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

preme Coun, Us

FILED

| JAN 10 2077

eres OF THE CLE

No. 15-1248

mm ee

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 OF COURT-APPOINTED

AMICUS CURIAE STEPHEN B. KINNAIRD

DEFENDING THE JUDGMENT BELOW

D. Scott Carlton Stephen B. Kinnaird

Sarah Kelly-Kilgore Counsel of Record

Bart Quintans Neal D. Mollen

Bryant Lin Derek Turnbull

Serli Polatoglu PAUL HASTINGS LLP

PAUL HASTINGS LLP 875 15th Street, N.W.

515 S. Flower Street Washington, D.C. 20005

25th Floor (202) 551-1700

Los Angeles CA, 90071 stephenkinnaird@

(213) 683-6000 paulhastings.com

TER TT IE ER TE NTT TE EE EOS

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

QUESTION PRESENTED

Whether a court of appeals should review de novo

a district court’s order to quash or enforce a subpoena

issued by the Equal Employment Opportunity

Commission under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq.

-ii-

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................2c00000-++ seiniadadit i

, gk EEE er neon Nte ee vi

INTEREST OF AMICUS CURIAE..........................42. 1

RELEVANT STATUTORY PROVISIONS ................ 1

STATEMENT OF THE CASE...............ccccse-eesecseeeeeees 1

A Statutory and Regulatory

REESE 1

B. Proceedings Below. ..................::cseseeeee+ 4

SUMMARY OF ARGUMENT ..................ccceceeeee cose eeee 8

fa ANSE Sa NO 13

I. Appellate Courts Properly Review De

Novo District Court Decisions To

Enforce or Quash an Administrative

IN Biicncinsichilnendivinbenbduenitinaainibiametusduashiennn 13

A. This Court Has Long Recognized

That Whether a Party Has a Duty

To Comply with an Agency

Subpoena Is a Legal Question. ........... 13

B. Appellate Courts Review De Novo

a District Court’s Application of

the Fourth Amendment Standard

for Enforcing Agency Subpoenas. ....... 16

1. A Subpoena Is a

Constructive Search Under

the Fourth Amendment............ 17

IT.

A.

-ili-

The Fourth Amendment

Requires Agency

Subpoenas To Be

EARN NN OR 18

Appellate Courts Review

Fourth Amendment

“Reasonableness”

Determinations De Novo. ......... 22

This Court Has Always

Determined De Novo a Party’s

Duty To Comply with an Agency

Tae EA A RR ed Ca 29

The Administrative Procedure Act

Limits Judicial Enforcement of a

Subpoena to Determining

Whether It Is “In Accordance with

gg RRR ERT Ets 28 SCS DAE NET Ao eer 31

A District Court Decision Regarding the

Scope of the EEOC’s Statutory Authority

to Issue a Subpoena Under Title VII

Requires De Novo Review. .................s00ees000++ 36

The Statutory Restrictions in

Title VII Raise Questions of Law,

Which Must Be Reviewed De

PRED SPE Shey RSLS oer ee 36

1.

Whether Evidence “Relates

to Unlawful Employment

Practices” Is a Legal

I dccinticagdiatvencnesitiinindiinsiioms 36

Relevance of the

Information to the Charge

Presents a Legal Question. ...... 39

-iv-

The District Court Is Not Entitled

to Deference Because Factual

Questions Do Not Predominate in

Enforcement Decisions......................

III. The Proposed Abuse-of-Discretion

Standard Is Unsound. ........0........0..ccceccceceeeeeee 45

A.

District Courts Are Not Afforded

Discretion in the Enforcement of

EEOC Subpoenas. ...............2....000c0000+

The Abuse-of-Discretion Standard

Does Not Apply to Determinations

of a Person’s Statutory Duty to

Comply with an Agency

IY. ccintitiatetichinahechitiashitsimdanacsceciiies

Congress Has Not Ratified the

Abuse-of-Discretion Standard...........

De Novo Review Does Not

Encourage Marginal Appeals and

Will Not Materially Delay EEOC

Investigations. .............2..02...ceseeeeeeee--

CONCLUSION

(RO REPRE RRR RRS E RE RESELL ERE SESE TL RR TERRE RARER REESE

42

.. 45

.. 48

.. 55

5 U.S.C. § 555

Cases

Agostini v. Felton,

Bk BF, eee

Albemarle Paper Co. v. Moody,

GD Cs Ge CFP cece cscs ccreceseccevcoscocses

Am. Target Advert., Inc. v. Giani,

199 F.3d 1249 (10th Cir. 2000)...........

Arizona v. Rumsey,

re Ce Be NE circircccsesnesiesoisncctsnnes

Asarco, Inc. v. U.S. EPA,

616 F.2d 1153 (9th Cir. 1980).............

Ashcroft v. ACLU,

642 U.S. G56 (2004) .........2...0rcccccvcceeeee-

Biodiversity Conserv’n All. v. Jiron,

762 F.3d 1036 (10th Cir. 2014)...........

Bose Corp. v. Consumers Union,

eee

Bowman Dairy Co. v. United States,

ae ST | eee

Boyd v. United States,

RO TE Ge CID cr ssccccscnsssenconasssseneee

-Vil-

T HORI

(continued)

Page(s)

Brewer v. Williams,

I a sdapmdcnabeaiodesen 25

Brown v. United States,

Ss cppiseiidiaenainis 53

Cal. Bankers Ass’n v. Shuliz,

A i <a

California v. Acevedo,

SRI RS AE ELEN Re Me Pees ela 22

Chevron U.S.A., Inc. v. NRDC,

SRE EE ce 41

City of Arlington v. FCC,

ST Mee ee Pree Ge 41

Cobbledick v. United States,

LE a 51, 53

Cooper Indus. v. Leatherman Tool Grp., Inc.,

Sy Ce IE IE vcicccstccecsctacdssannanies 25, 28, 29, 55

Cooter & Gell v. Hartmarx Corp.,

as I cecewsiouneas 49, 57

Crawford-El v. Britton,

I a sdmseiaiennls 48

D.G. Bland Lumber Co. v. NLRB,

177 F.2d 656 (6th Cir. 1949).......................... 47, 54

-viil-

TABLE OF AUTHORITIES

(continued)

Page(s)

Dart Cherokee Basin Operating Co., LLC v.

Owens,

a I ccelibepaiinianmaaisansol 49

Denton v. Hernandez,

EE RL CRN eee aT 49

Dir., Office of Thrift Supervision v. Vinson &

Elkins, LLP,

124 F.3d 1304 (D.C. Cir. 1997) ...................2-.-22.-- 42

Donovan v. Lone Steer, Inc.,

8 REAR ee ee aie ee 17, 18, 21

eBay Inc. v. MercExchange, L.L.C.,

gf 8 SEAS Sn 48, 49

EEOC v. A.E. Staley Mfg. Co.,

it Be 2 Ls ence 56

EEOC v. Aerotek, Inc.,

— fe | 7. le ener eneeeor 56

EEOC v. Allstate Ins.,

No. 81-C-518, 1981 WL 261 (N.D. UL

A SRN SESS ee 2 56

EEOC v. Cherokee Nation,

871 F.2d 987 (10th Cir. 1989) .........................0226. 38

EEOC v. K-Mart Corp.,

694 F.2d 1055 (6th Cir. 1982) ....................ceeeeeeee 37

in.

TAB TIE

(continued)

Page(s)

EEOC v. Konica Minolta Bus. Solutions

U.S.A., Inc.,

639 F.3d 366 (7th Cir. 2011)..........000000.... 38, 39, 43

EEOC v. Laidlaw Waste, Inc.,

934 F. Supp. 286 (N.D. Ill. 1996)... 56

EEOC v. Michael Consir. Co.,

706 F.2d 244 (6th Cir. 1963) ......................cccccees-- 38

EEOC v. Optical Cable Corp.,

No. CIV.A. 98-MC-02-R, 1998 WL 236930

ee 4 Se Ae 56

EEOC v. Randstad,

685 F.3d 433 (4th Cir. 2012) .......00..000000... 40, 43, 46

EEOC v. Shell Oil Co.,

I a acilomeesdiiennas passim

EEOC v. Tempel Steel Co.,

814 F.2d 482 (7th Cir. 1987) .............................00. 43

EEOC v. United Air Lines, Inc.,

287 F.3d 643 (7th Cir. 2002) ....................ccccccs-.00 37

EEOC v. United Parcel Serv., Inc.,

587 F.3d 136 (2d Cir. 2009)..........0.0.0000.... 40, 43, 44

Endicott Johnson Corp. v. Perkins,

I eels passim

Essgee Co. of China v. United States,

ae hee Se SEER ae 19

-x-

T ITIES

(continued)

Page(s)

Florez v. CIA,

829 F.3d 178 (2d Cir. 2016)................cc..cccceccce-0-- 39

Fogerty v. Fantasy, Inc.,

ST seuuinnatinibuminel 55

FTC v. Am. Tobacco Co.,

ee II... ccmpesitmiteemammnamnameunsienias 18

FTC v. Lonning,

5639 F.2d 202 (D.C. Cir. 1976) ...............ccc00-.ccecees 44

GE v. Joiner,

SSE aaa acne Manne meee 49

Goodyear Tire & Rubber Co. v. NLRB,

122 F.2d 450 (6th Cir. 1941)... 46, 47, 53

Hale v. Henkel,

I 17

Halo Elecs., Inc. v. Pulse Elecs., Inc.,

I 49

Harriman v. Interstate Commerce Comm'n,

I 18

HighMark Inc. v. Alicare Health Mgmt. Sys.,

| RT TLS eR 49

Hills v. Gautreaux,

I ae 30

TAB FA

(continued)

Page(s)

Ins. Corp. of Ir., Lid. v. Compagnie des

Bauxites de Guinee,

456 U.S. 694 (1982) ............... Hae ene Ad Nn a 49

Interstate Commerce Commiission v.

Brimson,

gg RESET Tene ae passim

Jones v. SEC,

I ees lamnenanlel 19

Jorge v. Rumsfeld,

404 F.3d 556 (Ist Cir. 200B)................c.ccccccecsseeceeee 3

Koon v. United States,

I I sa esinenavenssentwnsenwenssan 26, 29, 49

Lorillard v. Pons,

ca oiaiameienenanadadinds 53, 54

Mach Mining, LLC v. EEOC,

SE a SII oo ccicaninssondncestimeecsnebenees 2, 3, 45

Ex parte McCardle,

- ) Eg hf LE eeneoeneee 46

McPhaul v. United States,

en a sidivendabmanepnintianes 31

Merrill Lynch, Pierce, Fenner & Smith Inc.

v. Dabit,

er a 54

-Xil-

TABLE OF AUTHORITIES

(continued)

Page(s)

Miller v. Fenton,

ke eC ere 23, 24, 45, 48

Nichols v. Am. National Ins.,

ee ff ery et: 38

Nken v. Holder,

es Re CD veccvsnsesacniecetumesunciencenieiiicaeeiaals 56

NLRB v. Anchor Rome Millis,

197 F.2d 447 (Géia Cir. 1968) ........c0ccccccccccveccccscoces 54

NLRB v. Rogers Mfg. Co.,

406 F.2d 1106 (Gth Cir. 1969) ..............ccccocccsse-se. 39

Occidental Life Ins. Co. v. EEOC,

gt Og ; RENEE NOME Fe 2

Okla. Press Pub. Co. v. Walling,

ke ef RE iecsiaaamamaaan passim

Old Chief v. United States,

jis Se, |. REN ere 49

Ornelas v. United States,

agi) S| AORN a a passim

Pachecc v. Mineta,

448 F.3d 783 (Sth Cir. 2006) ....................sccccceceees 38

Pierce v. Underwood,

Ge Oe Ce CE ec cncsntevecnncitnvosteueenienanes 29, 49, 56

T T

(continued)

Page(s)

Piper Aircraft Co. v. Reyno,

ce 49

Planned Parenthood of Greater Iowa, Inc. v.

Miller,

196 F.3d 386 (8th Cir. 1999) ................cccceeseeeeveees 28

Preferred Risk Mut. Ins. v. United States,

86 F.3d 789 (8th Cir. 1996) ............00......sseseccreerene 35

Pullman-Standard v. Swint,

Te 23

Renico v. Lett,

i sacra ernonseOnens 49

Salve Regina Coll. v. Russell,

re 48

See v. City of Seattle,

Sy EE CIID cccccenctnccocconscness 17, 18, 21, 26, 27

Sierra Club v. Davies,

966 F.2d 1188 (@th Cir. 1992).............-.......000000000 35

Sinclair v. United States,

on serntencetosemesencnsnuacoonene 15

Sumner v. Mata,

a a sraccsmnpenentnnouboreets 25

Tenet HealthSystems HealthCorp. v.

