APPEAL,CLOSED,TYPE−C
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02458−TSC

NATIONAL WOMEN'S LAW CENTER et al v. OFFICE OF MANAGEMENT AND BUDGET et al Assigned to: Judge Tanya S. Chutkan Case in other court: 19−05130 Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 11/15/2017 Date Terminated: 04/14/2020 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

NATIONAL WOMEN'S LAW CENTER

represented by Jeffrey B. Dubner DEMOCRACY FORWARD FOUNDATION 1333 H Street NW Washington, DC 20005 (202) 448−9090 Email: jdubner@democracyforward.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Emily J. Martin NATIONAL WOMEN'S LAW CENTER 11 Dupont Circle #800 Washington, DC 20036 202−588−5180 Email: emartin@nwlc.org ATTORNEY TO BE NOTICED

Javier M. Guzman DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: jguzman@democracyforward.org TERMINATED: 01/06/2020

Maya Raghu NATIONAL WOMEN'S LAW CENTER 11 Dupont Circle, NW Suite 800 Washington, DC 20036 (202) 588−5180 Fax: (202) 588−5185 Email: mraghu@nwlc.org ATTORNEY TO BE NOTICED

Robin Frances Thurston DEMOCRACY FORWARD FOUNDATION P.O. Box 34553 Washington, DC 20043 (202) 448−9090 Email: rthurston@democracyforward.org ATTORNEY TO BE NOTICED

Sunu P. Chandy NATIONAL WOMEN'S LAW CENTER

Plaintiff LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT
V. Defendant OFFICE OF MANAGEMENT AND BUDGET

11 Dupont Circle Suite 800 Washington, DC 20036 202−588−5180 Email: schandy@nwlc.org ATTORNEY TO BE NOTICED
represented by Jeffrey B. Dubner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily J. Martin (See above for address) ATTORNEY TO BE NOTICED
Javier M. Guzman (See above for address) TERMINATED: 01/06/2020
Maya Raghu (See above for address) ATTORNEY TO BE NOTICED
Robin Frances Thurston (See above for address) ATTORNEY TO BE NOTICED
Sunu P. Chandy (See above for address) ATTORNEY TO BE NOTICED
represented by Rachael Lynn Westmoreland U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L St, NW Washington, DC 20005 202−514−1280 Email: rachael.westmoreland@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 450 Golden Gate Ave Suite 7−5395 San Francisco, CA 94102 (415) 436−6635 Fax: (415) 436−6632 Email: stuart.j.robinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005

Defendant JOHN MICHAEL MULVANEY Director, Office of Management and Budget
Defendant NEOMI RAO Administrator, Office of Information and Regulatory Affairs
Defendant U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Defendant VICTORIA A. LIPNIC Acting Chair, U.S. Equal Employment Opportunity Commission

(202) 305−8628 Fax: (202) 616−8460 Email: tamra.moore@usdoj.gov TERMINATED: 09/27/2019
represented by Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore (See above for address) TERMINATED: 09/27/2019
represented by Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore (See above for address) TERMINATED: 09/27/2019
represented by Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore (See above for address) TERMINATED: 09/27/2019
represented by Rachael Lynn Westmoreland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tamra Tyree Moore

Movant DIRECTEMPLOYERS ASSOCIATION, INC.
Movant AMERICAN SOCIETY OF EMPLOYERS

(See above for address) TERMINATED: 09/27/2019
represented by Edward Lee Isler ISLER DARE, P.C. 1945 Old Gallows Road Suite 650 Vienna, VA 22182 (703) 748−2690 Fax: (703) 748−2695 Email: eisler@islerdare.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Madalyn K. Doucet HUNTON ANDREWS KURTH LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 (202) 955−1577 Email: MDoucet@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay J. Wang FOX, WANG & MORGAN, P.C. 315 University Avenue Los Gatos, CA 95030 408−844−2350 Fax: 408−844−2351 PRO HAC VICE ATTORNEY TO BE NOTICED
John C. Fox FOX, WANG & MORGAN, P.C. 315 University Avenue Los Gatos, CA 95030 408−844−2350 Fax: 408−844−2351 PRO HAC VICE ATTORNEY TO BE NOTICED
Micah Ephram Ticatch ISLER DARE, P.C. 1945 Old Gallows Road Suite 650 Vienna, VA 22182 (703) 748−2690 Fax: (703) 748−2695 Email: mticatch@islerdare.com ATTORNEY TO BE NOTICED
represented by Edward Lee Isler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay J. Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John C. Fox

Movant CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA 1616 H Street NW Washington, DC 20062 202−463−5337 Chamber of Commerce of the United States of America, et al.
Movant HR POLICY ASSOCIATION
Movant ASSOCIATED BUILDERS AND CONTRACTORS

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Micah Ephram Ticatch (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber SEYFARTH SHAW, LLP 975 F Street, NW Washington, DC 20004 (202) 463−2400 Fax: (202) 828−5393 Email: llorber@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annette Tyman SEYFARTH SHAW, LLP 233 S. Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5943 Fax: 312−460−7000 Email: atyman@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
Camille A. Olson SEYFARTH SHAW, LLP 233 S. Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5831 Fax: 312−460−7000 Email: colson@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
Richard B. Lapp SEYFARTH SHAW, LLP 233 S. Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Fax: (312) 460−7000 Email: rlapp@seyfarth.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant ASSOCIATED GENERAL CONTRACTORS OF AMERICA
Movant CENTER FOR WORKPLACE COMPLIANCE
Movant INSTITUTE FOR WORKPLACE EQUALITY
Movant NATIONAL ASSOCIATION OF MANUFACTURERS
Movant NATIONAL FEDERATION OF INDEPENDENT BUSINESS
Movant NATIONAL RETAIL FEDERATION
Movant RESTAURANT LAW CENTER
Movant RETAIL LITIGATION CENTER, INC.,
Movant SOCIETY FOR HUMAN RESOURCE MANAGEMENT

represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence Z. Lorber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/15/2017

# Docket Text
1 COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090−5206576) filed by NATIONAL WOMEN'S LAW CENTER, LABOR

11/15/2017 11/19/2017 11/27/2017
11/28/2017 11/29/2017
11/29/2017 11/29/2017
12/04/2017 01/05/2018 01/08/2018 01/25/2018 01/29/2018 01/30/2018

COUNCIL FOR LATIN AMERICAN ADVANCEMENT. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(Guzman, Javier) (Entered: 11/15/2017)
Case Assigned to Judge Tanya S. Chutkan. (md) (Entered: 11/19/2017)
2 SUMMONS (7) Issued Electronically as to VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 11/19/2017)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Robin F. Thurston, :Firm− Democracy Forward Foundation, :Address− P.O. Box 34553, Washington, DC 20043. Phone No. − (202) 448−9090. Filing fee $ 100, receipt number 0090−5221881. Fee Status: Fee Paid. by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Guzman, Javier) (Entered: 11/27/2017)
4 CERTIFICATE OF SERVICE by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER . (Attachments: # 1 Declaration)(Guzman, Javier) (Entered: 11/28/2017)
NOTICE OF ERROR re 4 Certificate of Service; emailed to jguzman@democracyforward.org, cc'd 1 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect event used, 2. Please refile document, 3. Incorrect event used; Refile using appropriate events on the Service of Process menu as to the U.S. Attorney, U.S. Attorney General, and Federal Defendants. (znmw, ) (Entered: 11/29/2017)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/27/2017. Answer due for ALL FEDERAL DEFENDANTS by 1/26/2018. (Attachments: # 1 Declaration)(Guzman, Javier) (Entered: 11/29/2017)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/27/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. VICTORIA A. LIPNIC served on 11/24/2017; JOHN MICHAEL MULVANEY served on 11/27/2017; OFFICE OF MANAGEMENT AND BUDGET served on 11/27/2017; NEOMI RAO served on 11/27/2017; U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION served on 11/24/2017. (See Docket Entry 5 to view document). (znmw) (Entered: 11/30/2017)
MINUTE ORDER: Granting 3 Motion for Leave to Appear Pro Hac Vice. Attorney Robin F. Thurston is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 12/4/17. (DJS) (Entered: 12/04/2017)
7 NOTICE of Appearance by Jeffery B. Dubner on behalf of LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Guzman, Javier) Modified attorney on 1/8/2018 (znmw). (Entered: 01/05/2018)
NOTICE OF ERROR re 7 Notice of Appearance; emailed to jguzman@democracyforward.org, cc'd 4 associated attorneys −− The PDF file you docketed contained errors: 1. In the future, appearing attorney shall file own appearance using his assigned ECF login; Do not refile. (znmw, ) (Entered: 01/08/2018)
8 MOTION for Extension of Time to Respond to Complaint by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 01/25/2018)
9 RESPONSE re 8 MOTION for Extension of Time to Respond to Complaint filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 01/29/2018)
10 REPLY to opposition to motion re 8 MOTION for Extension of Time to Respond to Complaint filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY,

01/30/2018 01/31/2018 02/13/2018
02/21/2018 02/21/2018 02/22/2018 02/22/2018 02/27/2018 03/02/2018
03/06/2018 03/07/2018 03/09/2018
04/19/2018 05/03/2018

OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 01/30/2018)
MINUTE ORDER: Granting in part and denying in part 8 Motion for Extension of Time to File Answer. Defendant shall answer or otherwise respond to the complaint by 2/13/18. Signed by Judge Tanya S. Chutkan on 1/30/18. (DJS) (Entered: 01/30/2018)
Set/Reset Deadlines: Defendant shall answer or otherwise respond to the complaint by 2/13/18. (jth) (Entered: 01/31/2018)
11 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Memorandum in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint, # 2 Exhibit A, # 3 Text of Proposed Order)(Moore, Tamra) (Entered: 02/13/2018)
12 NOTICE of Appearance by Maya Raghu on behalf of LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Raghu, Maya) (Entered: 02/21/2018)
13 NOTICE of Appearance by Emily J. Martin on behalf of LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Martin, Emily) (Entered: 02/21/2018)
14 NOTICE of Appearance by Rachael Lynn Westmoreland on behalf of All Defendants (Westmoreland, Rachael) (Entered: 02/22/2018)
15 NOTICE of Appearance by Sunu P. Chandy on behalf of LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Chandy, Sunu) (Entered: 02/22/2018)
16 Memorandum in opposition to re 11 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 02/27/2018)
17 Consent MOTION for Extension of Time to File Response/Reply as to 11 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 03/02/2018)
MINUTE ORDER: Granting 17 Consent Motion for Extension of Time to File Response/Reply. Defendant's reply due March 9, 2018. Signed by Judge Tanya S. Chutkan on 3/6/18. (DJS) (Entered: 03/06/2018)
Set/Reset Deadlines: Defendant reply due by 3/9/2018. (tb) (Entered: 03/07/2018)
18 REPLY to opposition to motion re 11 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 03/09/2018)
19 MOTION to Compel Compliance with Local Civil Rule 7(n) by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 04/19/2018)
20 Memorandum in opposition to re 19 MOTION to Compel Compliance with Local Civil Rule 7(n) filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 05/03/2018)

05/10/2018 09/13/2018 10/31/2018 11/14/2018 11/15/2018 11/20/2018 12/04/2018 12/04/2018
12/06/2018 12/07/2018 12/20/2018 12/20/2018

21 REPLY to opposition to motion re 19 MOTION to Compel Compliance with Local Civil Rule 7(n) filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Dubner, Jeffrey) (Entered: 05/10/2018)
MINUTE ORDER: Denying without prejudice 19 Motion to Compel compliance with Local Rule 7(n). Given that there is a pending Motion to Dismiss, this case is not yet in a posture where compliance with Rule 7(n) is necessary. Signed by Judge Tanya S. Chutkan on 9/13/18. (DJS) (Entered: 09/13/2018)
22 MOTION for Summary Judgment by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Memorandum in Support, # 2 Affidavit Link Decl., # 3 Affidavit Johnson Decl., # 4 Affidavit Sanchez Decl., # 5 Text of Proposed Order)(Thurston, Robin) (Entered: 10/31/2018)
23 MOTION to Stay re 22 MOTION for Summary Judgment by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Westmoreland, Rachael) (Entered: 11/14/2018)
MINUTE ORDER: The Government's 23 Motion to Stay is GRANTED in part and DENIED in part. The Government shall compile the Administrative Record and respond to Plaintiffs' 22 Motion for Summary Judgment by December 6, 2018. Signed by Judge Tanya S. Chutkan on 11/15/2018. (lctsc3) (Entered: 11/15/2018)
Set/Reset Deadlines: Response due by 12/6/2018. (tb) (Entered: 11/20/2018)
24 Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 12/04/2018)
MINUTE ORDER: Defendants' 24 Consent Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment is GRANTED. Defendants shall file their Opposition to Plaintiffs' Motion for Summary Judgment and Cross−Motion for Summary Judgment by December 20, 2018. Plaintiffs shall file their Reply in Support of Plaintiffs' Motion for Summary Judgment and Opposition to Defendants' Cross−Motion for Summary Judgment by January 14, 2019. Defendants shall file their Reply in Support of Defendants' Cross−Motion for Summary Judgment by January 22, 2019. Signed by Judge Tanya S. Chutkan on 12/4/2018.(lctsc3) (Entered: 12/04/2018)
25 ADMINISTRATIVE RECORD List of Certified Contents by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Exhibit A)(Westmoreland, Rachael) (Entered: 12/06/2018)
Set/Reset Deadlines: Cross Motion due by 12/20/2018. Response to Cross Motion due by 1/14/2019. Reply to Cross Motion due by 1/22/2019. Response to Motion for Summary Judgment due by 12/20/2018. Reply to Motion for Summary Judgment due by 1/14/2019. (tb) (Entered: 12/07/2018)
26 Consent MOTION for Extension of Time to File Response/Reply as to 22 MOTION for Summary Judgment by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Text of Proposed Order)(Westmoreland, Rachael) (Entered: 12/20/2018)
MINUTE ORDER: Granting Consent Motion 26 to Extend Deadlines. Defendants' Opposition to Plaintiffs' Summary Judgment Motion and Cross−Motion for Summary Judgment due December 21, 2018. Plaintiffs' Reply in Support of their Motion for Summary Judgment and in Opposition to Defendants' Cross−Motion for Summary Judgment due January 15, 2019. Defendants' Reply in Support of their Cross−Motion for Summary Judgment due January 22, 2019. Signed by Judge Tanya S. Chutkan on 12/20/18. (DJS) (Entered: 12/20/2018)

12/21/2018 12/21/2018 12/22/2018 01/10/2019 01/15/2019 01/15/2019 01/15/2019 01/15/2019 01/16/2019 01/17/2019
01/18/2019

Set/Reset Deadlines: Cross Motion due by 12/21/2018. Response to Cross Motion due by 1/15/2019. Reply to Cross Motion due by 1/22/2019. Response to Motion for Summary Judgment due by 12/21/2018. Reply to Motion for Summary Judgment due by 1/15/2019. (tb) (Entered: 12/21/2018)
27 MOTION for Summary Judgment by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Moore, Tamra) Modified event title on 12/28/2018 (znmw). (Entered: 12/21/2018)
28 Memorandum in opposition to re 22 MOTION for Summary Judgment filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Moore, Tamra) (Entered: 12/22/2018)
29 MOTION to Stay Defendants' Reply Briefing Deadline in Light of Lapse in Appropriations by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Westmoreland, Rachael) (Entered: 01/10/2019)
30 RESPONSE re 29 MOTION to Stay Defendants' Reply Briefing Deadline in Light of Lapse in Appropriations filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Exhibit A (Order Denying Stay Motion), # 2 Exhibit B (Order Denying Stay Motion))(Thurston, Robin) (Entered: 01/15/2019)
31 REPLY to opposition to motion re 22 MOTION for Summary Judgment and Opposition to Cross−Motion for Summary Judgment filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 01/15/2019)
32 RESPONSE re 27 MOTION for Summary Judgment and Reply in Support of Motion for Summary Judgment (also filed at Dkt. 31) filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 01/15/2019)
33 MOTION to Compel Completion of the Administrative Record by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Affidavit Declaration of Lenora M. Lapidus, # 2 Text of Proposed Order)(Thurston, Robin) (Entered: 01/15/2019)
34 REPLY to opposition to motion re 29 MOTION to Stay Defendants' Reply Briefing Deadline in Light of Lapse in Appropriations filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Westmoreland, Rachael) (Entered: 01/16/2019)
MINUTE ORDER: In as much as Defendants feel compelled to submit a Reply in Support of their Cross−Motion for Summary Judgment to address arguments not made in their Motion for Summary Judgment 27 / Opposition to Plaintiffs' Motion for Summary Judgment 28 , it is ORDERED that the Motion to Stay Defendants' Reply Briefing in Light of Lapse in Appropriations 29 is DENIED. It is further ORDERED that Plaintiffs shall file supplemental briefing by January 18, 2019 addressing the following questions: 1) If the court grants Plaintiffs' Motion to Compel Completion of the Administrative Record 33 , how would such a ruling impact the briefing already completed on the cross−motions for summary judgment?; and 2) If the court grants Plaintiffs' Motion to Compel Completion of the Administrative Record 33 , would Defendants be permitted to comply with the Proposed Order [33−2] considering the lapse in appropriations and representations made by Defendants' counsel? Signed by Judge Tanya S. Chutkan on 01/17/2019. (lctsc3) (Entered: 01/17/2019)
35 RESPONSE TO ORDER OF THE COURT Filing Plaintiffs' Supplemental Brief Responding to Questions Posed by the Court's Janaury 17, 2019 Minute Order by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Exhibit A)(Thurston, Robin) Modified event title on 1/25/2019 (znmw). (Entered: 01/18/2019)

01/22/2019 01/29/2019 02/05/2019 02/05/2019 02/07/2019
02/08/2019 02/08/2019 02/08/2019 02/11/2019
02/15/2019 02/15/2019 02/21/2019 02/22/2019 02/25/2019

36 REPLY re 27 MOTION for Summary Judgment filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 01/22/2019)
37 RESPONSE re 33 MOTION to Compel Completion of the Administrative Record filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 01/29/2019)
38 REPLY to opposition to motion re 33 MOTION to Compel Completion of the Administrative Record filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 02/05/2019)
39 JOINT APPENDIX by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Appendix, # 2 Appendix)(Thurston, Robin) (Entered: 02/05/2019)
40 ORDER: Plaintiffs' Motion to Compel Completion of the Administrative Record 33 is GRANTED in part. By 8:00 p.m. on February 8, 2019 the parties shall file supplemental briefing stating their positions on the court's conducting an in camera review of the disputed e−mails referenced in the Mancini and Lipnic declarations. These pleadings shall be no longer than five pages. See Order for more details. Signed by Judge Tanya S. Chutkan on 2/7/19. (lctsc3) Modified on 2/8/2019 (tb). (Entered: 02/07/2019)
Set/Reset Deadlines: Supplemental Briefing due by 8:00 pm. on 2/8/2019. (tb) (Entered: 02/08/2019)
41 RESPONSE TO ORDER OF THE COURT re 40 Order on Motion to Compel, filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 02/08/2019)
42 RESPONSE TO ORDER OF THE COURT re 40 Order on Motion to Compel, filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 02/08/2019)
MINUTE ORDER: By 3:00 p.m. on February 13, 2019, Defendants shall submit the following documents for an in camera inspection: (1) an April 14, 2017 e−mail between Deputy Administrator Mancini and Acting Chair Lipnic; (2) an April 19, 2017 e−mail between Deputy Administrator Mancini and Acting Chair Lipnic; (3) a July 14, 2017 e−mail between Deputy Administrator Mancini and EEOC Chief of Staff Paretti; and (4) an August 28, 2017 e−mail between Deputy Administrator Mancini and EEOC Chief of Staff Paretti. These documents shall be delivered to the Clerk of the Court in a sealed envelope and labeled "For In Camera Inspection." Signed by Judge Tanya S. Chutkan on 2/11/2019. (lctsc1) (Entered: 02/11/2019)
43 ORDER: The April 14, 2017 e−mails and the July 14, 2017 e−mails shall be added to the administrative record. Defendants shall turn over these e−mails to Plaintiffs by 5:00 p.m. today, February 15, 2019. See Order for more details. Signed by Judge Tanya S. Chutkan on 2/15/2019. (lctsc3) (Entered: 02/15/2019)
Set/Reset Deadlines: Defendants to turn over e−mails to plaintiffs by 5:00 p.m. on 2/15/2019. (tb) (Entered: 02/15/2019)
MINUTE ORDER: By February 25, 2019 the parties shall meet and confer and file an updated Joint Appendix. The e−mails now in the administrative record, ECF No. 43, shall be added as the last entries to the current Joint Appendix, ECF No. 39. Signed by Judge Tanya S. Chutkan on 2/21/2019. (lctsc3). (Entered: 02/21/2019)
Set/Reset Deadlines: Attorney Meet and Confer Conference and file update Joint Appendix due by 2/25/2019. (tb) (Entered: 02/22/2019)
44 JOINT APPENDIX by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Appendix, # 2 Appendix)(Dubner, Jeffrey) Modified on 2/27/2019 (ztd). Modified on

