February 21, 2017
TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Damiana Ochoa worked for eight years in a physically
demanding job for petitioner McLane Co., a supply-chain
services company. McLane requires employees in those
positions-both new employees and those returning from medical
leave-to take a physical evaluation. When Ochoa returned from
three months of maternity leave, she failed the evaluation
three times and was fired. She then filed a sex
discrimination charge under Title VII of the Civil Rights Act
of 1964. The Equal Employment Opportunity (EEOC) began an
investigation, but McLane declined its request for so-called
"pedigree information": names, Social Security
numbers, addresses, and telephone numbers of employees asked
to take the evaluation. After the EEOC expanded the
investigation's scope both geographically (to cover
McLane's national operations) and substantively (to
investigate possible age discrimination), it issued
subpoenas, as authorized by 42 U.S.C. §2000e-9,
requesting pedigree information relating to its new
investigation. When McLane refused to provide the
information, the EEOC filed two actions in Federal District
Court-one arising out of Ochoa's charge and one arising
out of the EEOC's own age-discrimination charge-seeking
enforcement of its subpoenas. The District Judge declined to
enforce the subpoenas, finding that the pedigree information
was not relevant to the charges, but the Ninth Circuit
reversed. Reviewing the District Court's decision to
quash the subpoena de novo, the court concluded that
the lower court erred in finding the pedigree information
A district court's decision whether to enforce
or quash an EEOC subpoena should be reviewed for abuse of
discretion, not de novo. Pp. 6-12.
(a) Both factors that this Court examines when considering
whether such decision should be subject to searching or
deferential appellate review point toward abuse-of-discretion
review. First, the longstanding practice of the courts of
appeals is to review a district court's decision to
enforce or quash an administrative subpoena for abuse of
discretion. Title VII confers on the EEOC the same authority
to issue subpoenas that the National Labor Relations Act
(NLRA) confers on the National Labor Relations Board (NLRB).
During the three decades between the NLRA's enactment and
the incorporation of its subpoena-enforcement provisions into
Title VII, every Circuit to consider the question had held
that a district court's decision on enforcement of an
NLRB subpoena is subject to abuse-of-discretion review.
Congress amended Title VII to authorize EEOC subpoenas
against this uniform backdrop of deferential appellate
review, and today, nearly every Court of Appeals reviews a
district court's decision whether to enforce an EEOC
subpoena for abuse of discretion. This "long history of
appellate practice, " Pierce v. Underwood, 487
U.S. 552, 558, carries significant persuasive weight.
Second, basic principles of institutional capacity counsel in
favor of deferential review. In most cases, the district
court's enforcement decision will turn either on whether
the evidence sought is relevant to the specific charge or
whether the subpoena is unduly burdensome in light of the
circumstances. Both of these tasks are well suited to a
district judge's expertise. The first requires the
district court to evaluate the relationship between the
particular materials sought and the particular matter under
investigation-an analysis "variable in relation to the
nature, purposes and scope of the inquiry." Oklahoma
Press Publishing Co. v. Walling, 327 U.S. 186, 209. And
whether a subpoena is overly burdensome turns on the nature
of the materials sought and the difficulty the employer will
face in producing them- " 'fact-intensive, close
calls'" better suited to resolution by the district
court than the court of appeals. Cooler & Cell v.
Hartmarx Corp., 496 U.S. 384, 404.
Other functional considerations also show the appropriateness
of abuse-of-discretion review. For one, the district
courts' considerable experience in making similar
decisions in other contexts, see Buford v. United
States, 532 U.S. 59, 66, gives them the
"institutional ad-vantag[e], " id., at 64,
that comes with greater experience. Deferential review also
"streamline[s] the litigation process by freeing
appellate courts from the duty of reweighing evidence and
reconsidering facts already weighed and considered by the
district court, " Cooter & Cell, 496 U.S.,
at 404, something particularly important in a proceeding
designed only to facilitate the EEOC's investigation. Pp.
(b) Court-appointed amicus' arguments in support
of de novo review are not persuasive.
Amicus claims that the district court's primary
task is to test a subpoena's legal sufficiency and thus
requires no exercise of discretion. But that characterization
is not inconsistent with abuse-of-discretion review, which
may be employed to insulate the trial judge's decision
from appellate review for the same kind of functional
concerns that underpin the Court's conclusion that abuse
of discretion is the appropriate standard.
It is also unlikely that affording deferential review to a
district court's subpoena decision would clash with Court
of Appeals decisions that instructed district courts to defer
to the EEOC's determination about the relevance of
evidence to the charge at issue. Such decisions are better
read as resting on the established rule that the term
"relevant" be understood "generously" to
permit the EEOC "access to virtually any material that
might cast light on the allegations against the
employer." EEOC v. Shell Oil Co., 466 U.S. 54,
68-69. Nor do the constitutional underpinnings of the
Shell Oil standard require a different result. While
this Court has described a subpoena as a "
'constructive' search, " Oklahoma
Press, 327 U.S., at 202, and implied that the Fourth
Amendment is the source of the requirement that a subpoena
not be "too indefinite, " United States v.
Morton Salt Co., 338 U.S. 632, 652, not every decision
touching on the Fourth Amendment is subject to searching
review. See, e.g., United States v. Nixon, 418 U.S.
683, 702. Cf. Illinois v. Gates, 462 U.S. 213, 236;
Ornelasv. United States, 517 U.S. 690,
distinguished. Pp. 9-11.
(c) The case is remanded so that the Court of Appeals can
review the District Court's decision under the
appropriate standard in the first instance. In doing so, the
Court of Appeals may consider, as and to the extent it deems
appropriate, any of McLane's arguments regarding the
burdens imposed by the subpoena. Pp. 11-12.
804 F.3d 1051, vacated and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and Kennedy, Thomas, Breyer, Alito, and
Kagan, JJ., joined. GlNSBURG, J., filed an opinion concurring
in part and dissenting in part.
VII of the Civil Rights Act of 1964 permits the Equal
Employment Opportunity Commission (EEOC) to issue a subpoena
to obtain evidence from an employer that is relevant to a
pending investigation. The statute authorizes a district
court to issue an order enforcing such a subpoena. The
question presented here is whether a court of appeals should
review a district court's decision to enforce or quash ...