PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2514
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Appellant
v.
CITY OF LONG BRANCH
_____________
On Appeal from the United States District Court for the
District of New Jersey
(D. N.J. No. 3-15-cv-01081)
District Judge: Honorable Michael A. Shipp
_____________
Submitted under Third Circuit L.A.R. 34.1(a)
November 15, 2016
Before: AMBRO, CHAGARES, and FUENTES, Circuit
Judges.
(Filed: August 2, 2017)
Jeremy D. Horowitz
U.S. Equal Employment Opportunity Commission
Office of General Counsel
131 M. St., N.E., Room 5SW24J
Washington, D.C. 20507
Counsel for Appellant
Emery J. Mishky
Margolis Edelstein
400 Connell Drive, Suite 5400
Berkeley Heights, N.J. 07922
Counsel for Appellee
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OPINION
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CHAGARES, Circuit Judge.
The Equal Employment Opportunity Commission
(“EEOC”) filed a subpoena enforcement action against the
City of Long Branch in furtherance of its efforts to obtain
documents pertaining to a charge of discrimination. A
Magistrate Judge issued an order to enforce the subpoena, in
part, and the EEOC appealed the order to the District Court.
The District Court affirmed the Magistrate Judge’s order.
Before us is the EEOC’s appeal from the District Court’s
order.
The EEOC raises two substantive issues on appeal, the
first regarding the exhaustion of administrative remedies and
2
the second regarding the disclosure to the charging party of
other employees’ disciplinary and related records. However,
our review of the record reveals a significant procedural
defect pertaining to the treatment of the motion to enforce
under the Federal Magistrates Act. This error, in light of the
facts of this case, precludes us from reaching the merits of the
EEOC’s arguments. For the reasons that follow, we will
vacate the order of the District Court and remand.
I.
On or about February 7, 2013, Lieutenant Lyndon
Johnson (“Lt. Johnson”) of the Long Branch Police
Department filed a charge of discrimination with the EEOC
against the City of Long Branch (“Long Branch”). Lt.
Johnson is an African-American man. He charged that his
employer discriminated against him on the basis of race, in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. (“Title VII”), by subjecting him “to
different and harsher disciplinary measures than similarly
situated white colleagues who committed the same or similar
. . . infractions.” Appendix (“App.”) 32. On August 19,
2013, the EEOC served Long Branch with a notice to charge.
On December 30, 2013, the EEOC requested “all disciplinary
records” for Lt. Johnson and six Caucasian comparator
officers. App. 19, 33. Long Branch responded by letter to
the EEOC that it was preparing the requested materials but
that it would not produce the materials unless the EEOC
executed a confidentiality agreement wherein it would agree
to not reveal “confidential” materials, including the personnel
files of the comparators, to anyone, including Lt. Johnson.
App. 54. The EEOC refused to execute such an agreement.
3
The EEOC served a subpoena on Long Branch by
email and certified mail on July 23, 2014. The subpoena
requested “a copy of any and all documents which refer to or
address the disciplinary records” for Lt. Johnson and the six
comparators. App. 63. Long Branch, in response, sent the
EEOC a document titled “Notice of Motion to Quash
Subpoena.” App. 68. The document had a caption for the
Superior Court of New Jersey Department of Law and Public
Safety Division on Civil Rights. The EEOC received this
document on August 7, 2014. The notice reiterated Long
Branch’s position that it would not disclose the requested
documents without an executed confidentiality agreement.
The document reads, in part:
7. The subpoena seeks confidential
disciplinary records of various Officers, who
have no involvement in the claimant’s matter,
and this is contrary to the Policy and Procedures
of Internal Affairs which has strict requirements
for release of such records.
8. As previously stated, the respondent is
not in privy to disclose the subpoenaed records
unless EEOC meets the criteria as set-forth in
the Policy and Procedures, or in the alternative,
guarantee[s] Confidential[ity] of these records.
9. Accordingly, the respondent object[s] to
the subpoena of these disciplinary records and
seek[s] to quash the subpoena.
App. 72.