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3/14/2019 (znmw). (Entered: 02/25/2019)
ENTERED IN ERROR.....NOTICE OF ERROR re 44 Joint Appendix; emailed to jdubner@democracyforward.org, cc'd 9 associated attorneys −− The PDF file you docketed contained errors: 1. Please refile document, 2. The document is electronically filed by Jeffrey Dubner and signed by Tamra Moore. The signatures should match. (ztd, ) Modified to enter in error on 3/14/2019; disregard error notice. (znmw). (Entered: 02/26/2019)
45 MEMORANDUM OPINION: Regarding Defendants' Motion to Dismiss 11, Plaintiffs' Motion for Summary Judgment 22, and Defendants' Motion for Summary Judgment 27. Signed by Judge Tanya S. Chutkan on 3/4/2019. (lctsc3) (Entered: 03/04/2019)
46 ORDER denying Defendants' Motion to Dismiss 11 , granting Plaintiffs' Motion for Summary Judgment 22 , and denying Defendants' Motion for Summary Judgment 27 . Signed by Judge Tanya S. Chutkan on 3/4/2018. (lctsc3) (Entered: 03/04/2019)
47 MOTION for Hearing Request for Status Conference by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thurston, Robin) Modified event title on 3/19/2019 (znmw). (Entered: 03/18/2019)
MINUTE ORDER: The court will hold a status conference on March 19, 2019 at 11:30 a.m. Signed by Judge Tanya S. Chutkan on 3/18/2019. (lctsc3) (Entered: 03/18/2019)
Set/Reset Hearings: Status Conference set for 3/19/2019, at 11:30 AM, in Courtroom 9, before Judge Tanya S. Chutkan. (kt) (Entered: 03/18/2019)
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference held on 3/19/2019. Defendants' submissions due by 4/3/2019; Plaintiffs' Response due by 4/8/2019. (Court Reporter: Elizabeth Saint Loth.) (kt) Modified on 3/19/2019 to correct apostrophe typo (kt). (Entered: 03/19/2019)
48 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− John C. Fox, :Firm− Fox, Wang & Morgan P.C., :Address− 315 University Avenue, Los Gatos, CA 95030,. Phone No. − 408−844−2350. Fax No. − 408−844−2351 Filing fee $ 100, receipt number 0090−6031985. Fee Status: Fee Paid. by DirectEmployers Association, Inc. (Attachments: # 1 Declaration Declaration of John C. Fox In Support Of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order Proposed Order Granting Motion for Admission of Attorney Pro Hac Vice)(Doucet, Madalyn) Modified to add address on 4/1/2019 (ztd). (Entered: 04/01/2019)
49 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jay J. Wang, :Firm− Fox, Wang & Morgan P.C., :Address− 315 University Ave., Los Gatos, CA 95030. Phone No. − 408−844−2350. Fax No. − 408−844−2351 Filing fee $ 100, receipt number 0090−6032199. Fee Status: Fee Paid. by DirectEmployers Association, Inc. (Attachments: # 1 Declaration of Jay J. Wang In Support Of Motion for Admission Pro Hac Vice, # 2 Text of Proposed Order Granting Motion for Admission of Attorney Pro Hac Vice)(Doucet, Madalyn) . (Entered: 04/01/2019)
50 MOTION for Leave to File Amici Curiae Brief by DirectEmployers Association, Inc., AMERICAN SOCIETY OF EMPLOYERS (Attachments: # 1 Exhibit Amici Brief, # 2 Exhibit Corporate Disclosure Statement for DirectEmployers Association, Inc., # 3 Exhibit Corporate Disclosure for American Society fo Employers)(Isler, Edward) (Entered: 04/01/2019)
51 NOTICE of Appearance by Edward Lee Isler on behalf of AMERICAN SOCIETY OF EMPLOYERS, DirectEmployers Association, Inc. (Isler, Edward) (Entered: 04/01/2019)
52 NOTICE of Appearance by Micah Ephram Ticatch on behalf of AMERICAN SOCIETY OF EMPLOYERS, DirectEmployers Association, Inc. (Ticatch, Micah) (Entered: 04/01/2019)
53 NOTICE of Proposed Order by AMERICAN SOCIETY OF EMPLOYERS, DirectEmployers Association, Inc. re 50 MOTION for Leave to File Amici Curiae Brief (Isler, Edward) (Entered: 04/01/2019)

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54 NOTICE of Defendants' Submission in Response to the Court's Questions Raised During the March 19, 2019 Status Conference by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION re Status Conference,, Set Deadlines, (Attachments: # 1 Declaration)(Moore, Tamra) (Entered: 04/03/2019)
55 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Camille Olson, :Firm− Seyfarth Shaw LLP, :Address− 233 S. Wacker Drive. Phone No. − 312−460−5000. Fax No. − 312−460−7000 Filing fee $ 100, receipt number 0090−6039997. Fee Status: Fee Paid. by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lorber, Lawrence) (Entered: 04/03/2019)
56 NOTICE of Appearance by Lawrence Z. Lorber on behalf of CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Lorber, Lawrence) (Entered: 04/03/2019)
57 MOTION for Leave to File Amici Curiae Brief by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Amici Brief, # 2 Exhibit Corp Disc Stmt Chamber, # 3 Exhibit Corp Disc Stmt HR Policy, # 4 Exhibit Corp Disc Stmt ABC, # 5 Exhibit Corp Disc Stmt AGC, # 6 Exhibit Corp Disc Stmt CWC, # 7 Exhibit Corp Disc Stmt IWE, # 8 Exhibit Corp Disc Stmt NAM, # 9 Exhibit Corp Disc Stmt NFIB, # 10 Exhibit Corp Disc Stmt NRF, # 11 Exhibit Corp Disc Stmt RLC, # 12 Exhibit Corp Disc Stmt Retail Litigation, # 13 Exhibit Corp Disc Stmt SHRM, # 14 Exhibit Corp Disc Stmt Proposed Order)(Lorber, Lawrence) (Entered: 04/04/2019)
58 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Annette Tyman, :Firm− Seyfarth Shaw LLP, :Address− 233 S. Wacker Drive. Phone No. − 312−460−5000. Fax No. − 312−460−7000 Filing fee $ 100, receipt number 0090−6040013. Fee Status: Fee Paid. by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lorber, Lawrence) (Entered: 04/04/2019)
59 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Richard Lapp, :Firm− Seyfarth Shaw LLP, :Address− 233 S. Wacker Drive. Phone No. − 312−460−5000. Fax No. − 312−460−7000 Filing fee $ 100, receipt number 0090−6040014. Fee Status: Fee Paid. by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lorber, Lawrence) (Entered: 04/04/2019)
60 RESPONSE re 50 MOTION for Leave to File Amici Curiae Brief, 57 MOTION for Leave to File Amici Curiae Brief filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Attachments: # 1 Exhibit A)(Thurston, Robin) (Entered: 04/05/2019)
61 REPLY to opposition to motion re 50 MOTION for Leave to File Amici Curiae Brief filed by AMERICAN SOCIETY OF EMPLOYERS, DIRECTEMPLOYERS ASSOCIATION, INC.. (Isler, Edward) (Entered: 04/08/2019)
62 RESPONSE re 54 Notice (Other), filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Dubner, Jeffrey) (Entered: 04/08/2019)
63 REPLY re 54 Notice (Other), filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Moore, Tamra) (Entered: 04/09/2019)
64 ORDER granting 50 and 57 . The court will hold a Hearing on the parties' Submissions, 54 , 62 and 63 , on April 16, 2019 at 2:00 p.m. See Order for further details and instructions. Signed by Judge Tanya S. Chutkan on 4/11/2019. (lctsc3) (Entered: 04/11/2019)
Set/Reset Hearings: Hearing on submissions ECF Nos. 54, 62 and 63 now set for 4/16/2019 at 02:00 PM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 04/12/2019)

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MINUTE ORDER: Granting 55 58 59 Motions for Leave to Appear Pro Hac Vice. Camille A. Olson, Annette Tyman, and Richard B. Lapp are hereby admitted pro hac vice to appear in this matter on behalf of amici Chamber of Commerce of the United States of America, the HR Policy Association, Associated Builders and Contractors, Associated General Contractors of America, the Center for Workplace Compliance, Institute for Workplace Equality, National Association of Manufacturers, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Retail Litigation Center, Inc., and Society for Human Resources Management. Signed by Judge Tanya S. Chutkan on 4/12/19. (DJS) (Entered: 04/12/2019)
MINUTE ORDER: Granting 49 Motion for Leave to Appear Pro Hac Vice Jay J. Wang is hereby admitted pro hac vice to appear in this matter on behalf of amici DirectEmployers Association, Inc. and the American Society of Employers. Signed by Judge Tanya S. Chutkan on 4/12/19. (DJS) (Entered: 04/12/2019)
65 RESPONSE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION re 64 Order on Motion for Leave to File,,, (Moore, Tamra) Modified text on 4/16/2019 (ztd). (Entered: 04/15/2019)
MINUTE ORDER: By 5:00 p.m. on April 22, 2019, the parties may file written summations on the April 16, 2019 Hearing. If a party chooses to file a summation, it shall include a proposed Order and case law supporting its position. Signed by Judge Tanya S. Chutkan on 4/16/2019. (lctsc3) (Entered: 04/16/2019)
Minute Entry Evidentiary Hearing on the parties' Submissions, 54, 62 and 63 held on 4/16/2019 before Judge Tanya S. Chutkan: Defendant's witness: Samuel Haffer. Arguments heard and taken under advisement. Order to be issued. (Court Reporter Lisa Moreira) (tb) (Entered: 04/17/2019)
66 TRANSCRIPT OF HEARING ON SUBMISSIONS before Judge Tanya S. Chutkan held on April 16, 2019; Page Numbers: 1−103. Date of Issuance:April 17, 2019. Court Reporter/Transcriber Lisa A. Moreira RDR, CRR, Telephone number (202) 354−3187, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from t he court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 5/8/2019. Redacted Transcript Deadline set for 5/18/2019. Release of Transcript Restriction set for 7/16/2019.(Moreira, Lisa) (Entered: 04/17/2019)
67 MOTION for Leave to File Instanter A Summation of the April 16, 2019 Hearing by CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Amici Brief, # 2 Text of Proposed Order Proposed Order)(Olson, Camille) (Entered: 04/22/2019)
68 NOTICE of Post−Hearing Summation by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER (Attachments: # 1 Text of Proposed Order)(Thurston, Robin) (Entered: 04/22/2019)
69 NOTICE of Defendants' Written Summation by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION re Evidentiary Hearing, (Attachments: # 1 Text of Proposed Order, # 2 Text of Alternative Proposed Order, # 3 Declaration, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Moore, Tamra) (Entered: 04/22/2019)

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MINUTE ORDER: The Motion for Leave to File of Amici The Chamber of Commerce of the United States of America, et al., 67 is granted to the extent that it summarizes testimony. Signed by Judge Tanya S. Chutkan on 4/24/2019.(lctsc3) (Entered: 04/24/2019)
MINUTE ORDER: The court will issue its decision orally on April 25, 2019 at 11:00 a.m. Signed by Judge Tanya S. Chutkan on 4/24/2019. (lctsc3) (Entered: 04/24/2019)
Set/Reset Hearings: Oral ruling set for 4/25/2019 at 11:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 04/24/2019)
Minute Entry: Status Conference ( Oral ruling from the bench) held on 4/25/2019 before Judge Tanya S. Chutkan regarding submissions, 54, 62 and 63: Written order forthcoming. (Court Reporter Bryan Wayne) (tb) (Entered: 04/25/2019)
70 TRANSCRIPT OF 4/25/19 ORAL RULING before Judge Tanya S. Chutkan held on April 25, 2019 Page Numbers: 1−24. Date of Issuance: 4/25/19. Court Reporter: Bryan A. Wayne. Transcripts may be ordered by submitting Transcript Order Form at www.dcd.uscourt.gov. For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (PDF, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 5/16/2019. Redacted Transcript Deadline set for 5/26/2019. Release of Transcript Restriction set for 7/24/2019.(Wayne, Bryan) (Entered: 04/25/2019)
71 ORDER following decision announced in court on April 25, 2019. Signed by Judge Tanya S. Chutkan on 4/25/2019. (lctsc3) (Entered: 04/25/2019)
Set/Reset Deadlines: Status Report due by 5/3/2019 and continuing every 21 days thereafter. (tb) (Entered: 04/26/2019)
72 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 45 Memorandum & Opinion, 46 Order on Motion for Summary Judgment,, Order on Motion to Dismiss/Lack of Jurisdiction, 71 Order by VICTORIA A. LIPNIC, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, OFFICE OF MANAGEMENT AND BUDGET, JOHN MICHAEL MULVANEY, NEOMI RAO. Fee Status: No Fee Paid. Parties have been notified. (Ricketts, Jennifer) (Entered: 05/03/2019)
73 NOTICE of Filing of EEOC Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit (EEOC Status Report))(Ricketts, Jennifer) (Entered: 05/03/2019)
74 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 72 Notice of Appeal to DC Circuit Court,. (ztd) (Entered: 05/06/2019)
USCA Case Number 19−5130 for 72 Notice of Appeal to DC Circuit Court, filed by JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEOMI RAO, VICTORIA A. LIPNIC. (ztd) (Entered: 05/08/2019)
75 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Ricketts, Jennifer) (Entered: 05/08/2019)
76 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Wells, Carlotta) (Entered: 05/14/2019)

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MINUTE ORDER: Granting 48 Motion for Leave to Appear Pro Hac Vice. John C. Fox is hereby admitted pro hac vice to appear in this matter on behalf of amici DirectEmployers Association, Inc. and the American Society of Employers. Signed by Judge Tanya S. Chutkan on 5/21/19. (DJS) (Entered: 05/21/2019)
77 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit EEOC Report)(Wells, Carlotta) (Entered: 05/24/2019)
78 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION re 71 Order (Attachments: # 1 Report of Defendant EEOC)(Moore, Tamra) (Entered: 06/14/2019)
79 Consent MOTION to Modify Report Schedule by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Text of Proposed Order)(Moore, Tamra) (Entered: 06/14/2019)
MINUTE ORDER: Defendants' 79 Consent Motion to Modify Report Schedule is granted. Defendants may file the next reports by July 12, 2019, and July 26, 2019, respectively. Signed by Judge Tanya S. Chutkan on 6/14/2019. (lctsc3) (Entered: 06/14/2019)
Set/Reset Deadlines: Reports due by 7/12/2019 and 07/26/19. (tb) (Entered: 06/18/2019)
80 NOTICE of Report of Defendant EEOC by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION re 71 Order (Attachments: # 1 Report of Defendant EEOC)(Moore, Tamra) (Entered: 07/12/2019)
81 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit EEOC Report)(Wells, Carlotta) (Entered: 07/26/2019)
82 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit)(Ricketts, Jennifer) (Entered: 08/16/2019)
83 NOTICE (of Interim Report) by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit Interim EEOC Status Report)(Wells, Carlotta) (Entered: 08/30/2019)
84 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit EEOC Status Report)(Wells, Carlotta) (Entered: 09/06/2019)
85 NOTICE by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Exhibit EEOC Federal Register Notice)(Wells, Carlotta) (Entered: 09/12/2019)
86 NOTICE OF SUBSTITUTION OF COUNSEL by Stuart Justin Robinson on behalf of All Defendants Substituting for attorney Tamra T. Moore (Robinson, Stuart) (Entered: 09/27/2019)
87 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 09/27/2019)

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88 MOTION for Order Determining Completion of Component 2 Data Collection by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Declaration of Samuel C. Haffer, # 2 Text of Proposed Order)(Robinson, Stuart) (Entered: 10/08/2019)
89 RESPONSE re 88 MOTION for Order Determining Completion of Component 2 Data Collection filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 10/22/2019)
90 REPLY to opposition to motion re 88 MOTION for Order Determining Completion of Component 2 Data Collection filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Supplemental Declaration of Samuel C. Haffer)(Robinson, Stuart) (Entered: 10/28/2019)
91 ORDER denying 88 Motion for Order Determining Completion of Component 2 Data Collection. Defendants shall resume filing status reports on November 1, 2019, and every 21 days thereafter until January 31, 2020. The parties shall file a joint status report on February 7, 2020. See order for further details. Signed by Judge Tanya S. Chutkan on 10/29/19. (lcsd) (Entered: 10/29/2019)
Set/Reset Deadlines: Defendants shall resume filing status reports on 11/1/2019. Joint Status Report due by 2/7/2020. (tb) (Entered: 10/30/2019)
92 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 11/01/2019)
93 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 11/22/2019)
94 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 12/13/2019)
95 Second MOTION for Order or, in the alternative, MOTION to Clarify by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 Declaration of Samuel C. Haffer, # 2 Text of Proposed Order)(Robinson, Stuart) (Entered: 12/19/2019)
96 Memorandum in opposition to re 95 Second MOTION for Order or, in the alternative MOTION to Clarify filed by LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. (Thurston, Robin) (Entered: 01/02/2020)
97 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 01/03/2020)
98 NOTICE OF WITHDRAWAL OF APPEARANCE as to LABOR COUNCIL FOR LATIN AMERICAN ADVANCEMENT, NATIONAL WOMEN'S LAW CENTER. Attorney Javier M. Guzman terminated. (Guzman, Javier) (Entered: 01/06/2020)
99 REPLY to opposition to motion re 95 Second MOTION for Order or, in the alternative MOTION to Clarify filed by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Declaration of Samuel C. Haffer)(Robinson, Stuart) (Entered: 01/09/2020)

01/24/2020 02/07/2020
02/10/2020 02/12/2020

100 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 01/24/2020)
101 Joint STATUS REPORT by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Text of Proposed Order Defendants' Proposed Order, # 2 Text of Proposed Order Plaintiffs' Proposed Order)(Robinson, Stuart) (Entered: 02/07/2020)
102 ORDER granting 95 Motion for Order Determining Completion of Component 2 Data Collection. See order for details. Signed by Judge Tanya S. Chutkan on 2/10/2020. (lcsd) (Entered: 02/10/2020)
103 NOTICE of Filing of EEOC Status Report by VICTORIA A. LIPNIC, JOHN MICHAEL MULVANEY, OFFICE OF MANAGEMENT AND BUDGET, NEOMI RAO, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Attachments: # 1 EEOC Status Report)(Robinson, Stuart) (Entered: 02/12/2020)

 
 Case 1:17-cv-02458 Document 1 Filed 11/15/17 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

National Women’s Law Center 11 Dupont Circle, NW, #800 Washington, DC 20036,
Labor Council for Latin American Advancement 815 16th Street, NW, 3d Floor Washington, DC 20006,
Plaintiffs,
vs.
Office of Management and Budget 725 17th Street, NW Washington, DC 20503,
John Michael Mulvaney Director, Office of Management and Budget 725 17th Street, NW Washington, DC 20503,
Neomi Rao Administrator, Office of Information and Regulatory Affairs 725 17th Street, NW Washington, DC 20503,
U.S. Equal Employment Opportunity Commission 131 M Street, NE Washington, DC 20507,
Victoria A. Lipnic Acting Chair U.S. Equal Employment Opportunity Commission 131 M Street, NE Washington, DC 20507,
Defendants.

