Court dismisses EEO-1 comp reporting appeal

The case is now moot, says the D.C. Circuit.

The U.S. Court of Appeals for the District of Columbia Circuit has dismissed as moot the appeal of the government in the case of National Women's Law Center v. Office of Management and Budget.

This case has a long history. The plaintiffs, public interest groups, sued the OMB and the Equal Employment Opportunity Commission after the agencies "stayed" the requirement for employers to submit "Category 2" compensation data with their EEO-1 reports. The Category 2 requirement was imposed by the Obama Administration in 2016, and the requirement was stayed (placed on hold) by the Trump Administration in 2017.

Federal District Court Judge Tanya S. Chutkan ruled in March 2019 that the government agencies' stay was improper, and she subsequently directed the EEOC to collect comp data for 2017 and 2018, or for 2018 and 2019. The EEOC opted for 2018 and 2019, and in February of this year, the judge declared the data collection complete. The EEOC had timely announced that it would not try to collect compensation data in the future.

Meanwhile, the OMB and EEOC had appealed Judge Chutkan's decisions but didn't ask the appeals court to stay the decisions while the appeal was pending. Tuesday's ruling -- from a three-judge panel of the D.C. Circuit -- said that the government's appeal was moot because the data had already been collected.

The government had also asked the D.C. Circuit to vacate Judge Chutkan's earlier decisions, but the panel sent that issue back to Judge Chutkan to decide. My guess is that she will deny the motion, based on this from the D.C. Circuit's order:

The district court is well positioned to assess whether the government has carried its burden to show “equitable entitlement to the extraordinary remedy of vacatur,” including whether the government’s failure to seek a stay pending appeal or take similarly protective measures amounts to an omission that “voluntarily forfeited” any “claim to the equitable remedy of vacatur[.]” 

In other words, the Court is saying that the government might have forfeited its right to have Judge Chutkan's decisions vacated because it didn't try to get them stayed while the appeal was pending.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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