’s immigration status are clear, the record plausibly

suggests that the employer has engaged in a practice or pattern

of discrimination that adversely affects other employees who are

authorized    to   work   in   the    United      States.     See   42   U.S.C.

§§ 2000e-5(f), 2000e-6(e) (permitting the EEOC to bring civil

                                      19
actions).    Moreover, the scope of Egbuna has not been fully

delineated where an unauthorized alien is actually working for

an employer covered by Title VII.     I agree, therefore, that the

EEOC   is   “arguabl[y]”   or   “plausibl[y]”   acting   within   its

investigative jurisdiction here, ante at 8, even as I underscore

Judge Wilkinson’s caution that “courts [must] stand ready to

curb . . . administrative overreach” when such jurisdiction is

lacking, ante at 14.




                                 20
