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

IN THE Ne 6

Supreme Court of the United States

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

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER

KATHRYN COMERFORD TODD RAET. VANN

WARREN POSTMAN MICHAEL P. BRACKEN

U.S. CHAMBER Counsel of Record

LITIGATION CENTER NT LAKIS, LLP

1615 H Street, N.W. 1501 M Street, N.W.

Washington, DC 20062 Suite 400

(202) 463-5337 Washington, DC 20005

Attorneys for Amicus Curiae ™bracken@ntlakis.com

Chamber of Commerce of the ‘202 629-6600

United States of America Attorneys for Amicus Curiae

Equal Employment

Advisory Council

[Additional Counsel Listed On Inside Cover]

a aS Oar’

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

KAREN R. HARNED

ELIZABETH MILITO

NATIONAL FEDERATION OF

INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL CENTER

1201 F Street, N.W., Suite 200

Washington, DC 20004

(202) 406-4443

Attorneys for Amicus Curiae

National Federation of

Independent Business

Small Business Legal Center

November 2016

TABLE OF CONTENTS

Page

py) PF Ee Pl bys 6 yo: Sere ili

INTEREST OF THE AMICI CURIAE................ 2

STATEMENT OF THE CASE ..........................:. 4

SUMMARY OF ARGUMENT .................0..0-....... 8

P| AE Re ARES Rd Cee eS SORES SERA TDR 9

I. REVIEW OF EEOC SUBPOENA EN-

FORCEMENT DETERMINATIONS FOR

ABUSE OF DISCRETION ACCORDS

WITH TRADITIONAL LEGAL PRINCI-

PLES AND FURTHERS IMPORTANT

POLICY AIMS UNDERLYING TITLE

A. Traditional Principles Of Appellate

Review Provide That Mixed Ques-

tions Of Law And Fact Underlying

EEOC Subpoena Enforcement Actions

Should Be Reviewed Under A

Deferential Standard Of Review......... 9

1. A deferential standard of review

promotes effectiveness and efficient

resolution of collateral issues ........ 1]

2. Deferential review is particularly

appropriate for complex matters

such as EEOC subpoena enforce-

RET TSC I EOE 12

3. Every other court of appeals to

have considered the issue applies

a deferential standard of review to

administrative subpoena enforce-

IE eich hides incrcnncecisccomitcanes 14

li

TABLE OF CONTENTS—Continued

B. De Novo Review Of Subpoena

Enforcement Determinations Under-

mines Prompt Investigation And

Resolution Of Title VII Discrimina-

ena CR goes Re

1. Title VII's relatively short limita-

tions periods are intended to

encourage prompt resolution of

i iicetcsiepnccsentpnsinctivonhddapidgindecsoc

2. De novo review would only extend

already lengthy EEOC investiga-

ha

Il. THE DISTRICT COURT IS BETTER

POSITIONED TO ENFORCE THE

IMPORTANT STATUTORY LIMITA-

TIONS ON THE EEOC’S INVESTIGA-

TION AUTHORITY AND TO DISCOUR-

AGE ABUSIVE INVESTIGATION

PE a iiniiel stiinessiecsomintaiicuniitinadeotndeniasione

A. The Scope Of An EEOC Subpoena Is

Limited By The Facts Of The

Underlying Charge.................ccccccceeeees

B. The Nuances And Peculiarities Of

The EEOC’s Often Overreaching

Investigation Tactics Can Be Lost In

Translation On Appeal......................-

SINT sescnusentansesnninnmpeeanoiapnereekpenisacgemsiines

Page

15

15

17

20

20

22

26

ili

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

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

ies nti diciteinss ndaicaeinneanteanilaiitleiieaie 11, 12,19

EEOC v. Bailey Co., 563 F.2d 439 (6th Cir.

AIRE RCE REP LSS «5, BSS shies Be Reon 22

EEOC v. Freeman, 778 F.3d 463 (4th Cir.

isi arian ena cl i cc noiaks guudiaoalonens tuba 24

EEOC v. Great Steaks, Inc., 667 F.3d 510

I ae 23

EEOC v. HomeNurse, Inc., 2013 WL

5779046 (N.D. Ga. Sept. 30, 2013)........... 24

EEOC v. Kronos Inc. , 620 F.3d 287 (3d Cir.

RR allt OPEN a Bo Are Re Ae EP re 14, 23

EEOC ov. Packard Electric Division,

General Motors Corp., 569 F.2d 315 (5th

aS ESE RR SE Sneed Oe Een 11

EEOC v. Peoplemark, Inc., 732 F.3d 584

I a 24

EEOC v. Royal Caribbean Cruises, Ltd.,

771 F.3d 757 (11th Cir. 2014)....... 14, 22, 23, 24

EEOC uv. Shell Oil Co., 466 U.S. 54

AS COE ALN, A AaB MNS: 20, 21, 22, 23

EEOC v. Southern Farm Bureau Casualty

Insurance Co., 271 F.3d 209 (5th Cir.

ae AE aac IER RES Papel WLS Lie tt ae! EC 23

EEOC v. TriCore Reference Laboratories,

493 F. App’x 955 (10th Cir. 2012) ............ 24

EEOC v. United Air Lines, Inc., 287 F.3d

eC I SI itccuniconssunsedvcecdceeads 14, 22, 24

iv

TABLE OF AUTHORITIES—Continued

Page(s)

EEOC v. U.S. Steel Corp., 2013 WL 625315

sf 8. 3 & & Beeeeeeene 24

EEOC v. Wal-Mart Stores East, LP, Civ.

No. 6:14-cv-228, 2016 WL 1242540 (E.D.

Ky. Mar. 29, 2016), appeal filed, No. 16-

2755 (6th Cir. June 2, 2016).................006 13, 14

EEOC v. West Customer Management

Group, LLC, 2014 WL 4435980 (N.D. Fla.

