STANDARD OF REVIEW The District Court's decision to deny enforcement of part of the administrative subpoena will be reversed only if the panel finds that that court abused its discretion by so ruling. N.L.R.B. v. G.H.R.Energy Corp., 707 F.2d 110, 112 (5th Cir. 1982). DISCUSSION
We must affirm a district court's decision to enforce or quash a Board's subpoena unless we find that the district court abused its discretion. N.L.R.B. v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982) (citing, e.g., N.L.R.B. v. Friedman, 352 F.2d 545, 574 (3d Cir. 1965)). An abuse of discretion arises 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."
Under this standard of review, we will reverse the district court's ruling "only in the most extraordinary of circumstances." Id. (quoting NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982)). A party asserting privilege has the burden of demonstrating its applicability.
Administrative subpoenas are subject only to limited review. See, e.g., NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982) (interpreting a statute granting subpoena power identical to that of the EEOC). Upon petitioning for enforcement of an administrative subpoena, the issuing agency must make a threshold showing that the subpoena is within the agency's authority, that the agency has satisfied statutory requirements of due process, and that the information' sought is relevant and material to the investigation.
Four factors are considered to determine whether two distinct business entities are to be treated as a single employer for purposes of the National Labor Relations Act: (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control. Radio Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965); NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982); Penntech Papers, Inc. v. NLRB, supra, 706 F.2d at 25; Mastell Trailer Corp. v. NLRB, 682 F.2d 753, 754 (8th Cir. 1982). No one of these factors is controlling nor need all criteria be present; single employer status is a factual question that ultimately depends upon all the circumstances of the individual case.
This approach comports with the standard employed by the majority of the circuits. See, e.g., FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir. 1995); In re McVane, 44 F.3d 1127, 1135 (2d Cir. 1995); Reich v. National Eng'g Contracting Co., 13 F.3d 93, 98 (4th Cir. 1993); Linde Thomson Langworthy Kohn Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1516 (D.C. Cir. 1993) (citing FTC v. Lonning, 539 F.2d 202, 210 n. 14 (D.C. Cir. 1976)); United States v. Medlin, 986 F.2d 463, 466 (11th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 347 (1993); NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982); EEOC v. Packard Elec. Div., 569 F.2d 315, 317-18 (5th Cir. 1978). But see Reich v. Montana Sulphur Chem. Co., 32 F.3d 440, 443 (9th Cir. 1994) ("We review de novo the district court's decision regarding enforcement of an agency subpoena.") (citing EPA v. Alyeska Pipeline Serv. Co., 836 F.2d 443, 445-46 (9th Cir. 1988)), cert. denied, ___ U.S. ___, 115 S.Ct. 1355, (1995).
I concur in the Court's opinion and write separately to consider the standard of review applicable to appellate consideration of a district court's determination of the relevance of information sought by an administrative subpoena. Preliminarily I note that with respect to review of the ultimate decision of a district court whether to enforce an administrative subpoena, it is generally said that the standard for appellate review is abuse of discretion. See, e.g., Ratliff v. Davis Polk Wardwell 354 F.3d 165, 168 (2d Cir. 2003); FTC v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002); FDIC v. Wentz, 55 F.3d 905, 908 (3d Cir. 1995); NLRB v. Carolina Food Processors, 81 F.3d 507, 510 (4th Cir. 1996) (quoting NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982)). A Sixth Circuit opinion has said that the appellate task is "to weigh the likely relevance of the requested material to the investigation against the burden to Ford of producing the material."
The district court should enforce the Board's subpoena if the information sought is relevant to an investigation being conducted by the Board and is described with sufficient particularity. See NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982); accord EEOC v. City of Norfolk Police Dep't, 45 F.3d 80, 82 (4th Cir. 1995) (noting that district court's review of administrative subpoena is limited to determining whether the agency is authorized to conduct the investigation, whether the agency "has complied with statutory requirements of due process," and whether the information sought is relevant). We, in turn, review the district court's decision to enforce the subpoena for abuse of discretion; we may reverse the district court's enforcement order "only in the most extraordinary of circumstances." G.H.R. Energy Corp., 707 F.2d at 113 (footnote omitted).
Because agency subpoena power is essentially a discovery tool, our review is limited to abuses of trial court discretion. Iowa Civil Rights Comm'n v. City of Des Moines, 313 N.W.2d 491, 497 (Iowa 1981); see also NLRB v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982) (district court's enforcement order to be affirmed unless discretion abused). That does not mean, however, that the court's discretion is unlimited. Enforcement is the rule, not the exception, so long as the four-factor test we adopted in Roadway is met.
B. A subpoena enforcement order is reviewed for abuse of discretion. E.g., N.L.R.B. v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982). "[I]t is settled that the requirements for judicial enforcement of an administrative subpoena are minimal."