The U.S. Court of Appeals for the District of Columbia Circuit dismissed the EEOC’s and OMB’s appeal of the U.S. District Court for the District of Columbia’s Order reinstating the collection of EEO-1 Component 2 race and gender “hours worked” and “pay data.” The dismissal followed agreement from all of the parties that the appeal was moot and no longer necessary. Judge Tanya S. Chutkan’s Order in the U.S. District (trial) Court for the District of Columbia had closed the EEOC’s collection of Component 2 data from employers on February 10, 2020, and the EEOC and OMB had completed Judge Chutkan’s ruling which was at issue on appeal. Judge Chutkan’s Order had revived, you will recall, the EEOC’s on-again off-again efforts to collect the controversial EEO-1 Component 2 “hours worked” and “pay data” before the U.S. Court of Appeals for the District of Columbia Circuit could issue a ruling on the government’s appeal of Judge Chutkan’s Order requiring the EEOC to collect EEO-1 Survey Component 2 data.

NOTE: OMB’s/EEOC’s appeal was doomed from the start to be mooted since the EEOC and OMB neither sought early review of Judge Chutkan’s Order nor sought to enjoin her Order, pending appeal. The lack of an injunction pending appeal thus forced the EEOC to seek to collect Component 2 “hours worked” and “pay data” from covered Title VII employers even while OMB and EEOC appealed. Of course, everyone knew that the DC Circuit could not possibly hear OMB’s appeal before the Component 2 collection went forward and thereafter concluded.

While most casual observers of the appeal saw it as futile and as ill-fated as Don Quixote “tilting at windmills,” the appeal was actually a very sophisticated appellate procedural maneuver designed to unburden and rid the federal Executive Branch of Judge Chutkan’s over-reaching and otherwise precedential Orders in the Component 2 litigation. Under an obscure appellate “mootness” rule known as the “Munsingwear doctrine,” lower federal court orders which are the subject of legal challenge but which cannot be heard on appeal because the controversy spawning the appeal became moot (as here) and thus thwart the appellate court’s ability to resolve the outstanding legal issue, cause the lower court orders at issue on appeal to be dismissed and to NOT serve as precedential or binding in future cases involving the same issue(s).

So, in appealing the Component 2 case, OMB was preserving its opportunity to neutralize the  theories of judicial activism Judge Chutkan relied upon to order the EEOC around as though she were the Chair of the Commission. So, now the chess piece has moved back to Judge Chutkan to make her next move. Let’s watch now to see how Judge Chutkan seeks to lightly tip-toe around the “Munsingwear doctrine” to try to maintain the relevancy of the legal theories underlying her sweeping control of a federal Executive Branch agency she ushered in via the Component 2 litigation. The game is afoot!

(To illustrate the legal power of the Munsingwear doctrine, John Fox recalls that as a young lawyer in Washington D.C. he was representing the Indian Law Resource Center (ILRC), a non-profit public interest group representing the rights of the indigenous people of the world, and the Elders of the Hopi Tribe. John had sued the U.S. Department of the Interior under the federal Freedom of Information Act and won a far-reaching Order, which opened all federal agencies to have to disclose a vein of federal contract documents no agency wished to produce. When the U.S. Department of Justice appealed to the U.S. Court of Appeals for the District of Columbia Circuit on behalf of the Department of the Interior, John was even happier since he felt sure his victory below would be cemented together even more strongly by an appellate 3-Judge panel presided over by Judge Ruth Bader Ginzburg (before her elevation to the U.S. Supreme Court). Because the government had lost at the trial court level, it got to argue first to the Court of Appeals. To John’s astonishment, the three lawyers from the Civil Appellate Division of the U.S. Department of Justice stood up and reported that under orders from the Assistant Attorney General of the United States in charge of the Civil Division that she had that morning ordered them to drop the appeal and provide the documents the ILRC and the Hopi Elders had requested and had won, below, (and, oh, to pay Mr. Fox’s law firm’s attorney’s fees and costs).