A, Gis Fi eiknieeiesscossnvichecscmsntencensedgncarens 24

Fresenius Medical Care v. United States,

526 F.3d 372 (8th Cir. 2008)..................... 14

FTC v. Boehringer Ingelheim Pharma-

ceuticals, Inc., 778 F.3d 142 (D.C. Cir.

International Union of Electrical Workers v.

Robbins & Myers, Inc., 429 U.S. 229

CI iexsesniciaciecisnsinstteispiamencnnpeedpeiainanaam 16, 17

Mach Mining, LLC v. EEOC, 135 S. Ct.

UE Gi eine svscscinsentisiacsntexsoncsccniiatonsaae 16

Mohasco Corp. v. Silver, 447 U.S. 807

CO cis secinnisens:cannieticbenepieeiunioansamedeatiidaal 16, 17, 19

NLRB v. American Medical Response, Inc.,

438 F.3d 188 (2d Cir. 2006).................2008 14

Pierce v. Underwood, 487 U.S. 552

PRS ee ae ee ela 9, 11, 22

Reich v. National Engineering &

Contracting Co., 13 F.3d 93 (4th Cir.

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Salve Regina College v. Russell, 499 U.S.

| TS Pej tS 8 ek oes we 10, 15

Teva Pharmaceuticals USA, Inc. v. Sandoz,

cS 3s f | ee 10, 12

United States v. Aluminum Co. of America,

148 F.2d 416 (2d Cir. 1945)..............00...... 11

United States v. Chevron U.S.A., Inc., 186

F.3d 644 (5th Cir. 1999)................cc.cccceeees 15

United States v. Nixon, 418 U.S. 683

a cenbinasbnasiasioe 10

University of Pennsylvania v. EEOC, 493

a ciueaiocqunion 20

W.R. Grace & Co. v. Local Union 759, 461

Te a 16

FEDERAL STATUTES

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seg. .............2......0004 passim

42 U.S.C. § 2000e-2(a)(1)...............0..ce eee 20

42 U.S.C. § 200D€-B(d) ..........cccccscccrseeeeeeees 20

Be ls OF PO ccccceserssccccccccccescoscces 16

Be Aes OF SMUD ccccnccccccccevsescccesscseses 21

FEDERAL RULES

a cseesidanesces ae 10

rn cssodueseosendons 10

vi

TABLE OF AUTHORITIES—Continued

LEGISLATIVE HISTORY Page(s)

EEOC: An Agency on the Wrong Track?

Litigation Failures, Misfocused Priorities,

and Lack of Transparency Raise Con-

cerns About Important Anti-Discrimina-

tion Agency, U.S. Senate Committee on

Health, Education, Labor and Pensions,

Minority Staff Rep. (Nov. 24, 2014) ......... 23, 24

OTHER AUTHORITIES

EEOC, Performance and Accountability

Report (Fiscal Year 2005)..................::0006 19, 25

EEOC, Performance and Accountability

Report (Fiscal Year 2016)................... 18, 19, 25

EEOC, What You Can Expect After You File

Fe tinteperscnaatinichiatwvavtapninetciniabsantninidans 17, 18

EEOC Strategic Enforcement Plan (Fiscal

ee ED eecicnenseccsinnnterniebideiceimaenn 18

Mary Kissel, Chronicling EEOC’s Abuses,

Wall Street Journal (Nov. 24, 2014) ........ 23

Press Release, Sen. Lamar Alexander,

Appropriations Committee Advances Bill

Directing EEOC to Focus on “Massive”

Backlog of 76,000 Unresolved Workplace

Discrimination Cases (Apr. 21, 2016) ...... 18

IN THE

Supreme Court of the Gnited States

No. 15-1248

McLANE COMPANY, INC.,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL,

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER

IN SUPPORT OF PETITIONER

The Equal Employment Advisory Council, Chamber

of Commerce of the United States of America, and

National Federation of Business Small Business Legal

Center respectfully submit this brief amici curiae in

support of the petitioner.’

' The parties have consented to the filing of this brief. Counsel

for amici curiae authored this brief in its entirety. No counsel for

a party authored this brief in whole or in part, and no counsel

2

INTEREST OF THE AMICI CURIAE

The Equal Employment Advisory Council (EEAC) is

a nationwide association of employers organized in

1976 to promote sound approaches to the elimination

of discriminatory employment practices. Its member-

ship includes over 250 major U.S. corporations, collec-

tively providing employment to millions of workers.

EEAC’s directors and officers include many of the

nation’s leading experts in the field of equal employ-

ment opportunity. Their combined experience gives

EEAC a unique depth of understanding of the practi-

cal, as well as legal, considerations relevant to the

proper interpretation and application of equal employ-

ment policies and requirements. EEAC’s members are

firmly committed to the principles of nondiscrimina-

tion and equal employment opportunity.

The Chamber of Commerce of the United States of

America (Chamber) is the world’s largest business

federation. It represents 300,000 direct members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus briefs in cases that raise issues of concern to

the nation’s business community.

The National Federation of Independent Business

(NFIB) Small Business Legal Center is a nonprofit,

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

3

public interest law firm established to provide legal

resources and be the voice for small businesses in the

nation’s courts through representation on issues of

public interest affecting small businesses. NFIB is

the nation’s leading small business association, with

offices in Washington, D.C. and all 50 state capitals.

Founded in 1943 as a nonprofit, nonpartisan organiza-

tion, NFIB’s mission is to promote and protect the

right of its members to own, operate, and grow their

businesses. NFIB represents 325,000 member busi-

nesses nationwide. The NFIB Small Business Legal

Center represents the interests of small business in

the nation’s courts and participates in precedent

setting cases that will have a critical impact on small

businesses nationwide, such as the case before the

Court in this action.

