FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,                                        No. 02-17305
Plaintiff-Appellant,
                                                   D.C. No.
v.                                                 CV-01-01050-MHM

PEABODY WESTERN COAL COMPANY,                      OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding

Argued and Submitted
February 12, 2004--San Francisco, California

Submission Deferred February 13, 2004
Resubmitted March 3, 2005

Filed March 10, 2005

Before: Procter Hug, Jr., Arthur L. Alarcón, and
William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

                   3115
3116
3117
COUNSEL

Benjamin N. Gutman (Argued), EEOC, Washington, D.C.,
Ralph E. Chamness, Katherine Kruse, EEOC, Phoenix, Ari-
zona, for the plaintiff-appellant.

Lawrence Jay Rosenfeld, Mary E. Bruno, John F. Lomax, Jr.,
Greenberg Traurig, Phoenix, Arizona, for the defendant-
appellee.

_________________________________________________________________

                  3118
OPINION

W. FLETCHER, Circuit Judge:

The Equal Employment Opportunity Commission
("EEOC") filed this action against Peabody Western Coal
Company ("Peabody") for maintaining a Navajo hiring pref-
erence at the mines that Peabody leases from the Navajo
Nation. The EEOC alleges that Peabody has discriminated
against non-Navajo Native Americans, including two mem-
bers of the Hopi Nation and one member of the Otoe tribe, in
violation of Title VII, 42 U.S.C. § 2000e-2(a)(1).

On appeal, we are presented with three questions. The first
is whether, under Federal Rule of Civil Procedure 19, it is fea-
sible to join the Navajo Nation as a party. We hold that it is
feasible to join the Nation in order to effect complete relief
between the parties. Because the EEOC is an agency of the
United States, the Navajo Nation cannot assert its sovereign
immunity as a defense to joinder. The second is whether the
EEOC's claim presents a nonjusticiable political question. We
hold that it does not. The third is whether the district court
erred in dismissing the EEOC's claim that Peabody failed to
keep records as required by Title VII, 42 U.S.C.§ 2000e-8(c).
We hold that it did. We reverse and remand for further pro-
ceedings.

I. Background

Peabody mines coal at the Black Mesa Complex on the
Navajo and Hopi reservations in northeastern Arizona. It does
so pursuant to leases with the tribes entered into by Peabody's
predecessor-in-interest, the Sentry Royal Company
("Sentry"). Sentry entered into two leases with the Navajo
Nation: a 1964 lease allowing it to mine on the Navajo
Nation's reservation (lease no. 8580), and a 1966 lease allow-
ing it to mine on the Navajo portion of land set aside for joint
use by the Navajo and Hopi Nations (lease no. 9910). Both

                    3119
leases contain provisions requiring that preference in employ-
ment be given to members of the Navajo Nation. The 1964
lease provides that Peabody "agrees to employ Navajo Indians
when available in all positions for which, in the judgment of
[Peabody], they are qualified," and that Peabody "shall make
a special effort to work Navajo Indians into skilled, technical,
and other higher jobs in connection with [Peabody's] opera-
tions under this lease." The 1966 lease contains a similar pro-
vision, but also specifies that Peabody may "at its option
extend the benefits of this Article [containing the Navajo
employment preference] to Hopi Indians." The record indi-
cates that the language of the Navajo employment preferences
remains unchanged and does not show that the preference has
been extended to members of the Hopi Nation.

Pursuant to the Indian Mineral Leasing Act of 1938
("IMLA"), the Department of Interior has approved both the
leases, as well as subsequent amendments and extensions. See
25 U.S.C. §§ 396a, 396e; see also United States v. Navajo
Nation, 537 U.S. 488, 493 (2003) (explaining that the Depart-
ment of the Interior's approval is necessary before the leases
become effective). If the lease terms are violated, the Navajo
Nation and the Department of the Interior ("DOI") retain the
power to cancel the leases after a notice and cure period.

