A routine subpoena from the Equal Employment Opportunity Commission to an employer might include items that read something like this:

  1. Identify and describe your relevant policies and practices;
  2. Produce those policy and practice documents;
  3. Compile and send us a list of all the people affected adversely by these policies and practices, with their contact and demographic information and the dates of those adverse actions;
  4. Produce the HR records reflecting those adverse actions.

Items 2 and 4 seek documents; items 1 and 3 seek information which may be derived, at least in part, from requested documents. When subpoena respondents object to 2 and 4, the EEOC typically asserts that Congress authorized the Commission to subpoena any evidence that may shed light on the matters under investigation, and that the respondent has not shown undue burden. Often enough, that has assuaged judicial curiosity.

But items 1 and 3 seek information, not documents, and they are better described as interrogatories. Where in the statutory text or legislative history does the EEOC find congressional authorization to embed interrogatories in its administrative subpoenas? The appellate opinion most often cited for this proposition curtly answered that the EEOC may subpoena “any evidence” because Title VII borrowed the NLRB’s subpoena power, which extends to “any evidence.” Is that the best reading of statutory text? The U.S. Supreme Court has not answered this question, but the answer must be “No.”

The 1935 National Labor Relations Act, also called the “Wagner Act” after its Senate champion, solved several problems for the Labor Board that had been created by the National Industrial Recovery Act, including the lack of subpoena power. Originally, the Board, through DOJ, had to petition federal courts to subpoena documents and witnesses for Board hearings. Introducing his bill (S. 1958) on February 21, 1935, Senator Wagner clearly stated the purpose of Section 13(1): “[S]ince the Board has no power to subpoena records or witnesses, its hearings are largely ex parte and its records so infirm that the Department of Justice is usually unable to act.” That statutory text, now codified at 29 U.S.C. § 161(1), reads:

(1) Documentary evidence; summoning witnesses and taking testimony

The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question. The Board, or any member thereof, shall upon application of any party to such proceedings, forthwith issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of any evidence in such proceedings or investigation requested in such application. Within five days after the service of a subpoena on any person requiring the production of any evidence in his possession or under his control, such person may petition the Board to revoke, and the Board shall revoke, such subpoena if in its 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. Any member of the Board, or any agent or agency designated by the Board for such purposes, may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses and the production of such evidence may be required from any place in the United States or any Territory or possession thereof, at any designated place of hearing.

Later in his introduction, Senator Wagner said that the new NLRB enforcement powers were modeled on those of the Federal Trade Commission. The FTC Act, now codified at 15 U.S.C. § 49, empowered the FTC to subpoena “the production of documentary evidence relating to any matter under investigation.” Consistent with 5 U.S.C. § 555(d), the Wagner Act made subpoena issuance a ministerial act, to be performed at the request of any party to a proceeding. Because subpoena issuance is a ministerial act, it may be delegated to subordinate agency officers.

The Federal Rules of Civil Procedure (1938) followed hot on the heels of the Wagner Act. The Rules distinguish the purposes of Rule 34 document requests (document production) and Rule 45 subpoenas (document production or witness attendance) from the purposes of Rule 33 interrogatories (to acquire information about “any matter that may be inquired into”). In Rule 33, the word “produce” appears only in the heading of subsection (d), “Option to Produce Business Records.” 

Amending Title VII of the Civil Rights Act in 1972, Congress needed to fix the same problem that Senator Wagner had fixed for the 1935 Labor Board. Section 710 of Title VII of the 1964 Act required the EEOC to ask a federal court to order a respondent to permit the EEOC to examine or copy evidence. The stated purpose of the 1972 amendment of Section 710 was to empower the Commission directly to subpoena and “copy” the evidence sought. For that purpose, Congress imported the NLRA’s solution to the same problem previously encountered by the Labor Board. At no time before those 1972 amendments had any Circuit Court of Appeal ruled that 29 U.S.C. § 161 empowered the NLRB to serve interrogatories.

That the statutory term “evidence” refers only to documents, rather than to interrogatory answers, is clear in the first sentence of 29 U.S.C. § 161(1), which grants the NLRB “the right to copy any evidence . . .” The EEOC’s regulation, 29 C.F.R. § 1601.16(a), adopts that meaning, describing “evidence” as “books, records, correspondence, or documents, in the possession or under the control of the person subpoenaed.” Nothing like Rule 33 of the Federal Rules of Civil Procedure appears in Title VII, in the NLRA, or in the NLRB or EEOC subpoena regulations.

Despite unambiguous text and legislative history, EEOC respondents regularly receive agency interrogatories embedded in subpoenas issued in the agency’s discretion, pursuant to EEOC rules that permit only the agency to serve subpoenas. Why is this so rarely litigated? Normally, it is faster and cheaper for everyone—and beneficial to the agency respondent—for the respondent to talk to its people, review its records, and then inform the agency about a matter under investigation. If and when this issue is litigated, the agency’s view on how it can conduct litigation should receive no judicial deference. If a court agrees with the Commission’s view of what the regulation means, that regulation should be held to be an invalid attempt to supply authority not granted by Congress, subjecting the regulation to being set aside for being arbitrary, capricious, and contrary to law.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].