Many of amici’s members are employers, or repre-

sentatives of employers, subject to Title VII of the Civil

Rights Act of 1964 (Title VID, 42 U.S.C. §§ 2000e

et seg., as amended, and other federal employment-

related laws and regulations. As representatives

of potential defendants to Title VII discrimination

charges and lawsuits, amici’s members have a sub-

stantial interest in the issue presented in this

case concerning the proper standard of review that

should be applied by appellate courts when reviewing

a district court’s determinations in an EEOC subpoena

enforcement action.

Because they work closely with many professionals

whose primary responsibility is compliance with equal

employment opportunity laws and regulations, amici

have perspectives and experience that can help the

Court assess issues of law and public policy raised

in this case beyond the immediate concerns of the

parties. EEAC, the Chamber, and NFIB collectively

4

have participated as amicus curiae in hundreds of

cases before this Court and the federal courts of

appeals, many of which have involved important

questions of Title VII’s proper interpretation and

application. Because of their practical experience in

these matters, amici are well-situated to brief the

Court on the relevant concerns of the business

community and the significance of this case to

employers generally.

STATEMENT OF THE CASE

Petitioner McLane Company (McLane) administers

a physical capability test to all new hires, as well as to

current employees returning from medical leaves of

absence. Pet. App. 3. Damiana Ochoa was required to

take the test before being allowed to return to work

from maternity leave. Id. She took and failed the test

three times, and therefore was not permitted to return

to work. Id.

Ochoa subsequently filed an administrative charge

with Respondent EEOC, alleging that use of the test

discriminated against her on the basis of sex

(pregnancy) in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq., as

amended. Pet. App. 2.

As part of its investigation of the Ochoa charge, the

EEOC asked McLane to provide extensive information

about the test, including, for each person who took it:

e name, sex, date of birth, social security

number, and contact information;

e disability status;

e the reason why he or she was required to take

the test;

e test score; and

e reason for termination, if applicable.

Pet. App. 3-4, 20-21. The EEOC’s request for infor-

mation was not limited to the McLane facility where

Ochoa worked, but rather extended to all McLane

facilities nationwide. Id.

The EEOC also expanded the scope of its inves-

tigation to include requests for information that purport-

edly would help the EEOC decide if McLane violated

the Age Discrimination in Employment Act (ADEA),

29 U.S.C. §§ 621 et seg., even though Ochoa was not

over 40 when she took and failed the test. Pet. App. 5.

McLane challenged the breadth and scope of the

information requests. The EEOC responded by issu-

ing two subpoenas: one relating to potential ADEA

claims (the “ADEA Subpoena”) and one relating to the

Ochoa sex discrimination charge (the “Ochoa Charge

Subpoena”). Pet. App. 4-5. In response, McLane

provided a database of all individuals who took the

test nationwide by sex, location, position, test date,

reason for the test, score, and (for applicants) whether

the test taker was deemed minimally qualified for the

position. Pet. App. 3-4. Dissatisfied, the EEOC filed

an action in the U.S. District Court for the District of

Arizona to enforce the ADEA Subpoena. Pet. App. 19.

After it received briefing and held a hearing on the

EEOC’s request to enforce the ADEA Subpoena, the

district court granted the EEOC’s request in part,

holding that the agency was entitled to nationwide

statistical data, but not to personal pedigree infor-

mation, pertaining to the approximately 14,000 employ-

ees that took the test. Pet. App. 19. Undeterred, the

EEOC then proceeded to file a second action in the

district court to enforce the Ochoa Charge Subpoena,

6

seeking the same pedigree information, as well as

additional! disability-related information. Jd.

In opposition to this second subpoena enforcement

action, McLane argued that the EEOC was not

entitled to any disability-related information, because

Ochoa does not claim either to be disabled or that

she was discriminated against because of actual or

perceived disability. Pet. App. 23-26. It also con-

tended that the additional pedigree information

sought by the EEOC, including (among other data)

name, date of birth, social security number, last

known address, and phone number, was not relevant

to whether or not use of the test discriminated against

Ochoa because of her pregnancy. Pet. App. 20-21.

Finally, McLane argued that the information pertain-

ing to the “reason for termination” for all those

who took the test was overly broad and unduly

burdensome. Jd.

The district court refused the EEOC access to the

disability-related information on the ground that

Ochoa could not state a claim for disability discrimina-

tion. Pet. App. 25-27. It also found that the additional

pedigree information sought in this case — in partic-

ular, the names, contact information, and social security

numbers of individual employees — was not relevant to

resolution of the Ochoa charge:

[A]n individual’s name, or even an interview he or

she could provide if contacted, simply could not

“shed light on” whether the [test] represents a tool

of gender discrimination in the aggregate. The

EEOC has provided nothing to the Court to allay

the concerns raised by McLane that such data has

been requested as a means of trolling for possible

complainants.

7

Pet. App. 29. The district court also declined to require

McLane to produce the “reason for termination” infor-

mation. Pet. App. 30-31.

The EEOC appealed the district court’s order deny-

ing enforcement of its subpoena for pedigree and

termination information, but only as to the sex

discrimination claims. Pet. App. 1, 5. It abandoned

the argument that the subpoena should be enforced

because of its relevance to potential disability

discrimination. Pet. App. 5-6.

On appeal, the Ninth Circuit reviewed the district

court’s ruling de novo even though it conceded that it

did not know why it applied this standar® instead of a

deferential standard like the other federal courts of

appeals. Pet. App. 8 n.3. It ultimately reversed the

district court, enforcing the EEOC’s subpoena for

nationwide pedigree information. Pet. App. 15-16. It

reasoned that the information was relevant because it

would allow the EEOC to identify and contact other

test takers who might have information casting light

on Ochoa’s allegations against McLane. Pet. App. 10-14.

It also found that information concerning McLane’s

termination of other test takers was relevant, but

remanded on the issue of whether requiring produc-

tion of such information would be unduly burdensome.

Pet. App. 14-16.