Case No.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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Plaintiffs National Women’s Law Center (NWLC) and the Labor Council for Latin American Advancement (LCLAA) hereby sue Defendants Office of Management and Budget (OMB), John Michael (Mick) Mulvaney, Director of OMB, and Neomi Rao, Administrator of the Office of Information and Regulatory Affairs (OIRA), in their official capacities, (collectively OMB Defendants), and, in order to properly execute any remedy, the U.S. Equal Employment Opportunity Commission (EEOC) and Victoria A. Lipnic, Acting Chair of the EEOC, in her official capacity (collectively EEOC Defendants); and allege as follows.
Introduction 1. This case challenges OMB Defendants’ interference with the EEOC’s ability to enforce the nation’s civil rights laws. OMB Defendants halted a years-long effort by the EEOC to collect information on employee pay, and did so without legal authority or meaningful analysis. Despite the facts that OMB had approved such a collection only one year before, and that there was no intervening change in circumstances, OMB Defendants unilaterally stayed employers’ obligation to report pay data for their employees. OMB Defendants asserted that the data collection lacked utility, disregarding the EEOC’s conclusion that collecting pay data is necessary to remedy persistent wage gaps correlated with sex, race, and ethnicity. 2. Women working full time, year-round are typically paid 80 cents for every dollar paid to their male counterparts, and comparing women of color to white, non-Hispanic men, the pay gaps are generally even larger. Black women typically make only 63 cents, Native American women only 57 cents, and Latinas only 54 cents for every dollar paid to white, non-Hispanic men for full-time, year-round work.1 The wage gap is wider still for women who are
1 Nat’l Women’s Law Ctr., Workplace Justice: FAQs About the Wage Gap (Sept. 2017), https://nwlc.org/wpcontent/uploads/2017/09/FAQ-About-the-Wage-Gap-2017.pdf.
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immigrants.2 Women are paid less than men in nearly every occupation. Controlling for race, region, unionization status, education, experience, occupation, and industry still leaves 38 percent of the pay gap unexplained.3
3. Men of color experience similar pay disparities compared to white, non-Hispanic men. For every dollar paid to white, non-Hispanic men, Black men are paid 72 cents and Latino men are paid 62 cents.
4. As the U.S. Congress recently determined, “wage discrimination” is still a “reality”, requiring the “robust application of the civil rights laws.”4
5. Yet, a dearth of comparative salary and wage information may contribute to the persistence of race and gender pay gaps, and limit attempts to remedy them.5 Indeed the most recent survey data available indicates that about 60 percent of workers in the private sector are either prohibited or discouraged from discussing their pay with their colleagues.6 As a result, employees face significant obstacles in gathering the information that would indicate they have experienced pay discrimination, which undermines their ability to challenge such discrimination. And given the absence of legal obligations to identify wage gaps and report employee pay data, employers lack incentives to undertake their own analysis that could proactively correct pay disparities.
2 Nat’l Women’s Law Ctr., Labor Council for Latin Am. Adv., Workplace Justice: Equal Pay for Latinas (Oct. 2016), https://nwlc.org/wp-content/uploads/2016/10/Latina-Equal-Pay-2016-English-Final.pdf. 3 Nat’l Women’s Law Ctr., Workplace Justice: FAQs About the Wage Gap (Sept. 2017), https://nwlc.org/wpcontent/uploads/2017/09/FAQ-About-the-Wage-Gap-2017.pdf. 4 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. 5 See Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 649-50 (2007) (Ginsburg, J., dissenting) (explaining that in contrast to “open and definitive events” like a denied promotion or termination, compensation disparities “are often hidden from sight”), superseded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. 6 Inst. For Women’s Policy Research, Pay Secrecy and Wage Discrimination (Jan. 2014), http://www.iwpr.org/publications/pubs/pay-secrecy-and-wage-discrimination-1/at_download/file/.
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6. In 2010, the EEOC and other federal agencies began a robust administrative process to identify ways to improve enforcement of federal laws prohibiting pay discrimination. Over the next six years the EEOC commissioned a National Academy of Sciences study, performed its own pilot study, and organized a diverse work group which engaged employer representatives and human resources information system experts, among many other activities.
7. Employers have long been required by Title VII of the Civil Rights Act of 1964 (Title VII) to make and keep records that are relevant to the determinations of whether unlawful employment practices have occurred, and to report such records to the EEOC.7 Through the administrative process described herein, the EEOC determined that including employee pay data in this recordkeeping is necessary to fulfill its obligation to enforce Title VII and other antidiscrimination laws; and namely that the availability of such information would improve the EEOC’s enforcement of federal laws prohibiting pay discrimination and would increase employers’ voluntary compliance with these laws. The EEOC further concluded that, “[b]alancing utility and burden,” a “pay data collection would be an effective and appropriate tool” to meet its statutory obligation to end unlawful employment discrimination.8
8. Accordingly, the EEOC voted on and approved revisions to a longstanding employer survey, the “Employer Information Report EEO-1” (EEO-1), to add W-2 earnings data for employees by sex, race, ethnicity, and job category.9 On February 1, 2016, these revisions to the EEO-1 were published in the Federal Register for a 60-day notice and comment period as required by the Paperwork Reduction Act, 44 U.S.C. §§ 3501, et seq. (PRA). Over the next
7 42 U.S.C. § 2000e-8(c). 8 Agency Information Collection Activities: Notice of Submission for OMB Review, 81 Fed. Reg. 45479, 45483 (July 14, 2016). 9 EEOC has been using iterations of the EEO-1 to collect employer-level demographic information about employment statistics since 1966.
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seven months, the EEOC held a public hearing, made changes to the revised EEO-1 to reduce employer burden in response to comments received, voted on and approved the revisions to the EEO-1, formally submitted its revisions to the EEO-1 to OMB for approval as required by the PRA, and sought 30 days of additional public comment. The administrative process shows that at every step the EEOC carefully considered how to maximize the utility of this collection and minimize its burden on employers, including through the full and effective use notice and comment procedures.
9. OMB Defendants approved the revisions to the EEO-1 on or about September 29, 2016. On that same day the EEOC announced that private employers with 100 or more employees, including federal contractors and subcontractors, would be required to submit the revised EEO-1. As such, beginning in March 2018, they would report summary pay data, which would be held confidentially, along with their longstanding reporting of employee demographic information by job category, to the EEOC. The EEOC also announced the availability of technical assistance, to include free webinars, to facilitate the transition for covered employers.10
10. On August 29, 2017, without notice, Neomi Rao, the Administrator of OIRA (a component of OMB that reviews agency information collection requests for approval or disapproval) issued a one-and-a-half-page memorandum that immediately stayed the effectiveness of these revisions to the EEO-1 (the Rao Memorandum). Administrator Rao provided virtually no explanation regarding the decision, with only seven sentences used to justify the abrupt reversal of OMB’s prior approval of the pay data collection less than one year earlier.11 OMB Defendants’ decision was made in secret and without inviting public comment, in
10 Press Release, EEOC, EEOC to Collect Summary Pay Data (Sept. 29, 2016), https://www.eeoc.gov/eeoc/ newsroom/release/9-29-16.cfm. 11 Memorandum from Neomi Rao, Adm’r, OIRA, to Victoria Lipnic, Acting Chair, EEOC (Aug. 29, 2017), https://www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf.
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contrast to the transparent, public, multi-year process utilized by the EEOC to create a welldeveloped and reasoned revision of the EEO-1 to collect pay data.
11. OMB Defendants acted unlawfully in staying the pay data collection. They do not have authority to stay a collection of data required by agency rule, like the EEO-1. Even if they had such authority, the cursory explanation provided by the Rao Memorandum does not establish a legal basis for their action. The Rao Memorandum provides virtually no analysis, and simply parrots regulatory standards, while the only specific justification provided is nonsensical in light of the underlying facts.
12. NWLC and LCLAA now sue OMB Defendants because their actions were contrary to law and arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA), and the PRA, 44 U.S.C. §§ 3501, et seq.
13. Plaintiffs also sue EEOC Defendants as necessary parties for relief in this case because the EEOC acted consistently with a directive from OMB Defendants to notify employers that they were not required to submit pay data as part of their EEO-1 submissions for the current fiscal year.12
Parties 14. Plaintiff National Women’s Law Center (NWLC) is a 45-year-old nonpartisan, nonprofit organization that advocates for the rights of women and girls at school, at work, at home, and in their communities. It is based in Washington, DC. For decades, NWLC has worked to combat sex discrimination in the workplace, with a particular focus on achieving equal pay for women.
12Stay the Effectiveness of the EEO-1 Pay Data Collection, 82 Fed. Reg. 43362, 43362 (Sept. 15, 2017).
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15. Closing the gender wage gap, and in particular the race and gender wage gaps experienced by women of color, is a key priority for NWLC. NWLC publishes evidence-based reports and fact sheets used to educate employers, members of the public, and federal and state policymakers about the reality of pay inequity as well as policies that promote equal pay. It identifies, highlights, and promotes promising employer practices to close the wage gap, and works with willing employers to assist them in implementing such practices. NWLC has worked closely with policymakers at the federal and state level to strengthen equal pay laws; and built coalitions to press for public policy reform to promote equal pay. NWLC pursues robust enforcement of laws prohibiting pay discrimination and other forms of workplace discrimination and seeks redress for victims of such discrimination, representing individual employees bringing discrimination charges to the EEOC, and referring others to attorneys willing to take on these cases through its Legal Network for Gender Equity. NWLC also appears as amicus and as counsel in the courts on behalf of victims of pay discrimination.
16. Plaintiff Labor Council for Latin American Advancement (LCLAA) is a national 501(c)(3) representing the interests of approximately 2 million Latino/a trade unionists throughout the United States and Puerto Rico, as well as other non-unionized Latino workers. Its headquarters is in Washington, DC, and it has 52 chapters around the country. LCLAA was founded in 1972 by local Latino trade union committees to promote participation by Hispanic trade unionists. It dedicates its efforts to assisting workers to better advance their rights in their workplace and convince employers to take steps to improve working conditions, both through advocacy and through training and counseling workers and union members. LCLAA’s duespaying membership includes individual workers, union members, and students. LCLAA helps its
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members to pursue their common goal of improving the working conditions of Latino and Latina employees, both at individual employers and throughout the economy.
17. Closing the pay gap has been an increasing focus of LCLAA’s work in recent years. This pay gap especially plagues Latinas, who suffer from the largest gender wage gap of any group of working women in the United States. In 2012, LCLAA created the Trabajadoras Initiative,13 which specifically seeks to protect and advance the interests of Latina workers on issues that impact them, including seeking to eradicate the persistent pay gap. In 2012, LCLAA passed a resolution specifically calling on the AFL-CIO and its affiliates to conduct advocacy and outreach aimed at eradicating pay discrimination. It passed subsequent resolutions related to fair pair, along with reaffirming its commitment to protecting and defending the rights of Latina workers in all sectors and industries across the United States. Among other things, the most recent resolution reaffirmed this priority and LCLAA’s commitment to “work in partnership with Trabajadoras to win the full range of labor rights” from employers and governments.
18. At the national and Chapter level, LCLAA has actively worked to educate its members about the pay gap and how to use collective action and organizing to close this pay gap. In addition, it has actively participated in and helped lead campaigns aimed at raising awareness about this grave problem, as well as the solutions necessary to address it. To this end, it has trained Chapter Presidents about this issue and the Chapter leadership has shared this information with their membership and mobilized members to act on the ground in states around the country. LCLAA has also hosted two summits and other events at the local and national level for its membership and the public that have been focused on providing information, education and solutions to closing the pay gap.
13 “Trabajadoras” translates to “working women.”
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19. Defendant OMB is a federal agency responsible for approving or disapproving agencies’ information collection activities pursuant to the PRA. It is a component of the Executive Office of the President and maintains a headquarters in Washington, DC.
20. Defendant John Michael (Mick) Mulvaney is the Director of OMB. He is sued in his official capacity.
21. Defendant Neomi Rao is the Administrator of OIRA, a component of OMB, responsible for approving or disapproving agency information collection requests. She is sued in her official capacity.
22. Defendant EEOC is a federal agency responsible for enforcing federal antidiscrimination laws.
23. Defendant Victoria A. Lipnic is the Acting Chair of the EEOC. She is sued in her official capacity.
Jurisdiction and Venue 24. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under federal law, specifically the APA, 5 U.S.C. § 701, et seq., and the PRA, 44 U.S.C. 3501, et seq. 25. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) because at least one of Defendants is headquartered in Washington, D.C., and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred here.
Plaintiffs’ Injuries National Women’s Law Center 26. NWLC brings this action on its own behalf, because the challenged conduct deprives it of valuable information that it would otherwise use in public education and advocacy
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for its clients, increases the costs it bears in its pro bono representation of individuals injured by workplace discrimination, limits the efficacy of available avenues of redress, requires resourceintensive efforts that impede its daily operations, and otherwise directly conflicts with, impairs, and frustrates NWLC’s organizational mission and priorities.
27. As part of NWLC’s mission to educate employers, the public, and policymakers about race and gender wage gaps, NWLC has published numerous analyses and reports about workplace pay disparities. These reports cite data on pay inequality across a number of dimensions, and reflect time-consuming analysis of Bureau of Labor Statistics and Census data undertaken by NWLC staff.
28. The aggregate data that the EEOC intended to make publicly available from the EEO-1 pay data collection would have made available new information about the occupational categories, industries, and locations experiencing the largest race and gender wage gaps. This new data would have allowed NWLC to strengthen its reports with additional data and analysis, and to focus its resources on the jobs, industries, and regions where intervention is most urgent. The loss of that data harms NWLC’s efforts to analyze these issues, educate the public, and target advocacy efforts and other interventions to the most urgent problems.
29. The EEO-1 pay data collection also would have significantly benefited NWLC’s pro bono representation of individual clients with workplace discrimination claims. NWLC is frequently asked to assist individuals with potential pay discrimination claims, and typically agrees to provide pro bono representation in one or more cases each year.
30. In such actions, pay data is probative evidence needed to convince the EEOC to take action or to convince a court or jury of a claim’s merit. But in most cases, neither NWLC nor its clients can obtain that data directly from employers prior to filing a complaint or a
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lawsuit, impeding their ability to convince the EEOC to devote resources to investigating a charge or to convince a court to allow discovery to proceed. Because NWLC represents its clients pro bono, it must bear the costs of amassing evidence about internal pay inequities and comparators’ pay practices to obtain any redress through the EEOC or in a court.
31. The EEO-1 pay data collection would have substantially benefited NWLC by providing information that helps overcome these hurdles, reducing costs associated with representing individual clients and allowing access to avenues to redress that would otherwise be closed. Because aggregate sector-wide data would be available, NWLC would have a readily available benchmark against which it could compare an employer’s allegedly discriminatory practices. Because the EEOC would have employer-specific data, NWLC would be able to request that the EEOC consider an employer’s pay disparities at the charge stage, opening an avenue of redress to individuals who otherwise would lack the data to show discrimination and increasing the likelihood that the charge could be resolved through the EEOC investigatory and conciliation process without lengthy and expensive litigation. The stay takes away all of these benefits.
32. In addition, because of the unlawful review and stay of the EEO-1 pay data collection, NWLC will expend additional funding and staff time to engage with employers to encourage voluntary compliance with equal pay laws, including voluntary self-audits of pay practices and internal wage gaps, in order to compensate for the self-evaluation of internal wage gaps that the EEO-1 pay data collection would have required employers to undertake. Moreover, because of the unlawful stay of the EEO-1 pay data collection, in order to meet the objective of improved enforcement of pay discrimination laws and increased self-evaluation by employers of their own pay practices, NWLC has expended and will expend funding and staff time to create
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model state and/or local pay data collection legislation; create educational materials setting out the need for such pay data collection and the interests it serves; build coalition and grassroots support in targeted states and/or localities for these measures; and advocate at the state and local level for adoption and full implementation of such legislation.
33. As a result of these additional steps that the stay has forced NWLC to take in order to advance its mission, NWLC staff members have diverted time away from daily operations. Several of NWLC’s personnel have focused primarily on pay data collection issues since the stay was issued, shifting them away from activity on other issues at the core of NWLC’s day-to-day mission. For example, NWLC staff’s ability to produce educational materials and sample laws and policies addressing workplace sexual harassment—important work for which there is currently an urgent need—has been hampered by the diversion of resources to issues related to equal pay and pay data collection.
34. Additionally, NWLC staff have been diverted from preparing the “know your rights” and legal education materials addressing issues of workplace discrimination and harassment that are key to the ultimate success of its recently launched Legal Network for Gender Equity because of the resources absorbed by reacting to the stay.
35. Similarly, NWLC staff have been unable to engage in significant federal advocacy efforts in recent months in support of strengthened pregnancy discrimination protections because of limited staff resources as a result of the stay.
Labor Council for Latin American Advancement 36. LCLAA brings this action on its own behalf, because the challenged conduct directly conflicts with, impairs, and frustrates LCLAA’s organizational mission and priorities. The unlawful review and stay of the revised EEO-1 has caused and will continue to cause
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LCLAA to divert and redirect its limited resources, impeding LCLAA’s ability to carry out its daily operations. It will also cause LCLAA to spend money on external contractors to gather information that would have been unnecessary but for the stay.
37. LCLAA periodically issues reports to educate workers, employers, and union leaders about the challenges encountered by Latinos and Latinas in the workforce. LCLAA uses these reports in advocating for policy change and enforcement, and in educating its members on ways to negotiate with employers and encourage them to follow practices that reduce workforce discrimination. To aid those efforts, the reports discuss data compiled and published by the Government on income and employment—including EEO-1 data.14
38. In upcoming reports, LCLAA would have presented statistics on pay equity within industries and across the nation, based on the new pay data required by the revised EEO1. This would have materially improved LCLAA’s and its members’ ability to negotiate with and educate employers and to fulfill LCLAA’s mission of improving the condition of Latinos and Latinas in the workforce.
39. OMB Defendants’ stay of the revised EEO-1 renders that plan impossible, impeding LCLAA’s plans for carrying out its mission. To replicate the same information LCLAA would obtain from the revised EEO-1, LCLAA would have to convince thousands of employers to voluntarily provide data and then employ statisticians to analyze the resulting raw data—efforts that would require enormous expense and still likely be unsuccessful, given LCLAA’s inability to require employers to comply. Indeed, without the revised EEO-1 pay data collection, any attempt to compile such data would almost certainly underreport pay inequities, because employers with significant disparities would be particularly unlikely to provide data
14 See, e.g., Trabajadoras: Challenges and Conditions of Latina Workers in the United States, Labor Council for Latin American Advancement (2012) at 30.
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voluntarily. Accordingly, OMB Defendants’ actions render LCLAA’s plan to report authoritative statistics on pay equity entirely impossible.
40. Because this data is unavailable, LCLAA is pursuing the possibility of conducting surveys of workers on pay equity issues. It is currently working with an external consultant to get cost estimates for multiple surveys, one for both Latino and Latina workers and one specifically directed at Latina workers. Any such survey will come at considerable expense—not only for the design, implementation, and analysis of the survey, but for any interpretation or translation costs that are required to ensure that the survey is accessible to non-English-speaking Latino and Latina workers. If the revised EEO-1 remains stayed, any survey must include detailed questions on pay equity that would be unnecessary (or, at a minimum, significantly less urgent) if the annual EEO-1 reports included aggregate pay data in addition to its general aggregate demographic information. The inclusion of such questions will increase the cost to LCLAA of the design, implementation, and analysis of the surveys.
41. As another example, prior to OMB Defendants’ stay of the revised EEO-1, LCLAA had been developing a project aimed at creating model contract terms regarding pay equity for its union members to seek in contract negotiations. In light of OMB Defendants’ stay of the revised EEO-1, it will be necessary for LCLAA to add terms dealing with collection of pay equity data—terms that would have been unnecessary if the revision took effect as planned, because employers would be required by law to collect such data.
42. Similarly, once the model contract terms are complete, LCLAA intends to train its members and share this information with union leaders on the terms and on relevant aspects of negotiations. Such training will require substantial time on the part of LCLAA’s staff. By forcing LCLAA to include additional model contract terms, the stay of the revised EEO-1 increases the
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amount of time that training will take, further inhibiting LCLAA’s ability to carry out its daily operations in a timely fashion.
43. All of the activities necessitated by OMB Defendants’ stay have forced LCLAA to redeploy its limited staff resources away from their daily operations. Each of LCLAA’s employees has had to spend time working on responses to the stay, from discussions related to the Latino/a worker survey and contract development discussed above to explaining the implications of the change to Chapter presidents and other members.
44. This has restricted LCLAA’s ability to carry out its daily operations. For example, LCLAA recently launched a first-of-its-kind fellowship for Latina workers, the Latina Gender Equity Fellowship. The first class of Fellows began their fellowships on November 1, 2017. LCLAA has not been able to spend needed time to do necessary follow up and additional project development because the personnel it had intended to deploy to work on these matters have instead needed to engage in activity related to the EEO-1 pay data collection, including the survey, contracting, and other responses discussed above.
45. Similarly, LCLAA had intended to work on educational materials related to the NAFTA renegotiations, including its impact on women, to help its members understand its implications for Latino/a workers. This type of educational initiative is a core and common part of LCLAA’s daily operations—but LCLAA has not been able to engage in these efforts because its resources have been drained by the urgent tasks described above.
The Paperwork Reduction Act 46. The PRA was intended to “improve the quality and use of Federal information to strengthen decisionmaking, accountability, and openness in government and society” and to “ensure the greatest possible public benefit from and maximize the utility of information created,
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collected, maintained, used, shared, and disseminated by or for the Federal Government” while minimizing the paperwork burden imposed when the federal government collects information from individuals; educational and nonprofit institutions; Federal contractors; and State, local and tribal governments.15
47. The PRA was not intended to increase OMB’s authority over substantive agency policies. Indeed, the PRA expressly states: “[n]othing in this chapter shall be interpreted as increasing … the authority of [OMB] with respect to … the substantive authority of any Federal agency to enforce the civil rights laws.”16
48. Through the PRA, Congress established a process by which agencies obtain approval from OMB to collect certain types of information from the public. The agency must first conduct its own evaluation of the plan for a proposed information collection, including the need for the information and the burden imposed by collection.17
49. With limited exceptions not relevant here, the PRA requires that an agency publish a “60-day notice” in the Federal Register soliciting public comment on the agency’s proposed collection.18
50. After the conclusion of the 60-day comment period, the agency’s internal consideration of the public’s comments, and any appropriate revisions, the agency submits the collection of information to OMB and publishes a second Federal Register notice to announce the start of OMB review and a 30-day comment period.19 The second notice informs the public
15 44 U.S.C. § 3501. 16 44 U.S.C. 3518(e). 17 44 U.S.C. § 3506(c)(1)(A). 18 44 U.S.C. § 3506(c)(2). 19 44 U.S.C. § 3507(a), (b).
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about how to submit comments to OMB and that OMB may act on the agency’s request only after the 30-day comment period has closed.
51. After these two public comment periods, OMB, through OIRA, may approve or disapprove the proposed collection of information; or if OMB fails to act, approval is inferred for up to one year.20 An OMB approval of a collection of information may last for a three-year period, after which the agency must seek an extension of OMB’s approval if it wishes to continue the collection of information.21
52. Upon approval, OMB issues a control number, which serves to inform the regulated public that the collection has been approved. The agency must append the control number to any collection of information.22
53. OMB does not have authority to stay an ongoing collection of information it previously approved if the collection is contained in an agency rule.
54. OMB’s regulations permit it to review an ongoing and previously approved collection of information contained in a current rule or an ongoing and previously approved collection of information not contained in proposed rules or current rules, when “relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error.”23 OMB’s regulations also permit it to stay, but only for good cause, “the effectiveness of a prior approval of any such collection of information that is not specifically required by agency rule.”24
The EEO-1
20 44 U.S.C. § 3507(c). 21 44 U.S.C. § 3507(g), (h). 22 44 U.S.C. § 3506(c)(1)(B). 23 5 C.F.R. § 1320.10(f); 5 C.F.R. § 1320.12(h)(2)(i). 24 5 C.F.R. § 1320.10(g).
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55. Title VII requires employers to “make and keep records relevant to the determination of whether unlawful employment practices have been or are being committed,” to preserve such records, and to produce reports as the EEOC prescribes by regulation or order.25
56. Pursuant to this statutory authority, beginning in 1966, the EEOC regulations have required that employers with 100 or more employees file with the EEOC a survey known as the “Employer Information Report EEO-1” (EEO-1).26 This requirement also applies to certain federal contractors and subcontractors with more than 50 employees, enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor (DOL).27
57. The EEO-1 has been revised from time to time by the EEOC, but prior to the revisions at issue in this matter, to add to the collection W-2 earnings data for employees by sex, race, ethnicity, and job category, the EEO-1 directed covered employers to report annually the number of individuals employed by job category and by sex, race, and ethnicity. The EEO-1 currently includes seven race and ethnicity categories and ten job categories.28
58. The EEOC and OFCCP use EEO-1 data to support civil rights enforcement and to analyze and inform the public about employment patterns, such as the representation of women and minorities within companies, industries, or regions. The EEOC also uses this information to determine in which industries or companies individuals may be segregated by race or sex and
