773 F.3d 257 (D.C. Cir. 2014), 14-5076, Associated Builders & Contrs., Inc. v. Shiu

Docket Nº:14-5076
Citation:773 F.3d 257
Opinion Judge:Tatel, Circuit Judge :
Party Name:ASSOCIATED BUILDERS AND CONTRACTORS, INC., APPELLANT v. PATRICIA A. SHIU, ET AL., APPELLEES
Attorney:Maurice Baskin argued the cause and filed the briefs for appellant. Stephanie R. Marcus, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Marleigh D. Dover, Atto...
Judge Panel:Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and GINSBURG, Senior Circuit Judge.
Case Date:December 12, 2014
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
SUMMARY

Plaintiff, a trade group representing federal contractors, filed suit challenging the Department's revision of regulations requiring contractors to extend an invitation to job applicants to advise the contractor whether they believed they were covered by Section 503 of the Rehabilitation Act, 29 U.S.C. 793(a), as well as to analyze the resulting data. The revised regulations also adopted a... (see full summary)

 
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Page 257

773 F.3d 257 (D.C. Cir. 2014)

ASSOCIATED BUILDERS AND CONTRACTORS, INC., APPELLANT

v.

PATRICIA A. SHIU, ET AL., APPELLEES

No. 14-5076

United States Court of Appeals, District of Columbia Circuit

December 12, 2014

Argued October 3, 2014

Page 258

[Copyrighted Material Omitted]

Page 259

Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-01806).

Maurice Baskin argued the cause and filed the briefs for appellant.

Stephanie R. Marcus, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen, Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.

Daniel F. Goldstein was on the brief for amici curiae American Association of People with Disabilities, et al. in support of appellees.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and GINSBURG, Senior Circuit Judge.

OPINION

Page 260

Tatel, Circuit Judge :

Section 503 of the Rehabilitation Act of 1973 requires that certain government contractors " take affirmative action to employ and advance in employment qualified individuals with disabilities." Until recently, the Department of Labor's implementing regulations required government contractors to " invite" individuals offered jobs to advise the contractor whether they believed they were covered by the Act. Doubting that the existing regulations were sufficiently advancing the employment of qualified individuals with disabilities, the Department revised the regulations to require contractors to extend this invitation to job applicants, as well as to analyze the resulting data. The revised regulations also adopt a " utilization goal" to serve as a target for the employment of individuals with disabilities. In this case, a trade group representing federal contractors challenges these regulations, arguing that they exceed the Department's statutory authority and are arbitrary and capricious. The district court rejected both challenges, as do we.

I.

Congress enacted the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., " to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society," as well as " to ensure that the Federal Government plays a leadership role in promoting the employment of individuals with disabilities." 29 U.S.C. § 701(b). Section 503 of the Act provides that government contracts for more than $10,000 " shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified individuals with disabilities." 29 U.S.C. § 793(a). The statute directs the President to implement section 503 through regulations, id., and the President has delegated that

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authority to the Secretary of Labor, who has in turn delegated it to the Office of Federal Contract Compliance Programs (OFCCP). 41 C.F.R. § 60-1.2.

The regulations in effect prior to the challenged rulemaking required contractors to " prepare and maintain an affirmative action program." 41 C.F.R. § 60-741.40. Specifically, the regulations required them to ensure that job standards do not improperly exclude individuals with disabilities, to publicize their affirmative-action plan, to engage in steps to recruit qualified individuals with disabilities, and to audit the effectiveness of the program. See Superseded OFCCP Rule on Affirmative Action for Qualified Individuals with Disabilities, 41 C.F.R. § § 60-741.40 to -.47 (Effective Prior to Mar. 24, 2014). The regulations also required contractors to " invite" individuals offered jobs to inform the contractor if they believed they were covered by the Act. Id.

By 2010, OFCCP had become concerned that the section 503 regulations were not sufficiently advancing the employment of qualified individuals with disabilities. See Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Affirmative Action Provisions Under Section 503 of the Rehabilitation Act, as Amended, 75 Fed. Reg. 43,116 (July 23, 2010). OFCCP was especially worried that individuals with disabilities had lower workforce participation rates and higher unemployment rates than those without disabilities. Id. After seeking public comment on how to strengthen the regulations, id., OFCCP issued a Notice of Proposed Rulemaking in December of 2011. See Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities, Notice of Proposed Rulemaking, 76 Fed. Reg. 77,056 (Dec. 9, 2011). In response to hundreds of comments on a variety of issues, OFCCP made some modifications and issued the Final Rule on September 24, 2013. See Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities, Final Rule, 78 Fed. Reg. 58,682, 58,685 (Sept. 24, 2013) (to be codified at 41 C.F.R. pt. 60-741) (" Final Rule" ).

The Final Rule makes several significant changes, two of which are challenged here. First, it obligates contractors to extend the invitation to self-identify to all job applicants and to analyze the resulting data. This new requirement is implemented by section 741.42(a) of the Final Rule, which requires contractors to invite job applicants to indicate whether they have a disability, 41 C.F.R. § 60-741.42(a), and by section 741.44(k), which requires analysis of the data collected, along with the number of job openings, the total number of applicants, the number of applicants hired, and the number of applicants hired who have disabilities, id. § 60-741.44(k).

Second, section 741.45 of the Final Rule introduces a 7...

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