615 F.Supp.3d 807
E.D. Tenn.2022Background
- Twenty states sued the U.S. Department of Education, the EEOC, and DOJ officials challenging guidance issued after Bostock that the agencies say applies Title VII/Title IX to discrimination based on sexual orientation and gender identity (Dept. Interpretation, Dear Educator letter, Fact Sheet, and EEOC Technical Assistance Document).
- Plaintiffs allege the guidance conflicts with state laws (e.g., statutes on sex‑separate athletics and facilities) and pressures states to change laws or face enforcement, penalties, or loss of federal funds.
- Plaintiffs brought APA and constitutional claims and moved for a preliminary injunction; defendants moved to dismiss for lack of jurisdiction and on the merits.
- The court considered Article III standing and ripeness, whether the guidance is final agency action and reviewable under the APA, and whether the guidance are legislative rules requiring notice‑and‑comment.
- The court concluded Plaintiffs (as sovereign States) had standing and ripe claims, the guidance constituted final agency action and lacked an adequate alternative remedy, Plaintiffs were likely to succeed on at least their notice‑and‑comment claim, and granted a preliminary injunction enjoining enforcement of the challenged guidance against the plaintiff States.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III) | States suffer concrete sovereign injury: guidance interferes with power to enforce state laws and pressures states to change laws or lose funds. | Guidance does not directly regulate States; injury speculative and not a traditional sovereign invasion. | Held: States have special‑solicitude and plausibly alleged concrete, imminent injuries traceable to the guidance; standing satisfied. |
| Ripeness (pre‑enforcement review) | Facial APA challenge is fit for review; withholding review forces States to choose between compliance or risking enforcement and funding loss. | No enforcement pending; claims premature and speculative. | Held: Claims are ripe: issues are legal, final agency action exists, and withholding review would impose substantial hardship. |
| Reviewability / Final agency action & adequate remedy | Guidance is final and changes rights/obligations; awaiting enforcement is not an adequate remedy (Sackett). | Guidance is nonbinding interpretive guidance; administrative enforcement proceedings provide an adequate path. | Held: Guidance is final agency action that alters obligations; no adequate alternative remedy; Title IX does not preclude pre‑enforcement APA review. |
| APA notice‑and‑comment (legislative vs interpretive rule) | Guidance effects substantive change beyond Bostock and creates new obligations, so it is a legislative rule requiring notice‑and‑comment. | Guidance merely interprets Bostock and existing law; thus exempt from notice‑and‑comment. | Held: Plaintiffs likely to succeed: guidance functions as legislative/substantive rules and defendants failed to use notice‑and‑comment; preliminary injunction warranted. |
Key Cases Cited
- Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020) (Title VII forbids firing for homosexuality or transgender status; Court limited its holding to Title VII.)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements: injury‑in‑fact, causation, redressability.)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (ripeness and pre‑enforcement review of administrative action.)
- Bennett v. Spear, 520 U.S. 154 (1997) (two‑part test for final agency action.)
- Sackett v. EPA, 566 U.S. 120 (2012) (pre‑enforcement APA review may be the only adequate remedy when parties cannot initiate enforcement proceedings.)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary injunction standard requiring likelihood of irreparable harm and balance of harms.)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (States receive special solicitude in standing analysis.)
- Heckler v. Chaney, 470 U.S. 821 (1985) (limits on judicial review where agency action is committed to agency discretion.)
- Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015) (distinguishing legislative rules, which require notice‑and‑comment, from interpretive rules.)