Opinion analysis: Court unanimously adopts abuse-of-discretion review for district court decisions to enforce EEOC subpoenas
on Apr 4, 2017 at 1:29 pm
Even before the Supreme Court decided McLane Co. v. Equal Employment Opportunity Commission, there existed substantial agreement that courts of appeals should review district court decisions to quash or enforce EEOC subpoenas for abuse of discretion. Now that rule has been cemented in a decision authored by Justice Sonia Sotomayor, and the contrary rule of the U.S. Court of Appeals for the 9th Circuit – which called for de novo review – has been rejected. The only point of discord within the Supreme Court arose over what should come next: Seven justices voted to remand the case for the 9th Circuit to consider whether the district court’s decision to quash an EEOC subpoena in part was in fact an abuse of discretion, while Justice Ruth Bader Ginsburg dissented in part based on her view that the Supreme Court should have affirmed the 9th Circuit on the alternative ground that the district court applied the wrong legal standard when it declined to enforce the subpoena in full.
The EEOC has broad statutory authority to issue subpoenas in the course of investigating charges of employment discrimination, and it may seek enforcement of its subpoenas in district court when employers refuse to comply with them. In that event, the applicable test favors enforcement. As the decision explains: “If the charge is proper and the material requested relevant, the district court should enforce the subpoena unless the employer establishes that the subpoena is ‘too indefinite,’ has been issued for an ‘illegitimate purpose,’ or is unduly burdensome.”
Despite that deferential standard, the district court in this case partially refused to enforce an EEOC subpoena issued to McLane, a supply-chain services company. That subpoena was part of the agency’s investigation of a sex discrimination charge filed by former McLane employee Damiana Ochoa, who lost her job as a “cigarette selector” after she repeatedly failed a mandatory strength test following her return from maternity leave. In relevant part, the district court rejected the EEOC’s attempt to obtain contact information for all McLane employees nationwide who were required to take the same strength test. However, the 9th Circuit reversed, applying de novo review and reasoning that the district court had failed to apply the lenient statutory relevancy requirement properly. (The 9th Circuit also reversed the district court’s rejection, without explanation, of the EEOC’s demand that McLane furnish its reasons for terminating any employee who had previously taken the test; McLane did not challenge that portion of the decision.)
The court’s analysis turned on two questions: first, the “history of appellate practice,” and second, judicial competency. As to the first question, the court observed that, except for the 9th Circuit, all courts of appeals that have considered the issue apply abuse-of-discretion review in evaluating district court decisions to deny or enforce EEOC subpoenas. Moreover, Congress authorized the EEOC to issue subpoenas by incorporating into Title VII the provision of the National Labor Relations Act under which the NLRB may issue subpoenas and have them enforced in district courts. And by the time Congress did that, several courts of appeals had already decided that abuse-of-discretion review applied to district court decisions whether to enforce NLRB subpoenas. Thus, Congress presumably intended the same standard to apply in the EEOC context.
Turning to judicial competency, the court reasoned that the decision to quash or enforce an EEOC subpoena demands a variety of interrelated judgment calls on topics such as relevance to the agency’s investigation and burden on the employer. District courts, the court reasoned, are both in the best position to understand these issues and more experienced than courts of appeals in making similar types of decisions in other contexts.
Finally, the court addressed three arguments advanced by amicus curiae Stephen B. Kinnaird, who was appointed to defend the judgment of the 9th Circuit when the U.S. solicitor general declined to do so. The first of those centered on what it means for a district court to exercise discretion, with Kinnaird arguing that abuse-of-discretion review is appropriate only if the lower court was genuinely free to choose from among a range of outcomes. However, the court declined to adopt that literal definition, observing that abuse-of-discretion review “is also employed where the trial judge’s decision is given ‘an unusual amount of insulation from appellate revision,’” for the historical and functional reasons discussed above. Second, the court was unpersuaded by Kinnaird’s argument that abuse-of-discretion review is “analytically impossible” because district courts also review the initial EEOC subpoena under that standard. There, the court reasoned that the “double discretion” on which Kinnaird’s argument was premised is in fact illusory: District courts do not defer to the EEOC, but instead “must simply answer the question [whether to enforce a subpoena] cognizant of the agency’s broad authority to seek and obtain evidence.” Third, the court rejected the argument that de novo review is appropriate because subpoenas implicate the Fourth Amendment, observing that courts grant deference to other Fourth Amendment-related decisions, such as magistrate judges’ probable cause determinations.
This decision was a loss for the EEOC in the narrow sense: If it still wants pedigree information from McLane, it must now argue before the 9th Circuit that the district court abused its discretion. But this argument is likely to succeed, given that the 9th Circuit has already concluded that the district court made an error of law by interpreting too narrowly the scope of the EEOC’s authority to seek relevant information. Moreover, in rejecting the 9th Circuit’s outlier approach, the Supreme Court found plenty of opportunity to reiterate the breadth of the agency’s authority to subpoena information from employers in the course of investigating discrimination charges.