Texas v. Equal Employment Opportunity Commission

to right Harris’s infringes the Act immediately after her from Texas departs to trav- right Harris’s between travel. To the extent Differentiating graduation. justi- Soto-Lopez, Texas is Hooper, implicated, in el is we believe classes of residents Zobel, pur- portable served no of a Shapiro, tying receipt and Saenz in fied coterminous no residency. the benefit was The Act suffers pose because to benefit hand, Texas, residency. on other infirmity. with constitutional safeguard its investment trying to to those in- restricting Hazlewood benefits III. likely stay to in Texas after most

dividuals justifica- provided reasonable Texas has graduation. Ha- used in the qualifications for the tions has never invalidat- Supreme Court in its interests zlewood Act to advance to a residency requirement attached ed a military service. promoting education re- expressly and has portable benefit wheth- only permits task us to assess Our access to ability to restrict served state’s power constitutional er Texas exceeded its Sosna, at 419 U.S. portable benefits. See residency fixed-point when included 553; VLandis, 407-08, 95 S.Ct. Act not to in the Hazlewood requirement itself, 458-54, 2230. In Saenz wise as a on whether the limitation is opine statute distinguished the California Court a clearer policy. Without public matter of Ha- like the programs from tuition benefit Supreme Court indication from the by observing that: zlewood Act pro- constitutional Texas’s decisions violate plain- whatever benefits [the visions, impose to further we are hesitant consumed while receive will be tiffs] sovereign power on restrictions California, in there is no they remain system. regulate its own education State claim recognition of their danger judgment therefore REVERSE We encourage citizens of other States will court. the district residency just long enough establish benefit, readily acquire portable some education, college a divorce or a such as enjoyed long they after re-

that will be original

turn to their domicile. 505,119 526 U.S. at S.Ct. TEXAS, Plaintiff-Appellant State any incidental burden on Finally, is lessened here because right to travel EQUAL OPPORTUNI EMPLOYMENT gratuity— question purely benefit COMMISSION; Jenny Yang, in TY R. obligation no constitutional Texas is under capacity her official as Chair benefits to veterans. provide educational Equal Employment Opportunity Com Blumstein, 405 Dunn v. U.S. Cf . Attorney mission; Lynch, Loretta n.8, 344, L.Ed.2d S.Ct. General, Defendants-Appellees. (1972) (invalidating waiting period on right eligibility infringement voter No. 14-10949 in Fif protections travel because of voter Appeals, United States Court Voting Rights teenth Amendment Fifth Circuit. Act). Filed June between many Given the distinctions and the statute Act’s scheme Hazlewood Saenz, conclude we decline to

rejected

plaint seeks declaration that an Enforce- ment Guidance document from the Equal Employment Opportunity Commission (“EEOC”) regarding hiring of persons with criminal backgrounds violates the Ad- (“APA”), ministrative Procedure Act §§ U.S.C. 701-06. The EEOC has instigat- legal ed no proceedings against the State regarding of felony hiring bans and Title VII.

This appeal requires the court to ad- dress justicia- threshold issues of bility subject and jurisdiction matter under both Article III and the APA. In dismiss- complaint, Texas’s the district court held that Texas lacked III Article standing to bring this action because Texas could not show a harm, substantial likelihood of noting that although the EEOC had the statutory authority to investigate Title VII charges Texas, against it authority had no bring an enforcement against action n State, that authority belonging only to the Attorney General of the United States. The district court further asserted that challenge Texas’s to the EEOC’s Enforce- ment that, Guidance was unripe, and Shah, Counsel, Prerak Senior Scott A. event, subject the court lacked matter Keller, Solicitor, Office of the Attorney jurisdiction over the APA claim because Texas, Austin, TX, General for the State of the EEOC’s Guidance did not constitute for Plaintiff-Appellant. agency “final action” under 5 U.S.C. 704. Stephanie Marcus, Depart- Robin Although parties conflate the issues Justice, Division, ment of Appellate Civil standing, ripeness, agency and “final Section, Justin Michael Sandberg, U.S. APA, action” under the essentially Texas Department Justice, Civil Division Fed- argues that it has standing because it is an Branch, eral Programs DC, Washington, object challenged Guidance, EEOC for Defendants-Appellees.

and that the Guidance “final JOLLY, HIGGINBOTHAM, Before and action” legal because it creates conse- DAVIS, Judges. Circuit quences for Texas all employers. and other Texas asserts that imple- the Guidance JOLLY,

E. GRADY Judge: Circuit ments a mandatory regulatory framework action, declaratory judgment this employers follow, staff to EEOC appeals State Texas the district court’s and that the purports preempt order dismissing this action under Federal Texas state In response, law. the EEOC 12(b)(1) Rule of Civil Procedure for lack of argues purely that the Guidance is adviso- jurisdiction. matter ry, Texas’s com- and thus does not create actual convict- not hire agencies do of these state standing. to confer injury sufficient felons, particular convicted that, felons ed further contends EEOC cases, felonies, or, in some categories bring an cannot misde- particular convicted of individuals is not directly, the Guidance Texas bans stem sources of these meanors. The APA. In under the action” a “final long- statutes and both Texas state “final from argument regarding making this adopted policies standing employment heavily action,” relies the EEOC Texas, agen- According agencies. this cir- recent decisions on several “to all neutrally hiring bars apply cies regarding arguments The EEOC’s cuit. their regard to without job applicants, re- arguments with its overlap ripeness exist, how- these exclusions races.” Where finality, a lack of garding categorically ever, applies them that Texas’s essentially contends as- an individualized not undertake does until Texas faces unripe to thе Guidance prospective nature of the into the sessment threat of enforcement. a more certain conviction. employee’s argument, we briefing and After full VII, enforces Title Although the EEOC judgment court’s the district REVERSE in a num- power is limited its enforcement pro- for further this action REMAND to this that are relevant respects ber of opinion. inconsistent with ceedings not First, only the lim- appeal. amend, issue, authority “to regulatory ited I. regulations procedural suitable or rescind only a appeal presents Although subchap- of this provisions out the carry to issue, ultimately this action jurisdictional 2000e-12(a). § In other ter.” U.S.C. hiring on a bar question to whether seeks bind- words, promulgate cannot the EEOC employment an unlawful felons constitutes of Title interpretations ing. substantive Rights Title of the Civil under VII practice authority Second, lacks the the EEOC VII. seq. § 2000e et Title Act of U.S.C. against an enforcement to file employer: for an makes it unlawful VII directly. See U.S.C. employer state (1) discharge' to hire or to fail or refuse however, 2000e-5(f)(l). does, § The EEOC individual, to discrimi- or otherwise any investigate state em- to power have the respect any individual with against nate Title VII violations. ployers potential for conditions, terms, compensation, to his which it refers case for The EEOC because of employment, privileges or a Title cause to believe finds reasonable color, race, religion, such individual’s Attorney occurred to the violation VII sex, origin; or or national States, who then the United General of (2) limit, classify or his segregate, ac- bring decides whether employment for applicants or employees the state. Id. tion deprive or tend any way in which would only Notwithstanding its limitation employment deprive any individual rules, formulating procedural adversely af- otherwise opportunities or view, expressed as and advances holds employee, because status as an fect his statements, cate- through policy color, race, religion, individual’s of such felons can hiring gorical bans on sex, origin. or national Title when a violation of VII constitute 2000e-2(a). 42 U.S.C. and affect blacks they disproportionately the EEOC issued Hispanics. of thousands of employs hundreds on the Consider- Guidance Many “Enforcement agencies. across various state people ation of Arrest and Conviction Records in of Title VII and thus violates the APA. Employment Decisions Under Title VII of The moved to dismiss the amended (the Rights the Civil Act of 1964” “En- complaint jurisdictional on grounds: three “Guidance”), forcement Guidance” or the (1) (2) (3) standing; ripeness; and lack of which is at issue this suit. The Enforce- jurisdiction matter under the APA. ment Guidance provides The district court granted the motion to respect records,

