[00:00:07] Speaker 04:
Good morning.

[00:00:16] Speaker 02:
May it please the court, Lindsay Powell, for the government.

[00:00:19] Speaker 02:
I'd like to reserve three minutes of my time for rebuttal.

[00:00:23] Speaker 02:
Plaintiffs lack standing in this case because they have no cognizable interest in the information that they seek.

[00:00:29] Speaker 04:
Even if they did have standing or over... No cognizable interest.

[00:00:34] Speaker 02:
That's right, Your Honor.

[00:00:35] Speaker 02:
The only harms they allege are based on having to- Those are two different things you understand.

[00:00:41] Speaker 04:
Interest and harm.

[00:00:43] Speaker 04:
That's all I'm focusing on.

[00:00:45] Speaker 04:
They have an interest.

[00:00:47] Speaker 04:
That's what their organization is all about, whether they have standing and injury in fact that's necessary.

[00:00:55] Speaker 04:
It's a different question.

[00:00:56] Speaker 04:
That's all I'm pointing out.

[00:00:58] Speaker 04:
I don't think the two can be equated.

[00:01:00] Speaker 04:
They have an interest.

[00:01:02] Speaker 02:
What the court said in epic, Your Honor, is that where is here, the only harms that are alleged result from not having access to information to which there is no legal right.

[00:01:15] Speaker 02:
The plaintiff does not have informational standing as that framework has been set forth.

[00:01:20] Speaker 04:
You understand the point I'm making, don't you?

[00:01:23] Speaker 04:
I just want to be clear about that.

[00:01:24] Speaker 04:
I have an interest in the information, too.

[00:01:27] Speaker 04:
I have no legal right to it.

[00:01:29] Speaker 04:
I may not have standing.

[00:01:31] Speaker 02:
Yes, Your Honor, and I think the cognizable part of cognizable interest is what bridges those two.

[00:01:39] Speaker 02:
So without the legally protected right, the interest is not cognizable as it comes up in the context of these standing doctrines.

[00:01:47] Speaker 02:
Even if plaintiffs did have standing, moreover, and the district court properly reached the merits, it clearly exceeded its authority in entering the relief that it did against the EEOC in this case, which was fundamentally about OMB's action and not the lawfulness of anything the EEOC might do in the future.

[00:02:03] Speaker 02:
It's notable that at this point, most of the work required by the court's orders has already been accomplished.

[00:02:08] Speaker 02:
EEOC has conducted these collections.

[00:02:10] Speaker 02:
It's received responses from more than 85% of eligible employers.

[00:02:14] Speaker 02:
And yet the district court continues to superintend the commission's conduct, requiring it to continue this collection at significant expense to the agency.

[00:02:22] Speaker 00:
So is there anything left in the case other than the piece of the district court order that deals with getting the percentage of the response rate up to the response rate that the district court thought was?

[00:02:33] Speaker 02:
That's certainly the principal source of the continuing obligations.

[00:02:37] Speaker 02:
Adjacent to that, the commission does have to file status reports every three weeks, letting the court know what actions it's taking in furtherance of increasing the response rate.

[00:02:48] Speaker 02:
And that itself does impose a burden, but that is ancillary to the main part of the relief, which is the system.

[00:02:53] Speaker 00:
And then is that it?

[00:02:54] Speaker 00:
So if you have the associated filings, status reports, and then the percentage match.

[00:03:00] Speaker 00:
But beyond that, as far as the government's concerned, there's nothing left in issue in the case.

[00:03:05] Speaker 02:
As far as that remedial order is concerned, yes, that's the source of our continuing obligations.

[00:03:12] Speaker 03:
Okay.

[00:03:12] Speaker 03:
And when you say as far as the remedial order, what you're preserving is that you also are still objecting to the standing.

[00:03:19] Speaker 02:
Yes, that's right, and that the state never should have been vacated.

[00:03:21] Speaker 03:
The standing, I realize it's probably our own precedent's fault, but it seems like the parties are somewhat talking past one another about standing.

[00:03:35] Speaker 03:
correct me if I'm wrong, is I understand there's informational standing in the sense that arises, for example, under the Freedom of Information Act where you don't have to, in order to have standing to claim a FOIA right, you don't have to show that the lack of the information would have an impact on your organization's services or activities because you're just entitled to the information even out of mere curiosity.

[00:04:05] Speaker 03:
one version of what we refer to as informational standing.

[00:04:09] Speaker 03:
And here I take it that these plaintiffs are not claiming that kind of standing.

[00:04:14] Speaker 03:
They're claiming that there's information that before the stay the EEOC was legally required to obtain and that the lack of that information had a demonstrable effect that they showed with declarations on

[00:04:33] Speaker 03:
their representation of clients, on their public education activities, on their, you know, monitoring of workplace fairness.

[00:04:42] Speaker 03:
And so it's a more traditional standing inquiry, and in a way it's informational standing in the sense that what they're wanting is information, but it's not in that narrower FOIA sense.

[00:04:54] Speaker 03:
And I take the plaintiffs here to be arguing that you've

[00:05:01] Speaker 03:
your claim that you need a cognizable right to the information comes out of that, like for want of a better narrowing term, the sort of FOIA type informational standing, and that it doesn't apply where what they're claiming is a right to information that they would use and the harm is to their activities.

[00:05:21] Speaker 03:
And what's your response to that?

[00:05:23] Speaker 02:
I do want to briefly bracket, we take issue, and I think this comes up more in the remedy part of the discussion, but we don't agree that EEOC was legally required to collect information.

[00:05:33] Speaker 03:
Right, and I have a question about that also, but just to take that premise.

[00:05:37] Speaker 02:
Yes, to take that premise for now.

[00:05:38] Speaker 02:
We disagree that the informational standing doctrine is as narrowly confined as that sort of conception of the framework suggests.

[00:05:48] Speaker 02:
Certainly it does come up in cases

[00:05:50] Speaker 02:
involving FOIA and FACA, where you have Congress defining the right in a way where there's no need for the plaintiff to make some of the further showings that are typically required, but it hasn't been applied only in those cases.

[00:06:04] Speaker 02:
So in Akins, for example, the plaintiff did have to make the further showing that it had suffered the type of harm that Congress meant to prevent, and that's a showing that plaintiffs can't make here.

[00:06:15] Speaker 03:
And here, though, the plaintiffs have made that showing by saying, for example, we represent

[00:06:20] Speaker 03:
Plaintiffs in equal pay act cases and the information that this EEO1 amended form is seeking to get would be tremendously important and helpful in that.

[00:06:33] Speaker 03:
And in fact, that's part of why the National Academy of Sciences recommended that it be collected.

[00:06:38] Speaker 02:
As far as that goes, it is notable that their claim is under the Paperwork Reduction Act and regulations implementing it.

[00:06:44] Speaker 02:
And the Paperwork Reduction Act certainly doesn't provide those protections.

[00:06:48] Speaker 02:
It's about reducing paperwork burdens and not promoting information collection.

[00:06:52] Speaker 03:
And maybe this gets to the question of cognizable or whether they have a right to underlying injury.

[00:06:58] Speaker 03:
I took it that they were challenging an interpretation of the Paperwork Reduction Act that supported the stay, so trying to remove an obstacle.

[00:07:06] Speaker 03:
And then the question is, well, once that obstacle is removed, what's the state of play?

[00:07:09] Speaker 03:
And I understand there's been quite a bit of briefing in the district court and action on that, which really goes to the question of whether there's a legal right.

