Reply Brief — McLane Co. v. Equal Emp't Opportunity Comm'n, 137 S. Ct. 30 (2016) (No. 15-1248)

SRIEFE

FILED

FEB -6 201/

ro 7; CLE’?

SUPREME cone .

No. 15-1248

3u Ube

Supreme Court of the United States

a ee

MCLANE COMPANY, INC.,

Petitioner,

v

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondent

— > — — -—--_—-

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

(a oJ

REPLY BRIEF FOR PETITIONER

e ——E

ANDREW M. JACOBS ALLYSON N. Ho

SNELL & WILMER LLP Counsel of Record

One South Church Avenue, RONALD E. MANTHEY

Suite 1500 JOHN C. SULLIVAN

Tucson, Arizona 85701 MorGAN, LEWIS &

T. 520.882.1200 BOCKIUS LLP

Wiizaw R. PETERSON 1717 Main Street, Suite 3200

M Dallas, Texas 75201

ORGAN, LEWIS

T. 214.466.4000

& BOcKIUS LLP —_———

1000 Louisiana Street, allyson_ho@morgan

Suite 4000 Counsel for Petitioner

Houston, Texas 77002

T. 713.890.5000

OO ———————

Il.

TABLE OF CONTENTS

To Enforce Or Quash Administrative Sub-

poenas For Abuse Of Discretion. ..................

A. This Court’s Precedent Confirms That

Review Should Be Deferentia! ..............

B. Amicus’s Novel Alternative Framework

Confirms That Review Should Be For

C. Whether Subpoena Enforcement Is A

Legal Question Does Not Dictate The

Proper Standard Of Review ..................

Affirmed jideatisbduppeonsydeeautabnnalts mobamivabguennres taines

A. The Court Should Decline To Entertain

The Government’s, Alternative Ground

B. The District Court Correctly Held That

The EEOC Failed To Carry Its Burden

Of Establishing Relevance ...

C. The Government's ei

For Affirmance Lack Merit....................

1. The District Court Did Not Wrongly

Apply The Law ................ Sunsncivoneniv

; Page

, TABLE OF CONTENTS .........00...00+.--00e0ees. att ae i

TALE OF Ra ae I nesssscescencesncassscernesvsssaoss iii

REPLY BRIEF FOR PETITIONER.....................+. 1

I. Appellate Courts Should Review Decisions

13

13

15

18

il

TABLE OF CONTENTS—Continued

Page

2. The EEOC Cannot Establish Rele-

vance By Claiming It Needs Nation-

wide Contact Information For 14,000

People To Investigate “Possible” Dis-

STEED TORII ba cectinececichacancausveedis 20

3. Personal Contact Information Is Ir-

relevant To Investigating Any Dis-

parate Impact Of The Neutrally

Applied Evaluation ............ dekaccipedtic’ 21

CA JEWAEALIGEIUEN sntvuqoyresesssccananss ietisebesdikcaeasieimaens 24

CASES

Buford v. United States, 532 U.S. 59 (2001)................. 5

Cooter & Gell v. Hartmarx, 496 U.S. 384

5 atl sa EE eR at ser alae Se Nag hs Se 2p eae passin

CRST Van Expedited, Inc. v. EEOC, 136 S. Ct.

Ff, Feta Mae eed Re ah ors ts he AA ee 2,13

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1

SI cers tteth tn tids et areeetinatameic aka etirelantaviaasee 11

D. G. Bland Lumber Co. v. NLRB, 177 F.2d 555

SONNE a sd esaguetetaponeasis 7

EEOC v. Shell Oil Co., 466 U.S, 54 (1984) .... 12, 14, 16, 17

EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th

aM HEAT alls Sat MET lonee = 2 ase SEARS 15

EEOC vy. United Parcel Serv., Inc., 587 F.3d 136

I I aise nda hacalas in sgeauiel pabhucernen ioe 9, 10, 20

‘Endicott Johnson Corp. v. Perkins, 317 U.S. 501

hea a REAR dae Nt Js Sec, gee OES Ce ee 4

FTC v. Lonning, 539 F.2d 202 (D.C. Cir. 1976) ............ 8

Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) .............. 11

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)........ 21

Griggs v. Duke Power Co., 401 U.S. 424 (1971).......... 21

Illinois v. Gates, 462 U.S. 213 {1983)..................00000. 2,8

In re C.R. Bard, Inc., MDL. No. 2187, Pelvic Re-

pair Sys. Prods. Liab. Litig., 810 F.3d 913 (4th

ed cs, 11

In re Deepwater Horizon, 824 F.3d 571 (5th Cir.

Pi ata cd nisababdasocccasasksaesioebissiuiticiens Orhan Lee 11

1

REPLY BRIEF FOR PETITIONER

The parties now agree on the sole question before

this Court—-whether a district court’s decision to en-

force or quash an EEOC subpoena should be reviewed

by the court of appeals de novo or for an abuse of dis-

cretion. Abuse of discretion is the proper standard.