[w]ith to criminal there dismiss. Although the court’s opin- district is Title disparate impact VII liability ion cites all grounds three independent where the evidence shows that a covered dismissal, bases for the district court ad- employer’s screening criminal record dressed in passing the ripe- issues of policy or practice disproportionately jurisdiction APA, ness and under the and VII-proteeted screens out a Title group emphasized the lack of III Article stand- employer and the does not demonstrate ing. timely Texas filed a appeal. policy that the practice job related for the positions question consis- and II. tent with business necessity. First, we consider whether Tex then Guidance sets out a framework as has Article III standing.1 Texas can addressing hiring poli- both whether a satisfy the constitutional

cy screens out elements of VII-proteeted a Title group (l) standing by “presenting] policy and whether a an actual is “consistent with necessity.” injury business imminent On the first is concrete prong, par (2) ticularized, lays fairly out various criteria that the traceable the de (3) conduct, EEOC will use to determine fendant’s whether a redressable hiring policy disparate has a impact, judgment in [Texas’s] favor.” Duarte ex asserts that an employer’s Lewisville, evidence of a City Tex., rel. Duarte v. racially workforce 2014). balanced “will not be F.3d plaintiff A enough disprove disparate impact.” On must support each standing element “with prong, the second the Guidance addresses the manner and degree of evidence re “job-related, the necessity” business de- quired the stages at successive of the liti by fense offering employers the of details gation.” Lujan v. Wildlife, Defenders of a screening policy that a disparate creates 555, 560, 504 2130, 112 U.S. S.Ct. 119 impact, but complies nonetheless with Title (1992). Thus, L.Ed.2d 351 at the motion to VII because it narrowly is tailored to serve stage, dismiss the court accepts as true all legitimate a business need. well-pleaded allegations concerning stand ing. Physicians Ass’n Am. 4, 2013, Surgeons, Texas filed on & suit November of Bd., Inc. 547, and filed its v. Tex. Med. amended 627 F.3d complaint on March 550 (5th 14, 2010). 2014. The Cir. complaint amended The court de seeks reviews novo declaratory injunctive relief, and alleging district court’s of determination stand is, that the Farms, Enforcement ing. Guidance in ef- Contender v. Dep’t L.L.P. U.S. fect, binding interpretation substantive Agric., 258, 2015). 264 standing 1. The doctrine of presentation is derived from upon of issues which the court ” Article "Controversly]” Ill’s "Case[]” re- largely depended so for illumination.’ Mas- " quirement, gist question 'the of the Agency, v. U.S. sachusetts Envtl. Prot. 549 U.S. standing’ party is invoking [the whether 497, 517, 1438, 127 S.Ct. 167 L.Ed.2d 248 standing personal 'such a has] stake (2007) Carr, 186, (quoting Baker v. 369 U.S. controversy outcome of the as to that assure (1962)). 7 S.Ct. L.Ed.2d 663 concrete which sharpens adverseness question conflates the erroneously bringing is Furthermore, Texas because with Article III standing under sovereign as a capacity in its this action under action” agency “final question of state reevaluate being pressured state may inquiries Although the two the APA. costs, enti- it “is incur substantial law or concerns, constitutional similar engage standing in our solicitude special tled ultimately separate analysis is standing Massachusetts, at 549 U.S. analysis.” agen- “final question of whether from the S.Ct. meaning of within cy action” exists See, Can- e.g., Holistic § 704 of the APA. begins with discussion here Our & v. Food Ass’n s and Consumers dler three all that underlies question “a basic (D.C. Admin., 943-45 Drug plain standing elements —‘whether ” 2012) plaintiffs that (concluding challenged object’ of the an tiff is [itself] standing, but constitutional established Farms, F.3d Contender agency “rule.” plaintiffs finding that nonetheless 561, 112 at Lujan, 504 (quoting U.S. at 264 under agency “final to show action” failed 2130). can establish plaintiff If a S.Ct. Spear, 520 APA); Bennett see also at regulation “object” an it is 154, 177-78, ordinarily question little issue, “there (1997) constitu- (noting that L.Ed.2d 281 caused [the inaction has that the action action” “final standing tional judgment pre that a plaintiff] injury, separate inquires). are will redress the action requiring venting or 561-62, 112 S.Ct. at Lujan, it.” object an As Texas is fact an “[Wjhether is in someone issue, to deviate is no reason there inquiry flexible is a regulation object of Texas has constitu- presumption See Contender sense.” in common rooted it. The district standing tional Farms, F.3d at 265. injury Texas lacked found court to con- and imminent

sufficiently concrete Tex but that question no haveWe allege standing did fer En challenged “object” of the as is filed been action had which, Guidance, as we shall forcement of Justice Department regulatory ef fully, not, has a (“DOJ”). later see more An enforcement action excep narrow employers. With the con- however, fect on only injury sufficient employers, federal Texas. standing upon tion of some fer constitutional to all em apply to purports that it is injuries the Guidance alleges several Texas agencies) (including state of the Guid- ployers suffering because currently checks as background First, the Guid- conduct criminal asserts that ance. Texas Indeed, the for em- hiring process. mandatory of their scheme part imposes ance that Texas— If hiring policies. we effectively regarding concedes ployers EEOC true, Title Enforce- to employer allegations as any other take these object of the an increased an amounts to VII, matter —is ment Guidance for that argues employ- an issue, on Texas as regulatory nevertheless burden but Guidance at burden legal er, regulatory mount a increased standing and “[a]n that Texas lacks re- injury in fact typically Enforcement Guidance satisfies challenge to Farms, 779 Contender advisory, quirement.” the Guid because, See being purely R.R.s v. (citing on at 266 Ass’n Am. any obligations F.3d impose ance does not (D.C. Cir. Dep’t Transp., any legal conse it to expose Texas 1994)).2 argument, making quences. In existing practices Texas further asserts that the En and threatened authori- States, See Texas v. United ty. effectively preempts forcement Guidance 2015) (finding, in the employee-applicants state laws bar appeal context of an of a stay, denial of a being with certain criminal histories from government failed to make a jobs, specific considered for such as school showing that Texas standing lacked teachers or state law enforcement officers. challenge agency’s another federal Regardless of whether the Guidance actu when, action, as a result of that Texas ally preempts Texas’s laws hir regarding faced a “forced choice incurring between bans, does, very the Guidance at the laws”).4 costs and changing its As this least, undergo force Texas to an analysis, before, court has stated “being pressured agency, regarding whether change injury” state law constitutes an for purpose of state standing analysis. certainty of investigations stem Id.; States, see also Texas v. United ming from the Enforcement Guidance’s F.3d at (concluding 156-57 that Texas had standards overrides the State’s interest standing agency action even hiring jobs.3 not Putting felons certain when it could avoid financial harm by question aside the prac of whether these changing its own laws practices, injuries tical transform the Guidance into “[sjtates asserting that have a sovereign “final action” for purposes power interest to create and enforce jurisdiction, injuries APA these are suffi code, legal possibility and the that a cient to standing, confer constitutional es plaintiff injury could avoid by incurring pecially considering unique when Texas’s (in- other сosts negate standing” does not position as a sovereign omitted)). state defending quotations ternal and citations benefits, argument respect dissent’s with unemployment to Arti- state which would standing casting cle III the Guidance as government raise state costs. The contended — merely expression an existed, not, EEOC's view on injury that no as DAPAdid on its Title VII—assumes Guidance is not own, require states to issue driver’s licenses binding performance on EEOC staff in the or subsidize to account for increased costs. opinion their official duties. As this makes court, however, govern This found that the clear, however, oppo- the Guidance shows the ment failed to show that lacked stand site. These features of the Guidance are dis- ing, asserting that "Texas’s forced choice be III, depth cussed they more in Part as infra incurring changing tween costs and its laws is are also crucial to the discussion of whether injury because those laws exist for the the Guidance is “final action" under program, administration of state the APA. law, challenge federal and Texas did not enact Id.; merely standing.” them to create see also Indeed, argu- the EEOC admitted at oral (citing approval opin id. with a Sixth Circuit investigate disparate ment that it intended to “making ion that held the enforcement of an impact complaints against Texas for non-com- existing qualifies” state law more difficult pliance with the Guidance's criminal back- injury purposes for the of Article III stаnd ground screening standards. ing (citing State Ohio ex rel. Celebrezze 228, Dept. Transp., 766 F.2d 232-33 stated, States, of 4. As the court in Texasv. United (6th 1985))). Cir. This court has since af 733, affirmed the district court’s grant injunctive firmed the district court’s of stay regarding ‍​​​​‌​​​​​​‌‌​​​​‌​​‌​​‌‌‌​​‌​‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‍injunction denial of a an DAPA, against concluding, many relief for of Department the of Homeland Securi- reasons, standing. the same that Texas had ty’s program, “DAPA” which made certain States, (5th See Texas v. United illegal 809 F.3d 134 eligible aliens for select federal bene- 2015), Court, that, by equally Cir. an divided by becoming fits. Texas asserted virtue of aff'd --, benefits, 2271, eligible illegal for these federal 579 U.S. 136 S.Ct. 195 L.Ed.2d aliens (2016). would also be entitled to driver's licenses and 638