[00:07:17] Speaker 02:
Right.

[00:07:18] Speaker 02:
And on the question of legal right, there is a dispute about whether EEOC is obligated to collect the information at all.

[00:07:24] Speaker 02:
There's no dispute that EEOC is under no obligation to disclose it.

[00:07:28] Speaker 03:
So that was... Well, states and locals can get it and they can do reports.

[00:07:33] Speaker 02:
Yeah, the scope of access by a state and local entities is not clear.

[00:07:38] Speaker 02:
There is some provision for that, but it's not as though that creates the open pipeline that plaintiffs seek, nor would that itself be enough to support their standing, even on their theory.

[00:07:49] Speaker 02:
But the district court... What's extraordinary about this case is the district court

[00:07:54] Speaker 02:
specifically looked at whether they had informational standing and said they do not, there's clearly concededly no right to this information.

[00:08:02] Speaker 02:
And that's where the court also started in Epic, which was not a case under Foyer or Focker or a similar statute like that.

[00:08:08] Speaker 02:
And then what the court next said in Epic was that in such a case where the entire allegation of harm is lack of access to information that causes a plaintiff to rearrange its affairs, to reallocate resources, to accommodate

[00:08:22] Speaker 02:
that change in flow of information, that that's not enough to support organizational injury where there's no legal right to standing.

[00:08:30] Speaker 02:
We don't have any other case with the same facts.

[00:08:32] Speaker 03:
So let me just go back to the question about the obligation of the EEOC.

[00:08:39] Speaker 03:
I take it that the district court's position and the plaintiff's position here was that there is a statutory obligation on the EEOC to collect data via an EEO1

[00:08:53] Speaker 03:
and that it can only use a currently valid approved and, you know, inventoried EEO1 form.

[00:09:04] Speaker 03:
And that once the state was removed, the only current valid form requires EEO1 data, both component one and component two.

[00:09:14] Speaker 03:
And so there you have, you do have a legal obligation on EEOC that is,

[00:09:23] Speaker 03:
bears anew on the agency once the stay is removed.

[00:09:28] Speaker 02:
So the question of EEOC's legal obligations was notably not litigated.

[00:09:33] Speaker 02:
There's nothing in the complaint about what EEOC would be required to do.

[00:09:36] Speaker 02:
It's hard to see how that claim would have been ripe at that point in the litigation.

[00:09:40] Speaker 02:
This was really about whether OMB acted lawfully in imposing the stage.

[00:09:44] Speaker 03:
So you don't disagree though that, I mean, so you're saying it's not litigated.

[00:09:49] Speaker 03:
I think that the counterpoint, I think reading the transcript and the

[00:09:54] Speaker 03:
and the papers below, my impression is that the plaintiffs and the district court thought actually that is the whole baseline of this litigation.

[00:10:04] Speaker 03:
You wouldn't bring a case to invalidate a stay of an obligation without assuming that what would happen when the stay is peeled back is that the obligation would then be revived.

[00:10:20] Speaker 03:
So the notion that it wasn't litigated feels

[00:10:24] Speaker 03:
And I'm not entirely following you, because I agree it wouldn't be right to litigate that.

[00:10:30] Speaker 03:
I mean, what their obstacle was was to stay, and they succeeded in getting that remote.

[00:10:35] Speaker 02:
So a few things.

[00:10:35] Speaker 02:
I mean, one, just as a general matter, it would be quite extraordinary to just get to assume a party's legal obligations and then have that form part of the basis for relief when the question hasn't come up.

[00:10:47] Speaker 02:
We certainly were alleged to have conceded these obligations.

[00:10:49] Speaker 02:
We do not.

[00:10:51] Speaker 02:
But then even just

[00:10:52] Speaker 02:
You know, getting into the specifics of this case, there is no statute that requires EEOC to do this.

[00:10:57] Speaker 02:
EEOC is authorized to... It's a regulation.

[00:11:00] Speaker 02:
There's a regulation that requires employers to submit information, and it doesn't say EEOC must do this, much less in a particular way.

[00:11:08] Speaker 02:
So here one of the things that's in dispute is how many years worth of information should be collected.

[00:11:14] Speaker 02:
EEOC is not under any legal obligation, statutory or regulatory, to collect a particular number of years.

[00:11:20] Speaker 02:
By the time the district court's stay order was entered, the state was vacated.

[00:11:26] Speaker 04:
What about the fact that for years this information has been collected and published and EEOC has said that it intends to publish in the future, and that was the premise

[00:11:44] Speaker 04:
of how the plaintiffs and the district court perceived it.

[00:11:47] Speaker 02:
Significantly, Your Honor, this information has never been collected or published.

[00:11:51] Speaker 02:
This is a novel collection of information that's actually significantly larger and more burdensome than the long-standing collection of civil.

[00:11:59] Speaker 04:
I understand that.

[00:12:00] Speaker 04:
But EEOC didn't draw that distinction.

[00:12:04] Speaker 02:
Well, it is drawn in the record here.

[00:12:06] Speaker 02:
The record reflects.

[00:12:07] Speaker 02:
Yes, it is.

[00:12:07] Speaker 04:
But we're just talking about Judge Pillard's point

[00:12:12] Speaker 04:
Why would you bring a suit to remove the stay if you end up with nothing?

[00:12:16] Speaker 04:
And maybe that's the mistake in their litigation strategy.

[00:12:20] Speaker 04:
I understand that.

[00:12:21] Speaker 04:
But you have an agency that's had a practice doing something, and you've relied on it.

[00:12:30] Speaker 04:
And the agency says, and we can do this in the future.

[00:12:35] Speaker 04:
Why isn't that enough?

[00:12:37] Speaker 04:
In this situation, why, in other words,

[00:12:40] Speaker 04:
Isn't your argument tantamount to saying no stay was necessary?

[00:12:44] Speaker 02:
So no, Your Honor.

[00:12:45] Speaker 02:
We fully acknowledge that the district court, whether the stay was necessary.

[00:12:52] Speaker 02:
No, the stay is relevant because under the framework established by the PRA, OMB has to give agencies permission to go forward.

[00:13:00] Speaker 02:
So that was what the state did.

[00:13:01] Speaker 02:
It authorized EEOC to go forward with the collection that it had proposed.

[00:13:04] Speaker 02:
But even at that point, had there never been a stay, the state prevented them from going forward.

[00:13:08] Speaker 02:
The state prevented them.

[00:13:09] Speaker 02:
I'm sorry, the approval authorized them to go forward.

[00:13:11] Speaker 02:
The state prevented it.

[00:13:13] Speaker 02:
But had there never been a stay, EEOC had discretion to do any number of things, adjust the timing.

[00:13:18] Speaker 00:
So I guess one way to think about it is this.

[00:13:21] Speaker 00:
Yes, let's presume that you're right, that there wasn't an obligation to collect the information because EEOC could come up with a reason not to collect it.

[00:13:31] Speaker 00:
That would be true of the component one data, too.

[00:13:34] Speaker 00:
Right?

[00:13:35] Speaker 00:
I mean, if the computer's breakdown is a suggestion you're brief, well, then there's going to be some accommodation made because of that.

[00:13:40] Speaker 00:
That's no less true of the component one data than the component two data.

[00:13:44] Speaker 00:
But one relevant question is, what's the baseline expectation when the stay is removed?

