EEOC v. Peabody Coal Company, et al
ORDER denying 228 Motion to Dismiss Counts/Claims. Signed by Judge John W Sedwick on 9/20/12.(JWS)
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Equal Employment Opportunity
Peabody Coal Company,
Rule 19 Defendant.
Peabody Coal Company,
Larry J. Echo Hawk, in his official
capacity as Assistant Secretary for Indian )
Affairs of the United States of America,
and Kenneth L. Salazar, in his official
capacity as Secretary of the Interior
of the United States of America,
Third-Party Defendants. )
ORDER AND OPINION
Motion at docket 228]
Peabody Western Coal Company,
P. David Lopez, in his official capacity
as General Counsel of the Equal
Employment Opportunity Commission,
and Jacqueline A. Berrien, in her official
capacity as Chair of the Equal
Employment Opportunity Commission
I. MOTION PRESENTED
At docket 228, plaintiff Equal Employment Opportunity Commission (“EEOC”)
moves to dismiss the counterclaim filed by counter-claimant Peabody Western Coal
Company (“Peabody”). Peabody’s opposition is at docket 247, and EEOC’s reply is at
docket 259. Oral argument was requested, but would not be of assistance to the court.
This long running litigation has been resolved twice by the district court and been
appealed twice to the Court of Appeals. The case is now before a new district judge
following the circuit court’s second reversal and remand. There is no need to recount
the facts and procedural history prior to the most recent appellate court decision in this
order, because the parties are familiar with them, and other readers can inform
themselves by reading the prior circuit court decisions.1
E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774 (9th Cir. 2005) and E.E.O.C. v.
Peabody Western Coal Co., 610 F.3d 1070 (9th Cir. 2010).
Subsequent to the second remand, the EEOC filed a Second Amended
Complaint.2 The principal relief sought by EEOC is an injunction enjoining Peabody
from engaging in discrimination on the basis of national origin.3 Navajo Nation and
Peabody separately answered the Second Amended Complaint on February 14, 2011.4
The case was then stayed while Navajo Nation pursued a petition for certiorari in the
Supreme Court. After the petition was denied by the Supreme Court, Peabody filed a
third-party complaint against Messrs. Echo Hawk and Salazar in their official capacities
as officers of the United States Department of the Interior, which included a
counterclaim against EEOC.5 It is that counterclaim which is the subject of the motion
In Count One of the counterclaim section of Peabody’s pleading, it asks the court
to decide and declare whether the tribe-specific preferences involved in this litigation
are unlawful under Title VII, or lawful in spite of Title VII. In Count Two it alleges that
EEOC has violated the Administrative Procedure Act by prosecuting the lawsuit at bar
and by failing to determine in consultation with the Interior Department or otherwise
whether tribe-specific preferences fall outside the conduct proscribed by Title VII.
Second Amended Complaint, doc. 170.
The Second Amended Complaint also seeks related relief in the form of an order
requiring Peabody to provide equal opportunities for non-Navajo Native Americans “which
eradicate the effects of its past and present unlawful employment practices” (the quoted
language probably demands relief beyond that which the Court of Appeals authorized EEOC to
seek, but that is a matter for another day, and only if EEOC prevails on the principal issue) and
requiring Peabody to comply with record keeping provisions of Title VII.
Docs. 184 and 185.
Doc. 195. An identical complaint, save for the absence of a completed certificate of
service, was filed earlier the same day at docket 194.
The crux of EEOC’s motion is succinctly captured in this statement: “Neither the
EEOC’s alleged inactions nor the filing of this lawsuit provides a basis for judicial review
under the APA, as they are not “final agency actions under the APA and, furthermore,
Peabody has an adequate remedy available to it through this litigation.”6 It is fair to say
that the entirety of the parties’ briefing is aimed at establishing the accuracy or
inaccuracy of that statement. This court sees no need to parse the briefing and discuss
the numerous cases cited by the parties in their analyses, for two intertwined reasons.
First, if Peabody prevails on the merits of the EEOC’s claim because tribespecific preferences sanctioned by the United States, and an Indian tribe are creatures
of Indian law which fall outside Title VII, it will have succeeded to the same extent as it
would if the court had simultaneously entertained and decided the counterclaims. That
is to say, the court’s decision finding no merit in EEOC’s position would effectively
declare that EEOC cannot enforce Title VII against a tribe-specific preference
established in consonance with federal Indian law. Second, if EEOC prevails by
persuading the court that, despite the long history of government-sanctioned tribe
specific preferences, such preferences violate Title VII, then Peabody would not be
entitled to any relief on its counterclaims–even if EEOC should have conferred, but did
not confer, with the Interior Department, that failure would simply be moot. The court’s
conclusions on these points seem all the more appropriate given that the Interior
Doc. 228 at pp. 5-6.
Department has now fully set forth its views on the application of Indian law principles to
the tribe-specific preferences in dispute.
While the court is quite confident that the preceding synopsis is correct, if the
court has overlooked an issue that would not effectively be resolved by its decision on
the merits of EEOC’s claims, that oversight could be rendered of little significance by
granting the motion at docket 228 without prejudice to Peabody’s opportunity to file a
counterclaim after the court has decided the merits of EEOC’s claims.
For the reasons above, the motion at docket 228 is GRANTED but without
prejudice to Peabody filing a renewed counterclaim in the event that resolution of this
case on the merits of EEOC’s claims somehow leaves an issue relating to Peabody’s
conduct vis-a-vis the tribe-specific preferences enshrined in the leases unresolved.
DATED this 20th day of September 2012.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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