On November 14, 2011, Judge Royce C. Lamberth, the Chief Judge for the Federal District Court for the District of Columbia, held in United Space Alliance, LLC v. Solis, et al. that the Office of Federal Contract Compliance Programs (“OFCCP”) had the right to request compensation data from United Space Alliance, LLC (“USA”) for periods beyond its initial scheduling letter.
As we previously reported, a Department of Labor Administrative Law Judge (“ALJ”) held that the OFCCP could collect supplemental compensation information beyond the period covered by the initial scheduling letter during a desk audit. After the ALJ’s decision became final, USA appealed the ruling to the Federal District Court for the District of Columbia, requesting a stay of the ALJ’s order. USA argued that the order violated the Fourth Amendment and the Administrative Procedures Act (“APA”). Judge Lamberth granted OFCCP’s motion for summary judgment, but allowed for a temporary stay of the judgment to allow USA to appeal to the D.C. Circuit Court of Appeals.
Judge Lamberth, noting that the Court must give considerable deference to the OFCCP’s interpretation of its own regulations, found that the OFCCP had the authority under its regulations to require USA to produce documents beyond those identified in the initial scheduling letter during the desk audit, even though it had not initiated an on-site review of USA. He also concluded that the OFCCP did not violate its own procedures when it used other tests, beyond the threshold test set forth in its directives and a FAQ, to find indicators of discrimination in USA’s compensation data. Judge Lamberth reasoned that these were merely internal agency documents that the agency had the discretion to change, rather than a “formal, public pronouncement that evidenced intent to bind the agency.”
Judge Lamberth also found that USA had waived its argument that the OFCCP violated the Fourth Amendment by requesting data beyond the initial scheduling letter because USA had voluntarily provided OFCCP with the data that had triggered OFCCP to make the additional request. Judge Lamberth poignantly summarized his views on the dispute between OFCCP and USA as follows:
“Despite the vigor with which United Space has litigated it, there is surprisingly little at stake in this case. The Department of Labor has not accused United Space of employment discrimination. It has not ordered United Space to permit agency investigators onto company premises. The Department has merely required United Space to submit data about its employee compensation. The Court understands that United Space and the entire community of federal contractors are keenly interested in how OFCCP decides whether to request additional data on a contractor’s compensation practices, but that interest does not allow those companies or this Court to interfere with the agency’s investigatory practices. Submission to such lawful investigations is the price of working as a federal contractor.”