[00:13:51] Speaker 00:
And the baseline expectation, I think, was that both the component one and component two data would be collected, because the only thing that was stopping that was the stay.

[00:14:00] Speaker 00:
And then, yes, it's true that something else could happen so that the EEOC says, look, yeah, right now you've got to submit the revised, as the regulation says, and their latest revised one includes the component two, and you've got to do that.

[00:14:12] Speaker 00:
There could be something that comes along that causes the EEOC to change its mind.

[00:14:15] Speaker 00:
Sure, that could happen.

[00:14:16] Speaker 00:
But the baseline expectation at the time the stay is removed is that employers are going to submit both

[00:14:21] Speaker 00:
component one and component two data.

[00:14:23] Speaker 00:
Is that not accurate?

[00:14:25] Speaker 02:
So that is certainly the district court's expectation that appears to have been plaintiff's expectation, but that is still vastly different from a legal obligation.

[00:14:33] Speaker 00:
Right, legal obligation, I understand your point about legal obligation because it's true that something could come up and the EEOC, let's just hypothesize the EEOC comes up with a lawful reason not to do it, that could happen.

[00:14:44] Speaker 00:
But in terms of the expectation of what would happen, but for something like that kicking in, everybody was operating on the assumption

[00:14:51] Speaker 00:
that employers were then, per the regulation, going to submit the revised EO, which includes component two information.

[00:15:00] Speaker 02:
I certainly can't speak to everyone, but it does, at the very least, appear that the district court and plaintiffs had that expectation.

[00:15:06] Speaker 02:
But again, the space between expectation and legal obligation is dispositive here.

[00:15:11] Speaker 02:
So the extraordinary thing that happened was that after staying the allegedly unlawful action undertaken by OMB, a separate agency, the court then moved

[00:15:21] Speaker 02:
Quite quickly, well, EEOC was still considering its options, trying to figure out if it made sense to collect, how quickly to collect, what it should do in these circumstances, consistent with its discretion.

[00:15:30] Speaker 02:
And the court enjoined that separate agency whose action was not at issue.

[00:15:34] Speaker 02:
No one has ever mitigated the components.

[00:15:36] Speaker 00:
So can I just clarify?

[00:15:37] Speaker 00:
I follow that argument.

[00:15:38] Speaker 00:
But that argument seems to me no different for the Component 2 information than the Component 1 information.

[00:15:43] Speaker 00:
It would be equally true.

[00:15:45] Speaker 00:
You would say the same thing about the Component 1 information.

[00:15:46] Speaker 00:
There's no legal obligation as to that either.

[00:15:49] Speaker 00:
Right?

[00:15:49] Speaker 00:
Yes.

[00:15:50] Speaker 00:
Yes.

[00:15:51] Speaker 02:
We would say that.

[00:15:53] Speaker 02:
But what happened here was the district court went so far beyond the relief that is clearly the limits of appropriate relief in an APA case, vacating and remanding.

[00:16:03] Speaker 02:
And that's again with respect to the agency that did the unlawful thing in the first instance.

[00:16:08] Speaker 02:
And it tied the hands of a separate agency that has discretion to make different choices.

[00:16:12] Speaker 02:
And so EOC here clearly should have been able

[00:16:15] Speaker 02:
to consider how to proceed under these new circumstances.

[00:16:18] Speaker 00:
Right.

[00:16:18] Speaker 00:
That goes to the remedy, as to which the only thing that's left is the percentage match and the accompanying report.

[00:16:23] Speaker 02:
Yes, yes.

[00:16:24] Speaker 02:
I'm principally talking about remedy here.

[00:16:27] Speaker 00:
I do want to say, though, it's not as if the government didn't have the same expectation, right?

[00:16:34] Speaker 00:
I mean, you're saying that, yeah, that may be what the plaintiffs had and the district court had.

[00:16:39] Speaker 00:
But your brief says, at page 29,

[00:16:43] Speaker 00:
Thus, if OMB had never issued its state, but EOC had, based on changed circumstances such as practical difficulties associated with collection, reconsidered its decision to collect the data.

[00:16:52] Speaker 00:
So EOC had made a decision to collect the data.

[00:16:54] Speaker 00:
It was operating on that decision.

[00:16:58] Speaker 02:
Yes, although I think the government may have had different understandings sooner than others in the case about what would be realistic.

[00:17:11] Speaker 02:
in terms of the logistics of a collection earlier and perhaps that could have been better communicated.

[00:17:15] Speaker 02:
After the state was vacated.

[00:17:17] Speaker 02:
After the state was vacated.

[00:17:18] Speaker 02:
But again, that wasn't an issue, which is why, the main reason why it didn't come up sooner.

[00:17:23] Speaker 02:
EEOC's conduct has never been the focus of this litigation until the remedy order.

[00:17:28] Speaker 02:
The district court jumped in about two weeks after entering a summary judgment order upset with the agency, about the commission, about why it wasn't already complying with the summary judgment order.

[00:17:41] Speaker 02:
But again, the summary judgment order vacating this day didn't require EEOC to do anything, much less on that schedule.

[00:17:47] Speaker 02:
And so going so far beyond the limits of relief that are identified in cases like Palisades General Hospital, Alina Health Services, Bennett v. Donovan, which says,

[00:17:55] Speaker 02:
The district court's work is at an end after it vacates and remands to the agency.

[00:17:59] Speaker 02:
That's where the court needed to stop here.

[00:18:01] Speaker 02:
And it committed clear error when it went well beyond that in superintending EEOC's conduct.

[00:18:08] Speaker 04:
So the argument about the district court's equitable power, where does that fit in?

[00:18:17] Speaker 02:
In cases under the APA, the scope of the court's recognized equitable authority is typically less than in standard private litigation.

[00:18:26] Speaker 02:
So this court has made very clear that the appropriate thing is to vacate and remand.

[00:18:31] Speaker 02:
It has acknowledged extraordinary circumstances where after multiple trips back to the agency, the agency still haven't complied with a clear legal directive from the court.

[00:18:40] Speaker 02:
that the court has acknowledged the power to go further, but that's not these circumstances.

[00:18:45] Speaker 02:
Here, again, EEOC was under no legal obligation, other than acknowledging that the state had been lifted and that it had authority to go forward with this collection, was under no legal obligation to take these particular actions.

[00:18:58] Speaker 04:
So plaintiff's only option in the government's view is to bring another lawsuit?

[00:19:03] Speaker 02:
Yes, after EEOC was given an opportunity to respond to the changed circumstances and determine how

[00:19:10] Speaker 02:
It should proceed, yes.

[00:19:12] Speaker 04:
Even though EEOC was a named defendant.

[00:19:15] Speaker 02:
Yes, and again, we don't dispute that we're bound by the court's orders as far as they go, but the order was to vacate the state, and that does not itself impose or reapply any legal obligations on EEOC to proceed in a particular way.

[00:19:30] Speaker 03:
Would a separate lawsuit be necessary?

[00:19:32] Speaker 03:
Why isn't the implication of your position just that they would have to then move for some kind of judgment or relief against EEOC so that the legal issue would be briefed about what the commission's obligation is and whether it has difficulty or reasons to stray from the assumed

[00:19:57] Speaker 03:
baseline that an EEO1 would go out each year?

[00:20:00] Speaker 02:
It's possible that could work, or maybe there could be an amendment to the complaint somehow.

[00:20:04] Speaker 02:
But the main thing is that the claim, some version of that legal argument, needs to be brought as such and litigated in the ordinary courts.