Thompson,

254 F.3d 238 (D.C. Cir. 2001) .................00008 31, 35

-xiv-

TABLE OF AUTHORITIES

(continued)

Page(s)

Terry v. Ohio,

I 22

Thompson v. Keohane,

I 25

Tobin v. Banks & Rumbaugh,

201 F.2d 228 (Gth Cir. 1963) ..................-............. 34

U.S. EEOC v. Maritime Autowash, Inc.,

820 F.3d 662 (4th Cir. 2OIG) ...............0....000....0000- 38

U.S. Postal Serv. v. Gregory,

RF i Ea eee 28

United States v. Bajakajian,

tT ene See 24

United States v. Bisceglia,

SCE eee u trees 16

United States v. Campbell,

764 F.3d 880 (8th Cir. 2014)......... oe St SAPD ES 27

United States v. Clarke,

Sn 28, 48

United States v. Dionisio,

I Tala 52

United States v. Gaudin,

i a 15

-xvVv-

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Jennings,

544 F.3d 815 (7th Cir. 2008) ......00 0000. 24

United States v. Mallory,

765 F.3d 373 (3d Cir. 2014)............. fa eae RE 24

United States v. Morton Salt Co.,

I i inrneaaclisnonin passim

United States v. Nixon,

I passim

United States v. Powell,

SI ae 21, 28, 47, 51

United States v. R. Enters., Inc.,

ST I a cinemas 52, 53

United States v. Reeves,

210 F.3d 1041 (9th Cir. 2000) ...........00000000 cece 26

United States v. Sec. State Bank & Trust,

473 F.2d 638 (5th Cir. 1973) .....................0.--eeeeeee 32

United States v. Smith,

389 F.3d 944 (9th Cir. 2004)... eee eeeee 24

United States v. Taylor,

EERIE Tee ae ee PRP ee 49

United States v. Williams,

Ee IE 52, 53

-xvi-

TABLE OF AUTHORITIES

(continued)

Page(s)

Univ. of Pa. v. EEOC,

I 1, 2,4

Wilson v. United States,

TE Ae ane ee a ee 19

Wilton v. Seven Falls Co.,

I sciaeeiaiaidaloeionidads 49

Statutes, Constitutional Provisions, and Rules

I 2, 37

CRRA RS Cea ee eR ea 15

5 U.S.C.

aac ie tlc athe late lalate iieidiacoatale 1

EE ES eee es WE ae ed 31

SESSA SR eae We Leen tY Hee passim

a i sisiesassinsathadenapndagasitidabddenabineaticiataamidabdabiiiséaide 31

29 U.S.C.

Eee AMBER. cote eorAe st ee 3, 12

a aaeiel 4, 40, 47

STII icticutcaok desiiiinigionciahdnhsdaemaiasaipatatmanieaanaianbiel 4, 46

OS a Rar RRS tel Ae tee Soest 50

-xVl1i-

TABLE OF AUTHORITIES

(continued)

Page(s)

42 U.S.C.

EERE RRR A AM 5 oly PEI oF 1

i re ee 1

RRP EES ES eae eae Se EM Oe Se 1, 38

TERETE RF IO an rere Die ae 2, 37

ERIS a LR RL See NOR URN Shas PA 1

I a : 2

RE A A ae See etek er AUN SP passim

SERS ae ene 3, 12, 40, 47

EELS AS SAE DONT as OEY 1 BT 41

Fourth Amendment, U.S. const. amend. IV ..... passim

Fed. R. Civ. P.

EOE SER RASS IR ir eR eh eT MS ET Cw 49, 57

SE lcinsinsiiehssiss esheets isiciandeiadiatateiechtaiddcssecscaiemesee nt 44

Citic iccaesepuintintiediansbonejetinnenecceehesdectiadinbiemGlbsdininedjalaneicluuaipnnedhissaaaeamale 48

__ EEE a re ee Ae eee CORRE Fa Se ewe 49

RRR SIE CAS AT RRR Brae eat es wLTe Aras RBS 49

a ne 50, 52

I ns tt 41

Other Authorities

Administrative Procedure Act: Legislative

History 1944-46, S. Doc. No. 79-248

SRK ENS Tei SE RAs tat 33, 34

John B. Benton, Administrative Subpoena

Enforcement, 41 TEX. L. REV. 874 (1963)............. 44

RITI

(continued)

Page(s)

Kenneth Culp Davis, The Administrative

Power of Investigation, 56 YALE L.J.

aR ee aes 19

Dep’t of Justice, Attorney General’s Manual

on the Administrative Procedure Act

AA RT al SCL Ce Oe NS 34

EEOC Compliance Manual

ERS REL RE SSSR RES cee eee te ee ES SS 4

TEE EAM ay Nea eee R ERE NES 4

SRN ET se RE ee TEN ER 3

ata a i Be eT 3

a al a Te 3

Barbara T. Lindemann & Paul Grossman,

EMPLOYMENT DISCRIMINATION LAW (5th

NE cdc ieee re a, 3

Lee Modjeska, ADMINISTRATIVE LAW

PRACTICE AND PROCEDURE EES 32

1 Richard J. Pierce, Jr., ADMINISTRATIVE

LAW TREATISE (5th ed. 2010)...............ccccceseseeeeeees 35

INTEREST OF AMICUS CURIAE

By order dated November 8, 2016, this Court

appointed Stephen B. Kinnaird as amicus curiae

counsel to defend the judgment of the court of appeals

that a district court’s decision to quash or enforce a

subpoena issued by the Equal Employment

Opportunity Commission (““EEOC” or “Commission”)

is subject to de novo review.!

RELEVANT STATUTORY PROVISIONS

In addition to the provisions reproduced by the

parties, section 6 of the Administrative Procedure Act

(“APA”), 5 U.S.C. § 656, is relevant and reproduced in

an addendum to this brief.

STATEMENT OF THE CASE

A. Statutory and Regulatory Background.

Title VII of the Civil Rights Act of 1964 declares

certain forms of discrimination to be unlawful

employment practices. 42 U.S.C. §§ 2000e-2, 2000e-3.

Congress granted the EEOC the power “to prevent

any person from engaging in any unlawful

employment practice” described in the statute. Id.

§ 2000e-5(a).

“The Commission’s enforcement responsibilities

are triggered by the filing of a specific sworn charge

of discrimination.” Univ. of Pa. v. EEOC, 493 US.

182, 190 (1990); 42 U.S.C. § 2000e-5(a), (e). Because

the EEOC is tasked with “[p]rimary responsibility for

1 No counsel for a party authored this brief in whole or in

part, and no person other than amicus curiae and his firm made

a monetary contribution to this briefs preparation or

submission.

-2-

enforcing Title VII,” EEOC v. Shell Oil Co., 466 U.S.

54, 61-62 (1984), such a charge is a precondition to a

private Title VII lawsuit. Occidental Life Ins. Co. v.

EEOC, 432 U.S. 355, 360—61 (1977). To be valid—to

satisfy this administrative exhaustion requirement—

the sworn charge must “identify the parties [to the

alleged discriminatory acts] and ... describe generally

the action or practices complained of.” 29 C.F.R.

§ 1601.12(b).

Once a valid charge has been filed with the

EEOC, either by an aggrieved individual or by a

member of the Commission, the EEOC is required to

“make an investigation thereof.” 42 U.S.C. § 2000e-

5(b). If, after investigating, the EEOC concludes that

there is no “reasonable cause” to credit the

allegations in the charge, it closes its investigation

and issues a “right-to-sue” letter to the charging

party, authorizing that party to proceed to litigation.

Id. § 2000e-5(b), (f)(1)(A); Univ. of Pa., 493 U.S. at

191 & n.4. If, on the other hand, the EEOC finds

reasonable cause to believe the allegations, it must

engage in “informal methods of conference,

conciliation, and persuasion” to resolve the matter.

42 U.S.C. § 2000e-5(b); Mach Mining, LLC v. EEOC,

135 S. Ct. 1645, 1651 (2015). If those efforts fail, the

Commission can itself file suit against the employer.

Id.

The EEOC’s authority to investigate a charge is

broad but not unbounded. Congress set a

purposefully calibrated legal limit on that authority;

the Commission may seek only evidence that is both

“relate[d] to unlawful employment practices covered

by [Title VII] and is relevant to the charge under

investigation.” 42 U.S.C. § 2000e-8(a). The relevance

-3-

standard “afford[s] the Commission access to

virtually any material that might cast light on the

allegations against the employer.” Shell Oil, 466 U.S.

at 68-69. Nonetheless, the courts may not act “in a

fashion that renders that requirement a nullity.” Jd.

at 69.

The charge not only determines the scope of the

EEOC’s investigatory authority, but constrains the

scope of any subsequent litigation. Because the

EEOC’s administrative process (investigation and

conciliation) is a statutory precondition to litigation,

Mach Mining, 135 S. Ct. at 1651, a “Title VII suit

may extend as far as, but not beyond, the parameters

of the underlying administrative charge.” Jorge uv.

Rumsfeld, 404 F.3d 556, 565 (lst Cir. 2005); 2

Barbara TT. Lindemann & Paul Grossman,

EMPLOYMENT DISCRIMINATION LAW 29-26-28 (5th ed.

2012).

In conducting an investigation, the EEOC issues

“Requests for Information” and seeks voluntary

compliance. See 1 EEOC Compliance Manual §§ 26.2,

26.3. “When evidence is available [but] the

respondent [employer] has refused to produce it, [the

EEOC can] obtain the evidence by issuance of a

subpoena.” Id. § 26.1(d). Title VII grants the EEOC

the investigatory powers afforded the National Labor

Relations Board (“NLRB”), including the power of

subpoena, by section 11 of the National Labor

Relations Act (“NLRA”). 42 U.S.C. § 2000e-9; 29

U.S.C. § 161.

A responding employer may petition the

Commission to revoke or modify the subpoena, and

the Commission may do so in its discretion “if in its

a

opinion the evidence whose production is required

does not relate to any matter under investigation, or

any matter in question in such proceedings, or if in

its opinion such subpoena does not describe with

sufficient particularity the evidence whose production

is required.” 29 U.S.C. § 161(1) (emphasis added); 1

EEOC Compliance Manual § 24.12(a)(1), (b). If the

Commission rejects the employer's petition, and the

employer still refuses to produce subpoenaed

materials, the Commission may ask a district court to

compel production. 29 U.S.C. § 161(2); Univ. of Pa.,

493 U.S. at 191.

B. Proceedings Below.

1. In 2008, Damiana Ochoa filed a Title VII

charge with the EEOC. JA 41-43. The charge

alleged that McLane Southwest, a subsidiary of

Petitioner McLane Company, Inc. (“McLane”),

engaged in sex discrimination based on pregnancy.

JA 42-43. Ms. Ochoa’s charge also asserted possible

discrimination under the Americans with Disabilities

Act of 1990 (“ADA”). JA 43.

The allegations of discrimination stemmed from

McLane’s use of the Industrial Physical Capacity

Services Physical Capacity Exam (“PCE”), which Ms.

Ochoa was required to take before returning to work

from maternity leave. JA 42—43, 51-52. Ms. Ochoa

claimed that McLane required such strength tests of

“all employees returning to work from a medical

leave and all new hires, regardless of job position.”

JA 43. After failing three attempts to pass the

strength test following her pregnancy, Ms. Ochoa was

ultimately fired. JA 42. Based on McLane’s use of

the PCE, the Commission itself filed a second charge

is.

against McLane asserting possible violations of the

Age Discrimination in Employment Act of 1967

(“ADEA”). Pet. App. 19.

In 2010, the EEOC sent the McLane subsidiary a

letter notifying the company that the Commission

was conducting an investigation of McLane based on

both Ms. Ochoa’s charge and the ADEA charge. JA

79-82. The EEOC asked for (among other items)

pedigree information of McLane employees who took

the PCE—.e., their names, dates of birth, social

security numbers and contact information—along

with the reason the person took the test, the person’s

score on the test, any relevant medical condition, and

any adverse action that McLane took based on the

person’s performance on the test. JA 86-88.

After receiving an initial disclosure from McLane,

the EEOC expanded its request to include

information about applicants and employees at

McLane’s nationwide grocery division. See JA 80, 82;

Pet. App. 4. McLane provided a database that

identified employees and applicants who took the

PCE by an employee number, and disclosed their

gender and whether they passed the test. Pet. App.

3-4. The database did not disclose (among other

things) pedigree information that would allow the

EEOC to identify and contact test takers. Id.

McLane objected to the EEOC’s demand for this

information, arguing that the request was overbroad

and not relevant to Ms. Ochoa’s charge. JA 114-22,

340-47. Unable to resolve their dispute, the EEOC

issued subpoenas seeking the requested information.

JA 92—106, 169-82. The EEOC denied McLane’s

-6-

petition to revoke the subpoenas on March 21, 2012.

JA 183-97.

2. The EEOC then filed an action with the

district court seeking enforcement of the subpoena

based on Ms. Ochoa’s charge. JA 1, 8-11. Following

briefing and a motion hearing, the district court

denied enforcement of the subpoena in part. Pet.

App. 18-33.

The district court determined that Ms. Ochoa’s

charge granted the EEOC jurisdiction to investigate

her Title VII allegations, but not any claim under the

ADA. Pet. App. 25-26. The district court therefore

denied enforcement of the subpoena to the extent it

required production of disability-related information.

Id. at 26—27.

The district court rejected the EEOC’s request for

pedigree information that would identify individual

employees because the information was not “relevant

at this stage to a determination of whether the IPCS

PCE systematically discriminates on the basis of

gender.” Jd. at 28-29. “The addition of the gender

variable” to McLane’s testing data “will enable the

E.E.0.C. to determine whether the IPCS PCE

systematically discriminates on the basis of gender.”

Id. at 29. If statistical analysis indicates “that it

does” discriminate, the district court wrote, “[a]t that

point, pedigree information may become relevant to

an investigation and the E.E.O.C. may find it

necessary to seek such information.” I/d. at 30.