25 42 U.S.C. § 2000e-8(c). 26 29 C.F.R. § 1602.7. Employers who make willfully false statements in an EEO-1 may be subject to fines and imprisonment, and employers who fail or refuse to file an EEO-1 may be compelled by court order to do so. Id., §§ 1602.8, 1602.9. 27 41 CFR §60-1.7. The OFCCP enforces the antidiscrimination and affirmative action obligations that apply to federal contractors, including those set out in Executive Order 11246, prohibiting federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin, and requiring them to take affirmative action to ensure employment and fair treatment without regard to these characteristics. 28 See EEOC, Equal Employment Opportunity Employer Information Report EEO-1, https://www.eeoc.gov/ employers/eeo1survey/upload/eeo1-2.pdf.
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over-included in particular roles or company divisions and excluded from others. EEO-1 data also helps to show trends regarding hiring, promotions, and employee turnover within certain sectors.
59. The EEOC makes aggregate EEO-1 information for major geographic areas and industry group publicly available.29 (Individually identifiable information is kept confidential). In addition, the EEOC periodically publishes special reports based on aggregate data collected from the EEO-1, such as a recent report on Diversity in High Tech.30
60. OFCCP also relies upon EEO-1 data pursuant to its mission to enforce equal employment opportunity obligations imposed on those who do business with the federal government. OFCCP has issued regulations describing the EEO-1 as a report “promulgated jointly” with the EEOC and requiring certain contractors to submit annual EEO-1s.31
61. The specific information reported by a covered employer or contractor pursuant to the EEO-1 must be kept confidential unless and until the EEOC initiates a Title VII action that involves the information.32 Private litigants may also obtain EEO-1 data via discovery as part of a Title VII proceeding in some circumstances.
The EEOC’s Determination That Collecting Pay Data Is Necessary to Enforce Employment Non-Discrimination Laws and Would Not Impose a Significant Burden
62. In 2010, the EEOC joined other federal agencies, including DOL, as members of the President’s National Equal Pay Task Force to identify ways to improve enforcement of federal laws prohibiting pay discrimination.
29 EEOC, Job Patterns for Minorities and Women in Private Industry (EEO-1), https://www.eeoc.gov/eeoc/statistics/employment/jobpat-eeo1/. 30 EEOC, Special Reports, https://www.eeoc.gov/eeoc/statistics/reports/index.cfm. 31 41 C.F.R. § 60-1.7. 32 42 U.S.C. § 2000e-8(e).
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63. Thereafter, the EEOC commissioned a study from the National Academy of Sciences, a Congressionally-established body that provides independent, objective advice to the nation on science and technology matters, to assess how to collect pay data most effectively to support its wage discrimination enforcement efforts. This study concluded that using the EEO-1 for pay data collection would be “quite manageable for both the EEOC and the respondents” and recommended that following development of a comprehensive plan for use of earnings data, the EEOC commission a pilot study to test data collection and the plan for its use.33
64. The EEOC commissioned a pilot study, as recommended, identifying the most efficient means to collect pay data. This study made technical recommendations about several components of data collection, including the unit of pay to be collected, the best summary measures of rates of pay, appropriate statistical test(s) for analyzing pay data, and the most efficient and least costly methods for transmitting pay data from employers. It also estimated employer burden-hour costs and the processing costs associated with data collection.34
65. The EEOC’s pilot study recommended that the EEOC use the IRS’s W-2 definition of pay, because it offers a “comprehensive picture of earnings data and may not create a measurable burden for most respondents.”35 Further, it recommended collecting aggregate W-2 compensation information for the ten EEO-1 occupation categories in pay bands, as well as collecting total hours worked for each group to account for pay differences due to variations in the number of hours worked.
33 See Nat’l. Research Council, Collecting Compensation Data from Employers, 60 (2012), https://www.nap.edu/ catalog/13496/collecting-compensation-data-from-employers. 34 See Fidan Kurulus, et al., Final Report (Sept. 2015), https://www.eeoc.gov/employers/eeo1survey/pay-pilotstudy.pdf. 35 Id. at 108.
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66. The EEOC also sought input on updating all EEO surveys, including adding pay data, in a two-day “work group” meeting in March 2012 with employer representatives, statisticians, human resources information systems experts, and information technology specialists. This work group had several recommendations regarding collection of pay data and noted the importance of confidentiality. It also concluded that for EEO-1 filers, “[t]he cost burden of reporting pay data to EEOC would be minimal.”36
67. An April 8, 2014, Presidential Memorandum, “Advancing Pay Equality Through Compensation Data Collection,” directed the Secretary of Labor to develop a compensation data collection proposal.37 OFCCP proposed such a collection on August 8, 2014 and provided a sample Equal Pay Report unique for OFCCP. OFCCP received comment, among other things, about the need to improve interagency coordination and decrease employer burden for reporting compensation data by using the EEO-1, rather than a new OFCCP data collection. OFCCP ultimately determined, in part in response to this stakeholder input, to coordinate its data collection with the EEOC by using the EEO-1 and the EEOC benefited from the comments OFCCP had received during its rulemaking efforts.38
68. While developing the planned revision to the EEO-1, and considering their enforcement obligations, the EEOC and OFCCP also consulted with the Department of Justice to assess how EEO-1 pay data would be used to assess complaints of discrimination, focus
36 See EEOC, EEOC Survey System Modernization Work Group Meeting: Draft Report, 2 (Mar. 19, 2012), https://www.eeoc.gov/employers/eeo1survey/survey-modernization.pdf. 37 See Press Release, The White House, Presidential Mem. – Advancing Pay Equity Through Compensation Data Collection (Apr. 8, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/04/08/presidentialmemorandum-advancing-pay-equality-through-compensation-data. 38 Government Contractors Requirement to Report Summary Data on Employee Compensation, 79 Fed. Reg. 46562 (Aug. 8, 2014). In addition to the comments received on its August 8, 2014, proposal, OFCCP had previously received comments in response to its advanced notice of proposed rulemaking on a pay data collection tool and these comments also informed the EEOC’s analysis. Non-Discrimination in Compensation: Compensation Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10, 2011).
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investigations, and identify employers with existing pay disparities that might warrant further examination.39
69. On February 1, 2016, following this robust process and after a vote to approve the proposed revisions, the EEOC published a Federal Register notice proposing a revision of the EEO-1 to include pay data and requesting public comments. This was the “60-day notice” required by the PRA.40
70. In the 60-day notice, the EEOC proposed revising the EEO-1 to collect aggregate W-2 data in twelve pay bands for the ten existing EEO-1 job categories, as recommended by the pilot study. As the notice explained, “Employers will simply count and report the number of employees in each pay band. For example, a filer will report on the EEO-1 that it employs 3 African American women as professionals in the highest pay band.” The notice further explained that it was using pay bands for reporting to minimize employer burden, in part because pay bands were already used in an EEOC survey that collects pay data from state and local government employers, so that software developers reasonably could be expected to be able to build upon their existing knowledge to efficiently and promptly develop human resources software to support the new data collection.41
71. The 60-day notice also proposed collecting the total number of hours worked by the employees included in each EEO-1 pay band, as recommended by the EEOC’s pilot study. The EEOC specifically sought employer input with respect to how to report hours for salaried employees, noting that it was “not proposing to require an employer to begin collecting
39 Agency Information Collection Activities: Revision of the Employer Information Report, 81 Fed. Reg. 5113, 5115 (Feb. 1, 2016). 40 Id. at 5113. See also 44 U.S.C. § 3506(c)(2). 41 Id. at 5117.
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additional data on actual hours worked for salaried workers, to the extent that the employer was not currently maintaining such information.”42
72. The notice included a “Paperwork Reduction Act Statement,” in which the EEOC explained that it intended to submit to OMB a request for a three-year PRA approval of the revised EEO-1, which would add a component to collect data on employees’ W-2 pay and hours worked. The EEOC stated that for the 2016 reporting cycle, EEO-1 filers would use the previous version of the EEO-1, and would not be required to use the proposed revised form until the 2017 reporting cycle.43
73. As required by the PRA, the EEOC estimated the number of reporting hours it expected to be imposed on EEO-1 filers as part of its data collection. For the 2016 reporting year, which would use the previously existing version of the EEO-1 without the pay data requirement, it estimated that the 67,146 filers would use a total of 228,296.4 hours to report the EEO-1 information, or 3.4 hours per filer. For the 2017 and 2018 reporting years, with the pay data requirement, it estimated that the 60,886 filers that would be subject to the additional data collection requirement would use a total of 401,847.6 reporting hours, or a total of 6.6 hours per filer. In short, adding the collection of pay data was estimated to add 3.2 hours of reporting time for each filer.44
74. The EEOC sought employer input on its burden calculation, and specifically sought quantitative information about the burden associated with completing the previouslyapproved EEO-1, as well as the estimated burden to also submit pay and hours-worked data.
42 Id. 43 Id. at 5118. 44 Id. at 5119.
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75. On March 16, 2016, the EEOC held a public hearing on its proposed pay data collection, and heard testimony from witnesses who represented the views of employers, employees, and academics. NWLC joined in this hearing and provided testimony on the revised collection.
76. The EEOC received a total of 322 timely comments in response to the 60-day notice. These were submitted by individual members of the public, employers, employer associations, Members of Congress, civil rights groups, women’s organizations, labor unions, industry groups, law firms, and human resource organizations, and included a comment from NWLC.45 119 of these submissions compiled many individual comments in support of the proposed EEO-1 pay data collection. For example, NWLC compiled and submitted 2,393 such supportive comments by individuals.
77. On July 14, 2016, the EEOC published a second Federal Register notice, announcing that it was submitting to OMB a request for a three-year PRA approval of the revised EEO-1, and soliciting comments both to OMB and the EEOC. This was the “30-day notice” required to obtain OMB approval of the collection of information.46
78. The 30-day notice considered and responded to comments submitted in response to the 60-day notice.47
79. The 30-day notice also set forth the EEOC’s conclusion that revisions to the EEO1 were necessary for the enforcement of Title VII, the Equal Pay Act, and Executive Order
45 81 Fed. Reg. at 45480. 46 Id. at 45479. 47 See OIRA, Final EEO-1 Supporting Statement, 5-7 (Sept. 28, 2016), https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201610-3046-001(identifying seven specific actions EEOC took in response to public comments on the 60-day notice). See also 44 U.S.C. § 3507(a)(1)(D).
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11246 (which prohibits federal contractors from discriminating on the basis of sex, race or
national origin, among other bases, in employment decisions). The EEOC explained that:
Based on federal data and a robust body of research, the Commission concludes that: (1) [p]ersistent pay gaps continue to exist in the U.S. workforce correlated with sex, race, and ethnicity; (2) workplace discrimination is an important contributing factor to these pay disparities; and (3) implementing the proposed EEO-1 pay data collection will improve the EEOC’s ability to efficiently and effectively structure its investigation of pay discrimination charges.48
80. The 30-day notice discussed the bases for these conclusions, including a survey of
persistent pay gaps in the U.S. workforce that resulted in the following findings, as of 2014:
• For women of all races and ethnicities, the median annual pay for a woman who held a full-time, year-round job was $39,621, while the median annual pay for a man who held a full-time, year-round job was $50,383.
• Latina women were paid approximately 44% less than white, non-Hispanic men. The average Hispanic or Latina woman would be paid approximately $1,007,000 less than the average white, non-Hispanic, male over a 40-year period.
• African-American women were paid almost 40% less than white, nonHispanic men.
• Disparities also exist for other women, and for men of color.49
81. As the EEOC explained, these gaps in pay cannot be fully explained by
differences in education, experience, industry, or occupation. Discrimination may play both
direct and indirect roles in creating pay disparities. For example, one study cited by the EEOC concluded that discrimination accounts for at least one-third of the black-white wage gap.50
82. The EEOC further explained that the pay data collection would “be used to
enhance and increase the efficiency of enforcement efforts while facilitating employer self-
48 81 Fed. Reg. at 45481. 49 Id. at 45482. 50 Id. at 45482-83.
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evaluation and voluntary compliance.”51 It also noted that while voluntary compliance was an important part of the effort to improve pay equity, it has been insufficient to remedy the pay disparities that the EEOC and OFCCP are statutorily required to address. Specifically, “[t]hey now lack the employer- and establishment-specific pay data that prior to issuing a detailed request for information or a subpoena, would be extremely useful in helping enforcement staff to investigate potential pay discrimination. Balancing utility for civil rights enforcement and burden on employers, the EEOC concluded that the proposed EEO-1 pay data collection would be an effective and appropriate tool for this purpose.”52
83. The EEOC concluded that it would use the collection of pay data in multiple ways, including: (1) to support its enforcement efforts, by enabling its staff to use statistical analysis to assist in an early assessment of pay discrimination charges against an employer; (2) to periodically publish reports on pay disparities by race, sex, industry, occupational groupings, and Metropolitan Statistical Area; and (3) to provide training and outreach both internally and to employers and other stakeholders.53 Data received through the revised EEO-1 would be used by OFCCP to more effectively focus agency investigations, assess complaints, and identify existing pay disparities.54
84. The 30-day notice also announced adjustments to the data collection proposal in response to public comments, specifically to reduce burden to employers. The EEOC announced it would change the EEO-1 filing deadline to March 31 of the year that follows the reporting year, moving the date from September 30. This change was in response to commenter objections to a reporting period that did not align with calendar year W-2 data.
51 Id. at 45480. 52 Id. at 45483. 53 Id. at 45490-91. 54 Id. at 45483.
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85. The EEOC would also change the “workforce snapshot period,” which refers to the pay period when employers count the total number of employees for the year’s EEO-1. The EEOC moved the workforce snapshot period to a pay period in the final quarter of the calendar year in response to comments from the employer community that criticized the workforce snapshot approach because it would not reflect same-year promotions that have the effect of moving an employee into a different job category or pay band after the “snapshot” was taken.55
86. In response to public comments, the 30-day notice also adjusted the estimates of burden imposed by the revisions to the EEO-1 upward from the first notice. The EEOC estimated that completing the revised EEO-1 would take 15.2 hours per filer for functions at a whole firm level plus an additional 1.9 hours per individual report for functions at an individual establishment level. It also estimated that there would be a onetime implementation burden of approximately 8 hours per filer.56
87. In the 30-day notice, the EEOC estimated that the addition of pay data would increase the filing cost for each EEO-1 filer by $416.58.57
88. The 30-day notice also stated that the EEOC would later post data file specifications to support employers and Human Resources Information Systems vendors in reporting pay data via the EEO-1 through direct data upload “as soon as OMB approves the information collection.”58
89. The EEOC received a total of 612 comments in response to the 30-day notice, including comments from NWLC. Many of these submissions compiled numerous individual
55 Id. at 45484-5. 56 Id. at 45496-97. 57 Id. at 45493-94. 58 Id. at 45487.
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comments in support of the proposed EEO-1 pay data collection. For example, NWLC compiled
and submitted 5,269 such supportive comments by individuals.
90. In the EEOC’s Final Supporting Statement on EEO-1, provided to OMB on
September 28, 2016, it set forth a mechanism for future review of the utility and burden of
collecting pay data as part of the EEO-1 collection:
[T]he EEOC will continue to evaluate the revised EEO-1 report after it is in use. Under the standard three-year renewal process set out by the PRA for federal data collection, the next renewal of the EEO-1 will occur in 2019. As part of this process, the EEOC will consider its experience in collecting data through the revised EEO-1. The EEOC will monitor and evaluate the utility and effectiveness of the summary pay data collected and, within six months of the approval of this collection, the EEOC will provide OMB a monitoring and evaluation plan. The plan will include effectiveness measures, baseline information, procedures for collecting and evaluating data, and any other pertinent information. The EEOC will report the results of its monitoring and evaluation activities in subsequent information collection request packages.
The EEOC will begin collecting pay data as of March 31, 2018, and will be positioned to utilize pay data in its investigations in 2019, after the first pay data collection has been thoroughly reviewed for accuracy. As these investigations may still be ongoing at the time the next information collection request package must be submitted to OMB in late 2019, there will be limited information to evaluate for purposes of that PRA approval process. Consistent with the PRA requirements and its commitment to assess this collection, however, the agency will consider whether changes may be warranted to increase the practical utility of the data collection or to decrease the burden on EEO-1 filers. For example, the EEOC may consider the utility and burden of retaining the existing EEO-1 job categories or pay bands as compared to adopting new categories or bands.59
91. OMB approved the proposed collection and issued an OMB control number for
the revised EEO-1 on or about September 29, 2016.
92. After OMB approved the collection, EEO-1 filers’ obligation to submit pay data
came into effect for the 2017 reporting period, which had a filing deadline of March 31, 2018.
59 OIRA, Final EEO-1 Supporting Statement, 8 (Sept. 28, 2016), https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201610-3046-001
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Thereafter, the EEOC updated a website advising employers of the format for the data file by which they could directly upload pay data as part of the EEO-1, if they chose to do so.
93. Employers submitting the EEO-1 can do so either via (1) direct data entry or (2) direct data upload using a data file specification, based on employers’ preferences.60 Only employers using direct data upload would use the data file specifications posted by the EEOC. As of 2014, the most recent date for which data is publicly available, 98 percent of employers used direct data entry. Only two percent of employers used direct data upload.61
94. The data file specification provided for the revised EEO-1 is a modified version of the data file specification for the EEO-1 that has been in place for over a decade. When the EEO-1 has previously been reviewed and approved by OMB under the PRA, the details of the associated data file specification have not been included in the package provided to OMB, nor has OMB sought this information.62
OMB Defendants’ Review and Stay of the EEO-1 Collection 95. Nearly one year after OMB approved the pay data collection, on August 29, 2017, Administrator Rao issued a memo to the Acting Chair of the EEOC stating that OMB was initiating a review and immediate stay of the revision to the EEO-1 to collect pay data (Rao
60 See, e.g., EEOC, Instruction Booklet, https://www.eeoc.gov/employers/eeo1survey/2007instructions.cfm (“EEO-1 reporting is an electronic, online application. Pursuant to the Government Paperwork Elimination Act of 1998, we strongly recommend that EEO-1 reports be submitted via the EEO-1 Online Filing System, or as an electronically transmitted data file. A copy of the prescribed EEO-1 data file format is available at the website address in the survey mailout memorandum.” (second emphasis added)). 61 81 Fed. Reg. at 5119 n. 55, 5120 n. 62 (in 2014, 67,146 firms filed EEO-1s, of which 1,449 firms used direct data upload). 62 See, e.g., Agency Information Collection Activities: Notice of Submission for OMB Review, 71 Fed. Reg. 71294, 71301 (Nov. 28, 2005) (Noting that the EEOC had introduced online filing in 2003, but providing no information regarding data file specifications); Agency Information Collection Activities: Proposed Collection; Submission for OMB Review, 79 Fed. Reg. 72678 (Dec. 8, 2014) (submission for renewal of approval of EEO-1, providing no information regarding data file specifications).
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Memorandum). This memo, just over a page in length, provided scant explanation for the
decision.
96. As the basis for the decision, the Rao Memorandum stated in full:
[U]nder 5 CFR 1320.10(f) and (g), OMB may review an approved collection of information if OMB determines that the relevant circumstances related to the collection have changed and/or that the burden estimates provided by EEOC at the time of initial submission were materially in error. OMB has determined that each of these conditions for review has been met. For example, since approving the revised EEO-1 form on September 29, 2016, OMB understands that EEOC has released data file specifications for employers to use in submitting EEO-1 data. These specifications were not contained in the Federal Register notices as part of the public comment process nor were they outlined in the supporting statement for the collection of information. As a result, the public did not receive an opportunity to provide comment on the method of data submission to EEOC. In addition, EEOC’s burden estimates did not account for the use of these particular data file specifications, which may have changed the initial burden estimate.
OMB has also decided to stay immediately the effectiveness of the revised aspects of the EEO-1 form for good cause, as we believe that continued collection of this information is contrary to the standards of the PRA. Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.63
97. The Rao Memorandum did not address the fact that the EEO-1 is required by
EEOC and OFCCP regulations64, and that OMB Defendants therefore did not have legal
authority to stay it. The Rao Memorandum did not acknowledge that employers were not
required to use the data file specifications to provide EEO-1 data, nor did it acknowledge that the
data file specifications did not require the reporting of any information not made available for
public comment. The Memorandum also did not explain what aspects of the pay data collection
lacked practical utility, were unnecessarily burdensome, and failed to adequately address privacy
63 Memorandum from Neomi Rao, Adm’r, OIRA, to Victoria Lipnic, Acting Chair, EEOC (Aug. 29, 2017), https://www.reginfo.gov/public/jsp/Utilities/Review_and_Stay_Memo_for_EEOC.pdf. 64 29 C.F.R. § 1602.7; 41 C.F.R. § 60-1.7.
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and confidentiality issues (issues that the EEOC addressed throughout its administrative process), nor why any purported problems with the pay data collection outweighed the benefits identified by the EEOC and OMB in approving the revised EEO-1. The Memorandum did not set forth any other cause to support its decision to review and stay the collection of pay data, nor did it claim that any other circumstances related to the collection had changed or that it had conducted any analysis showing that the burden estimate was materially in error. The Memorandum also did not explain why the EEOC’s planned mechanism for future review of the collection was insufficient, nor did it state OMB’s legal authority to review and stay only one component of the collection of information.
98. While the Rao Memorandum asserts that consultation with the EEOC occurred, at least some EEOC commissioners were left “in the dark about the process.”65
99. Following OMB Defendants’ direction, on September 15, 2017, the EEOC published a Federal Register notice stating that EEO-1 filers should not submit pay data in their EEO-1s due by March 31, 2018.66
Count One: Violation of the APA for Agency Action That Exceeds OMB’s Authority
100. Plaintiffs hereby incorporate all allegations in above paragraphs 1 through 99 as if fully set forth herein.
101. The EEO-1 is required by EEOC regulation. 29 C.F.R. § 1602.7. OFCCP also requires filing of the EEO-1 by regulation. 41 C.F.R. § 60-1.7.
65 Danielle Paquette, Trump’s White House froze an equal-pay rule. Women are fighting to save it., Wash. Post, https://www.washingtonpost.com/news/wonk/wp/2017/10/02/trumps-white-house-froze-an-equal-pay-rule-womenare-fighting-to-save-it/?utm_term=.840f229b1b31. 66 82 Fed. Reg. at 43362.
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102. OMB Defendants do not have authority to stay an ongoing collection of information that has already been approved and that is required by regulation.
103. OMB Defendants do not have authority to review an ongoing collection of information in a current rule unless relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error. 5 C.F.R. § 1320.12(h)(2)(i). OMB Defendants’ review of the revised EEO-1 did not meet either criteria.
104. OMB Defendants therefore acted in a manner that was in excess of legal authority in violation of the APA, 5 U.S.C. § 706(2)(C). EEOC Defendants acceded to the unlawful action.
Count Two: Violation of the APA for Agency Action That Is Contrary to Regulation (in the alternative to Count One)
105. Plaintiffs hereby incorporate all allegations in above paragraphs 1 through 99 as if fully set forth herein.
106. OMB may review previously approved collections of information not in agency rules “after consultation with the agency” and “only when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submissions were materially in error.” 5 C.F.R. § 1320.10(f).
107. OMB may stay the effectiveness of an approval of a collection of information that is not specifically required by agency rule only “[f]or good cause, after consultation with the agency.” 5 C.F.R. § 1320.10(g).
108. OMB Defendants’ review and stay of the revised EEO-1 did not meet the requirements of 5 C.F.R. §§ 1320.10(f) and (g), and therefore OMB Defendants’ action was contrary to OMB’s own regulations and in excess of OMB’s legal authority.
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109. OMB Defendants therefore acted in a manner that was contrary to law in violation of the APA, 5 U.S.C. § 706(2)(A). EEOC Defendants acceded to the unlawful action.
Count Three: Violation of the PRA and the APA for Agency Action That Is Contrary to Statute
110. Plaintiffs hereby incorporate all allegations in above paragraphs 1 through 99 as if fully set forth herein.
111. The PRA states: “[n]othing in this chapter shall be interpreted as increasing … the authority of [OMB] with respect to … the substantive authority of any Federal agency to enforce the civil rights laws.” 44 U.S.C. 3518(e).
112. Section 709(c) of Title VII of the Civil Rights Act of 1964 requires employers to make and keep records relevant to the determination of whether unlawful employment practices have been or are being committed, to preserve such records, and to produce reports as the EEOC prescribes by regulation or order. 42 U.S.C. § 2000e-8(c).
113. The EEOC determined that collecting pay data was reasonable, necessary and appropriate to enforce Title VII and other civil rights laws. The revised EEO-1 was also expected to strengthen OFCCP’s ability to select appropriate federal contractors and subcontractors for review of their compliance with equal employment opportunity mandates.
114. OMB Defendants stayed the EEOC’s ability to collect this pay data. 115. In so doing, OMB Defendants acted in a manner that violated the PRA, 44 U.S.C. 3518(e), and was therefore contrary to law in violation of the APA, 5 U.S.C. § 706(2)(A). EEOC Defendants acceded to the unlawful action.
Count Four: Violation of the APA for Agency Action That Is Arbitrary and Capricious
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116. Plaintiffs hereby incorporate all allegations in above paragraphs 1 through 99 as if fully set forth herein.
117. OMB Defendants did not provide a reasoned basis for the decision to review and stay the revised EEO-1. As outlined above, they failed to consider the EEOC’s analysis regarding the utility and burden for the pay data revisions to the EEO-1, as well as the EEOC’s plan for ongoing monitoring of this utility and burden; the decision ran counter to the evidence before OMB; OMB Defendants did not provide sufficient justification for the reversal of the prior approval of the revisions to the EEO-1; and they otherwise failed to provide a plausible justification for the action.
118. In so doing, OMB Defendants acted in a manner that was arbitrary, capricious, and otherwise contrary to law in violation of the APA, 5 U.S.C. § 706(2)(A). EEOC Defendants acceded to the unlawful action.
Prayer for Relief WHEREFORE, Plaintiffs pray that this Court grant the following relief:
1. Declare that OMB Defendants violated the PRA and the APA and exceeded their statutory authority in reviewing and staying the collection of pay data as part of the EEO-1 and that these actions are therefore unlawful;
2. Declare that the stay proclaimed in the Rao Memorandum and the September 15, 2017, Federal Register notice was a nullity, and that the revised EEO-1 remains in effect;
3. Vacate the stay, and reinstate the revised EEO-1 reporting requirements; 4. Order EEOC Defendants to publish a Federal Register notice announcing this reinstatement or to take other equivalent action necessary to immediately reinstate the pay data collection;
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5. Award Plaintiffs their costs, reasonable attorneys’ fees, and other disbursements incurred in this action; and
6. Grant such other relief as the Court may deem just and proper.

