State of Texas v. EEOC et al

Filing 30

Brief/Memorandum in Support filed by Jacqueline Berrien, EEOC, Eric H Holder re 29 MOTION to Dismiss for Lack of Jurisdiction (Sandberg, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, et al.,
Defendants

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Civil No. 5:13-CV-00255-C
ECF

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED
COMPLAINT

TABLE OF CONTENTS
PAGE
INTRODUCTION ........................................................................................................................................... 1
BACKGROUND .............................................................................................................................................. 4
ARGUMENT..................................................................................................................................................... 7
I.

The Court Lacks Jurisdiction to Review the Guidance Because It
Is Not Final Agency Action ................................................................................................................ 7

II.

Plaintiff Lacks Standing to Bring This Suit .................................................................................... 13

III.

None of Plaintiff’s Claims Is Ripe ................................................................................................... 17
A. Counts I and II Are Unripe Because the Issues Plaintiff Seeks
To Raise Are Not Purely Legal ........................................................................................... 18
B. Count III Is Unripe Because There Would Be No Hardship To
Withholding Review ............................................................................................................. 22

CONCLUSION ............................................................................................................................................... 23

Memo. in Support of Mtn. to Dismiss Am. Compl. - Page i

TABLE OF AUTHORITIES
CASES

PAGE(S)

AT&T v. EEOC,
270 F.3d 973 (D.C. Cir. 2001) ......................................................................................................9, 13
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ............................................................................................................................ 17
Appalachian Power Co. v. E.P.A.,
208 F.3d 1015 (D.C. Cir. 2000) ....................................................................................................9, 11
Barrick Goldstrike Mines v. Browner,
215 F.3d 45 (D.C. Cir. 2000) ............................................................................................................ 11
Bennett v. Spear,
520 U.S. 154 (1997) .............................................................................................................................. 7
Board of Trs. Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ............................................................................................................................ 23
Caddell v. United States,
2003 WL 1107200 (5th Cir. 2003) ..................................................................................................... 4
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) .............................................................................................................................. 8
Choice Inc. of Texas v. Greenstein,
691 F.3d 710 (5th Cir. 2012) ............................................................................................................. 22
City of Boerne v. Flores,
521 U.S. 507 (1997) ............................................................................................................................ 23
Clapper v. Amnesty Int'l,
133 S. Ct. 1138 (2013)................................................................................................................. 13, 17
Clouser v. Espy,
42 F.3d 1522 (9th Cir. 1994) ............................................................................................................. 10
Cohen v. United States,
578 F.3d 1 (D.C. Cir. 2009) .............................................................................................................. 11
Ctr. for Auto Safety v. Nat'l Highway Transp. Safety. Admin.,
452 F.3d 798 (D.C. Cir. 2006) ................................................................................................... 11. 12
Dish Network, L.L.C. v. FCC,
2014 WL 323660 (D.C. Cir. Jan. 22, 2014) ..................................................................................... 13

Memo. in Support of Mtn. to Dismiss Am. Compl. - Page ii

Dow v. EPA,
832 F.2d 319 (5th Cir. 1987) .........................................................................................................9, 10
EEOC v. Peoplemark, Inc.,
732 F.3d 584 (6th Cir. 2013) ............................................................................................ 3, 15, 16, 18
In re: Employment Discrimination Litigation Against the State of Alabama,
198 F.3d 1305 (11th Cir. 1999)........................................................................................................... 4
Erickson v. Board of Governors of State Colleges and Universities for
Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000)........................................................... 22
FTC v. Standard Oil Co.,
449 U.S. 232 (1980) ............................................................................................................................ 10
Funk v. Stryker Corp.,
631 F.3d 777 (5th Cir. 2011) ............................................................................................................... 4
Gen. Elec. Co. v. EPA,
290 F.3d 377 (D.C.Cir.2002) ............................................................................................................ 12
Green v. Mo. Pac. R.R.,
549 F.2d 1158 (8th Cir. 1977)................................................................................................... passim
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) ............................................................................................................................ 14
Hawk Aircargo, Inc. v. Chao,
418 F.3d 453 (5th Cir. 2005) ............................................................................................................... 4
Heart of Atlanta Motel v. United States,
379 U.S. 241 (1964) ............................................................................................................................ 22
IBEW v. Miss. Power & Light Co.,
442 F.3d 313 (5th Cir.2006) .............................................................................................................. 19
Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000) .............................................................................................................................. 23
Lopez v. City of Houston,
617 F.3d 336 (5th Cir. 2010) ...................................................................................................... 17, 22
Lujan v. Defenders of Wildlife,
554 U.S. 555 (1992) ............................................................................................................................ 10
Lyng v. NW Indian Cemetery Protective Ass'n,
485 U.S. 439 (1988) ............................................................................................................................ 23

Memo. in Support of Mtn. to Dismiss Am. Compl. - Page iii

N.A.A.C.P. v. North Hudson Regional Fire & Rescue,
665 F.3d 464, 477 (3d Cir. 2011)...................................................................................................... 19
Nat'l Pork Producers Council v. EPA,
635 F.3d 738 (5th Cir. 2011) ............................................................................................................... 9
National Park Hospitality Ass'n v. Department of Interior,
538 U.S. 803 (2003) ............................................................................................................................ 23
Nelson v. Univ. of Texas at Dallas,
535 F.3d 318 (5th Cir. 2008) ............................................................................................................. 22
Newsome v. EEOC ,
301 F.3d 227 (5th Cir. 2002) ...................................................................................................... 10, 13
Opulent Life Church v. City of Holly Springs,
697 F.3d 279 (5th Cir. 2012) ............................................................................................................. 17
Pacheco v. Mineta,
448 F.3d 783, 787 (5th Cir. 2006) .................................................................................................... 19
Peoples Nat'l Bank v. Office of Comptroller of Currency of U.S.,
362 F.3d 333 (5th Cir. 2004) ............................................................................................................... 7
Pietras v. Board of Fire Com'rs of Farmingville Fire Dist.,
180 F.3d 468 (2d Cir. 1999) .............................................................................................................. 14
Reed v. Reno,
146 F.3d 392 (6th Cir. 1998) ............................................................................................................. 10
Richmond v. Chater,
94 F.3d 263 (7th Cir. 1996) ................................................................................................................. 3
Sample v. Miles,
239 Fed. Appx. 14, 2007 WL 486770 (5th Cir. 2007) ..................................................................... 7
Scott v. City of Anniston,
597 F.2d 897 (5th Cir. 1979) ............................................................................................................... 4
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996) .............................................................................................................................. 23
Skidmore v. Swift & Co.,
323 U.S. 134 (1944) ................................................................................................................. 8, 13, 14
Stapper v. Texas Dep't of Human Resources,
470 F. Supp. 242 (W.D. Tex. 1979) ................................................................................................. 14