After its petition for rehearing en banc was denied,

McLane filed a Petition for a Writ of Certiorari with

this Court on April 4, 2016. The Court granted the

petition as to the question of what appellate standard

of review should apply to district court administrative

subpoena enforcement determinations.

8

SUMMARY OF ARGUMENT

The Ninth Circuit erred when it applied a de novo

standard of review to the district court’s determina-

tions of relevance and burden in an EEOC administra-

tive subpoena enforcement action. These determina-

tions by a district court are primarily factual, and

therefore should be reviewed on appeal for clear error.

A deferential standard of review promotes effective-

ness and efficiency because the district court is closest

to the factual and evidentiary issues at play and can

more readily appreciate the full weight of the evidence

through hearings, witness testimony, and its direct

access to the parties. This is especially true for fact-

intensive matters such as EEOC subpoena enforce-

ment actions. For that reason, every other court of

appeals to have considered the issue applies a deferen-

tial standard of review to administrative subpoena

enforcement orders.

A de novo standard of review delays prompt resolu-

tion by, among other things, encouraging appeals and

discouraging informal resolution of non-merits issues.

EEOC investigations are already lengthy, due in large

measure to the EEOC’s tendency to demand extensive,

frequently irrelevant information seemingly in hopes

of identifying potential systemic issues affecting a

broader class of employees that go beyond the under-

lying charge allegations. These often abusive investi-

gation tactics are the result, at least in part, of the

EEOC’s strategic aim to ensure that at least 20% of its

active litigation docket is made up of class-based,

systemic cases. To achieve that benchmark, the EEOC

often demands, as part of investigation of even the

most straightforward individual claim, voluminous

information that has no relevance to the charge under

investigation in an effort to “fish” for possible targets

9

for systemic enforcement. Applying a de novo stand-

ard to review of agency subpoena enforcement deter-

minations would only serve to further extend an

already lengthy EEOC investigation process, under-

mining Title VIIs goals of prompt investigation and

resolution of discrimination claims.

ARGUMENT

I. REVIEW OF EEOC SUBPOENA EN-

FORCEMENT DETERMINATIONS FOR

ABUSE OF DISCRETION ACCORDS WITH

TRADITIONAL LEGAL PRINCIPLES AND

FURTHERS IMPORTANT POLICY AIMS

UNDERLYING TITLE VII

A. Traditional Principles Of Appellate

Review Provide That Mixed Questions

Of Law And Fact Underlying EEOC

Subpoena Enforcement Actions Should

Be Reviewed Under A _ Deferential

Standard Of Review

According deference to district court’s factual deter-

minations, such as those made when ruling on

complex and often nuanced administrative subpoena

enforcement actions, facilitates efficient resolution

of disputes. For that reason, the Ninth Circuit’s appli-

cation of the de novo standard to the district court’s

subpoena enforcement was erroneous and the ruling

should be reversed.

“For purposes of standard of review, decisions by

judges are traditionally divided into three categories,

denominated questions of law (reviewable de novo),

questions of fact (reviewable for clear error), and mat-

ters of discretion (reviewable for ‘abuse of discretion’).”

Pierce v. Underwood, 487 U.S. 552, 558 (1988).

Appeals courts may not set aside a district court’s

10

“[flindings of fact” unless they are “clearly erroneous.

See Fed. R. Civ. P. 52(a)(6); see also Teva Pharms.

USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015). This

Court has observed that Fed. R. Civ. P. 52 “does

not make exceptions or purport to exclude certain

categories of factual findings from the obligation of a

court of appeals to accept a district court’s findings

unless clearly erroneous.” Teva Pharms. at 836-37

(first quoting Anderson v. Bessemer City, 470 U.S. 564

(1985); then quoting Pullman-Standard v. Swint, 456

U.S. 273, 287 (1982)).

When reviewing mixed questions of law and fact,

this Court likewise has held that “deferential review

... ls warranted when it appears that the district court

is ‘better positioned’ than the appellate court to decide

the issue in question or that probing appellate

scrutiny will not contribute to the clarity of legal

doctrine.” Salve Regina Coll. v. Russell, 499 U.S. 225,

233 (1991) (quoting Miller v. Fenton, 474 U.S. 104,

114 (1985)). Both factors typically are present when

assessing questions of relevance and burden in

connection with enforcement of an EEOC investigative

subpoena.

”

Determining the relevance of documents requested

during an EEOC investigation requires careful review

of the underlying facts and whether the requested

information stems from and is reasonably related to

the underlying claim. See, e.g., United States v. Nixon,

418 U.S. 683, 702 (1974) (“Enforcement of a pretrial

subpoena duces tecum must necessarily be committed

to the sound discretion of the trial court since the

necessity for the subpoena most often turns upon a

determination of factual issues”). Furthermore, in

conducting such an inquiry, a court often has to balance

hardships and benefits that could result from its

11

determination. This weighing of burden-versus-need

is necessarily a factual, discretion-based inquiry. See

EEOC v. Packard Elec. Div., Gen. Motors Corp., 569

F.2d 315, 318 (5th Cir. 1978) (determinations of bur-

den in a subpoena enforcement action “imply a balanc-

ing of hardships and benefits, and the standard by

which we review such matters of relative burdensome-

ness is ‘abuse of discretion”). For example, production

of documents in response to any given document

request may be unduly burdensome for one employer

because of the nature of the request and the

employers recordkeeping systems but may create

substantially less hardship for another. Therefore, a

district court must exercise discretion in deciding

when documents are relevant and, if so, at what point

relevance is outweighed by the burden that would

result if production is compelled.

