scheme the tradition of appellate review and the sound administration of justice all counsel in favor of reviewing e e o c subpoena enforcement decisions for abuse of discretion first under the statutory scheme the e e o c investigative authority is not plenary like other agencies but is cab and by the statutory limit of relevance to the charge under investigation as this as this court has held second the tradition of deferential appellate review is robust not only for administrative subpoenas but also for close analogues so just search warrants and grand jury subpoenas third the district court is the judicial actor best positioned to decide the issue for any number of reasons that this court articulated in peers and is applied in subsequent case shows that an action to enforce a subpoena is more like those in this court and high mark talked about the district court living with the case in our case the district court had experience not only with the parties in the context of the subpoena at issue but also with a parallel proceeding that the agency brought under the ada and had experience in that so i think this case shows that there are instances where the district court does live with the case longer but even if that were not justice ginsburg i think the other factors in pierce and kuhn and cruder in general in the other cases that this court has articulated and given put meat on the floor on the piers factors i think perhaps the most important is the fact sensitive context sensitive nature which i think is very much like he treated that as a question of rule what is the relevance your honor i think the answer to that question lies in what is i think critical here with respect to the proper standard of review and the ultimate resolution and that is in this case relevance is determined not in the abstract but in relation to the charge under investigation so the district court in this circumstance just like district courts do when they are determining relevance in the federal rules context is looking at the language of the charge in the context of the facts before the district court and the universe of the investigation as as a whole and i think that that's likely why your honor every every court of appeals save the certain the district court one on the pedigree information saw the name address social security number except her of the people who had taken the strength test that issue and the second part a disclosure of the reasons for the term a nation of three employees who had failed the test as i read the record below the district court did not give a reason for denying the second request and the court of appeals basically said we can't under any standard or review credit or non under the only thing that issue here is the district court's failure to order the release of the pedigree what i'm calling the pedigree information that's correct because the ninth circuit has already reversed and remande for the just record to make a proper fact finding in the first instance and on the second on the second and our our position is that one difference that an abuse of discretion standard makes is that under an abuse of discretion standard as opposed to the to no vote standard that the ninth circuit applied the proper course for a holding that the district court did not apply the correct legal standard as the ninth circuit held here just agree but even if that were that were the case the proper resolution is to reverse and remain and for the district court to either clarify what it did and explain no that wasn't and we don't know in the footnote i think it's it's certainly not dispositive but i think it is telling that the ninth circuit did not go on to say well we would have reached the same result under either standard but again vote standard that the ninth circuit applied it was stepping into the shoes of the district court and making a determination of relevance in the first instance our position is that even if under an abus discretion standard even if the ninth circuit believed that the district court made an error of law the proper course under the ninth circuit some precedent would be to reverse and remand for the district court than if it didn't exist now under that standard i guess the e e o c or any other agency could require any company no matter how big or how small to turn over everything that it's ever had because they might find something in there that would make discrimination or failure to pay taxes or some other thing more likely than not so we find that language and we also find languages they of course they can't authorize a fishing expedition well what's the right standard what happens br example in a subpoena what happens what is the standard when he thinks they can just go in your house and i mean you know absent the fourth amendment protection go to a business and say we want every document you've ever violating various anti discrimination things so what we want to do is just go to every company in alphabetical order and interview every employee and they do that no your honor because because and i think  that this court decided so that i didn't tell you that although in the language the language that this court he used in shell oil was relevant to the charge under investigation of what relevance means in this context and i don't know that the language is is is  much more clear but it's said that tends to shed can reasonably be expected to shed light on the charge under investigation where does that come from that comes from shell oil and that's the language that courts have have reason to want to be expected to shed light on the charge under investigate as your own so the law is fairly clear that when the e e o c asks for a piece of information they have to be and the charge here we don't think and to use the language that i was using with justice prior we don't think that anything the evaluation taker knows or has experienced in this case and shed light on the charge under investigation for two reasons first the evaluation itself does not mimic job duties it was developed administered and scored by third parties using computer modeling and labor department job classifications and second and again this goes to the very fact specific nature of the examination this is an eis the kinetic evaluation it's taken on a machine like an exercise machine that measures resistance range of motion and speed and it provides resistance equal to the force that you generate although maybe so