Memo. in Support of Mtn. to Dismiss Am. Compl. - Page iv

Texas Office of Public Utility Counsel v. F.C.C.,
183 F.3d 393 (5th Cir. 1999) .........................................................................................................7, 17
United States v. Houston,
26 F. Cas. 379 (C.C.D.C. 1832) (No. 15,398)................................................................................. 19
United States v. Mead Corp.,
533 U.S. 218 (2001) ............................................................................................................................ 13
Waldon v. Cincinnati Pub. Sch.,
941 F. Supp. 2d 884 (S.D. Ohio 2013) ........................................................................................3, 18
Wards Cove Packing Co., Inc. v. Atonio,
490 U.S. 642 (1989) ............................................................................................................................ 19
West Virginia v. United States,
479 U.S. 305 (1987) ............................................................................................................................ 22
STATUTES
5 U.S.C. § 702 et seq ............................................................................................................................................ 7
5 U.S.C. § 704 ................................................................................................................................................... 7
42 U.S.C. § 2000e et. seq............................................................................................................................. passim
RULES AND REGULATIONS
29 C.F.R. § 1601.28(a)(1), (a)(2) ....................................................................................................................... 5
40 C.F.R. § 61.65(a) ........................................................................................................................................... 9
FEDERAL RULE OF CIVIL PROCEDURE
Rule 12(b)(1) ....................................................................................................................................................... 4
MISCELLANEOUS
Vernon’s Texas Statutes and Codes Annotated, Labor Code § 21.122 ................................................... 22
Vernon’s Texas Statutes and Codes Annotated, Occupations Code, § 1701.312 ................................ 3, 6

Memo. in Support of Mtn. to Dismiss Am. Compl. - Page v

INTRODUCTION
The State of Texas’s First Amended Complaint challenges both the legality of a guidance
document issued by the Equal Employment Opportunity Commission (EEOC) and the
constitutionality of Title VII of the Civil Rights Act of 1964.

First Amended Compl. (FAC), Dckt.

No. 24, March 18, 2014; Appendix (App’x) at 1-55 (EEOC, Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII (Guidance), No. 915.002 (April 25, 2012))
(attached to the FAC as Exhibit A); 42 U.S.C. § 2000e et. seq.. The Guidance explains how the EEOC
thinks about practices that create barriers to employment based on criminal history (and arrest records,
but that aspect of the Guidance is irrelevant in this case), in light of Title VII’s prohibitions on
employment practices that (i) result in a disparate impact on the basis of race or national origin (among
other things) and (ii) are not job related and consistent with business necessity. The State contends
that the Guidance incorrectly interprets Title VII and runs afoul of the Administrative Procedure Act,
and it asserts that Title VII violates the Constitution insofar as it imposes liability on states for
discrimination claims brought by individuals under a disparate-impact theory. FAC ¶¶ 38-53.
These claims should be dismissed because the State cannot establish three essential
jurisdictional requirements.
First, Texas cannot demonstrate the existence of a final agency action.

The Guidance is just

that – guidance. In a nutshell, it reflects the EEOC’s view – unremarkable in light of Title VII’s
prohibition on disparate-impact discrimination – that “an employer’s use of an individual’s criminal
history in making employment decisions may, in some instances, violate the prohibition against
employment discrimination under Title VII.” App’x at 4. But the Guidance does not have any legal
consequences. The EEOC cannot fine or otherwise punish employers for practices that diverge,
from its perspective, from the requirements of Title VII. And the EEOC could never bring an
enforcement action against the State to vindicate its viewpoint: Title VII authorizes the Department

Memo. in Support of Mtn. to Dismiss - Page 1

of Justice – not the EEOC – to bring enforcement actions against state governments. In any event, in
an enforcement action against a state, a court would enforce Title VII, not the Guidance.
Second, the State cannot demonstrate that it has standing to press the claims alleged in the
amended complaint. The reason is a familiar one: the Guidance lacks legal consequences. The
State may disagree with the EEOC’s interpretation of the law, but that does not imbue the
interpretation with any legal consequences.
Third, none of the State’s claims is ripe for review. The Guidance does not adopt a bright-line
rule that conflicts with the exclusionary policies championed by Texas (i.e., policies that exclude an
individual from certain employment opportunities based on a felony conviction). Instead, consistent
with case law interpreting Title VII, the Guidance endorses a fact-based approach to assessing such
employment practices. And given the Guidance’s fact-based focus, the State cannot demonstrate the
existence of a ripe conflict – academic though it would be, given the Guidance’s lack of legal
consequences – between its policies and the Guidance’s views on them. The preceding discussion
addresses the ripeness of Counts I and II. But Count III is unripe too, because the State would not be
harmed by the Court withholding review. The State’s only possible Eleventh Amendment interest is
in avoiding Title VII claims for damages brought by individuals, and it can fully vindicate this interest
if and when an individual brings such a claim.
This is the second motion to dismiss filed by the EEOC and the first by the Department of
Justice, which Texas added as a defendant in the amended complaint. The EEOC’s first motion to
dismiss prompted the State to amend its complaint and file an opposition brief, Plaintiff’s Opposition
to Motion to Dismiss, Dckt. No. 25 (Opp.). The original complaint, which the opposition brief
defends, has been superseded. Nonetheless, the opposition brief provides a useful – and colorful –
guide to the State’s positions. It also frames the issues in a manner that warrants correction. In the
opposition brief, the State upbraids the EEOC for having the “audacity” to assert that the timing of

Memo. in Support of Mtn. to Dismiss - Page 2

the suit is “‘far from impeccable,’” painting the EEOC’s filing as an effort to “have [its] cake and eat it
too” by allowing the agency to continue to “bully employers into hiring felons” with “abusive”
conduct, while avoiding “another stinging rebuke on the merits.” Opp. at 1. And it calls the
Guidance the “Felon-Hiring Rule” too. Id.
It will probably come as no surprise to learn that the EEOC disagrees with the State’s portrayal
of things.

Challenging the jurisdictional bona fides of the State’s complaint was – and is – no

audacious act. It was and is an act of obligation. E.g., Richmond v. Chater, 94 F.3d 263, 267 (7th Cir.
1996) (“[L]awyers violate their duty as officers of the court when they agree to suppress their doubts
about the court’s jurisdiction.”). And without subjecting the Court to litigation over the propriety of
the EEOC’s conduct in another case – the “abus[e]” rhetoric stems from one case, EEOC v.
Peoplemark, Inc., 732 F.3d 584 (6th Cir. 2013) – it suffices to say that the government of the State of
Texas, “the largest employer in the second-largest State in the Nation,” has not been bullied: The
EEOC has embraced the same basic view of the law with respect to criminal-record exclusions for 25
years, App’x at 113 (EEOC, Policy Statement on the Issue of Conviction Records, February 4, 1987);
App’x at 116-17 (EEOC, Policy Statement on the Use of Statistics in Charges Involving the Exclusion
of Individuals with Conviction Records from Employment, July 29, 1987), and Texas has for many
years used at least some of the hiring practices that it now preemptively seeks to vindicate, see Vernon’s
Texas Statutes and Codes Annotated, Occupations Code, § 1701.312, Credits. Nor is the EEOC
hiding from the merits. The EEOC has not been issued a single “stinging rebuke” on the merits, so it
does not fear that another is in the offing. To the contrary, courts have adopted the EEOC’s view
that depriving individuals of employment opportunities on the basis of their criminal histories can
constitute disparate-impact race discrimination. E.g., Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th
Cir. 1977); Waldon v. Cincinnati Pub. Sch., 941 F. Supp. 2d 884, 889-90 (S.D. Ohio 2013). And as to the
merits of the Eleventh Amendment claim, courts of appeals – including the Fifth Circuit – have