But not so fast, John took the podium and asked the panel to Not allow the Justice Department to erase his victory below, even while giving his clients all the documents they had requested and which the U.S. Department of Interior had denied access, but to also uphold the legal precedent from U.S. District Court Judge Gerhardt Gesell (trial Judge) for use in future FOIA cases.

Looking down upon him from her high bench above him, the very brilliant Judge Ginzburg calmly remarked something to the effect that, “You know that will not be possible now, don’t you Mr. Fox, under the Munsingwear doctrine, since we in this Court have not had a chance to hear the government’s side of this issue. Now that the Department of the Interior through the Justice Department has dropped its appeal of Judge Gesell’s Order, and you have now won this case, this panel will remand the case to Judge Gesell. Judge Gesell will have to dismiss all of his orders in your case, of course. And while they were very interesting and important legal issues, they will not serve as binding precedent on the United States Courts for the District of Columbia. That will require a fresh case, a new decision, and a new appeal. So, enjoy your victory, Mr. Fox, but you are not going to get the legal precedent in this case you had hoped this Court might order were you to also prevail here. Thank you for your appearance here today Mr. Fox. This case is dismissed.”

So, John held the wining legal precedent in his hand for a brief and fleeting moment before those clever lawyers at the Justice Department snatched it away by falling on their swords and letting him win the battle, but not the war. Munsingwear doctrine. Vacatur. Moot appeals erase the lower court legal orders because it would be unfair to let them stand without appellate review. John’s clients were delighted to take the win, and John’s law firm was delighted to donate all of the fees and costs it recovered for John’s time to the Indian Law Resource Center to continue their pioneering work on behalf of indigenous peoples. But the legal issues before the court lived on to be fought afresh on another day, in other cases, by other lawyers.

The National Women’s Law Center (“NWLC”) and the Labor Council for Latin American Advancement (“LCLAA”) had brought the Component 2 lawsuit in 2017 against the EEOC and the OMB for blocking the Obama EEOC’s decision to collect Component 2 data.  Following Judge Chutkan’s rulings for the NWLC and ordering the EEOC to collect two years of Component 2 data from employers, the EEOC undertook a Component 2 data collection between July 2019 and February 2020. During that time, more than 89% of all employers submitted Component “hours worked” and “pay data” to the EEOC.  Fortunately for employers, the Trump EEOC had already reported it would not continue to require covered employers to report Component 2 hours worked and pay data for years 2021 and beyond following Judge Chutkan’s Order. (Judge Chutkan’s Order had required the EEOC to collect two years of “hours worked” and “pay data”–which eventually turned out to be FY2018 and FY2019 data).

As a result of OMB’s/EEOC’s decision to deem its appeal of the Component 2 collection Order moot, the U.S. Court of Appeals for the District of Columbia will now send the case back to Judge Chutkan’s courtroom on remand. The Court of Appeals’ remand Order will undoubtedly ask Judge Chutkan to determine whether she should vacate her prior Orders in this case given the government’s recent completion of the “hours worked” and “pay data” collection Judge Chutkan had originally ordered the EEOC to pursue and before the pending appeal could decide the matter.

If so, we anticipate that Judge Chutkan will end the pending matter in the federal Courts and bring this 2018 and 2019 “hours worked” and “pay data” collection issue to a close. However, the issue of the federal government collecting, analyzing, and releasing employer pay data continues to be a simmering controversy always ready to burst to the surface like hot lava underneath a shallow volcano.  Should a Democrat occupy The White House on January 20, 2021, employers may expect the EEOC to eventually become Democrat controlled and to revive the pay data collection controversy. If President Trump retains the Presidency, employers may expect continuing efforts by certain women’s groups to try to force analysis and release of the collected pay data. Go long on popcorn: this political drama is just in the First Act so far….

John C. Fox
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