Dated: November 15, 2017

Respectfully submitted,
/s/ Javier M. Guzman Javier M. Guzman (DC Bar No. 462679) Robin F. Thurston (pro hac vice motion to be filed)* Jeffrey B. Dubner (DC Bar No. 1013399) Democracy Forward Foundation P.O. Box 34553 Washington, DC 20043 (202) 448-9090 jguzman@democracyforward.org rthurston@democracyforward.org jdubner@democracyforward.org
*Admitted in the State of Illinois; practicing under the supervision of members of the DC Bar while DC Bar application is pending.
Fatima Goss Graves (DC Bar No. 481051) Emily J. Martin (DC Bar No. 991968) Sunu Chandy (DC Bar No. 1026045) Maya Raghu (DC Bar No. 1035558) (pro hac vice motions to be filed) National Women’s Law Center 11 Dupont Circle, NW, Ste 800 Washington, DC 20036 (202) 588-5180 fgraves@nwlc.org emartin@nwlc.org schandy@nwlc.org mraghu@nwlc.org
Attorneys for Plaintiffs

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 Case 1:17-cv-02458-TSC Document 45 Filed 03/04/19 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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NATIONAL WOMEN’S LAW CENTER, )

et al.,

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Plaintiffs,

)

)

v.

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)

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OFFICE OF MANAGEMENT AND

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BUDGET, et al.,

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)

)

Defendants.

)

)

Civil Action No. 17-cv-2458 (TSC)

MEMORANDUM OPINION Pending before the court are Defendants’ Motion to Dismiss, ECF No. 11; Plaintiffs’ Motion for Summary Judgment, ECF No. 22; and Defendants’ Motion for Summary Judgment, ECF No. 27. Having reviewed the parties’ filings, the record, and the relevant case law, the court, for reasons set forth below, hereby DENIES Defendants’ Motion to Dismiss, GRANTS Plaintiffs’ Motion for Summary Judgment, DENIES Defendants’ Motion for Summary Judgment, and VACATES the Office of Management and Budget’s stay of the Equal Employment Opportunity Commission’s revised EEO-1 form and the September 15, 2017 Federal Register Notice (Stay the Effectiveness of the EEO-1 Pay Data Collection, 82 Fed. Reg. 43362) announcing the same. It is further ORDERED that the previous approval of the revised EEO-1 form shall be in effect.
I. BACKGROUND A. The Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. § 3501 et seq. (“PRA”), was established to “minimize the paperwork burden” that the federal government may require “for
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individuals, small businesses, educational and nonprofit institutions, Federal contractors, State, local and tribal governments, and other persons resulting from the collection of information by or for the Federal Government.” 44 U.S.C. § 3501(1). The statute also strives to “improve the quality and use of Federal information to strengthen decisionmaking, accountability, and openness in Government and society.” Id. § 3501(4).
In striking the balance between minimizing the burden on the public and obtaining useful information for the government, Congress established a procedure in which federal agencies must obtain approval from the Office of Management and Budget (“OMB”) to collect certain types of information from the public. Under the PRA, an agency that proposes to collect information first conducts its own “evaluation of the need for the collection of information” and the burden collecting such information would create. Id. § 3506(c)(1)(A)(i). Frequently, the agency is also required to publish a “sixty-day notice” in the Federal Register to solicit comments on the agency’s proposal. Id. § 3506(c)(2)(A). After considering comments and making any revisions, the agency submits the proposed collection of information to OMB and publishes a second Federal Register notice. This notice announces the start of OMB’s review and begins a 30-day comment period. Id. § 3507(a)-(b). “In [this] notice, the agency must set forth (1) a title for the collection of information, (2) a summary of the collection of information, (3) a brief description of the need for the information and the proposed use of the information, (4) a description of the likely respondents and proposed frequency of response to the collection of information, and (5) an estimate of the burden that shall result from the collection of information.” United to Protect Democracy v. Presidential Advisory Comm'n on Election Integrity, 288 F. Supp. 3d 99, 102 (D.D.C. 2017) (citing 44 U.S.C. § 3507(a)(1)(D)(ii)(I)-(V)).
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OMB may not act on the agency’s request until after the comment period has closed. 44 U.S.C. § 3507(b).
Upon completion of its review, OMB, through the Office of Information and Regulatory Affairs (“OIRA”), makes one of three determinations: it (1) approves the collection of information; (2) disapproves the collection of information; or (3) instructs the agency to make changes to the collection of information. Id. § 3507(c)(1), (e)(1). Before approving a proposed collection, OMB must “determine whether the collection of information by the agency is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility.” Id. § 3508. Once OMB grants approval, the agency may proceed with its collection, and OMB issues a control number that must be displayed on the collection-of-information form. Id. § 3507(a)(2), (3). An OMB approval is for three years, after which the agency must seek an extension from OMB. Id. §§ 3507(g), (h)(1).
At any point before the approval period expires, OMB “may decide on its own initiative, after consultation with the agency, to review the collection of information.” 5 C.F.R. § 1320.10(f). This review can be started only “when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error.” Id. OMB may also stay the prior approval of a collection of information not contained in a current rule, but only for “good cause.” Id. § 1320.10(g).
B. The EEO-1 Pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., employers are required to “make and keep such records relevant to the determination[] of whether unlawful employment practices have been or are being committed, . . . preserve such records” and produce reports as mandated by EEOC. 42 U.S.C. § 2000e-8(c)(1)-(3). Since
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1966, EEOC has required that employers with one hundred or more employees file with EEOC the “Employer Information Report EEO-1” (“EEO-1”). 29 C.F.R. § 1602.7.1 The EEO-1 requires employers to report the number of individuals employed by job category, sex, race, and ethnicity. Agency Information Collection Activities: Revision of the Employer Information Report (EEO-1) and Comment Request, 81 Fed. Reg. 5113 (Feb. 1, 2016) (“Sixty-Day Notice”). EEOC makes aggregate EEO-1 information for major geographic areas and industry groups publicly available on an annual basis. Compl. ¶ 59.
C. Revision of EEO-1 – Component 2 In 2010, the EEOC “joined other federal agencies . . . to identify ways to improve enforcement of federal laws prohibiting pay discrimination.” 81 Fed. Reg. at 5114. Subsequently, the EEOC “commissioned a study, and the NAS [National Academy of Sciences] convened a Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin.” Id. NAS issued a report which “recognized the potential value for enforcement of collecting pay data from employers by sex, race, and national origin through a survey such as the EEO-1, and emphasized the importance of a definitive plan for how the data would be used in coordination with other equal employment opportunity (EEO) enforcement agencies.” Id. NAS also “recommended that the EEOC conduct a pilot to inform the parameters for any pay data collection.” Id. (footnote omitted). Following NAS’s recommendation, “EEOC commissioned an independent Pilot Study to identify the most efficient means to collect pay data.” Id. The Pilot Study “made technical recommendations about several central components of a data collection, including: The unit of pay to be collected; the best
1 Certain federal contractors and subcontractors with more than fifty employees are also subject to this requirement, which is enforced by the U.S. Department of Labor Office of Federal Contract Compliance Programs (“OFCCP”). 41 C.F.R. § 60-1.7(a).
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summary measures of central tendency and dispersion for rates of pay; appropriate statistical test(s) for analyzing pay data; and the most efficient and least costly methods for transmitting pay data from employers.” Id. It “also estimated employer burden-hour costs and the processing costs associated with the recommended method of collection.” Id.
In 2012, the EEOC held a two-day meeting with “employer representatives, statisticians, human resources information systems (HRIS) experts, and information technology specialists (work group).” Id. at 5114-15. This group “reviewed the current data collection procedures, provided feedback on future modernization of the EEO surveys, and engaged in brainstorming that led to ideas submitted individually by group participants on a number of topics, including collecting pay data as well as multiple-race category data on the EEO-1.” Id. at 5115. The report from this group “reflect[ed] feedback from participants that the burden of reporting pay data would be minimal for EEO-1 filers.” Id.
On February 1, 2016, following this interagency process, EEOC, in accordance with the PRA, published a Federal Register notice announcing its intention to seek a three-year approval from OMB of “a revised Employer Information Report (EEO-1) data collection.” 81 Fed. Reg. at 5113. The notice explained that the “revised data collection has two components. Component 1 collects the same data that is gathered by the currently approved EEO-1: Specifically, data about employees' ethnicity, race, and sex, by job category. Component 2 collects data on employees' W-2 earnings and hours worked, which EEO-1 filers already maintain in the ordinary course of business.” Id. EEOC proposed “collect[ing] aggregate W-2 data in 12 pay bands for the 10 EEO-1 job categories.” Id. at 5117. The notice provided a weblink to a sample data collection form. Id. at 5118 (“An illustration of the data to be collected by both Components 1
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and 2 can be found at [link].”).2 The notice also anticipated that employers would provide the information either through online filing or by uploading an electronic file. Id. at 5120. EEOC estimated that the new pay data collection would increase the reporting time per filer by 3.4 hours. Id. at 5119. On March 16, 2016, EEOC held a public hearing on its proposed pay data collection. Agency Information Collection Activities; Notice of Submission for OMB Review, Final Comment Request: Revision of the Employer Information Report (EEO-1), 81 Fed. Reg. 45479, 45480 (July 14, 2016).
On July 14, 2016, EEOC published a second Federal Register notice (“Thirty-Day Notice”) seeking a three-year approval from OMB of a revised EEO-1 data collection. 81 Fed. Reg. 45479. This notice explained that EEOC had to revise the EEO-1 for the enforcement of equal pay laws. Id. at 45481-83. EEOC intended to maintain its earlier “proposal to collect W-2 income and hours-worked data in the twelve pay bands . . . for each of the 10 EEO-1 job categories.” Id. at 45489. The filings of EEO-1 reports would be done “either by digital upload or by data entry onto a password-protected, partially pre-populated digital EEO-1.” Id. at 45493. For those employers who filed through data uploads, EEOC would post online the new data file specifications “for Components 1 and 2 of the modified EEO-1 as soon as OMB approve[d] the information collection.” Id. at 45487. EEOC further explained that “[t]he EEO-1 data file specifications will be for data uploads (submitting EEO-1 data in one digital file), but they also will describe the formatting of data for direct data entry onto the firm's secure EEO-1 account with the Joint Reporting Committee.” Id. “For reference,” EEOC provided a link to a website with the then-current EEO-1 data file specifications. Id. EEOC estimated that the addition of Component 2 would increase the filing cost for each EEO-1 filed by $416.58. Id. at 45493-94.
2 This webpage is no longer active. Decl. of Benjamin Link ¶ 3, ECF No. 22-2. 6