Memo. in Support of Mtn. to Dismiss - Page 3

rejected the very challenge raised by Texas. E.g., Scott v. City of Anniston, 597 F.2d 897, 899-900 (5th
Cir. 1979); In re: Employment Discrimination Litigation Against the State of Alabama, 198 F.3d 1305, 1318-24
(11th Cir. 1999). Finally, as to the not-so-subtle appellation bestowed upon the Guidance by the
State, it requires no response beyond this: The Guidance is not a “Felon-Hiring Rule.” See Guidance.
Important though the preceding few paragraphs regarding framing are, they should not shift
the focus away from the fact that the State’s amended complaint should be dismissed under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
BACKGROUND
The EEOC issued the Guidance in 2012. App’x at 1. It explains that “[a]n employer’s
neutral policy (e.g., excluding applicants from employment based on certain [past] criminal conduct)
may disproportionately impact some individuals protected under Title VII, and may violate the law if
not job related and consistent with business necessity (disparate-impact liability).” Id. The Guidance
further explains that, during its investigation, when assessing whether a practice has a legally
prohibited disparate impact, the EEOC conducts a fact-based inquiry. It (i) identifies the “particular
policy or practice” at issue, (ii) reviews statistical data on whether the practice has a disparate impact on
a protected class, and, (iii) if necessary, assesses whether facts demonstrate that the practice is
job-related and consistent with business necessity. App’x at 12-15. The EEOC’s basic view that
exclusionary policies can result in a disparate impact is not new: The agency has espoused it for a
quarter of a century. See App’x at 113-117. 1

1

The Court may consider the policy statements cited here – and the Compliance Manual cited later,
App’x at 56-112 (EEOC, Compliance Manual, § 15, April 19, 2006) – without converting this motion
to a motion for summary judgment because they are subject to judicial notice, see Funk v. Stryker Corp.,
631 F.3d 777, 783 (5th Cir. 2011); Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005), and, in
addition, matters outside the pleadings may be considered when deciding a Rule 12(b)(1) motion
without triggering an obligation to convert it into a motion for summary judgment, Caddell v. United
States, 2003 WL 1107200, *1 (5th Cir. February 17, 2003).

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The EEOC Guidance addresses states in their capacity as employers “as part of [its] efforts to
eliminate unlawful discrimination in employment screening . . . by entities covered by Title VII,
including private employers as well as federal, state, and local governments.” App’x at 6. It also
invokes Title VII’s preemption provision, noting that “State and local laws or regulations are
preempted by Title VII if they purport to require or permit the doing of any act which would be an
unlawful employment practice under Title VII.” App’x at 5 (internal quotation marks omitted)
(emphasis added); see 42 U.S.C. § 2000e-7.
Importantly, with respect to states, the EEOC plays a more limited role in implementing Title
VII than it does with private employers:

The EEOC is prohibited by statute from bringing

enforcement actions against states under Title VII. 42 U.S.C. § 2000e-5(f)(1). If a state employee or
job applicant thinks s/he has been subjected to an unlawful employment practice, then s/he can file a
charge with EEOC. Id. § 2000e-5(b). The EEOC will then conduct an investigation and if, after
completing its investigation, it determines that “there is not reasonable cause to believe that the charge
is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the
[state] of its action.” Id.

The notice to the employee or applicant is typically referred to as a

right-to-sue letter 2 because, as a general matter, the employee or applicant can file a suit once s/he
receives the letter, but not before. Id. § 2000e-5(f)(1). If, however, the EEOC concludes that there
is reasonable cause to believe that a violation of Title VII has occurred, then it initiates conciliation.
Id. § 2000e-5(b). This is essentially a process by which the EEOC tries to facilitate a settlement
agreement with the state. Id. But if conciliation fails, the EEOC cannot bring an enforcement action
against the state. Id. § 2000e-5(f)(1). Title VII requires that the EEOC refer the matter to the
Department of Justice for it to make its own decision regarding whether to bring an enforcement

2

An individual can also request that the EEOC issue a right to sue letter before it completes its
investigation. 29 C.F.R. § 1601.28(a)(1), (a)(2), (d)(2).

Memo. in Support of Mtn. to Dismiss - Page 5

action or issue a right to sue letter. Id. Notably, notwithstanding the numerous paragraphs of the
complaint devoted to EEOC enforcement actions, FAC ¶¶ 17-22, Texas does not allege that the
Department of Justice has ever brought a case against a state premised on a disparate impact resulting
from a felony-conviction hiring exclusion.
Texas alleges that it employs thousands of people, and it claims that “[f]or many state jobs,
state law and longstanding hiring policies impose absolute bans on hiring convicted felons (or in some
instances persons convicted of certain categories of felonies).” FAC ¶ 23. The practices apparently
differ by agency. For example, the Texas Juvenile Justice Department allegedly refuses to hire
applicants convicted of one of a number of listed felonies (and the list size varies by job), id. ¶ 27, while
the Texas Lottery Commission supposedly refuses to hire anyone convicted of any felony (and
apparently some misdemeanors) in the last ten years, id. ¶ 28. At least some of these practices have
existed for more than a decade. See V.T.C.A., Occupations Code, § 1701.312, Credits.
Notwithstanding the years’ long coexistence of the EEOC’s understanding of Title VII and
plaintiff’s felony-exclusion hiring practices, plaintiff filed this declaratory judgment action. The
amended complaint contains three counts. Count I seeks a declaration of plaintiff’s “right to
maintain and enforce its law and policies that absolutely bar convicted felons (or certain categories of
convicted felons) from serving . . . [in] any [ ] job the State and its Legislature deem appropriate.”
FAC ¶ 43. Count I further seeks to enjoin EEOC and the Department of Justice from “enforcing the
interpretation of Title VII that appears in” the Guidance and from issuing right-to-sue letters. FAC ¶
44. Count II requests that the Court hold unlawful and set aside the Guidance as (1) a substantive
rule that was issued without notice and opportunity for comment, (2) outside the EEOC’s statutory
authority, and (3) “an unreasonable interpretation of Title VII.” FAC ¶¶ 48-50. Finally, Count III
requests a declaratory judgment that “disparate impact liability under Title VII represents an
impermissible exercise of Congress’s enforcement powers under the Fourteenth Amendment” and

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therefore cannot be a basis for state liability. FAC ¶ 52. Count III also requests that the court enjoin
the EEOC and DOJ from issuing right-to-sue letters that would allow individuals to sue state officials
or agencies. FAC ¶ 53.
ARGUMENT
I.

The Court Lacks Jurisdiction to Review the Guidance Because It Is Not Final Agency
Action.
Counts I and II of the amended complaint challenge the Guidance. See FAC ¶¶ 38-50. The

Court has jurisdiction to entertain these challenges only if the Guidance constitutes final agency action
under the APA. 3 5 U.S.C. § 704; Peoples Nat’l Bank v. Office of Comptroller of Currency of U.S., 362 F.3d
333, 336 (5th Cir. 2004). The Supreme Court has established a two-part test for determining whether
agency action is final. Bennett v. Spear, 520 U.S. 154, 177-78 (1997). First, the agency action must
mark the “consummation” of the agency’s decision making process; it cannot be tentative or
interlocutory in nature. Id. Second, the action must be one by which “rights or obligations have
been determined” or from which “legal consequences will flow.” Id. at 178.
The EEOC Guidance is not final agency action under the APA. No obligations arise as a
result of the Guidance.