In June 2001, the EEOC filed this action in District Court
for the District of Arizona, alleging that Peabody was unlaw-
fully discriminating on the basis of national origin by imple-
menting the Navajo employment preference. Specifically, the
EEOC's complaint charged that Peabody had refused to hire
non-Navajo Native Americans -- two members of the Hopi
and one now-deceased member of the Otoe tribe, as well as
unspecified other non-Navajo Native Americans -- for posi-
tions for which they were otherwise qualified. The EEOC
argued that such conduct violated 42 U.S.C. § 2000e-2(a)(1),
which prohibits employers from refusing to hire applicants
because of their national origin. The complaint further alleged

                    3120
that Peabody had violated the record-keeping requirements of
§ 2000e-8(c).

Questions arising out of transactions, including coal mining
leases, on the Navajo and Hopi reservations and on the tribes'
joint land have been extensively litigated. See, e.g., Navajo
Nation, 537 U.S. at 493-513 (rejecting claim by Navajo
Nation that the Secretary of the Interior breached fiduciary
duties owed to the Nation by approving the coal leases); Pea-
body Coal Co. v. Navajo Nation, 373 F.3d 945, 946 (9th Cir.
2004) (holding that the court lacked jurisdiction to enforce
arbitration settlement agreement about lease royalty rates);
see also Clinton v. Babbitt, 180 F.3d 1081, 1083-86 (9th Cir.
1999) (describing the lengthy dispute between Navajo and
Hopi Nations over joint use land in Arizona); Navajo Nation
v. Peabody Holding Co., 209 F. Supp. 2d 269, 275-76
(D.D.C. 2002) (describing history of amendments to the
leases in a RICO suit by the tribe against Peabody).

Navajo employment preference provisions also have been
the subject of prior litigation. See Dawavendewa v. Salt River
Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1163 (9th
Cir. 2002) ("Dawavendewa II"); Dawavendewa v. Salt River
Agr. Imp. & Power Dist., 154 F.3d 1117, 1124 (9th Cir. 1998)
("Dawavendewa I"). In Dawavendewa I, we interpreted the
Indian preference exception of Title VII, § 2000e-2(i), to per-
mit discrimination in favor of Indians living on or near a res-
ervation, but not to permit discrimination against Indians
belonging to other tribes. Id. at 1124. On remand to the dis-
trict court, the private contractor defendant moved to dismiss
the case for failure to join the Navajo Nation as an indispens-
able party under Federal Rule of Civil Procedure 19(b).

In Dawavendewa II, 276 F.3d at 1153, we agreed with the
district court that the Navajo Nation was an indispensable
party. We held that "[a]s a signatory to the lease . . . the
Nation is a necessary party that cannot be joined because it
enjoys tribal sovereign immunity." Id. We noted when balanc-
                    3121
ing the factors to determine whether the Nation was an indis-
pensable party that the plaintiff

       may have a viable alternative forum in which to seek
       redress. Sovereign immunity does not apply in a suit
       brought by the United States. Moreover, recently, in
       EEOC v. Karuk Tribe Hous[ing] Auth[ority], 260
       F.3d 1071, 1075 (9th Cir. 2001), we held that
       because no principle of law `differentiates a federal
       agency such as the EEOC from the United States
       itself,' tribal sovereign immunity does not apply in
       suits brought by the EEOC.

Id. at 1162-63. When the EEOC moved "[a]t the eleventh
hour" to intervene, we denied the motion. We observed, how-
ever, "that nothing precludes Dawavendewa from refiling his
suit in conjunction with the EEOC." Id. at 1163.

In June 2002, the EEOC brought the present action, alleg-
ing intertribal discrimination as in Dawavendewa I and Dawa-
vendewa II. In February 2002, Peabody moved for summary
judgment under Federal Rule of Civil Procedure 56 and for
dismissal of the action under Federal Rules of Civil Procedure
12(b)(7) and 12(b)(1). Peabody neither admitted nor denied
that it had discriminated against non-Navajo Native Ameri-
cans in violation of Title VII. Instead, Peabody asserted that
Rule 19 required dismissal because the Navajo Nation was a
necessary and indispensable party. Peabody also asserted that
the issue of the legality of this lease provision was a nonjusti-
ciable political question, on the theory that because the DOI
had approved the mining leases, the court would have to make
an "initial policy choice" between the positions of the DOI
and the EEOC.

