Frito-Lay, Inc. v. U.S. Dep't of Labor
| Decision Date | 11 February 2014 |
| Docket Number | No. 3:12–cv–1747–B–BN.,3:12–cv–1747–B–BN. |
| Citation | 20 F.Supp.3d 548 |
| Parties | FRITO–LAY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
OPINION TEXT STARTS HERE
Ordered accordingly. Dan Hartsfield, Karen E. Griffin, Talley Ray Parker, Jackson Lewis LLP, Dallas, TX, for Plaintiff.
John Kenneth Theis, U.S. Department of Justice, Washington, DC, for Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action has been referred to the United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and an order of reference. Pending before the Court are Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment [Dkt. No. 42], Plaintiff's Motion for Summary Judgment on Count Seven: the Final Order is not Supported by Substantial Evidence [Dkt. No. 58], and Defendants' Motion for Voluntary Remand [Dkt. No. 71]. For the reasons stated herein, Defendants' Motion for Voluntary Remand should be granted, the Final Order should be remanded for reconsideration in accordance with these findings, conclusions, and recommendation, and the pending Motions to Dismiss and for Summary Judgment should be denied without prejudice as moot.
An Administrative Law Judge recommended that a decision be entered in Frito-Lay's favor and that the Administrative Complaint be dismissed. See id. at 174. On appeal, the Administrative Review Board (“ARB”) disagreed and ruled that Frito–Lay should produce the 2008 and 2009 data. Relying, at least in part, on the representation found in the Administrative Complaint related to the disparity and, by extension, the initial analysis, the ARB concluded that:
We conclude that OFCCP has regulatory authority to request the 2008 and 2009 AAP data in furtherance of its 2007 Desk Audit. First, OFCCP was pursuing a concern about a statistically significant disparity in hiring women, specifically finding a ‘disparity in hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations ...’ [citing Administrative Complaint, ¶ 12]. A statistical showing of two standard deviations has long been accepted as significant in adverse impact analysis.
Frito–Lay seeks review of this decision in federal court. Defendants filed a motion to dismiss or, in the alternative, for summary judgment based on the Administrative Record. See Dkt. No. 42; Dkt. No. 45–1. Plaintiff then filed a motion for leave to obtain discovery, which this Court granted in part. See Dkt. No. 52; Dkt. No. 57. Once this Court ruled on the discovery motion, the parties resumed briefing on Defendants' motion to dismiss, and Plaintiff filed its own motion for summary judgment. See Dkt. No. 58. Shortly after Plaintiff filed its motion for summary judgment, Defendants informed Plaintiff, and the Court, of their intention to seek limited remand. See Dkt. No. 61.
It appears that Defendants have reviewed the analysis cited in the Administrative Complaint and discovered potential errors in their analysis. More particularly, Defendants admit that, “[t]hough the Administrative Complaint indicated that the analysis showed a disparity in the hiring rates of females as compared to males at 3.26 standard deviations for ‘full-time’ positions, that figure actually applied to a disparity at that level of standard deviation for both full-time and part-time positions.” Dkt. No. 72 at 10; Dkt. No. 72–1 at 4. Plaintiff identified this error in its motion for summary judgment. See Dkt. No. 59 at 26. Plaintiff also identified other alleged errors in the initial analysis, including the scope of the analysis—it represented two warehouses, not one as claimed—and the job titles—both material handlers and packers were covered. See id. at 12. Plaintiff also asserts that Defendants miscounted the total number of applicants, the number of male and female applicants, and the number of new hires for the full-time material handler position at the Dallas Baked Snack facility. See id. at 13. Both parties, then, agree that an error exists, see Dkt. No. 72 at 11, but Plaintiff contends that the scope of the error is larger than Defendants, see Dkt. No. 59 at 12–15.