Contrary to the State’s representation, Opp. at 2, the Guidance does not

contain language directing employers to perform an individualized assessment of every applicant:
“Title VII thus does not necessarily require individualized assessment in all circumstances.” App’x at
17. Nor, contrary to the State’s representation, does the Guidance contain language directing
employers to scrap policies that bar individuals with felony convictions (or certain categories of felony

3

The first count does not cite the APA. FAC ¶¶ 38-40. But it appears to present an APA cause of
action, insofar as it challenges the legality of an agency action (i.e., the issuance of the Guidance). See
5 U.S.C. § 702 et seq. In any case, review of the Guidance depends on it being a final agency action
for at least two reasons: (1) Agency action is not ripe for review unless it is final, Texas Office of Public
Utility Counsel v. F.C.C., 183 F.3d 393, 411 n.11 (5th Cir. 1999), and (2) the APA waiver of sovereign
immunity applies only if the Guidance constitutes final agency action, Sample v. Miles, 239 Fed. Appx.
14, 19, 2007 WL 486770, *2 (5th Cir. 2007).

Memo. in Support of Mtn. to Dismiss - Page 7

convictions) from serving in certain positions. According to the State, “the EEOC went out of its
way to condemn categorical no-felons policies like Texas’s in mandatory terms.” Opp. at 22. For
this proposition, the State quotes the following language from the Guidance: “A policy or practice
requiring an automatic, across-the-board exclusion from all employment opportunities because of any
criminal conduct is inconsistent with the [enumerated] factors because it does not focus on the dangers of
particular crimes and the risks in particular positions,” App’x at 19 (emphasis added). Opp at 22.
The State’s assertion does not follow from the language of Guidance. The Guidance refers to
exclusionary policies that rule out “all employment opportunities” based on “any criminal conduct,”
while the policies referenced by the state exclude employees from certain (not all) positions, or because
of certain (not just any) criminal conduct.
But even if there were salient directive language in the Guidance, the Guidance would not
create any legal obligations. The relevant legal obligation is the state’s obligation not to discriminate
on the basis of, among other things, race or national origin in employment matters. This obligation
arises out of Title VII, however, not the Guidance.

42 U.S.C. § 2000e-2 (defining unlawful

employment practices without reference to Guidance). That is, the Guidance does not create new
non-discrimination obligations.

Rather, it reflects the EEOC’s long-standing, non-binding

understanding of the existing obligations imposed by Title VII: “An employer’s use of an individual’s
criminal history in making employment decisions may, in some instances, violate the prohibition
against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.” 4 See,
e.g., App’x at 4. So, if a Court were to ultimately determine that one of the State’s exclusionary policies

4

The EEOC’s understanding of the meaning of Title VII would not bind a court in an enforcement
action because the Guidance is not entitled to Chevron deference, under which the Court would be
obligated to defer to any reasonable interpretation offered by the agency (if Congress had not spoken
to the issue). See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).
Rather, as discussed below, the EEOC’s interpretation would be entitled to Skidmore deference. See
Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Memo. in Support of Mtn. to Dismiss - Page 8

amounted to impermissible race discrimination, the basis for that ruling would be Title VII, not the
Guidance. The Fifth Circuit has deemed agency action non-final in similar circumstances. Nat’l
Pork Producers Council v. EPA, 635 F.3d 738, 756 (5th Cir. 2011) (holding that the EPA’s interpretation
of an environmental statute to cover a certain type of discharge as a pollutant did not amount to final
agency action because it was the statute that prohibited the discharge of pollutants); Dow v. EPA, 832
F.2d 319, 323 (5th Cir. 1987) (concluding that a letter did not constitute final agency action because,
while Dow may be penalized for certain practices that the EPA disagreed with in the letter, the “legal
source for these orders [imposing penalties] . . . will be 40 C.F.R. § 61.65(a), and not any later EPA
interpretation of that regulation.”). And in a case akin to this one, the D.C. Circuit concluded that the
EEOC’s expression of its views of what the law requires, in its compliance manual (which resembles
the Guidance 5), did not constitute final agency action because the view would have “force only to the
extent the agency can persuade a court to the same conclusion.” AT&T v. EEOC, 270 F.3d 973, 976
(D.C. Cir. 2001); id. at 975. 6
Similarly, no legal consequences flow from the Guidance. The Guidance does not conclude
that all felony-based exclusionary policies violate Title VII, as noted earlier. App’x at 19. But even if
one thought that it did, no legal consequence would follow from that. Upon receipt of a charge of
race discrimination based on an exclusionary policy, the EEOC would open an investigation (as it
5

Compare App’x at 56-112 (Compliance Manual) with App’x at 1-55 (Guidance).

Plaintiff argues that the AT&T case is distinguishable because that case held simply that the plaintiff
had failed to plead the existence of the sort of legal consequences that establish final agency action, but
that the State here has pleaded such consequences. Opp. at 24. This is not an argument; it is a
conclusion. And it is an untenable one, because the AT&T court rejected the position advocated by
the State in this case. In AT&T, the company said that the EEOC’s adoption of a legal position
through the compliance manual and the issuance of letters harmed it, just as the guidance document
had harmed the plaintiff in Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1022 (D.C. Cir. 2000). The
State takes the same basic view here. See FAC ¶ 46. But the court in AT&T rejected that argument
because the Compliance Manual and the letters did not bind the EEOC to take any action that had
legal consequences. AT&T, 270 F.3d at 976. The same logic applies here, as explained throughout
this section
6

Memo. in Support of Mtn. to Dismiss - Page 9

would with any charge). An administrative investigation is not a “legal consequence.” See FTC v.
Standard Oil, 449 U.S. 232, 242 (1980) (stating that the burden of administrative proceedings is
“different in kind and legal effect from the burdens attending what heretofore has been considered to
be final agency action”). Following the investigation, the EEOC would either refer the matter to the
Department of Justice for further investigation and a potential civil enforcement action (because, as
mentioned earlier, the EEOC cannot bring enforcement actions against states), or issue a right to sue
letter on the ground that the EEOC had not found reasonable cause to believe that a violation of Title
VII had occurred, id. § 2000e-5(b). Consider first referral. Even if the EEOC had reached the
conclusion that all felony-based exclusions are illegal, the Department of Justice would not be bound
by that conclusion; one agency’s administrative dictates do not ordinarily bind another agency, cf. Lujan
v. Defenders of Wildlife, 554 U.S. 555, 569-70, 570 n.4 (1992), see Clouser v. Espy, 42 F.3d 1522, 1535 (9th
Cir. 1994); Reed v. Reno, 146 F.3d 392, 397 (6th Cir. 1998), and plaintiff does not allege otherwise, see
FAC. Thus, any decision to file suit would not be a result of the Guidance, but of the Department of
Justice’s own views of the requirements of Title VII as applied to the facts of a particular case. 7 And
if the EEOC were to issue a right to sue letter instead of referring the matter to the Department of
Justice, that act too would lack legal consequence under Fifth Circuit precedent. See Newsome v.
EEOC, 301 F.3d 227, 232 (5th Cir. 2002) (holding that the issuance of a right to sue letter was not final
agency action).
Texas’s own theory of the case provides additional support for the conclusion that the
Guidance does not create any obligations or legal consequences. Texas alleges that the EEOC lacks
the authority to issue substantive rules implementing Title VII. FAC ¶ 48. But if the agency lacks
the authority to issue substantive rules, then the Guidance could not change plaintiff’s legal obligations

7

In any case, the filing of a complaint likely does not constitute a final agency action in the Fifth
Circuit. See Dow, 832 F.3d at 325.