380 conditions, these two erred; action meets agency sum, court the district by Supreme the guided court is the this standing has constitutional finality the APA’s interpretation of APA. Court’s the under Guidance Enforcement ” ‘pragmatic.’ and requirement as ‘flexible’ object it is an standing because Texas has (5th Holder, Qureshi 781 v. and, taking complaint’s of the Guidance 2011) v. Gard Abbott Labs. (quoting true, Cir. alleged a sufficient allegations as 136, 149-50, 18 ner, 387 U.S. fact, that the Guidance that is injury (1967)). of re The standard 681 L.Ed.2d hiring policies or alter its Texas to forces parties at 780. The do is de novo. Id. view The court now significant incur costs. Enforce to contest appear not Enforce- the EEOC’s turns whether of “consummation” is the ment Guidance action” agency a “final ment Guidance is Thus, decisionmaking process. the EEOC’s APA. under of prong the second turns appeal this on III. test, deter the court must Bennett consti the EEOC Guidance mine whether per provides “[a] The APA or “by rights which agency an action tutes of wrong because suffering legal son or, determined,” have obligations been action, ag or adversely affected agency alternative, conse legal which “from within the mean by agency action grieved Bennett, will flow.” quences statute, is entitled a relevant ing of 178,117 S.Ct. 1154. § 5 U.S.C. thereof.” judicial review entitled to seek party aggrieved An A. however, agency if

review, only or, rele by statute” “made reviewable contends The EEOC the action is appeal, vant to this whether conse “legal create does not which there is no action for agency “final the au EEOC lacks because the quences” remedy in a court.” Id. adequate other bring enforcement action thority to circuit, agency the “final In this is, it can directly; that against Texas jurisdictional is a requirement action” Attorney General a case to the U.S. refer Peo threshold, inquiry. a merits See following EEOC investi prosecution Comptrol v. Nat’l Bank ples of Office Texas, however, asserts that gation. States, the United Currency ler legal consequences that Guidance creates (“If (5th 2004) Cir. F.3d investigation beyond the threat go mere action,’ a federal ‘final is no there Texas ar Specifically, referral. jurisdiction.” matter court lacks legal itself creates gues that the Guidance Airlines, Herman, 176 Inc. v. Am. (citing it binds EEOC staff consequences because 1999))). 283, 287 F.3d action, and asserts specific to a course one of adheres to employer “fi that an who action is An administrative (1) provi “safe harbor” the Guidance’s two the APA if: action” under nal finding liability before will avoid “consummation sions action is the agency’s EEOC, will avoid DOJ refer and thus decisionmaking process;” agency’s of the See Cohen United (2) ral and enforcement. by be one which “the action must 2009) (D.C. States, F.3d have been deter obligations rights (“When [agency] ‘the docu language mined, legal consequences or from which rely can 177-78, parties Bennett, private 117 ment is such U.S. at will flow.” harbor which (internal a norm or omit on it as safe marks quotation S.Ct. actions, binding it can be ted). shape their challenged evaluating “In whether ” practical (quoting matter.’ Gen. Elec. Co. would consist notice to the individual Agency, Envtl. Prot. that he has been U.S. F.3d screened out because (D.C. 2002)), conviction; of a criminal an part opportunity Cir. vacated in on for (D.C. the individual to demonstrate that grounds, other 599 F.3d 652 the exclusion should applied not be 2010)); due Army see also Corps Engi U.S. — particular circumstances; his Co., Inc., U.S.-, neers v. Hawkes by consideration the employer as to 1807, 1814, 195 (2016) L.Ed.2d 77 whether the additional pro- information (stating that an agency action creates “le by vided the individual warrants an ex- gal consequences” when “narrows the ception to the exclusion.... potential plaintiffs field of and limits the potential liability” regulated that a entity Reviewing parties’ arguments, we faces). find that the imposes “legal con- sequences” in the sense that the EEOC alleged The provisions safe harbor read has committed itself to applying the Guid- as follows: ance conducting when enforcement and re- in Two circumstances which the Com- actions; ferral in particular, the Guidance mission believes employers will consis- suggests provisions that its are to be taken tently “job meet the related and consis- conclusive, as only offers two escapes tent necessity” with business defense from an adverse EEOC determination. are as follows: Moreover, the promulgation of the Guid- (cid:127) employer The validates the criminal ance is an by action “rights which conduct screen for in position obligations” have been determined: question per the Uniform Guidelines has committed itself to follow- on Employee Selection Procedures Guidance, ing the and has employ- assured (Uniform Guidelines) (if standards they ers that if conform their conduct to data about criminal conduct as related the Guidance’s “safe harbor” require- subsequent performance work is ments, they will not be deemed to be in available and such possi- validation is by violation of Title investiga- VII ble); or by tors. Such an exoneration EEOC inves- (cid:127) employer develops targeted would, tigators turn, ensure that Texas considering screen at least the nature protected from referral of its case to the crime, elapsed, the time and the Attorney U.S. General for prosecution, (the job nature of the three Green and, ultimately, from potential finding factors), provides and then opportu- injunctive monetary liability in a and/or nity for an individualized assessment prosecution. DOJ-led people excluded the screen to In defending against the Guidance determine policy ap- whether the scrutiny courts, of the federal plied job related and consistent with comes down hard and often on the mantra necessity.

business that the Guidance is not final The Enforcement Guidance clarifies what because the EEOC cannot directly bring sort of individualized assessment is re- Texas, against enforcement action since quired by provision,5 the second providing only Attorney can en- General that such an assessment force Title sovereign VII state. parties harbor,” 5. The do purported not discuss the first safe ond “safe which flows in Employee part harbor —the Uniform Guidelines Eighth analysis on Circuit's .the Co., Selection Procedures-—in detail. Accord- Green v. Missouri Railroad Pacific ingly, 1975). the court also focuses on the sec- F.2d 382 under Title duties ducting their official to simply limited is not

But the Guidance that, employers if investigations dispute conducted does it only a VII. Nor one or few other Texas some against reflect the by the EEOC to their conduct will conform policy that Instead, it is blanket Guidance, state. by the sеt forth “safe harbors” apply- itself to committed the EEOC always es virtually would employers such virtually public all to respect ing with on EEOC determinations adverse cape not does The EEOC employers.6 private discrimination, felony hiring charges of matter, agency that, general as a dispute effectively be immunized and thus discre- agency’s cabins that “guidance” Still, the action. enforcement DOJ-backed actions to respect tion with court, of this to two points EEOC cases action.” agency “final can be considered Co., L.L.C. v. Unit Generation Luminant “final is not Guidance that Holding the Agen Protection Environmental ed States simply because agency action” (5th 2014), 442 cy, 757 F.3d action an enforcement bring cannot Army Co., States L.L.C. United Belle for the stand directly would Corps Engineers, of agency a blanket whether that proposition Recycling by Kent 2014), vacated judgment the turns on agency action” “final rule is vs., Army Corps v. U.S. LLC of of instead plaintiffs, identity of the Ser class — U.S.-, 136 S.Ct. Engineers, character, of the nature, and effect (2016), argues words, which 195 L.Ed.2d In other in and of itself. rule Enforcement holding is not “final that the preclude hold that the Guidance limit- solely EEOC’s action” “final action.” is Guidance to a respect with authority ed enforcement authority by of this begin our review We that essentially to hold employer state recently Court noting Supreme that EEOC is no rule-related there Co., judgment in Belle court’s vacated under is renewable against a state case this court and remanded clearly APA, though EEOC even holding light of U.S. its reconsider harms suffi- employers can state Co., Hawkes Engineers v. Army Corps Ac- standing. III Article cient to confer — -, “pragmatic” Inc., the “flexible” cordingly, finality agen- Co., assessing (2016). this court approach Belle L.Ed.2d Qureshi, action, cy see Engi- Army Corps that the had held that the the conclusion Guidance leads to determi- jurisdictional neers’ “affirmative” action” under “final (“JD”), which nation asserted APA. sub- development was property plaintiffs (“CWA”) Act’s ject the Clean Water