Defendants argue that the Court should not make a ruling on the pending dispositive motions but rather should remand the case to the ARB and allow the ARB to make a re-determination based on a corrected complaint and record. See Dkt. No. 72 at 11. Defendants contend that such a result is both consistent with well-established principles of administrative law and in the interest of judicial economy. See id. Plaintiff responds that the case should not be remanded because Defendants have not stated legally-supportable grounds for remand, that the Final Order should be vacated, that court-ordered remand would be either arbitrary and capricious or futile, and that remand at this stage would be premature. See Dkt. No. 74.
The undersigned will first address whether remand is appropriate and, if necessary, then address the arguments raised in the dispositive motions.
Courts have long recognized the propriety of voluntarily remanding a challenged agency action without judicial consideration of the merits, with or without admission of agency error. See Carpenters Indus. Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.2010). In fact, the United States Court of Appeals for the Fifth Circuit has acknowledged, without explicitly adopting, the generally accepted belief that, “in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions.” Macktal v. Chao, 286 F.3d 822, 825–26 (5th Cir.2002) (citations omitted); see also ConocoPhillips Co. v. United States EPA, 612 F.3d 822, 832 (5th Cir.2010) ().
When an agency action is under review by a federal court, the agency may take one of five positions. See SKF USA, Inc. v. United States, 254 F.3d 1022, 1027–28 (Fed.Cir.2001). First, the agency may choose to defend its decision on the grounds previously articulated by the agency. See id. at 1028. Second, it may seek to defend the agency's decision on grounds not previously articulated by the agency. See id. Third, the agency may seek a remand to reconsider its decision because of intervening events outside of the agency's control. See id. Fourth, even in the absence of intervening events, the agency may request a remand, without confessing error, to reconsider its previous position. See id. Finally, the agency may request a remand because it believes that its original decision was incorrect on the merits and it wishes to change the result. See id.
The true issue with respect to remand is whether voluntary remand is appropriate under the circumstances. While neither party agrees that the instant situation falls squarely within one of the five categories mentioned above, they do agree that Defendants' position is closest to the fifth category. “Defendants have identified an error in the administrative complaint that is discrete ... [a]nd ... seek to make a correction that may or may not cause the ARB to arrive at a different conclusion.” Dkt. No. 78 at 6.
The undersigned finds the dispute over which of the “categories” Defendants' position aligns with to be of minimal consequence because no case law seems to indicate, and Plaintiff points to none, that a motion for voluntary remand must be denied if a defendant's position does not fit neatly into one of the categories. See SKF, 254 F.3d at 1027–28 (); Salazar, 734 F.Supp.2d at 132 . Moreover, the undersigned finds that, even if it is not an exact fit, Defendants' position is very close to the fifth category.
Defendants highlight several principles that they contend support their request for remand. Specifically, Defendants state that courts should remand federal agency matters when (1) it involves a matter that has been placed by statute primarily in agency hands; (2) it is consistent with the principle that “ ‘embedded in an agency's power to make a decision is its power to reconsider that decision’ ”; and (3) it promotes judicial economy, such as here, because it permits the relevant agency to reconsider and rectify an erroneous decision without further expending judicial resources. See Dkt. No. 72 at 13–14 (citations omitted). Relying primarily on Ethyl Corp. v. Browner, 989 F.2d 522 (D.C.Cir.1993), Defendants argue that, when the above principles are applied to the instant case, they support remand.
Plaintiff disagrees. It contends that none of the cases on which Defendants rely, including Ethyl Corp., support their position. See Dkt. No. 76 at 13–14. Plaintiff further argues that the three general principles cited by Defendants do not support remand. See id. at 16–20. Plaintiff also argues that the Final Order should be vacated due to the undisputed deficiencies contained therein, that a court-ordered remand would be either arbitrary and capricious or futile, and that remand would be premature at this juncture. See id. at 21–29.
“The reasonableness of an agency's reconsideration implicates two opposing policies: ‘the desireability of finality on one hand and the public's interest in reaching what, ultimately, appears to be the right result on the other.’ ” Macktal, 286 F.3d at 826 (citations omitted). As a result, an agency's inherent authority to reconsider its own decision is...
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