The district court held that it was not feasible to join the
Navajo Nation, and that the Nation was not only a necessary
but also an indispensable party. In the alternative, it found the
legality of the Navajo employment preference in the lease to

                    3122
be a nonjusticiable political question. The district court dis-
missed the entire action, including the EEOC's record-
keeping claim. The EEOC timely appealed. We reverse and
remand for further proceedings.

II. Discussion

A. Joining the Navajo Nation Under Rule 19

Rule 19 governs compulsory party joinder in federal district
courts. The district court held that it was not feasible to join
the Navajo Nation because, under Title VII, the EEOC cannot
directly sue the Nation. See 42 U.S.C. § 2000e(b)(1) (exempt-
ing Indian tribes from the statutory definition of"employer");
see also Dawavendewa II, 276 F.3d at 1159 n.9 (observing
that "pursuant to § 2000e(b), Indian tribes are specifically
exempt from the requirements of Title VII"). Although the
district court decided the issue on a motion for summary judg-
ment, we construe the motion as one to dismiss for failure to
join an indispensable party under Rule 12(b)(7). See Dredge
Corp. v. Penny, 338 F.2d 456, 463-64 (9th Cir. 1964)
(explaining that dismissal for failure to join a party must be
decided on a motion to dismiss, not summary judgment). We
review de novo the district court's legal conclusion that it is
not feasible to join the Navajo Nation. United States v.
Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (explaining that
although "[g]enerally, we review a district court's decision
regarding joinder for abuse of discretion[,] .. . . we review
legal conclusions underlying that decision de novo") (internal
citation and quotation marks omitted).

We hold that the Navajo Nation is a necessary party under
Rule 19. We hold, further, that where the EEOC asserts a
cause of action against Peabody and seeks no affirmative
relief against the Nation, joinder of the Nation under Rule 19
is not prevented by the fact that the EEOC cannot state a
cause of action against it. Because the EEOC is an agency of
the United States, the Nation cannot object to joinder based

                     3123
on sovereign immunity, as we noted in Dawavendewa II. 276
F.3d at 1162-63. We therefore hold that joinder of the Nation
is feasible.

1. Rule 19

In relevant part, Rule 19(a) provides that

        [a] person who is subject to service of process and
        whose joinder will not deprive the court of jurisdic-
        tion over the subject matter of the action shall be
        joined as a party in the action if (1) in the person's
        absence complete relief cannot be accorded among
        those already parties, or (2) the person claims an
        interest relating to the subject of the action and is so
        situated that the disposition of the action in the per-
        son's absence may (i) as a practical matter impair or
        impede the person's ability to protect that interest or
        (ii) leave any of the persons already parties subject
        to a substantial risk of incurring double, multiple, or
        otherwise inconsistent obligations by reason of the
        claimed interest. . . . If the joined party objects to
        venue and joinder of that party would render the
        venue of the action improper, that party shall be dis-
        missed from the action.

Rule 19(b) provides that if it is not feasible for the court to
join a person meeting the requirements of Rule 19(a), the
court

        . . . shall determine whether in equity and good con-
        science the action should proceed among the parties
        before it, or should be dismissed, the absent person
        being thus regarded as indispensable. The factors to
        be considered by the court [in determining whether
        a party is indispensable] include: first, to what extent
        a judgment rendered in the person's absence might
        be prejudicial to the person or those already parties;

                     3124
       second, the extent to which, by protective provisions
       in the judgment, by shaping of relief, or other mea-
       sures, the prejudice can be lessened or avoided;
       third, whether a judgment rendered in the person's
       absence will be adequate; fourth, whether the plain-
       tiff will have an adequate remedy if the action is dis-
       missed for nonjoinder.