Memo. in Support of Mtn. to Dismiss - Page 10

or generate legal consequences. See Ctr. for Auto Safety, 452 F.3d at 810.
Plaintiff insists that the Guidance constitutes final agency action, and its opposition to the
EEOC’s first motion to dismiss provides a roadmap of its likely arguments. It is not a roadmap for
success. The State initially leans heavily on three D.C. Circuit cases to support its argument: Cohen v.
United States, 578 F.3d 1 (D.C. Cir. 2009) (vacated on other grounds); Appalachian Power Co. v. EPA, 208
F.3d 1015 (D.C. Cir. 2000); and Barrick Goldstrike Mines v. Browner, 215 F.3d 45 (D.C. Cir. 2000). Opp.
at 17-20. They stand for the unremarkable proposition that documents labeled as informal guidance
by agencies are sometimes deemed by the courts to be final agency action. Opp. at 17. There is no
doubt about that; the defendants do not contend that an agency’s label is conclusive. But of course
the devil is in the details, and the important “detail” in those cases is that the action at issue – unlike the
Guidance – created rights or obligations, or had legal consequences. Cohen, 578 F.3d at 8-9 (stating
that the agency document at issue created rights and obligations regarding the collection, payment, and
refund of taxes), Appalachian Power, 208 F.3d at 1022-23 (concluding that guidance constituted final
agency action because, among other things, it would be used to review and set conditions in permits);
Barrick Goldstrike Mines, 215 F.3d at 48 (holding that the agency action had “legal consequences”
because it obligated plaintiff to track “its movement of waste rock and report the movements as
releases of toxic substances”).
The State suggests that the Guidance has legal consequences because it “force[s] employers to
change their behaviors.” Opp. at 24. But the Guidance does not “force” employers to change their
behaviors. Indeed, this case highlights that fact. The EEOC’s interpretation and Texas’ laws have
co-existed for decades, and the State has failed to allege any change in its behavior as a result of the
EEOC’s interpretation. Moreover, there is no legal consequence for an employer failing to adopt the
view of the law espoused by the EEOC in the Guidance, as explained above. At its core, the State’s
argument is that some other parties have chosen to voluntarily comply with Guidance to avoid

Memo. in Support of Mtn. to Dismiss - Page 11

possible enforcement action. But even if true, that does not establish that the Guidance has legal
consequences: Voluntary compliance is a practical effect, which is not a basis for deeming an agency
action final. Ctr. for Auto Safety v. Nat’l Highway Transp. Safety. Admin., 452 F.3d 798, 811 (D.C. Cir.
2006). Moreover, as voluntary compliance is, by definition, voluntary, it is not legally speaking a
consequence of the Guidance.
The State also maintains that “mandatory language” in the Guidance demonstrates that it is
final agency action. Opp. at 20 (internal quotation mark omitted). But, as mentioned earlier, there is
no “mandatory language” addressing the employment policies of interest to the state – exclusionary
policies that permanently deprive individuals convicted of certain felonies of the opportunity to
compete for certain categories of jobs. Moreover, the effect of mandatory language must be
considered in the context of an agency’s authority, and the presence of any mandatory language in the
Guidance cannot establish that it imposes obligations or has legal consequences because none of the
EEOC’s options for responding to a charge of discrimination under Title VII (investigation, referral to
the Department of Justice, and the issuance of a right to sue letter) has legal effect.
Finally, the State argues in shotgun-like fashion that the Guidance is final agency action
because it binds agency employees, creates safe harbors, and lists factors that the agency will consider
on a case-by-case basis. Opp. at 22. None of these arguments has merit. The two basic faults with
the State’s mandatory language argument sink the agency employee argument as well: (1) the
Guidance does not obligate agency employees to conclude that Texas’s policies are unlawful because it
does not reach the conclusion that all felony-based exclusions are illegal; and in any case, (2) the
employee’s actions cannot impose legal obligations on, or create legal consequences for, the State.
The safe-harbor argument is similarly unavailing. Courts consider the creation of safe harbors to be
evidence of final agency action. Gen. Elec. Co. v. EPA, 290 F.3d 377, 383 (D.C.Cir.2002). But the
Guidance cannot create a safe harbor because it merely expresses the agency’s non-binding

Memo. in Support of Mtn. to Dismiss - Page 12

understanding of Title VII; a court will ultimately determine the scope of the statute’s
anti-discrimination provision. See Newsome, 301 F.3d at 227; AT&T, 270 F.3d at 975. In any event,
the alleged safe harbors are no such things because they are framed in equivocal language. The
Guidance lists two practices that the Commissioners “believe will consistently” satisfy the
requirements of Title VII. App’x at 17. This is no guarantee against liability should there be a
lawsuit. And the State’s argument regarding the listing of factors also fails. The state’s brief neglects
to mention what the list of factors is used for. Opp. at 22. The list is used to determine whether a
practice is one that the Commissioners “believe will consistently” satisfy Title VII. App’x at 17.
Something that does not satisfy that list, then, is not necessarily an employment practice that the
EEOC considers to be inappropriate under Title VII – just as conduct that falls outside of a safe
harbor is not necessarily unlawful. In any case, there is no escaping the fact that a Court will
determine the scope of Title VII and will not be bound by the Guidance when doing so. 8
II.

Plaintiff Lacks Standing to Bring This Suit.
To establish standing to sue under Article III, a plaintiff must allege that it has suffered a

concrete injury, or that such an injury is “imminent” or “certainly impending.” See Clapper v. Amnesty
Int’l, 133 S. Ct. 1138, 1147 (2013). In addition, to support standing the injury alleged must be
traceable to the defendant’s challenged conduct and able to be redressed by the relief sought. Id.
The EEOC’s expression of its view in the Guidance about what Title VII means inflicts no such

8

At the end of its brief, the State suggests that the Guidance is a final agency action because the EEOC
may one day ask a court to defer to it, just as it has asked the Supreme Court to defer to other guidance
documents. Opp. at 24-25 (citing briefs filed by the EEOC in the Supreme Court). This argument is
a nonstarter. In the Supreme Court briefs cited by the State, the EEOC sought Skidmore deference.
Under Skidmore deference, courts afford agency interpretations respect proportional to their
persuasiveness. United States v. Mead Corp., 533 U.S. 218, 235 (2001). An agency document, like the
Guidance, that expresses a legal view “‘that has force only to the extent that the agency can persuade a
court to the same conclusion’” (i.e., that receives Skidmore deference) lacks legal consequences and so is
not a final agency action. Dish Network, L.L.C. v. FCC, 2014 WL 323660, at *1 (D.C. Cir. Jan. 22,
2014) (quoting AT&T, 270 F.3d at 976).