B. not create requirements, did permitting Co., 761 F.3d consequences. See Belle legal that the The court had reasoned at 394. dispute that The EEOC does authori- of its own agency’s determination con- Guidance when staff would use employment discrimination prohibits un- which Specifically, Enforcement Guidance sex, race, color, religion, national on intends based [EEOC] that "the ambiguously states terms, Thus, practical the Enforce- origin.” who EEOC staff for use ... this document EEOC staff indicates charges ment in- investigating are discrimination Guidance’s stan- to follow the employ- will be bound volving of criminal records in the use deci- Elsewhere, making dards when enforcement-related as- the Guidance decisions.” ment VII, sions. Title enforces "[t]he serts ty legal consequences press States, did not create be- v. United merely cause the determination notified (1956), S.Ct. 100 L.Ed. 910 we con- subject the that it plaintiff permit- finality was sidered the of an order specify- ting requirements. As this court then stat- which commodities the Interstate ed, nothing plain- the JD did to alter the Commerce Commission believed were legal obligations, tiff’s because “even if exempt by regulation, statute from plaintiff] requested had never [the [de- the which it believed Although were not. the begun and instead had to fill authority termination] order “had no except give land], it would not have been immune [the notice of how the interpret- Commission statute, to enforcement action the Corps or ed” the relevant and “would everyday EPA.” Id. at 391. In language, only have effect if particular and when a plaintiff the was no worse off after the JD brought against was a particular than it carrier,” issued was before. we held the order was nonetheless immediately renewable.... Co., however, In Hawkes Supreme the here, So too while no administrative or rejected Court reasoning such and effec- criminal proceeding can be brought for tively reversed our decision in Belle Co. failure to conform to approved the JD facts, nearly Under identical the Court itself, agency final determination Corps’ concluded that the of an issuance only deprives respondents of a five- JD, which, Co., “affirmative” inas Belle year safe liability harbor from under the petitioner’s asserted that a property is Act, but if they warns that discharge subject to the permitting require- CWA’s pollutants property onto their without ments, is a “finаl action” under the obtaining a permit from the Corps, they APA it legal because creates conse- so at significant the risk of do criminal Co., quences. Hawkes at 1814. S.Ct. penalties. civil so, observed, Supreme This is Court (internal if Corps omitted). had issued a “nega- at 1815 Id. citations is, stating tive” JD —that a JD As the passage applies above plaintiff’s did property not contain “waters case, this an agency action can create legal of the plaintiff United States” —the would action, consequences even in it when have five-year period been entitled to a self, is filing disassociated with the of an protection government-brought proceeding, is not author short, CWA enforcement action. Id. ity imposition for the of civil or criminal determination to issue the affirmative JD Instead, penalties. “legal consequences” plaintiffs denied the the benefits that are created challenged agen whenever the JD, would have negative flowed from a and cy action' committing has the effect of “legal thus this effect constituted conse- that, agency itself to a view of the law quences” to plaintiffs resulting from turn, plaintiff forces the either to alter its the affirmative JD. Id. conduct, expose potential itself to liabili In reaching holding, Supreme this Co., ty. In Hawkes action was again emphasized “prag- Court once that a asserting the issuance of a JD approach matic” must be taken de- when plaintiffs subject land was to the CWA’s ciding “final,” whether an action is permitting requirements, depriving thus and thus to court review: the plaintiff agency-created safe This “pragmat- conclusion tracks the forcing plaintiff harbor and to submit approach ic” we have long agency’s Here, taken to final- liability. view or risk ity. example, For in Frozen promulgation Food Ex- is the EEOC’s of the Guid- right it otherwise have lost no and would entities a safe anee, regulated which offers Id. referral, ulti- enjoyed.” and thus from DOJ harbor employers if liability, mately from Court’s Supreme that the To the extent with comply hiring policies alter their un- in Hawkes Co. does not also decision directives.7 Guidance’s reasoning in the Fifth Circuit’s dermine noted, also earlier As we Supreme Luminant (principally, the decision as Fifth Circuit to a second points ap- “pragmatic on a emphasis Court’s is that the Guidance finding a suggesting APA assessing whether review proach” Luminant, action. See agency final for- of reliance on instead appropriate, Luminant, an plaintiff, the In F.3d 439. criteria, agen- as whether the such malistic notices of received two energy company, or is imposes penalties cy decision itself EPA, (“NOVs”) from the assert- violation find Luminant court), on a we binding power of its Texas-based two the instant case. distinguishable from in violation emitting pollutants plants were in Luminant ex- merely document agency Act Air the Clean multiple provisions of the agency’s opinion about pressed the plan. implementation the state-level and conduct; did legality plaintiffs challenged EPA that a court held This here, not, the administrative as commit (“NOV”) not “final was of violation notice of action should specific to a course agency feder- the relevant action” because agency agen- the comply fail to with plaintiff the Act, not the statute, and the Clean Air al Furthermore, agency the action cy’s view. Lu- NOV, parties’ obligations. set out the in Luminant was fact-specific limited to a minant, the Specifically, 442. In con- particular a violator. situation and legal conse- reasoned “adverse court trast, provides here an ana- the Guidance court if the district flow quences will the applies framework that across lytical violated” that Luminant determines hun- to all employers including board differently, the Air Act. Id. Phrased Clean — suit, in at issue agencies state dreds that, the EPA long as so asserted court of thousands employ which hundreds action, “Luminant would further no took in later EEOC staff employees binds imposed on it legal obligation no new have —and court.”); letter, also priate district see United States submitted after post-argument In Carolina, pursuant F.Supp. and Co. v. South issuance of Hawkes United States 28(j), government 1977) ("It ar- App. (D.S.C. P. R. Fed. is also clear citation and without the first time gues language of Section [2000e-5] from the —for cre- authority does not the Guidance employ complaints agаinst public —that individual al- the DOJ could harbor because a safe ate brought to the ... [EEOC] are to be ers finding, disagree ways with a favorable proceed with its 'infor [EEOC] that the against bring action thus conference, methods of conciliation mal employer where the EEOC has public even Only fail persuasion.’ when such methods investigation and conclud- conducted first General, Attorney authority to the does shift occurred. VII that no Title violation ed bring ac empowered to a civil then who is Title VII’s enforce- disagree, and note that We authority to Attorney has no tion. The General contemplates EEOC referral provision ment bring ac investigate charges or to such such any DOJ-brought en- prerequisite initiative, only step own but can tions on his 2000e-5(f)(l) U.S.C. action. See 42 forcement respect to public employers with to sue ("If unable to secure has been [EEOC] a case is complaints when referred individual agreement respondent a conciliation following proce [EEOC] to him [EEOC], shall acceptable [EEOC] to the 2000e-5].”), § prescribed [42 U.S.C. dures case shall refer the no further action and take S.Ct. by 434 may bring a civil Attorney who General aff'd (1978). appro- L.Ed.2d 775 against respondent in the such Mines, actions. See Barrick Goldstrike HUD’s final action under 702 [of (D.C. Browner, APA]”). Inc. v. 48-49 2000) (finding that “legal conse- existed, quences” even when no enforce- yet

ment action had been threatened plaintiff, where the ex- In addition to relying on this court’s prеssed agency position a definitive precedents, the EEOC also heavily leans applied to all facilities within regulatory on AT T Equal & Co. v. Employment purview, requiring and had the effect of all Opportunity Commission, 270 F.3d 973 regulated facilities to undertake increased (D.C. 2001), in asserting that its En- reporting and record-retention obligations forcement Guidance is not “final fines). or risk enforcement actions and T, action.” AT & the D.C. Circuit con- Furthermore, said, as earlier the Guid- sidered whether language in the EEOC’s provisions ance’s safe harbor set out rules compliance manual regarding the calcula- that employers are to if they follow wish to pregnancy tion of leave was “final agency legal consequences. Or, avoid stated anoth- action” under the APA. litigation The ulti- way, er an employer is assured protection mately concerned plaintiff whether the em- agency prosecution from referral and —ef- ployer required was give former em- fectively government-backed immune to a ployees credit pensions towards their for enforcement action—if it conducts in itself time missed due to pregnancy before the the prescribed by manner the Guidance. passage of the Pregnancy Discrimination Finally, other distinguish factors the (the “PDA”). Act of 1979 plaintiff The em- Guidance type agency from the action ployer challenged language in the EEOC’s previously this court has indicated complianсe manual that stated that deny- does not legal consequences. create For ing full work credit for pre-PDA pregnan- ‍​​​​‌​​​​​​‌‌​​​​‌​​‌​​‌‌‌​​‌​‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‍example, the Enforcement Guidance does cy “past leave was discrimination” suffi- not simply repeat the provisions relevant cient to constitute a “present violation of Instead, of Title VII. pur- Guidance Title VII.” Id. 974-75. The plaintiff em- ports interpret authoritatively both the ployer challenged also several letters that meaning “disparate impact” in the con- the EEOC sent to plaintiff suggesting employer text of hiring policies regarding practices that its violated Title The VII. criminal scope convictions and the plaintiff argued actions, that the EEOC’s “job related, necessity” business defense. whole, taken as a made clear that This always court has considered such a reached a concerning conclusion plain- important distinction when deciding tiff employer’s policy, and that that conclu- agency whether action is “final” under the sion “final agency was action” under the APA. See Resident Council Allen Park- APA. Id. at 975. way Dep’t Vill. v. U.S. Hous. & Urban Dev., however, The 1993) disagreed, D.C. Circuit conduct, and held that (finding that the the EEOC’s Department of includ- Housing compliance and Urban its statement Development’s “internal manu- and al, interpretation informal” was not “final of the relevant action” under the statutory term did not APA. Id. at 976-77. In making constitute “final this deter- APA, mination, action” under the the court adding but noted that the EEOC formally “[w]ere HUD to define “has not any injury upon inflicted [the phrase plaintiffs] ... plaintiff employer] merely by [at issue] [the would expressing undoubtedly right have the to review its view the law—a view that has force T, (emphasis F.3d at 975-76 AT & 270 persuade can extent the