Applying these two parts of Rule 19, there are three
successive inquiries. Bowen, 172 F.3d at 688 (describing Rule
19's "three-step process"). First, the court must determine
whether a nonparty should be joined under Rule 19(a). We
and other courts use the term "necessary" to describe those
"[p]ersons to [b]e [j]oined if[f]easible." Fed. R. Civ. P. 19(a);
see also Disabled Rights Action Committee v. Las Vegas
Events, Inc., 375 F.3d 861, 867 n.5 (9th Cir. 2004) (explain-
ing that the term "necessary" is a "term[ ] of art in Rule 19
jurisprudence"); Bowen, 172 F.3d at 688. If understood in its
ordinary sense, "necessary" is too strong a word, for it is still
possible under Rule 19(b) for the case to proceed without the
joinder of the so-called "necessary" absentee. In fact, Rule
19(a) "defines the persons whose joinder in the action is
desirable" in the interests of just adjudication. Fed. R. Civ. P.
19 Advisory Committee Note (1966) (emphasis added); see
also Bowen, 172 F.3d at 688. Absentees whom it is desirable
to join under Rule 19(a) are "persons having an interest in the
controversy, and who ought to be made parties, in order that
the court may act[.]" Shields v. Barrow , 58 U.S. (17 How.)
130, 139 (1854).

If an absentee is a necessary party under Rule 19(a), the
second stage is for the court to determine whether it is feasi-
ble to order that the absentee be joined. Rule 19(a) sets forth
three circumstances in which joinder is not feasible: when
venue is improper, when the absentee is not subject to per-
sonal jurisdiction, and when joinder would destroy subject
matter jurisdiction. See Fed. R. Civ. P. 19(a); see also Tick v.
                    3125
Cohen, 787 F.2d 1490, 1493 (11th Cir. 1986) (listing the three
factors that may make joinder unfeasible).

Finally, if joinder is not feasible, the court must deter-
mine at the third stage whether the case can proceed without
the absentee, or whether the absentee is an "indispensable
party" such that the action must be dismissed. As the Advi-
sory Committee Note explains, Rule 19 uses "the word `indis-
pensable' only in a conclusory sense, that is, a person is
`regarded as indispensable' when he cannot be made a party
and, upon consideration of the factors [in Rule 19(b)], it is
determined that in his absence it would be preferable to dis-
miss the action, rather than to retain it." Fed. R. Civ. P. 19
Advisory Committee Note (1966). Indispensable parties under
Rule 19(b) are "persons who not only have an interest in the
controversy, but an interest of such a nature that a final decree
cannot be made without either affecting that interest, or leav-
ing the controversy in such a condition that its final termina-
tion may be wholly inconsistent with equity and good
conscience." Shields, 58 U.S. at 139.

2. The Navajo Nation as a Necessary Party

The EEOC and Peabody agree, as they did in district
court, that the Navajo Nation is a necessary party under Rule
19(a)(1) because the Nation is a party to the lease with Pea-
body. For the sake of clarity, we explain why we also agree.
Rule 19(a) is "concerned with consummate rather than partial
or hollow relief as to those already parties, and with preclud-
ing multiple lawsuits on the same cause of action. " Northrop
Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1043 (9th
Cir. 1983) (citing Advisory Committee's Note Fed. R. Civ. P.
19 (1966)). As in Dawavendewa II, 276 F.3d at 1156, the
Nation is a signatory to lease provisions that the plaintiff chal-
lenges under Title VII. The EEOC seeks declaratory, injunc-
tive, and monetary relief. If the EEOC is victorious in its suit
against Peabody, monetary damages for the charging parties
can be awarded without the Nation's participation. But declar-

                     3126
atory and injunctive relief could be incomplete unless the
Nation is bound by res judicata. The judgment will not bind
the Navajo Nation in the sense that it will directly order the
Nation to perform, or refrain from performing, certain acts.
But it will preclude the Nation from bringing a collateral chal-
lenge to the judgment. If the EEOC is victorious in this suit
but the Nation has not been joined, the Nation could possibly
initiate further action to enforce the employment preference
against Peabody, even though that preference would have
been held illegal in this litigation. Peabody would then be,
like the defendant in Dawavendewa II, 276 F.3d at 1156, "be-
tween the proverbial rock and a hard place -- comply with
the injunction prohibiting the hiring preference policy or com-
ply with the lease requiring it." By similar logic, we have
elsewhere found that tribes are necessary parties to actions
that might have the result of directly undermining authority
they would otherwise exercise. See Pit River Home v. United
States, 30 F.3d 1088, 1092 (9th Cir. 1994) (Pit River Tribal
Council was a necessary party in suit challenging its designa-
tion by the Secretary of Interior as the beneficiary of reserva-
tion property); Confederated Tribes of Chehalis Reservation
v. Lujan, 928 F.2d 1496, 1497 (9th Cir. 1991) (Quinault
Nation was a necessary party in suit challenging the United
States' continued recognition of the Nation as sole governing
authority of the Quinault Indian Reservation). Following these
cases, we conclude that the Navajo nation is a necessary party
under Rule 19(a).