See Cooter & Gell v. Hartmarx, 496 U.S. 384 (1990);

Pierce v. Underwood, 487 U.S. 552 (1988). Because the

Ninth Circuit reviewed the district court’s decision un-

der the wrong legal standard—de novo—the Court

should vacate the judgment and remand for consider-

ation under the proper legal standard—abuse of dis-

cretion.

The Court-appointed amicus valiantly attempts

to defend the Ninth Circuit’s de novo standard on sev-

eral grounds, none of which work. Primarily, amicus

contends that the Court should borrow the Fourth

Amendment standard used to review motions to sup-

press evidence, in which courts of appeals divide the

district court’s ruling into findings of fact and conclu-

sions of law, reviewing the former for clear error and

the latter de novo. See Amicus Br. at 22 (citing Ornelas

v. United States, 517 U.S. 690 (1996)). Even if it were

appropriate to look to Fourth Amendment jurispru-

dence—rather than to Pierce, 487 U.S. at 558-60, which

controls an appellate court’s selection of the appropri-

ate standard of review—amicus’s analysis is unper-

suasive.

The closest Fourth Amendment analogue to

district-court decisions on administrative subpoena

2

enforcement is not, as amicus suggests, motions to

suppress evidence (which occur ex post), but rather

motions to grant search warrants (which, like edmin-

istrative subpoenas, occur ex ante). This Court holds

that a trial court’s decision to grant a search warrant

receives “great deference.” Illinois v. Gates, 462 US.

213, 236 (1983) (“[Wle have repeatedly said that after-

the-fact scrutiny by courts of the sufficiency of an affi-

davit should not take the form of de novo review. A

magistrate’s ‘determination of probable cause should

be paid great deference by reviewing courts.’” (quoting

Spinelli v. United States, 393 U.S. 410, 419 (1969))).

And this Court has made clear its preference for a uni-

tary standard of review. E.g., Cooter, 496 U.S. at 403.

Notwithstanding its belated agreement with

McLane that the Ninth Circuit applied the wrong

standard, the government asks this Court to affirm

nonetheless on an alternative ground. Br. of United

States at 33-44. As an initial matter, this Court may

“‘decline to entertain[]’ alternative grounds for affir-

mance,” United States v. Tinklenberg, 563 U.S. 647, 661

(2011) (citation omitted), particularly where, as here,

the issue is a “fact-sensitive” one. E.g., CRST Van

Expedited, Inc. v. EEOC, 136 S. Ct. 1642, 1653 (2016)

(rejecting EEOC’s argument for affirmance on an al-

ternative ground because “this is not an appropriate

case to reach and settle this fact-sensitive issue”).

- What is more, given the procedural posture of this case,

this Court can only affirm, as the government correctly

recognizes, if the government carries its burden of

demonstrating that the record in this case admits of

3

only one conclusion. The government cannot make

that showing. If anything, the government’s argument

for affirmance only underscores that trial courts are

best positioned to evaluate the facts and—as this case

exemplifies—shifting rationales for an agency’s ac-

tions. The government’s argument underscores the

wisdom of leaving that fact-sensitive work to trial

courts, as McLane and its amici have urged.

Accordingly, the Court should hold that the correct

standard of review is abuse of discretion, reverse the

Ninth Circuit’s judgment, and remand for the Ninth

Circuit to apply that standard in the first instance.-

Alternatively, if the Court decides to reach the govern-

ment’s alternative argument for affirmance (or even if

it agrees with court-appointed amicus on the standard

of review), it should reverse the judgment of the Ninth

Circuit and render judgment reinstating the judgment

of the district court, which did not err—-much less

abuse its discretion. | a

I. Appellate Courts Should Review Decisions

To Enforce Or Quash Administrative Sub-

poenas For Abuse Of Discretion.

The government now agrees with McLane and its

amici that appellate courts should review trial-court

determinations on administrative subpoena enforce-

ment for abuse of discretion. See Br. of United States

at 15-16, 19-33. As set forth in McLane’s merits brief

(at 18-29), this conclusion follows from the statutory

4

text, this Court’s precedent, and practical considera-

tions of judicial economy—as confirmed by longstand-

ing practice in the Courts of Appeals, all of which (save

the Ninth) apply a deferential standard of review.

A. This Court’s Precedent Confirms That

Review Should Be Deferential.

As the government agrees (at 19), this Court’s de-

cision in Pierce provides the framework for determin-

ing the standard of review in this case. The analysis

turns on three factors—(1) “the language and struc-

ture of the governing statute,” (2) the “history of appel-

late practice,” and (3) which judicial actor is best

positioned to decide the issue in question. 487 US. at

558-60. As McLane demonstrated in its merits brief

(at 19-25), each factor points toward the abuse-of-

discretion standard here.’