Memo. in Support of Mtn. to Dismiss - Page 13

tangible harm on Texas. And eradicating any trace of the Guidance would redress no Article III
injury.
Texas is not injured by the Guidance. No one can be found to “violate” the Guidance or be
injured by it, for it has no effect as law. No one is “directed” to do or not do anything by the
Guidance. See Op. at 6. It is instead Title VII that does prohibit – and has prohibited, from the time
it was signed into law fifty years ago by a President from Texas -- employment practices that have a
disparate impact on protected classes and are not shown to be job related. Griggs v. Duke Power Co.,
401 U.S. 424 (1971). The Guidance, to be sure, says some of what the EEOC thinks about what Title
VII means and will be entitled to deference that, under Skidmore v. Swift & Co., 323 U.S. 134 (1944), will
depend on the power of its reasoning to persuade. But even briefs and law review articles have
considerable power to persuade. It is ultimately Title VII, not views offered in the Guidance, that
controls, that prohibits, that directs.
Texas nevertheless argues that the EEOC’s statement of its views somehow causes injury in
fact that, say, a law review article might not because the EEOC, unlike a law review writer, is a “bully”
that can throw the “full weight of its enforcement apparatus” at any hapless employer who dares to
“refuse to fall in line,” using “sanctionable,” frivolous,” and “groundless” litigation tactics. 9 Opp. at 1, 3,
14.
Of course, the EEOC’s “enforcement apparatus” does not include the authority to bring
9

Texas even seems to argue that the EEOC or the Department of Justice issuing a right-to-sue letter
causes an injury, and it argues that this kind of supposed injury can be redressed by having the Court
order defendants not to issue such letters. FAC ¶¶ 44, 53. In fact, ordering the EEOC and the
Department of Justice to stop issuing right to sue letters (including when dismissing charges against
Texas) would not redress any such injury. If the agencies were enjoined from issuing a right to sue
letters within the time frame set out by the statute, the individuals who filed the administrative charge
could still file suit. Pietras v. Board of Fire Com'rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir.
1999); Stapper v. Texas Dep’t of Human Resources, 470 F. Supp. 242, 246 (W.D. Tex. 1979). And nothing
would preclude such an individual from premising his or her suit on the disparate- impact theory that
plaintiff assails in this case. Thus, the relief sought would not redress the alleged injury.

Memo. in Support of Mtn. to Dismiss - Page 14

enforcement actions against states. 42 U.S.C. § 2000e-5(f)(1). And in the fifty years during which
Title VII has proscribed use of employment practices with a disparate impact that are not sufficiently
job related, Texas cites no instance in which the EEOC has ever “bullied” Texas over its hiring or
non-hiring of applicants with criminal records.

Instead, in support of its barrage of

sanctionable-conduct rhetoric, plaintiff cites over and over and over again litigation against someone else
described in EEOC v. Peoplemark, Inc., 732 F.3d 584 (6th Cir. 2013), a panel opinion issued over a
strong dissent. Even assuming for present purposes that the panel majority’s comments about the
EEOC in that case were justified, 10 Texas draws the wrong conclusions.
First, the conduct the panel majority thought sanctionable occurred in 2009 and 2010, a time
before the Guidance even existed. See 732 F.3d at 587-89. If Peoplemark showed the problem, the
Guidance that did not then exist couldn’t have been the cause (even if one believes, as Texas
apparently does, that the issuance of the Guidance marked a meaningful change in the EEOC’s
approach), and removing it couldn’t be the solution, i.e., could not provide the kind of redress required
for Article III standing. Although Texas does not claim to have been sued in the first fifty years of
Title VII over hiring or not hiring persons with criminal records, whatever fear it harbors that such a
suit might be filed at some point in the next fifty years would continue to exist with or without the
Guidance. 11

10

With any litigant who appears in court as often as the EEOC it is easy to dredge up some case in
which that litigant has been sharply criticized by a judge. Heaving such a criticism as a by-blow aside
into a different case puts the frequent litigant in a no-win situation, as it can dispute the merits of the
criticism only by embroiling the Court in satellite relitigation over what happened in that prior case.
Accordingly, without implying that the EEOC agrees with Peoplemark, at this stage of this case this
motion does not seek to relitigate Peoplemark.
11

Texas now claims that the “risk” of enforcement is no longer “theoretical,” because the “EEOC
already has filed ‘a charge of discrimination’” against a Texas agency for, in plaintiff’s view, applying a
policy against hiring felons that plaintiff’s memorandum represents is required by state law. Opp. at
2, 15. That is a misreading of what happened. The EEOC did not “file” a charge of discrimination
against Texas. As Texas’s own exhibit C plainly indicates – in the document title no less – the EEOC

Memo. in Support of Mtn. to Dismiss - Page 15

Second, what Texas contends can never be justified, an EEOC challenge to a blanket policy
never to hire a former felon, was not found by the panel majority to be sanctionable or even wrong:
Peoplemark said that the EEOC did “have a basis” for challenging a blanket policy not to hire felons for
the occupations at issue in that case. 732 F.3d at 591. Instead, the EEOC’s mistake, according to the
Peoplemark majority, was that the employer’s attorney told the EEOC that the employer had a blanket
policy of not hiring felons and it took the EEOC too long to plough through a couple hundred
thousand pages of discovery documents to realize that the employer’s attorney had not understood his
own client’s practice. See id. at 587-92.
Finally, Texas’s argument that the Guidance injures it in a way that creates standing is even
more far-fetched with respect to Count III than it is with regard to Counts I and II.

In Count III,

Texas appears eager to challenge the constitutionality any kind of disparate-impact litigation, whether
the across-the-board policy in question is not hiring former criminals to be pre-school teachers, not
hiring clerks who can’t do fifty push-ups, or not hiring janitors who can’t read Japanese. Texas argues
that any such liability would violate its sovereign immunity. The Guidance does not focus on or
address that issue or indeed focus on whatever, if any, special rules may apply to States qua States as
employers. It instead addresses, with respect to all employers subject to Title VII, one particular type
of practice (which could be disparate treatment or disparate impact or neither, depending on the facts)
without revisiting more general principles of Title VII, such as the general principle that disparate
impact is covered or, a specific issue such as whether States are subject to disparate impact at all.

The

merely sent Texas a “notice” that someone else, an Austin resident, had filed a “charge of
discrimination” against a state agency. That is no more the EEOC “launch[ing]” a charge against
Texas, Opp. at 3, than it is the Clerk of this Court who is suing every defendant served with a
summons over the Clerk’s signature. And despite plaintiff’s supposed fears that the Guidance puts
the EEOC on an autopilot course that will inevitably have EEOC challenging the plaintiff’s hiring
practices, the EEOC in fact told both the Austin resident and Texas that the EEOC was “unable to
conclude that the information obtained establishes violations of the statutes.” FAC Ex. D (emphasis
supplied).

Memo. in Support of Mtn. to Dismiss - Page 16

Guidance provides no standing for Texas to raise the sovereign immunity question, which is not
addressed by the Guidance. 12
III.