only to the omitted). added) (internal citations at 976. Id. the same conclusion.” a court to legal conse- also noted T provided The court in AT & guidance policy necessarily flow what the concerning did not quences insight to no little is not as a obligated “the EEOC do actions because was EEOC’s EEOC itself viewpoint. agency’s expressed plaintiff employer],” result of the to sue [the bound contrast, provides here not manual “does In Guidance compliance framework procedural whether, how, compa- exhaustive against which say explained As officials to follow.8 EEOC nies, circumstances or under what III.A, binding itself to the supra by Part view.” Id. upon act [its] will Commission directives, standards Guidance’s that, like the com- contends The EEOC nation-wide, employers EEOC has assured T, AT Enforcement manual in & pliance that, they long so private, public agency action” be- “final to the Guidance’s their conform conduct of law has the force cause it they will not requirements, harbor” “safe presiding over that a court extent of Title VII to be in be deemed violation agrees with it. Thus, they will investigators. however, the EEOC dwelling point, on this Attorney Gener- the U.S. avoid referral to Most nota- obvious differences. evades the This, turn, guaran- prosecution. al for pur- here, Enforcement Guidance bly they will not face that employers tees Indeed, the agency the itself. ports to bind injunctive monetary of finding ultimate that, AT T recognized in & D.C. Circuit government a en- liability a result of as in that at issue guidance policy had the forcement action. staff in their to EEOC case intended bind reason, errs in the EEOC For this conduct, merely express- instead of official agency suggest that relying on AT&T to to respect views with agency’s the only APA “final” under the actions are actions, likely Court would the employers’ n give to federal courts bound when are later conclusion: a different have reached of agency’s interpretation the deference to cir- particular are ... Although there course, such a at the statute issue. Of taking agency’s in cumstances which way agency to show final method is one injury See, inflicts legal position action, way. e.g., a itself but it is one behavior, its change 1815; party Co., forces a Frozen 136 S.Ct. at Hawkes may position be taking 44-45, 569. It is Food, such action, ... this is agency deemed final Enforcement Guid also sufficient EPA altering ... not such a case. Unlike effect of ance has the immediate Appalachian “regulated Pow- obligations at issue and of rights Guidance (i.e., er, Compliance virtually Manual all state community” [at a de by offering them private employers) AT & does T] issue in affect to avoid an community. “EPA conсlusive means Whereas tailed and regulated extension, and, by finding, bound adverse EEOC [were] in the field officials government-backed ... referral and agency EPA Guidance apply” action. AT T. to sue & is not bound EEOC length, routinely uses man- fifty pages in & T over policy statement in AT Whereas the fleeting datory language convey sen- the conduct ex- than consisted of little more obligations on EEOC imposed employers. pected tence and no staff and of both EEOC Guidance, staff, which is the Enforcement Comm’n, C. Fed. Election 138 F.3d (5th 1998) Veldhoen, Cir. (citing Finally, major prop we address 226). When, here, F.3d at agency argument: the EEOC’s action being challenged is the promul- only investigatory authority EEOC has gation rules mandate such employers, over state no action that investigations regulated across the entire might respect EEOC take with to state community, provide specific, de- employers can purposes be “final” for the practice tailed “safe harbor” by which the under the APA. Implicit review regulated community may avoid adverse that, argument suggestion is the clear al- agency findings and eventual DOJ-led though investigations undoubtedly prosecution, the already acted harms, employers practical no definitively by altering both its own obli- “legal consequences” sufficient to invoke gations and rights regulated jurisdiction APA flow the mere initi- entities it oversees. investigation ation of an an employer’s into hiring practices. D. certainly can agree We that an repeat that, say We ourselves to in pub- agency’s investigate decision to a specific lishing issue, the Enforcement Guidance at regulated entity, including the issuance of the EEOC has enacted a policy statement subpoenas related to that investigation, in mandatory couched language that is in- normally does not constitute “final apply tended to to all employers. At no Jobs, Servs., Training, action.” See point litigation in this has the EEOC con- Gov’ts, Inc. v. E. Tex. Council that it tended does not intend to follow the (5th 1995) (citing Veldhoen full extent when carrying Guard, v. U.S. Coast out By its official duties. nevertheless ar- 1994)). not, however, Texas is simply guing that the Guidance cannot be re- challenging the prospect investiga viewed, exploits the EEOC the limitations Instead, tion challeng EEOC. authority, of its enforcement while denying itself, the Enforcement Guidance that agencies legal state will face conse- represents legal

which standards that quences they should fail to follow the En- applies the EEOC deciding when when forcement Guidance’s directives. and how to investigation, conduct such an practices and what may require charges. The may EEOC’s Guidance well be a The Guidance is an determination valid of authority. exercise That con- in its final form applicable yet and is to all clusion has to be determined. To employers nation-wide; review, however, it is not an wholly deny judicial inter mediate in step specifiс a enforcement ac ignore presumption would be to may tion that or may not lead to concrete reviewability, disregard and to the Su- Indeed, injury. previously when concluding preme Court’s instruction that courts that the threat of agency investigation is should adopt pragmatic approach for “legal not a consequence,” this court purposes determining reviewability heavily relied Labs., on the notion that such under the APA. Abbott initial, investigation merely relatively (stating 87 S.Ct. 1507 that there is a inconsequential step presumption judicial towards definitive that avail- review is petitioner’s legal rights action); declaration of the wronged by agency able to one ' and obligations regarding the dispute see also id. at 87 S.Ct. 1507. Accord- prompted the ingly, See Stockman we that the find Guidance is “final investigation. de- history making employment in eriminal purposes for the

agency action” instances, in violate may, some cisions APA.9 discrimi- against employment prohibition Rights the Civil under Title VII of nation IV. ob- principal The Act of 1964.” Guidance’s conclude, court erred the district To hiring on is that bans servation blanket justiciability and this action on dismissing criminal records —or with individuals jurisdiction grounds. matter a dis- “criminal record exclusions”—have RE- therefore judgment is court’s district majori- As the impact on minorities. parate is REMANDED VERSED, this action and recounts, thus warns ty the Guidance proceed- for further court to the district may “criminal record exclusions” blankеt opinion. with this not inconsistent ings “job they are relat- Title unless violate VII REMANDED. REVERSED necessity.” and consistent with business ed 4, 2013, of Tex- the State On November HIGGINBOTHAM, E. PATRICK declarato- complaint seeking “[a] as filed dissenting: Judge, Circuit setting unlawful and ry judgment holding that this controver- persuaded I am not Guidance; declaration and “[a] aside” the ripeness, demand of Article Ill’s sy meets Department injunction that” Nor engagement. adversarial injury, and body that government Justice —the sole called that we have been I persuaded am not issue employer “may can sue a state — of the EEOC an action to review upon seeking to persons letters to right-to-sue juris- finality support our sufficient with any of its constit- of Texas or sue the State challenge an EEOC Texas seeks diction. based on agencies or state officials uent document Guidance” “Enforcement appears interpretation of Title VII it. This cannot enforce The EEOC moved in” the Guidance. enough to resolve should be description jurisdiction. The district for lack dismiss I must dissent. this case. motion, concluding that granted court (1) standing challenge lacks Texas I. (2) Guidance; is not a “final the Guidance (3) action”; Texas’s the EEOC issued April On appealed ripe. is not on the Consider- “Enforcement Guidance to this Court. Records of Arrest and Conviction ation Title VII Employment Decisions Under II. The Guid- Act of 1964.” Rights the Civil jurisdic- subject-matter lacks legal position This Court forth the EEOC’s ance sets standing if not have tion Texas does usе of an individual’s employer’s “[a]n one, purely legal and as such it is “fi- anee is a Having that the Guidance is 9. determined APA, unnecessary under the it follows factual devel- nal action” to wait for further ripe naturally APA claim is that Texas’s opment rendering See before a decision. Jobs, Servs., Training F.3d at Austin, See & 50 review. City F.3d LP v. 522 Roark & Hardee of ov- (asserting ripeness that the doctrine 1325 Furthermore, 533, (5th 2008). 545 Cir. erlaps finality requirement); see also with the hardships the court significant should faces Doe, Agency, Drug Inc. v. John Enforcement Taking Texas's to consider its claims. decline 561, 2007) (D.C. ("Finality, 484 F.3d 567 Cir. true, hiring change allegations it must its ripeness, of administrative and exhaustion compliance with the Guid- practices to ensure related, overlapping doctrines remedies are ance, adverse effects or face the numerous categorically analytically dis- that are but not already set forth. tinct.”). challenge to the EEOC Guid- Texas's

