AT&T Company v. EEOC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 10, 2001 Decided November 16, 2001

No. 00-5280

American Telephone and Telegraph Company, et al.,
Appellants

v.

Equal Employment Opportunity Commission,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv01444)

Charles C. Jackson argued the cause for appellants. With
him on the briefs were Timothy L. Porter, Laura A. Kaster
and Christopher A. Weals.

Robert J. Gregory, Attorney, Equal Employment Opportu-
nity Commission, argued the cause for appellee. On the brief
were Philip B. Sklover, Associate General Counsel, and Pau-
la R. Bruner, Attorney.

 Before: Ginsburg, Chief Judge, Edwards and Sentelle,
Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: AT&T seeks a declaratory judg-
ment against the Equal Employment Opportunity Commis-
sion to the effect that the Company is not required to give
former employees credit for work time they missed due to
pregnancy before passage of the Pregnancy Discrimination
Act of 1979. The district court granted the Commission's
motion to dismiss for want of final agency action. AT&T
contends that the Commission had taken final action because,
although it had not yet sued the Company, it had concluded
that AT&T's policy violates the Act and had taken steps
toward filing a lawsuit on that ground. We hold that course
of conduct does not constitute final agency action and is
therefore unreviewable.

I. Background

The Pregnancy Discrimination Act of 1979 requires an
employer to give an employee who misses work due to
pregnancy the same benefits it gives an employee who misses
work for other reasons, such as a disability. 42 U.S.C.
s 2000e(k). Either an aggrieved employee or the Commis-
sion may sue the employer for violating the Act in district
court in the state where the alleged discrimination occurred.
42 U.S.C. s 2000e-5(f)(1), (f)(3).

AT&T employees earn pension benefits based upon how
long they work for the Company, including any time they
miss due to disability. Since passage of the Act in 1979,
AT&T also has given credit for time missed due to pregnan-
cy. AT&T does not, however, give credit for time missed due
to pregnancy before passage of the Act.

The Ninth Circuit has held that AT&T's policy regarding
pre-Act time missed--which policy is followed by other for-
mer Bell System companies--violates the Act, Pallas v. Pa-
cific Bell, 940 F.2d 1324 (9th Cir. 1991) (holding claim of pre-
Act pregnancy discrimination both timely and correct on the

merits), but the Seventh Circuit has held otherwise, Ameri-
tech Benefit Plan Comm. v. Communications Workers of
Am., 220 F.3d 814 (7th Cir. 2000) (holding claim of pre-Act
pregnancy discrimination time-barred). The Commission
agrees with the Ninth Circuit and provides in its Compliance
Manual not only that "a seniority policy that treats leave for
maternity purposes differently from leave for other tempo-
rary disabilities ... [is] a violation of Title VII," but also that
denying full work credit for pre-Act pregnancy leave is "past
discrimination" the effect of which constitutes "a present
violation of Title VII." s 616.25. When the Commission
updated the Manual in October, 2000 it specifically endorsed
both the Ninth Circuit's decision in Pallas and a district court
judgment to the same effect, Carter v. AT&T, 870 F. Supp.
1438 (S.D. Ohio 1994), vacated by consent, 1996 WL 656571
(S.D. Ohio).

Pallas and Carter were private actions brought by ag-
grieved employees. In addition, the Commission itself has
sued two former Bell System companies for failing to give full
work credit for pre-Act pregnancy leave. See EEOC v. Bell
Atl. Corp., 1999 WL 386725 (S.D.N.Y.); EEOC v. Ameritech
Serv., Inc., No. 97 CV 2106 (N.D. Ohio). The Commission
also filed an amicus brief taking that position in the Carter
case, see 870 F. Supp. 1438.

In the mid-1990s two employees of AT&T complained to
the Commission that the Company refused to give them full
credit for the time they had missed due to pregnancy before
passage of the Act. The Commission issued to each a Letter
of Determination stating that in its view AT&T had unlawful-
ly discriminated against her. The Commission then sent
letters to AT&T urging it to conciliate with the two women
and informing the Company that if conciliation failed, then
the Commission would refer the matter to its legal depart-
ment. In June, 1999 the Commission notified AT&T of its
conclusion that conciliation indeed had failed.

AT&T then filed this suit against the Commission, seeking
a declaratory judgment that the Company's service credit
policy does not violate any federal law. The Commission

moved to dismiss the case on the ground that the Commis-
sion's Letters of Determination are not final orders and are
therefore unreviewable. The district court agreed and AT&T
appealed.

II. Analysis

The district court's authority to review the conduct of an
administrative agency is limited to cases challenging "final
agency action." 5 U.S.C. s 704; Abbott Labs. v. Gardner,
387 U.S. 136, 140 (1967). An agency action is deemed final if
it "mark[s] the 'consummation' of the agency's decisionmak-
ing process" and determines "rights or obligations." Appala-
chian Power Co. v. E.P.A., 208 F.3d 1015, 1022 (D.C. Cir.
2000). The agency must have made up its mind, and its
decision must have "inflict[ed] an actual, concrete injury"
upon the party seeking judicial review. Williamson County
Regional Planning v. Hamilton Bank, 473 U.S. 172, 193
(1985). Such an injury typically is not caused when an
agency merely expresses its view of what the law requires of
a party, even if that view is adverse to the party. See DRG
Funding Corp. v. HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996)
("[C]ourts have defined a nonfinal agency order as one, for
instance, that 'does not itself adversely affect complainant but
only affects his rights adversely on the contingency of future
administrative action' ") (quoting Rochester Tel. Corp. v.
United States, 307 U.S. 125, 130 (1939)).