1. A deferential standard of review

promotes effectiveness and efficient

resolution of collateral issues

Deference to district courts on determinations of

relevance and burden that are central to an admin-

istrative subpoena enforcement action promotes both

effectiveness and efficiency. First, a district court

“[flamiliar with the issues and litigants [is generally]

better situated than the court of appeals to marshal

the pertinent facts and apply the fact-dependent legal

standard.” Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 402 (1990). An appellate court, on the other hand,

evaluates questions of law based on a cold record that

often fails to communicate critical insights that were

conveyed to the district court judge. Pierce, 487 U.S.

at 560; see also United States v. Aluminum Co. of Am..,

148 F.2d 416, 433 (2d Cir. 1945) (“[I]n such cases the

appeal must be decided upon an incomplete record, for

12

the printed word is only a part, and often by no means

the most important part, of the sense impressions

which we use to make up our minds”) (L. Hand, Circuit

Judge) (citation omitted). A deferential standard

of review promotes efficiency as well because it

“streamline|[s] the litigation process by freeing appel-

late courts from the duty of reweighing evidence and

reconsidering facts already weighed and considered by

the district court.” Cooter & Gell, 496 U.S. at 404.

A de novo standard, on the other hand, delays

prompt resolution by, among other things, encour-

aging second-bite appeals, even on issues that are

ultimately collateral to the underlying claims being pur-

sued by the EEOC. Id. (deferential review “discourage|s]

litigants from pursuing marginal appeals, thus reduc-

ing the amount of satellite litigation”).

2. Deferential review is particularly

appropriate for complex matters

such as EEOC subpoena enforce-

ment actions

Applying a deferential standard of review to mixed

questions of law and fact is even more important when

the question being decided is relatively complex and

not susceptible to useful generalization. Pierce, 487

U.S. at 562. This Court has recognized that practical

considerations favor deferential review when a ques-

tion demands the application of a legal standard that

requires a detailed understanding of complicated

factual questions, such as in the EEOC subpoena

enforcement context. Teva Pharms., 135 S. Ct. at 838.

This case provides an excellent example of how

EEOC subpoena enforcement actions often involve

complex factual issues. Here, the EEOC initially

sought nationwide information from McLane based

on three different discrimination theories — sex,

13

disability, and age discrimination — even though the

charging party only alleged sex discrimination in her

charge. McLane initially provided only some of the

requested information. In response, the EEOC issued

two subpoenas — one purporting to seek information

about a potential ADEA claim and one purporting to

seek information about the charging party’s sex

discrimination allegations. Both subpoenas demanded

data about more than 14,000 McLane employees,

including pedigree information such as social security

numbers. McLane responded to the subpoenas by

again producing some information and objecting to

other requests, which eventually resulted in it having

to defend against two separate subpoena enforcement

actions brought by the EEOC in federal court.

This level of factual and procedural complexity is

common in EEOC subpoena enforcement actions. In

EEOC v. Wal-Mart Stores East, LP, for instance, the

EEOC issued a subpoena requesting employee infor-

mation from 40 stores as part of the EEOC’s investiga-

tion of allegations that the store’s pre-employment

physical abilities test had a disparate impact on

women. Civ. No. 6:14-cv-228, 2016 WL 1242540, at *1

(E.D. Ky. Mar. 29, 2016), appeal filed, No. 16-2755 (6th

Cir. June 2, 2016). In response, Wal-Mart produced

data for three locations and declined to produce any

personally identifiable data, arguing that compliance

with the EEOC’s overbroad demand would require

sifting through data for more than one million appli-

cants, at an estimated cost of $105,000 and 2,000

personnel hours. Jd. at *1-*2. Adding to the complex-

ity was the fact that the 2016 subpoena enforcement

action was a continuation of a prior 2001 class action

initiated by the EEOC that was resolved by consent

decree in the same court. Jd. at *1. The discrimination

14

charge underlying the 2016 action was based, in part,

on allegations that the store’s physical abilities test

did not comply with the terms of the earlier consent

decree. Jd. Given the lengthy and convoluted history

of that case, the district court was in a superior

position as compared to the appeals court to analyze

the multifaceted relevance and burden issues associ-

ated with enforcement of the EEOC’s subpoena.

3. Every other court of appeals to have

considered the issue applies a defer-

ential standard of review to ad-

ministrative subpoena enforcement

actions

Accordingly, it is not surprising that every court of

appeals that has addressed the issue, save for the

court below, applies a deferential standard of review

to administrative subpoena enforcement determina-

tions. See, e.g., FTC v. Boehringer Ingelheim Pharms.,

Inc., 778 F.3d 142, 148 (D.C. Cir. 2015) (“We review a

district court’s decision to enforce an administrative

subpoena for abuse of discretion”) (citation omitted);

EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d 757,

760 (11th Cir. 2014) (“We review the district court’s

balancing of the relative hardships and benefits of

enforcement [in an administrative subpoena enforce-

ment action] for abuse of discretion”) (citation

omitted); EEOC v. Kronos Inc., 620 F.3d 287, 295

(3d Cir. 2010) (* me); Fresenius Med. Care v. United

States, 526 F.3d 572, 375 (8th Cir. 2008) (same); NLRB

v. Am. Med. Response, Inc., 438 F.3d 188, 193 (2d Cir.

2006) (In enforcing administrative subpoenas, the

appellate court should affirm district court’s finding

of relevancy unless that determination is clearly

erroneous) (citations omitted); EEOC v. United Air

Lines, Inc., 287 F.3d 643, 649, 654 n.6 (7th Cir. 2002)

15

(ruling on relevancy and burden associated with

administrative subpoena should only be reversed for

abuse of discretion); United States v. Chevron U.S.A.,

Inc., 186 F.3d 644, 647 (5th Cir. 1999) (same); Reich v.

Nati Eng. & Contracting Co., 13 F.3d 93, 98 (4th Cir.

1993) (appeals courts review a district court’s admin-

istrative subpoena enforcement ruling under the clearly

erroneous standard) (citation omitted).

