By Lisa Soronen
The essence of the U.S. Supreme Court’s decision in McLane v. EEOC is federal courts of appeals are busy and their jobs should not be made any harder.
In this case the Supreme Court held 7-1 that a federal court of appeals should review a federal district court’s decision to enforce or quash an Equal Employment Opportunity Commission (EEOC) subpoena for abuse of discretion not de novo (“from the new”).
When the EEOC investigates allegations of employment discrimination, if the employer refuses to provide the information the EEOC requests it will issue a subpoena demanding the employer respond. If the employer refuses to comply with the subpoena, the EEOC may ask a federal district court to enforce it. The district court will enforce the subpoena as long as it is “relevant” and not “too indefinite,” issued for “illegitimate purpose” or unduly burdensome. The district court’s decision can then be appealed to a federal court of appeals.
In this case Damiana Ochoa, a cigarette selector, filed a charge with the EEOC alleging sex discrimination in violation of Title VII. She was terminated after failing to pass a physical evaluation upon returning from maternity leave. The EEOC subpoenaed her employer, McLane, requesting biographical and other information about other test takers. McLane refused to turn over the biographical information.
A federal district court held the biographical information wasn’t “relevant” to the charges because “an individual’s name, or even an interview he or she could provide if contacted, simply could not shed light on whether the [evaluation] represents a tool of . . . discrimination.” The 9th U.S. Circuit court of Appeals reviewed the district court’s decision to quash the subpoena de novo though the court admitted it was “unclear” why it applied that standard instead of the abuse-of-discretion standard.
In concluding that a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena for abuse of discretion, Justice Sonia Sotomayor, writing for the court, looked at two factors, both of which she concluded point toward abuse-of-discretion review. First, the long standing practice of every court of appeals except the 9th Circuit was to use the abuse-of-discretion standard. Second, district courts are well suited, and better suited than appellate courts, to make “fact-intensive, close calls” necessary to decide whether to enforce a subpoena.
Unlike most employment cases it is not clear which outcome is better for public employers. Looking at this question on a case-by-case basis, if a district court quashes an EEOC subpoena an employer would prefer the appeals court review that decision deferentially. But if a district court grants an EEOC subpoena an employer would prefer de novo review of that decision.
Looking at the question of the preferred standard of review more generally, it may be advantageous to public employers if appellate courts review subpoena enforcement decisions deferentially to lower courts because this standard will discourage both parties from pursuing time-consuming and expensive appeals.
In this case the 9th Circuit reversed the district court’s decision to quash the subpoena. The Supreme Court left it to the 9th Circuit to decide this case over applying the abuse-of-discretion standard.
Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on judicial matters.