2 The district court had previously denied enforcement of

the ADEA subpoena. Pet. App. 5.

-7-

Thus, the district court compelled McLane to

produce nationwide information for employees and

applicants of McLane’s grocery division, including

their sex, test date and score, position or reason test

was taken, required score for that position, and any

adverse employment action within 90 days of the test

result. Jd. at 31. The district court deemed the

remaining requested information irrelevant to the

EEOC’s gender discrimination investigation. Jd.

3. On appeal, the Ninth Circuit reviewed the

district court decision de novo, and reversed in part

and vacated in part the order. Pet. App. 15-16.

The Ninth Circuit held that the pedigree

information was relevant to Ms. Ochoa’s charge. Pet.

App. 9-10. Under Shell Oil, the EEOC’s desire to

speak with individual “employees and applicants for

employment who have taken the test to learn more

about their experiences ... might cast light on the

allegations against McLane—whether positively or

negatively.” Jd. at 10. As one example, the Ninth

Circuit noted that conversations with individual

employees could allow the EEOC to determine

whether “other female employees have been subjected

to adverse employment actions after failing the test

when similarly situated male employees have not.”

Id. The court determined that allowing the EEOC to

access the information improves the Commission’s

ability to assess “whether use of the test has resulted

in a ‘pattern or practice’ of disparate treatment.” Id.

The Ninth Circuit rejected McLane’s counter-

arguments. Pet. App. 10-13. First, the court held

that Ms. Ochoa need not have alleged explicitly a

pattern-or-practice disparate treatment claim in

-8-

order for the EEOC to request pedigree information.

Td. at 10-11. Second, the EEOC was not obliged to

show that the pedigree information was “necessary”

to its investigation. Jd. at 11-12. Finally, the Ninth

Circuit rejected McLane’s argument that pedigree

information was irrelevant to a neutrally applied

strength test. Jd. at 13. “The very purpose of the

EEOC’s investigation is to determine whether the test

is being neutrally applied; the EEOC does not have to

take McLane’s word for it on that score.” Jd. The

Ninth Circuit remanded the case for the district court

to determine the unresolved question of whether

producing the requested information would unduly

burden McLane. 7d. at 15-16.

SUMMARY OF ARGUMENT

An enforcement action in district court presents

the question of a party's duty to comply with an

administrative subpoena, which this Court has

deemed a question of law. That inquiry typically

consists of two parts: whether the investigation and

request for documents is within the agency’s

statutory power, and whether the subpoena comports

with the Fourth Amendment requirement of

reasonableness.

When a court determines that an agency has (or

has not) abided by statutory limits on its

investigatory authority, and requested production of

documents relevant to that investigation, it answers

a legal question, and that answer is properly

reviewed de novo.

So, too, is the determination whether the

subpoena is_ reasonable under the Fourth

.9-

Amendment. By compelling self-disclosure, a sub-

poena is a constructive search within the Fourth

Amendment guarantee. This Court has declared that

the Fourth Amendment reasonableness standard

requires that a subpoena be sufficiently limited in

scope, relevant in purpose, and specific in directive so

that compliance will not be unreasonably

burdensome. The parties treat this as the governing

standard, but fail to acknowledge its source in the

Fourth Amendment.

This Court has long held that appellate courts

review de novo the mixed question of law and fact of

whether a Fourth Amendment search or seizure is

reasonable because of the existence of reasonable

suspicion or probable cause. The standard of review

should be the same for the reasonableness of

constructive searches by subpoena. Indeed, that

latter question is much less fact-intensive than issues

of reasonable suspicion or probable cause. The

definiteness of the subpoena (like the particularity of

a warrant) involves strictly the legal question of

construction of the subpoena. While burden on the

employer is a question of fact, whether that burden is

unreasonable when measured against the public

interest in investigating unlawful conduct is a

conclusion of law that an appellate court is as well

positioned as the district court to make. Even in

more fact-intensive contexts, this Court has adopted

de novo review of mixed questions of constitutional

law and fact to unify precedent and ensure

uniformity. Those same considerations apply here.

This Court has on multiple occasions conducted

independent review of the enforceability of an

administrative subpoena. It has never once

-10-

recognized discretion in the _ district court's

application of legal standards or deferred to the

district court's determination.

The APA, codifying the law that existed as of

1946, answers the question presented definitively. It

provides that a district court “shall sustain the

subpena or similar process or demand to the extent

that it is found to be in accordance with law.” 5

U.S.C. § 555(d). That mandatory requirement

forecloses district court discretion, and thus forbids

abuse-of-discretion review of district court decisions.

Appellate courts uniformly review de novo district

court determinations whether agency action is “in

accordance with law,” since that question is, by

definition, legal. The APA applies to the NLRA and

Title VII (which incorporates the former), and

requires de novo appellate review here.

Nothing in Title VII departs from the APA's

approach. Title VII vests discretion in the EEOC; it

confers no discretion upon the district court that

could justify abuse-of-discretion review on appeal.

Congress has simply defined legal limits on the

EEOC’s investigatory authority that the courts must

enforce. Congress required that an EEOC subpoena

(1) “relate[]} to unlawful employment practices

covered by” Title VII and (2) be “relevant to the

charge under investigation.” 42 U.S.C. § 2000e-8(a).

To answer the first question, a district court must

consider the elements of a valid charge and the range

of conduct Title VII proscribes. It must then construe

the text of the charge (without regard to extrinsic

evidence) to ensure that it validly alleges conduct

that Title VII outlaws. The second determination of

relevance requires the district court to construe the

i.

subpoena and the charge (both questions of law) and

apply the legal standard of relevance (i.e., whether

the evidence “might cast light on the allegations

against the employer,” Shell Oil Co., 466 U.S. at 68—

69). It makes that determination based on the

parties’ theories as to the predicted value of the

requested evidence to the EEOC’s investigation.

Determining relevance will rarely, if ever, require

historical factfinding by the district court; the inquiry

is legal in nature. Thus, the judicial task is to police

the limits of the EEOC’s investigatory power,

informed by statutorily imposed standards. A district

court’s order marking out the boundaries of that

power should be reviewed de novo in the court of

appeals.

The parties advocate an abuse-of-discretion

standard, but that standard is not only legally

untenable for the reasons given, but unavailable in

the absence of any statutory grant of discretion to the

district court. The parties point to no case in which

this Court has adopted an abuse-of-discretion

standard to review determinations whether an

agency has complied with statutory or constitutional

limits or whether a party has a duty to comply with

an agency order. This Court has embraced the abuse-

of-discretion standard for review of certain subsidiary

rulings that concern a district court’s supervision of

litigation, involve fact-intensive determinations

where legal principles are secondary (especially ones

that turn on witness credibility and demeanor), or

invoke a district court’s equitable or inherent powers.

None of these circumstances exists here.

The parties rely on United States v. Nixon, 418

U.S. 683 (1974), but that is exactly such a case: it

-12-

involves a district court’s issuance of its own pretrial

criminal subpoenas, based on specific trial-related

factual determinations, for the purpose of expediting

criminal trials. Such subpoenas (which cannot be

used for discovery) bear no resemblance to an

investigatory EEOC subpoena, and the Nixon

standards do not apply to administrative subpoenas

issued by agencies of an independent branch of

government pursuant to their independent statutory

authority. Indeed, this Court has held that Nixon

does not apply even to grand jury subpoenas, the

validity of which turns on a legal standard of

relevance to investigations that admits of no district

court discretion.

The parties’ remaining arguments lack force.

Congress did not ratify the holdings of certain circuit

decisions employing abuse-of-discretion review to

NLRB subpoena enforcement orders when it

incorporated section 11 of the NLRA into Title VII in

1972. See 42 U.S.C. § 2000e-9; 29 U.S.C. § 161.

Section 11 does not address appellate review; there

can be no ratification inconsistent with the APA; and

there was no uniform judicial interpretation at the

time. Nor will a de novo standard encourage

marginal appeals that delay EEOC investigations.

First, an appeal itself cannot delay an investigation

(only a stay of the enforcement order can). Second,

there is neither evidence nor logic behind this

argument. The EEOC seldom brings subpoena

enforcement actions, and few parties will forego a

viable appeal if review is for abuse-of-discretion,

especially since legal errors constitute per se abuses

of discretion. De novo review not only prevents the

injustice of inconsistent adjudications, but it also

-13-

promotes uniformity in the law on recurring issues,

leading to fewer subpoena disputes and appeals as

trial court decisions become more predictable and

consistent with one another. The Ninth Circuit

properly reviewed the district court’s order de novo.

ARGUMENT

I. Appellate Courts Properly Review De Novo

District Court Decisions To Enforce or

Quash an Agency Subpoena.

A. This Court Has Long Recognized That

Whether a Party Has a Duty To Comply

with an Agency Subpoena Is a Legal

Question.

From the dawn of the modern administrative

state, Congress has empowered agencies and

executive departments to issue subpoenas to access

private information to perform their functions, and to

seek enforcement in the district court.

In Interstate Commerce Commission v. Brimson,

154 U.S. 447 (1894), this Court considered a

constitutional challenge to the provisions of the

Interstate Commerce Act of 1887 authorizing judicial

enforcement oof the Interstate Commerce

Commission’s subpoenas. This Court rejected the

claim that enforcement constituted an exercise of

administrative and not judicial power, in violation of

Article III. Jd. at 469. The Court declared it “clear

and indisputable” that the subpoenaed party had a

“duty” (absent personal privilege) to obey the

Commission’s subpoena, “if the testimony sought, and

the books, papers, etc., called for, relate to the matter

under investigation, [and] if such matter is one which

-14-

the commission is legally entitled to investigate.” Jd.

at 476. The issues to be decided, under the grant of

jurisdiction to enforce the administrative subpoena,

were simply “[w]hether the commission is entitled to

the evidence it seeks, and whether the refusal of the

witness to testify or to produce books, papers, etc., in

his possession, is or is not in violation of his duty or

in derogation of the rights of the United States,” and

such matters were within the judicial power to

decide. Id.

This Court noted that, in contesting this duty in

court, the subpoenaed party would be free

to contend before that court that he was

protected by the constitution from

making answer to the questions

propounded to him, or that he was not

legally bound to produce the books,

papers, etc., ordered to be produced, or

that neither the questions propounded

nor the books, papers, etc., called for

relate to the particular matter under

investigation, nor to any matter which

the commission is entitled under the

constitution or laws to investigate.

Id. at 479 (emphasis added). The Court rejected the

claim that defendants were entitled to a jury trial on

these legal questions: “the issue whether the

defendants are under a duty to answer the questions

propounded to them, and te produce the books,

papers, documents, etc., called for, is manifestly not

one for the determination of a jury. The issue

presented is not one of fact, but of law exclusively.” Id.

at 488 (emphasis added). “If there is any legal reason

-16-

why appellees should not be required to answer the

questions put to them, or to produce the books,

papers, etc., demanded of them, their rights can be

recognized and enforced by the court below when it

enters upon the consideration of the merits of the

questions presented by the petition.” Jd. at 489

(emphasis added).®

This Court confirmed the legal nature of the

inquiry in Endicott Johnson Corp. v. Perkins, 317

U.S. 501 (1943). The Court held that the district

court improperly denied enforcement of the Secretary

of Labor’s subpoena by deciding an issue (statutory

coverage) that would be decided in subsequent agency

adjudication. Id. at 507-09. This Court resolved the

legal question of the enforceability of the subpoena

3 This Court has disclaimed the separate declaration in

Brimson, 154 U.S. at 489, that there is no right of jury trial for

criminal contempt of a court order. See United States v. Gaudin,

516 U.S. 506, 520 (1995). In Gaudin, thia Court also overruled

Sinclair v. United States, 279 U.S. 263 (1929), insofar as it held

(relying upon Brimson) that a defendant had no right to a jury

trial in a prosecution for criminal contempt of Congress to refuse

to answer a “question pertinent to ja] question under

jcongressional) inguiry.” Rev. Stat. § 102, 2 U.S.C. § 192. This

Court disapproved Sinclair's assumption that pertinence to a

congressional inquiry was “a pure question of law,” deeming it

instead “a mixed queation of law and fact.” Gaudin, 515 U.S. at

620~-21. As auch, the Sixth Amendment required its submission

to the jury. /d. at 521. In so ruling, this Court accepted

Sinclair's determination that relevancy “is uniformly held [to

be] a question of law” for the court in civil trial matters, but

observed that such a rule “says nothing about how relevancy

should be treated when (like ‘pertinence’ or ‘materiality’ it is

made an element of a criminal offense.” Jd. (quoting Sinclair,

279 U.S. at 298). Thus, Brimson’s holding that a party’s duty to

comply with an agency subpoena is a legal question in a civil

enforcement proceeding remains in force.

-16-

itself: “The evidence sought by the subpoena was not

plainly incompetent or irrelevant to any lawful

purpose of the Secretary in the discharge of her

duties under the Act, and it was the duty of the

District Court to order its production for the

Secretary’s consideration.” Jd. at 509 (emphasis

added).

This Court has elsewhere described the question

of whether compulsory process in aid of

administrative investigation exceeds the agency's

power as a “jurisdictional question ... cognizable in

the courts.” United States v. Bisceglia, 420 U.S. 141,

151 (1975) (IRS summons) (internal quotation marks

omitted). The duty of a party to comply with a

subpoena, including the determination whether the

requested documents relate to a matter within an

agency's investigatory authority, is a legal question

properly reviewed de novo.