The Ninth Circuit is alone in refusing to accord

deference to a district court’s administrative subpoena

enforcement determination. Instead, it applies a de

novo standard — even though it concedes that it does

not have a good explanation for doing so. Pet. App. 8

n.3. To the extent the Ninth Circuit justifies its outlier

approach by asserting that determinations of rele-

vance and burden are pure questions of law, such an

argument is untenable. As discussed above, a court’s

determinations of relevance, as well as its weighing of

the burdens involved in producing the requested

information, are primarily factual and discretionary in

nature. For that reason, a district court’s determina-

tions of relevance and burden in administrative sub-

poena enforcement actions should be accorded deference

on appeal. See, e.g., Salve Regina College, 499 U.S. at 233.

B. De Novo Review Of Subpoena Enforce-

ment Determinations Undermines

Prompt Investigation And Resolution

Of Title VII Discrimination Claims

1. Title VIPs relatively short limita-

tions periods are intended to

encourage prompt resolution of

charges

A principal objective of Title VII is to promote

prompt and efficient resolution of discrimination

16

claims. See Mach Mining, LLC v. EEOC, 135 S. Ct.

1645, 1651 (2015) (“In pursuing the goal of ‘bring[ing]

employment discrimination to an end,’ Congress

chose ‘[clooperation and voluntary compliance’ as its

‘preferred means”) (citation omitted); see also W.R.

Grace & Co. v. Local Union 759, 461 U.S. 757, 770-71

(1983) (voluntary compliance is an “important public

policy” intended by Congress to be the “preferred

means of enforcing Title VII”) (citation omitted). To

further that aim, Congress deliberately set a relatively

short period within which charges alleging Title VII

violations must be filed. 42 U.S.C. § 2000e-5(e) (“A

charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful

employment practice occurred” or within three

hundred days if “the person aggrieved has initially

instituted proceedings with a State or local agency

cer

As this Court has observed:

By choosing what are obviously quite short

deadlines, Congress clearly intended to encourage

the prompt processing of all charges of employ-

ment discrimination ... [I]n a statutory scheme in

which Congress carefully prescribed a series of

deadlines measured by numbers of days — rather

than months or years — we may not simply

interject an additional ... period into the pro-

cedural scheme. We must respect the compromise

embodied in the words chosen by Congress. It is

not our place simply to alter the balance struck

by Congress in procedural statutes by favoring

one side or the other in matters of statutory

construction.

Mohasco Corp. v. Silver, 447 U.S. 807, 825-26 (1980)

(footnote omitted); see also Int’l Union of Elec. Workers

17

v. Robbins & Myers, Inc., 429 U.S. 229, 240 (1976)

(“Congress has already spoken with respect to what it

considers acceptable delay when it established a 90-

day limitations period, and gave no indication that it

considered a ‘slight’ delay followed by 90 days equally

acceptable. In defining Title VII's jurisdictional

prerequisites ‘with precision,’ Congress did not leave

to courts the decision as to which delays might or

might not be ‘slight”) (citation and footnote omitted).

There are also many practical reasons to encourage

prompt investigations by the EEOC. Prompt resolu-

tion allows the affected employees to get relief faster

and also can help to stop and correct a workplace

problem before it becomes more serious or pervasive.

In addition, the longer an investigation drags on, the

more likely it is that evidence will be lost and

memories will fade, which can impede an employer's

ability to defend itself. As this Court pointed out in

Mohasco Corp. v. Silver, the costs associated with

processing and defending stale claims are significant

and at a certain point “outweigh the federal interest

in guaranteeing a remedy to every victim of

discrimination.” 447 U.S. 807, 820 (1980).

2. De novo review would only extend

already lengthy EEOC investiga-

tions

De novo review of a district court’s administrative

subpoena enforcement order can only serve to drag

out already lengthy EEOC investigations, which in

turn undermines prompt resolution of discrimination

claims as contemplated in Title VII.

In Fiscal Year 2015, the EEOC spent on average ten

months to complete a charge investigation. See EEOC,

18

What You Can Expect After You File A Charge.* Those

delays have led, in turn, to a substantial charge

backlog. For example, at the end of Fiscal Year 2016,

the EEOC’s pending inventory stood at more than

73,500 charges. EEOC, Performance and Account-

ability Report 55 (Fiscal Year 2016);? see also Press

Release, Sen. Lamar Alexander, Appropriations Com-

mittee Advances Bill Directing EEOC to Focus on

“Massive” Backlog of 76,000 Unresolved Workplace

Discrimination Cases (Apr. 21, 2016) (noting that

in Fiscal Year 2015, the EEOC went “far afield of

[its] critical task, allowing its massive backlog of

unresolved cases to climb to more than 76,000, while

pursuing cases where there is no complaint ...”).*

As discussed below, a major factor contributing to

the excessive length of charge investigations has been

the EEOC’s recent efforts to expand as many

individual claims as possible into potential candidates

for systemic litigation. See, eg., EEOC Strategic

Enforcement Plan 5 (Fiscal Years 2017-2021) (“The

Commission reaffirms its commitment to a nation-

wide, strategic, and coordinated systemic program as

one of EEOC’s top priorities”). Those efforts have

resulted in the EEOC regularly seeking to obtain

voluminous and often overly broad company-wide

information, which can take an employer hundreds or

* Available at https://www.eeoc.goy/employves/process.cfm (last

visited Nov. 18, 2016).

9 Available at https://www,ecoc,.gov/eeod/plan/upload/2016par.

pdf (last visited Nov. 18, 2016).

' Available at ne ane.

5D (last visited Nov. 18, ry

® Available at https//www.ceoc.goy/eeoc/plan/upload/sep-2017,

pdf (last visited Nov. 18, 2016).

19

even thousands of hours to gather. This approach

naturally leads to more pushback from employers

and, in turn, greater EEOC subpoenas enforcement

activity.

