Should a circuit court show deference to a district court’s decision to quash or enforce an EEOC subpoena?
When a federal district court makes a determination regarding whether to quash or enforce a subpoena, that decision is subject to appeal at the circuit court level. A circuit court can review a district court’s decision either deferentially or de novo. If a circuit court engages in deferential review, it will only overturn a district court’s decision if it determines that the district court abused its discretion in the matter. On the other hand, if a circuit court engages in de novo review, it will assess the factual evidence of the case and make a legal determination without regard for the findings by the court below. McLane Company, Inc. argues that a circuit court hearing an appeal from a district court’s decision to quash an Equal Employment Opportunity Commission (“EEOC”) subpoena should review the decision below deferentially. The EEOC argues, however, that a circuit court in that situation should instead review the decision de novo. The outcome of this case will impact the course of future EEOC litigation.
Questions as Framed for the Court by the Parties
Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
In 2007, Damiana Ochoa took maternity leave from her job at McLane Company, Inc. (“McLane”). Upon attempting to return to work, McLane informed Ochoa that she was required to pass the physical capability strength test. Ochoa failed the test three times, and as a result, McLane fired her. Ochoa subsequently filed a sex discrimination charge with the EEOC against McLane, and the EEOC began to investigate McLane’s employment history and practices.
At the outset of the discovery process, McLane disclosed that it administers strength tests for all employees who seek to return to a physically demanding position. McLane also volunteered general information about the test and those employees who had taken it at the same facility as Ochoa, including their gender, job type, reason for taking the test, and their results. However, McLane refused to disclose certain “pedigree information,” like the test takers’ names, social security numbers, last known addresses, and telephone numbers.
In response to McLane’s refusal, the EEOC issued an administrative subpoena requiring McLane to turn over the withheld information. McLane refused to comply with the subpoena and the EEOC filed a subpoena enforcement action with the United States District Court for the District of Arizona. While the district court granted the EEOC’s request for relief for certain pieces of information, it ultimately refused to enforce the demand for (1) the test takers’ pedigree information; and (2) the reason for termination of the employees who passed the physical strength test, but were later fired from their jobs. The district court held that the pedigree information was ultimately irrelevant to the sex discrimination claim. Although the court did not explain why it declined to enforce the EEOC’s request for the termination information, a transcript from a connected proceeding implies that enforcement of that request would be overly burdensome on McLane.
Upon the EEOC appealing the district court’s decision, the Ninth Circuit reversed in part with regard to the pedigree, and remanded the termination information decision to the lower court for additional fact-finding. In reviewing the issues de novo, the Ninth Circuit found that the district court erred in finding the pedigree information irrelevant and that the district court also had not fully considered the extent to which requiring disclosure of the termination information would unduly burden McLane. McLane now appeals this holding to the Supreme Court.
WHAT IS THE APPROPRIATE STANDARD OF REVIEW OF A DISTRICT COURT'S REFUSAL TO ENFORCE AN EEOC SUBPOENA?
McLane asserts that all circuits which have addressed this question other than the Ninth Circuit have determined that deferential review is the appropriate standard. McLane notes that the appropriate standard of review for a question involving a narrow, fact intensive inquiry is the abuse of discretion standard, under which a judgment would be overturned if the adjudicator did not use sound and reasonable decision-making skills, as indicated in Pierce v. Underwood, 487 U.S. 552 (1988). McLane also argues that subpoena issues are essential concerns falling within the discretion of district courts as courts of appeals are less equipped to deal with issues relating to a cold record. McLane further asserts that because the EEOC has numerous avenues through which to gather information in the event that the subpoena is not enforced, the negligible consequences indicate use of the abuse of discretion standard of review.
The EEOC agrees that abuse of discretion is the appropriate standard of review, as opposed to de novo review. The EEOC argues that because the district court’s failure to enforce the subpoena rested on a legal error, the Ninth Circuit was permitted to correct the error. The EEOC also states that fact intensive considerations such as those involved in subpoena enforcement are best suited to district courts. The EEOC argues that because of these case-specific assessments, de novo review by the court of appeals is not the appropriate standard.
McLane similarly argues for deferential review based on the ability of trial courts to assess information related to subpoenas and discovery issues. McLane argues that trial courts are better situated to investigate the claims of the parties. McLane indicates the long-standing deference to trial courts in similar matters necessitates use of the abuse of discretion standard. McLane also explains that courts can better respond to fact intensive inquiries and more adequately assess the parties’ needs.
Similarly, the EEOC states that the tradition of the courts of appeals weighs heavily in favor of abuse of discretion review with regards to decisions relating to EEOC subpoenas. The EEOC suggests that the National Labor Relations Act imposes this standard, indicating that Congress intended for the abuse of discretion standard to apply to EEOC subpoenas. The EEOC also argues that appellate review in case specific assessments provides only limited benefits for future cases. Further, the EEOC indicates that de novo review would lead to a larger number of appeals, thus slowing down inquiries under Title VII of the Civil Rights Act of 1964. The EEOC explains that the Supreme Court has indicated that this would be contrary to the objectives of the Title VII statute, which prohibits employment discrimination based on race, color, religion, sex, or national origin.
WAS THE ENFORCEMENT OF THE EEOC'S SUBPOENA CORRECT UNDER THE ABUSE OF DISCRETION STANDARD?