3. Feasibility of Joinder

We turn next to the issue of whether it is feasible to join the
Navajo Nation. Peabody does not contest that the court could
exercise personal jurisdiction over the Nation. Rather, Pea-
body argues that the district court lacked jurisdiction because
of the Nation's sovereign immunity.
In many cases in which we have found that an Indian
tribe is an indispensable party, tribal sovereign immunity has

                     3127
required dismissal of the case. See, e.g., Dawavendewa II, 276
F.3d at 1163; American Greyhound Racing, Inc. v. Hull, 305
F.3d 1015, 1027 (9th Cir. 2002). By contrast, in a suit brought
by the EEOC, the Nation's tribal sovereign immunity does not
pose a bar to its joinder. Tribal sovereign immunity does not
"act as a shield against the United States," even when Con-
gress has not specifically abrogated tribal immunity. United
States v. Yakima Tribal Court, 806 F.2d 853, 861 (9th Cir.
1986); United States v. Red Lake Band of Chippewa Indians,
827 F.2d 380, 382 (8th Cir. 1987). Because the EEOC is an
agency of the United States, "tribal sovereign immunity does
not apply in suits brought by the EEOC." Dawavendewa II,
276 F.3d at 1162-63; Karuk, 260 F.3d at 1075.

Peabody argues, however, that the district court lacked
the authority to join the Nation because the EEOC cannot
state a claim against an Indian tribe under Title VII. The par-
ties agree that the EEOC cannot sue an Indian tribe under
Title VII regarding the tribe's own employment practices.
Under § 2000e(b), an Indian tribe is specifically exempt from
the definition of "employer," and thus Title VII does not
apply to Indian tribes when they act as employers. In addition,
Title VII limits the EEOC's authority to proceed against "a
respondent which is a government, governmental agency, or
political subdivision." 42 U.S.C. § 2000e-5(f)(1). In the case
of a governmental respondent, if the EEOC fails to resolve the
matter by informal means, the EEOC "shall take no further
action and shall refer the case to the Attorney General who
may bring a civil action against such respondent. " Id.

However, a plaintiff's inability to state a direct cause of
action against an absentee does not prevent the absentee's
joinder under Rule 19. In Beverly Hills Federal Savings and
Loan Association v. Webb, 406 F.2d 1275, 1279-80 (9th Cir.
1969), we stated that "a person may be joined as a party
[under Rule 19(b)] for the sole purpose of making it possible
to accord complete relief between those who are already par-
ties, even though no present party asserts a grievance against

                    3128
such person." We held that a title company acting as a trustee
for some of the defendants' property was properly named as
a defendant "for the sole purpose of`facilitating' the enforce-
ment of any orders that might be made by the court with
respect to the trust or the trust property." Id. at 1279 (empha-
sis added). We so held even though the plaintiff did not "as-
sert any claim against the Title Company with respect to
which [the district] court has subject matter jurisdiction."
Webb, 406 F.2d at 1279 (emphasis added).

In National Wildlife Federation v. Espy, 45 F.3d 1337,
1344-45 (9th Cir. 1995), we held that private parties could be
named as defendants along with federal agencies in a suit
brought under the Administrative Procedure Act to enforce
rights conferred by the National Environmental Policy Act
and by the Food, Agriculture, Conservation and Trade Act of
1990. Although none of these statutes authorized causes of
action against the private parties, we held that Rule 19 none-
theless authorized their joinder as defendants. Id. In so hold-
ing, we cited Sierra Club v. Hodel, 848 F.2d 1068, 1077 (10th
Cir. 1988), in which the Tenth Circuit held that joinder of a
county was proper in an action under the Administrative Pro-
cedure Act against a federal agency, even though the plaintiff
could not sue the county directly.

