EEOC subpoenas and the 9th Circuit's outlier standard of review

McLane Co. v. EEOC, up for argument at the US Supreme Court on February 21, is an odd duck because both parties agree that the 9th Circuit got the law wrong, and the Court had to appoint an amicus curiae to present arguments in favor of the 9th Circuit's position.

The legal issue will bore you to tears if you're not a Title VII litigator. The 9th Circuit reviews district courts’ orders concerning enforcement of EEOC administrative subpoenas de novo. Most other courts of appeals review decisions concerning enforcement of administrative subpoenas for abuse of discretion. This includes the 3rd, 4th, 7th, 8th, and DC. (The 2nd and 11th Circuits' decisions are a bit more complex.) 

Facts: Damiana Ochoa filed an EEOC charge alleging sex discrimination based on pregnancy. She claimed she was fired because she failed a strength test following maternity leave. The EEOC issued a subpoena that included a request for "pedigree information" such as names, addresses, and social security numbers of employees who had been required to take strength tests.

The district court declined to enforce the subpoena as to pedigree information, writing that the pedigree information was “not relevant at this stage to a determination of whether the [test] systematically discriminates on the basis of gender.” 

On appeal, the 9th Circuit held that the subpoena should be enforced. In reaching that conclusion, the 9th Circuit reviewed the district court's decision de novo.

McLane Co's position is that the correct standard of review is whether the district court abused its discretion. 

EEOC's position is the same, so EEOC informed the Court that it would not defend the 9th Circuit's use of a de novo standard.

Court-appointed amicus: The Court had to appoint an amicus curiae to present arguments in favor of the 9th Circuit's position. The Court appointed Stephen B. Kinnaird, Co-chair of Paul Hastings' appellate practice group. His brief [here] is excellent.

The case is McLane Co. v. EEOC (US Supreme Court 09/29/2016) [briefs]. The case being reviewed is EEOC v. McLane Co (9th Cir 10/27/2016) [text of 9th Circuit decision].

Seattle University law professor Charlotte Garden has an interesting argument preview at SCOTUSblog: Feats of strength and standards of review. I agree with her comment that "this case is an unnecessary procedural sideshow."

[For recent decisions and pending employment law cases, see Supreme Court Watch.]