The EEOC contends that the court of appeals’ order to enforce the subpoena without remanding to the district court was correct even under the abuse of discretion standard. The EEOC argues that the district court’s refusal to enforce the subpoena was premised on an erroneous interpretation of relevance and that, therefore, the district court’s actions violate the abuse of discretion standard. The EEOC states that the district court incorrectly factored the agency’s need for evidence into its decision. The EEOC argues that this consideration does not properly fall into a determination of relevance.
McLane argues that the information being sought by the EEOC was not relevant and that the district court correctly noted that the EEOC may have been merely looking for future complainants. McLane states that under the appropriate standard, the EEOC would still have to show that the decision by the district court was an abuse of discretion. McLane indicates that the Ninth Circuit should have remanded to the district court to apply the proper standard.
The EEOC argues that remand would be inappropriate because, under the appropriate standard, the district court abused its discretion. Therefore, the EEOC contends that there is no need for remand when the record allows for a single result. The EEOC argues that the information being sought was obviously relevant to whether the strength tests were being used in a discriminatory fashion. The EEOC contends that the subpoena would have provided insight into whether or not a pattern of discrimination existed. The EEOC explains that this would help to reveal whether McLane’s termination of Ochoa was discriminatory. The EEOC also contends that there is no basis to remand based on McLane’s undue burden argument because McLane did not preserve the argument at the appellate stage.
McLane argues that because no finding was made by the district court in relation to its undue burden claim, the case must be remanded to the district court to consider the undue burden argument. McLane further notes that the district court investigated the relevancy of the agency’s inquiries. McLane argues that the inquiry suggested a search for information supporting a theory that the test was administered in a discriminatory fashion. McLane further contends that this would require a charge against the third party that administered and scored the test, not McLane. McLane argues that decisions of the district court stemmed from the history of the case and that the district court did not abuse its discretion but instead understood the record better than the Ninth Circuit.
EFFECTIVENESS AND EFFICIENCY
The Equal Employment Advisory Council et al. (“EEAC”) argue that reviewing EEOC subpoena enforcement determination under a deferential standard better comports with longstanding and important legal policies. First, EEAC asserts that a district court, as a trial court, is better situated to evaluate the pertinent facts in light of the manner and circumstances in which they are put on the record. Conversely, because appellate courts work from a dated written record of the facts of a case, they are often deprived of the “critical insights that were conveyed to the district court judge.” EEAC further contends that limiting appellate courts to a deferential standard of review promotes efficiency by streamlining the litigation process, precluding appellate courts from “reconsidering facts already weighed and considered.” Moreover, because EEOC matters are often riddled with complex factual material, it can be practically unwieldy and difficult to have an appellate court parse through the intricate record de novo.
PROMPT RESOLUTION OF TITLE VII DISCRIMINATION CLAIMS
EEOC also asserts that Title VII discrimination claims are specifically meant to be dealt with promptly. For example, Congress deliberately set a short statute of limitations for Title VII violations because, EEOC argues, doing so promotes both cooperation and voluntary compliance in workplace discrimination situations. Furthermore, encouraging prompt resolution of EEOC investigations helps put an end to workplace issues before they become even more serious problems. The EEOC maintains that, moreover, a policy of addressing employment discrimination within a short time after it occurs provides the mistreated employees with faster relief and also lessens the possibility that the relevant parties will forget what transpired by the time discovery comes around.
RELEVANCE DETERMINATIONS IN THE FUTURE
A group of law professors, in support of McLane, argue that the Supreme Court’s decision in this case will affect not only future EEOC subpoena reviews, but it will actually affect all administrative subpoena enforcement actions. The law professors argue that the Supreme Court has noted that all administrative subpoena reviews should be enforce in a homogenous manner. Therefore, because many executive agencies have the ability to subpoena information that is “relevant to their . . . domains,” the law professors say that the outcome of this case will have far reaching implications for all of those agencies. The law professors suggest that this could ultimately greatly increase costs and burdens on appellate courts if the court holds that a de novo review is proper.
LONGSTANDING PRACTICE, STATUTORY TEXT, AND SOUND ADMINISTRATION OF JUSTICE
The EEOC acknowledges that an appellate court should review questions of fact according to a deferential or abuse of discretion standard. The EEOC argues that an abuse of discretion standard is proper for reviewing a district court’s subpoena order because, first, both longstanding procedural practice and the statutory text of Title VII make clear that deferential review in such matters are required. Second, the “sound administration of justice” requires deferential review in the type of subpoena review at hand. For example, whereas de novo review may be helpful when it would have “law-clarifying benefits,” in appellate review of complex, close call issues, appellate courts are less able to make sound judgments based on a cold record.
Furthermore, because of the time-sensitive nature of administrative actions under Title VII, de novo review of subpoena-enforcement decisions would tend to cause unwanted procedural delays. The EEOC’s agreement with McLane on the law notwithstanding, the EEOC maintains that even under an abuse of discretion standard, the Ninth Circuit was correct in enforcing the EEOC’s subpoena for the pedigree information. The EEOC specifically argues that the district court made an error of law regarding relevancy of evidence. This is because, by definition, a court abuses its discretion when it bases its determination on an error of law; therefore, the EEOC concludes that the district court did, in fact, abuse its discretion in this case.
- Patrick Dorrian, Justices Will Examine EEOC Subpoena Review Standard, Bloomberg BNA (September 30, 2016).
- Vin Gurrieri, EEOC Subpoena Rulings Deserve Deference, Justices Hear, Law360 (April 11, 2016).
- Business Groups Urge Supreme Court to OK Narrower Review of EEOC Subpoena Rulings, Legal Solutions Blog (December 8, 2016).