Duane Morris Class Action Review - 2023 - Report - Page 25
The ultimate result is apt to elucidate the limits of agency rule-making authority and test
the impact of the U.S. Supreme Court’s recent ruling in West Virginia v. Environmental
Protection Agency, 142 S.Ct. 2587 (2022). In that case, the Supreme Court considered
the validity of the Environmental Protection Agency’s new Affordable Clean Energy
(ACE) Rule that was promulgated under Clean Air Act (CAA). It held that, under the
major questions doctrine, the agency must point to “clear congressional authorization”
for the authority it claims. The government failed to offer such authorization, instead
pointing to a “vague statutory grant” that the Supreme Court found “not close to the sort
of clear authorization required by our precedents.” Id. at 2614.
The changing tide of the Biden Administration’s policies has been slow to impact other
areas. Whereas the DOL acted swiftly to reverse course on many fronts, over most of
the past year, the EEOC continued to operate with a Trump-appointed majority of
commissioners.
Although President Biden quickly named two Democrats for the five-member
Commission, Charlotte E. Burrows and Jocelyn Samuels, as Chair and Vice Chair,
respectively, the commission retained a Republican-appointed majority until former
chair Janet Dhillon’s term expired in July 2022. Although such expiration opened the
door to a Democratic-appointed majority, the Senate has not yet confirmed a
replacement.
As the DOL continued efforts to work an about-face on the rule-making front, the
EEOC’s year-over-year activity remained fairly steady. During fiscal year 2022, the
EEOC filed 94 lawsuits.
This number marked a mild decrease from the filings during fiscal year 2021, when the
EEOC filed 114 lawsuits, but it exceeded the number filed in fiscal year 2020 when the
COVID-19 pandemic pushed case filings down to just 33. Notably, the EEOC’s
California district offices in San Francisco and Los Angeles combined for only 4 filings
this past year, below the combined 13 cases they filed in fiscal year 2021.
According to the EEOC, it filed 13 systemic lawsuits this past year, the same number it
filed during fiscal year 2021.
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© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023