B. Appellate Courts Review De Novo a

District Court’s Application of the Fourth

Amendment Standard for Enforcing

Agency Subpoenas.

As this Court held in Brimson, in addition to

questions of statutory duty, a subpoenaed party may

raise constitutional defenses in court. 154 U.S. at

479. A subpoena is deemed a constructive search

that must meet the Fourth Amendment's

reasonableness requirement. This Court has

declared the following “constitutional requirements

for administrative subpoenas”:

“It is now settled that, when an

administrative agency subpoenas cor-

-17-

porate books or records, the Fourth

Amendment requires that the subpoena

be sufficiently limited in scope, relevant

in purpose, and specific in directive so

that compliance will not be unreasonably

burdensome.”

Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984)

(quoting See v. City of Seattle, 387 U.S. 541, 544

(1967)); see also United States v. Morton Salt Co., 338

U.S. 632, 651-53 (1950); Okla. Press Pub. Co. v.

Walling, 327 U.S. 186 (1946). Both parties accept

this test as the governing standard, but do not

address its constitutional derivation. Pet. Br. 18;

Resp. Br. 4-5 & n.1. Like any other determination of

the reasonableness of a search or seizure, the

determination of whether an administrative

subpoena violates the Fourth Amendment is a mixed

question of law and fact that appellate courts

properly review de novo.

1. ASubpoena Is a Constructive Search

Under the Fourth Amendment.

The Fourth Amendment guarantees “[t)he right of

the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures.” U.S. Const. amend. IV (emphasis

added). A subpoena “is the equivalent of a search

and seizure ... within the meaning of the 4th

Amendment.” Hale v. Henkel, 201 U.S. 43, 71 (1906)

(grand jury subpoena); Boyd v. United States, 116

U.S. 616, 635 (1886). “[T]he right of personal

security” guaranteed by the Constitution embraces

“not merely protection of his person from assault, but

exemption of his private affairs, books, and papers

-18-

from the inspection and scrutiny of others.” Brimson,

154 U.S. at 479.

To be sure, a subpoena is not an actual search

and seizure, but “a ‘constructive’ search.” City of

Seattle, 387 U.S. at 545; Okla. Press, 327 U.S. at 202,

207. A subpoena does not entail the intrusion of

actual searches and seizures, and thus requirements

imposed upon the latter—such as warrants or

probable cause—do not apply. Lone Steer, 464 U.S. at

414-15; Okla. Press, 327 US. at 202-09.

Nonetheless, the Fourth Amendment's protection

“must necessarily attend all investigations conducted

under the authority of congress.” Brimson, 154 U.S.

at 478; see also Morton Salt, 338 U.S. at 651-52

(“[T]he right to be let alone—the most comprehensive

of rights and the right most valued by civilized men,

is not confined literally to searches and seizures as

such, but extends as well to the orderly taking under

compulsion of process.” (internal quotation marks

and citations omitted)). “The gist of the [Fourth

Amendment] protection is in the requirement,

expressed in terms, that the disclosure sought shall

not be unreasonable.” Jd. at 652—53 (quoting Okla.

Press, 327 U.S. at 208).

2. The Fourth Amendment Requires

Agency Subpoenas To Be

“Reasonable.”

The Court applied the Fourth Amendment

restrictively in its early forays into the review of

administrative subpoenas, construing agency

authority narrowly. See FTC v. Am. Tobacco Co., 264

U.S. 298, 305-06 (1924); Harriman v. Interstate

Commerce Comm'n, 211 U.S. 407, 420—22 (1911);

-19-

Jones v. SEC, 298 U.S. 1, 28 (1936); Kenneth Culp

Davis, The Administrative Power of Investigation, 56

YALE L.J. 1111, 1114, 1119 (1947) (discussing early

evolution of the doctrine).

In Oklahoma Press, a 1946 case involving

Department of Labor subpoenas under the Fair Labor

Standards Act, this Court clarified the proper

constitutional inquiry. The Court noted that

Congress has “a wide investigative power” over

private corporations, “analogous to the visitorial

power of the incorporating state, when their activities

take place within or affect interstate commerce.” 327

U.S. at 204 (footnote omitted). The Court observed

that a more liberal standard applied under the

Fourth Amendment to subpoenas seeking compulsory

production of corporate documents as opposed to an

individual’s private papers, id. at 205-06 & n.38

(citing Wilson v. United States, 221 U.S. 361 (1911),

and Essgee Co. of China v. United States, 262 U.S.

151 (1923)); the former were valid so long as the

subpoena did not “call[] for documents so broadly or

indefinitely” as to resemble “a general warrant or

writ of assistance, odious in both English and

American history,” id. at 207.

Distilling its prior precedents, this Court held

that the Fourth Amendment “at the most guards

against abuse only by way of too much indefiniteness

or breadth in the things required to be ‘particularly

described,’ if also the inquiry is one the demanding

agency is authorized by law to make and the

materials specified are relevant.” Jd. at 208. The

Fourth Amendment requirement of probable cause, in

this context, meant not probable cause to believe that

a violation of law had occurred, but rather that “the

-20-

investigation is authorized by Congress, ... [and] is

for a purpose Congress can order, and the documents

sought are relevant to the inquiry.” Jd. at 209.

Beyond this showing of statutory authority, the

“requirement of reasonableness” includes

“particularity,” which in the subpoena context “comes

down to specification of the documents to be produced

adequate, but not excessive, for the purposes of the

relevant inquiry.” Id.

For constructive searches of an administrative

subpoena, the Fourth Amendment test reflects “the

basic compromise ... to secure the public interest and

at the same time to guard the private ones affected

against the only abuses from which protection

rightfully may be claimed,” i.e., freedom from

“officious intermeddling, whether because irrelevant

to any lawful purpose or because unauthorized by

law.” Jd. at 213. The Administrator “shall not act

arbitrarily or in excess of his statutory authority,”

and if the subpoena is, in any respect, “unreasonable

or overreaches the authority Congress has given,” the

subpoenaed party could raise the “appropriate

defence” in district court. Jd. at 216~-17.

Four years later, this Court reaffirmed and

summarized the Fourth Amendment standard in

Morton Salt. In that case, salt producers challenged

on Fourth Amendment grounds a Federal Trade

Commission order requiring them to produce reports

of compliance with a court decree enforcing a

Commission order to cease and desist from certain

unfair trade practices. 338 U.S. at 636-37. Noting

that the Fourth Amendment applies “to the orderly

taking under compulsion of process,” this Court

reiterated that corporations engaging in interstate

-21-

commerce as “artificial entities” “can claim no

equality with individuals in the enjoyment of a right

to privacy.” Id. at 652. The Court acknowledged that

“a governmental investigation into corporate matters

may be of such a sweeping nature and so unrelated to

the matter properly under inquiry as to exceed the

investigatory power,” id. (internal citation omitted

and emphasis added), but under the Fourth

Amendment reasonableness test “it is sufficient if the

inquiry is within the authority of the agency, the

demand is not too indefinite and the information

sought is reasonably relevant.” Jd. at 652—53 (citing

Okla. Fress, 327 U.S. at 208).

This Court has repeatedly characterized the

Morton Salt/Oklahoma Press’ standard of

reasonableness under the Fourth Amendment as

“settled” law “describ[ing] the _ constitutional

requirements for administrative subpoenas.” Lone

Steer, 464 U.S. at 414-15 (quoting City of Seattle, 387

U.S. at 544); accord Cal. Bankers Ass’n v. Shultz, 416

U.S. 21, 67 (1974). Because the Fourth Amendment

“must necessarily attend all investigations conducted

under the authority of congress,” Brimson, 154 U.S.

at 478, the Morton Salt/Oklahoma Press standard

applies to EEOC subpoenas. See Sheil Oil, 466 U.S.

at 72 n.26 (holding that, in addition to ensuring

statutory compliance, “[t]he district court has

responsibility ... more generally to assess any

contentions by the employer that the demand for

information is too indefinite or has been made for an

illegitimate purpose”) (citing Morton Salt, 338 U.S. at

652—53, and United States v. Powell, 379 U.S. 48, 57—

58 (1964)).

-22.

3. Appellate Courts Review Fourth

Amendment “Reasonableness”

Determinations De Novo.

In arguing for abuse-of-discretion or clear-error

review, the parties and their amici treat the Morton

Salt/Oklahoma Press _ standard as having

materialized from thin air, and regard the choice of

an appellate standard of review as a _ purely

functional analysis without regard to the substantive

source of law. But this Court’s standard implements

the Fourth Amendment’s reasonableness

requirement, and this Court has already held that

the determinations of the reasonableness of searches

and seizures under the Fourth Amendment are

reviewed de novo. Ornelas v. United States, 517 U.S.

690 (1996). The same standard logically applies to

the reasonableness of constructive searches by

subpoena.

In Ornelas, this Court considered the proper

standard of review of a district court’s determination

of two types of reasonable search and seizures under

the Fourth Amendment: an investigatory stop

supported by reasonable suspicion, Terry v. Ohio, 392

U.S. 1 (1968), and a warrantless search of a car based

on probable cause, California v. Acevedo, 500 U.S.

565 (1991). 517 U.S. at 693. The Court described the

district court's determination as a two-part inquiry

comprised of (1) “the events which occurred leading

up to the stop or search,” and (2) “whether these

historical facts, viewed from the standpvuint of an

objectively reasonable police officer, amount to

reasonable suspicion or to probable cause.” Id. at

696.

-23-

The Court held that the first inquiry involved

“findings of historical fact,” and should be reviewed

“only for clear error.” Jd. at 699. The second inquiry,

on the other hand, was a “mixed question of law and

fact”’—“whether the rule of law as applied to the

established facts is or is not violated.” Jd. at 696—97.

(quoting Pullman-Standard v. Swint, 456 U.S. 273,

289 n.19 (1982)).

The Court held that “the ultimate questions of

reasonable suspicion and probable cause to make a

warrantless search should be reviewed de novo.” Id.

at 691. The Court identified three factors supporting

this conclusion.

First, it reasoned that de novo review safeguarded

constitutional rights. “A policy of sweeping deference

wouid permit, in the absence of any significant

difference in the facts, the Fourth Amendment's

incidence to turn on whether different trial judges

draw general conclusions that the facts are sufficient

or insufficient” to constitute a reasonable search of

seizure. Jd. at 697 (internal quotation marks and

brackets omitted). “Such varied results would be

inconsistent with the idea of a unitary system of law.”

Id. The Court noted that it had never applied any

other standard in this Fourth Amendment context.

Id.

Second, it noted that “the legal rules for probable

cause and reasonable suspicion acquire content only

through application.” Jd.; accord Miller v. Fenton,

474 U.S. 104, 114 (1985). Independent appellate

review is necessary “if appellate courts are to

maintain control of, and to clarify, ... legal principles.”

Ornelas, 517 U.S. at 697.

-24-

Finally, the Court observed that “de novo review

tends to unify precedent.” Jd. It reasoned that

independent appellate review of Fourth Amendment

reasonableness determinations would help establish

clear rules to guide not only district courts but also

officers conducting the search. Jd. at 697-98.

Following Ornelas, courts apply the de novo standard

generally to determinations of the constitutional

reasonableness of searches and seizures.‘

Ornelas governs this case. It is the same law at

issue: the Fourth Amendment’s prohibition “against

unreasonable searches and seizures,” which protects

one’s “papers” and “effects” as well as one’s “person.”

U.S. Const. amend. IV. No justification exists for

applying a different standard to constructive versus

actual searches. Indeed, de novo review is the norm

for the application of constitutional standards to the

facts of a given case. See United States v. Bajakajian,

524 U.S. 321, 336 n.10 (1998) (noting that while a

district court’s factual findings “must be accepted

unless clearly erroneous,” a determination of a fine’s

excessiveness is reviewed de novo because it “calls for

the application of a constitutional standard to the

facts of a particular case”).5 Affording discretion to

4 See, e.g., United States v. Jennings, 544 F.3d 815, 818 (7th

Cir. 2008) (“[A] determination that a seizure was reasonable is

reviewed de novo.”); United States v. Mallory, 765 F.3d 373, 383

(3d Cir. 2014) (noting that circuita universally review

determinations of exigent circumstances de novo); United States

v. Smith, 389 F.3d 944, 950 (9th Cir. 2004) (reviewing

permissibility of search incident to arrest de novo).

5 See, eg., Fenton, 474 U.S. at 110 (voluntariness of

confession under the Due Process Clause); Bose Corp. v.

Consumers Union, 466 U.S. 485, 499 (1984) (independent review

of actual malice required by First Amendment for defamation

-25-

district judges means that different results can be

reached on the same facts, thus rendering a person’s

Fourth Amendment rights dependent on the luck of

the draw of a trial judge. This Court has deemed the

prospect of widely variant constitutional results

“unacceptable.” Ornelas, 517 U.S. at 697; Cooper

Indus., 532 U.S. at 440.

The considerations that prompted this Court to

adopt a de novo standard in Ornelas apply a fortiori

here. The determinations of reasonable suspicion

and probable cause at issue in Ornelas are “fact-

intensive” and typically require extensive evidentiary

hearings; “[t]he factual details bearing upon those

determinations are often numerous and (even when

supported by uncontroverted police testimony)

subject to credibility determinations.” Ornelas, 517

U.S. at 701 (Scalia, J., dissenting). By contrast, in a

subpoena enforcement proceeding, the subpoenaed

evidence is not typically before the court, credibility

determinations rarely come into play, and factfinding

is minimal. This case is illustrative; here the district

court resolved no disputed issues of fact that even

hability); Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S.