First, as McLane explained (at 19-20), the govern-

ing statute, 29 U.S.C. § 161(1), provides district courts

with the jurisdiction—but not the duty—to enforce

subpoenas issued by the EEOC and NLRB. This is

a strong indication that Congress intended district

' Court-appointed amicus argues that this Court has previ-

ously reviewed decisions regarding administrative subpoenas de

novo. See Amicus Br. at 29-31 (citing Endicott Johnson Corp. v.

Perkins, 317 U.S. 501, 509 (1943); Okla. Press Publ’g Co. v. Walling,

327 U.S. 186, 215-16 (1946); United States v. Morton Salt Co., 338

U.S. 632, 652-53 (1950)). But none of those cases confronted the

Court with the question presented here—the appropriate stand-

ard of review: In all events, the Court did not expressly adopt a

de novo standard in those cases, so they are of no moment in re-

solving the question at hand.

5

courts to exercise discretion in evaluating agency sub-

poena requests.

Second, the history of appellate practice—which is

virtually uniform in applying a deferential standard in

these circumstances—likewise . strongly favors an

abuse-of-discretion standard. See Br. of Pet. at 21-28.

And third, trial courts are best positioned to make

the determination, as McLane demonstrated (at 22-

25), because the enforcement of administrative sub-

poenas turns on “multifarious, fleeting, special, narrow

facts that utterly resi8t generalization.” See Pierce,

487 U.S. at 561-62 (citation omitted); see also Buford v.

United States, 532 US. 59, 64-65(2001) (recognizing

that trial courts have a superior “understanding of the

significance of case-specific details”); Br. of United

States at 27-29 (noting that subpoena enforcement de-

cisions are “highly case-specific”).

Each Pierce factor thus points in the same direc-

tion—toward abuse of discretion as the proper stan-

dard for reviewing decisions involving the enforcement

of agency subpoena requests. 487. U.S. at 558; Br. of

Pet. at 19-29; Br.\of United States at 1s 88.

This Court’s decision in Cooter & Gell confirms

that conclusion. That case involved Rule 11 sanc-

tions —an inquiry that, as~ with administrative-

subpoena enforcement, could be broken up into factual,

legal, and discretionary components. 496 U.S. at 399.

~ Justice Scalia’s opinion for the Court noted “the diffi-

culty of distinguishing between legal and factual is-

sues,” and acknowledged that Rule 11 requires the

6

trial court to “consider issues rooted in factual deter-

minations.” Jd. at 401.

The Court thus concluded that “Pierce ***

strongly supports applying a unitary abuse-of-discre-

tion standard to all aspects of a Rule 11 proceeding.”

Id. at 403. It is the same here. Whether to enforce an

EEOC subpoena is an issue “rooted in factual determi-

nations,” such as the scope of the charge, the relevance

of the information, and the burden imposed by compli-

ance. A trial court’s decision applying the law to fac-

tual charges that vary from case to case—or even shift

within a case—should therefore be reviewed for abuse

of discretion.

Likely recognizing the futility of arguing against

that conclusion, court-appointed amicus changes the

subject, silently jettisoning the Pierce framework in fa-

vor of a novel, alternative approach. Amicus asks this

Court to focus instead on “the substantive source of

_ law” which, in amicus’s view, would lead to the conclu-

_ sion that because some Fourth Amendment determina-

tions (such as decisions on motions to suppress) receive

de novo review, so too should decisions on administra-

tive subpoena enforcement.

Underscoring the departure from this Court's

precedent that amicus urges, this Court did not list the

“substantive source of law” among the factors relevant

to determining the standard of review in Pierce. It is

not difficult to see why-—-the source of law applied by

the district court is neither logically nor legally rele-

vant to the standard of review that courts of appeals

7

should apply. See also U.S. Dep’t of Educ. v. Nat'l Col-

legiate Athletic Ass’n, 481 F.3d 936, 941-42 (7th Cir.

2007) (rejecting any distinction between “judicial” and

“administrative” subpoenas).

Even on its own terms, amicus’s argument fails

because its conclusion rests on a faulty premise. Al-

though amicus is certainly correct that some Fourth

Amendment decisions—such as ex post review of the

reasonableness of searches already performed—are

subject to de novo review, others more closely analogous

to administrative subpoena determinations are not—

such as magistrate judges’ decisions to grant search

warrants. As demonstrated next, those Fourth Amend-

ment decisions are reviewed with deference—just as

the Pierce analysis dictates that.decisions on adminis-

trative subpoena enforcement should be, too.*

® Amicus also relies (at 31-32) on Section 6(d) of the Admin-

istrative Procedure Act, which requires courts to enforce an ad-

ministrative subpoena to “the extent that it is found to be in

accordance with law.” 5 U.S.C. § 555(d). Setting aside whether

the APA even applies here (and the sole case cited by amicus, D. G.

Bland Lumber Co. v. NLRB, 177 F.2d 555, 558 (5th Cir. 1949),

merely holds that in enacting the APA, “Congress intended to

leave the scope of judicial inquiry unchanged upon an application

for the enforcement of a subpoena”), neither the APA nor the cases

construing it indicate whether that “finding” is reviewed de novo

or deferentially. The sole case cited by amicus (at 31) for the prop-

osition that review under the APA is de novo genera! re-

view of agency actions under 5 U.S.C. § 706, not review of district

court decisions enforcing or quashing subpoenas under 5 U.S.C.