Our circuit's reading of Rule 19 not to require a cause of
action between a plaintiff and a party sought to be joined
under the rule is consistent with Supreme Court precedent. In
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 356 (1977), the Supreme Court held that a labor
union named as a defendant was not liable for any discrimina-
tion. Thus, the plaintiff had no viable cause of action against
the union. Accordingly, the Court vacated a district court
injunction against the union. Nevertheless, the Supreme Court
wrote that "[t]he union will properly remain in this litigation
as a defendant so that full relief may be awarded the victims
of the employer's post-Act discrimination." Id. at 356 n.43
(citing Fed. R. Civ. P. 19(a); EEOC v. MacMillan Bloedel

                    3129
Containers, Inc., 503 F.2d 1086, 1095 (6th Cir. 1974)). The
Supreme Court reaffirmed Teamsters' approach to Rule 19 in
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 400 & n.14
(1982) (reiterating the Supreme Court's holding in Teamsters,
431 U.S. at 356, n.43).

We recognize that the Fifth Circuit has stated that"it is
implicit in Rule 19(a) itself that before a party . . . will be
joined as a defendant the plaintiff must have a cause of action
against it." Vieux Carre Prop. Owners v. Brown, 875 F.2d
453, 457 (5th Cir. 1989); see also Davenport v. Int'l Brother-
hood of Teamsters, AFL-CIO, 166 F.3d 356, 366 (D.C. Cir.
1999) (quoting this statement from Vieux Carre ). However,
our circuit has never agreed with the rule stated in Vieux
Carre. Moreover, the actual holdings of Vieux Carre and
Davenport (as distinct from their abstract statement of the
rule) can be reconciled with the Supreme Court's and with our
own Rule 19 cases. In Vieux Carre and Davenport, the courts
were answering different questions from the question in this
case. In Vieux Carre, the issue was whether the court could
join under Rule 19 and then impose an injunction directly on
a party against whom the plaintiff could not state a cause of
action. The court held it could not. 875 F.2d at 456-57. In
Davenport, the issue was the same as in Vieux Carre. 166
F.3d at 366. The D.C. Circuit held in Davenport , "[i]t is not
enough that plaintiffs `need' an injunction against Northwest
in order to obtain full relief. They must also have a right to
such an injunction, and Rule 19 cannot provide such a right."
Id.

The difference between the situation presented here, in
which plaintiffs seek no affirmative relief against the Navajo
Nation, and that in Vieux Carre and Davenport, in which
plaintiffs sought injunctions against the party sought to be
joined, is captured in the majority and concurring opinions in
General Building Contractors Association v. Pennsylvania,
458 U.S. 375 (1982). In General Building, the Supreme Court
held that injunctive relief to enforce Title VII rights could not

                     3130
be granted against employers who were "part[ies] found not
to have violated any substantive rights of [the plaintiffs]." Id.
at 399. The Court, however, also clarified that"[t]his is not
to say that [the employer] defendants . . . might not, upon an
appropriate evidentiary showing, be retained in the lawsuit
and even [be] subject to such minor and ancillary provisions
of an injunctive order as the District Court might find neces-
sary to grant complete relief." Id. (citing Zipes, 455 U.S. at
399-400). In her concurrence, Justice O'Connor emphasized
this point, observing that even though the Court in Teamsters
v. United States, 431 U.S. 324 (1977), had found that the
union had not violated Title VII, it had nonetheless"directed
the union [under Rule 19] to remain in the litigation as a
defendant so that full relief could be awarded the victims of
the employer's post-Act discrimination." Id. at 405
(O'Connor, J., concurring) (quoting Zipes, 455 U.S. at 399-
400).

