270 F.3d 973 (D.C. Cir. 2001)
American Telephone and Telegraph Company, et al., Appellantsv.Equal Employment Opportunity Commission, Appellee
No. 00-5280
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2001Decided November 16, 2001

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 Opportunity Commission, argued the cause for appellee.  On the brief  were Philip B. Sklover, Associate General Counsel, and Paula R. Bruner, Attorney.
Before:  Ginsburg, Chief Judge, Edwards and Sentelle,  Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge:


1
AT&T seeks a declaratory judgment against the Equal Employment Opportunity Commission 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

2
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.  § 2000e(k).  Either an aggrieved employee or the Commission may sue the employer for violating the Act in district  court in the state where the alleged discrimination occurred. 42 U.S.C. § 2000e-5(f)(1), (f)(3).


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 pregnancy.  AT&T does not, however, give credit for time missed due  to pregnancy before passage of the Act.


4
The Ninth Circuit has held that AT&T's policy regarding  pre-Act time missed--which policy is followed by other former Bell System companies--violates the Act, Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991) (holding claim of preAct pregnancy discrimination both timely and correct on the merits), but the Seventh Circuit has held otherwise, Ameritech 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 temporary 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."  § 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).


5
Pallas and Carter were private actions brought by aggrieved 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.


6
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 unlawfully discriminated against her.  The Commission then sent  letters to AT&T urging it to conciliate with the two women and informing the Companythat if conciliation failed, then  the Commission would refer the matter to its legal department.  In June, 1999 the Commission notified AT&T of its  conclusion that conciliation indeed had failed.


7
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 Commission's Letters of Determination are not final orders and are  therefore unreviewable.  The district court agreed and AT&T  appealed.

II. Analysis

8
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. § 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 decisionmaking process" and determines "rights or obligations."  Appalachian 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)).


9
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 Commission 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.


10
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?


11
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, asAT&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 Stateissued permits, a position it will insist State and local authorities 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 Appalachian 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.


12
We turn therefore to AT&T's latter point.  We shall assume, 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 complaint.  That assumption leads us to the question:  Did the  Commission decide to sue AT&T?


13
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 Compliance 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 Determination 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 Ritchfield 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 complaint 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 pending before the agency are deemed to be 'incurably premature' ").  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.


14
In these circumstances, to allow AT&T to institute litigation 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. § 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

15
For the foregoing reasons, the judgment of the district  court is


16
Affirmed.