[00:20:12] Speaker 02:
It simply wasn't tested here.

[00:20:14] Speaker 02:
So legal obligations were assumed by the court.

[00:20:16] Speaker 02:
The court did seem to think that EEOC had to do these things as a result of the summary judgment order, but that question was just never presented.

[00:20:23] Speaker 02:
We, again, were alleged to have conceded it, and we did not.

[00:20:27] Speaker 03:
Well, I guess the conceding goes to my follow-up question, which is, had the government made clear early that, hey, even if this stay is removed, you know, you're going after a mirage here because there isn't any obligation on EEOC to produce this.

[00:20:50] Speaker 02:
And I think that comes out in the standing argument.

[00:20:52] Speaker 02:
Perhaps it could have been,

[00:20:55] Speaker 02:
presented differently in more of a remedy question, although again, the government never imagined that this remedy would follow.

[00:21:02] Speaker 02:
So it really was very unexpected.

[00:21:04] Speaker 02:
But the standing argument does say that there's no requirement for EEOC to collect this in the first place, and certainly no obligation to disclose.

[00:21:13] Speaker 02:
And that second point is conceded.

[00:21:15] Speaker 02:
So the sort of shaky premise of the suit seeking

[00:21:21] Speaker 02:
It's based entirely on wanting this information to which plaintiffs concededly have no right was out there, even if not inserted at the point of the analysis that Your Honor is suggesting would have been helpful.

[00:21:35] Speaker 02:
But again, the fact that it wasn't raised that way doesn't change the legal analysis here.

[00:21:41] Speaker 02:
This is still a case where the district court went so far beyond the ordinary vacator and remand

[00:21:48] Speaker 02:
to superintend a separate agency's conduct in a way that is unsupported by statute or regulation.

[00:21:53] Speaker 02:
There's nothing that requires EEOC to keep open collection.

[00:21:58] Speaker 00:
Well, can I ask you about that to the status of litigation?

[00:22:00] Speaker 00:
So as I understand it, there's a dispute about whether the response rate is adequate under the district's order and then that there's going to be subsequent briefing and argument and a determination about that in February.

[00:22:16] Speaker 02:
We have twice briefed whether the response rate is adequate, and we are waiting on a decision from the district court.

[00:22:24] Speaker 02:
So in response to our first motion for order saying that the collection was complete, at which point, I think we had about 80% of the information, and maybe closer to 75, the district court said, I'm not sure what is enough, but that's not enough, come back to me later, and suggested that 85% could be a benchmark.

[00:22:41] Speaker 02:
Once we exceeded 85%, we went back to the district court

[00:22:44] Speaker 02:
Plano State needs to be 98.25%, which is truly extraordinary.

[00:22:49] Speaker 02:
Nothing requires EEOC to keep it open.

[00:22:51] Speaker 00:
What if the district court comes back and says, in whatever the release anticipated, I thought there was something in the record that indicated there's a submission deadline of February 7th, or there's something going on.

[00:23:02] Speaker 02:
It has directed the parties to continue with the status reports until January 31st and then a joint status report on February 7th to determine completeness.

[00:23:10] Speaker 00:
So at the culmination of that, if the district court determines that the response rate is adequate, then at that point is the

[00:23:17] Speaker 00:
Is the case over?

[00:23:18] Speaker 00:
Is it moot?

[00:23:19] Speaker 02:
There may still be relevance to the vacator of the state at that point, and that's something that we would need to consider.

[00:23:25] Speaker 02:
It's possible that depending how obligations were discharged, other things in the background, that that could still affect the rights and obligations of parties in the world.

[00:23:35] Speaker 02:
Deeming the collection complete should discharge EEOC's continuing efforts and obligations under that order, which is significant.

[00:23:43] Speaker 02:
This is coming at a cost to the agency of $150,000 per week.

[00:23:47] Speaker 02:
The agency has spent over $7 million already on this, which is about 2% of its annual operating budget.

[00:23:52] Speaker 02:
This is an extraordinary burden for the agency and one that's not required by law.

[00:23:55] Speaker 04:
Why don't we hear from Appellee?

[00:24:21] Speaker 01:
May it please the court, Robin Thurston, for the National Women's Law Center and the Labor Council for Latin American Advancement.

[00:24:30] Speaker 01:
Given that Your Honor spent significant time on remedy, I think I'll start there.

[00:24:33] Speaker 01:
And I think that Judge Trinidad's suggestion that the baseline expectation

[00:24:39] Speaker 01:
following vacature of the unlawful stay was that the data collection go back into effect is what both plaintiffs and the court understood the litigation to be throughout and also what the government through its representations at the district court allowed them to understand.

[00:24:55] Speaker 01:
For example, we briefed summary judgment of the district court and discussed the appropriate remedy.

[00:25:01] Speaker 01:
Government raised the possibility of disruptive consequences by vacating the stay and reimposing the data collection.

[00:25:08] Speaker 01:
Throughout litigation of the district court, plaintiffs were telling the government, we are eager for a decision in this case in a timely manner so that we can, the data collection scheduled for spring 2019 could include component two.

[00:25:20] Speaker 01:
The government never told us or the court that it was its position that that would not be part of our remedy.

[00:25:25] Speaker 01:
And so when the district court, following its summary judgment order, which it has stated, it issued in time for the spring data collection in 2019 to include component two,

[00:25:36] Speaker 01:
when the data collection opened a couple weeks after the district court's order and did not include component two, plaintiffs and the district court were alarmed by the apparent lack of compliance with a summary judgment order.

[00:25:52] Speaker 04:
So even though you didn't seek that specific remedy in your lawsuit, you're saying you were entitled to that expectation

[00:26:06] Speaker 04:
based on statements made during the litigation?

[00:26:10] Speaker 01:
Well, what we sought was that the unlawful stay be vacated and that the revised EEO1 form be back in effect.

[00:26:17] Speaker 01:
And that's what the district court ordered in its summary judgment decision, that the revised EEO1 form, including component two, be back in effect.

[00:26:25] Speaker 01:
And as discussed with the government, the EEOC's regulations require that employers submit data annually

[00:26:31] Speaker 01:
And the form of submission is controlled by the currently approved Paperwork Reduction Act form that OMB has approved.

[00:26:38] Speaker 01:
And following the vacature of the stay, the form that was back in effect included component two.

[00:26:44] Speaker 01:
So that was a necessary result of the vacature order.

[00:26:51] Speaker 03:
You are assuming that EEOC would

[00:26:57] Speaker 03:
I guess what was the basis of your assumption that EEOC would necessarily collect data under whatever lawful form OMB had approved during the May to September period in the upcoming year?

[00:27:16] Speaker 01:
require that employers submit data on an annual basis.

[00:27:19] Speaker 01:
It has collected that data on an annual basis in the range of 50 years.

[00:27:24] Speaker 01:
This is a regular reporting requirement, which the EEOC had planned in the spring of 2019 to implement for Component 1 for the non-pay related data.

[00:27:35] Speaker 01:
Once those stay vacated,

[00:27:37] Speaker 01:
Excuse me, Weston State was vacated by the district court.

[00:27:40] Speaker 01:
Component 2 became part of the operative reporting form once again, and employers were obliged to submit it.

[00:27:46] Speaker 01:
And EEOC was bound to use that form for collection unless it decided, if it had decided to do something else, there were mechanisms for it to do so.