but how do you a that for a simple point and if you're dealing with a test and both men and women have found it where you want to ask the test taker what happened after you  you kept on the job and the same question to put that question to men and women if it turns out that the men who failed the test or sometimes kept on but all the women who failed the test are discharged that would certainly support the claim of gender based discrimination and your honor in this case mclean voluntarily also included add this the passing scores and the scores that did not meet the requirement and whether any adverse employment action took place with respect to that individual so to answer that question  your honor we don't disagree would be relevant that information has already been and then provide it to the agency so the only sort of remaining question and i think this is  what what my friend from from the government presses on we need to talk to them to find out whether the test serves a legitimate business purpose and i would share your and i'm sorry i thought i understood that you to school who took the test who failed and whether someone was later only women for failing the test but keeping in and maybe some chairman a leader for some other reason doesn't that show that there's a problem your honor we have mr chief justice and may it please the court historical and functional considerations to strongly support an abuse of discretion standard of review here and with respect to the functional considerations if i could turn to justice ginsburg's question about why district courts are better situated to address this question even though it comes to them on a largely documentary record we think there are a couple reasons the first is that this court indicated in that when a district court just sees a lot more of a fact specific question the district court is often going to have more expertise in answering that question and this court has also indicated that when a determination is very case specific the costs of appellate review are unlikely to justify the benefits of are unlikely to justify the out time appellate review takes because a decision on a specific facts is unlikely to yield substantial benefits substantial guidance for future cases and we think those concerns are really extension needed here under administrative subpoena enforcement schemes because a central purpose of those schemes is to get a quick disposition so that the investigation can move forward and that's particularly true under title seven where the scores repeatedly emphasized and show oil and in the university of pennsylvania case but the lay frustrates the objectives of the statute miss governor here the question whether to enforce the subpoena is the whole ball of wax right this is an action to enforce the subpoena so that question is the end all and be all of the case are there any other contexts in which we use an abuse of discretion standard for not a subsidiary or an ancillary finding or you know a partial find and but for the finding that the sides of the case yes there are i mean so we think the most analogous context to the administrative subpoena context is all there subpoena contacts there you're deciding the whole ball of wax but the decision of the district court is your view for abuse of discretion so example this court's decision and nixon court district court is doing when it makes a decision to force a subpoena what are the legal steps what are the factual steps i'm not quite sure and from shell oil and they are that the charges are valid that the information that's being sought is relevant to the charge that the subpoena is not to indefinite and that there's no improper purpose now the court in cello didn't mention this unduly burdensome piece of the inquiry but the court relied on the morton salt standard and morton salt suggests that that unduly burdensome inquiry exist so courts of appeals have uniformly said there's an underlying burdensome overlay on that as well so those are the five pieces we think that all five of them involve the application of law to particular facts they involve case specific determinations that involve looking at a particular charge a particular subpoena considering the relationship between those things and then considering any submissions about burden that a company makes so we think these are all the kind of case specific determinations that are particularly well suited to just reports if i could turn to the second piece of the case the course certainly has discretion to just address the standard question then remand but we think it's entirely appropriate to simply affirm the decision of the court of appeals because we think this is a relatively straightforward relevant question where the district court just made a legal error in not applying the test that just as prior is a question of could this information shed light on the charge but instead demanding more demanding that essentially there be a necessity for the information and that's just not the right legal test is the court of appeals indicated could you explain to us you know view of hat how this information honor observed as judge watt for it said in order to figure out whether disparate treatment occurred here you need to talk to test takers and see whether male and female test takers were treated the same and if i could just clarify why the existing record doesn't shed light on that  you can see at page thirty three of the petition appendix what the district court ordered to be turned over and it's whether an adverse employment action was taken within sixty days but what we don't have is was that action terminations which is the action that occurred here and what was the reason for the germination in the company is there's obviously a geisha ongoing but the company says that turning that over would be an undue burden so in order to figure out what happened with these applicants who really do need to talk to the applicants in the test takers  lot i don't understand i mean there's a woman who says i took a test physical and i failed period when she was terminated she doesn't say that they're treating women home more harshly she doesn't say that this isn't a qualified reason she said so you could have that every day that week people are terminated for failing to pass and they could come in and comply but now at that point the agency doesn't just say let's find some samples let's do a little sampling here and see how this