MEMORANDUM OPINION
TANYA
S. CHUTKAN, UNITED STATES DISTRICT JUDGE.
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 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)). 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 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 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
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.
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 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.
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 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
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-or-controversy 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 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 ...