Section 1601.16(b) of Title 29 of the Code of Federal
Regulations requires that a person or entity intending not to
4
comply with an EEOC subpoena submit a petition to modify
or revoke the subpoena to the EEOC’s Director or General
Counsel within five days after service. 29 C.F.R. §
1601.16(b)(1). Long Branch never submitted such a petition.
On February 10, 2015, the EEOC filed a motion in
federal district court seeking enforcement of its subpoena.
The EEOC argued that because Long Branch failed to exhaust
its administrative remedies by filing a timely petition to
revoke or modify, it waived its right to object to the
subpoena. In addition, the EEOC argued that even if Long
Branch were not precluded from contesting the subpoena, its
refusal to turn over the subpoenaed materials was improper.
A federal Magistrate Judge issued an order enforcing
the subpoena, in part. The Magistrate Judge acknowledged
the EEOC’s exhaustion argument but did not consider
whether the statute and regulations established an exhaustion
requirement. Citing the EEOC’s brief, the Magistrate Judge
simply observed that “[h]ere, Respondent failed to file a
timely petition to revoke or modify the EEOC subpoena in
accordance with regulations, and instead remained steadfast
in its refusal to produce the records.” App. 12. The
Magistrate Judge then compelled Long Branch to provide the
requested documents, but required the EEOC to avoid
disclosure of the comparators’ employment and personnel
records to Lt. Johnson, reasoning that under EEOC v.
Associated Dry Goods Corp., 449 U.S. 590 (1981), disclosure
of the comparators’ records to Lt. Johnson would be
improper.
The EEOC appealed the Magistrate Judge’s order to
the District Court, requesting that the District Court “reverse
5
that part of the Order . . . that restricts EEOC’s ability to
disclose records obtain[ed] during its investigation to the
charging party or his counsel.” App. 108. The EEOC did not
object to the part of the Magistrate Judge’s order referencing
exhaustion, and the District Court did not address the issue.
The District Court affirmed the Magistrate Judge’s order that
Long Branch turn over the comparators’ employment and
personnel records and that the EEOC not disclose those files
to Lt. Johnson. Like the Magistrate Judge, the District Court
relied on Associated Dry Goods, holding that “‘[w]ith respect
to all files other than his own, [the charging party] is a
stranger.’ Accordingly, the Order’s restriction on the
disclosure of the comparator’s personnel and employment
records was not contrary to law.” App. 8 (alterations in
original) (citation omitted) (quoting Assoc. Dry Goods, 449
U.S. at 603). The EEOC timely appealed.
II.
The District Court had jurisdiction pursuant to 42
U.S.C. §§ 2000e-5(f)(3) and 2000e-9 and 29 U.S.C. § 161(2).
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We apply an abuse of discretion standard when
reviewing a district court’s decision to enforce an
administrative subpoena. McLane Co. v. EEOC, 137 S. Ct.
1159, 1170 (2017), as revised, (Apr. 3, 2017). “Abuse of
discretion occurs when ‘the district court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion
of law or an improper application of law to fact.’” Chao v.
Cmty. Tr. Co., 474 F.3d 75, 79 (3d Cir. 2007) (quoting NLRB
v. Frazier, 966 F.2d 812, 815 (3d Cir. 1992)).
6
III.
The EEOC raises two issues on appeal: (1) whether
Long Branch is precluded from contesting the motion to
enforce because it failed to exhaust its administrative
remedies (hereinafter, the “exhaustion issue”), and (2)
whether the EEOC may disclose information from the non-
charging parties’ employment and personnel records to Lt.
Johnson (hereinafter, the “disclosure issue”). Despite the
compelling nature of these issues, we will not reach them
because of a procedural error committed by the District
Court: the District Court erroneously treated the motion to
enforce that the Magistrate Judge had reviewed as a
nondispositive motion instead of a dispositive motion. This is
a meaningful distinction under the Federal Magistrates Act,
28 U.S.C. § 631, et seq., as the categorization of motion
dictates, inter alia, the level of authority with which a
magistrate judge may act on a motion and the availability and
standard of review afforded by the District Court and our
Court. We will first review the differing treatment of
nondispositive and dispositive motions under the Act and as
developed by our jurisprudence. We will then turn to the
facts of the instant case.