[00:27:54] Speaker 01:
It could have received a new paperwork reduction act approval to change the form, or there are other options.

[00:28:03] Speaker 01:
to exercise that authority, but what it can't do is just change the form without receiving a new approval and thereby not comply with the district court's order.

[00:28:11] Speaker 03:
Could it use the only approved form but tell employers on its database, I guess somewhat what it did, were not actually asking you to submit the data for the new component until we get some more bugs worked out,

[00:28:29] Speaker 03:
And I guess the question is why was that not something that it's your burden to seek relief against or protection against by actually litigating that point, given that you already know at this point that EEOC is ambivalent and resistant about this.

[00:28:48] Speaker 03:
And it is an agency with its own authority to figure out how to go forward.

[00:28:54] Speaker 01:
Well, I think if you're honest, step back to what was happening in March of last year before the district court.

[00:29:00] Speaker 01:
The summary judgment opinion had been issued, and the data collection opened with only component one, component two.

[00:29:07] Speaker 01:
The court immediately held a status conference at the plaintiff's request, at which the district court said it had no interest in telling the EEOC how to conduct its business.

[00:29:15] Speaker 01:
But it was concerned about whether the EEOC, which has always been a named defendant in this case, whether it was complying with the district court's order.

[00:29:24] Speaker 01:
At that point, the EEOC was unable, the government, excuse me, was unable to tell the district court when it intended to impose the component 2 data collection or any plans for compliance.

[00:29:35] Speaker 01:
Thereafter, the parties had several opportunities to submit papers explaining the government had an opportunity to attempt to put forth a plan, which it eventually did, which is essentially the plan that the district court imposed.

[00:29:47] Speaker 03:
And... So, just to clarify, when it opened the data collection,

[00:29:54] Speaker 03:
It had the only approved form available, but how did it not then solicit on component two?

[00:30:03] Speaker 01:
It opened the data collection permitting employers to file only component one data and had a statement on its website that it was determining what to do.

[00:30:11] Speaker 03:
Even though the only approved form called for both?

[00:30:14] Speaker 01:
Correct.

[00:30:15] Speaker 03:
That's correct.

[00:30:16] Speaker 01:
So they were filling half the form and submitting that?

[00:30:19] Speaker 01:
It's an electronic submission, and I think effectively they

[00:30:24] Speaker 01:
they were only submitting the first half of the form as far as visualizing whether it was filling half or filling the whole.

[00:30:29] Speaker 01:
I think that's hard to do when you think about an electronic submission, but it was not possible at that point for employers to submit component two data via the regular course.

[00:30:40] Speaker 00:
Can I ask a question about the response rate part of it?

[00:30:42] Speaker 00:
So where does that, if there's,

[00:30:46] Speaker 00:
Even if you think that there was an expectation, let's even call it an obligation for purposes of just argument, to submit the component 2 data.

[00:30:56] Speaker 00:
Where's the notion that there was some response rate that had to be achieved by the ANC?

[00:31:03] Speaker 01:
That comes from the district court's equitable authority, Your Honor, and I think it's important in thinking about that to revisit some of the factual determinations.

[00:31:09] Speaker 00:
But why is there an equitable authority to force a response rate that's nowhere in the law?

[00:31:14] Speaker 00:
I mean, do you disagree that EEOC could have, but for the district court's order, could have

[00:31:21] Speaker 00:
received component 2 data, just as a legal matter, received component 2 data and then cut off the receipt of component 2 data after 6 weeks following the deadline.

[00:31:30] Speaker 00:
What is there in the law that would tell the EEOC that they can't do that?

[00:31:35] Speaker 01:
In the normal course, the EEOC does have discretion for how long to keep the data collection open.

[00:31:40] Speaker 01:
And in its federal registry notices setting forth this collection plan, it said approximately how long it intended to keep it open.

[00:31:47] Speaker 01:
In the past, it has extended that period by months, which is testimony that the district court heard in March from the EEOC's chief data officer.

[00:31:55] Speaker 01:
But I think what's important as to the question of whether this remedy was within the district court's discretion is revisit some of the factual determinations that the district court made, which are really unrefuted by the government.

[00:32:05] Speaker 01:
Conclusions that the government had not demonstrated a commitment to efficiently collect component two data, and that it did not have clean hands in the case, and the court did not have adequate insurances that the government would complete the component two data collection.

[00:32:22] Speaker 00:
So I think that's it.

[00:32:23] Speaker 00:
So what does that even, I don't understand

[00:32:25] Speaker 00:
I'm not understanding what he means to complete the data component through data collection if there's no obligation to get 100.

[00:32:30] Speaker 00:
I mean, could it have been 100%?

[00:32:31] Speaker 00:
Could the district court have said, you can't stop until you get 100% response rate?

[00:32:39] Speaker 00:
We're pretty close at 98.5.

[00:32:41] Speaker 03:
That had never been done before.

[00:32:42] Speaker 03:
I mean, I take it that your answer is yes.

[00:32:45] Speaker 00:
Can I just ask?

[00:32:47] Speaker 00:
Could the district court have required 100%?

[00:32:54] Speaker 01:
I think it is conceivable that that would be within the scope of the district court's discretion to enforce compliance with its orders, but that's not, of course, what we have here.

[00:33:02] Speaker 00:
You're close.

[00:33:03] Speaker 00:
98.5 is not far from 100.

[00:33:05] Speaker 01:
Correct, Your Honor.

[00:33:06] Speaker 01:
And I think one thing that the government has not addressed adequately in this briefing that we haven't discussed so far today is the real time constraints that plaintiffs and the district court were facing last spring, which is that the then existing Paperwork Reduction Act approval was scheduled to expire by September 30.

[00:33:22] Speaker 01:
So if the collection didn't start with sufficient time before September 30th for employers to be able to file their reports, and that means before September 15th, for example.

[00:33:32] Speaker 01:
You would need a period of months for employers to do this.

[00:33:35] Speaker 01:
There was a real chance that plaintiffs would lose any remedy.

[00:33:40] Speaker 01:
And that timing consideration was really driving plaintiff's concerns and the district court's determinations as to its equitable authority.

[00:33:48] Speaker 03:
As to the... I just find it inexplicable you would say that

[00:33:52] Speaker 03:
the district court could order 100% response rate.

[00:33:55] Speaker 03:
And it seems like what I took to be your position, and now I'm not sure whether I'm misunderstanding it, is that the district judge was acting within remedial power, the nature of which was to try to put the plaintiffs in the position they would have been in, but for the unlawful stay.

[00:34:17] Speaker 03:
And that necessarily involves some counterfactual

[00:34:21] Speaker 03:
And as you say, because the nature of the violation was in effect a slow walking or a prevention of something that was time limited, there was some urgency, which I guess accounts for pushing to get this up.

[00:34:37] Speaker 03:
But in terms of the percentage collection, it seems to me critical to your position that she looked at what the percentage response rates were in the past on the data that EOC was already collecting.

[00:34:52] Speaker 03:
And that without that, if you just say, oh, 100 percent, I mean, no agency ever gets 100 percent response rate, that without her having tried to use some kind of equitable reasoning that says, counterfactually, we haven't ever collected this information.

[00:35:07] Speaker 03:
How do we know what the response rate is when the system is functioning in a healthy way?

[00:35:12] Speaker 03:
We're going to look to the only analog we have.

[00:35:15] Speaker 03:
whether that was as finely done or as sensitive to the difference in the nature of the data is a separate question.