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The collection of pay data would begin with the 2017 reporting cycle, and EEO-1 respondents would be required to submit their reports by March 31, 2018. Id. at 45484. On September 28, 2016, EEOC provided its Final Supporting Statement for the EEO-1 report to OMB for review. Link Decl. ¶ 12, Ex. I. OMB approved the proposed collection on September 29, 2016 and issued an OMB control number for the revised EEO-1. Id. ¶ 11, Ex. H.
EEOC subsequently released an instruction booklet for the March 2018 EEO-1 survey, along with information about the revised EEO-1, including data file specifications for employers who planned to file through data upload. Id. ¶¶ 5, 6. The data file specifications included a sample EEO-1 form for pay data collection and a “data file layout” form. Id. ¶ 5. The data file layout form was a spreadsheet with instructions for formatting pay data submissions to EEOC. Id. ¶ 7, Ex. D.
D. OMB’s Decision to Review and Stay Component 2 Just under a year after OMB approved the data collection, on August 29, 2017, Neomi Rao, the OIRA Administrator, sent a memorandum to Victoria Lipnic, the Acting Chair of the EEOC, stating that OMB had decided to initiate a review and stay of EEOC’s new collection of pay data under Component 2. In support of this decision, the memorandum stated in pertinent part:
The PRA authorizes the Director of OMB to determine the length of approvals of collections of information and to determine whether collections of information initially meet and continue to meet the standards of the PRA. In this context, under 5 CFR 1320.10(f) and (g), OMB may review an approved collection of information if OMB determines that the relevant circumstances related to the collection have changed and/or that the burden estimates provided by EEOC at the time of initial submission were materially in error. OMB has determined that each of these conditions for review has been met. For example, since approving the revised EEO-1 form on September 29, 2016, OMB understands that EEOC has released data file specifications for employers to use in submitting EEO-1 data. These specifications were not contained in the Federal Register notices as part of the public comment process nor were they outlined in the supporting
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statement for the collection of information. As a result, the public did not receive an opportunity to provide comment on the method of data submission to EEOC. In addition, EEOC’s burden estimates did not account for the use of these particular data file specifications, which may have changed the initial burden estimate. OMB has also decided to stay immediately the effectiveness of the revised aspects of the EEO-1 form for good cause, as we believe that continued collection of this information is contrary to the standards of the PRA. Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues. Memorandum from Neomi Rao, Adm’r, OIRA, to Victoria Lipnic, Acting Chair, EEOC (Aug. 29, 2017); JA020, ECF No. 44 (“Rao Memorandum”).
The memorandum further directed EEOC to publish a notice in the Federal Register “announcing the immediate stay of effectiveness of the” pay data collection but “confirming that businesses may use the previously approved EEO-1 form in order to comply with their report obligations for FY 2017.” Id. EEOC published this notice on September 15, 2017. Stay the Effectiveness of the EEO-1 Pay Data Collection, 82 Fed. Reg. 43362 (Sept. 15, 2017).
This stay remains in effect nearly a year and a half later.
E. Plaintiffs’ Lawsuit Plaintiff National Women’s Law Center (“NWLC”) is “a 46-year-old nonpartisan, nonprofit organization that advocates for the rights of women and girls at school, at work, at home, and in their communities.” Johnson Decl. ¶ 3. “[C]losing the gender wage gap, and in particular the race and gender wage gaps experienced by women of color,” is “[o]ne of NWLC’s primary and longstanding priorities.” Id. ¶ 4. As part of its mission, NWLC strives to “educate employers, the public, and policymakers about race and gender wage gaps,” id. ¶ 5, and “has published numerous analyses and reports about workplace pay disparities.” Id. Many of these reports “cite data on pay inequality across a number of factors and reflect time-consuming analysis of Bureau of Labor Statistics and Census data undertaken by NWLC staff.” Id.
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Plaintiff Labor Council for Latin American Advancement (“LCLAA”) is “a national 501(c)(3) representing the interests of approximately 2 million Latino/a trade unionists throughout the United States and Puerto Rico, as well as other non-unionized Latino workers,” and “has 52 chapters around the country.” Sanchez Decl. ¶ 3. LCLAA’s “mission is to assist workers to advance their rights in their workplace and convince employers to take steps to improve working conditions, both through advocacy and through training and counseling workers and union members.” Id. ¶ 4. Recently, “[c]losing the pay gap has been an increasing focus of LCLAA’s work.” Id. ¶ 5. For example, in 2012 “LCLAA created the Trabajadoras Initiative which specifically seeks to protect and advance the interests of Latina workers on issues that impact them, including seeking to eradicate the persistent pay gap.” Id. ¶ 6. LCLAA’s activities include educating its members, chapter presidents, and the public about the pay gap. Id. ¶¶ 7, 8. Starting in 2016, LCLAA has “host[ed] an annual National Latina Equal Pay Summit, which provides information, education and solutions to closing the pay gap.” Id. ¶ 8. Moreover, as part of its education efforts, “LCLAA periodically issues reports . . . about the challenges encountered by Latinos and Latinas in the workforce. The reports discuss data compiled and published by the Government on income and employment—including EEO-I data. LCLAA uses these reports in advocating for policy change and enforcement of equal pay laws, and in educating its members on ways to negotiate with employers and encourage them to follow practices that reduce workforce discrimination.” Id. ¶ 9.
On November 15, 2017, two months after the Rao Memorandum and the subsequent notice in the Federal Register staying the effectiveness of the EEO-1 pay data collection, Plaintiffs sued, naming as defendants: OMB; John Michael Mulvaney, Director of OMB; Neomi Rao, Administrator of OIRA; EEOC; and Victoria A. Lipnic, Acting Chair of EEOC. Plaintiffs
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ask this court to: 1) declare that OMB Defendants violated the PRA and Administrative Procedure Act (“APA”) and exceeded their statutory authority in reviewing and staying the collection of pay data as part of the EEO-1; 2) declare that the stay announced in the Rao Memorandum and the September 15, 2017 Federal Register notice was a nullity, and that the revised EEO-1 remains in effect; 3) vacate the stay and reinstate the revised EEO-1 reporting requirements; 4) order EEOC Defendants to publish a Federal Register notice announcing this reinstatement or take equivalent action necessary to immediately reinstate the pay data collection; 5) award Plaintiffs their costs, reasonable attorneys’ fees, and other disbursements incurred in this action; and 6) grant such other relief as the court may deem just and proper. Compl. at 34-35.
NWLC claims, among other injuries, that if OMB had not stayed the pay data collection NWLC “would have been able to make its reports and advocacy more robust with additional data and analysis.” Johnson Decl. ¶ 6. Possession of the aggregate EEO-1 pay data would allow NWLC to “focus its resources, analysis, and advocacy on the jobs, industries, and regions where intervention is most urgent.” Id. ¶ 7. LCLAA similarly claims injury from OMB’s decision to stay the pay data collection. With the information that otherwise would have been collected, LCLAA would “have presented statistics on pay equity within industries and across the nation, based on this data. This information would have materially improved LCLAA’s and its members’ ability to negotiate with and educate employers and to fulfill LCLAA’s mission of improving the condition of Latinos and Latinas in the workforce.” Sanchez Decl. ¶ 11.
Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that Plaintiffs lack standing, and pursuant to Federal Rule of Civil Procedure
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12(b)(6), because Plaintiffs have not challenged a final agency action. Both sides have moved for summary judgment.
II. MOTION TO DISMISS A. Legal Standard
A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) “presents a threshold challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “[T]he core component of standing is an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff bears the burden of establishing the elements of standing, id. at 561, and each element “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (quoting Lujan, 504 U.S. at 561). The plaintiff must “show a ‘substantial probability’ that it has been injured, that the defendant caused its injury, and that the court could redress that injury.” Sierra Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002) (citation omitted). With respect to a facial 12(b)(1) motion to dismiss, the court must “accept the well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff's favor.” Arpaio, 797 F.3d at 19. At the summary judgment stage, the plaintiff “must support each element of its claim to standing by affidavit or other evidence.” Scenic Am., Inc. v. U.S. Dep't of Transp., 836 F.3d 42, 48 n.2 (D.C. Cir. 2016) (quotation marks and citation omitted).
“To survive a motion to dismiss” under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation
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omitted). However, a court “is not bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks and citation omitted).
B. Informational and Organizational Standing Because Plaintiffs are two organizations seeking to sue on their own behalf, i.e., seeking organizational standing, “like an individual plaintiff” they must show “[1] actual or threatened injury in fact [2] that is fairly traceable to the alleged illegal action and [3] likely to be redressed by a favorable court decision.” People for the Ethical Treatment of Animals v. USDA (“PETA”), 797 F.3d 1087, 1093 (D.C. Cir. 2015) (quotation marks and citation omitted).
1. Informational Standing Although both plaintiffs base their claim of injury on the loss of information that Component 2 would have provided, both nevertheless lack so-called “informational standing.” The D.C. Circuit has been clear that to demonstrate informational standing, a plaintiff must show that “(1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (citation omitted). It is undisputed that Plaintiffs here do not have a statutory right to the information they allege forms their injury in fact. Therefore, any claim to informational standing “fails at the first part of the inquiry, the sine qua non of informational injury.” Id.
2. Organizational Standing Whether Plaintiffs’ loss of information can also serve as an injury in fact as a component of organizational standing, however, presents a more complicated question. While the D.C.
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Circuit has provided some conflicting guidance, this court concludes that under binding precedent, in particular PETA and Action Alliance of Senior Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931 (D.C. Cir. 1986), Plaintiffs have demonstrated organizational standing.
The Supreme Court has said that “the injury-in-fact requirement requires a plaintiff to allege an injury that is both concrete and particularized.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016) (quotation marks and citation omitted) (emphasis in original). “A particularized injury is personal, individual, distinct, and differentiated—not generalized or undifferentiated. An actual or imminent injury is certainly impending and immediate—not remote, speculative, conjectural, or hypothetical.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 914 (D.C. Cir. 2015) (quotation marks and citation omitted). Plaintiffs must show that they have “suffered a concrete and demonstrable injury to [their] activities.” Id. at 919 (quotation marks and citation omitted).
In order to determine whether an organization has suffered an injury in fact, courts conduct a “two-part inquiry— we ask, first, whether the agency's action or omission to act injured the [organization's] interest and, second, whether the organization used its resources to counteract that harm.” Id. (quotation marks and citation omitted) (alteration in original).
In Action Alliance, plaintiffs were “four organizations that endeavor[ed], through informational, counseling, referral, and other services, to improve the lives of elderly citizens.” 789 F.2d at 935. They sued the Department of Health and Human Services (“HHS”), alleging that HHS’s regulation “significantly restrict[ed]” the flow of “information regarding services available to the elderly” that, if possessed by plaintiffs, “would enhance [their] capacity . . . to refer members to appropriate services and to counsel members when unlawful age discrimination may have figured in a benefit denial.” Id. at 937. The D.C. Circuit found that the plaintiffs
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established standing, because the regulations kept plaintiffs from “access to information and avenues of redress they wish[ed] to use in their routine information-dispensing, counseling, and referral activities. Unlike the mere ‘interest in a problem’ or ideological injury in Sierra Club [v. Morton, 405 U.S. 727, 735, 739 (1972)],” plaintiffs had “alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they [were] engaged.” Action Alliance, 789 F.2d at 937-38 (quotation marks omitted) (footnote omitted).
In PETA, plaintiff, an animal rights organization, sued the USDA and requested that the court order USDA to “extend enforcement of the AWA [Animal Welfare Act] to birds covered by the AWA, by enforcing the general AWA standards that presently exist.” 797 F.3d at 1091 (quotation marks omitted) (footnote omitted). PETA claimed that USDA’s failure to investigate allegations of bird mistreatment denied the public reports of those alleged instances, and that it used the information in the reports to educate its members and the public. Id. at 1095-96. The district court found that PETA had standing because USDA’s decision not to apply the AWA to birds “precluded PETA from preventing cruelty to and inhumane treatment of these animals through its normal process of submitting USDA complaints and it deprived PETA of key information that it relies on to educate the public.” Id. at 1094 (quotation marks and citation omitted). The D.C. Circuit affirmed, noting that “[t]he key issue is whether PETA has suffered a concrete and demonstrable injury to [its] activities, mindful that, under our precedent, a mere setback to [PETA's] abstract social interests is not sufficient.” Id. at 1093 (second alteration in original) (quotation marks and citations omitted). The Court explained that in determining “whether an organization's injury is concrete and demonstrable,” a court asks “first, whether the agency's action or omission to act injured the [organization's] interest and, second, whether the organization used its resources to counteract that harm.” Id. at 1094 (alteration in original)
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(quotation marks and citations omitted). Applying these standards, the Court found that PETA’s alleged injuries were “materially indistinguishable from those alleged by the organizations in Action Alliance.” Id. at 1094. It held that the “USDA's allegedly unlawful failure to apply the AWA's general animal welfare regulations to birds has perceptibly impaired PETA's ability to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public.” Id. at 1095 (quotation marks and brackets omitted). Because PETA expended resources to counters its injuries, it established organization standing. Id. Significantly, plaintiffs did not allege a statutory right to the information. See id. at 1103 (Millett, J., concurring dubitante) (“Even as alleged by PETA, there is no suggestion that anything in the Animal Welfare Act or any regulation gives PETA any legal right to such information or reports.”) (emphasis in original).
Under Action Alliance and PETA, Plaintiffs have demonstrated an injury in fact. First, they have shown that the loss of pay data caused a “concrete and demonstrable injury” that is “more than simply a setback to [their] abstract social interests.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). As part of its mission to eradicate the gender wage gap, NWLC seeks to educate the public by publishing analyses and reports about workplace pay disparities. Johnson Decl. ¶ 4. When NWLC became aware that EEOC was planning to publish the pay data based on the revised EEO-1, it determined that this data could have revealed new information about the race and gender gaps. Id. ¶ 6. This information would have made NWLC’s reports and advocacy more robust because they would have additional data and analysis. Id. The aggregate EEO-1 pay data would have enabled NWLC to focus its efforts where intervention was most urgent. Id. ¶ 7. With respect to NWLC’s efforts to enforce and redress workplace discrimination, NWLC’s pro bono representation would have benefited from
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the EEO-1 pay data collection. Id. ¶ 8. With the aggregate pay data, NWLC would more easily have been able to evaluate clients’ claims. Id. ¶ 9. When representing their clients before the EEOC and in courts, the NWLC “bear[s] the costs of amassing evidence about internal pay inequities and comparators’ pay practices to obtain redress.” Id. ¶ 10. This evidence, the NWLC represents, may help persuade EEOC to act or prove claims to a court or jury. Id. Finally, the aggregate employee pay data would reduce NWLC’s costs when representing clients “in the EEOC charge process and beyond.” Id. ¶ 11.
Similarly, as part of its advocacy and educational work, Plaintiff LCLAA issues reports “about the challenges encountered by Latinos and Latinas in the workforce.” Sanchez Decl. ¶ 9. LCLAA would have used the EEO-1 aggregate pay data to present “statistics on pay equity within industries and across the nation, based on this data. This information would have materially improved LCLAA’s and its members’ ability to negotiate with and educate employers and to fulfill LCLAAs mission of improving the condition of Latinos and Latinas in the workforce.” Id. ¶ 11.
Plaintiffs’ declarations establish that NWLC and LCLAA would have used the EEOC pay data to advance their missions by using the data in their publications and as part of their public education and advocacy campaigns. The loss of the pay data constitutes the type of informational harm the D.C. Circuit has found to be “both concrete and specific to the work in which [these organizations] are engaged.” PETA, 797 F.3d at 1095 (quotation marks and citation omitted); see id. at 1094 (stating that the government “deprived PETA of key information that it relies on to educate the public”) (quotation marks and citation omitted); Action Alliance, 789 F.2d at 937-38 (noting that “the challenged regulations denied plaintiffs access to information
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and avenues of redress they wish to use in their routine information-dispending, counseling, and referral activities”).
Second, Plaintiffs have shown that they have used their resources to “counteract [the] harm” caused by the stay of the data collection. Food & Water Watch, Inc., 808 F.3d at 919 (citation omitted). After OMB stayed the data collection, NWLC “expended funding and staff time that would have been unnecessary absent the stay.” Johnson Decl. ¶ 12. These additional expenditures included “time to engage with employers to encourage voluntary compliance with equal pay laws and changes in compensation practices and policies” and “voluntary self-audits of pay practices and internal wage gaps, in order to compensate for the self-evaluation of internal wage gaps that the EEO-1 pay data collection would have required employers to undertake.” Id. ¶ 12. Moreover, “in order to meet the objective of improved enforcement of pay discrimination law and increased self-evaluation by employers of their own practices, NWLC has expended and will expend funding and staff time” on tasks that it is “compelled” to take in pursuit of “its mission of eradicating the pay gap.” Id. ¶¶ 13, 14. These tasks require NWLC staff to “create model state and/or local pay data collection legislation; create educational materials setting out the need for such pay data collection and the interests it serves; build coalition and grassroots support in targets states and/or localities for these measures; and advocate at the state and local level for adoption and implementation of such legislation.” Id. ¶ 13. These and similar endeavors have forced NWLC staff members to divert time from their daily operations. Id. ¶ 15.
LCLAA states that “[t]o replicate the same information LCLAA would obtain from the revised EEO-l, LCLAA would have to convince thousands of employers to voluntarily provide data and then employ statisticians to analyze the resulting raw data—efforts that would require enormous expense and still likely be unsuccessful, given LCLAA’s inability to require
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employers to comply.” Sanchez Decl. ¶ 12 (emphasis in original). LCLAA further represents that “any attempt to compile such data would almost certainly underreport pay inequities, because employers with significant disparities would be particularly unlikely to provide data voluntarily.” Id. Because of the stay, LCLAA is considering whether to use a “very costly” survey of workers to obtain the information it otherwise would have had. Id. ¶ 13. The stay also “forced LCLAA to redeploy its limited staff resources away from their daily operations.” Id. ¶ 14. For example, LCLAA had planned to have staff work on educational materials related to the North American Free Trade Agreement and its impact for Latino/a workers—an initiative that “is a core and common part of LCLAA’s daily operations”—but it could not do so because it had to redeploy its resources to working on obtaining the information that it likely would have received but for OMB’s decision to stay the data collection. Id. ¶ 16.
The court must next determine whether Defendants caused Plaintiffs’ injuries and whether they can be redressed by a favorable court decision. To establish causation, Plaintiffs must show “a causal connection between the injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (quotation marks and citation omitted) (alterations in original). “Redressability examines whether the relief sought, assuming that the court chooses to grant it, will likely alleviate the particularized injury alleged by the plaintiff.” West v. Lynch, 845 F.3d 1228, 1235 (D.C. Cir. 2017) (quoting Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663–64 (D.C. Cir. 1996) (en banc) (footnote omitted)). Standing is “substantially more difficult to establish,” because Plaintiffs are not the object of the government action. Lujan, 504 U.S. at 562 (quotation marks and citation omitted). “If the challenged conduct is at best an indirect or contributing
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cause of the plaintiff’s injury—i.e., if the injury may or may not follow from the conduct, based on a chain of contingencies—the plaintiff faces an uphill climb in pleading and proving redressability.” West, 845 F.3d at 1235–36 (quotation marks and citation omitted). Thus, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (quotation marks and citations omitted).
The government does not challenge the proposition that, but for OMB’s stay of the data collection, EEOC would have collected the Component 2 pay data. Therefore, the key issue with respect to causation and redressability is whether Plaintiffs have shown that EEOC likely would have publicly published the aggregate pay data collected from Component 2.
EEOC has discretion whether to publicly report the Component 2 pay data. Therefore, this court pays particular attention to EEOC’s statements about its intention to publicly publish this information. In its Thirty-Day Notice, EEOC said: “Using aggregated EEO-1 data, Census data, and potentially other data sources, the EEOC expects to periodically publish reports on pay disparities by race, sex, industry, occupational groupings, and Metropolitan Statistical Area (MSA).” 81 Fed. Reg. at 45491 (emphasis added).
Based on EEOC’s statement that it “expects to periodically publish reports” based on the aggregated EEO-1 date—a declaration that EEOC has never repudiated—the court finds that EEOC likely would have published the information and made it available to the Plaintiffs. Moreover, EEOC explained how publishing the information would be useful: “Particularly after a few years of data collection, these reports will provide useful comparative data. For smaller employers and others that do not hire consultants to analyze their compensation structures, these reports will be especially informative in light of the business case for equal pay and the need to comply with state equal pay laws.” 81 Fed. Reg. at 45491. The court has no reason not to take
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the government at its word. Cf. Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (“We take the government at its word and will hold it to it.”).3 Therefore, the court finds that Plaintiffs have demonstrated causation and redressability.
There is some uncertainty about whether an informational injury can exist in the absence of a statutory or regulatory right to the information. Judge Millett expressed this doubt in PETA, even as she recognized that “the majority opinion hew[ed] faithfully to precedential lines” in finding standing where the plaintiffs lacked any statutory or regulatory right to the information. PETA, 797 F.3d at 1099 (Millett, J., concurring dubitante). In Judge Millett’s view, finding injury in fact where plaintiffs seek information unconnected to the exercise of a right conferred by statute is “tantamount to recognizing a justiciable interest in the enforcement of the law.” Id. at 1106 (quotations marks and citation omitted); see also Food & Water Watch, Inc., 808 F.3d at 926 (D.C. Cir. 2015) (Millett J., concurring) (“Because the majority opinion properly applies our precedent to keep a bad jurisprudential situation from getting worse, I concur. But I continue to believe that our organizational standing doctrine should be revisited in an appropriate case.”).
In a difference concurrence, Judge Williams questioned whether informational injury and organizational injury should be viewed as separate categories: “[O]rganizational standing is merely the label assigned to the capacity in which the organization contends it has been harmed; it is not a separate type of injury.” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 878 F.3d 371, 381 (D.C. Cir. 2017) (Williams, J., concurring) (emphasis in original) (“EPIC”).
3 Plaintiffs note that EEOC’s expressed intention to publish reports is consistent with its “historical practice of publishing annual reports based on aggregate EE0-1 data, in addition to periodic industry specific reports.” Pls.’ Opp. to Defs.’ Mot. to Dismiss at 34, ECF No. 16 (citing EEOC, Job Patterns for Minorities and Women in Private Industry (EEO-1), https://www.eeoc.gov/eeoc/statistics/employment/jobpat-eeo1/index.cfm).
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Other cases have indicated that the Court intends for informational and organizational standing to continue to be viewed as distinct categories. See Friends of Animals v. Jewell, 828 F.3d 989, 994 (D.C. Cir. 2016) (criticizing the Sixth Circuit for conflating informational and organizational standing). Some, however, point in a different direction. See EPIC, 878 F.3d at 377 (“We conclude that EPIC lacks standing to obtain such relief because it has suffered no cognizable informational or organizational injury. We analyze and reject those two asserted types of injury in turn without necessarily agreeing that they are in fact analytically separate here.”). Nonetheless, Action Alliance and PETA have not been overruled and remain binding on this court.
The government advances numerous arguments why Plaintiffs have not established organizational standing. All are unavailing. First, the government argues that the D.C. Circuit’s decision in EPIC means that if an organization lacks informational standing it must also lack organizational standing. But EPIC could not and does not purport to overrule Action Alliance and PETA. See General Comm. of Adjustment, GO–386 v. Burlington Northern & Santa Fe Ry. Co., 295 F.3d 1337, 1340 (D.C. Cir. 2002) (explaining that Circuit precedent “binds us, unless and until overturned by the court en banc or by Higher Authority”) (quotation marks and citation omitted). Moreover, as indicated above, EPIC did not hold that informational and organizational standing are the same thing. EPIC, 878 F.3d at 377. EPIC did not make a statutory right to withheld information a necessary condition for both informational and organizational standing. Moreover, its analysis in rejecting standing was more nuanced than the government suggests.
In EPIC, plaintiff was “a nonprofit organization whose stated mission [was] to focus public attention on emerging privacy and civil liberties issues.” Id. at 374 (quotation marks omitted). EPIC sought an injunction under the APA requiring the Presidential Advisory
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Commission on Election Integrity to undertake privacy assessment review pursuant to the EGovernment Act of 2002 before collecting voter data information. Id. EPIC based its claims of both information and organizational standing on the lack of access to these privacy assessments. Id. at 377. The D.C. Circuit found that EPIC lacked informational standing because the statute was designed to protect individuals’ privacy rights, and therefore EPIC as an organization had no cognizable interest in the privacy assessment reviews. Id. at 378 (“As we read it, the provision is intended to protect individuals—in the present context, voters—by requiring an agency to fully consider their privacy before collecting their personal information. EPIC is not a voter and is therefore not the type of plaintiff the Congress had in mind.”) (emphasis in original). The D.C. Circuit then found a lack of organizational injury because without a cognizable interest in the information, EPIC could not show that its efforts to obtain the information were not entirely discretionary budgetary choices. Id. at 378-79.
In contrast, this court has already found that both NWLC and LCLAA expended resources because of the government’s refusal to collect and disseminate the Component 2 information. And, unlike in EPIC, Plaintiffs have sought information that is designed to protect far more than individuals’ privacy rights.
The government further argues that PETA is inapplicable based on the Court’s decision in Food & Water Watch, Inc. Defs.’ Reply in Supp. of Mot. to Dismiss at 5, ECF No. 18. However, in that case, the D.C. Circuit described PETA as “instructive” in explaining why plaintiffs lacked standing. 808 F.3d at 920. The plaintiffs in Food & Water Watch, Inc. challenged a new USDA regulation, claiming that it would lead to an increase in foodborne illness from contaminated poultry—a claim that the D.C. Circuit found to be unsubstantiated. The organizational plaintiff also claimed standing because it would have to spend resources
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educating the public about the fact that the new regulations did not sufficiently protect the public from unsafe poultry. Id. In PETA, the D.C. Circuit explained, because USDA did not apply animal welfare requirements to birds, it did not generate inspection reports. Id. This “denial of information perceptibly impaired” PETA’s ability to bring statutory violations to USDA’s attention and to continue to educate the public. Id. at 920-21 (quotation mark and citation omitted). In contrast, the organizational plaintiff in Food & Water Watch, Inc. could not “allege that the USDA's action restricts the flow of information that FWW uses to educate its members.” Id. at 921. Thus, Food & Water Watch, Inc. does not advance the government’s argument here, because as in PETA, Plaintiffs NWLC and LCLAA have shown that the stay of EEOC’s data collection deprives them of information that they use to educate their members and the public.
The government further contends that it could not have caused Plaintiffs to incur costs “because the EEOC has never before collected Component 2 pay data, let alone provided aggregate pay data to the public.” Defs.’ Mot. to Dismiss at 16, ECF No. 11. Therefore, the government argues, “OMB’s decision to initiate a review and stay of the same before covered employers ever submitted such data simply maintains the status quo.” Id. Here, Defendants misunderstand the law. “[T]he baseline for measuring the impact of a change or rescission of a final rule is the requirements of the rule itself, not the world as it would have been had the rule never been promulgated.” Air All. Hous. v. EPA, 906 F.3d 1049, 1068 (D.C. Cir. 2018). The government’s argument is also inconsistent with both PETA and Action Alliance, where the Court of Appeals found injury in fact even though plaintiffs claimed an entitlement to information to which they previously did not have access. See PETA, 797 F.3d at 1089 (“Although the Agency has taken steps to craft avian-specific animal welfare regulations, it has yet to complete its task after more than ten years and, during the intervening time, it has
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allegedly not applied the Act's general animal welfare regulations to birds.”); Action Alliance, 789 F.2d at 937 (plaintiffs challenging a new Department of Health and Human Services regulation).
The government advances a new standing argument in its Motion for Summary Judgment, asserting that “Plaintiffs lack standing to challenge a decision rendered in the context of an informal adjudication to which they are not a party.” Defs.’ Opp. to Pls.’ Mot. for Summ. J. and Mot. for Summ. J. at 16, ECF No. 27-1 (citation omitted).
An adjudication is “retroactive, determining whether a party violated legal policy . . . [while] rulemaking . . . is of only future effect.” Ameren Servs. Co. v. Fed. Energy Regulatory Comm'n, 880 F.3d 571, 584 (D.C. Cir. 2018); see also Catholic Health Initiatives Iowa Corp. v. Sebelius, 718 F.3d 914, 922 (D.C. Cir. 2013) (“[A]n adjudication must have retroactive effect, or else it would be considered a rulemaking.”) (emphasis in original). The Rao Memorandum relieves covered employers from their obligations to provide Component 2 pay data in the future, and EEOC’s notice in the Federal Register does the same. The government provides the court with no precedent holding that an OMB determination under the PRA is considered an adjudication, and this court will not set a new course.4
In light of the foregoing, this court finds that Plaintiffs have met their burden to demonstrate organizational standing.5
4 Moreover, even if the court were to determine that OMB’s stay is an adjudication, Plaintiffs would still have standing to challenge it, because they “point [] to a particular imminent application of the disputed agency policy, the firmness of which is not in dispute, on a fastarriving date certain.” Conference Grp., LLC v. FCC, 720 F.3d 957, 964 (D.C. Cir. 2013) (quotation marks and citation omitted) (alteration in original).
5 Given this finding, the court does not need to reach Plaintiffs’ additional standing claims. 24