As in Teamsters, Espy, and Webb, the EEOC has no
claim against the party it seeks to join and is not seeking any
affirmative relief directly from that party. Joinder is necessary
for the "sole purpose" of effecting complete relief between
the parties, Webb, 406 F.2d at 1279-80, by ensuring that both
Peabody and the Nation are bound to any judgment upholding
or striking down the challenged lease provision. Because the
EEOC is not seeking to hold the Navajo Nation liable under
Title VII, we reject Peabody's argument that our reading of
Rule 19 conflicts with the Rules Enabling Act's restriction
that the federal rules of civil procedure "shall not abridge,
enlarge or modify any substantive right." 28 U.S.C.
§ 2072(b). Joinder of the Nation does not, and cannot, create
any substantive rights that the EEOC may enforce against the
Nation, and the EEOC does not contend otherwise.

Our interpretation is consistent with other courts that
have allowed the EEOC to join a party under Rule 19 against
which it does not or cannot state a cause of action. In EEOC
v. Unión Independiente de la Autoridad de Acueductos, 279

                     3131
F.3d 49, 52 (1st Cir. 2002), for example, the EEOC filed a
complaint against a labor union for alleged discrimination
against an employee. The First Circuit observed without dis-
approval that the EEOC had named a Puerto Rican govern-
mental employer as a Rule 19 defendant "to ensure that
complete relief, including [the employee's] reinstatement, was
available." Id. Under Peabody's theory of Rule 19 and Title
VII, the EEOC would not have had statutory authority to join
a government as an employer because it could not sue that
employer directly. See 42 U.S.C. § 2000e-5(f)(1) (granting
authority to litigate against a government respondent to the
Attorney General). In EEOC v. MacMillan Bloedel , the Sixth
Circuit held that it was proper to join a union under Rule 19,
although the union was not charged with a Title VII violation.
503 F.2d at 1088. The court so held "because the decree
entered by the court might affect its collective bargaining
agreement[.]" Id. at 1095. "As a practical matter," the Sixth
Circuit observed, "the Union need not play a role in the litiga-
tion until the court finds that [the employer ] has violated Title
VII." Id.; see also id. at 1096 (citing cases in which union was
joined in order to participate in the remedy). We agree with
the Sixth Circuit in MacMillan Bloedel that our understanding
of Rule 19 is "consistent with Title VII's grant of broad equi-
table powers to the courts to eradicate the present and future
effects of past discrimination." 503 F.2d at 1095-96. See also
Gen. Tel. Co. v. EEOC, 446 U.S. 318, 333 (1980) (stating that
Congress intended to give the EEOC "broad enforcement
powers.").

Our interpretation of Rule 19 is also consistent with
both the purpose and text of the rule. The Northern District of
California provided a succinct statement of this purpose when
it explained that "[b]y definition, parties to be joined under
Rule 19 are those against whom no relief has formally been
sought but who are so situated as a practical matter as to
impair either the effectiveness of relief or their own or present
parties' ability to protect their interests." Eldredge v. Carpen-
ters 46 Northern California Counties Joint Apprenticeship

                     3132
and Training Committee, 440 F. Supp. 506, 518 (N.D. Cal.
1977). The Nation fits this definition -- it is a party against
which relief has not formally been sought but is so situated
that effectiveness of relief for the present parties will be
impaired if it is not joined. We hold that its joinder is feasible.
See Fed. R. Civ. P. 19(a).

Finally, we note what we do, and do not, decide today.
We do decide that the Navajo Nation is a necessary party that
is feasible to join under Rule 19(a). However, we do not
decide, even implicitly, the merits of the EEOC's Title VII
suit against Peabody. That determination is for the district
court on remand.

B. Political Question Doctrine

We next address the district court's ruling that the case
involves a nonjusticiable political question. In Baker v. Carr,
369 U.S. 186 (1962), the Supreme Court identified six factors
that may make a question nonjusticiable:

        [1] a textually demonstrable constitutional commit-
        ment of the issue to a coordinate political depart-
        ment; or [2] a lack of judicially discoverable and
        manageable standards for resolving it; or [3] the
        impossibility of deciding without an initial policy
        determination of a kind clearly for nonjudicial dis-
        cretion; or [4] the impossibility of a court's under-
        taking independent resolution without expressing
        lack of the respect due coordinate branches of gov-
        ernment; or [5] an unusual need for unquestioning
        adherence to a political decision already made; or[6]
        the potentiality of embarrassment from multifarious
        pronouncements by various departments on one
        question.
Id. at 217. See also Los Angeles County Bar Ass'n v. Eu, 979
F.2d 697, 702 (9th Cir. 1992) (quoting the six Baker factors).

