MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on plaintiff Equal Employment Opportunity Commission's ("the EEOC") motion (Doc. 59) to reconsider or to certify for appeal pursuant to 28 U.S.C. § 1292(b) this Court's order (Doc. 55) denying the EEOC's motion for partial summary judgment. Defendant Mach Mining, LLC ("Mach Mining") filed a response (Doc. 66) to which the EEOC replied (Doc. 72). The Court heard oral argument on this matter on May 16, 2013. For the following reasons, the Court denies the motion to reconsider and grants the motion to certify this Court's January 28, 2013, order (Doc. 55) for appeal.
The EEOC filed the instant suit on behalf of Brooke Petkas and a class of female applicants who had applied for non-office jobs at Mach Mining. According to the EEOC, Mach Mining "has never hired a single female for a mining-related position, " and "did not even have a women's bathroom on its mining premises." Doc. 32, p. 1-2. The complaint alleges that Mach Mining's Johnston City, Illinois, facility engaged in a pattern or practice of unlawful employment practices since at least January 1, 2006. Specifically, those unlawful "practices included, but are not limited to failing or refusing to hire females into mining and related (non-office) positions because of their sex." Doc. 2, p. 2. The EEOC further alleges that Mach Mining "has utilized hiring practices that cause a disparate impact on the basis of sex" through its practice of "hiring only applicants who are referred by current employees." Doc. 2, p. 3.
In its answer, Mach Mining asserted the affirmative defense that the EEOC failed to conciliate in good faith. The EEOC then filed a motion for partial summary judgment arguing that conciliation is beyond the scope of judicial review. This Court denied the EEOC's motion finding that the EEOC's conciliation efforts were subject to at least some level of review (Doc. 55). The EEOC now asks the Court to reconsider its order denying the EEOC's motion for partial summary judgment. In the alternative, the EEOC asks this Court to certify the following question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b): "whether, under Title VII or the [Administrative Procedure Act] ("APA"), courts may review EEOC's informal efforts to secure a conciliation agreement acceptable to the Commission before filing suit."
2. Motion to Reconsider
The EEOC argues reconsideration is appropriate because the Court committed manifest errors of law when it failed to (1) construe the APA to preclude judicial review of conciliation; and (2) strike Mach Mining's brief that referred to conciliation. "A court has the power to revisit prior decisions of its own... in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.'" Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)); Fed.R.Civ.P. 54(b) (providing a non-final order "may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities"). The decision whether to reconsider a previous ruling in the same case is governed by the law of the case doctrine. Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). The law of the case is a discretionary doctrine that creates a presumption against reopening matters already decided in the same litigation and authorizes reconsideration only for a compelling reason such as a manifest error or a change in the law that reveals the prior ruling was erroneous. United States v. Harris, 531 F.3d 507, 513 (7th Cir. 2008); Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007). The Court will now consider whether it committed a manifest error of law requiring the reversal of its order denying the EEOC's motion for partial summary judgment.
a. APA Applicability
In a footnote in its order denying the EEOC's motion for partial summary judgment, the Court noted the EEOC did not provide caselaw supporting its argument that the APA precludes judicial review of its statutory conciliation requirement. The EEOC, in its motion to reconsider, now backs up its argument with caselaw referencing the APA. Specifically, the EEOC cites to Standard Oil, AT&T, Caterpillar, and Elgin. In Standard Oil, the Supreme Court found that the Federal Trade Commission's issuance of a complaint, including its reasons to believe the defendant was in violation of the Federal Trade Commission Act, was not judicially reviewable. FTC v. Standard Oil Co. of California, 449 U.S. 232, 243 (1980). In AT&T, the D.C. Circuit held that the EEOC's letters of determination did not constitute final agency action that was reviewable by the court. AT&T Co. v. EEOC, 270 F.3d 973, 976-77 (D.C. Cir. 2001). In Caterpillar, a case on which the EEOC heavily relies, the Seventh Circuit held that "[t]he existence of probable cause to sue is generally and in this instance not judicially reviewable." EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005). In sum, Standard Oil, AT&T, and Caterpillar do not take a position on conciliation, and do not persuade the Court that conciliation is beyond judicial review.
In Elgin Teachers Association, the only case cited by the EEOC that considers conciliation, the EEOC found the Elgin school district's collective bargaining agreement objectionable. EEOC v. Elgin Teachers Ass'n, 27 F.3d 292, 293 (7th Cir. 1994). Even though the school district changed the objectionable portions of the agreement, the EEOC filed suit seeking damages. Id. The Seventh Circuit rejected the defendant's argument that the EEOC lacked the right to bring suit. Id. at 294. Specifically, "[a]lthough the EEOC must pursue conciliation, 42 U.S.C. § 2000e-5(b); EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978), it failed to get all of what it wanted in bargaining." Id. Accordingly, rather than find conciliation was unreviewable, the Seventh Circuit merely found that the EEOC could pursue its suit because it did not receive all of what it bargained for in conciliation. Id.
Interestingly, Elgin Teachers Association provides support for a court's authority to inquire into the EEOC's conciliation process. First, the opinion specifically says the EEOC must pursue conciliation. Id. at 294. Without court review this statutory command is meaningless. Further, the Seventh Circuit cites to Zia with approval. Id. In Zia, the Tenth Circuit specifically recognized a court's authority to review conciliation when it held that "the EEOC is required to act in good faith in its conciliation efforts." EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). However, "a court should not examine the details of the offers and counteroffers between the parties, nor impose its notions of what the agreement should provide...." Id. Accordingly, the Seventh Circuit's cite of approval to Zia in the context of conciliation leads this Court to believe the Seventh Circuit may find the EEOC's conciliation efforts are subject to at least a minimal level of review.
The EEOC has failed to provide any caselaw that supports its extension of the APA to preclude judicial review of conciliation. To the contrary, the Court's ruling was consistent with every Circuit to have considered the issue. See, e.g., EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) ("the EEOC must (1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer"); EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984) (the district court should only determine whether the EEOC made an attempt at conciliation); EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979) (finding "the law... requires no more than a good faith attempt at conciliation" and determining that the EEOC had provided such a good faith attempt after examining the various conciliation attempts); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978) ("a court should not examine the details of the offers and counteroffers between the parties, nor impose its notions of what the agreement should provide").
Further, the Court's order was consistent with Seventh Circuit caselaw that suggests courts may make at least some level of inquiry into conciliation. In EEOC v. Massey-Ferguson, the Seventh Circuit found that the EEOC was not required to raise class backpay claims during conciliation. 622 F.2d 271, 277 (7th Cir. 1980). However, the court stated that "failure to conciliate on class backpay is relevant to the question of unreasonable delay and, therefore, ultimately to laches." Id. Accordingly, the Seventh Circuit acknowledged that courts may inquire into the conciliation process. Similarly, in Schnellbaecher v. Baskin Clothing, the Seventh Circuit found dismissal of a suit was appropriate where a party did not have notice of the charges or a chance to conciliate. 887 F.2d 124, 127 (7th Cir. 1989). Again, the Seventh Circuit seems to acknowledge that at least some level of inquiry ...