is being applied but to go invite let's interview a few people at random and see what these tests are about rather they say we want to talk to every single employee in the company well i mean ok what's the basis for that on the basis of that information relevant when anyone complains about anything to go and see if really there's something suspicious going on by interviewing every single employee even if there are five hundred thousand employees you can't say that an answer might an off make it more likely that's why i was looking at undue burden and i would think maybe you have to do something before you would decide to spend require the company to spend millions of dollars to get every single employee on tape or something out of something more than that that's that's what i want to know how does what about the how that's right so i think whenever the information is relevant and i think as your honor alludes to it's clearly relevant to interview other employees and see if this policy is being administer the same the overlay that congress created is that overlay of is it burdensome to the company to give you that information and here i think it's pretty clear why the petitioner abandon the argument that it's an undue burden to produce the pedigree information the names and so scary numbers of these individuals were already in the records that the company had of the test the company stripped out that information it went to added burden to not provide us with the information to identify the people by name and so security numbers additional information like addresses was also already in company databases with respect to all people who are employed by the company so i just say counsel there is a bit of tension between your position that abuse of discretion is the appropriate standard because the district court is more familiar with the proceedings and all that and that we should you know make a ruling on whether there was an abuse of discretion as a matter of law without any intervening if you well we think that in that narrow class of cases where the decision rested on actual legal error and where it's clear what the appropriate relevance determination is it's appropriate then for a court of appeals or in this case this court the relevance determination is something that is pretty fact intensive but that's right but we think this is actually a relatively clear case for the reasons that the  out we're seeking the basic i suppose i'm left at the moment i'll go back and read it i just don't know it's something when i read this struck me as i haven't seen something like this where all that happened was somebody coming i mean in one place and says i took a test and failed it and then they start the interview everybody in the whole company i mean the hundreds thousands and then something struck me as odd about that so when the district judge then said this is an undue burden or they can't do it they have to have more than th i was reluctant to say this is an abuse of discretion even though he thinks you know it's the right thing to them and that's what justice judges are there for so district court so with respect to the geographic scope your honor i think it's really important that we didn't initially seek this information with respect to the entire company we saw information that was limited to information about the test that was complained about at the particular facility in question goodyear arizona where this person was employed it's only when the company came in and said our defense you explanation is we have a nationwide policy and we're using this test in all of our facilities that we sought information in a broader geographic scope and if i could just touch on the one other reason why this information is relevant with respect to disparate impact theory the crucial question under disparate impact theory in this case is likely to be is this practice justified by business necessity and in order to know that you have to know whether the strength test which seems to be exerting a substantial disparate impact on male and female employees is actually representing the skills that you need in order to perform these jobs because if this is a strength has that doesn't correlate to the work you have to perform as an employee and it's not justified by business necessity and interviewing people who actually do these jobs a way to determine that you could could use a little bit governor about how it is that you are persuaded that this court did make a legal determination that was affecting the stress event as opposed to maybe using some careless words but was really making a relevancy determination yes your honor so i think that he portion of the district court's opinion is on page twenty nine to thirty of the petition appendix and what the court says is i'm not persuaded that this is relevant and the reason why i'm not persuaded this is relevant is because there's an additional step that the agency could take to investigate whether this charge a discriminatory first and that's to conduct a statistical analysis and use just more information to shed light on the charge so we think that's just an incorrect understanding or relevance is a necessity test and this court is pretty clearly rejected in this su test is not the test chief justice and may it please the court there can be no abuse of discretion review if the district court has no discretion congress vested the e e o c not the district court with the discretion to determine if particular relevance or particular evidence is relevant to the charge that discretion cannot reside in two places the d c circuit said it best where deference is owed to the agency including in the application of lot of fact it is quote analytically impossible unquote for the court of appeals to defer to the district court if the district court disagrees theory analytically impossible so the government says with regard to relevance that the district court must enforce the subpoena unless the e e o c is obviously wrong and the court of appeals must uphold that determination absent an abuse of discretion i e the district court must be obviously wrong in holding that the e e o c is or is not obviously wrong that framework is not only illogical it's unworkable if the district court disagrees with the e e o c and the court of appeals must defer to the district court putative discretion then the court of appeals prescribed the standard but the nice discretion to the district court