424, 431 (2001) (constitutionality of punitive damages awards);

Thompson v. Keohane, 516 U.S. 99, 102 (1995) (determinations

that a suspect ia “in custody” and entitled under the Fifth

Amendment to Miranda warnings); Sumner v. Mata, 455 U.S.

591, 597 (1982) (constitutionality of pretrial identification

procedures); Brewer v. Williams, 430 U.S. 387, 397 n.4 (1977)

(waiver of Sixth Amendment right to assistance of counsel).

Only a narrow set of constitutional issues involving mixed

questions of law and fact where “resolution depends heavily on

the trial court’s appraisal of witness credibility and demeanor,”

such as a criminal defendant’s competency or a juror’s bias, are

treated as essentially factual and reviewed deferentially.

Keohane, 516 U.S. at 111 (discussing cases).

-26-

required an evidentiary hearing. The case was

decided after a motion hearing, JA 494-526, on

briefing supported by a handful of declarations that

simply recounted the negotiations between McLane

and the EEOC and the data produced to date, JA 34—

40, 228-231, McLane’s corporate structure, JA 446—

47, and the nature and availability of the contested

information and the burden of producing it, JA 233-

35, 448-62.

Moreover, the Morton Salt/Oklahoma Press

standard requires predominantly legal

determinations. That standard permits subpoena

enforcement “if the inquiry is within the authority of

the agency, the demand is not too indefinite and the

information sought is reasonably relevant,” Morton

Salt, 336 U.S. at 652-53, and “compliance will not be

unreasonably burdensome,” City of Seattle, 387 U.S.

at 544. The questions of statutory authority and

relevance to an authorized investigation are legal,

both generally and in Title VII. See supra at 13—16;

infra at 36—42.

Moreover, the definiteness requirement parallels

the particularity requirement of a warrant, so that

the party knows what items he is obligated to

produce. Okla. Press, 327 U.S. at 209. This inquiry

requires evaluation of a specific document's language,

see Resp. Br. 28—29, but that does not give district

courts “an institutional advantage” over appellate

courts, Koon v. United States, 518 U.S. 81, 98 (1996),

in interpreting a document's meaning and legal

sufficiency. A determination that a warrant is

indefinite likewise requires a document-specific

evaluation, and that determination is reviewed de

novo. See, e.g., United States v. Reeves, 210 F.3d

-27-

1041, 1046 (9th Cir. 2000); United States v. Campbell,

764 F.3d 880, 887 (8th Cir. 2014).

Finally, whether a subpoena is “unreasonably

burdensome” under the Fourth Amendment, City of

Seattle, 387 U.S. at 544 (emphasis added), is a policy-

based legal determination. To be sure, there may be

subsidiary factual questions of burden to the

employer, such as the cost of gathering documents or

extracting them from computer systems, the financial

strain on the employer, and the interference with the

employer's operations. Pet. Br. 36. Although such

facts are often uncontested, the district court’s

findings of such purely factual questions are

reviewable for clear error. See Ornelas, 517 U.S. at

699. But a determination of unreasonable burden

requires measuring the public interest in law

enforcement against the private interest in security

of property. Okla. Press, 327 U.S. at 209; see id. at

217 (“There is no harassment when the subpoena is

issued and enforced according to law.”). The Fourth

Amendment's “flexible” standard of reasonableness

“takes into account the public need for effective

enforcement of the particular regulation involved.”

City of Seattle, 387 U.S. at 545. A court may consider

whether the cost to (or other burden upon) the

employer is disproportionate to any investigatory

value to the agency of the requested documents, for

an agency may only subpoena documents that are

“adequate, but not excessive, for the purposes of the

relevant inquiry.” Okla. Press, 327 U.S. at 209. But

this policy-based constitutional determination of

excessiveness, which may restrict the power of a

coordinate branch or independent agency, is a legal

conclusion that is equally the province of appellate

-28-

courts. See Cooper Indus., 532 U.S. at 436

(proportionality and excessiveness of. punitive

damages and fines reviewed de novo). C/. Am. Target

Advert., Inc. v. Giani, 199 F.3d 1249, 1254 (10th Cir.

2000) (reviewing question of “undue burden upon

interstate commerce” de novo); Planned Parenthood

of Greater Towa, Inc. v. Miller, 195 F.3d 386, 388 (8th

Cir. 1999) (reviewing question of undue burden on

privacy rights of statute banning partial birth

abortions de novo).®

Because legal questions predominate, factual

disputes are distinctly secondary to the application of

§ In cases involving [RS summonses, this Court has adopted

a standard similar to Morton Salt as a test of the IRS's “good

faith,” United States v. Clarke, 134 S. Ct. 2361, 2365 (2014),

which includes inquiry into whether “the summons had been

issued for an improper purpose, such as to harass the taxpayer

or to put pressure on him to settle a collateral dispute, or for any

other purpose reflecting on the good faith of the particular

investigation.” Powell, 379 U.S. at 58. Citing Powell, this Court

has noted that the EEOC may not issue and enforce a subpoena

for “an improper purpose.” Shell Oil, 466 U.S. at 72 n.26.

Whether the agency's purpose is improper appears to be part of

the Fourth Amendment inquiry, see Okla. Press, 327 U.S. at

209, 213, but even if it arises independently from another source

of law, this predominantly legal determination should be

reviewed de novo. This Court held that “what counts as an illicit

motive” is a “legal issueff” not within the district court's

discretion. Clarke, 134 S. Ct. at 2369. Thus, the ultimate

conclusion that an agency pursued a subpoena for an improper

purpose is a mixed question of law and fact (while a procedura)

ruling on the right to examine government agents is reviewed

for abuse-of-discretion, id. at 2368). De novo review of such

ultimate conclusions is necessary to unify precedent about what

agency motives in investigation are illicit, given that “a

presumption of regularity attaches to the actions of Government

agencies,” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001).

-29-

law to fact, and witness credibility and demeanor will

almost never be determinative, “the appellate court

will be in as good a position ... as the district court

was in the first instance” in_ resolving the

constitutionality of subpoena demands, and thus the

appellate court owes no deference. Koon, 518 U.S. at

98; see also Cooper Indus., 532 U.S. at 440 (holding

that de novo review was appropriate because the

appellate court was equally capable, if not better

suited, to decide two of the three criteria at issue).

Moreover, even if some factual variation is inevitable,

de novo review is necessary to unify precedent, giving

consistent guidance to administrative agencies on the

limits posed by the Fourth Amendment, and ensuring

consistent enforcement of constitutional rights.

Ornelas, 517 U.S. at 697-98. This Court should

adhere to de novo review of all determinations of

Fourth Amendment reasonableness.

C. This Court Has Always Determined De

Novo a Party’s Duty To Comply with an

Agency Subpoena.

The history of appellate practice is relevant in

determining the proper standard of review. Pierce v.

Underwood, 487 U.S. 552, 558 (1988); Ornelas, 517

U.S. at 697. This Court has always conducted

independent review of the _ enforceability of

administrative subpoenas. It has never once held

that a party’s duty to comply with such subpoenas is

a matter of district court discretion or deferred to any

such discretionary determination.

In Endicott Johnson, the district court had not

reached the question of the relevance and

reasonableness of the subpoena because it had

-30-

improperly determined that the respondent was

outside the statute’s coverage. 317 U.S. at 509. This

Court did not remand the case, but instead

independently resolved on the admitted facts that the

subpoena must be enforced because it “was not

plainly incompetent or irrelevant to any lawful

purpose of the Secretary,” and was “clearly within the

limits of Congressional authority.” Jd. at 509-10.

The Court would not have done so if subpoena

enforcement were a matter of district court

discretion; the proper course would have been to

remand the matter to allow the district court to

exercise its discretion in the first instance. See Hills

v. Gautreaux, 425 U.S. 284, 306 (1975).

In Oklahoma Press, this Court reviewed

conflicting district court decisions on whether to

enforce subpoenas issued by the Wage and Hour

Administrator investigating newspaper publishers.

After rejecting the requirement of probable cause on

which the decisions below turned, 327 U.S. at 215-16,

this Court determined independently (and without

regard to the view of either district court) that “[a]ll

the records sought were relevant to the authorized

inquiry,” id. at 210, that the constitutional

reasonableness standard was met, id. at 210—11, and

that “[nJo sufficient reason was set forth in the

returns or the accompanying affidavits for not

enforcing the subpoenas,” id. at 218. The Court did

the same in Morton Salt. Applying the Oklahoma

Press standard to a Federal Trade Commission order

independently and without deference, the Court held

that “[nJothing on the face of the Commission's order

transgressed these bounds.” Morton Salt, 338 U.S. at

652—53. In review of a contempt judgment, the Court

-31-

likewise independently applied the Oklahoma Press

standard to a subpoena from the House Committee

on Un-American Activities. The Court resolved that

the requested records were “reasonably ‘relevant to

the inquiry,” and that the subpoena “describe[d]

them ‘with all of the particularity the nature of the

inquiry ... would permit,” and was “not more

sweeping than those sustained against challenges of

undue breadth in Endicott Johnson ... and Oklahoma

Press.” McPhaul v. United States, 364 U.S. 372, 381-—

83 (1960). This unbroken record of independent

determination by this Court of the enforceability of

administrative subpoenas or similar compulsory

process, and principles of stare decisis, Arizona v.

Rumsey, 467 U.S. 203, 212 (1984), militate strongly

in favor of a de novo standard of review.

D. The Administrative Procedure Act Limits

Judicial Enforcement of a Subpoena to

Determining Whether It Is “In

Accordance with Law.”

In keeping with the precedent above, Congress

has declared in the APA that judicial enforcement of

an administrative subpoena shall be limited to

determining whether the subpoena is “in accordance

with law.” 5 U.S.C. § 555(d). Courts of appeals

review this legal determination de novo. See Tenet

HealthSystems HealthCorp. v. Thompson, 254 F.3d

238, 244 (D.C. Cir. 2001) (applying 5 U.S.C. § 706).

Subsection 6(c) of the APA provides that

“[p]rocess, requirement of a report, inspection, or

other investigative act or demand may not be issued,

made, or enforced except as authorized by law.” 5

U.S.C. § 555(c). Subsection 6(d) grants parties a

-32-

right to “[a]gency subpenas authorized by law” on

request and upon making any required showing of

relevance and reasonableness of the request. Jd.

§ 555(d). The statute then imposes 4 mandatory duty

upon the courts to enforce any lawful subpoena:

On contest, the court shall sustain the

subpena or similar process or demand to

the extent that it is found to be in

accordance with law. In a proceeding for

enforcement, the court shall issue an

order requiring the appearance of the

witness or the production of the evidence

or data within a reasonable time under

penalty of punishment for contempt in

case of contumacious failure to comply.

Id. (emphasis added).

The district court has no discretion in enforcing

an administrative subpoena. It “shall sustain the

subpena ... to the extent” it is lawful, quashing or

modifying a subpoena otherwise. Jd. If the subpoena

is lawful, the court “shall issue” an enforcement order

compelling production of the evidence or data sought.

Id. In other words, the district court has “an

affirmative duty under the APA ... to determine the

extent to which the subpoena is in accordance with

law and to enforce the subpoena to that extent.”

United States v. Sec. State Bank & Trust, 473 F.2d

638, 642 (5th Cir. 1973); Lee Modjeska,

ADMINISTRATIVE LAW PRACTICE AND PROCEDURE § 2.4

(2016).

The legislative history confirms the APA’s textual

restriction of judicial enforcement to determinations

-33-

of a subpoena’s lawfulness. Congress enacted the

APA after this Court’s opinions in Brimson, Endicott

Johnson, and Oklahoma Press, all of which treat

judicial enforcement as involving determinations of a

subpoena’s legal validity. The Senate Report

describes subsection 6(d) as:

constitut[ing] a statutory limitation upon

the issuance or enforcement of subpenas

in excess of agency authority or

jurisdiction. This does not mean,

however, that courts should enter into a

detailed examination of facts and issues

which are committed to agency authority

in the first instance, but should, instead,

inquire generally into the legal and

factual situation and be satisfied that the

agency could possibly find that it has

jurisdiction.

See Administrative Procedure Act: Legislative History

1944-46, S. Doc. No. 79-248 at 206 (1946) (hereinafter

“APA Legislative History”) (excerpting Sen. Rep. No.

79-752 (1945) (emphasis added)). The House Report

contains the same language almost verbatim, and

notes that “[i]n such contests, the court is required to

determine all relevant questions of law.” Id. at 265

(House Rep. No. 180).

As Senator McCarran, the Chairman of the Senate

Judiciary Committee and co-sponsor of the APA in the

Senate, declared: “Where a party contests a

7 The House Report states that courts should be satisfied

that the agency “could lawfully,” as opposed to “could possibly,”

have jurisdiction. APA Legislative History, supra, at 265.