In Fiscal Year 2016, the EEOC filed 28 subpoena

enforcement actions, compared to only 86 merits

lawsuits — a ratio of approximately 3-to-1. EEOC,

Performance and Accountability Report (Fiscal Year

2016), at 36. In comparison, the EEOC filed 383

merits lawsuits and only 32 subpoena enforcement

actions in Fiscal Year 2005 — a ratio of approximately

12-to-1. EEOC, Performance and Accountability

Report 11 (Fiscal Year 2005). This notable decrease

in merits litigation is further evidence that the EEOC

is focusing more of its time and resources developing

complex, systemic claims at the investigation stage.

Applying a de novo, rather than an abuse-of-

discretion, standard of review only serves to lengthen

this already drawn-out investigation process. When a

de novo review standard applies, the party at the

losing end of a determination is more likely to appeal,

because it sees the appeal as a chance at a clean slate.

Cooter & Gell, 496 U.S. at 404. That is particularly

true of the EEOC, which does not directly bear costs of

litigation in the same way as an employer.

Further extending the already lengthy investigation

process by applying de novo review to rulings on

investigation disputes does not comport with the

prompt resolution goals of Title VII. Mohasco Corp.,

447 U.S. at 825-26. An abuse of discretion or clear

error standard on the other hand would make an

appeal on these sideshows less likely, allowing the

® Available at https//www.ecoc.gov/eeoc/plan/archives/annual

reports/par/2005/par2005.pdf (last visited Nov. 18, 2016).

20

parties to focus on the merits and resolve these

discrimination disputes more efficiently, as Congress

intended.

ll. THE DISTRICT COURT IS BETTER

POSITIONED TO ENFORCE THE

IMPORTANT STATUTORY LIMITATIONS

ON THE EEOC’S' INVESTIGATION

AUTHORITY AND TO DISCOURAGE

ABUSIVE INVESTIGATION TACTICS

A. The Scope Of An EEOC Subpoena Is

Limited By The Facts Of The

Underlying Charge

The EEOC is authorized by Congress to enforce Title

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.

§§ 2000e et seqg., which prohibits discrimination

against a covered individual “with respect to his com-

pensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

Title VII sets forth “an integrated, multistep enforce-

ment procedure’ that ... begins with the filing of a

charge with the EEOC alleging that a given employer

has engaged in an unlawful employment practice.”

EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984) (quoting

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359

(1977) (footnote omitted)); see also Univ. of Pa. v.

EEOC, 493 U.S. 182, 190 (1990). Upon the filing of a

charge, Title VII directs that the EEOC “shall make

an investigation thereof.” 42 U.S.C. § 2000e-5(b). The

statute also provides:

In connection with any investigation of a charge

filed under section 706 [42 U.S.C. § 2000e-5], the

Commission or its designated representative shall

at all reasonable times have access to, for the

21

purposes of examination, and the right to copy

any evidence of any person being investigated

or proceeded against that relates to unlawful

employment practices covered by this subchapter

and is relevant to the charge under investigation.

42 U.S.C. § 2000e-8(a) (emphasis added).

Thus, in conducting discrimination charge investiga-

tions, the EEOC does not possess unfettered discretion

to seek out other forms of discrimination not alleged

by the charging party and outside the scope of its rea-

sonable investigation of the charging party’s claims.

To the contrary, its authority to compel the production

of evidence is limited to materials “relevant” to the

allegations in the charge. 42 U.S.C. § 2000e-8(a).

Thus, “unlike other federal agencies that possess

plenary authority to demand to see records relevant to

matters within their jurisdiction, the EEOC is entitled

to access only to evidence ‘relevant to the charge under

investigation.” Shell Oil Co., 466 U.S. at 64 (citation

and footnote omitted) (emphasis added).

Thus, in vesting the EEOC with primary respon-

sibility for enforcing Title VII, Congress unam-

biguously restricted the EEOC’s subpoena power to

inspecting and copying evidence relevant to the charge

under investigation. Jd. As this Court emphasized in

Shell Oil, “Congress did not eliminate the relevance

requirement, and we must be careful not to construe

the regulation adopted by the EEOC governing what

goes into a charge in a fashion that renders that

requirement a nullity.” 466 U.S. at 69.

A district court is best positioned to thoroughly

evaluate whether documents requested in an EEOC

administrative subpoena are relevant to the allega-

tions of the charge being investigated. The district

22

court benefits from the history of the investigation

dispute including any compromises or shifts in posi-

tion by the parties, questioning of the parties and

counsel at hearings, and proximity to often nuanced

and complex issues that may arise in subpoena

enforcement actions.

When the EEOC exceeds its statutory authority by

issuing subpoenas for information pertaining to issues

outside the bounds of the allegations being investi-

gated, it unilaterally dispenses with Title VII’s statu-

tory requirements, as explained by this Court in Shell

Oil, and robs employers of the basic protections they

afford. EEOC v. Bailey Co. , 563 F.2d 439, 450 (6th Cir.

1977). For all of the reasons outlined above, the

district court is better positioned to evaluate whether

the EEOC’s document requests are relevant to the

allegations in the underlying charge and its deter-

mination of such should be accorded deference.

B. The Nuances And Peculiarities Of The

EEOC’s Often Overreaching Investiga-

tion Tactics Can Be Lost In Translation

On Appeal

District courts, unlike appellate courts, have a

continuing relationship with the subject matter of an

action, which puts them in a superior position to judge

the nuances and particularities of subpoena disputes,

including overreaching or bad faith by one of the

parties. Pierce, 487 U.S. at 560 (district court often

gets insight not conveyed to the appellate court

through the lifeless record). The EEOC’s regular

disregard for the statutory constraints on its investi-

gative and enforcement authority is well-documented,

causing harm to employers as well as employees. See,

e.g., EEOC v. Royal Caribbean Cruises, Ltd., 771 F.3d

757, 761 (11th Cir. 2014); EEOC v. United Air Lines,

23

Inc., 287 F.3d 643, 655 (7th Cir. 2002). Indeed, a

Senate report identifies ten cases since 2011 in which

the EEOC has been required to pay attorneys’ fees as

a result of frivolous or mismanaged litigation positions,

many of which stemmed from investigation mis-

steps. See EEOC: An Agency on the Wrong Track?