389 if challenge private the Guidance or “by person suits claiming to be So, too, ripe. is not if the Guidance is not a aggrieved,”6 by but not the EEOC. “final action.”1 Texas has the bur- however, Congress, did authorize the all den establish ‍​​​​‌​​​​​​‌‌​​​​‌​​‌​​‌‌‌​​‌​‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‍that three of these Attorney General to file suit upon “reason- complementary requirements distinct but able cause to any person believe that or have been satisfied.2 group persons engaged of pattern practice or of resistance to full enjoy-

A. any ment of of the rights by secured [Title In enacting provision, VII].”7 Con- history The of Title VII and the creation gress “provide government intended to provides critical context for with a swift and weapon effective to vindi- Congress this case. enacted Title VII of cate the public broad interest in eliminat- Rights prohibit the Civil Act of 1964 to practices, unlawful at a level which employers “failing] refusing] or may may or grievances ... address the hire individual ... because of ... of race, color, sex, particular individuals.”8 religion, Between 1964 national ori- 1972, gin.” Attorney The Act ... General Equal “created filed numerous Commission,” pattern practice Employment Opportunity pursuant suits to this commissioners, by authority.9 headed five Yet over eight years, who are those “appointed by “Congress the President and with became convinced ... that the the advice and consent of grant the Senate” and ‘failure to meaningful “not than more three of whom shall powers be proved] [had to be a of political party.”4 major members the same flaw in the operation of Title ”10 original powers 1972, EEOC’s of Congress VII.’ gave enforce- ment power did not include the power sue. On EEOC the to bring types two contrary, the Commission was against private allowed suits employers alleged to investigation charges First, to “make an of’ have violated Title VII.11 ... “[i]f of discrimination and use informal methods [is] Commission unable secure from conciliation, “conference, persua- respondent agreеment conciliation bring employers Commission, sion” to into compliance.5 acceptable to the the Com- failed, If these efforts Act may authorized mission bring a civil action Qureshi Holder, 778, (codified 1. See v. 663 F.3d Id. Stat. as amended at 42 (5th 2011). 2000e-6(a)). § Cir. U.S.C. See, Greenstein, e.g., Indus., Choice Inc. Tex. v. Allegheny-Ludlum 8. United States v. (5th 2012). Inc., (5th 1975). Cir. 88-352, Rights 3. Civil Act (1972) (remarks Pub. L. No. Cong. 9. 118 Rec. 4080 VII, (codified tit. 78 Stat. Williams); as amend- cf., e.g., Sen. United States Jack 2000e-2(a)(l)). ed Co., at 42 U.S.C. sonville Terminal 451 F.2d 418 1971); United ex rel. Clark States v. Dillon (codified Co., 1970). Supply 4. Id. Stat. 258 as amended 42 429 F.2d 800 at 2000e-4(a)). § U.S.C. EEOC, 10. Gen. Tel. Co. Nw. v. 446 U.S. of 318, 325, 1698, (codified 5. Id. Stat. 258-59 as amended at 42 100 S.Ct. 64 L.Ed.2d 319 92-415, 2000e-5(b)). (1980) § (quoting Rep. U.S.C. S. No. at 4 (1971)). (codified 6. Id. Stat. 260 as amended at 42 2000e-5(f)(l)). 325-26, § U.S.C. 11. Id. at 100 S.Ct. 1698.

390 of of fault line In service this second, sovereignty; “[elec- And respondent.”12

[the] confined the sovereignty, Congress of enact- shared the date after years tive two Title for of states violations Attorney power to sue ment,” Congress transferred in- member of to a Cabinet-level prac- or VII pattern bring power General’s administration, delicate call cumbent EEOC.13 tice suits to the the Commerce under upon powers give the did not Congress Notably, of the Fourteenth and Section 5 Clause agencies to sue state power EEOC signify must This structure Amendment.15 of a re- Rather, the case “[i]n employers. analysis. in our govern- government, ais spondent which subdivision, if political agency, mental B. unable to secure been the Commission III, want of to Article Turning first agree- a conciliation respondent from the palpa- is engagement hеre an adversarial Commission, the acceptable to ment 2, III, § of the Consti- Article ble. “Under no further shall take Commission jurisdiction tution, courts have federal Attorney case to the refer the and shall and appellant[ ] dispute between over this civil action bring a may General who if it or ‘contro- only is ‘case’ appellee! ] in the respondent appropriate against such ”16 requirement.’ a ‘bedrock versy.’ This Although court.”14 district United States Indeed, fundamen- principle more “[n]o Congress judgment this considered in our role judiciary’s proper tal to the presented the issues all of does not resolve constitu- system government of than authority here, of between the allocution jurisdic- of federal-court tional limitation and the Attorney General cases or controversies.”17 tion to actual III directly questions the Article speaks in the inter- expression finds principle This as well as the standing ripeness, standing ripeness. twined doctrines challenge to Any finality of Guidance. case. require dismissal Both em- of a practices state employment mini- constitutional ‘irreducible “[T]he only upon decision proceed can ployer of three ele- standing mum’ consists General, This not the EEOC. Attorney (1) suffered must have plaintiff ments. The the lack of concrete underscores (2) fact, fairly that is traceable injury of Texas controversy the State between defendant, challenged conduct of the to the reality EEOC, accents the but also and the (3) by a likely that is to be redressed political on sensitive that this case touches While the judicial decision.”18 of dual favorable the essence bearing on decisions 818, 811, Byrd, 117 v. 521 U.S. Opportunity Act of 16. Raines Equal Employment 103, 2312, (1997) 92-261, (quoting 1972, 105 S.Ct. 138 L.Ed.2d 849 86 Stat. Pub. L. No. (codified § United Valley Forge 42 2000e- Christian Coll. Ams. at U.S.C. v. as amended State, Inc., U.S. 5(0(1)). & 454 Separation Church 464, 471, L.Ed.2d 700 102 S.Ct. 70 (codified 42 amended 13. Id. Stat. 107 (1982)). 2000e-6(c)). § U.S.C. Ky. Rights (quoting v. E. 17. Id. Simon Welfare (codified at 42 as amended 14. Id. Stat. 105 26, 37, 1917, 48 Org., 96 S.Ct. 2000e-5(0(l))- U.S.C. (1976)). L.Ed.2d 92-415, ("This en- Rep. at 25 No. 15. See S. Robins,-U.S. -, Spokeo, v. Inc. necessary provides the forcement scheme (2016) 194 L.Ed.2d S.Ct. needless without the power to results achieve omitted) (citation Lujan (quoting by a Federal might created be friction Defs. of 555, 560, Wildlife, sovereign issuing orders to executive (1992)). localities.”). L.Ed.2d States and their