-34-

subpoena, the court is to inquire into the situation,

and, so far as the subpoena is found in accordance

with the law, the court is to issue an order requiring

the production of the evidence under penalty.” APA

Legislative History, supra, at 319 (remarks of

Sen. McCarran, Mar. 12, 1946). “All that this section

requires is that the court determine whether the

subpoena issued comes within the general power of

the agency.” Id. at 415 (Department of Justice

memorandum on S.7, which as amended became the

APA, id. at 1). “fI]n view of the existing law,”

Congress's deliberate use of the phrase ‘in accordance

with law” was “intended to define with exactness the

limits of inquiry in judicial enforcement proceedings.”

Tobin v. Banks & Rumbaugh, 201 F.2d 223, 224-26

(5th Cir. 1953).8

8 Indeed, the only debated question is whether the APA

standard overruled this Court's decision in Endicott Johnson

insofar as it barred inquiry into the agency’s jurisdiction over

the conduct of the subpoenaed party. See Tobin, 201 F.2d at

226; see also APA Legislative History, supra, at 363 (view of

Rep. Walter, a House sponsor of the APA, that section 6(d)

overruled Endicoit Johnson); Davis, supra, at 114849

(discussing legislative history). Because Congress deliberately

chose the phrase “in accordance with law” and rejected

proposals explicitly expanding judicial inquiry into questions of

agency jurisdiction, the Department of Justice and the Fifth

Circuit have interpreted section 6(d) of the APA as merely

codifying existing law. Dep't of Justice, Atlorney General's

Manual on the Administrative Procedure Act 69 (1947) (“[T]he

subsection leaves unchanged existing law as to the scope of

judicial inquiry where enforcement of a subpena is sought.”)

(citing Endicott Johanson and Okla. Press)); Tobin, 201 F.2d at

224-26. But whether section 6(d) codified existing law or

overruled Endicott Johnson to permit collateral review of the

agency's jurisdiction over the party in a subpoena enforcement

proceeding, judicial enforcement is still limited to determining

-35-

When a district court applies the APA’s “in

accordance with law” standard, appellate review is de

novo. See Tenet, 254 F.3d at 243-44; Preferred Risk

Mut. Ins. v. United States, 86 F.3d 789, 791—92 (8th

Cir. 1996) (a district court's “finding that the actions

of an agency were arbitrary, capricious, and not in

accordance with law is reviewed de novo”); accord

Sierra Club v. Davies, 955 F.2d 1188, 1192 (8th Cir.

1992); Asarco, Inc. v. U.S. EPA, 616 F.2d 1153, 1161

(9th Cir. 1980); Biodiversity Conserv’n All. v. Jiron,

762 F.3d 1036, 1059 (10th Cir. 2014).

In a typical subpoena enforcement action, the

district court determines whether the subpoena is “in

accordance with law” by determining whether the

agency has complied with statutory requirements,

and whether the subpoena satisfies the Morton

Salt /Oklahoma Press Fourth Amendment standard of

reasonableness. See 1 Richard J. Pierce, Jr.,

ADMINISTRATIVE LAW TREATISE § 4.2, at 286 (5th ed.

2010) (“A party who wants to resist enforcement of an

agency subpoena has a realistic prospect of success

only when it can raise a statutory or constitutional

objection that is unique to the statute at issue or the

nature of the materials requested.”). Here, once the

district court had determined that the EEOC’s

subpoena was not in accordance with law because it

was not relevant to the charge under 42 U.S.C. §

2000e-8, the court of appeals was entitled to review

that question de novo.

whether the subpoena is in accordance with law, a legal

question that an appellate court reviews de novo.

-36-

Il. A District Court Decision Regarding the

Scope of the EEOC’s Statutory Authority to

Issue a Subpoena Under Title VII Requires

De Novo Review.

Nothing in Title VII imposes any standard of

review different from the APA. The only unique

aspect of Title VII is that Congress placed stricter

legal limits upon the EEOC’s authority than typically

apply to parallel subpoena powers granted to other

agencies. Shell Oil, 466 U.S. at 64 (“[T]he EEOC's

investigative authority is tied to charges filed with

the Commission ... unlike other federal agencies that

possess plenary authority to demand to see records

relevant to matters within their jurisdiction ... .”).

Congress did so by requiring that the materials

sought (1) “relate[] to unlawful employment practices

covered by” Title VII and (2) be “relevant to the

charge under investigation.” 42 U.S.C. 2000e-8(a).

Determining whether the Commission has confined

itself to the subpoena authority granted by Congress

is a legal task, and the court of appeals properly

reviews that question de novo.

A. The Statutory Restrictions in Title VII

Raise Questions of Law, Which Must Be

Reviewed De Novo.

1. Whether Evidence “Relates to

Unlawful Employment Practices” Is a

Legal Question.

To determine whether’ the information

subpoenaed by the EEOC “relates” to conduct made

unlawful by Title VII, the district court must first

determine that the EEOC had jurisdiction to

investigate because a valid charge of unlawful

-37-

employment practices had been filed. To answer that

legal question, the court must consider the elements

of a valid charge and the range of conduct Title VII

proscribes. The district court must then construe the

text of the charge to ensure that it alleges conduct

made unlawful by Title VII. The district court is

entitled to no deference in deciding either what Title

VII covers or what the text of the charge says; these

tasks yield answers to a question of law.

“(Tjhe existence of a charge that meets the

requirements set forth in § 706(b), 42 U.S.C. § 2000e-

5(b), is a jurisdictional prerequisite to judicial

enforcement of a subpoena issued by the EEOC.”

Shell Oil, 466 U.S. at 65. Section 706(b) requires that

the charge “be in writing under oath or affirmation

and shall contain such information and be in such

form as the Commission requires.” 42 U.S.C.

§ 2000e-5(b). EEOC regulations provide that a valid

charge must sufficiently describe unlawful

employment practices by providing “[a] clear and

concise statement of the facts, including pertinent

dates,” identifying “the parties,” and describing

“generally the action or practices complained of.” 29

C.F.R. § 1601.12(b).

Determining whether there is a valid Title VII

charge is quintessentially a legal task, and a district

court's determination on such a question is

unarguably reviewed de novo. The validity of a

charge is “determined from the face of the charge, not

from extrinsic evidence.” EEOC v. United Air Lines,

Inc., 287 F.3d 643, 650 (7th Cir. 2002); see also EEOC

v. K-Mart Corp., 694 F.2d 1055, 1065 (6th Cir. 1982).

A charge will be deemed valid unless, on its face, it

alleges no unlawful employment practice within the

-38-

scope of Title VII as a matter of law. See, e.g., U.S.

EEOC v. Maritime Autowash, Inc., 820 F.3d 662, 665

(4th Cir. 2016) (holding that because the EEOC

charge at issue sufficiently alleged national origin

discrimination on its face, its validity could not be

defeated by employer's potential defenses); cf. EEOC

vu. Cherokee Nation, 871 F.2d 937, 938-39 (10th Cir.

1989) (reversing district court’s enforcement of

subpoena because the age discrimination charge did

not state an ADEA claim against employer as a

matter of law). The “interpretation of an EEOC

charge presents a question of law that [appellate

courts] review de novo, not a question of fact.” EEOC

vu. Konica Minolta Bus. Solutions U.S.A., Inc., 639

F.3d 366, 371 (7th Cir. 2011).9

The EEOC may only investigate unlawful

employment practices proscribed in Title VII. 42

U.S.C. § 2000e-5(a). If the charge fails to describe

any employment practice made unlawful by Title VII,

the EEOC lacks authority to investigate, and the

district court must refuse to enforce any subpoena

issued in the matter. See EEOC v. Michael Constr.

Co., 706 F.2d 244, 248 (8th Cir. 1983) (“If the court

finds that the charge ... is not sufficient under Title

VII or EEOC regulations, it may deny judicial

enforcement of the EEOC subpoena issued pursuant

to that charge ... .”). If, however, the charge

describes an unlawful employment practice, the

EEOC has authority, and indeed, a_ statutory

obligation, to investigate, and it may subpoena

® Accord Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir.

2006); Nichols v. Am. National Ins., 154 F.3d 875, 886 (8th Cir.

1998).

-39-

information relevant to the charged unlawful

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

In other words, answering the first statutory

question—whether the charge is “valid” and alleges

conduct unlawful under Title VIIl—requires the

district court to do two things: (a) find the law of

charge validity, and the conduct Title VII proscribes;

and (b) construe the charge itself to determine

whether it passes muster. Both inquiries are legal,

and a district court’s resolution of those questions is

reviewed de novo.

2. Relevance of the Information to the

Charge Presents a Legal Question.

Once the district court has determined, as a

matter of law, that the charge is “valid,” and alleges

conduct made unlawful by Title VII, it still may only

enforce the subpoena if the subpoenaed information

would be “relevant to the charge,” 42 U.S.C. § 2000e-

8(a). That is a legal determination, too. See Brimson,

154 U.S. at 488 (“The issue presented is not one of

fact, but of law exclusively.”); Florez v. CIA, 829 F.3d

178, 184 (2d Cir. 2016) (“Relevance is a legal

determination.”) (internal quotation marks omitted);

Konica, 639 F.3d at 368 (examining relevance in a

subpoena enforcement context: “[A]s usual, we

consider questions of law de novo. As both parties

conceded at oral argument, this case presents a

straightforward question of law.” (internal citation

omitted)); NLRB v. Rogers Mfg. Co., 406 F.2d 1106,

1110 (6th Cir. 1969) (“Axiomatically, the

determination of relevancy is a matter of law and not

of fact.”).

-40-

As the EEOC says, “relevance” is “generously

construed.” Resp. Br. 5 (quoting Shell Oil, 466 U.S.

at 68). The statute allows the EEOC to seek any

evidence “that might cast light on the allegations

against the employer.” Shell Oil, 466 U.S. at 68-69.

It is fitting that the judiciai standard established

for marking out the boundaries of the Commission's

investigatory authority provides that flexibility.

Whether evidence would cast light on the allegations

in a valid charge involves predictive judgment and

experience, and Congress vested the responsibility to

answer that question in the first instance in the

EEOC, as it has expertise in such matters. See 42

U.S.C. § 2000e-9; 29 U.S.C. § 161(1); see also EEOC v.

Randstad, 685 F.3d 433, 448 (4th Cir. 2012)

(“Congress has delegated to the EEOC the authority

to investigate charges of discrimination, and

naturally the agency has developed expertise in that

area. In this and other areas, where an agency is

tasked with investigation, we ‘defer to an agency’s

own appraisal of what is relevant so long as it is not

obviously wrong.” (internal citation omitted)).

But, as with relevance determinations generally,

“the determination of whether the information sought

bears a sufficient relationship to the investigative

purposes to permit enforcement of the subpoena is

predominantly a matter of law.” EEOC v. United

Parcel Serv., Inc., 587 F.3d 136, 142 (2d Cir. 2009)

(“UPS”) (Newman, J., concurring). The

congressionally established and judicially enforced

boundaries placed on the EEOC’s investigatory

authority, as relaxed as they may be, are legal

boundaries nonetheless. These legal limits, found in

the text of Title VII, reflect “Congress’ desire to

Has

prevent the Commission from exercising

unconstrained investigative authority,” Shell Oil, 466

U.S. at 65, and it is the courts’ responsibility to

enforce those limits as a matter of law. Courts may

not leave the fox to guard the henhouse, and the best

way to avoid this “fox-in-the-henhouse syndrome” is

“by taking seriously, and applying rigorously, in all

cases, statutory limits on [the] agencies’ authority.”

City of Arlington v. FCC, 133 S. Ct. 1863, 1874

(2013).!° Doing so requires the courts to answer

legal, not factual, questions.

The critical point is that any “discretion” in

deciding what is relevant to the subpoena belongs to

the EEOC, not to the district court. The EEOC

adverts to the rule that a district court’s admission or

exclusion of evidence under the relevance standard of

Federal Rule of Evidence 401 is reviewed for abuse of

discretion, see Resp. Br. 23 & 28, but that is precisely

because the admissibility of evidence in proceedings

it supervises is committed to the district court's

discretion. See infra at 48-49. The district court

enjoys no such discretion with regard to EEOC

subpoenas. No matter how much latitude the EEOC

possesses under Shell Oil, a district court order that

purports to approve or delimit EEOC’s investigatory

authority is entitled to no deference from the court of

appeals. It is a legal determination. The EEOC,

‘© Unlike in Arlington, this case presents no question of

deference under Chevron U.S.A., Inc. vu. NRDC, 467 U.S. 837

(1984). The EEOC has not determined the reach of the

statutory phrases “related” or “relevant,” and possesses no

statutory authority to do 90 in any event; Congress has only

delegated the EEOC the authority to promulgate “procedural

regulationa to carry out the provisions of thie [subchapter}” in

conformity with the APA. 42 U.S.C. § 2000e-12(a).

42.

given its record of prevailing in district courts, may

prefer deferential review, but enforcement

determinations are properly subject to de novo

review.

B. The District Court Is Not Entitled to

Deference Because Factual Questions Do

Not Predominate in Enforcement

Decisions.

The parties and their amici rely heavily on the

variable subject matter of subpoenas as a rationale

for abuse-of-discretion (or clear-error) review in the

court of appeals. But simply because relevance may

be “variable in relation to the nature, purposes and

scope of the inquiry,” Okla. Press, 327 U.S. at 209,

does not mean that factual questions predominate, or

that the district court is better positioned than the

court of appeals to determine relevance.