§ 555. See Tenet HealthSystems HealthCorp, v. Thompson, 254

F.3d 238, 244,(D.C. Cir. 2001). In cases concerning subpoenas is-

sued under the APA, the D.C. Circuit holds that “[a] finding by the

district court that documents are relevant and necessary to an

8

eo

B. Amicus’s Novel Alternative Framework

Confirms That Review Should Be For

Abuse Of Discretion.

Understandably abandoning the Pierce frame-

work—which virtually compels the conclusion that

abuse of discretion is the proper standard here—court-

appointed amicus argues that because the reasonable-

ness of a search under the Fourth Amendment is

reviewed de novo, the same standard should apply to

trial-court decisions regarding agency subpoena en-

forcement. Amicus Br. at 22-25 (citing Ornelas, 517

U.S. 690). Enforcement of administrative subpoenas,

however, involves very different considerations. See

Walling, 327 U.S. at 208-18. The trial court is not being

asked to review ex post the propriety of a search that

has already occurred. It is being asked to determine ex

ante whether a search may occur.

The closest Fourth Amendment analogue to trial-

court decisions regarding administrative subpoena

enforcement is not, as amicus suggests, a motion to

suppress evidence—it is an application for a search

warrant. And this Court holds that a trial court’s de-

cision to grant a search warrant receives “great defer-

ence.” Gates, 462 U.S. at 236 (“[Wle have repeatedly

said that after-the-fact scrutiny by courts of the suffi-

ciency of an affidavit should not take the form of de

inquiry * * * is essentially factual in nature and cannot be over-

turned unless the district court’s finding is clearly erroneous.”

FTC v. Lonning, 539 F.2d 202, 210 n.14 (D.C. Cir. 1976).

novo review. A magistrate judge’s ‘determination of

probable cause should be paid great deference by re-

viewing courts.’” (quoting Spinelli, 393 U.S. at 419)).

Even in the Fourth Amendment context invoked by

amicus, then, this Court holds that the determinations

most closely analogous to administrative subpoena en-

forcement receive deferential review.

C. Whether Subpoena Enforcement Is A

Legal Question Does Not Dictate The

Proper Standard Of Review.

Amicus is on stronger ground emphasizing (at 13-

15, 36-41) that subpoena enforcement is a legal ques-

tion. But no one disputes that a trial court must apply

law in enforcing subpoenas. See Br. of Pet. at 35 (ac+

knowledging that a district court abuses its discretion

if it applies the wrong legal standard); Br. of United

States at 19 (same). And no one disputes that a trial

court must apply law to facts. See Amicus Br. at 27

(acknowledging that a district court’s determination of

facts should be reviewed for clear error). And as

McLane has demonstrated (at 37-38 & 41 n.10), this

Court has repeatedly favored a unitary “abuse of dis-

cretion” review, while recognizing that legal (or factual)

error can establish an abuse of discretion. E.g., Cooter

& Gell, 496 U.S. at 403. :

Thus amicus’s reliance (at 40, 42-43, 44) on Judge

Newman’s concurring opinion in Equal Employment

Opportunity Commission v. United Parcel Service, Inc.,

587 F.3d 136, 140-42 (2d Cir. 2009) (Newman, J., con-

curring), does not advance its cause.

10

First, as explained in McLane’s opening brief (at

37-41), this Court has rejected the proposition that a

district court’s discretionary decision should be divided

into legal and factual questions. See Koon v. United

States, 518 U.S. 81, 100 (1996); Cooter & Gell, 496 U.S.

at 399.

Second, Judge Newman's concurrence emphasizes

that “determining the proper relationship between

* * * facts involves application of a legal standard, not

a finding of fact” (UPS, 587 F.3d at 142 (Newman, J.,

concurring))—but as this Court has explained, the ap-

propriate standard of review for fact-specific applica-

tions of law is abuse of discretion. See, e.g., Cooter &

Gell, 496 U.S. at 402 (“Familiar with the issues and lit-

igants, the district court is better situated than the

court of appeals to marshal the pertinent facts and

apply the fact-dependent legal standard * * * *” (em-

phasis added)).