A.
The office of magistrate judge was created by the
Federal Magistrates Act, 28 U.S.C. § 631, et seq. (the “Act”)
to “relieve courts of unnecessary work and to improve access
to the courts.” Cont’l Cas. Co. v. Dominick D’Andrea, Inc.,
150 F.3d 245, 250 (3d Cir. 1998) (quoting Niehaus v. Kan.
Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986)). In this
Circuit, magistrate judges are highly valued and are vital to
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the just and efficient resolution of cases filed in the federal
courts. See Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct.
1932, 1938–39 (2015) (“[I]t is no exaggeration to say that
without the distinguished service of [magistrate and
bankruptcy judges], the work of the federal court system
would grind nearly to a halt.”); Peretz v. United States, 501
U.S. 923, 928 (1991) (“Given the bloated dockets that district
courts have now come to expect as ordinary, the role of the
magistrate in today’s federal judicial system is nothing less
than indispensable.” (quoting Gov’t of the V.I. v. Williams,
892 F.2d 305, 308 (3d Cir. 1989))).
In furtherance of this purpose, the Act authorizes
district court judges to delegate certain matters to magistrate
judges. See 28 U.S.C. § 636. Because magistrate judges are
not Article III judges, the Act carefully delineates the types of
matters that may be referred to magistrate judges, so as to
ensure that “the essential attributes of the judicial power”
remain in Article III tribunals, N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50, 77 (1982) (quoting
Crowell v. Benson, 285 U.S. 22, 51 (1932)). See Frazier, 966
F.2d at 816. Relevant here, the Act authorizes district courts
to refer nondispositive and dispositive motions to magistrate
judges. Unlike a nondispositive motion (such as a discovery
motion), a motion is dispositive if a decision on the motion
would effectively determine a claim or defense of a party.
See Fed. R. Civ. P. 72(a), (b)(1); see also In re U.S.
Healthcare, 159 F.3d 142, 145 (3d Cir. 1998) (holding that a
motion to remand is dispositive because “it preclusively
determines the important point that there will not be a federal
forum available to entertain a particular dispute”); Cont’l Cas.
Co., 150 F.3d at 251 (treating a motion as nondispositive
because it “did not dispose of the lawsuit or a claim”).
8
1.
A district court may refer a nondispositive motion to a
magistrate judge “to hear and determine,” under subparagraph
(A) of § 636(b)(1). 28 U.S.C. § 636(b)(1)(A).1 Following a
magistrate judge’s issuance of an order on a nondispositive
matter, the parties may serve and file objections to the order
within 14 days of being served with a copy of the order. Fed.
R. Civ. P. 72(a). If a party objects to a magistrate judge’s
order regarding a nondispositive matter, the district court
“must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
law.” Id.; 28 U.S.C. § 636(b)(1)(A). This standard requires
the District Court to review findings of fact for clear error and
1
Subparagraph (A) provides, in pertinent part:
[A] judge may designate a magistrate judge to
hear and determine any pretrial matter pending
before the court, except a motion for injunctive
relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an
indictment or information made by the
defendant, to suppress evidence in a criminal
case, to dismiss or to permit maintenance of a
class action, to dismiss for failure to state a
claim upon which relief can be granted, and to
involuntarily dismiss an action.
28 U.S.C. § 636(b)(1)(A).
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to review matters of law de novo. Haines v. Liggett Grp. Inc.,
975 F.2d 81, 91 (3d Cir. 1992).
If no party objects to the magistrate judge’s order
regarding a nondispositive matter, the magistrate judge’s
order becomes binding “unless the district court takes some
action to overrule it.” See United Steelworkers of Am. v. N.J.
Zinc Co., 828 F.2d 1001, 1005 (3d Cir. 1987). “[A] party’s
failure to object to a magistrate’s ruling waives the party’s
objection.” Id. at 1006.
2.