[00:35:21] Speaker 03:
But I just don't follow where you think a district judge would have that authority.

[00:35:27] Speaker 03:
I just don't.

[00:35:28] Speaker 01:
I think that probably is a better articulation of our position.

[00:35:31] Speaker 01:
And to think about the response rate a little bit more, what the district court ordered was not explicitly 98.25%.

[00:35:39] Speaker 01:
It ordered at our suggestion, and without a contrary suggestion from the government at the time,

[00:35:45] Speaker 01:
that completion be measured by the mean of the prior four years of reporters that actually reported?

[00:35:52] Speaker 00:
At the time, no.

[00:35:52] Speaker 00:
I'm not sure I'm following that line of reasoning either, because if the idea is you're supposed to mimic what happens, there's no requirement in the law or anywhere, I think, that the response rate has to be the same every cycle.

[00:36:07] Speaker 00:
What happens is you get the response rate that you get.

[00:36:11] Speaker 00:
Just because it happened to be

[00:36:13] Speaker 00:
say 85% last time doesn't mean there's an entitlement to 85% the next time.

[00:36:18] Speaker 00:
It means you get the response rate that the EEOC does within whatever legal parameters it's operating under.

[00:36:25] Speaker 00:
And sure, I imagine that if the EEOC decides arbitrarily to cut off responses in a way that could occasion

[00:36:31] Speaker 00:
a challenge based on arbitrary and capricious government action or a failure to follow through, there's APA actions that could be brought for that.

[00:36:39] Speaker 00:
But in terms of the authority to compel, even if we assume that the goal was to carry forward a response rate that had been roughly in existence before, is there actually a legal obligation to continue the same response rate the next cycle?

[00:36:55] Speaker 01:
I think as far as a standalone case in the first instance, I think it's unlikely there would be a cause of action for that.

[00:37:01] Speaker 01:
But in terms of the district court ensuring that the government actually comply with its orders, in a situation where the district court found that the government was not committed to actually conducting the collection that the district court determined was required by the order, I think that there, then you look into the district court's equitable authority, which is what happened here, and the district court found that to be a reasonable measure of what appropriate completion

[00:37:25] Speaker 01:
would be, and I mean, but Ms.

[00:37:26] Speaker 03:
Thurston, that gets to the underlying point that Ms.

[00:37:29] Speaker 03:
Powell was making, which is where is the legal obligation to, you said that they weren't committed to the collection, and I guess where, from whence arises the legal obligation to be committed to the collection of this data?

[00:37:48] Speaker 03:
I mean, whether the, I think there's another issue about using that benchmark for the response rate, which is,

[00:37:55] Speaker 03:
This is a very different kind of data.

[00:37:58] Speaker 03:
It's maybe more voluminous, harder to collect, I don't know.

[00:38:05] Speaker 03:
But certainly a new data collection.

[00:38:07] Speaker 03:
So the idea that the well-oiled machine that's been in place for decades and gets an 80, 90 plus percent, would that be an apt benchmark for this brand new type of data?

[00:38:19] Speaker 03:
That's a question.

[00:38:20] Speaker 03:
But the underlying question that was Paul's raising is,

[00:38:24] Speaker 03:
Why do we assume, as a remedial benchmark, that the agency has to be put its shoulder to this wheel?

[00:38:34] Speaker 03:
Why don't we use the ordinary?

[00:38:35] Speaker 03:
I mean, they're arguing, you remand to the agency, the agency's agency, and it's a new day.

[00:38:40] Speaker 03:
It's doing things differently now.

[00:38:43] Speaker 01:
Well, if the agency had undertaken to impose a component two in the first place, data collection in the first place after the summary judgment order, then

[00:38:53] Speaker 01:
the district court would not have felt the need to get involved.

[00:38:56] Speaker 01:
It was only when the district court started to see the failure to comply that it found it necessary to impose basic remedial requirements.

[00:39:03] Speaker 01:
So this isn't like the Palisades case where a court tells the agency, here's the reimbursement rate that you have to achieve on remand.

[00:39:13] Speaker 01:
The district court instead accepted the EEOC's representations as to how it would comply.

[00:39:18] Speaker 01:
The EEOC proposed the time frame for collection upon inquiry and pushing by the district court.

[00:39:25] Speaker 01:
The EEOC said, we'll do this by September 30th.

[00:39:28] Speaker 01:
The district court accepted as a reasonable measure of completeness our suggestion that it go by this mean of the prior four years.

[00:39:35] Speaker 01:
That's something the government didn't contest at the district court.

[00:39:38] Speaker 03:
And I think I'm asking the more basic question, which maybe we've just

[00:39:42] Speaker 03:
beaten this dead horse already, but the notion that there is an entitlement to swift and fulsome attention to this issue, what claim is that a remedy for?

[00:40:01] Speaker 01:
Without it, there would have been no relief for the plaintiffs.

[00:40:03] Speaker 01:
I mean, if you think of the counterfactual that EEOC had opened the component to data collection for a day without notifying employers, and thereby there was effectively no data collection, perhaps the EEOC would claim that was sufficient to have complied with the vacatur order and lifting the stay, but that plainly would have left plaintiffs without any relief.

[00:40:24] Speaker 04:
So where are we in this case now?

[00:40:27] Speaker 04:
Judge Sreenivasan's initial question raised that, and the government said, well, there are only two things standing, the response rate and the monthly reporting.

[00:40:41] Speaker 01:
We think that the government's appeal is nearly moot.

[00:40:44] Speaker 01:
We expect that the district court will, in fact, have the collection wind down within a matter of days or weeks, as you discussed with the government.

[00:40:53] Speaker 01:
There's a report due on February 7, and I think

[00:40:55] Speaker 01:
that assuming that it, based on the government's most recent status report, it becomes clear that there are diminishing returns to keeping the collection open.

[00:41:05] Speaker 01:
Everyone will agree it's an appropriate time to close it.

[00:41:08] Speaker 01:
So we will likely not get to 98%.

[00:41:10] Speaker 01:
That's not a measure that we would ultimately insist upon.

[00:41:15] Speaker 04:
Well, I'm just not clear.

[00:41:17] Speaker 04:
I mean, this court may not rule before February 7th, but hypothetically,

[00:41:25] Speaker 04:
even if the district court rules then.

[00:41:28] Speaker 04:
And basically government saying, you've gotten everything that you're entitled to, and you've gotten even more.

[00:41:38] Speaker 04:
So there's nothing left to litigate.

[00:41:39] Speaker 04:
I mean, the monthly reporting, that's become given that February 7th is the date.

[00:41:48] Speaker 04:
And you're conceding now that you're not going to really insist on this 98.5%.

[00:41:56] Speaker 04:
So what's left?

[00:41:58] Speaker 01:
We think the appeal will likely become moot.

[00:42:01] Speaker 01:
At what point?

[00:42:03] Speaker 01:
When the collection closes.

[00:42:04] Speaker 03:
What about the tolling with respect to the validity of the currently approved EO1 form?

[00:42:15] Speaker 03:
I gather there's process in place to get a new EO1 form approved that doesn't have component two, but that's not finalized

[00:42:24] Speaker 03:
So as I understand it, the tolling is to say, traditionally, you only have three years under the Paperwork Reduction Act for a data collection form like this.

[00:42:33] Speaker 03:
It was not in use for a big chunk of that.

[00:42:37] Speaker 03:
So the district court said it can continue to be live for an additional period.