Third, to the extent Judge Newman’s concurrence

rests on the premise that district courts have no dis-

cretion in enforcing administrative subpoenas, see

UPS, 587 F.3d at 142 (Newman, J., concurring), the

conclusion that review for abuse of discretion is inap-

propriate does not follow. It is certainly true that some

decisions—such as matters of trial management—are

reviewed for abuse of discretion because they are com-

mitted to the district court’s discretion.’ But it is not

* See, e.g., United States ex rel. D'Agostino v. EV3, Inc., 802

“F.3d 188, 195 (ist Cir. 2015) (“{Denial of a motion for leave to

amend] is * * * committed to the sound discretion of the district

court, and the relator is entitled to have the district court exercise

11

true of all decisions reviewed for abuse of discretion.‘

As this Court explained in Pierce, many decisions

applying law to facts should be reviewed for abuse of

discretion. 487 U.S. at 559-60. Deferential review is

appropriate when “one judicial actor is better posi-

tioned than another to decide the issue in question,”

that discretion under the proper legal standard.”); Jn re Deep-

water Horizon, 824 F.3d 571, 579-80 (5th Cir. 2016) (per curiam)

(“A motion to disqualify [a special master] * * * is committed to

the sound discretion of the district judge and is reviewed for abuse

of discretion.” (internal quotation marks and citation omitted)),

Tripodi v. Welch, 810 F.3d 761, 764 (10th Cir. 2016) (“Because the

entry of a default judgment is committed to the sound discretion

of the district court, we will not overturn the court’s decision with-

out a clear showing that it manifests a clear error of judgment.”

(internal quotation marks, alteration, and citation omitted)).

* For example, trial courts are not “vested with discretion”

to decide whether evidence is relevant; whether venue is proper;

or whether experts’ proposed testimony is reliable. Each of

these decisions turns on the application of law to fact. But these

decisions are reviewed for abuse of discretion—not because the

district court “exercises discretion”—but because they are “multi-

farious and novel question(s], little susceptible * * * of useful gen-

eralization.” Pierce, 487 U.S. at 562; see also Gen. Elec. Co. v..

Joiner, 522 U.S. 136, 143 (1997) (“[T}he question of admissibility

of expert testimony is not such an issue of fact, and is reviewable

under-the abuse-of-discretion standard.”); Jn re CR. Bard, Inc.,

MDL. No. 2187, Pelvic Repair Sys. Prods. Liab. Litig., 810 F.3d 913,

923 (4th Cir. 2016) (“We review the district court’s applications of

the hearsay rules, like applications of all Federal Rules of Evi-

dence, for abuse of discretiont-}*};-United States v. Real Prop.

Known As 200 Acres Of Land Near FM 2686 Rio Grande City, 773

F.3d 654, 657 (5th Cir. 2014) (“We review all questions concerning

venue for abuse of discretion.”). “{B)ecause the number of possible

situations is largé, we are reluctant either to fix or sanction nar-

row guidelines for the district courts to follow.” Pierce, 487 US.

at 562 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 US. 1,

10-11 (1980)).

12

ibid. (quoting Miller v. Fenton, 474 U.S. 104, 114

¢1985)); when the district court “may have insights not

conveyed by the record,” id. at 560; when an appellate

court acquiring full knowledge of the factual setting

may “come at unusual expense,” ibid.; when de novo

appellate review will “fail to produce the norma! law-

clarifying benefits,” id. at 561; or when a decision is

“not amenable to regulation by rule because [it] in-

volve[s} multifarious, fleeting, special, narrow facts

that utterly resist generalization,” id. at 561-62 (cita-

tion omitted).

These factors do not establish that a matter is

committed to the district court’s discretion—they

simply mean that a particular application of law to fact

should be reviewed with deference on appeal. Thus the

emphasis on whether a district court “exercises discre-

tion” in enforcing (or quashing) an EEOC subpoena is

beside the point. Whether or not Congress “vested the

district court with discretion,” Amicus Br. at 45, in de-

ciding whether to enforce an EEOC subpoena, the dis-

trict court applies law to special, narrow, fleeting facts

and is far better positioned than the court of appeals

to decide the issue. See Br. of Pet. at 21-25. Further,

any suggestion that trial courts must always defer to

the EEOC on the issue of relevance would conflict with

»this Court’s decision in Equal Employment Oppor-

tunity Commission v. Shell Oil Co., 466 U.S. 54 (1984)

and the statutory scheme established by Congress to

limit the EEOC’s investigatory authority (which, un-

like that of other administrative agencies, is not ple-

nary). :

13

Finally, amicus simply misunderstands McLane’s

point when asserting (at 57) that review for abuse of

discretion would not “mean that an appellate court can

dispose of the appeal more speedily.” The point, as the

government now agrees (at 16), is that de novo review

would “lead to a greater number of appeals, delaying

the resolution of cases.” Amicus does not, and cannot,

dispute that point.

Il. The Ninth Circuit’s Judgment Cannot Be

Affirmed. |

A. The Court Should Decline To Entertain

The Government’s Alternative Ground

For Affirmance.