None of Plaintiff’s Claims Is Ripe.
Courts may not decide claims that are abstract or otherwise not yet fit to be decided. None of

plaintiff’s claims is ready to be decided given the lack of a final agency action, the existence of factual
and potential constitutional questions, and the fact that withholding review will not impose a hardship
on plaintiff.
The basic rationale of the ripeness doctrine “is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v.
Gardner, 387 U.S. 136, 148 (1967). The doctrine comprises constitutional and prudential elements.
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 286 (5th Cir. 2012).
When deciding whether a claim is ripe, courts assess whether the issue to be decided is fit for
judicial review and what, if any, is the hardship to the parties of withholding review. Opulent Life
Church, 697 F.3d at 286. A case is generally ripe if any remaining questions are purely legal ones;
conversely, a case is not ripe if further factual development is required. Id. The fitness-for-decision
and harm elements generally must be balanced against each other. Lopez v. City of Houston, 617 F.3d
336, 342 (5th Cir. 2010). But “[e]ven where an issue presents purely legal questions, the plaintiff must
show some hardship in order to establish ripeness.” Id. (internal citation omitted).
With respect to challenges to agency actions, the Fifth Circuit has distilled the doctrine into a

12

When Texas amended its complaint, it added U.S. Attorney General Eric Holder in his official
capacity – i.e., the Department of Justice – as a defendant. See FAC ¶ 5. But Texas does not identify
an action taken by the Department that has caused it injury or imminently will cause it injury. The
Department did not issue the Guidance and is not bound by it (which, even if the opposite were true,
would not establish an injury), and the State does not allege that the Department has brought an
enforcement action against it under a disparate-impact theory based on its felony-related exclusionary
policies. Nor has Texas alleged that an enforcement action is “certainly impending.” Clapper, 133 S.
Ct. at 1147. Thus, the State lacks standing to sue the Department.

Memo. in Support of Mtn. to Dismiss - Page 17

four-part test, and a plaintiff must satisfy all four elements of the test to demonstrate ripeness. Texas
Office of Public Utility Counsel v. F.C.C., 183 F.3d 393, 411 n.11 (5th Cir. 1999). Under this test, a court
considers:
(1) whether the issues are purely legal; (2) whether the issues are based
on a final agency action; (3) whether the controversy has a direct and
immediate impact on the plaintiff; and (4) whether the litigation will
expedite, rather than delay or impede, effective enforcement by the
agency.
Id. This memorandum has already established that the claims premised on the Guidance are not ripe,
because they are not based on final agency action. This suffices to demonstrate the absence of
jurisdiction as to those claims. But there is more: Texas’s claims are also unripe because, with
respect to Counts I and II, they present factual questions that cannot be resolved in this litigation, and
as to Count III, the controversy does not have a direct and immediate impact on the State.
A. Counts I and II Are Unripe Because the Issues Plaintiff Seeks To Raise Are Not Purely
Legal.
With no apparent awareness of the irony of its position, Texas attempts to goad the EEOC
and this Court into repeating the action criticized in Peoplemark. As in Peoplemark, the attorney for the
employer is representing that the employer has across-the-board policies not to hire former criminals,
see FAC ¶¶ 24-31. And, notwithstanding its reliance on Peoplemark, Texas urges that the Court make
an abstract, context-free decision whether such policies, if they exist, would be always legal or never
legal. The better practice, as the Guidance, Title VII cases and even (or especially) Peoplemark teach, is
to consider the actual facts and circumstances in which hiring occurs. See, e.g., Green, 549 F.2d at 1160;
Waldon, 941 F. Supp. 2d at 889-90.
As a threshold matter there’s a point so obvious that it can easily be overlooked: A blanket
prohibition on hiring former felons cannot constitute disparate impact discrimination unless it in fact
has a disparate impact. Determining whether such a disparate impact exists involves a factual analysis
of the relevant labor market. See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650-651 (1989)

Memo. in Support of Mtn. to Dismiss - Page 18

(abrogated by statute on other grounds). The specific hiring practice is also relevant. Texas state
agencies do not have uniform employment practices. Some agencies, according to Texas’s attorneys
at least, automatically disqualify all felons, while others disqualify only individuals convicted of certain
felonies. 13 See FAC ¶¶ 23-31. One set of practices might not result in a disparate impact, while
another set might.

Nor does plaintiff concede that all of its current and potential future

felony-conviction-based hiring practices in fact have a disparate impact.
And even where a practice does have a disparate impact, the Guidance recognizes that the
facts and circumstances matter and, therefore, that there can be no always-legal or never-legal answer.
The fact that a practice causes a disparate impact is only the beginning of the inquiry into whether it
violates Title VII. The inquiry also requires consideration of whether the practice is job related for
the particular job at issue and consistent with business necessity. 42 U.S.C. § 2000e–2(k)(1)(A)(I);
Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006). In the context of criminal histories, among the
facts and contexts the courts (and the EEOC) say should be considered when considering
job-relatedness and connection to business necessity are: (i) the nature and gravity of the offenses
excluded, (ii) whether the practice takes account of the time that has passed since the conviction
and/or completion of the sentence, and (iii) the type of job sought. 14 Green v. Mo. Pac. R.R., 549 F.2d
1158, 1160 (8th Cir. 1977); App’x at 17-25.

13

And some practices would even preclude Sam Houston from getting a job. For example, if Sam
Houston himself were to apply today for a job as game warden, Texas would apparently refuse to
consider his application. Compare FAC ¶ 29 (“absolute ban on hiring any game warden who has ever
been convicted of a felony or class A misdemeanor”) with United States v. Houston, 26 F. Cas. 379
(C.C.D.C. 1832) (No. 15,398) (such a conviction).

14

Under Title VII, if an employer demonstrates that a challenged hiring practice is job-related and
consistent with business necessity, then a plaintiff has the opportunity to demonstrate that there are
less discriminatory alternatives to the challenged practice. 42 U.S.C. § 2000e–2(k)(1)(A)(ii); IBEW v.
Miss. Power & Light Co., 442 F.3d 313, 318 (5th Cir.2006). This matter too can present factual
questions. N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 477 (3d Cir. 2011).

Memo. in Support of Mtn. to Dismiss - Page 19

Texas argues that the Guidance is a fact-insensitive “ukase,” Opp. at 22, because it is full of
“unconditional,” and “’mandatory’” language, id. at 20. And indeed Texas highlights that the
Guidance frequently uses the verb “will” to describe what Commission staff will do. Opp. at 21.
But what comes after “will” matters. Even the examples that Texas cherry picks show that what the
EEOC “will” do is “assess relevant evidence”; “determine the persuasiveness of such evidence on a
case-by-case basis”; give “careful consideration of the nature and gravity of the offense or conduct”;
use certain “factors” as “the starting point” for analysis; and recognize that whether an exclusion is
lawful “will depend on the particular facts and circumstances of each case.” Opp. at 21, quoting
Guidance at 10, 15, 16. None of this is the language of a facts-don’t-matter “ukase” that presents a
purely legal issue ripe for up-or-down judicial review.
To be sure, Texas also cites a few passages from the Guidance that do seem more categorical,
Opp. at 21-22, but all but one of those examples deal with exclusions based on arrest records rather
than convictions. Texas’s final example ignores context and ends up misreading the Guidance.
Texas quotes the first, but not the second, of the following two sentences from page 16 of the
Guidance:
A policy or practice requiring an automatic across-the-board exclusion
from all employment opportunities because of any criminal conduct is
inconsistent with the Green factors because it does not focus on the
dangers of particularized crimes and the risks in particular positions.
As the court recognized in Green, “[w]e cannot conceive of any
business necessity that would automatically place every individual
convicted of any offence, except a minor traffic offense, in the
permanent ranks of the unemployed.”
Opp. at 22. (Footnote omitted; emphasis added). Texas misreads this passage as viewing any
across-the-board criminal-conduct exclusion for each job position in the economy as always being
inconsistent with Title VII. In fact, as the terms we emphasized and as the sentence Texas omitted
make clear, the passage asserts only that across-the-board exclusion from all employment
opportunities for any criminal conduct, including misdemeanors, would be inconsistent with Title VII.

