A federal appeals court on Friday questioned whether there was anything left to resolve in the U.S. Justice Department's challenge to an order that required the U.S. Equal Employment Opportunity Commission to revive a rule requiring companies to broaden their disclosure of workplace compensation data.

The EEOC moved forward in implementing the Obama-era rule last year as the Justice Department's case in the U.S. Court of Appeals for the D.C. Circuit progressed. The EEOC had made it clear to affected companies that submitting pay data based on gender and race, as the new rule required, was still necessary despite the government's ongoing appeal.

"The train has left the station. So what are we going to do now, tell the train to back up and start all over again?" D.C. Circuit Judge Judith Rogers told Justice Department lawyer Lindsey Powell during one exchange at Friday's hearing. Rogers heard the case with Judges Sri Srinivasan and Cornelia Pillard.

Companies resisted the stepped-up data collection, calling it burdensome and potentially subject to misuse or misinterpretation. The Obama-era measure, its champions argued, was a necessary step to help combat workplace inequities.

As of Friday afternoon, more than 85% of eligible companies had submitted the required pay data for calendar years 2017 and 2018, according to the EEOC. The pay data collection deadline is Jan. 31.

The National Women's Law Center and Labor Council for Latin American Advancement, represented at Friday's hearing by Robin Thurston, senior counsel at Democracy Forward, sued the Trump administration over its effort to stop the data collection. The law center said the loss of data harmed its efforts to analyze race and gender wage gaps.

U.S. District Judge Tanya Chutkan last year ordered the EEOC to resume the collection after the Trump administration tried to pause the new rule. Chutkan had concluded that Trump officials didn't follow certain rules controlling when and how regulations can be frozen or wiped out. The Trump-appointed chairman of the EEOC, Janet Dhillon, has formally taken steps to discontinue the collection of the data required by the Obama rule.

Janet Dhillon EEOC chairwoman Janet Dhillon. Credit: Diego M. Radzinschi/ ALM

There are only two unresolved issues left in the case: periodic compliance reports from the EEOC showing the percentage of companies that have responded to the EEOC, and a question about what percentage should be sufficient enough for the agency to end the data collection. A joint status report is due by Feb. 7 on whether the data collection should be declared complete.

The appeals court on Friday pointed out that it wasn't likely to rule on the dispute by early February. "So what are we dealing with? What's live in this case?" Rogers asked at one point. She also said: "Why are we going to issue all of this law about things that are basically moot?"

Powell of the Justice Department did not concede the case was over, telling the court there could be lingering issues about "standing"—whether and how the plaintiffs were able to sue Trump agencies over the data collection in the first place.

Friday's hearing touched on standing, and other issues, including whether the EEOC was under any legal obligation to take action to collect compensation information.

Chutkan unfairly "tied the hands" of the EEOC after she ruled that the Office of Management and Budget had illegally stopped the pay-data rule from taking effect, Powell argued. She also said the plaintiffs had not shown how they were harmed by the Trump administration's move to end the ramped-up data collection.

Major U.S. law firms that advise corporate clients said last year they were moving forward with submitting pay data to the EEOC despite uncertainty over the litigation.