[00:42:42] Speaker 03:
Is that also moot?

[00:42:43] Speaker 03:
I don't think the government has really appealed that.

[00:42:45] Speaker 03:
But is that something that matters to you in any way, whether that

[00:42:49] Speaker 01:
No, that would likely also become moot.

[00:42:51] Speaker 01:
It wasn't appealed.

[00:42:52] Speaker 01:
The district court found, we agree, the tolling was necessary to make sure that employers didn't have an incentive to just withhold their data until September 30th and then never have to submit it.

[00:43:01] Speaker 04:
Yes, let me follow up on my question so we get clear here.

[00:43:06] Speaker 04:
You're saying as of February 7th, you think the case would become moot.

[00:43:11] Speaker 04:
What I'm trying to understand is, suppose you're right about that.

[00:43:19] Speaker 04:
Why would we say anything in a sense?

[00:43:24] Speaker 04:
Because the government's position will obviously be it's going to move.

[00:43:28] Speaker 04:
This OMB period of approval has expired.

[00:43:32] Speaker 04:
Now everybody knows, including you, that EEOC wants to go on a different path than it has for the last 50 years.

[00:43:42] Speaker 04:
So you'll have to bring a new lawsuit.

[00:43:44] Speaker 04:
So why are we even pursuing this one?

[00:43:47] Speaker 01:
We think that the appeal likely will become moot, and it may not be necessary to resolve the issues before the court.

[00:43:54] Speaker 04:
So this is not capable of repetition, evading review.

[00:44:01] Speaker 01:
Because it was an independent three-year paperwork reduction act approval, it's not immediately apparent to me how that would apply.

[00:44:08] Speaker 04:
So are you in agreement with the government that there are only these two things left in the case?

[00:44:17] Speaker 01:
standing and the question of the response rate?

[00:44:20] Speaker 04:
No, we're beyond that.

[00:44:21] Speaker 04:
The government says the only thing left is the monthly reporting and the compliance rate.

[00:44:28] Speaker 04:
And you're conceiving that basically the first is move because of the February 7th date, and secondly, you're not going to insist on your 98.5%.

[00:44:44] Speaker 04:
So what are we dealing with?

[00:44:47] Speaker 04:
I mean, the government has preserved all its argument on standing and district court's lack of authority to enter the remedial order.

[00:45:00] Speaker 04:
But I'm just wondering what's live in this case, because a lot of what we're hearing today, it seems to me, is premised on the notion that a lot of things were assumed in the district court.

[00:45:12] Speaker 04:
And EEO never abused the district court of that before.

[00:45:17] Speaker 04:
it entered summary judgment, and everybody proceeded on the basis of what EEOC had said.

[00:45:26] Speaker 04:
Now all these issues are coming up that things should have been litigated, but they weren't.

[00:45:32] Speaker 04:
So that's troubling to me, number one.

[00:45:35] Speaker 04:
But number two, why are we going to issue all this law about things that are basically moved?

[00:45:45] Speaker 01:
As to the first point, Your Honor, well, we think it would, if the government had understood that it wasn't going to reimpose the Component 2 data collection, it's a burden to raise that issue and brief EEOC's obligations as a defendant in the case.

[00:46:00] Speaker 01:
But setting that aside, we do think that the appeal will likely become moot, assuming that the data collection closes around February, you know, in the near future, and that based on the facts as we understand them, there's very little remaining.

[00:46:14] Speaker 03:
Even the standing point, is there a reason that that would remain important for the, I don't know, efficacy of the district court's remedials provision or anything?

[00:46:27] Speaker 03:
I don't know.

[00:46:29] Speaker 03:
Why don't we go ahead and answer the question.

[00:46:31] Speaker 03:
I'm just not sure whether the standing is still an operative question for you or maybe not.

[00:46:38] Speaker 03:
Maybe everything goes away.

[00:46:41] Speaker 03:
When and if.

[00:46:43] Speaker 03:
some order is made or agreement is made about response rate, do we even have to decide standing?

[00:46:52] Speaker 01:
I'm just not sure whether... If the collection closes in an orderly way as we anticipate and does so quickly, I don't think that this court needs to address standing and the district, there would be no need to...

[00:47:06] Speaker 00:
It might be advisory to address standing if the case is moot.

[00:47:09] Speaker 01:
I'm sorry?

[00:47:10] Speaker 00:
It might be advisory to address standing if the case is moot, perhaps.

[00:47:14] Speaker 04:
Would it be issue an advisory opinion?

[00:47:17] Speaker 04:
Yeah.

[00:47:18] Speaker 03:
I'm not sure.

[00:47:19] Speaker 03:
And I just wonder about, and I guess I should ask the government whether it bears at all in how they treat the data they've collected.

[00:47:30] Speaker 01:
I mean, the government made some representations that there may be collateral issues that they would want to think about regarding mootness.

[00:47:36] Speaker 01:
We don't know what those are, and we would be happy to think about them.

[00:47:39] Speaker 04:
Well, that's what I'm getting at.

[00:47:40] Speaker 04:
We're into issues that just aren't in this record yet, all right?

[00:47:45] Speaker 04:
Now, let's hear from the government.

[00:47:47] Speaker 04:
Did you have any other?

[00:47:49] Speaker 04:
point you wanted, could you just talk, went to remedy?

[00:47:52] Speaker 01:
Yeah, I would be happy to address your concerns of re-standing, but we addressed them in the brief as well, and I think we'd be happy to stand on those arguments.

[00:48:00] Speaker 04:
Great, thank you.

[00:48:05] Speaker 04:
All right, Council for the Government.

[00:48:13] Speaker 04:
So, any need to address standing?

[00:48:18] Speaker 04:
I'm sorry?

[00:48:20] Speaker 04:
Any need to address Article 3's standing, given your acknowledgement to Judge Sreenivasan that there are only two live issues left in this case, one 30-day reporting requirement and the compliance rate.

[00:48:39] Speaker 04:
And you heard what counseled for the plaintiffs, appellees, stated.

[00:48:44] Speaker 04:
They're not going to insist on the latter.

[00:48:48] Speaker 04:
For all intents and purposes, the former has moved too.

[00:48:51] Speaker 02:
Yes, Your Honor.

[00:48:52] Speaker 02:
So I'd like to address the mootness and then also speak briefly to what's been said about what they've been insisting on in district court and the obligations there.

[00:49:00] Speaker 02:
But with respect to mootness, we haven't briefed this issue.

[00:49:03] Speaker 02:
We haven't briefed what?

[00:49:04] Speaker 02:
Whether the case would become moot if these obligations in district court were.

[00:49:08] Speaker 04:
But your brief talks about what's left in the case.

[00:49:10] Speaker 02:
Yes, so again, I don't want to take a definitive position with respect to mootness when the government has not had the opportunity to breathe it, but there may be obligations that could be affected conceivably.

[00:49:21] Speaker 02:
We're not right now saying that they are.

[00:49:24] Speaker 02:
For example, even if the collection is closed, that may not formally relieve employers of their reporting obligations.

[00:49:31] Speaker 04:
But all that is to be litigated in another case.

[00:49:34] Speaker 04:
It's what I'm trying to get at.

[00:49:36] Speaker 04:
If it's moot,

[00:49:38] Speaker 04:
There's nothing for us to decide.

[00:49:40] Speaker 04:
What I'm trying to get at as distinct from offering a lot of interesting opinions on the issues that the parties have addressed in their briefs.