391 horizon, political Guidance is a cloud on the faced a “forced choice between incurring injury it upon major- inflicts no Texas. The costs changing its Texas faces laws.”26 ity concludes otherwise because here no such choice—there is no financial “object” of the EEOC’s But penalty if it change declines to hiring action.19 that assertion cannot be sustained. There policies beyond the expense of a court is no doubt that the prefer EEOC would proceeding, an expense it has elected to Guidance, that Texas follow the but it lacks sum, incur. In Texas is left with argu- the' authority to bring suit enforcing that ment injured by it may The EEOC refer a case expressing its view of the law. As the D.C. preference.20 against Attorney General, Texas to the but observed, Circuit has injury typically “an Attorney General has no obligation to is not caused when an agency merely ex- adhere to the And if the Attor- presses its view of Guidance.21 requires what the law ney private General or a citizen sues Tex- party, of a even if that view is adverse to as, the Guidance is entitled to Skidmore This is “typical[]” case. party.”27 Indeed, at as Texas best.23 deference22 fully concedes, the EEOC does not have C. authority to a binding issue interpreta- result, tion of Title As a Texas’s VII.24 challenge Texas’s is also not ripe. At reliance on cases involving preemption is least since Abbott Laboratories v. Gard- misplaced. The is not a substan- ner, Supreme Court has recognized regulation tive can neither dictate —it that a party may pre-enforcement raise a outcome of a Title VII action preempt nor to an “That be- action.28 state law. said, pre-enforcement review is still The facts here distinguishable are also subject to the constraints of the ripeness from this Court’s recent decision in Texas “In deciding agency’s whether an test.”29 States,25 v. United In Texas v. is, not, United decision or is ripe judicial re- States, a panel divided view, this Court con- the Court has examined both the cluded that Texas had standing ‘fitness of judicial the issues for decision’ 561-62, Lujan, 19. See 504 U.S. at 112 S.Ct. EEOC’s view was not entitled to defer- 2130. ence). 2000e-5(f)(l). § 20. Seе 42 U.S.C. 24. See Texas's Complaint First Amended at 3 (citing 2000e-12(a)). 42 U.S.C. ("In 21. respondent See id. the case of a which government, governmental agency, po- (5th 2015), subdivision, 25. 787 F.3d 733 Cir. litical if the Commission has been aff'd court,-U.S.-, equally divided to secure 136 S.Ct. respondent unable a con- 2271, (2016). L.Ed.2d 638 agreement acceptable ciliation to the Com- mission, the shall take Commission no further action and shall Attorney refer the case to the 26. Id. 749. may bring General who a civil action respondent appropriate such United EEOC, 973, 27. See AT & TCo. v. (emphasis added)). district States court." (D.C. 2001). Passenger 22. See Nat’l R.R. Corp. Morgan, 136, 1507, 28. 387 U.S. 87 S.Ct. 18 L.Ed.2d 110 n. 122 S.Ct. (1967). (2002). L.Ed.2d 106 Nassar, Univ. Tex. Sw. Med. Indep. Ctr. v. Royalty Tex. Producers & Cf. Owners -, 2517, 2533-34, EPA, -U.S. Ass’n v. (2013) 2005). L.Ed.2d 503 (concluding 392 impact just disparate not address does of with- parties ‘hardship to and the ”30 policies” felon-hiring no Generally, of the “blanket consideration.’

holding court also cov- briefing in Texas’s if it discussed judicial decision for is fit challenge —it less controver- amount of significant ers a legal, ‘purely is issue that an “presents instance, Guidance, for terrain. The sial factual by further clarified not be and will ”31 “Disparate section about an entire here contains issues That development.’ Criminal Discrimination and Treatment “by further aided significantly would be section, Guidance In this Records.” understate- is an development” factual disparate Title is that “there VII explains chal- an abstract raised has ment. Texas evidence liability where treatment a specific unmoored that is lenge rejeсted an employer covered that a exclusion,” class shows or even a record “criminal on his applicant based sure, African American To be record exclusions.” “criminal similarly situ- hired a record but criminal into its brief- sprinkles some facts Texas comparable with a applicant White alleged ab- ated illustrate ing, but clar- several provides record” criminal position EEOC’s surdity of the —not disagrees Texas Unless ifying examples. “criminal particular demonstrate proposition, elementary legal this with Title VII. complies with exclusion” conduct Guidance that the seriously contend cannot is not fit challenge a theoretical Such cir- factual of the “irrespective Indeed, is invalid the Supreme judicial decision. might DOJ EEOC or “[djeter- in which cumstances warned repeatedly Court validity of The it.” in invoke legislation ... of scope of the mination specific circumstances hinge on the in must adverse effect immediate of its advance deployed. it is in which too case involves a concrete context of inquiry for abstract remote and rejected Moreover, Supreme Court judicial function.”32 exercise proper to the one identical argument almost dispute between previous in a here are raised facts irrele- that the responds Texas Gov- the Federal of Texas the State of this suit point “the whole because vant States, Texas v. United Texas faciаlly invalid— ernment. that the [Guidance] argued pre-enforcement circumstances the factual irrespective fit for Act was review Voting Rights it.”33 might invoke DOJ EEOC or which to hold that Court] [the it “asked this Court need is, argues That Texas relevant was no circumstances” under “criminal record specific not consider Supreme the Act.35 subject to conduct EEOC does “the exclusion” because invitation, accept declined Court employers’ regulate authority legal have sufficient “not have that it did explaining But the Guidance felons.”34 to hire refusals Club, Longshoremen's & Warehousemen's Int’l 523 U.S. Forestry v. Ass’n Sierra 30. Ohio 224, 222, Union, Boyd, U.S. v. 347 1665, Local 37 726, 733, 921 L.Ed.2d 140 447, (1954); accord L.Ed. 650 149, 98 S.Ct. Labs., 74 (1998) 387 U.S. at (quoting Abbott 296, 301, States, 118 523 v. United 1507). S.Ct. 87 (1998); 1257, Renne v. 406 140 L.Ed.2d S.Ct. 2331, 312, 323, 111 115 Geary, S.Ct. 501 U.S. - — Driehaus, Anthony v. List 31. Susan B. (1991). 288 L.Ed.2d 2347, U.S.-, 189 L.Ed.2d S.Ct. 134 (2014) v. Union Carbide (quoting Thomas 246 43-44. Opening Brief at 33. Texas’s 568, 581, Co., S.Ct. 105 Agric. Prods. (1985)); see also Roark L.Ed.2d Reply at 19. Brief 34. Texas's Austin, F.3d City Hardee L.P. & S.Ct. 1257. 2008). 35. 523 U.S. powers confidence in imagination Laboratories, [its] where the regulations under such a negative.” affirm The Court’s rea- review had “direct im immediate” just soning applicable is as here: “The pact plaintiffs on the and enforcement was operation of the statute is better grasped Rather, a virtual this Court certainty.39 light when viewed in of a particular appli- faces facts similar to presented those in Regardless, Texas cannot show one of companion cases, its cation.”36 Toilet Goods that it will suffer if any hardship this Ass’n v. Goods, In Toilet Gardner.40 Court withholds The Guid- Court declined to review the challenged adjudicаtion.37 injure ance does not in any way. If regulation it “ha[d] no idea wheth Texas is certain that its view of Title VII is er or when” it would be enforced.41 The correct, it hardship faces no in waiting for Court explained that that “believe[d] day of vindication. judicial appraisal likely to [was] stand on a much challenge

Texas’s is not surer ripe footing also for the the context aof independent reason specific application that it is uncertain of this regulation than whether the Guidance will ever be en- could be the case in the framework ‍​​​​‌​​​​​​‌‌​​​​‌​​‌​​‌‌‌​​‌​‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‍of the forced against it. Even assuming generalized challenge made here.”42 This EEOC intends to every private sue em- Court must abide this prece seminal who ployer comply not does with the Guid- dent.