Litigation Failures, Misfocused Priorities, and Lack of

Transparency Raise Concerns About Important Anti-

Discrimination Agency, U.S. Sen. Comm. on Health,

Educ., Labor and Pensions, Minority Staff Rep. 1-3

(Nov. 24, 2014) (hereinafter Minority Staff Rep.);' see

also Mary Kissel, Chronicling EEOC’s Abuses, Wall St.

J. (Nov. 24, 2014).®

The de novo standard applied by the court below

encourages the EEOC’s current practice of crafting

vague and indefinite information demands for the pur-

pose of conducting unfettered “fishing expeditions” —

in direct contravention of its statutory mandate. See

Shell Oil, 466 U.S. at 90. The EEOC holds great

leverage over the employers it investigates, which is

no surprise, given the “vast disparity of resources

between the government and private litigants.” EEOC

v. Great Steaks, Inc., 667 F.3d 510, 519 (4th Cir. 2012).

As noted, the agency routinely capitalizes on its

position of advantage by serving overly broad requests

for information that are unconnected to the particular

allegations of the charge under investigation. See, e.g.,

EEOC v. Southern Farm Bureau Cas. Ins. Co., 271

F.3d 209, 211-12 (5th Cir. 2001); Kronos, 620 F.3d at

300-02 (3d Cir. 2010); Royal Caribbean Cruises, 771

18, 2016).

® Available at http-//online.wsj.com/ articles/political-diarychro

nicling-eeoc-abuses- 1416867954 (last visited Nov. 18, 2016).

24

F.3d at 761; United Air Lines, 287 F.3d at 655. An

employer served with such a request often will find

itself in an untenable position of either incurring

substantial costs to produce the requested irrelevant

information or incurring substantial costs to fight, just

to risk losing and then being compelled to incur the

costs to produce the documents anyway.

While the EEOC often targets large companies,

employers with as few as 15 employees are subject to

the laws the EEOC enforces, and thus also are poten-

tial targets of these abusive information requests. In

one case, the EEOC was criticized for its “highly

inappropriate” and “dogged pursuit” of a small busi-

ness whereby it sought extremely broad categories of

documents that were unrelated to any aggrieved

person’s charge of discrimination. EEOC v. HomeNurse,

Inc., 2013 WL 5779046, at *14 (N.D. Ga. Sept. 30,

2013). The district court refused to enforce the sub-

poena concluding that the agency’s actions in that case

“constitute[d] a misuse of its authority.” Jd. A number

of courts have sanctioned the EEOC for similar

prosecutorial abuses. See, e.g., EEOC v. Freeman, '778

F.3d 463, 472-73 (4th Cir. 2015); EEOC v. Peoplemark,

Inc., 732 F.3d 584, 616 (6th Cir. 2013); EEOC uv.

TriCore Reference Labs., 493 F. App’x 955, 960-61

(10th Cir. 2012); EEOC v. West Customer Mgmt.

Group, LLC, 2014 WL 4435980, at *1 (N.D. Fla. Sept.

8, 2014); EEOC v. U.S. Steel Corp., 2013 WL 625315

(W.D. Pa. Feb. 20, 2013). The EEOC also has garnered

considerable criticism from members of Congress, who

have taken the agency to task for among other things

“pursuing many questionsable cases through some-

times overly aggressive means.”

® Minority Staff Rep. at 3.

25

As noted, the EEOC has put a high priority on

pursuing systemic litigation where alleged discrimina-

tion has a potentially broad impact on an industry,

profession, company or geographic area. The agency’s

systemic case quotas further encourage disregard of

the statutory limits on its investigative authority by

demanding overly broad company-wide information

that has no connection to the charge under investiga-

tion. These self-imposed systemic case quotas have no

statutory basis, and undermine effective enforcement

of employment discrimination laws by diverting valua-

ble resources away from investigations of ripe claims

contained in a filed charge, and towards unbridled

fishing expeditions in search of the “big” systemic case.

The negative impact of these overly aggressive and

abusive investigation tactics is evidenced by the

drastic downturn in merits lawsuits filed just one

decade since the program began — a drop from 383

lawsuits in 2005 to just 86 in 2016. EEOC,

Performance and Accountability Report 11 (Fiscal

Year 2005); EEOC, Performance and Accountability

Report 36 (Fiscal Year 2016). Rather than focusing

its efforts on promptly investigating and seeking

appropriate remedies for discrimination victims, the

agency too often devotes inordinate time and resources

on expensive investigations, often untethered from the

underlying charge, i. an effort to “fish” for possible

subjects for systemic enforcement. De novo review

of subpoena determinations only encourages such

conduct.

26

CONCLUSION

For all of the foregoing reasons, the decision below

should be reversed.

KATHRYN COMERFORD TODD

WARREN POSTMAN

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, N.W.

Washington, DC 20062

(202) 463-5337

Attorneys for Amicus Curiae

Chamber of Commerce of the

United States of America

KAREN R. HARNED

ELIZABETH MILITO

NATIONAL FEDERATION OF

INDEPENDENT BUSINESS

SMALL BUSINESS LEGAL

CENTER

1201 F Street, N.W.,

Suite 200

Washington, DC 20004

(202) 406-4443

Attorneys for Amicus Curiae

National Federation of

Independent Business

Small Business Legal Center

November 2016

Respectfully submitted,

RAE T. VANN

MICHAEL P. BRACKEN

Counsel of Record

NT LAKIS, LLP

1501 M Street, N.W.

Suite 400

Washington, DC 20005

mbracken@ntlakis.com

(202) 629-5600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council