Memo. in Support of Mtn. to Dismiss - Page 20

Not even Texas (as far as we know) contends otherwise. Unless Texas were to take such an extreme
position that any criminal conviction carries an abandon-hope-of-rehabilitation lifetime bar from any
employment for any position, it follows that even Texas would acknowledge that, for some jobs, a
categorical refusal to hire persons with criminal convictions in even their distant past would be
contrary to Title VII.
The EEOC’s Guidance likewise contends that a refusal to consider applicants with criminal
convictions would be appropriate for some jobs in some circumstances, but not others. An example
comes straight from the Guidance. According to the EEOC, even if an employer (or State, like
Texas) imposed criminal-records restrictions on the hiring of preschool teachers, that policy would be
lawful, even it if had a disparate impact, “because [that policy] addresses serious safety risks of
employment in a position involving regular contact with children.” App’x at 27. Texas’s argument
that the EEOC would view such a policy as invalid, Opp. at 11, misreads what the Guidance expressly
says.
Texas argues that there is a ripe issue for review because the Guidance says that an employer
“must” always “afford felons ‘individualized assessments,” and Texas’ practices do not allow for
individualized assessment. Opp. at 2, citing Guidance at 18-20 (emphasis original). In fact, the
Guidance says the opposite: “Title VII thus does not necessarily require individualized assessment in
all circumstances,” App’x at 21 (emphasis supplied), i.e., in the EEOC’s view, Title VII does in some
circumstances (depending on, e.g., the nature of the job) permit categorical criminal records screens
that do not provide an individualized assessment of particular applicant’s circumstances.
To be sure, that both the EEOC and (as far as we can tell) Texas view criminal-history related
employment screens as sometimes legal, sometimes not, does not imply that they will always agree on
which particular instances fall on which side of the line. But since, as the Guidance explains, that
line-drawing exercise will turn on the particular facts and circumstances of the case, the Guidance

Memo. in Support of Mtn. to Dismiss - Page 21

presents no purely legal question ripe for review.
B. Count III Is Unripe Because There Would Be No Hardship To Withholding Review.
Plaintiff alleges in Count III that a state cannot be liable for discrimination under Title VII
pursuant to a disparate-impact theory because state sovereign immunity can be overcome only by
legislation enacted pursuant to the Fourteenth Amendment, and this amendment permits Congress to
prohibit only disparate-treatment discrimination. FAC ¶ 52.
This claim is unripe. To establish that a claim is ripe for review, Texas must show that the
disputed matter has a direct and immediate impact on it, i.e., that there is some hardship to withholding
review. Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010). This is true even if a claim presents
a purely legal question. Id. But withholding review of Count III would not impose any hardship on
plaintiff. Regardless of the merits of Count III, plaintiff would be subject to disparate-impact liability
under Title VII for its felony-conviction exclusion practices because prevailing on this claim would
eliminate only disparate-impact liability with respect to suits brought by individuals in federal court for
damages. It would not prevent the United States from enforcing Title VII, because Title VII is valid
Commerce Clause legislation, see Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and state
sovereign immunity does not operate against the federal government, West Virginia v. United States, 479
U.S. 305, 311 n.4 (1987). Nor would it prevent individuals from bringing federal court suits for
injunctive relief under the Ex Parte Young exception to Eleventh Amendment immunity. 15 See Nelson
v. Univ. of Texas at Dallas, 535 F.3d 318, 321-22 (5th Cir. 2008). Plaintiff, then, would be obligated to
conform its hiring practices to Title VII regardless of whether it would prevail on this claim. See
Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, 207 F.3d 945,
952 (7th Cir. 2000). In short, resolution of this claim would not affect the law governing the State’s
15

And, to the extent Texas’s exclusionary practices are based on agency policy rather than state law,
Texas could be sued by individuals in state court under a state-law disparate-impact theory. See
V.T.C.A., Labor Code § 21.122.

Memo. in Support of Mtn. to Dismiss - Page 22

conduct, and the State could challenge the ability of an individual to bring a disparate-impact suit in
federal court for damages at the time, if any, that such a suit is brought. See Nat’l Park Hospitality Ass'n
v. Department of Interior, 538 U.S. 803, 810 (2003) (concluding that withholding a decision about dispute
resolution procedures before dispute had arisen would cause no hardship); see also Choice Inc. of Texas v.
Greenstein, 691 F.3d 710, 716 (5th Cir. 2012) (concluding that withholding review imposed no hardship
because plaintiff’s conduct would be unlawful regardless of whether plaintiff won or lost).
In its opposition brief, plaintiff argues that this ripeness argument “proves far too much”
because if it were true the Supreme Court’s “landmark Eleventh Amendment decisions [from the last
20 years] would be wrong.” Opp. at 15-16. Not so. All of the cases cited by the state – Seminole
Tribe of Florida v. Florida, 517 U.S. 44 (1996); City of Boerne v. Flores, 521 U.S. 507(1997); Kimel v. Florida Bd.
of Regents, 528 U.S. 62 (2000); and Board of Trs. Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) – involved
claims by individuals against states that raised sovereign immunity concerns; none involved solely a
declaratory judgment action by a state against the federal government. Thus, the claims in these
“landmark” cases are ripe under the terms of defendants’ argument, which does nothing more than
apply basic ripeness principles to the State’s claim.
Notably, concerns about deciding unripe cases are amplified in the context of claims that raise
constitutional issues because “[a] fundamental and longstanding principle of judicial restraint requires
that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”
Lyng v. NW Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). This principle underscores the
need to subject Count III to a rigorous ripeness analysis, an analysis that demonstrates that the claim is
not ripe.
CONCLUSION
For the reasons discussed above, the Court should dismiss plaintiff’s amended complaint for
lack of subject matter jurisdiction.

Memo. in Support of Mtn. to Dismiss - Page 23

DATED this 4th Day of April, 2014.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
SARAH R. SALDAÑA
United States Attorney
JOSHUA E. GARDNER
Assistant Director, Federal Programs
Branch
s/ Justin M. Sandberg
BRIAN G. KENNEDY (D.C. Bar No.
228726)
Senior Trial Counsel
JUSTIN M. SANDBERG, IL Bar No.
6278377
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Mass. Ave. NW, Rm. 7302
Washington, D.C. 20001
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Counsel for Defendants

Memo. in Support of Mtn. to Dismiss - Page 24

CERTIFICATE OF SERVICE
I hereby certify that, on April 4, 2014, a true and correct copy of the foregoing was served by
CM/ECF on:
Jonathan F. Mitchell
Andrew Stephen Oldham
Arthur D’Andrea
Office of the Texas Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
s/ Justin M. Sandberg
JUSTIN M. SANDBERG
Trial Attorney
U.S. Department of Justice

Memo. in Support of Mtn. to Dismiss - Page 25