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C. Final Agency Action The government moves to dismiss pursuant to Rule 12(b)(6), arguing that OMB’s decision to reconsider and stay EEOC’s collection of pay data is not a final agency action and thus not subject to judicial review. The APA limits judicial review to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. §704. “To be ‘final,’ agency action must ‘mark the consummation of the agency's decisionmaking process’ and ‘be one by which rights or obligations have been determined, or from which legal consequences will flow.’” Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C. Cir. 2017) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). “Case law interpreting this standard is ‘hardly crisp,’ and it ‘lacks many self-implementing, bright-line rules, given the pragmatic and flexible nature of the inquiry as a whole.’” Friedman v. Fed. Aviation Admin., 841 F.3d 537, 541 (D.C. Cir. 2016) (quoting Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1027 (D.C. Cir. 2016)). In Clean Air Council, “a group of environmental organizations, challenge[d] the Environmental Protection Agency's decision to stay implementation of portions of a final rule concerning methane and other greenhouse gas emissions.” 862 F.3d at 4. The government argued that the EPA’s decision to stay the rule was not reviewable because it was not a final agency action. The D.C. Circuit followed the familiar two-pronged Bennett analysis and held that the court had jurisdiction. Id. at 6-7. It found that the EPA’s stay satisfied the first prong – that the agency action “mark[s] the consummation of the agency’s decisionmaking process,” Bennett, 520 U.S. at 177-78 (quotation marks and citation omitted) – because it “suspended the rule’s compliance deadlines,” which, “[was] essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule.” Clean Air Council, 862 F.3d at 6. As the court explained, “By itself, EPA's decision to grant reconsideration, which merely begins a process that could culminate in no change to the rule,
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fails this [finality] test. The imposition of the stay, however, is an entirely different matter.” Id. at 6.
The Court also found that EPA’s stay affected the rights or obligations of the regulated parties. Id. at 7. (quotation marks omitted). The court explained:
Absent the stay, regulated entities would have had to complete their initial monitoring surveys by June 3 and repair any leaks within thirty days. Failure to comply with these requirements could have subjected oil and gas companies to civil penalties, citizens' suits, fines, and imprisonment. The stay—which EPA made retroactive to one day before the June 3 compliance deadline—eliminates that threat, and thus relieves regulated parties of liability they would otherwise face. Id. (citations omitted) (emphasis in original). Just as in Clean Air Council, OMB’s decision to reconsider and stay EEOC’s collection of Component 2 pay data “mark[ed] the consummation of the agency’s decisionmaking process.” Clean Air Council, 862 F.3d at 6 (quotation marks and citation omitted). OMB—like EPA—did not choose solely to reconsider or review the previously approved collection of information; rather, it chose to review and stay it, thereby revoking its earlier approval of the Component 2 information collection. OMB’s stay is not interlocutory simply because OMB will conduct future administrative proceedings to decide whether to approve EEOC’s Component 2 data collection. “[T]he applicable test is not whether there are further administrative proceedings available, but rather whether the impact of the order is sufficiently final to warrant review in the context of the particular case.” Id. at 7 (quoting Friedman v. FAA, 841 F.3d 537, 542 (D.C. Cir. 2016).
Moreover, OMB did not have to “review” and “stay” the data collection. The regulation’s terms establish that these are separate decisions. OMB may “review” a data collection “when relevant circumstances have changed or the burden estimates . . . were
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materially in error.” 5 C.F.R. § 1320.10(f). OMB may “stay” a data collection only for “good cause.” Id. § 1320.10(g). OMB concedes that it made two decisions by acknowledging that it had “also decided to stay immediately the effectiveness of revised aspects of the EEO-1 form.” Rao Memorandum at 2 (emphasis added).
OMB’s stay also satisfies the second step of the Bennett test. Before the stay, covered employers were legally obligated to submit the Component 2 pay data to the EEOC by March 31, 2018, and were required to file the EEO-1, 29 C.F.R. § 1602.7; 41 C.F.R. § 60-1.7(a)(1), and false reporting subjected them to fines or imprisonment, 29 C.F.R. § 1602.8. Covered employers could be compelled by court order to file their EEO-1 if they failed or refused to do so. Id. § 1602.9. The stay eliminated the pay data from this mandatory requirement, therefore creating legal consequences for the regulated entities, no matter whether OMB ultimately decides to approve or disapprove the pay data. See Clean Air Council, 862 F.3d at 7 (“Failure to comply with these requirements could have subjected oil and gas companies to civil penalties, citizens' suits, fines, and imprisonment. The stay . . . eliminates that threat, and thus relieves regulated parties of liability they would otherwise face.”) (citations omitted).
The government nevertheless contends that because the stay does not directly affect the Plaintiffs’ rights or obligations it fails the second prong of the finality test because Plaintiffs do not have any legal right to the pay data EEOC would have collected. Defs.’ Mot. to Dismiss at 26-27, ECF No. 11. This argument fails because the correct test asks whether the stay has legal consequences, not whether it affects the plaintiffs’ legal obligations. In Clean Air Council, the D.C. Circuit found that an environmental organization had standing where the stay affected the obligations of the regulated industries – oil and gas – not the environmentalists. 862 F.3d at 4; see also Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, 417 F.3d 1272, 1281
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(D.C. Cir. 2005) (“Because the Corps' [policies] mark the completion of the Corps' decisionmaking process and affect the [regulated entities’] day-to-day operations, they constitute final agency action regardless of the fact that the Corps' action might carry different (or no) consequences for a different challenger, such as an environmental group.”). The government relies on DRG Funding Corp. v. Sec’y of Hous. & Urban Dev., 76 F.3d 1212 (D.C. Cir. 1996), but in that case the agency’s actions did not have any legal consequence. Id. at 1215 (“[This] is not a case in which legal consequences will flow from the agency action taken thus far.”) (quotation marks and citation omitted).
Defendants argue that Clean Air Council is inapposite. They point out that Clean Air Council involved the stay of a rule promulgated pursuant to notice and comment, the PRA permits the review and stay of the collection of information not contained in a rule, and permits only review but not the stay of information contained in a rule, and OMB’s stay of Component 2 data is a stay of a collection of information not contained in a rule. While each of these points is correct, the Defendants cannot weave them together in a way that demonstrates why the stay in this case is not final.
First, OMB discusses the legislative history of the PRA with respect to the decision to permit stays of some collections of information but not others, see Defs.’ Reply in Supp. of Mot. to Dismiss at 14-15, but this discussion reveals only that Congress granted substantive authority to allow a stay in one place and withheld authority to grant a stay elsewhere. It does not speak to the finality of a stay.6
6 Defendants suggest that the notice and comment underpinnings of the rule stayed in Clean Air Council were critical to the court’s finding that the stay amounted to final action. See Defs.’ Reply in Supp. of Mot. to Dismiss at 17. However, the language that Defendants quote does not
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In any event, Defendants have failed to account for the fact that this case involves the interplay between two governmental entities, OMB and EEOC, and by staying EEOC’s collection of information, OMB has effectively stayed its own prior approval of the collection— an approval which was itself granted only after two rounds of notice and comment. See 81 Fed. Reg. 5113; 81 Fed. Reg. 45479. Moreover, Defendants do not argue that judicial review would be unavailable if OMB had initially disapproved the collection of information by EEOC. Cf. 44 U.S.C. § 3507 (d)(6) (expressly stating that certain actions are not subject to judicial review). If such disapproval would have been judicially reviewable, it does not make any sense that OMB could evade judicial review by first approving the collection and then staying it.
III. SUMMARY JUDGMENT A. Legal Standard
When a plaintiff challenges an agency’s final action under the APA, summary judgment “is the mechanism for deciding whether as a matter of law an agency action is supported by the administrative record and is otherwise consistent with the APA standard of review.” Louisiana v. Salazar, 170 F. Supp. 3d 75, 83 (D.D.C. 2016) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)). A court must “hold unlawful and set aside agency action” that it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
come from the portion of the opinion dealing with the finality of the stay; it comes from the portion of the opinion finding the stay arbitrary and capricious.
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B. Analysis of Whether the Stay Violates OMB’s Regulations or is Arbitrary and Capricious
Under its own regulations, OMB may review a previously approved collection of information only when “relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error.” 5 C.F.R. § 1320.10(f). If either requirement is met, OMB may stay a prior approval of a collection of information not contained in a rule, but only for “good cause” shown and “after consultation with the agency.” Id. § 1320.10(g). OMB has not shown that a relevant circumstance has changed or that the burden estimate provided was materially in error. Moreover, it has not shown good cause.
In staying EEOC’s data collection, OMB stated that the “data file specifications for employers to use in submitting EEO-1 data . . . were not contained in the Federal Register notices as part of the public comment process nor were they outlined in the supporting statement for the collection of information.” Rao Memorandum at 1. Therefore, OMB claimed that 1) “the public did not receive an opportunity to provide comment on the method of data submission to EEOC”; and 2) “EEOC’s burden estimates did not account for the use of these particular data file specifications, which may have changed the initial burden estimate.” Id.
OMB’s assertion that the data file specifications were not contained in the Federal Register, thereby depriving the public of an opportunity to comment on them, is misdirected, inaccurate, and ultimately unpersuasive. The claim is misdirected, because the data file specifications consisted of a sample spreadsheet and formatting specifications which explained how to format a spreadsheet; they did not change the content of the information collected. In both the Sixty-Day and Thirty-Day notices, EEOC described in detail the information it proposed to collect. The government’s argument therefore focuses on a technicality that did not affect the employers submitting the data.
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The government’s claim that employers lacked an opportunity to comment on the data file specifications is strained, because the Thirty-Day Notice explicitly stated that for employers who were going to file through data uploads, the EEOC would post online the new data file specifications “for Components 1 and 2 of the modified EEO-1 as soon as OMB approves the information collection.” 81 Fed. Reg. at 45487. Moreover, the Sixty-Day Notice directed employers to a website with sample data collection forms which provided “an illustration of the data to be collected by both Components 1 and 2 [of the revised EEO-1].” 81 Fed. Reg. at 5118. The sample spreadsheets in the data file specification match in all material respects the sample form provided in the Sixty-Day Notice. Compare id. with Link Decl. ¶ 8, Ex. E. Thus, employers not only knew that the data file specifications would be posted after OMB’s approval, but also knew what the specifications would look like, putting the employers in a good position to comment if they desired.
Moreover, OMB gave its approval knowing that the Thirty-Day Notice stated that the file data specifications would be posted “as soon as” OMB approved the information collection. Plainly, OMB and employers expected some file specifications, so OMB’s assertion that anyone was caught off guard by the mere posting of data file specifications rings hollow. Unable to point to any material variance between the sample form in the Sixty-Day Notice and the specifications ultimately posted, OMB’s burden was to show how the file data specifications altered the content of the information required from employers or significantly increased the burden on employers in producing that information. OMB did not carry that burden. Moreover, OMB did not explain why posting the data file specifications after OMB approved the Component 2 collection should jeopardize the collection, when OMB had previously allowed data file specifications to be submitted after it approved EEO-1 forms. See, e.g., Agency
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Information Collection Activities: Notice of Submission for OMB Review; Final Comment Request, 70 Fed. Reg. 71294, 71301 (Nov. 28, 2005); Agency Information Collection Activities: Proposed Collection; Submission for OMB Review, 79 Fed. Reg. 72678 (Dec. 8, 2014).
OMB’s assertion that “EEOC’s burden estimates did not account for the use of these particular data file specifications, which may have changed the initial burden estimate,” Rao Memorandum at 1, is also unavailing. First, as noted, EEOC’s sample form in the Sixty-Day Notice and description in both the Thirty-Day and Sixty-Day notices of the pay data that would be collected were consistent with the data file specifications. Second, OMB did not actually find that the data file specifications would change the initial burden estimates; rather, it stated that data file specifications “may change the initial burden estimate.” Rao Memorandum at 1 (emphasis added). This equivocation is not surprising given that OMB’s assertion was unsupported by any analysis.
The only “changed circumstance” alleged by OMB is the release of the data file specifications. But this is far from a “changed circumstance” in any meaningful sense. As mentioned, in the Thirty-Day Notice, EEOC informed OMB and the public that it would post file specifications after OMB approved the collection of information. After OMB approved the collection of information, EEOC released the data file specifications. There was no changed circumstance. EEOC proceeded exactly as planned and as OMB had approved.
Moreover, OMB merely speculated that the initial burden estimate “may” be incorrect, while failing to support its speculation with any analysis. This omission is remarkable because OMB did not assert that EEOC’s previous analyses were based on formats meaningfully different from the file data specifications. See 81 Fed. Reg. at 5119-20, 81 Fed. Reg. at 4549295 (earlier burden analyses). OMB’s unsupported conjecture falls short of showing any prior
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error, let alone a material one. “Though an agency's predictive judgments . . . are entitled to deference . . . deference to such ... judgment[s] must be based on some logic and evidence, not sheer speculation.” Sorenson Commc'ns Inc. v. FCC, 755 F.3d 702, 708 (D.C. Cir. 2014) (quotation marks and citations omitted) (alteration in original); see also Water Quality Ins. Syndicate v. United States, 225 F. Supp. 3d 41, 70 (D.D.C. 2016) (“speculation … is an inadequate replacement for the agency’s duty to undertake an examination of the relevant data and reasoned analysis”) (quoting Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1269 (D.C. Cir. 1994)).
OMB also failed to demonstrate good cause for the stay. It did not explain in any substantive way why it believed that the revised EEO-1 was contrary to PRA standards. See Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (“[A]n agency must explain ‘why it chose to do what it did.’ And to this end, conclusory statements will not do; an ‘agency’s statement must be one of reasoning.’”) (emphasis in original) (quoting Tourus Records v. Drug Enf’t Admin., 259 F.3d 731, 737 (D.C. Cir. 2001); Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)); see also Bauer v. DeVos, 325 F. Supp. 3d 74, 105 (D.D.C. 2018) (“[T]he APA . . . requires that agencies ‘provide an explanation that will enable the court to evaluate the agency’s rationale at the time of decision.’”) (citation omitted). OMB’s stated reason when issuing the stay also conflicted with its prior findings that EEOC’s data collection had practical utility, 81 Fed. Reg. at 45481-83, was designed to minimize the burden on reporting employers, id. at 45492-95, and provided adequate privacy and confidentiality protections, id. at 45491-92. OMB failed to explain these inconsistencies. See Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 59 (D.C. Cir. 2015) (“We have often declined to affirm an agency decision if there are unexplained inconsistencies in the final rule.”); Bauer, 325 F. Supp. 3d at 109 (“[T]he
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Department failed to acknowledge, much less to address, the inconsistency between its current view that those provisions stand on legally questionable footing, and its prior conclusion that they were legally sound. . . . [A]n unacknowledged and unexplained inconsistency is the hallmark of arbitrary and capricious decision-making.”).7
An agency’s action is arbitrary and capricious if the agency “(1) has relied on factors which Congress has not intended it to consider, (2) entirely failed to consider an important aspect of the problem, (3) offered an explanation for its decision that runs counter to the evidence before the agency, or (4) offers an explanation that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017) (quotation marks and citation omitted). While “[a]gencies are free to change their existing policies,” in doing so they must “provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citations omitted). OMB’s action in staying EEOC’s collection of Component 2 was arbitrary and capricious for the same reasons the agency violated its own regulation: OMB’s decision to stay the collection of information totally lacked the reasoned explanation that the APA requires.8
In urging this court to uphold OMB’s decision to stay EEOC’s pay data collection, the government contends that “OMB’s interpretation of its ‘review and stay’ regulations is entitled to deference,” unless it is “plainly erroneous or inconsistent with the regulation,” because “neither the PRA nor OMB’s regulations define when ‘relevant circumstances have changed,’
7 OMB did not explain why a stay was necessary, when the percentage of employers likely to use data upload is small, perhaps as low as two percent, 81 Fed. Reg. at 5119 n.55, 5120 n.62, and no employer is required to use data upload rather than data entry. 8 Because the court finds that OMB’s stay of EEOC’s pay data collection violated the PRA and was arbitrary and capricious, it does not need to reach Plaintiffs other arguments.
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what constitutes a ‘material error’ in the burden estimates initially provided, or when ‘good cause exists.’” Defs.’ Opp. to Pls. Mot. for Summ. J and Mot. for Summ. J. at 19-20. Plaintiffs counter that because “the Rao Memorandum is almost entirely conclusory, parroting regulatory language,” it lacks reasoning and is not entitled to deference. Pls.’ Reply in Supp. of Mot. for Summ. J. and Opp. to Defs.’ Mot. for Summ. J. at 6, ECF No. 32. Moreover, Plaintiffs argue that OMB has previously articulated a definition of a “good cause” standard and should be held to it. In the preamble to a PRA regulation, OMB stated that good cause “exists when continued collection of information would be significantly contrary to the standards of the Act.” Controlling Paperwork Burdens on the Public; Proposed Rulemaking, 47 Fed. Reg. 39515, 39522 (Sept. 8, 1982). As part of this good cause standard, OMB must “take into consideration any disruption such reconsideration would create in the agency’s program.” Id. The government responds that as a general matter, preambles to rules are not binding on agency actions. See Defs.’ Mot. for Summ. J. at 21 n.4.
The court need not decide whether the good cause standard provided in the preamble applies here. Even without holding OMB to those requirements, the court finds that OMB provided inadequate reasoning to support its decision to stay the data collection. Courts “do not defer to an agency's conclusory or unsupported suppositions.” Nat'l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214 (D.C. Cir. 2013) (quotation marks and citation omitted).
In further support of its claim that OMB’s decision to stay EEOC’s collection of Component 2 information is a reasonable interpretation of the regulations and supported by the record, the government relies on four letters OMB received in early 2017, after the posting of the file specifications. Defs.’ Opp. to Pls.’ Mot. for Summ. J. and Mot. for Summ. J. at 22-23. These letters, according to the government, expressed concern about the lack of adequate notice
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Case 1:17-cv-02458-TSC Document 45 Filed 03/04/19 Page 36 of 41
and comment and buttressed OMB’s finding that “Component 2 could impose a burden on regulated entities.” Id. at 23. However, the Rao Memorandum does not indicate that OMB relied on these comments or even took them into consideration. Moreover, one of the four letters (from the Chamber of Commerce) does not discuss the data file specifications. See Letter re Request for Review; EEOC’s Revision of the Employer Information Report from Randel K. Johnson, Senior Vice President, Labor, Immigration & Employee Benefits and James Plunkett, Director, Labor Law Policy, U.S. Chamber of Commerce, to John M. Mulvaney, Dir., Office of Management and Budget (Feb. 27, 2017); JA046. The other letters do not provide any analysis or conclude that the data formatting specifications increase the burden on EEO-1 filers. An agency’s speculation cannot suffice for APA review purposes. Sorenson Commc'ns Inc., 755 F.3d at 708. Similarly, an agency cannot simply rely on the speculation of commenters. Instead, the agency must conduct a critical examination of comments on which it relies. See Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1125 (D.C. Cir. 1984) (agency may not rely on comments “uncritically” and must apply its “expert evaluation”); Am. Great Lakes Ports Ass'n v. Zukunft, 296 F. Supp. 3d 27, 39 (D.D.C. 2017) (“Thus, an agency may, for example, rely on comments submitted during the notice and comment period as justification for [a] rule, so long as the submissions are examined critically.”) (quotation marks and citations omitted) (alteration in original). Finally, the government omits mention of the comments OMB received in support of the file data specifications. For instance, NWLC, with 82 organization signatories, submitted a comment on April 12, 2017, around the same time that OMB received the four letters it cites. NWLC explained both why the data file specifications did not increase any burden and did not constitute a change in circumstances. See Letter re Opposition to Reopening Review of the Equal Employment Opportunity Commission's Employment Information (EEO-1)
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Report (OMB Control Number 3046-0007), from NWLC, et al., to John M. Mulvaney, Dir.,
Office of Management and Budget (Apr. 12, 2017); JA115. Without explaining why, an agency
cannot rely on some comments while ignoring comments advocating a different position. AARP
v. U.S. Equal Emp’t Opportunity Comm'n, 267 F. Supp. 3d 14, 32 (D.D.C. 2017) (“An agency
must explain why it chose to rely on certain comments rather than others.”) (emphasis in
original).
The government further contends that the Rao Memorandum “simply summarizes the
four months of meetings, emails, and conference calls between OMB and EEOC during which
each issue underlying the Administrator’s decision to review and stay was discussed.” Defs.’
Opp. to Pls.’ Mot. for Summ. J. and Mot. for Summ. J. at 30. Nothing in the record supports this
claim. Further, the government’s assertion does not mean that the discussions involved an
analysis of evidence supporting a conclusion of changed circumstances or materially erroneous
burden estimates. In fact, the only evidence in the record of documented agency analysis rejects
the government’s current contention about the data file specifications. According to an April 14,
2017 EEOC memorandum:
The EEOC’s published filed specifications are not a new requirement but rather simply a familiar tool to make it easier for employers to submit EEO-1 data to the EEOC. The EEOC provided this tool to employers for use with the 2016 EEO-1, as evident on the EEOC website where the file specifications for the 2016 EEO-1 were published … Like those later published for the EEO-1 pay data collection, the 2016 specifications were in comma-separated values format (“csv”), a format that enables employers to convert tabular data (like that in the EEO-1) for importation and exportation to a database. Employers that used data upload technology for their 2016 EEO-1 reports used these csv specifications. Publication of the file specifications after OMB’s approval of the pay data collection is not a “significant” change that warrants OMB’s reconsideration. As noted above, EEOC indicated in the 30-day notice its intent to post updated specifications, and stated that it would provide support to employers and HRIS vendors as they transitioned to the new reporting requirements. EEAC had notice of these data specifications, was probably
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familiar with the 2016 version, and had ample opportunity to raise questions or concerns before OMB’s approval of the revised EEO-1, but did not do so. Memorandum from Peggy Mastroianni to Victoria Lipnic, Acting Chair, EEOC (Apr. 14, 2017); JA126. The government now claims that Component 2 required “significant formatting changes.” Defs. Mem at 23. But the Rao Memorandum did not reach that conclusion. Administrator Rao’s letter said only that the data file specifications “may have changed the initial burden estimate.” Rao Memorandum at 1. Moreover, even if OMB had relied on a finding of “significant formatting changes” at the time of the stay, its conclusion would have lacked analytic and evidentiary support. This court cannot “fill in critical gaps in an agency’s reasoning. We can only look to the [agency’s] stated rationale. We cannot sustain its action on some other basis the [agency] did not mention.” Point Park Univ. v. NLRB, 457 F.3d 42, 50 (D.C. Cir. 2006); see also NAACP v. Trump, 298 F. Supp. 3d 209, 237 (D.D.C. 2018) (“[B]ecause ‘a reviewing court ... must judge the propriety of [agency] action solely by the grounds invoked by the agency,’ post hoc explanations that the agency did not articulate when it acted are insufficient.” (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, (1947)) (alteration in original).
The government’s position rests on hyper-technical formatting changes that have no real consequences for employers. While there may be instances when formatting changes could be burdensome, that is not the case here. Similarly, it is conceivable that the government could impose formatting requirements that made the presentation of collected information far more difficult for employers. But in this case, OMB and the regulated entities knew what the formatting would look like before OMB gave its approval to the Component 2 collection, and the government has failed to demonstrate any likelihood that the data file specifications meaningfully increase the burden on employers. Indeed, neither the Rao Memorandum nor the
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administrative record as a whole demonstrates that before issuing its stay, OMB ever analyzed the data file specifications in an effort to determine whether they meaningfully changed the burden of collecting Component 2 information.
IV. REMEDY Because the court has determined that OMB’s stay of EEOC’s pay data collection was
illegal, it must fashion an appropriate remedy. The APA provides that a court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The D.C. Circuit has stated that “vacatur is the normal remedy” for an APA violation. Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). The APA “itself contemplates vacatur as the usual remedy when an agency fails to provide a reasoned explanation for its regulations.” AARP v. U.S. Equal Emp’t Opportunity Comm'n, 292 F. Supp. 3d 238, 242 (D.D.C. 2017). The presumption of vacatur, “however, is not absolute, and a remand without vacatur may be ‘appropriate [if] “there is at least a serious possibility that the [agency] will be able to substantiate its decision” given an opportunity to do so, and when vacating would be “disruptive.”’” Bauer v. DeVos, 332 F. Supp. 3d 181, 184 (D.D.C. 2018) (quoting Radio-Television News Dirs. Ass'n v. FCC, 184 F.3d 872, 888 (D.C. Cir. 1999)) (alterations in original). “Courts in this Circuit . . . have long recognized that ‘when equity demands, an unlawfully promulgated regulation can be left in place while the agency provides the proper procedural remedy.’” Shands Jacksonville Med. Ctr. v. Burwell, 139 F. Supp. 3d 240, 267 (D.D.C. 2015) (quoting Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991) (citation omitted) (footnote omitted)). A court’s decision to remand without vacatur “depends on the ‘seriousness of the order’s deficiencies’ and the likely ‘disruptive consequences’ of vacatur.”
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Allina Health Servs., 746 F.3d at 1110 (quoting Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993)).
OMB’s deficiencies were substantial, and the court finds it unlikely that the government could justify its decision on remand, despite its assertion that “OMB could easily cure the defects in its memorandum by further explanation of its reasoning.” Defs.’ Opp. to Pls.’ Mot. for Summ. J. and Mot. for Summ. J. at 33. The government’s deficiency is not that it failed to explain OMB’s “reasoning,” but that OMB’s reasoning lacked support in the record.
The government also argues that “vacatur could upset the current expectation of filers, who may not be aware of this litigation nor its potential impact on their obligation to complete their Component 2 submissions.” Defs.’ Reply in Supp. of Mot. to Dismiss or in Alt. Mot. for Summ. J. at 19 (emphasis added), ECF No. 36. This speculation is unsupported by the record. Moreover, the revised pay data collection had been in place for almost a year by the time it was stayed. The government’s argument that a stay is only temporary further undercuts its argument that vacatur would be disruptive, because affected entities were on notice that the stay could be withdrawn at any time. The court therefore finds that vacatur will not have potentially disruptive consequences.
Accordingly, this court finds that both Allied-Signal factors favor vacatur as the appropriate remedy.
V. CONCLUSION For the foregoing reasons, the court hereby DENIES Defendants’ Motion to Dismiss,
ECF No. 11; GRANTS Plaintiffs’ Motion for Summary Judgment, ECF No. 22; DENIES Defendants’ Motion for Summary Judgment, ECF No. 27; and VACATES OMB’s stay of the
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Case 1:17-cv-02458-TSC Document 45 Filed 03/04/19 Page 41 of 41 EEOC’s revised EEO-1 form and the September 15, 2017 Federal Register Notice (Stay the Effectiveness of the EEO-1 Pay Data Collection, 82 Fed. Reg. 43362) announcing the same.
It is further ORDERED that the previous approval of the revised EEO-1 form shall be in effect. Date: March 4, 2019
Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge
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 Case 1:17-cv-02458-TSC Document 47 Filed 03/18/19 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL WOMEN’S LAW CENTER, et al.,
Plaintiffs,
vs.
OFFICE OF MANAGEMENT AND BUDGET, et al.,
Defendants.