Having abandoned any defense of the Ninth Cir-

cuit’s de novo standard of review, the government now

urges this Court to affirm on the alternative ground

that the record in this case admits of only one conclu-

sion—that the personal contact information the EEOC

seeks is relevant and therefore the district court nec-

essarily abused its discretion in coming to a different

conclusion. See Br. of United States at 34-44. As an

initial matter, this Court should decline to entertain

the government’s argument and adhere to its custom-

ary practice of vacating and remanding for the courts

below to apply the proper standard in the first in-

stance—just as it did last Term when confronted by a

similar argument from the government (in a case also

involving the EEOC). CRST, 136 S. Ct. at 1653 (de-

clining the government’s request to affirm on an alter-

native ground after the EEOC abandoned “its defense

14

of the Court of Appeals’ reasoning” because “(ijt is not

the Court’s usual practice to adjudicate either legal or

predicate factual questions in the first instance”).°

+>

Even if this Court were to accept the government’s

invitation ta stand in the district court’s shoes and

make a relevance determination in the first instance—

or even if the Court were to agree with court-appointed

amicus that the Ninth Circuit applied the proper legal!

standard in reviewing the district court’s decision de

novo—reversal still would be required because the dis-

trict court did not err, much less abuse its discretion,

in performing the fact-sensitive relevance analysis re-

quired by Shell Oil to ensure the EEOC stays within

the bounds of its investigative authority.

* The government’s request for affirmance is further compli-

cated by the fact that the district court—having ordered the pro-

duction of almost all of the information the EEOC requested, and

having accepted McLane’s argument that the remaining infor-

mation sought was not relevant—did not address McLane’s argu-

ment that producing the personal contact information would be

an undue burden. The EEOC faults McLane (at 43-44) for not

raising that argument as an alternative ground for affirmance in

the Ninth Circuit, but as explained in McLane’s merits brief (at

36-37), the Ninth Circuit could not have affirmed on that basis

given the lack of a district-court finding. Moreover, McLane

raised undue burden in its (granted) motion for the Ninth Circuit

to take judicial notice of the district court’s order regarding the

ADEA subpoenas. See McLane C.A. Request for Judicial Notice

at 1 (“[Rjeview of the prior ADEA Order would be helpful! to place

the Order at issue in this appeal in context, including the specific

finding of undue burden as to the production of termination rea-

sons nationwide that Judge Snow made in the ADEA Order, and

inherently adopted in the subsequent Order in this appeal.”).

15

If ever there were a case where the EEOC is

patently transgressing those boundaries to engage in

an unauthorized fishing expedition—impermissibly

“trolling for victims,” as the district court put it—it is

this one, where the agency is seeking the personal,

confidential information of 14,000 individuals to inves-

tigate a charge alleging discrimination against one

person—and where the agency’s arguments why that

information is relevant have constantly shifted. See

EEOC vy. United Air Lines, Inc., 287 F.3d 643, 654 (7th

Cir. 2002) (refusing to enforce EEOC subpoena seeking

similarly extensive personnel information and noting

that “[a]lthough the relevance requirement is not on-

erous, we believe that accepting the EEOC’s interpre-

tation of relevance in this case would render that

requirement a ‘nullity ”).

B. The District Court Correctly Held That

The EEOC Failed To Carry Its Burden

Of Establishing Relevance.

As McLane demonstrated in its merits brief (at 31-

34), the district court carefully examined the facts and

the charge and, after a hearing, determined that the

EEOC failed to carry its burden of establishing rele-

vance (and that the information sought went well be-

yond the scope of the charge). The district court did

not err, much less abuse its discretion, in reaching that

conclusion.

16

Unlike other agencies, the EEOC’s “power to con-

duct an investigation ‘Can be exercised only after a spe-

cific charge has been filed in writing.” Shell Oil, 466

U.S. at 64 (quoting 110 Conc. REc. 7214 (1964)). Shell

Oil requires digtrict courts to consider a subpoena in

light of the specific facts and the charge, which is faith-

ful to the EEOC’s limited authority under 42 U.S.C.

§ 2000e. If the EEOC could subpoena anything that is

theoretically useful to an investigation, there would be

no limit to its investigatory authority. The agency

must have a “realistic expectation”—not just an “idle

hope”—that the information will shed light on the al-

legations in the charge. Id. at 63-65. Relevance is not

a demanding standard—but it is not an open door, ei-

ther, and it requires at least some showing of the

EEOC’s “realistic expectation” that it will obtain infor-

mation relevant to the allegations m the charge.

Here, the EEOC seeks personal.contact infor-

mation, including Social Security numbers, for 14,000

individuals nationwide—on top of the voluminous ma-

terial McLane has already produced. The agency's

shifting rationales for why this information is relevant

to its investigation—including several raised for the

first time on appeal in the Ninth Circuit that were

never made to the district court—underscore the lack

of a legitimate justification. See McLane C.A. Br. at

24-31.

Initially, the EEOC said the information was rele-

vant to investigate ADEA violations; then to investi-

gate ADA violations; and finally to investigate Title VII

violations—the last of which appeared nowhere in the

17

EEOC’s district-court briefing and were raised for the

first time at the hearing. See Br. of Pet. 8-11. Ina

footnote, the government now claims (at 37 n.10) that

the EEOC “sought the pedigree information to investi-

gate both Title VII and ADA claims.” But it cites only

the hearing transcript. Ibid. (citing JA 507-10). The

EEOC’s district-court briefing made clear that the ped-

igree information was sought for the ADA claim. See

JA 467 (Heading: “EEOC Needs to Contact Test-Tak-

ers To Investigate Disability Discrimination.”); JA 468

(arguing “EEOC needs to be able to contact all test-

takers to determine if they are disabled under the ADA”).