section six of the a p a provides that the district court shall sustain an agency subpoena if it is in accordance with law case a civil case or a criminal case the question of relevance i suppose at the end of the day relevance as a legal matter but don't we give substantial deference to the trial court in order to  relevance is a judgment about the relationship of certain evidence to a claim and beak because it's a judgment a relationship there always is in the primary decision maker so in discretionary judgment about how to apply the legal  legal standard in discovery and trial evidence that primary decision maker is the trial court and therefore it's determinations of relevance are are reviewed for abuse of discretion in this context the primary decision maker the one with discretion is the o c and so it is its discretion that is reviewed simply for whether or not it has crossed the legal lines a district court does not have discretion to tell an independent branch of government conducting investigation you can't have that evidence you can simply refuse to enforce in a legal subpoena and in tuesday's review under the a p i'm sorry why isn't that telling they can't have that evidence it's telling them because they're drawing the legal line and saying you can't cross that line that's different from exercising discretion about whether evidence is relevant that discretion belongs wholly to the e e o c well it's a line depends on relevance it's exactly the same thing is telling whether it's relevant or not well that's why the course of adopting the standard of obviously wrong obviously wrong is not a discretionary determination so the district court really has no discretion and into stage review under the a it is always the case that the district court and the appellate courts apply the same standard of review to agency action whether deferential or not but here under the in accordance with law theory that means this is a legal or not that should be the same standard applied in the district court and in the in in the court of appeals it's a legal line a legal determination and nothing in title seven departs from that argument in a motion and the reason is that relevance is a conceptual especially in the agency subpoena context is a conceptual determination of the relationship to the charge of the category of evidence of unknown content and it and so it is not making a factual determination from evidence it's a legal theory of the potential value of the evidence to the e u now what about the nature of the charge on tours of the charges and that factual no that's legal i think that it's a little contours of the charge on a particular case is a legal question absolutely you cannot look at extrinsic evidence it's just analyzing the text of the charge and i think the courts are totally consistent on that what about the burden on the other party who brought him to me that the district court would have a considerable degree of familiarity with the nature of the defendant's operations how burdensome it amendment requirement in she said morton salt and salt as you know i don't know it doesn't have to be constitutional i would think that's regardless i think it's something of a red herring i don't think an agency even if it's a constitutional burden i can't imagine a lot of the contrary that what about the question was asked well respectfully your honor i think that's not true all right ok is the answer just that well that's constitutional therefore it doesn't count or whatever well any other answer it well it's constitutional in custody should be to no avail but my point is that congress has said the e e o c shall have access to this evidence and two conditions neither of which have anything to do with burton so in other words in your view the law is that the an agency when somebody complains about anything can go and ask if that's anywhere in the agency anywhere in the company and ask every single employee and require them to spend millions of dollars because after all it is relevant is that the there's your answer for the moment limitation and that you're on a fourth amendment let's let's take i mean there's some places don't fourth amendment and therefore the court has to review it well that's right and fourth amendment determinations are did over there i don't see how we do it frankly i mean you know there are thousands  of district courts here these things at length we don't have the time to do all that we're looking at a cold record they have the lawyers in front of them the lawyers can explain what went on at the agency and they can take their time well you unfortunately for us because you  and by the way that's a minimal proof it's just the cost in terms of staff or resources to produce the information and what's the effect on operations or finances of the company the point there is that the court would take the finding as given for clear error with the constitutional rule is is this excessive is it constitutionally excessive relate relevant to the public purpose and like all constitutional excessiveness determinations under budget or cooper industries that's to know about the other elements of the fourth amendment claim improper purpose this court's clark that's a question of law and then specificity of the subpoena that's a question of law there is no constitutional issue decided here but relevance has been decided and i would only point out sorry i under for a one which is a discovery rule we review that for relevance for abuse of discretion just why is that any different here than it is under rule for one because the the district court has the is the initial decision maker in determining relevance because relevance is inherently a discretionary judgement about the relationship of evidence to claim there always will be with the primary decision maker discretion it's the e e o c that has that discretion here so if we take t so you don't have a problem in saying that it's within the discretion of the district court reviewing the see to the side relevancy no i'm saying here and it's only the court of appeals then who has to review it as a matter of i dunno i'm sorry i'm a little i'm sorry that i wasn't clear the the e e o c makes the initial determination of whether a particular evidence such as pedigree information is relevant to a charge they're the ones that make that discretionary determination winick but express and can only reside in one place and when it comes up there is an honor for