                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2483

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

                                               Plaintiff-Appellant,
                                v.

W ATKINS M OTOR L INES, INC.,
                                              Defendant-Appellee.


        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 07 C 4115—Rebecca R. Pallmeyer, Judge.



    A RGUED JANUARY 8, 2009—D ECIDED JANUARY 23, 2009




   Before E ASTERBROOK, Chief Judge, and E VANS and
T INDER, Circuit Judges.
   E ASTERBROOK, Chief Judge. In June 2004, after experienc-
ing three episodes of employee-on-employee murder
or attempted murder, Watkins Motor Lines decided that
it would no longer hire anyone who had been convicted
of a violent crime. Three months later Watkins rejected
Lyndon Jackson’s application because of his criminal
record. He filed a complaint with the Equal Employment
2                                                No. 08-2483

Opportunity Commission, which opened an investi-
gation to determine whether the policy had a disparate
impact on minority applicants—and, if so, whether it was
“job related for the position[s] in question and consistent
with business necessity”. 42 U.S.C. §2000e–2(k)(1)(A)(i).
Watkins did not cooperate in the investigation, and on
April 8, 2005, the EEOC issued a subpoena seeking infor-
mation that it thought pertinent to these subjects.
   Almost four years have gone by. Jackson and Watkins
reached a settlement in January 2006. Watkins insisted
that the settlement be contingent on the EEOC’s abandon-
ment of its investigation. Jackson told the EEOC that he
was withdrawing his charge of discrimination. But the
EEOC ’s regulations give it discretion whether to allow a
charge to be withdrawn, and it decided to press ahead
with an investigation that covers persons in addition to
Jackson. In September 2006 Watkins Motor Lines sold its
operating assets to FedEx. But it remains potentially
liable to Jackson and any similarly situated applicants,
so the proceeding is not moot.
  The district court did not act on the subpoena until
March 2008, when it dismissed for lack of subject-matter
jurisdiction the EEOC’s motion (filed in July 2007) to enforce
the subpoena. See 2008 U.S. Dist. L EXIS 25170, 103 Fair
Empl. Prac. Cas. 1523 (N.D. Ill. Mar. 26, 2008). Jackson
would be best served, the judge thought, by the settle-
ment, and since that settlement is contingent on with-
drawal of the charge the agency should have allowed him
to withdraw it. Because the agency’s contrary decision is
arbitrary, the judge wrote, it is as if no charge had been
No. 08-2483                                                  3

filed—and, if no one makes a valid charge, the EEOC is not
entitled to investigate. See EEOC v. Shell Oil Co., 466 U.S.
54 (1984).
  Although the judge thought that lack of a pending charge
deprives the court of subject-matter jurisdiction, that
conclusion is untenable. Several statutes supply jurisdic-
tion. Two provisions of Title VII itself authorize district
courts to adjudicate subpoena-enforcement actions filed by
the EEOC. 42 U.S.C. §§ 2000e–5(f), -8(c). Then there is
28 U.S.C. §1345, which creates subject-matter jurisdic-
tion for any suit filed by the United States or one of its
agencies. A district court’s belief that the EEOC should not
have investigated or sued does not detract from the fact
that it did ask the court to enforce its subpoena. A statute
authorizes the court to adjudicate this request. That’s all
subject-matter jurisdiction entails.
   The district judge may have been misled by the state-
ment in Shell Oil that a valid charge is essential to juris-
diction. The Justices appear to have meant the EEOC’s
jurisdiction, not the court’s. More importantly, Shell Oil
uses the word “jurisdiction” as a synonym for any manda-
tory rule. 466 U.S. at 65. It is important not to confuse this
common usage, which illustrates the proposition that
“jurisdiction is a word of many, too many, meanings”, Steel
Co. v. Citizens for Better Environment, 523 U.S. 83, 90 (1998),
with a rule that the court lacks subject-matter jurisdic-
tion. To say that subject-matter jurisdiction is missing is
not only to require the judiciary to raise the subject on
its own—though no one thinks that the court must deter-
mine the “validity” of a charge in every case, even if the
4                                                No. 08-2483