On appeal in the Ninth Circuit, the EEOC com-

pletely abandoned its ADA rationale for relevance and

argued—for the first time—that its investigation of the

charge could, “depending on the particular information

uncovered,” support the entire gamut of possible theo-

ries of discrimination from differential treatment to

disparate impact—all on a nationwide basis. EEOC

Br. 30. The EEOC thus advanced various theories that

might apply if it uncovers facts somehow different

from those alleged in the charge—but if that is enough

to establish relevance, there is no limit to the EEOC’s

investigating authority, contrary to Congress’s intent.

See Shell Oil, 466 U.S. at 64.

The EEOC, under this record, cannot go on a fish-

ing expedition “looking for victims” of any conceivable

type of discrimination. The government may be right

that the record in this case permits just one resolu-

tion—but if so, it is the resolution reached by the dis-

trict court, not the Ninth Circuit.

18

C. The Government’s Remaining Arguments

For Affirmance Lack Merit.

While purporting to embrace the abuse-of-

discretion standard of review, the government (at 38-

43) commits the same error the Ninth Circuit did by

treating relevance as an abstract question of law with-

out reference to the language of the particular charge,

without reference te the voluminous material already

produced by McLane, and without reference to the

EEOC’s shifting arguments for the relevance of per-

sonal contact information for 14,000 individuals.

While the district court did not expressly find that the

EEOC acted with an improper. motive in issuing the

subpoena, any judge would—with good reason—be

skeptical ofa party that repeatedly shifted its ration-

ales for seeking particular relief. Indeed, the trial

court’s greater familiarity with the parties’ conduct of

the litigation is one reason_review should be for abuse

of discretion.

1. The District Court Did Not Wrongly

Apply The Law.

Repeating the Ninth Circuit’s error, the govern-

mént maintains (at 36) that the district court wrongly

applied the law by equating “necessity” and “rele-

vance,” but as McLane has already explained in its

merits brief (at 31-32, 34), the district court did no such

thing and the government’s contrary argument rests

on a misreading of the district court’s opinion. That is

why the government has no answer for McLane’s ar-

gument (at 34) “that the government should not be

J ow ee a oe a

19

able to subpoena information for which it has no need

because the information will cast no additional light on

the investigation.” And in all events, “[aln appellate

court should not presume that a district court intended

an incorrect legal result when the order is equally sus-

ceptible of a correct reading.” Sprint/United Mgmt. Co.

v. Mendelsohn, 552 U.S. 379, 386 (2008).

The government’s continued reliance (at 35-36)

on this Court’s inapposite decision in University of

Pennsylvania v. Equal Employment Opportunity Com-

mission, 493 U.S. 182 (1990), only underscores the

weakness of the government’s position. In that case, _

the university conceded that the information sought |

was relevant—the issue was whether “First Amend-

ment principles’ of academic freedom required the

recognition of a qualified privilege * * * that would re-

quire the Commission to demonstrate some particular-

ized need, beyond a showing of relevance, to obtain

peer review materials.” /d. at 188. This Court’s unsur-

prising unwillingness to recognize such a privilege has

nothing to do with whether the district court reversibly

erred for making the common-sense observation that

it is difficult to see how information can possibly be

relevant to a government investigation if the govern-

ment cannot show a need for the information.

20

2. The EEOC Cannot Establish Rele-

vance By Claiming It Needs Nation-

wide Contact Information For 14,000

People To Investigate “Possible” Dis-

parate Treatment.

On appeal to the Ninth Circuit, the EEOC argued

for the first time that it needs the contact information

because it is also investigating “possible” disparate

treatment on the basis of sex. See EEOC C.A. Br. at

33-34. But the charge does not allege that Ochoa or

anyone else was treated differently. Indeed, noticeably

absent from the charge is what the government claims

(at 39) is a “pattern of treating female applicants or

employees differently from male employees with re-

spect to the use of strength tests.” Cf. UPS, 587 F.3d

at 138, 140 (holding that district court should have en-

forced subpoena seeking contact information for all job

applicants denied employment because of, all employ-

ees who requested an exemption due to, and all em-

ployees terminated for reasons related to company’s

“appearance guidelines” where charge alleged that

company had “a pattern or a practice of refusing to ac-

commodate the religious observances, practices and

beliefs of its employees”).

Even if the charge could be read to allege that

Ochoa was subject to disparate treatment, the EEOC’s

blanket request for the nationwide contact information

of 14,000 people is vastly overbroad. This Court’s

cases in the class-action context are instructive. The

Court has “held that one named plaintiff’s experi-

ence of discrimination was insufficient to infer that

21

‘discriminatory treatment is typical of [the employer's

employment] practices.’” Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338, 356 (2011) (alteration in original) (quot-

ing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158

(1982)). Even if the charge alleged disparate treat-

ment, then, the EEOC is still not entitled to nation-

wide contact information for 14,000 people.