Under subparagraph (B), a district court may refer a
dispositive motion to a magistrate judge “to conduct hearings,
including evidentiary hearings, and to submit to a judge of the
court proposed findings of fact and recommendations for the
disposition.” 28 U.S.C. § 636(b)(1)(B).2 The product of a
2
Subparagraph (B) provides:
[A] judge may also designate a magistrate judge
to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court
proposed findings of fact and recommendations
for the disposition, by a judge of the court, of
any motion excepted in subparagraph (A), of
applications for posttrial relief made by
individuals convicted of criminal offenses and
of prisoner petitions challenging conditions of
confinement.
28 U.S.C. § 636(b)(1)(B) (footnote omitted).
10
magistrate judge, following a referral of a dispositive matter,
is often called a “report and recommendation.” Parties “may
serve and file specific written objections to the proposed
findings and recommendations” within 14 days of being
served with a copy of the magistrate judge’s report and
recommendation. Fed. R. Civ. P. 72(b)(2). If a party objects
timely to a magistrate judge’s report and recommendation, the
district court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3). If a party does
not object timely to a magistrate judge’s report and
recommendation, the party may lose its right to de novo
review by the district court. Nara v. Frank, 488 F.3d 187, 194
(3d Cir. 2007) (citing Henderson v. Carlson, 812 F.2d 874,
878–79 (3d Cir. 1987)). However, we have held that because
a district court must take some action for a report and
recommendation to become a final order and because “[t]he
authority and the responsibility to make an informed, final
determination . . . remains with the judge,” Mathews v.
Weber, 423 U.S. 261, 271 (1976), even absent objections to
the report and recommendation, a district court should “afford
some level of review to dispositive legal issues raised by the
report,” Henderson, 812 F.2d at 878. We have described this
level of review as “reasoned consideration.” Id. If a party
fails to object timely to the magistrate judge’s report and
recommendation, we generally review the district court’s
order for plain error.3 Brightwell v. Lehman, 637 F.3d 187,
3
We have observed that “plain error review is so
disadvantageous to the losing party that magistrate judges
would be well advised to caution litigants that they ‘must
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193 (3d Cir. 2011); Nara, 488 F.3d at 194. But see Leyva v.
Williams, 504 F.3d 357, 363–64 (3d Cir. 2007) (applying de
novo appellate review when a pro se litigant did not timely
object to a magistrate judge’s report and recommendation and
the magistrate judge did not “warn[] that [the litigant’s]
failure to object to the Magistrate Judge’s report would result
in forfeiture of his rights”); Henderson, 812 F.2d at 878 n.4
(“[W]hen the district court elects to exercise its power to
review a magistrate’s report de novo, a party’s previous
failure to object becomes irrelevant.”).
B.
We now turn to the facts of our case. As noted, the
EEOC raises two interesting issues on appeal, one related to
the exhaustion of administrative remedies and the second
related to the disclosure of disciplinary and personnel records
of a non-charging party to a charging party. We will not,
however, reach the substance of either issue because the
District Court erroneously treated the motion to enforce as a
nondispositive matter, as opposed to a dispositive matter,
contrary to our holding in Frazier. In Frazier, we held that
because a proceeding to enforce an administrative subpoena
“is over regardless of which way the court rules,” a motion to
enforce an administrative subpoena is a dispositive motion.
966 F.2d at 817–18. Accordingly, any assignment of the
seek review by the district court by filing [objections] within
[14] days of the date of the [Report and Recommendation]
with the Clerk of the district court and that failure to do so
will waive the right to appeal.’” Brightwell v. Lehman, 637
F.3d 187, 193 n.7 (3d Cir. 2011) (alterations in original)
(quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983)).
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motion by the District Court is governed by subparagraph
(B), which requires the Magistrate Judge “to submit to a
judge of the court proposed findings of fact and
recommendations for the disposition.” 28 U.S.C. § 636
(b)(1)(B). Had the motion been so assigned, the parties could
have objected to the report and recommendation, in which
case the District Court would have reviewed their objections
de novo, or they could have been silent as to objections, in
which case the District Court would have “give[n] some
reasoned consideration to the magistrate’s report before
adopting it as the decision of the court.” Henderson, 812 F.2d
at 878.4
Here, the District Court’s erroneous categorization of
the motion is compounded by the fact that the EEOC raised
the disclosure issue, but not the exhaustion issue, to the
District Court.5 As a result, the District Court, proceeding as
4
The District Court docket does not indicate whether the
motion to enforce was referred to the Magistrate Judge under
§ 636(b)(1)(A) or (B). However, the Magistrate Judge styled
her ruling as an order, not a report and recommendation, and
did not warn the parties about the consequences of failing to
object. The order also directed the Clerk of the Court to
“mark this case as closed,” App. 14, and the Clerk of Court
thereafter terminated the case.
