The US Supreme Court granted certiorari today to decide on the standard of review (de novo? abuse of discretion?) to be used by circuit courts when reviewing district courts' decisions to quash or enforce EEOC subpoenas.
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. EEOC's investigation 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 EEOC then issued a subpoena. 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 is taking the position that the correct standard of review is whether the district court abused its discretion.
The "question presented" in McLane's petition for certiorari:
Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
A date for oral argument will be set at a later time.
[For recent decisions and pending employment law cases, see US Supreme Court Watch.]