ance, it can a case refer State Texas to the Attorney General. D. possibility that Attorney General Apart from these two act on may constitutional referral —and because of hurdles, I am persuaded not non-binding Guidance—is not enough Guidance is a to make Texas’s “final action.” ripe. As the “As a matter, Supreme general Court has claim oft-repeated, two conditions “[a] must be ripe adjudication not if it rests satisfied for upon action to be ‘final’: ‘contingent First, future may events that oc- action must mark the ‘consum- cur anticipated, may or indeed not occur mation’ of the agency’s decisionmaking ”38 at all.’ In respect, process the facts of this must merely not be of a tenta- —it are case far different from those of Abbott tive or interlocutory “And sec- nature.”43 forced, 36. Id. unless the Government demonstrates specifically the statute itself demonstrates Houston, 336, Lopez 37. City See Congress prohibited pre-enforcement (5th 2010) ("[E]ven 342 Cir. where an issue added) (emphasis (citing review.” Abbott presents purely legal questions, plaintiff Labs., 141, 1507)). 387 U.S. at 87 S.Ct. hardship must show some in order to estab- (alteration ripeness.” original) lish (quoting 158, 1520, 40. 387 U.S. 87 S.Ct. 18 L.Ed.2d Servs., EPA, 683, & Cent. S.W. Inc. v. (1967). 697 (5th 2000))). 690 163, 1520; Texas, 41. Id. at 87 S.Ct. see also Texas, 300, 38. 523 U.S. at 118 S.Ct. 1257 300, 523 U.S. at S.Ct. 118 (quoting Agric. Thomas v. Union Carbide Co., 568, 580-581, Prods. 473 U.S. 105 S.Ct. Goods, 164, 42. Toilet U.S. at 387 87 S.Ct. 3325, (1985)). 87 L.Ed.2d 409 136, 152-53, 39. 387 U.S. 18 (1967); 154, 177-78, Spear, 43. Bennett v. L.Ed.2d 681 520 U.S. Indep. see also Tex. Pro- EPA, (1997) (cita- Royalty 117 ducers & S.Ct. L.Ed.2d Owners Ass’n v. 281 2005) ("If omitted) Lines, (quoting F.3d tion there is Chi. & S. Air Inc. enforced, certainty 103, 113, that the law be Corp., will then it v. Waterman S.S. yet (1948)). irrelevant that the law has to be en- S.Ct. 92 L.Ed. Army Corps in United States cisión by which be one ond, must the action Co.45 v. Hawkes Engineers deter- have been obligations 'rights consequences ‘legal mined,’ which or from wheth- Hawkes, the Court considered In ”44 legal posi- describing flow.’ will determina- jurisdictional “approved er an take in enforcement will Army tion the JD, by the U.S. tion,” issued delineates the Guidance final proceedings, as a qualifies Corps Engineers in the Com- which circumstances in JDs Corps “[t]wo issues action. The will consistent- employers believes the mission the enforcement conjunction with and consistent related ‘job the ly Act, meet inter prohibits which Clean Water necessity’ defense”: “the pollutants with business into dischargе of alia a without States” of the United waters criminal (cid:127) validates employer The owner property A advises a JD permit. position ques- for conduct screen contains property piece her whether Em- on Guidelines the Uniform per tion It is “bind- States.” the United “waters of (Uniform Procedures Selection ployee Corps and both the years five on ing for (if Guidelines) about data standards Agency, Protection Environmental to subse- as related conduct criminal the Clean authority to enforce share which available is performance quent work noted, this is the Court Act.” As Water possible); such validation Act Water Clean significant “[t]he targeted (cid:127) a develops employer The pen- civil criminal and imposes substantial the nature of considering at least screen into discharging any pollutant for alties and the crime, elapsed, time per- a Act without by the waters covered provides then job of the ..and nature facts, the Corps.”46 On these mit from the as- for individualized opportunity a is a JD readily concluded that Court by the excluded people for sessment explained The Court final action. policy whether to determine screen is, ap- “an JD” —that “negative a that and consistent job related applied property stating party’s that a proved JD necessity. with business waters”— jurisdictional does contain from five-year safe harbor” “creat[es] circum these “[t]wo argues Texas “In оther Act enforcement. Water Clean har binding “safe legally stances” create words, narrows negative JD both is, urges that That bors.” limits the potential plaintiffs field of bring an promised not effectively faces for liability a landowner potential any employer action permit.” without discharging pollutants that fits exclusion” record a “criminal with that, affirma- follows “[i]t And “[t]wo of the circumstances.” one within consequences as well: legal tive JDs have the Guidance responds that The har- denial of safe They represent the law and its merely expresses view afford.”47 negative JDs bor majori consequences. legal carries no nega- A are far different. The facts here relying position, Texas’s ty embraces legally binding promise is a de- tive JD recent Supreme Court’s heavily on the Id. at 46. 1811-12. (quoting Port S.Ct. 1154 44. Id. at Ass’n v. Rederiaktiebola Terminal Bos. Marine 62, 71, Transatlantic, S.Ct. get at 1814. Id. (1970)). 203, 27 L.Ed.2d --, 195 L.Ed.2d -U.S. (2016). weighty carries consequences for the af- ployers, as well as ability its to choose party.48 fected The Guidance does not car- the venue for litigation, as the statute ry any consequences party. To the contemplates. See 42 U.S.C. 2000e- contrary, it merely expresses the (f)(3). EEOC’s 5(f)(1), For the court to find here law, view of the position that it may final judicial take future enforcement actions. Texas review, therefore, disrupt would the ad- insists that the goes further and process ministrative in a manner clearly creates two legally binding “safe harbors.” at odds with contemplation But the Guidance contains no definitive or Congress.50 mandatory language. Instead, it sets out These concerns are compounded by Con- “[t]wo circumstances in which the Commis- gress’s decision that the Attorney Gener- sion believes will employers consistently al—not the EEOC—should determine ‘job meet the and consistent related with whether and when to act against a state necessity’ business mushy defense.” This Hence, employer. allowing Texas to pro- language cannot fairly prom- be read as a ceed only deprives not the EEOC of re- ise to do anything. And even if it creates sources that are designated for enforce- some level of practical pressure, this does against ment actions private employers—it not mean imposes it legal conse- interferes with the discretion of one of the quences.49 highest-ranking of members the Executive is, however, There a more fundamental Branch. “For the court to find here final distinction between Hawkes and in- judicial review, JD, stant case. When the Corps issues a therefore, would disrupt the administrative a specific party informs that it is or is not process” in ways more than one.

subject to the Clean Act. There is a Water III. engagement direct between par- the two ties concerning specific tract of land that majority’s opinion is not without produces binding determination with purchase, sa- but some principles basic beаr lient and valuable consequences. In this repeating:

case, the EEOC has not taken any action The Constitution allots the nation’s against Texas—it general has issued a judicial power to the federal courts. Un- statement of its of the law. As view less respect these courts the limits of D.C. Circuit stated in a similar case: unique they authority, upon intrude circumstances,

In these to allow powers [Tex- legislative vested or exec- as] institute litigation with the Com- utive branches. Judicial adherence to the mission over the policy lawfulness of its separation doctrine of the powers pre- of would be to preempt the Commission’s serves the courts for the decision of discretion to issues, allocate its resources as litigants, between capable of ef- between this issue employer, and this fective exposition determination. Judicial opposed to other issues and other upon em- political proposals permissible C; (citing 48. See id. pt. App. 33 C.F.R. .'consequences’ they is that the to which al- EPA, Agreement: Memorandum Exemp- of practical, legal.... lude are But de facto 404(F) tions Under Section of the Clean Wa- compliance is not enough to establish that the (1989)). ter Act VI-A guidelines legal consequences.”). have had Safety 49. See Ctr. Highway Auto v. Nat’l EEOC, 50. AT & T Co. v. 976-77 Admin., Safety (D.C. Traffic (D.C. 2001). 2006) (“The appellants’ argument flaw in triggers our controversy until a case definite necessary to decide only when not insubstantial Texas’s duty to resolve litigants. When issues between law. EEOC’s challenge to the view these con- continually within act courts appro- is the then, arena political their Until stitutionally imposed boundaries dis- I respectfully of contest. their field ability perform priate their power, people’s a balance for sent. function as power against abuse

protection remains government

other branches seek to the courts

unimpaired. Should under bring as to power so

expand their controver- jurisdiction ill defined

their issues, they over constitutional

sies the- organ political

would become ories.51 MORRIS, Plaintiff- A. Patricia im- forcefully demonstrates case This Appellant, of Article the limits respecting portance of Texas seeks III. The State INDEPENDENCE; Michael OF TOWN Guidance” an “Enforcement Defendants-Appellees. Ragusa, ability to enforce EEOC lacks allow such should not it. This Court No. 15-30986 That the proceed. suit to nakedly political Appeals, Court of United States may wish Attorney of State General Fifth Circuit. the incum- fight with jumpstart political It unusual. party is far from political bent 28, 2016 Filed June the State’s surprise that without is also judi- invitation suit here extends is an invita- join fray. But this

ciary to. its “cases” decline. With

tion we must command, III walls Article

“controversies” Marshall Chief Justice

in and walls out. to decide—but duty have a

taught that we in the duty to do so

that includes dismissing jurisdiction.52

absence duty, by this

suit, court abided district which, respect to with due

a decision and to our differ- Attorney General these roles, would breach if overturned lie ought There the matter

aged walls. soci- (C.I.O) in a of the courts democratic v. ited.—role Workers America 51. United ‍​​​​‌​​​​​​‌‌​​​​‌​​‌​​‌‌‌​​‌​‌‌‌​‌‌​​‌‌‌‌​‌‌​‌​‍Public ” 737, Wright, U.S. 75, 90-91, (quoting v. Mitchell, ety.’ Allen 67 S.Ct. (1984))). 82 L.Ed.2d 556 (1947); Hardee Roark & see also L.Ed. 754 Austin, 541-42 City v. F.3d L.P. Wheat.) (6 2008) ("The Virginia, 19 many doctrines that 52. See Cohens (1821) ("It 264, 404, most true controversy’ re- 5 L.Ed. 257 out 'actual have fleshed mootness, jurisdiction if it take po- will not ripeness, that this Court quirement standing, — true, it must equally it is should not: but like—are 'founded question, and the litical should.”). jurisdiction if it take properly lim- proper concern about —and

Case Details

Case Name: Texas v. Equal Employment Opportunity Commission

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 27, 2016

Citation: 827 F.3d 372

Docket Number: 14-10949

Court Abbreviation: 5th Cir.