AT&T acknowledges that a Letter of Determination issued
by the Commission is not final agency action but argues that
the entire course of the Commission's actions with respect to
the Company's service credit policy, including the Letters of
Determination, in the aggregate shows the agency has
reached a final conclusion concerning its legal position.
AT&T suggests that if even that is not enough, the Commis-
sion does not actually have to sue the Company to take final
and reviewable action: Making the decision to sue is surely
sufficient. In either case, the Company also maintains that it
suffers actual injury from the attendant uncertainty about its
ultimate legal obligation while waiting for the Commission to

file suit: AT&T cannot know whether to fund its pension
accounts to pay for pre-Act pregnancy leave until this legal
issue is resolved.

Under the circumstances of this case, there clearly would
be final agency action if the Commission filed a lawsuit
against AT&T. (Of course, the Company could not challenge
that decision as final agency action under the APA; it would
instead simply defend itself against the suit.) At that point
the agency would have decided not only how it views AT&T's
legal obligations, but also how it plans to act upon that view.
How then can AT&T show that the Commission has, if not
formally then at least as a practical matter, taken final action
when the agency has not sued, and might not ever sue, the
Company?

AT&T argues that the Commission takes final action when
it embraces one view of the law and rejects another, or at the
latest when, after formulating its legal position, the agency
decides to sue a particular company. The former argument is
too broad insofar as it would reach a case such as this, in
which the agency's taking a position on the law does not
affect any other party. Although there are, as AT&T points
out, particular circumstances in which an agency's taking a
legal position itself inflicts injury or forces a party to change
its behavior, such that taking that position may be deemed
final agency action, see Appalachian Power, 208 F.3d at 1022
(holding that "a Guidance" issued by the Environmental
Protection Agency is final because it represents a settled
position that the agency "plans to follow in reviewing State-
issued permits, a position it will insist State and local authori-
ties comply with in setting the terms and conditions of
permits issued to petitioners, [and] a position EPA officials in
the field are bound to apply"), this is not such a case. The
Commission has not inflicted any injury upon AT&T merely
by expressing its view of the law--a view that has force only
to the extent the agency can persuade a court to the same
conclusion. Unlike the EPA Guidance at issue in Appala-
chian Power, the EEOC Compliance Manual does not affect
the regulated community. Whereas "EPA officials in the

field [were] bound to apply" the EPA Guidance, id., as
discussed below the EEOC is not bound to sue AT&T.

We turn therefore to AT&T's latter point. We shall as-
sume, without deciding, that the finality requirement would
be satisfied if the Commission decided to enforce the Act
against an employer but then delayed the filing of a com-
plaint. That assumption leads us to the question: Did the
Commission decide to sue AT&T?

AT&T points out that the Commission has sued two other
similarly situated employers, that is, former components of
the Bell System with the same policy regarding pre-Act
pregnancy leave. Still, it does not follow that the agency will
use its limited resources to sue them all; law enforcement
agencies rarely have the ability, or for that matter the need,
to bring a case against each violator. Nor does the Compli-
ance Manual shed light upon the Commission's intentions. It
does state the Commission's view that the policy followed by
AT&T violates the Act, but it does not say whether, how,
against which companies, or under what circumstances the
Commission will act upon that view. The Commission came
nearer to taking final action when it sent Letters of Determi-
nation to AT&T, but such letters themselves clearly fall short
of final agency action. See Georator Corp. v. EEOC, 592 F.2d
765, 768 (4th Cir. 1979) (so holding); see also Atlantic Ritch-
field Co. v. U.S. Dep't of Energy, 769 F.2d 771, 787 n.107
(D.C. Cir. 1984). True, the Commission later referred to its
legal department one of the matters subject to a Letter of
Determination, but that was after AT&T had filed the com-
plaint in this case and therefore is not cognizable in this
litigation. See Federal Express Corp. v. Air Line Pilots
Ass'n, 67 F.3d 961, 965 n.5 (D.C. Cir. 1995) (holding that only
"the facts in existence at the time the suit was filed" matter)
(emphasis in original); cf., e.g., Doss v. F.C.C., No. 00-1124,
2000 WL 1946577, at *1 (D.C. Cir. Dec. 7, 2000) ("Petitions
[for review] filed while a request for reconsideration is pend-
ing before the agency are deemed to be 'incurably prema-
ture' "). In sum, considering everything the Commission did
before AT&T filed its complaint, we do not know whether it

had decided to take the final step of bringing suit against
AT&T.

In these circumstances, to allow AT&T to institute litiga-
tion with the Commission over the lawfulness of its policy
would be to preempt the Commission's discretion to allocate
its resources as between this issue and this employer, as
opposed to other issues and other employers, as well as its
ability to choose the venue for its litigation, as the statute
contemplates. See 42 U.S.C. s 2000e-5(f)(1), (f)(3). For the
court to find here final agency action subject to judicial
review, therefore, would disrupt the administrative process in
a manner clearly at odds with the contemplation of the
Congress.

III. Conclusion

For the foregoing reasons, the judgment of the district
court is

Affirmed.