The Ninth Circuit excused the EEOC’s overbroad

request because the charge did not rule out disparate

treatment nationwide. Pet. App. 13. But that is not

the test—by regulation, a charge must identify the

complained-of conduct. See 29 C.F_R. § 1601.12(b) (“de-

scribe generally the action or practices complained

of”). Again, the Ninth Circuit’s logic erases any limits

on the EEOC’s investigative authority. The EEOC has

not shown that a district court would necessarily abuse

its discretion by enforcing these limits.

3. Personal Contact Information Is

Irrelevant To Investigating Any

Disparate Impact Of The Neutrally

Applied Evaluation.

Disparate intpact involves “practices that are fair

in form” but discriminatory in effect. Griggs v. Duke

Power Co., 401 U.S, 424, 431 (1971). Cooperating with

the EEOC’s investigation notwithstanding its serious

concerns about its scope, McLane voluntarily produced

statistical informativn regarding every individual wha

had taken the Evaluation nationwide, including:

* a unique identification number;

¢ the location worked;

22

the person’s sex;

the reasons for taking the Evaluation;

the position sought;

the physical capability achieved; and

whether the physical capability met the

minimum required for the particular

position.

McLane also produced validation studies of the

Evaluation—and even videotapes from observations of

employees actually performing the positions by the

third party hired by McLane to determine the strength

capabilities needed to safely perform the duties of the

positions. McLane further produced information as to

whether any person who had taken the Evaluation suf-

fered an adverse employment action within 90 days

thereafter (whether or not the employment action had

anything to do with the Evaluation). See generally Pet.

App. 28.

As noted above, the EEOC’s briefing in the district

court focused solely on the “need[]| to contact appli-

cants and employees to identify individuals with disa-

bilities” for purposes of investigating whether the

Evaluation “violates the ADA.” JA 21. At the hearing,

however, the EEOC “agreed * * * that pregnancy is not

typically a disability within the meaning of the ADA,

and that Ochoa does not appear to have had the sort of

atypical pregnancy that would trigger the ADA.” Pet.

App. 25. The district court also assured itself that

“Ochoa does not appear to bring the ADA charge for

23

another aggrieved party.” Jbid. The district court

therefore refused to enforce the subpoena to the extent

it would require McLane to produce the personal con-

tact information based on the EEOC’s own admissions

that it was not claiming that Ochoa was, in fact; an ag-

grieved person under the ADA.

On appeal in the Ninth Circuit, however, the

EEOC asserted for the first time that it needs to con-

tact people for purposes of its disparate-impact inves-

tigation to understand their experiences in taking the

Evaluation and whether it is similar to the duties of

their position. Before this Court, the government spec-

ulates (at 42) that individual interviews might elicit

testimony that the Evaluation was not truly given for

a business purpose. But the EEOC already has the in-

formation to answer that question—McLane provided

videotapes and documentation of the development and

application of the tests so that the EEOC could evalu-

ate them against the backdrop of videotaped job duties.

McLane C.A. Br. at 31 n.14. A nationwide mismatch

between the test and the job (1.e., disparate impact)

would be apparent from the tapes.

Even if conducting individual interviews could

somehow be relevant to the EEOC’s investigation, de-

manding the contact information (not to mention the

Social Security numbers) for more than 14,000 individ-

uals is grossly overbroad. And, again, the agency's con-

stantly shifting rationales for why the information is

relevant to its investigation—especially given the vol-

ume of materials already produced by McLane to the

agency—provided the district court with a strong clue

24

that what the agency really wants—and what the dis-

trict court properly refused to authorize—is the ple-

nary investigative authority to “troll for victims” that

Congress has expressly denied the agency. The district

court did not err, much less abuse its discretion, in

reaching that conclusion.

In sum, this Court could affirm only if the record

admits of only one conclusion—that a district court

would necessarily abuse its discretion by refusing to

enforce the EEOC’s subpoena. The EEOC has not car-

ried this burden, and even if this Court concludes that

the district court erred, the case should be remanded

for the district court to exercise its discretion in the

first instance.

———_ _ —

CONCLUSION

The judgment of the Ninth Circuit should be re-

versed.

Respectfully submitted,

ANDREW M. JACOBS ALLYSON N. Ho

SNELL & WILMER LLP Counsel of Record

One South Church Avenue, RONALD E. MANTHEY

Suite 1500 JOHN C. SULLIVAN

Tucson, Arizona 8570) MORGAN, LEWIS &

T. 520.882.1200 . BOCKIUS LLP

ey 1717 Main Street, Suite 3200

MorGAN, LEWIS Dallas, Texas 75201

1000 Louisiana Street, allysen_ho@morganlewis.com

Suite 4000 Counsel for Petitioner

Houston, Texas 77002

T..713.890.5000