5
The EEOC raised the exhaustion issue to the Magistrate
Judge and to our Court, but it did not raise the issue to the
District Court by objecting to the Magistrate Judge’s order.
In contrast, the EEOC raised the disclosure issue to the
Magistrate Judge, to the District Court (via objection to the
Magistrate Judge’s order), and to our Court.
13
if the motion had been referred to the Magistrate Judge as
nondispositive under subparagraph (A) of the Act, applied the
clearly erroneous or contrary to law standard to the objected-
to disclosure issue and apparently did not review the
unobjected-to exhaustion issue at all.
Because the District Court did not review the
exhaustion issue, we will not consider it on appeal. The
District Court was obligated under Henderson, 812 F.2d at
878, to review this issue even though it was not raised by the
EEOC on appeal from the Magistrate Judge’s order. In
addition, we will not reach the disclosure issue because this
issue will only be live if the District Court first concludes that
Long Branch was not precluded from raising its defenses to
the judicial enforcement of the subpoena. In light of the fact
that we do not know how the District Court will rule on the
exhaustion issue, we will not review the disclosure issue at
this juncture.6
6
While we do not definitively resolve the disclosure or
exhaustion issues, we nevertheless will correct an
unambiguous error of law in the framework employed by the
District Court that has been briefed in this appeal and that, as
a pure legal issue, would have been reviewed de novo
regardless of the treatment of the enforcement motion as
dispositive or nondispositive.
We believe that both the District Judge and Magistrate
Judge misread the Supreme Court’s opinion in Associated
Dry Goods as holding that a charging employee may not see
investigative information obtained by the EEOC from other
employees’ files. To the contrary, the Court in Associated
Dry Goods held that an employee filing a charge with the
EEOC is not a member of the “public” to whom disclosure is
14
Accordingly, we will vacate the order of the District
Court and remand. The District Court may consider the
motion to enforce in the first instance or it may treat the
Magistrate Judge’s order as a report and recommendation and
allow the parties the opportunity to object. See Mitchell v.
Valenzuela, 791 F.3d 1166, 1174 (9th Cir. 2015) (remanding
to the district court to “undertake . . . de novo review as to
whether [a stay and abeyance] was warranted at the time of
the magistrate judge’s order” and allowing the court to
“consider the magistrate judge’s order on the stay as a report
and recommendation, in which case the court should afford
the parties an opportunity to lodge objections”); Flam v.
Flam, 788 F.3d 1043, 1048 (9th Cir. 2015) (remanding to the
district court to consider a motion to remand in the first
prohibited. See Assoc. Dry Goods, 449 U.S. at 600–03. The
limiting language upon which the District and Magistrate
Judges relied refers to a situation in which multiple charging
parties — such as multiple aggrieved employees — wish to
obtain disclosure of evidence produced in each other’s cases,
not in their own. See id. at 603 (explaining that a charging
party is not entitled to “know the content of any other
employee’s charge,” such as when “other charging parties . . .
have brought claims against the same employer” (emphasis
added)).
Accordingly, should the District Court reach the
disclosure issue on remand, it should both reconsider its
reliance on Associated Dry Goods and, in determining
whether limitations on disclosure are warranted, should
utilize the framework for confidentiality orders that we
articulated in EEOC v. Kronos, Inc., 620 F.3d 287 (3d Cir.
2010).
15
instance or to refer the motion to a magistrate judge for a
report and recommendation).
IV.
For the reasons set forth above, we will vacate the
order of the District Court and remand for proceedings
consistent with this opinion.
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