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The Baker factors must be interpreted in light of the purpose
of the political question doctrine, which "excludes from judi-
cial review those controversies which revolve around policy
choices and value determinations constitutionally committed
for resolution to the halls of Congress or the confines of the
Executive Branch." Japan Whaling Association v. Am. Ceta-
cean Society, 478 U.S. 221, 230 (1986).

The district court misunderstood the political question
doctrine when it held that the third, fourth, and sixth Baker
factors were implicated by the EEOC's claim. A nonjusticia-
ble political question exists when, to resolve a dispute, the
court must make a policy judgment of a legislative nature,
rather than resolving the dispute through legal and factual
analysis. See Koohi v. United States, 976 F.2d 1328, 1331
(9th Cir. 1992). While it is true that the EEOC is challenging
a lease that the DOI has approved, the district court was not
called upon to make an "initial policy determination." Resolv-
ing whether and how Title VII applies is a matter of statutory
interpretation and thus involves simply implementing policy
determinations Congress has already made. The issues here
are entirely legal, and are of a sort "familiar to the courts."
Eu, 979 F.2d at 702.

Nor do the fourth and fifth Baker factors apply merely
because, at the behest of the EEOC, the district court was
asked to rule on the legality of a lease that the DOI had
approved. We regularly review the actions of federal agencies
to determine whether they comport with applicable law. See
Japan Whaling Ass'n, 478 U.S. at 230 (explaining that the
political question doctrine did not bar a challenge to the Sec-
retary of Commerce's action when a decision required"apply-
ing no more than the traditional rules of statutory
construction, and then applying this analysis to the particular
set of facts presented"). Nor do controversies between depart-
ments of the federal government necessarily present political
questions. See, e.g., United States v. Nixon, 418 U.S. 683, 693
(1974) (dispute between the President and the Special Prose-

                    3134
cutor); United States v. ICC, 337 U.S. 426, 430 (1949) (suit
by the United States to review decision of the Interstate Com-
merce Commission); TVA v. EPA, 278 F.3d 1184, 1198 (11th
Cir. 2002) (dispute between federal agencies about the mean-
ing of the Clean Air Act). We therefore conclude that no part
of this case presents a nonjusticiable political question.

C. Record-Keeping Claim

We turn finally to the EEOC's record-keeping claim.
Title VII requires a covered employer to make and preserve
records that are "relevant to the determinations of whether
unlawful employment practices have been or are being com-
mitted." 42 U.S.C. § 2000e-8(c). In its complaint, the EEOC
alleged that Peabody had failed to keep employment applica-
tions and sought an injunction directing Peabody to do so.
Peabody has a record-keeping obligation under Title VII unre-
lated to the challenged Navajo employment preference.
Although the district court did not explicitly discuss or ana-
lyze this claim, its entry of final judgment nonetheless effec-
tively dismissed it.

Peabody's motion for summary judgment did not men-
tion the record-keeping claim, and its motion to dismiss
argued only that the EEOC was not entitled to a jury trial on
the claim. In the absence of argument by the parties, fair
notice to the EEOC that its record-keeping claim faced dis-
missal, or any justification offered by the district court for
entering summary judgment on the claim, we vacate the judg-
ment as to the EEOC's record-keeping claim and remand for
further proceedings. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (the moving party "bears the initial responsi-
bility of informing the district court of the basis for its
motion"); Couveau, 218 F.3d at 1081 (observing that when
the reasons for the district court's decision are not clear, we
may vacate summary judgment and remand).
                    3135
Conclusion

We do not decide the merits of the EEOC's Title VII claim
against Peabody today. We hold simply that the Navajo
Nation is a necessary party to the action, and that it is feasible
to join the Nation in order to effect complete relief between
the parties. We also hold that the EEOC's suit does not pre-
sent a non-justiciable political question. Finally, we reverse
the district court's dismissal of the EEOC's record-keeping
claim. We remand for further proceedings consistent with this
opinion.

REVERSED AND REMANDED.

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