Why it matters
Setting the standard for judicial review of an Equal Employment Opportunity Commission (EEOC) subpoena request, the U.S. Supreme Court declared that whether or not to enforce or quash an agency subpoena should be reviewed for abuse of discretion, not de novo review. The dispute began when an employee at McLane Company filed a charge of sex discrimination with the agency, launching an investigation. McLane provided the EEOC with basic information about its evaluation system as well as some information about employees. Based on this data, the agency expanded its investigation nationwide and added consideration of potential age discrimination, issuing two subpoenas for more information. When the employer balked, the EEOC filed actions in federal court to enforce the subpoenas. The district court declined to enforce them but, after reviewing the lower court’s decision de novo, the U.S. Court of Appeals for the Ninth Circuit reversed. In an opinion by Justice Sonia Sotomayor, the Court said the Ninth Circuit applied the wrong standard for review. District courts have “considerable experience” making similar decisions, the justices said, and should be reviewed using an abuse of discretion standard.
The job of a “cigarette selector” at McLane Company is demanding one, with workers required to lift, pack and move large bins containing products. Both new employees and those returning from medical leave are required to take a physical evaluation that tests range of motion, resistance and speed.
In 2007, Damiana Ochoa took three months of maternity leave from her position as a cigarette selector at McLane. When she tried to return to work, she was asked to take the evaluation. After failing the test three times, she was terminated. Ochoa filed a charge of discrimination with the EEOC, alleging that she had been fired on the basis of her gender.
The agency opened an investigation and McLane provided, upon request, basic information about the physical evaluation as well as a list of anonymous employees that the employer had asked to take it. The list included each employee’s gender, role at the company, evaluation score, and the reason asked to take the evaluation.
When the EEOC learned that McLane used the physical evaluation nationwide, the agency expanded the scope of its investigation, both geographically—to focus on all locations—and substantively, looking into whether McLane had discriminated against employees on the basis of age. As a result, the EEOC issued two subpoenas requesting “pedigree information”: the names, Social Security numbers, last known addresses and telephone numbers of the employees who had been asked to take the evaluation.
McLane refused. The agency filed two actions in Arizona federal court, but the judge declined to enforce the subpoenas with regard to the pedigree information. The U.S. Court of Appeals for the Ninth Circuit reversed, reviewing the lower court’s decision de novo and concluding it erred by finding the pedigree information irrelevant. However, the panel questioned in a footnote why de novo review applied as every other federal Circuit reviewed such issues for abuse of discretion.
The U.S. Supreme Court granted certiorari to resolve this question, finding that both of the factors considered by the justices—whether the history of appellate practice yielded an answer and whether one judicial actor is better positioned than another to decide the issue—pointed toward the abuse of discretion review.
“First, the longstanding practice of the courts of appeals in reviewing a district court’s decision to enforce or quash an administrative subpoena is to review that decision for abuse of discretion,” Justice Sonia Sotomayor wrote, a practice that predates even Title VII itself. Every Circuit except the Ninth applies this deferential standard to review a district court’s decision as to whether to enforce an EEOC subpoena, with the Ninth Circuit alone applying a more searching form of review.
“To be sure, the inquiry into the appropriate standard of review cannot be resolved by a head-counting exercise,” the justices said. “But the ‘long history of appellate practice’ here carries significant weight.”
Second, “basic principles of institutional capacity” counseled in favor of deferential review, the Court held. “The decision whether to enforce an EEOC subpoena is a case-specific one that turns not on ‘a neat set of legal rules,’ but instead on the application of broad standards to ‘multifarious, fleeting, special, narrow facts that utterly resist generalization.’ In the mine run of cases, the district court’s decision whether to enforce a subpoena will turn on whether the evidence sought is relevant to the specific charge before it or whether the subpoena is unduly burdensome in light of the circumstances. Both tasks are well suited to a district judge’s expertise.”
District courts have “considerable experience” in other contexts making similar decisions, Justice Sotomayor noted, such as deciding whether evidence is relevant at trial and whether pretrial criminal subpoenas are unreasonable in scope. While not the same as weighing whether to enforce an EEOC administrative subpoena, “they are similar enough to give the district court the ‘institutional advantag[e],’” the justices said.
Further, deferential review streamlines “the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court,” the Court wrote.
The justices remanded the case to the Ninth Circuit to review the district court’s decision under the appropriate standard.
Justice Ruth Bader Ginsburg filed a separate opinion, concurring in the holding that abuse of discretion is the proper review standard, but dissenting as she would have affirmed the Ninth Circuit’s judgment because the district court rested its decision on a legal error.
To read the opinion in McLane Co., Inc. v. EEOC, click here.