one  abuse of discretion or in accordance with law it limited the district courts inquiry for subpoena enforcement to whether it was in accordance with law and the legislative history is quite clear that they did it so that they wouldn't re visit the discretionary determinations of the district court you're only preventing illegal action and that's why in tuesday's review a district court always applies the same standard as the court of appeals in review of agency action m cardew you think that your whole argument might be taking the words abuse of discretion a bit too literally another words your idea is that you can never use that term unless there is some discretion some real choice and you know it might be that sometimes we use that term when that's not really true but what we just mean to say is that a certain amount of deference should be given because because we're at the right institution to make up to it to make a particular kind of judgment well i think if you're looking to institution first of all i think there has to be discretion to the abuse of discretion that i think there has to be but if you are looking at just a functional analysis of you know how you draw the line to cabin the the discretion there's no institutional advantage this appellate court construe the charge construe the subpoena and resolve the legal claims of the potential value of unknown evidence just as well as a district court these are simply not factual determinations pedigree information is a perfect example of that and because there should be very informations basically saying it's relevant to be interviewed test taking if you're investigating excuse me interview test takers if you're investigating a charge of discriminatory testing that is not a determination that should vary from district judge to district judge there really is no discretionary determination in the a p a for closes it i would also point out there is no real argument in terms of practice well considerations about inducing additional appeals by adopting the novo review first of all as a practical matter in the last twenty five years our research discloses only six ninth circuit e e o c subpoena enforcement decisions out of thirty seven total so that's only sixteen percent less than it normal normal twenty percent share of appeals and one would not expect otherwise stener view is not going to deter an appeal it's going to shift the battleground as it did here from fights about whether this is discretionary to whether it's an implied use of an erroneous legal concept and the problem is is that because relevance is a question of law and not one of discretion for the appellate courts to be inquiring into whether there was an abuse of discretion simply distorts appellate decision making this should be this is about vindicating the congressional scheme for the balance of power between agencies and courts and courts police the legal limits agency action that's something that appellate courts are just as capable of doing and they have to respect discretion because if you recognize discretion the district court facto diminish the discretion of the e e o c i'd also like to address one point on the fourth amendment both parties say it's not or analysis and it's due to the novo review that applies but rather illinois versus gates where this court held that magistrate's decision to issue a warrant should review that decision deferentially gates supports our position and the reason is that the analog decision deferentially but on appeal the court of appeals applies the same deferential gait standard to the magistrate as a district court meaning that it in gazes into novo review of the district court's decision so i am aware of no support either in the fourth amendment i don't or in administrative law for this idea of double discretion or double deference this would be the first time the district court has been would be given deference over fourth amendment considerations and where the there the court of appeals is enjoined to give deference both to the district court and the court of appeals i think that simply  about cases that involve testing in the cases that involve testing pedigree information will always be relevant visit case the shows that facts matter and we don't dispute that in a case where you have a test that mimics job duties or involves subjectivity perhaps talking to people would shed light on the charge under investigation but in this case this evaluation is at issue talking people were terminated because the information given was maybe they were terminated then having nothing to do with flunking the test but what the ninth circuit said  is must be responded to his words the men and women who flunked the test treated this way and we can't know that without talking to  people finding out whether they were discharged the close of the test so for some of the two responses to that your honor of first i think it's important to underscore that the data that perhaps that is why the district court in our said on our case did not did not said information depending on what the data shows may may be relevant depending on the facts that are uncovered the government's argument is not one based on the facts that have been uncovered it's been seeking the pedigree information for the fourteen thousand of the jewels from from the very beginning i'm having a very hard time with your answer i've never heard of any  that test and fire people basically because they're not true may i know that's not our position and i think the distinction we're drawing weekly absolutely maintain that there is a business purpose there's the business necessity for the evaluation that is a separate question from how the evaluation operates and the evaluation here does not mimic job duties which in a line of cases the courts have have had concern with subjectivity in those cases what have you this case this evaluation it does measure we use it to measure the match between an employee's physical capability and the physical demands of the job it's how that examination operates how the evaluation operates the facts on the ground that effects whether talking to people who have taken the evaluation can say something that will shed light on that question thank you counsel thank you mr kineret this court pointed you to a brief and argue this case is an amicus curiae in support of the judgment you have ably discharge that responsibility for which we are grateful the case is submitted