parties do not raise the issue—but also to imply that the
dispute belongs in some other tribunal. The Northern
District of Illinois is the right tribunal, this is the right
time, and these are the right litigants, to resolve the
question whether Jackson’s request to withdraw his
charge ends the EEOC’s authority to investigate the no-
violent-felony rule at Watkins Motor Lines.
  Recent decisions of the Supreme Court distinguish
between genuine limits on jurisdiction and mandatory
case-processing rules. See, e.g., Eberhart v. United States,
546 U.S. 12 (2005); Kontrick v. Ryan, 540 U.S. 443 (2004). The
benefits of case-processing rules may be waived or for-
feited. The Court has distinguished jurisdictional
from other requirements at least twice for Title VII in
particular. In Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the
Court held that the statutory definition of an “employer,”
which limits the Act’s coverage to businesses that have
at least 15 employees, does not curtail a district court’s
subject-matter jurisdiction. Closer to the mark, the Court
held in Zipes v. Trans World Airlines, Inc., 455 U.S. 385
(1982), that a court has subject-matter jurisdiction even
when a charge of discrimination is untimely. An em-
ployee’s delay in filing a charge gives the employer an
affirmative defense, Zipes held; it does not affect the
court’s jurisdiction. Just so with a timely charge that an
employee later tries to withdraw. Shell Oil does not over-
rule Zipes; it does not even cite Zipes. Shell Oil just used
the word “jurisdiction” loosely. And because the Court
found the charge in Shell Oil to be valid, it did not hold
anything about the consequences of an invalid charge for
a federal court’s jurisdiction.
No. 08-2483                                                 5

  The district court thus had subject-matter jurisdiction.
Still, Shell Oil says that the EEOC may use compulsory
process to acquire information only if someone has filed
a valid charge of discrimination. Shell Oil also shows that
the validity of the charge may be determined in the
subpoena-enforcement proceeding; the issue need not
await a later substantive suit by the agency or the
charging party. Watkins contends that Jackson’s request
to withdraw his charge should have been granted. Yet
withdrawing a charge does not mean that a valid charge
was never filed. Watkins does not contend, and the
district court did not find, that Jackson’s charge was
invalid when filed. All Shell Oil requires is a valid charge.
Once one has been filed, the EEOC rather than the em-
ployee determines how the investigation proceeds. Cf.
Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) (a
charging party’s failure to cooperate with the EEOC’s
investigation does not block that investigation or a suit).
   What the district judge said is that a charge sought to
be withdrawn to facilitate a settlement should be treated
just as if no charge ever had been filed. That stripe of legal
fiction has a history to which Watkins does not advert.
Consider a class action filed in federal court. Later the
defendant settles with the representative plaintiff, who
proposes to dismiss his complaint, or pays off the plain-
tiff’s claim and makes it moot. Does that mandate dis-
missal “as if the suit had never been filed?” Not at all.
The suit affects legal rights of persons other than the
initial plaintiff, and some other member of the class is
entitled to intervene to carry on with the litigation. See
Deposit Guaranty National Bank v. Roper, 445 U.S. 326 (1980);
6                                               No. 08-2483

United States Parole Commission v. Geraghty, 445 U.S. 388
(1980).
  Or suppose plaintiff and defendant reach a settle-
ment that is contingent on vacatur of all judicial
decisions made so far, in order to relieve the parties of
any preclusive or precedential effects that the decisions
carry. If “it is as if the suit had never been filed,” then
vacatur would be automatic. But U.S. Bancorp Mortgage
Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), holds
that settlements, far from leading to automatic vacatur,
cannot dispose of precedents. A judge is not bound by
the parties’ choice but may exercise discretion and
usually should exercise that discretion against vacatur, in
order to preserve the decisions’ value for other litigants.
   The argument that Watkins Motor Lines advances—that
withdrawing the charge and closing the investigation
will facilitate settlement—is exactly the sort of argument
made and rejected in Roper, Geraghty, and U.S. Bancorp
Mortgage. The problem with the argument is that it allows
litigants to achieve their settlement by injuring other,
unrepresented persons. Many a defendant would love
to decapitate a class after the statute of limitations has
run by paying off the sole representative plaintiff, and
thus avoiding potential liability to all other class mem-
bers. Roper and Geraghty curtail that practice. That is what
Watkins tried to do here by making its settlement con-
tingent on the withdrawal of Jackson’s charge, after
the time to file a new charge had expired. For the EEOC
had commenced a pattern-or-practice investigation that
might lead to relief for many persons in addition to
No. 08-2483                                                7