To the contrary, the district court conducts an

extremely limited factual review precisely because the

Commission’s own determinations regarding the

relevance of the requested evidence in issuing the

subpoena are given substantial weight. The district

court, in deciding whether to enforce an EEOC

subpoena, does not independently make discretionary

predictive judgments about whether the evidence will

cast light on the allegations against the employer, but

merely decides whether the Commission has “act[ed]

arbitrarily or in excess of [its] statutory authority.”

Id. at 216; see Dir., Office of Thrift Supervision v.

Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir.

1997) (“[T]he district court should not reject the

agency's position [on relevance] unless it is obviously

wrong.” (quotation marks omitted)). Thus, when “a

district court fails to accord appropriate scope to an

-43-

agencys legitimate demands for information, an

appellate court is entitled to rule that the district

court has committed an error of law.” UPS, 587 F.3d

at 143 (Newman, J., concurring).

The district court is rarely called upon to make

determinations of historical fact in deciding

relevance, much less resolve factual disputes; the

dispute is merely about the relationship that the type

of evidence requested (here, pedigree information)

bears to the charge being investigated. Thus, the

district court’s review is “sharply limited,” and

“summary in nature.” Randstad, 685 F.3d at 442;

Konica, 639 F.3d at 368. In the great run of cases,

the district court simply has to determine the scope of

the charge (which defines the agency's authority—a

legal question determined form the face of the charge

itself), and the scope and nature of the documents

requested (determined from the face of the subpoena).

See, e.g., Konica, 639 F.3d at 368 (citing EEOC uv.

Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987)).

The district court then hears argument about the

predicted value of the evidence to the EEOC’s

investigation of the charge, as it did here, JA 20-22,

211-15, and applies the Shell Oil standard of

whether the evidence will cast light on the

allegations. Accord Petr. Br. 16 (district court

“consider[ed| the language of the charge against the

EEOC’s evolving theories of relevance”). Resolving

these issues does not require historical factfinding by

the district court.

The EEOC’s assertion that the district court is

better suited than the court of appeals to make these

determinations is mistaken. Unlike a typical civil

action on the court’s docket, which the district judge

-44.

observes and manages from complaint through trial,

a subpoena enforcement action comes to the district

court as a discrete proceeding presenting the singular

issue of the respondent’s duty to comply with the

agencys subpoena. “The documents involved are

usually unknown except to the respondents, and the

district court is frequently not familiar with the

issues or the specific evidentiary necessities of the

case.” John B. Benton, Administrative Subpoena

Enforcement, 41 TEX. L. REV. 874, 889 (1963).

Because the investigation is conducted by, and the

judgment exercised by, the EEOC, the district court

exercises no real discretion to which the court of

appeals is bound to defer. Rather, the district court

makes a determination, usually on a fully composed

and undisputed record, whether the Commission’s

subpoena lies within or outside of the broad range of

authority accorded by the statute. That is a legal

conclusion of the sort the court of appeals is perfectly

situated to make.

In sum, the district court’s inquiry into relevance

does not encompass findings of historical fact, nor

does such inquiry rely on the district court’s

supposedly superior knowledge of the parties or the

underlying dispute.1! Instead, the district court’s

decision is more akin to a determination under

Federal Rule of Civil Procedure 12(b)(6), where the

court assesses the potential probative or

investigatory force of the requested evidence (or

1! Although Petitioner contends that this inquiry is

“essentially factual in nature,” Pet. Br. 25, citing FIC v.

Lonning, 539 F.2d 202, 210 n.14 (D.C. Cir. 1976), the “fact”

proposition “crept into the case law without much thought” or

supporting authority. UPS, 6587 F.3d at 141 (Newman, J.,

concurring).

-45-

evidence that may be generated thereby), and merely

decides whether the it satisfies the legal standard.

District courts are not better situated to make such

decisions about statutory authority than are

appellate courts. See Fenton, 474 U.S. at 114 (where

the “relevant legal principle can be given meaning

only through its application to the particular

circumstances of a case, the Court has been reluctant

to give the trier of fact’s conclusions presumptive

force and, in so doing, strip a federal appellate court

of its primary function as an expositor of law”).

lll. The Proposed Abuse-of-Discretion

Standard Is Unsound.

Both parties and amici engage in a detailed

functional analysis of why, in their view, an abuse-of-

discretion standard may be more efficient. See Pet.

Br. 21, 28-29; Resp. Br. 26-33. That standard is

foreclosed for reasons already given, but, regardless,

they misconceive the nature of the judicial inquiry,

and a functional analysis favors de novo review.

A. District Courts Are Not Afforded

Discretion in the Enforcement of EEOC

Subpoenas.

The parties’ proposed standard of review is

premised on a fundamental error: an abuse-of-

discretion standard applies only when Congress has

vested the district court with discretion, or where the

district court’s discretion is inherent. Here, as noted

above, the only discretion involved belongs to the

EEOC, not to the district court. See Mach Mining,

135 S. Ct. at 1653 (noting, in analyzing judicial

review of conciliation actions, the “expansive

discretion that Title VII gives the EEOC,” which

-46-

limits the court's function to “ensuring that [the

EEOC] follows the law”); Randstad, 685 F.3d at 451

(recognizing that decision as to scope of subpoena is a

matter of EEOC discretion); see also Okla. Press, 327

U.S. at 201 (“The very purpose of the subpoena and of

the order, as of the authorized investigation, is to

discover and procure evidence, not to prove a pending

charge or complaint, but upon which to make one if,

in the Administrator’s judgment, the facts thus

discovered should justify doing so.” (emphasis

added)).

Petitioner (Br. 20) relies on a Sixth Circuit

decision concluding that because section 11 of the

NLRA provides that a district court “shall have

jurisdiction” to enforce a subpoena, 29 U.S.C. §

161(2), “enforcement of the subpoena is ... confided to

the discretion of the District Court, which is to be

judicially exercised.” Goodyear Tire & Rubber Co. v.

NLRB, 122 F.2d 450, 453 (6th Cir. 1941). The Sixth

Circuit’s proclamation is a non sequitur.

First, a district court can never act without

jurisdiction. Ex parte McCardle, 74 U.S. (7 Wall.)

506, 514 (1868) (“Without jurisdiction the court

cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist,

the only function remaining to the court is that of

announcing the fact and dismissing the cause.”).

Thus, under the Sixth Circuit’s untenable reasoning,

a statute granting the district court jurisdiction

would always result in the district court’s “discretion”

and deferential appellate review. But a grant of

jurisdiction simply declares the district court’s power

to decide the case, not how it is to decide the case or

the standards it should employ. In any event, the

-47-

APA supersedes the Goodyear holding, and provides

that a district court “shall sustain” a subpoena if it “is

in accordance with law.” 5 U.S.C. § 555(d). That

provision applies to NLRB (and EEOC) subpoenas,

see, e.g., D.G. Bland Lumber Co. v. NLRB, 177 F.2d

555, 568 (5th Cir. 1949), and forecloses any claim of

district court discretion. !2

Second, Title VII's governing statutory language

does not provide the district court with discretion

with regard to EEOC subpoenas. Rather,

Section 2000e-8(a) expressly provides that the

“Commission or its designated representative shall at

all reasonable times have access to, for the 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). The statute further recognizes the

Commission’s discretion to decide upon the

documents it needs in the Act’s revocation provisions,

which authorizes revocation of a subpoena “if in its

opinion” the subpoena is unrelated to the

investigation or lacks sufficient particularity. 29

U.S.C. § 161(1); 42 U.S.C. § 2000e-9. Nothing in Title

VII confers any form of discretion upon the district

court; the court simply determines the subpoena’s

legality.

12 For the same reason, the EEOC’s suggestion that

invocation of “the court’s process,” Powell, 379 U.S. at 58, is

enough to create discretion in the district court, Resp. Br. 20, is

unsound. Every civil action involves invocation of judicial

process.

-48-

B. The Abuse-of-Discretion Standard Does

Not Apply to Determinations of a

Person’s Statutory Duty to Comply with

an Agency Subpoena.

The parties point to no case in which this Court

has ever adopted an abuse-of-discretion standard for

review of the ultimate determination whether an

agency has complied with statutory or constitutional

limits or whether a party has a duty to comply with

an agency order. These are questions of law

(including mixed questions of fact and law). Brimson,

154 U.S. at 488. By contrast, district courts are

deemed to have discretion over certain subsidiary

rulings that concern the supervision of its own

litigation, involve fact-intensive determinations that

turn on witness credibility and the evaluation of

demeanor, or invoke a district court’s equitable or

inherent powers. Salve Regina Coil. v. Russell, 499

U.S. 225, 233 (1991); Fenton, 474 U.S. at 114; eBay

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391

(2006).

Consistent with that conceptual understanding,

the Court has endorsed an abuse-of-discretion

standard for decisions involving matters of “case

management, discovery, and trial _ practice,”'

44 Clarke, 134 S. Ct. at 2368 (deciaion to allow examination

of IRS agents); Crawford-Ei v. Britton, 623 U.S. 574, 598-601

(1998) (reasoning that because Federal Rule of Civil Procedure

26 “vests the trial judge with broad discretion to tailor discovery

narrowly and to dictate the sequence of discovery,” and because

the district court has “the most experience in managing cases,”

the district court is entitled to “broad discretion in the

management of the factfinding process”).

-49-

evidence,!¢ procedure,!5 sanctions,’ remedy,!’

sentencing,!® and fees and costs.!9 Enforcement of an

agency subpoena presents no such matter.

14 See, e.g., Old Chief v. United States, 519 U.S. 172, 174 n.1

(1997) (‘The standard of review applicable to the evidentiary

rulings of a district court is abuse of discretion.”); GE v. Joiner,

522 U.S. 136, 141-47 (1997) (decision to strike expert

testimony).

15 See, e.g., Agostini v. Felton, 521 U.S. 203, 238 (1997) (Fed.

R. Civ. P. 60(b)(6) motion rulings); Denion v. Hernandez, 604

U.S. 25, 30-33 (1992) (dismissals of frivolous complaints);

Renico v. Lett, 559 U.S. 766, 773 (2010) (declaration of mistrial);

Wilton v. Seven Falls Co., 615 U.S. 277, 288-89 (1995) (stay of

declaratory judgment action); Piper Aircraft Co. v. Reyno, 454

U.S. 235, 257-61 (1981) (forum non conveniens ruling); Dart

Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547,

565 (2014) (remand order); United States v. Taylor, 487 U.S.

326, 335-36 (1988) (choice to dismiss an indictment with or

without prejudice).

18 See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 404,

404-05 (1990) (holding that the imposition of Federal Rule of

Civil Procedure 11 sanctions should be reviewed for abuse-of-

discretion because this will “enhance these courts’ ability to

control the litigants before them,” and because the district court

is “best situated to determine when a sanction is warranted” in

light of the local bar’s litigation practices); Ins. Corp. of Ir., Lid.

v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982)

(sanction under Fed. R. Civ. P. 37 for failing to comply with a

discovery order).

17 See, e.g., eBay, 547 U.S. at 391 (permanent injunction);

Ashcroft v. ACLU, 542 U.S. 656, 664-65 (2004) (preliminary

injunction); Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25

(1975) (backpay under Title VII); Halo Elecs., Inc. v. Pulse

Elecs., Inc., 1386 S. Ct. 1923, 1934 (2016) (enhancement of

damages in a patent case).

18 See, e.g., Koon, 518 U.S. at 98.

19 See, e.g., Pierce, 487 U.S. at 555-59 (award of attorneys’

fees under the Equal Access to Justice Act); HighMark Inc. v.

-50-

The principal case upon which the parties rely in

support of an abuse-of-discretion standard, Nixon,

418 U.S. 683, is exactly the kind of case that involves

traditional district court discretion—the issuance of

its own judicial process based on considerations of

trial management—and is inapposite.

At issue in Nixon was enforcement of a criminal

pretrial subpoena duces tecum. 418 U.S. at 702.

Such subpoenas serve “to expedite the trial by

providing a time and place before trial for the

inspection of subpoenaed materials.” Jd. at 698—99.

Under Federal Rule of Criminal Procedure 17(c),

the moving party must show (1) that the

documents are evidentiary and relevant;

(2) that they are not otherwise

procurable reasonably in advance of trial

by exercise of due diligence; (3) that the

party cannot properly prepare for trial

without such production and inspection

in advance of trial and that the failure to

obtain such inspection may tend

unreasonably to delay the trial; and (4)

that the application is made in good faith

and is not intended as a general “fishing

expedition.”

Id. at 699—700 (footnote omitted). This Court held

that “[e]nforcement 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

Alicare Health Mgmt. Sys., 134 S. Ct. 1744, 1748 (2014) (award

of attorney's fees under 35 U.S.C. § 285).

-51-

factual issues,” and thus would not be disturbed on

appeal absent a showing that the trial court acted

arbitrarily or without record support. Jd. at 702

(emphasis added).

None of the considerations that supported abuse-

of-discretion review in Nixon apply here. This case

does not involve judicial subpoenas and a district

court’s discretionary control of its own compulsory

process or the management of its trials, nor does the

enforceability depend upon the “factual

determinations” set forth in Nixon. An agency’s

subpoena power is “not derived from the judicial

function.” Powell, 379 U.S. at 57 (quoting Morton

Salt, 338 U.S. at 642-43). Unlike Nixon, which

involved a collateral order within a criminal trial

concerning the courts own process, an order

enforcing an administrative subpoena is the final

order resolving a separate, “self-contained” judicial

proceeding between an administrative agency and the

respondent. Cobbledick v. United States, 309 U.S.

