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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0658%3A10. Public record. Not legal advice.