Jackson. The agency and the judiciary are not obliged
to abet this strategy by preferring Jackson’s interests
over those of other workers. Jackson and Watkins Motor
Lines are free to resolve their own dispute but may not
compromise the interests of other employees and appli-
cants in the process.
   The EEOC’s regulation says that “[a] charge filed by or on
behalf of a person claiming to be aggrieved may be with-
drawn only by the person claiming to be aggrieved and
only with the consent of the Commission . . . where the
withdrawal of the charge will not defeat the purposes
of title VII”. 29 C.F.R. §1601.10. The agency does not
commit a legal error, or act arbitrarily, by concluding that
it will “defeat the purposes of title VII” for the settlement
of a single applicant’s claim to wipe out a pattern-or-
practice investigation. The agency is entitled to vindicate
the interests of all employees and applicants.
   Decisions such as EEOC v. Waffle House, Inc., 534 U.S.
279 (2002), show that the agency’s powers are inde-
pendent of any resolution between employer and em-
ployee. (Waffle House holds that the agency may continue
its investigation even if an arbitrator has resolved the
dispute between a particular employee and the em-
ployer.) As we put it in EEOC v. Sidley Austin LLP, 437
F.3d 695, 696 (7th Cir. 2006): “The reason there was no
bar [in Waffle House] was not that the arbitration clause
was unenforceable but that the Commission was not
bound by it because its enforcement authority is not
derivative of the legal rights of individuals even when it
is seeking to make them whole.” If arbitration or, in
8                                               No. 08-2483

Sidley Austin, a given employee’s failure to exhaust his
remedies, does not foreclose independent investigation
by the EEOC, neither does a settlement in which the em-
ployer insists that the employee withdraw his charge.
  To sum up: A valid charge was filed, and it gave the
EEOC the power to investigate. A court can’t rewrite
history by saying that one thing (a withdrawn charge) is
“as if” another (no charge ever filed). Note, however,
that two can play the “as if” game: The Commission’s
decision not to allow a private charge to be withdrawn is
“as if” a Commissioner had filed a charge. See 42 U.S.C.
§2000e–5(b) (either a person aggrieved or a Com-
missioner may file a charge). True, a no-withdrawal
decision does not produce a piece of paper captioned
“charge of discrimination” and signed by a Com-
missioner, but this is an “as if” exercise, after all. We
know from Federal Express Corp. v. Holowecki, 128 S. Ct. 1147
(2008), that a document may be a “charge” even if it lacks
an appropriate caption and charging language. A piece
of paper that alleges discrimination and asks the agency
to take remedial action suffices. Jackson’s initial charge
did that, and when the EEOC refused to allow Jackson to
withdraw the charge it substituted itself for Jackson as
the proponent. Treating a no-withdrawal decision as if it
were a Commissioner’s charge is especially appropriate
when it would be too late for a Commissioner to make
a formal charge. (Scuttling the existing investigation,
while making it impossible to start a new one given the
time limit in §2000e–5(e), appears to be Watkins’s goal.
That would leave all other applicants in the lurch.)
No. 08-2483                                              9

  Watkins has not asked us to affirm the judgment on the
ground that the subpoena is needlessly burdensome or
otherwise inappropriate. Although we (like the district
judge) question whether the EEOC is acting prudently by
devoting time of both its staff and Watkins to short-
lived practices by an entity that is no longer an operating
company, and whose rule may well be amply supported
by “business necessity” given its history of workplace
violence, the Executive Branch rather than the Judicial
Branch is entitled to decide where investigative resources
should be devoted. A charging party’s change of mind
does not diminish the agency’s authority to investigate
on its own behalf. The judgment of the district court is
reversed, and the case is remanded with instructions to
enforce the subpoena.




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