[00:49:53] Speaker 04:
But this train has left the station.

[00:49:57] Speaker 02:
It is largely out, I agree, but all we're saying is that there may be ways in which

[00:50:04] Speaker 02:
an order saying that the stay never should have been in effect could either affect the way the information is treated, or the obligations of employers in a formal sense, and that that could still be enough to support a life accuracy.

[00:50:15] Speaker 04:
But if the court simply says the case has become moot, it isn't expressing any opinion on these legal issues.

[00:50:24] Speaker 04:
That's what I'm trying to get everybody to focus on.

[00:50:27] Speaker 04:
You may be right in a lot of points, but the train has left the station.

[00:50:32] Speaker 04:
So what are we going to do now?

[00:50:34] Speaker 04:
Tell the train to back up and we'll start all over again.

[00:50:38] Speaker 04:
No, but you've already started all over again by proceeding.

[00:50:41] Speaker 04:
The approval is over and it's clear you're going down another path for the future.

[00:50:51] Speaker 02:
The agency has announced that it's going down a different path for the future, but it may yet be that the vacator of the stay

[00:50:59] Speaker 02:
continues to affect various rights and obligations, and that's just not something that we have had an opportunity to explore.

[00:51:05] Speaker 00:
And so we need to... I understand the way you're articulating is you're preserving the ability to say that it's not moot, but you're not saying that it's not moot.

[00:51:11] Speaker 00:
That's correct, Your Honor.

[00:51:11] Speaker 00:
Is that right?

[00:51:12] Speaker 00:
So it may be moot.

[00:51:13] Speaker 00:
It may be moot.

[00:51:13] Speaker 00:
You just don't know yet, for sure.

[00:51:16] Speaker 03:
Right.

[00:51:16] Speaker 03:
And I wondered if it matters in terms of how you think your clients will treat anything, let's say the data that they've collected,

[00:51:29] Speaker 03:
if they believe that the district court had authority to do what the district court did, or if they believe, this is really a version of a mootness question, or if they believe that she never did have that authority because the plaintiff's like, can you envision that, maybe what I'm saying is that if we're gonna dispose of the case on mootness grounds, we should have supplemental briefing on that.

[00:51:53] Speaker 02:
I think that makes sense.

[00:51:54] Speaker 02:
I can't definitively say that

[00:51:57] Speaker 02:
we do not hold the view that the decision about whether the stay ever should have been invalidated.

[00:52:04] Speaker 02:
Yes, either way.

[00:52:06] Speaker 04:
But my whole point is that where the court declares move because the government says there are only two live issues in the case, the compliance rate and the reporting, we're not saying anything about the legal issues underlying the government's appeal.

[00:52:24] Speaker 04:
That's all I'm getting at.

[00:52:25] Speaker 04:
We're just saying it's no longer a case or controversy before this court in this case at this time.

[00:52:33] Speaker 02:
My only point was that the standing argument may still be a live case or controversy if the argument is over the validity of a district court order that does still affect rights and obligations.

[00:52:44] Speaker 04:
But the argument, what I'm getting at is they have said they're not going to insist on the compliance rate.

[00:52:51] Speaker 04:
So that's gone.

[00:52:53] Speaker 04:
The 30-day obligation is gone.

[00:52:57] Speaker 04:
There's nothing live for us to deal with except by advisory opinion on a lot of very interesting issues.

[00:53:04] Speaker 04:
There's no question about that.

[00:53:05] Speaker 04:
But you haven't forfeit any of them or waived them, and neither have appellees.

[00:53:12] Speaker 04:
That's all I'm trying to get at.

[00:53:13] Speaker 04:
What's the case or controversy left in this matter?

[00:53:17] Speaker 04:
And I thought your brief was quite clear, as you said to Judge Srinivasan.

[00:53:23] Speaker 04:
There are only these two points, and we've heard those have gone away.

[00:53:27] Speaker 04:
Yes, that much is true, Your Honor, and the case may be moved, but I... But do you agree, at least with this, that if a court determines that there is no live case or controversy pending before it, because the train has left the station, that the court is not expressing any view on your challenges

[00:53:53] Speaker 04:
to what happened in the district court.

[00:53:56] Speaker 04:
Those issues will all come up in another case where these are matters that are live for controversy.

[00:54:04] Speaker 04:
That's all I'm trying to understand.

[00:54:05] Speaker 04:
I don't understand the Supreme Court's mootness doctrine to suggest that it's saying anything, that, well, it's moot, but we like the government's argument about point one and point two.

[00:54:16] Speaker 04:
That's not the way these cases read.

[00:54:18] Speaker 02:
That's of course not how it works.

[00:54:20] Speaker 02:
But I think where the district court order does continue to have

[00:54:23] Speaker 02:
effect, then there may yet be a case or controversy.

[00:54:27] Speaker 04:
There may, but nobody's identified it today.

[00:54:33] Speaker 02:
With respect to what's left in district court, I did just want to clarify the way

[00:54:39] Speaker 02:
the recent proceedings have gone there, we have asked for relief from the district court's order and plaintiffs have opposed that request insisting on the 98.25% benchmark.

[00:54:49] Speaker 02:
So it's not the case that everyone's on the same page that we should get this wrapped up, at least as far as the record goes.

[00:54:55] Speaker 02:
And we asked for a ruling from the district court by last Friday and didn't get it.

[00:54:59] Speaker 02:
And so every week that goes by, EEOC continues to take these efforts, continues to pay significant funds, all for something that it should never have been required to do

[00:55:08] Speaker 02:
in the first instance, and there's no, again, the way things have been structured in district court, the February 7th date is the date for a joint filing about the status of things, but the district court especially contemplated that it could require further actions by the commission beyond that point, and it, I mean, for us, this is, it's certainly not over yet, it should be, it should have been over already.

[00:55:31] Speaker 00:
So can I just, this question, and I'm not, I'm sympathetic to the,

[00:55:36] Speaker 00:
the difficulties of arguing in the hypothetical, especially as the government has been in your shoes.

[00:55:41] Speaker 00:
But let's suppose that those issues do get resolved.

[00:55:45] Speaker 00:
Yes.

[00:55:45] Speaker 00:
And I understand your point that they haven't been resolved yet and we can't be

[00:55:49] Speaker 00:
sure that they will be.

[00:55:50] Speaker 00:
If those issues do get resolved and the collection is closed off and everybody agrees that the collection is closed off and the district court signs onto that and says, okay, I'm satisfied, then there's a possibility that you want to preserve, which I understand, that there still may be a live controversy as to the standing issue because that could have repercussions.

[00:56:08] Speaker 00:
So you haven't made a definitive conclusion about that, but you at least want to preserve the ability to argue that.

[00:56:13] Speaker 00:
And then let's suppose further, and hypothetically you're going to resist this, but let's suppose further that

[00:56:18] Speaker 00:
We agree with that, and then we issue a decision that says that there is standing.

[00:56:22] Speaker 00:
And then at that point, there's no need at that point to do anything further with the case, because the things that would be left after standing as to remedy will, by hypothesis, have been dealt with in the district court.

[00:56:32] Speaker 00:
Do you agree with that?

[00:56:33] Speaker 00:
Yes, I agree with that.

[00:56:35] Speaker 04:
All right.

[00:56:36] Speaker 04:
Anything further, or can we take the case under advisement?

[00:56:39] Speaker 04:
Thank you very much.

[00:56:41] Speaker 04:
We'll take the case under advisement.