Civil Action No. 17-2458 (TSC)

PLAINTIFFS’ REQUEST FOR A STATUS CONFERENCE Plaintiffs respectfully request that the Court convene a status conference in this matter to discuss Defendants’ compliance with the Court’s Memorandum Opinion and Order of March 4, 2019 (hereafter, collectively “Order’).1 As the Court is aware, it entered summary judgment in Plaintiffs’ favor on March 4, 2019, and issued an Order stating that: “OMB’s stay of EEOC’s revised EEO-1 form and the September 15, 2017 Federal Register Notice (Stay the Effectiveness of the EEO-1 Pay Data Collection, 82 Fed. Reg. 43362) announcing the same are VACATED.” Dkt. No. 46. The Memorandum Opinion accompanying this Order also stated that “It is further ORDERED that the previous approval of the revised EEO-1 form shall be in effect.” Dkt. No. 45.

1 Plaintiffs conferred with Defendants as required by Local Civil Rule 7(m) regarding this request. Defendants’ position is that “Defendants are working diligently to comply with the Court’s recent order and therefore believe that Plaintiffs’ request for a status conference is unnecessary at this time.”
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Case 1:17-cv-02458-TSC Document 47 Filed 03/18/19 Page 2 of 4
Defendant EEOC previously had announced that the reporting period for the 2018 EEO-1 Report would open in early March, later refining the date to March 18, 2019.2 Since the Court
issued its Order, Plaintiffs have requested information about Defendants’ plans for compliance
from Defendants’ counsel. Defendants have declined to provide any specific information. See
Att. A. On Saturday March 16, 2019, Defendants’ counsel emailed Plaintiffs’ counsel stating
that:
EEOC has informed us that it intends to post the following notice on its website either tomorrow evening or early Monday morning: “As it announced at the end of January, the EEOC is opening its EEO-1 online portal to receive 2018 EEO-1 Component 1 data starting March 18, 2019 and ending May 31, 2019. The EEOC is working diligently on next steps in the wake of the court’s order in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.”
See Att. B. On March 18, 2019, the EEOC opened the 2018 EEO-1 Survey for employer reporting.3
The EEOC also issued the following statement:
Statement on the 2018 EEO-1 Portal Opening for Component 1 Data
As it announced on February 1, the EEOC is opening its EEO-1 online portal to receive 2018 EEO-1 Component 1 data starting March 18, 2019, and ending May 31, 2019. Instructions for filing are available here: https://www.eeoc.gov/employers/eeo1survey/index.cfm.
The EEOC is working diligently on next steps in the wake of the court's order in National Women's Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of
2 EEOC, Press Release, “EEO-1 Survey for 2018 Will Open Early March 2019” (Feb. 1, 2019), https://www.eeoc.gov/eeoc/newsroom/release/2-1-19.cfm. 3 EEOC, “2018 EEO-1 Survey”, https://www.eeoc.gov/employers/eeo1survey/.
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Case 1:17-cv-02458-TSC Document 47 Filed 03/18/19 Page 3 of 4
Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.4 In short, EEOC has opened the 2018 EEO-1 reporting period only as to Component 1 data, not as to the Component 2 pay data that is the subject of the instant litigation and the Court’s Order. Both before and after this action, Plaintiffs have requested information about EEOC’s timeframe for compliance and plans for alerting the reporting community to the obligation to submit Component 2 pay data, but Defendants’ counsel has not provided any information beyond the content of the notice. See Atts. A, B. Defendants’ delay in complying with the Court’s order, and inability or unwillingness to provide any information about their plans to do so, is especially concerning because Defendants previously represented that it would take OMB “1 day” to “get Component 2 ‘live’ should plaintiffs prevail in this case.” See Att. C. Defendants made this representation while seeking Plaintiffs’ consent to extend the summary judgment briefing schedule, in response to Plaintiffs’ concerns that further delay could put the collection of 2018 data at risk. Defendant EEOC did not contradict OMB’s representation at that time, and Defendants have not explained the inconsistency with their current actions in response to Plaintiffs’ recent inquiries. Accordingly, Defendants are out of compliance with the Court’s Order. Moreover, in light of the deadline of May 31, 2019 for employers to submit their EEO-1 reports for 2018, further delay in opening reporting for Component 2 pay data, and the possibility of employers submitting Component 1 data without Component 2 pay data, risks logistical difficulties and gaps in employer compliance. Plaintiffs therefore respectfully request that the Court convene a
4 EEOC, “Statement on the 2018 EEO-1 Portal Opening for Component 1 Data”, https://www.eeoc.gov/employers/eeo1survey/statement-2018-opening.cfm (emphasis in original).
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Case 1:17-cv-02458-TSC Document 47 Filed 03/18/19 Page 4 of 4

status conference at its earliest possible convenience in order to obtain information regarding

Defendants’ plan for compliance with the Court’s Order and to provide guidance regarding the

Court’s expectations for compliance.

Dated: March 18, 2019

Respectfully submitted,

/s/ Robin F. Thurston___
Robin F. Thurston (DC Bar No. 1531399) Javier M. Guzman (DC Bar No. 462679) Jeffrey B. Dubner (DC Bar No. 1013399) Democracy Forward Foundation P.O. Box 34553 Washington, DC 20043 (202) 448-9090 rthurston@democracyforward.org jguzman@democracyforward.org jdubner@democracyforward.org
Fatima Goss Graves (DC Bar No. 481051) Emily J. Martin (DC Bar No. 991968) Sunu Chandy (DC Bar No. 1026045) Maya Raghu (DC Bar No. 1035558) National Women’s Law Center 11 Dupont Circle, NW, Ste 800 Washington, DC 20036 (202) 588-5180 fgraves@nwlc.org emartin@nwlc.org schandy@nwlc.org mraghu@nwlc.org
Attorneys for Plaintiffs

4

NATIONAL WOMEN'S LAW CENTER et al v. OFFICE OF MANAGEMENT AND BUDGET et al, Docket No. 1:17-cv-02458 (D.D.C.
General Information

Court Federal Nature of Suit Docket Number

United States District Court for the District of Columbia; United States District Court for the District of Columbia
Other Statutes - Administrative Procedure Act/Review or Appeal of Agency Decision[899]
1:17-cv-02458

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 5

 
 Case 1:17-cv-02458-TSC Document 54 Filed 04/03/19 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL WOMEN’S LAW CENTER, et )

al.

)

)

Plaintiffs,

)

)

v.

)

)

OFFICE OF MANAGEMENT AND

)

BUDGET, et al.1

)

)

Defendants.

)

Civil Action No. 17-2458 (TSC)

DEFENDANTS’ SUBMISSION IN RESPONSE TO THE COURT’S QUESTIONS RAISED
DURING THE MARCH 19, 2019 STATUS CONFERENCE 1. On March 4, 2019, this Court issued a Memorandum Opinion and Order (“Order”) vacating the decision of the Office of Management and Budget (“OMB”) to stay and reconsider its 2016 Paperwork Reduction Act (“PRA”)2 approval of the United States Equal Employment Opportunity Commission’s (“the EEOC”) revised EEO-1 information collection (“collection of Component 2 pay data”). See Mem. Op. at 40-41, ECF No. 45 (Mar. 4, 2019); see also Order at 1, ECF No. 46 (Mar. 4, 2019). The Order further provided that OMB’s “previous approval” of the EEOC’s collection of Component 2 pay data “shall be in effect.” Order at 1. In response to the questions that the Court raised during the March 19, 2019 status conference, see Status Conf. Tr. at 15, lines 18-25 (Mar. 19, 2019), this Submission describes how the EEOC proposes to undertake and close the

1 Pursuant to Rule 25(d), Paul Ray, in his official capacity as Acting Director of the Office of Information and Regulatory Affairs (“OIRA”), is substituted for Neomi Rao, in her former official capacity as Director of OIRA.
2 44 USC 3501 et seq.
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Case 1:17-cv-02458-TSC Document 54 Filed 04/03/19 Page 2 of 5
collection of Component 2 pay data under the revised EEO-1 information collection that is now back in effect.
2. By approving the revised EEO-1 information collection on September 29, 2016, OMB authorized the EEOC to collect Component 2 pay data from employers twice during the three-year approval period, which expires on September 30, 2019. See 81 Fed. Reg. 45479, 45484 (July 16, 2016). But for OMB’s decision to stay the collection of this data, employers would have gathered 2017 Component 2 data during a pay period of their choice3 between October 1, 2017, and December 31, 2017, and submitted that data to the EEOC on or before March 31, 2018. Id. Employers also would have collected 2018 Component 2 data during one pay period between October 1, 2018, and December 31, 2018, and submitted that data to the EEOC on or before March 31, 2019. See id. However, due to OMB’s stay decision, the EEOC could not conduct or sponsor, and employers had no legal obligation to gather or submit, Component 2 pay data between August 29, 2017, and March 4, 2019, when this Court vacated the stay.
3. As a result of the Court’s reinstatement of the revised EEO-1 Component 2 collection, the EEOC will need to modify or adjust the deadlines for employers to collect retroactively 2018 Component 2 pay data and submit the relevant data to the EEOC by September 30, 2019. Title VII of the Civil Rights Act of 1964 authorizes the Acting Chair “to administer the operations of the Commission,” 42 U.S.C. § 2000e-4(a)—an authority she has previously exercised to modify and adjust the original time periods for approved data collections as appropriate for the orderly administration of the collections. See, e.g., www.eeoc.gov/eeoc/newsroom/wysk/impact_of_lapse.cfm (FAQs regarding extension of 2018 EEO-1 reporting deadline from March 1, 2019, through May 31, 2019,
3 The EEOC instructs employers to report data from one single payroll period (i.e., any time period covered by one single payroll cycle) of their choosing that occurred between October 1 and December 31 of the reporting year. See 81 Fed. Reg. at 45484.
2

Case 1:17-cv-02458-TSC Document 54 Filed 04/03/19 Page 3 of 5
as a result of partial lapse in government appropriations); www.eeoc.gov/eeoc/newsroom/release/722-13.cfm (press statement announcing September 30 submission deadline). Plaintiffs do not purport to challenge the EEOC’s independent statutory authority to administer the operation of its collection of information, including the authority to modify and adjust the collection requirements, and the EEOC’s use of the information. Instead, Plaintiffs’ claims focus exclusively on OMB’s authority to stay and reconsider its prior PRA approval.
4. The Acting Chair has determined that it is necessary to exercise her Title VII administrative authority to adjust the collection deadline to September 30, 2019, in order to accommodate the significant practical challenges for the EEOC to collect Component 2 data in response to the Court’s Order.
5. As explained in detail in the attached Declaration of Samuel C. Haffer, Ph.D. (“Haffer Decl.”), the EEOC’s Chief Data Officer, the data processes used to collect EEO-1 demographic data are not capable of collecting employers’ 2018 Component 2 data. See Haffer Decl. ¶¶ 9-13, 14, 20-21. That is because the EEOC collects EEO-1 data from approximately 80,000 employers, and its current data processes are programmed to collect 140 data fields for the Component 1 demographic collection. Id. ¶ 20. In contrast, for each Component 2 report collected from an employer, there will be 3,360 data fields of pay data to be addressed. Id. According to Dr. Haffer, it would take nine months to modify the EEOC’s current processes to support the collection of large amounts of sensitive Component 2 pay data from 2018. See id. ¶ 21. The EEOC has determined that modifying its current processes is not currently a viable option for collecting Component 2 data from employers. Id. ¶¶ 9-13, 14, 20-21.
6. Instead, the EEOC has determined that utilizing a data and analytics contractor is the only alternative. Id. ¶ 24. The contractor would perform the information collection for 2018 EEO-1
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Case 1:17-cv-02458-TSC Document 54 Filed 04/03/19 Page 4 of 5

Component 2 data, including providing the processes, procedures, and systems to undertake and close the collection by September 30, 2019, at a cost in excess of $3 million. Id. ¶¶ 24-26.
7. Although having a contractor perform the 2018 EEO-1 Component 2 collection is preferable to using the EEOC’s existing processes, Dr. Haffer warns that there is a serious risk that the expedited data collection process may yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline. Id. ¶¶ 27, 29, 32. As Dr. Haffer has explained, this will be the first time that the EEOC collects Component 2 pay data from employers. See id. ¶¶ 13, 20, 22. It also will be the first time that the EEOC utilizes the contractor to perform a collection of information on an expedited basis. Id. ¶¶ 27, 29, 32.
8. The risk of poor data quality would be compounded if calendar year 2017 EEO-1 Component 2 data were also collected. Id. ¶ 23. The EEOC has concerns that requiring employers to gather and report calendar year 2017 Component 2 data at the same time as the collection of calendar year 2018 Component 2 data without more extensive and well-developed quality assurance and quality control processes in place could decrease response rates and increase errors in the entire data collection process. See id.
For the foregoing reasons, and with the caveats delineated in the attached Haffer Declaration, the EEOC informs the Court that it is able to undertake and close the collection of 2018 EEO-1 Component 2 data by September 30, 2019.

Dated: April 3, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
CARLOTTA WELLS Assistant Branch Director
/s/ Tamra T. Moore Tamra T. Moore
4

Case 1:17-cv-02458-TSC Document 54 Filed 04/03/19 Page 5 of 5 Senior Counsel United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, D.C. 20005 Tel.: (202) 305-8628 Fax: (202) 616-8460 Email: Tamra.Moore@usdoj.gov
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 Case 1:17-cv-02458-TSC Document 71 Filed 04/25/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

NATIONAL WOMEN’S LAW CENTER, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

)

OFFICE OF MANAGEMENT AND

)

BUDGET, et al.,

)

)

)

Defendants.

)

)

Civil Action No. 17-cv-2458 (TSC)

ORDER
Based upon the post-summary judgment filings, the March 19, 2019 status conference, the April 16, 2019 hearing, the post-hearing summations, and the entire record herein, and for the reasons stated on the record on April 25, 2019, the court hereby issues the following declaratory and injunctive relief. It is hereby
ORDERED and DECLARED that the court’s summary judgment opinion and order, ECF Nos. 45, 46, require that Defendant EEOC collect EEO-1 Component 2 pay data for calendar years 2017 and 2018. It is
FURTHER ORDERED that in lieu of collection of Component 2 data for calendar year 2017, EEOC may satisfy the court’s Order requiring two years of data by collecting EEO-1 Component 2 data for 2019 during the 2020 EEO-1 reporting period. If EEOC determines to exercise the option to collect EEO-1 Component 2 data for 2019 instead of 2017, it must notify the court and Plaintiffs of that decision by May 3, 2019. It is
FURTHER ORDERED that Defendant Office of Management and Budget’s August 29, 2017 stay of its approval of the revised EEO-1 form tolled the three-year period of that approval for the duration of the stay, which lasted 553 days. Accordingly, the court DECLARES that barring further interruptions of the approval or extensions, the Paperwork Reduction Act approval for the revised EEO-1 form including Component 2 pay data, OMB Control No. 30460007, shall expire no later than April 5, 2021. It is
FURTHER ORDERED that EEOC must immediately take all steps necessary to complete the EEO-1 Component 2 data collections for calendar years 2017 and 2018 by September 30, 2019. If EEOC exercises its option to collect EEO-1 Component 2 data for 2019 in lieu of 2017, that collection must occur in the 2020 EEO-1 reporting period. It is

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FURTHER ORDERED that by April 29, 2019, EEOC must issue a statement on its website and submit the same for publication in the Federal Register notifying EEO-1 filers that they should prepare to submit Component 2 data no later than September 30, 2019. EEOC must alert filers if it has decided by April 29, 2019 whether to collect 2017 or 2019 data. If EEOC has not decided by April 29, 2019 whether to collect 2017 or 2019 data, it must issue a statement of its decision on its website and submit the same for publication in the Federal Register by May 3, 2019. At minimum, on April 29, 2019, EEOC must issue a statement on its website and submit the same for publication in the Federal Register notifying EEO-1 filers that they will be submitting 2018 Component 2 data collection for calendar year 2018 no later than September 30, 2019. It is
FURTHER ORDERED that beginning on May 3, 2019 and continuing every 21 days thereafter, EEOC must provide reports to Plaintiffs and the court of all steps taken to implement the EEO-1 Component 2 data collections since the prior report,1 all steps to be taken during the ensuing three-week period, and indicating whether EEOC is on track to complete the collection(s) by September 30, 2019. It is
FURTHER ORDERED that the EEO-1 Component 2 data collection(s) will not be deemed complete, for the purpose of this Order, until the percentage of EEO-1 reporters that have submitted their required EEO-1 Component 2 reports equals or exceeds the mean percentage of EEO-1 reporters that actually submitted EEO-1 reports in each of the past four reporting years. It is
FURTHER ORDERED that the court will retain jurisdiction over this matter for the purposes of enforcing the March 4, 2019 summary judgment opinion and order as well as this Order.
SO ORDERED.

Date: April 25, 2019

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

1 The May 3, 2019 report shall include notice of all steps taken to implement the EEO-1 Component 2 data collections since March 4, 2019.
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