323, 330 (1940). Thus, it would be illogical to extend

Nixon’s holding to subpoenas issued _. by

administrative agencies or executive departments,

which are enforced in independent civil actions, and

do not involve the exercise of a district court’s

discretionary judicial powers.

Furthermore, the subpoenas in Nixon and this

case serve decidedly different functions. The EEOC’s

subpoena power is coextensive with its “power of

inquisition,” Powell, 379 U.S. at 57 (quoting Morton

Salt, 338 U.S. at 642), and serves an investigatory

function. On the other hand, the subpoena at issue in

Nixon, intended to expedite the trial, was definitively

‘not intended to provide a means of discovery.” 418

-52-

U.S. at 698; Bowman Dairy Co. v. United States, 341

U.S. 214, 219 (1951) (“Rule 17(c) was not intended to

provide an additional means of discovery.”). These

fundamental differences between pretrial criminal

and administrative subpoenas make Nixon’s holding

inapplicable here.

Indeed, Nixon does not even apply to all forms of

judicial subpoenas: namely, grand jury subpoenas (to

which administrative subpoenas have sometimes

been compared, Okla. Press, 327 U.S. at 216-17). “A

grand jury subpoena is ... much different from a

subpoena issued in the context of a prospective

criminal trial,” and “many of the rules and

restrictions that apply at a trial do not apply in grand

jury proceedings.” United States v. R. Enters., Inc.,

498 U.S. 292, 297-98 (1991). “Unlike [a] court, whose

jurisdiction is predicated on a specific case or

controversy, the grand jury ‘can investigate merely on

suspicion that the law is being violated, or even just

because it wants assurance that it is not.” Jd. at 297

(quoting Morton Salt, 338 U.S. at 642-43). A grand

jury maintains a “functional independence from the

Judicial Branch,” United States v. Williams, 504 U.S.

36, 48 (1992), and is “free to pursue its investigations

unhindered by external influence or supervision so

long as it does not trench upon the legitimate rights

of any witness called before it.” United States v.

Dionisio, 410 U.S. 1, 17-18 (1973).

Accordingly, this Court held that “the Nixon

standard does not apply in the context of grand jury

proceedings.” R. Enters., 498 U.S. at 300. In place of

the factual determinations of the Nixon test to which

an appellate court must defer, this Court defined a

test for grand jury subpoenas that is strictly legal in

-53-

nature and divorced from any considerations of trial

management: “the motion to quash must be denied

unless the district court determines that there is no

reasonable possibility that the category of materials

the Government secks will produce information

relevant to the general subject of the grand jury’s

investigation.” Jd. at 301. Although the courts of

appeals reflexively apply the abuse-of-discretion

standard to grand jury subpoenas, see Resp. Br. 24~-

25, the R. Enterprises test of relevance as a matter of

law involves no _ discretionary district court

determinations requiring deference from _ the

appellate court. But if the abuse-of-discretion

standard does apply to grand jury subpoenas—an

issue the Court need not decide—it is only because

the grand jury (although functionally independent) is

“an appendage of the Court” without its own

subpoena power, Williams, 504 U.S. at 66 (quoting

Brown v. United States, 359 U.S. 41, 49 (1959)), and

thus “a part of the judicial process,” Cobbledick, 309

U.S. at 327. Administrative agencies are on opposite

footing. The Nixon standard of review should not be

applied to enforcement of administrative subpoenas

issued by an independent branch of government

pursuant to its independent statutory authority.

C. Congress Has Not Ratified the Abuse-of-

Discretion Standard.

Invoking Lorillard v. Pons, 434 U.S. 575 (1978),

the EEOC claims that Congress ratified the abuse-of-

discretion standard when it incorporated the NLRA

procedures into Title VII in 1972 because the Sixth

Circuit in Goodyear and three other circuits had

applied such a standard in NLRA subpoena cases.

Resp. Br. 25—26.

-54-

That argument falters for a number of reasons.

First, nothing in the NLRA (or Title VII) addresses

appellate review, and thus there is nothing that could

be ratified by incorporation of section 11 of the NLRA

into Title VII. Second, the proper appellate standard

of review for administrative subpoenas is not statute-

specific, and indeed the Oklahoma Press/Morton Salt

standard derives from the Fourth Amendment.

Third, Congress adopted a rule of mandatory

enforcement of administrative subpoenas that are “in

accordance with law,” 5 U.S.C. § 555(d), which is

inconsistent with abuse-of-discretion review. The

Lorillard ratification canon cannot be invoked to

impliedly repeal the APA as to NLRB and EEOC

subpoenas.

Finally, the Lorillard canon applies only “when

judicial interpretations have settled the meaning of

an existing statutory provision ....” Merrill Lynch,

Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 85,

(2006) (internal quotation marks omitted), Even as

to NLRA cases before 1972, there was no uniform

rule; the Fifth Circuit, for example, applied the APA

“in accordance with law” standard in NLRA cases,

which is inconsistent with abuse-of-discretion review.

See D.G. Bland Lumber, 177 F.2d at 558; see also

NLRB v. Anchor Rome Mills, 197 F.2d 447, 448-49

(5th Cir. 1952). Moreover, Congress in 1972 was

presumptively aware of §Brimson, which

unequivocally holds that the “duty to answer the

questions propounded to them, and to produce the

books, papers, documents, etc., called for” is a

question of “law exclusively,” 154 U.S. at 488, as well

as the multiple decisions where this Court

independently determined the enforcement of

.55-

administrative subpoenas. There can be no

ratification when “there was no _ settled ..

interpretation ... about which Congress could have

been aware.” Fogerty v. Fantasy, Inc., 510 U.S. 517,

531 (1994).

D. De Novo Review Does Not Encourage

Marginal Appeals and Will Not

Materially Delay EEOC Investigations.

The parties and amici assert that a deferential

review standard would encourage fewer appeals and

foster judicial efficiency. Pet. Br. 28—29; Resp. Br.

26-33; Equal Employment Advisory Council

(“EEAC”) Br. 15-26; Professors’ Br. 11. But nothing

substantiates that de novo review fosters frivolous

appeals, or otherwise materially delays EEOC

investigations. Congress authorized an appeal as of

right, and complaints about having to litigate appeals

simply quarrel with the statutory scheme.

To begin, judicial efficiency is not solely a matter

of speed of adjudication. De novo review unifies

precedent and clarifies legal principles. Cooper

Indus., 532 U.S. at 436. Unity in precedent on

recurring issues will, in fact, streamline litigation, for

there will be fewer subpoena disputes and appeals as

trial court decisions become more predictable and

consistent. More importantly, de novo review

promotes justice. There should be uniformity in

decisions as to whether the EEOC can seek access to

other test takers through pedigree information in

investigating charges of systemic discrimination in

the administration of employment tests, and the

factors that may justify denial of such access to the

Commission. This and other’ relevance

-56-

determinations are not “multifarious, fleeting,

special, narrow facts that utterly resist

generalization.” Pierce, 487 U.S. at 562 (internal

quotation marks omitted). It does not serve

employers, employees, or the public interest for such

decisions to vary with the inclinations of a particular

district judge.

There is also no basis to the parties’ suggestion

that filing an appeal will delay an EEOC

investigation. The EEOC’s appeal of an order

quashing a subpoena does not cause delay; the

quashing order itself curtails the investigation. Nor

does delay result from a respondent's appeal of an

order enforcing the subpoena; the investigation

continues apace except in the _ extraordinary

circumstance where a stay is granted, which “is not a

matter of right.” Nken v. Holder, 556 U.S. 418, 433

(2009) (internal citation omitted). Courts have

frequently denied motions to stay enforcement of

EEOC subpoenas to avoid undue delay. See, e.g.,

EEOC v. Aerotek, Inc., 815 F.3d 328, 331-32 (7th Cir.

2016); EEOC v. Optical Cable Corp., No. CIV. A. 98-

MC-02-R, 1998 WL 236930, at *3 (W.D. Va. May 1,

1998).2°

20 For example, the EEOC successfully opposed a satay

before the Seventh Circuit “to prevent any further delay in the

Commission’s investigation.” Opp. to Mot. to Stay, EEOC v.

Aerotek, Inc., No 16-1690 (7th Cir. July 28, 2015); see also id.,

Dkt. No. 23 (order denying stay); see also, e.g., EEOC ». A.E.

Staley Mfg. Co., 711 F.2d 780, 783 (7th Cir. 1983); EEOC v.

Allstate Ins., No. 81-C-518, 1981 WL 261, at *2—3 (N.D. Ill. May

14, 1981); EEOC v. Laidlaw Waste, Inc., 934 F. Supp. 286, 291

(N.D. Tl. 1996) (denying stay to avoid delay of investigaticn).

-57-

Furthermore, it is rare for the EEOC to seek relief

in the district court, which in turn makes appeals a

rarity. The EEOC filed only 28 subpoena

enforcement actions in 2016, compared to 33 in 2005.

See EEAC Br. 18-19. For perspective, the EEOC had

an inventory of 73,500 charges at the end of 2016. /d.

at 18. Among those few actions, the parties do not

claim (much less demonstrate) that appeals sre more

frequent in the Ninth Circuit, where de novo review

is available. Unlike Rule 11 sanctions, where this

Court concluded that de novo review might encourage

marginal appeals of rulings “rooted in factual

determinations,” Hartmarx Corp., 496 U.S. at 401,

404, here the inquiry is predominantly legal. Few

employers with good arguments that the EEOC

overstepped its bounds are likely to be deterred from

pursuing an appeal because review will be for abuse-

of-discretion (especially if they can assert legal errors

that are reviewed without deference as per se abuses

of discretion).

The parties and amici also advance the false

notion that a deferential standard streamlines

appellate review, purportedly avoiding wasteful

replication of the district court’s fact-intensive

determination. Pet. Br. 28-29; Resp. Br. 30; EEAC

Br. 11-12. As shown supra at 22-29 and 42-465, the

characterization of the district court’s inquiry as fact-

intensive is incorrect. Regardless, abuse-of-discretion

review does not mean that an appellate court can

dispose of the appeal more speedily. It still must

conduct careful review of the law, the record, and the

arguments of the parties. The standard of review

only affects the deference it must ultimately give to

the district court’s ruling.

-58-

At the end of the day, an enforcement action

presents the question of the respondent’s duty to

comply with the subpoena, and the district court

must enforce that subpoena to the extent it is “in

accordance with law.” 5 U.S.C. § 555(d). An

appellate court properly reviews that determination

de novo.

CONCLUSION

This Court should affirm the judgment below.

Respectfully submitted,

Stephen B. Kinnaird

Counsel of Record

Neal D. Mollen

Derek Turnbull

PAUL HASTINGS LLP

875 15th Street, N.W.

Washington, D.C. 20005

(202) 551-1700

stephenkinnaird@paulhastings.com

D. Scott Carlton

Sarah Kelly-Kilgore

Bart Quintans

Bryant Lin

Serli Polatoglu

PAUL HASTINGS LLP

515 S. Flower Street

25th Floor

Los Angeles, CA 90071

(213) 683-6000

January 10, 2017

ADDENDUM

la

ADDENDUM

UNITED STATES CODE

TITLE 56. GOVERNMENT ORGANIZATION

AND EMPLOYEES

PART I. THE AGENCIES GENERALLY

CHAPTER 56. ADMINISTRATIVE PROCEDURE

SUBCHAPTER II. ADMINISTRATIVE

PROCEDURE

§ 555. Ancillary matters

(a) This section applies, according to the provisions

thereof, except as otherwise provided by this

subchapter.

(b) A person compelled to appear in person before

an agency or representative thereof is entitled to

be accompanied, represented, and advised by

counsel or, if permitted by the agency, by other

qualified representative. A party is entitled to

appear in person or by or with counsel or other duly

qualified representative in an agency proceeding.

So far as the orderly conduct of public business

permits, an interested person may appear before an

agency or its responsible employees for the

presentation, adjustment, or determination of an

issue, request, or controversy in a _ proceeding,

whether interlocutory, summary, or otherwise, or

in connection with an agency function. With due

regard for the convenience and necessity of the

parties or their representatives and within a

reasonable time, each agency shall proceed to

conclude a matter presented to it. This subsection

does not grant or deny a person who is not a lawyer

2a

the right to appear for or represent others before

an agency or in an agency proceeding.

(c) Process, requirement of a report, inspection, or

other investigative act or demand may not be issued,

made, or enforced except as authorized by law.

A person compelled to submit data or evidence is

entitled to retain or, on payment of lawfully

prescribed costs, procure a copy or transcript

thereof, except that in a nonpublic investigatory

proceeding the witness may for good cause be

limited to inspection of the official transcript of his

testimony.

(d) Agency subpenas authorized by law shall be

issued to a party on request and, when required by

rules of procedure, on a statement or showing of

general relevance and reasonable scope of the

evidence sought. On contest, the court shall

sustain the subpena or similar process or demand to

the extent that it is found to be in accordance with

law. In a proceeding for enforcement, the court

shall issue an order requiring the appearance of

the witness or the production of the evidence or

data within a reasonable time under penalty of

punishment for contempt in case of contumacious

failure to comply.

(e) Prompt notice shall be given of the denial in

whole or in part of a written application, petition,

or other request of an interested person made in

connection with any agency proceeding. Except in

affirming a prior denial or when the denial is self-

explanatory, the notice shall be accompanied by a

brief statement of the grounds for denial.