State of Texas v. EEOC et al

Filing 32

RESPONSE filed by State of Texas re: 29 MOTION to Dismiss for Lack of Jurisdiction (Attachments: # 1 Exhibit(s) Exhibits Table of Contents, # 2 Exhibit(s) Exhibit A, # 3 Exhibit(s) Exhibit B, # 4 Exhibit(s) Exhibit C, # 5 Proposed Amendment Exhibit D) (Oldham, Andrew)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,
vs.

Case No. 5:13-cv-00255-C

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
JACQUELINE A. BERRIEN,
in her official capacity as Chair of the Equal
Employment Opportunity Commission,
And
ERIC H. HOLDER,
in his official capacity as Attorney General
of the United States,
Defendants.

PLAINTIFF ’S OPPOSITION TO MOTION TO DISMISS
FIRST AMENDED COMPLAINT

TABLE OF CONTENTS
Table of Authorities........................................................................................................................................... ii
Introduction ........................................................................................................................................................ 1
Argument ............................................................................................................................................................ 2
I.

The Felon-Hiring Rule Constitutes Final Agency Action ..................................................... 2

II.

The State Has Standing .............................................................................................................. 5

III. The State’s Claims Are Ripe ...................................................................................................... 8
Conclusion ........................................................................................................................................................11
Certificate of Service........................................................................................................................................13

Cases

TABLE OF AUTHORITIES

Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ....................................................................................................................................... 3
Board of Education of New York City School District v. Gulino,
554 U.S. 917 (2008) ....................................................................................................................................... 4

Center for Auto Safety v. NHTSA,
452 F.3d 798 (D.C. Cir. 2006) ..................................................................................................................... 2
Cf. Allina Health Services v. Sebelius,
--- F.3d ---, 2014 WL 1284834 (D.C. Cir. Apr. 1, 2014) .......................................................................... 7
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) .................................................................................................................................. 2, 3
EEOC v. Peoplemark, Inc.,
732 F.3d 584 (6th Cir. 2013) ............................................................................................................... 1, 8, 9
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) ....................................................................................................................................... 7
Foxworth v. Pennsylvania State Police,
228 F. App’x 151 (3d Cir. 2007) ................................................................................................................10
General Electric Co. v. Gilbert,
429 U.S. 125 (1976) ....................................................................................................................................... 4
Japan Whaling Ass’n v. American Cetacean Soc’y,
478 U.S. 221 (1986) ....................................................................................................................................... 3
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .................................................................................................................................. 5, 6
New Hampshire v. Maine,
532 U.S. 742 (2001) ....................................................................................................................................... 4
Owner-Operator Indep. Drivers Ass’n v. Federal Motor Carrier Safety Admin.,
656 F.3d 580 (7th Cir. 2011) ........................................................................................................................ 6
Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n,
324 F.3d 726 (D.C. Cir. 2003) ..................................................................................................................... 2
Sackett v. EPA,
132 S. Ct. 1367 (2012) ................................................................................................................................... 3
ii

Societe de Conditionnement v. Hunter Engineering Co., Inc.,
655 F.2d 938 (9th Cir. 1981) ......................................................................................................................11
Stilwell v. Office of Thrift Supervision,
569 F.3d 514 (D.C. Cir. 2009) ..................................................................................................................... 6
Trudeau v. FTC,
456 F.3d 178 (D.C. Cir. 2006) ..................................................................................................................... 2
United States v. Mead Corp.,
533 U.S. 218 (2001) ....................................................................................................................................... 3
Waldon v. Cincinnati Public Schools,
No. 1:12-cv-677 (S.D. Ohio) .....................................................................................................................10
Whitman v. American Trucking Associations,
531 U.S. 457 (2001) .............................................................................................................................. 2, 3, 5
Statutes
5 U.S.C. § 704 ............................................................................................................................................ 2, 3, 5
42 U.S.C. § 2000e-12(a) ..................................................................................................................................... 4
OHIO REV. CODE § 3319.391 ........................................................................................................................10
Regulations

EEOC, Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964,
No. 915.002 (Apr. 25, 2012) ..................................................................................... 1, 2, 3, 5, 6, 8, 9
Other Authorities
Br. of United States as Amicus Curiae, Board of Education of New York City School District v. Gulino,
554 U.S. 917 (2008), No. 07-270 .................................................................................................. 4, 5, 9, 11

EEOC, Questions and Answers About the EEOC’s Enforcement Guidance on the
Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII, http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm ............ 6, 7
Robert A. Anthony, Interpretative Rules, Policy Statements, Guidances, Manuals, and the Like—
Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992) ............................ 3

iii

INTRODUCTION
In the Felon-Hiring Rule, the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) directed employers to violate facially neutral state laws that prohibit employment of
felons and instead to make race-conscious efforts to avoid “disparate impacts.”1 In courts across the
country, public and private employers have been forced to defend themselves against allegations of
racism because they defied EEOC’s mandate and instead followed state law. And through its
administrative investigations and enforcement actions, EEOC has foisted “frivolous” and “groundless”
suits on victims of the Felon-Hiring Rule. EEOC v. Peoplemark, Inc., 732 F.3d 584, 592 (6th Cir.
2013) (emphasis in original); see also id. at 595 (affirming sanctions against EEOC for its abusive
enforcement of the Felon-Hiring Rule).
Now that it is the one on defense, however, the EEOC cannot run away fast enough from
its Rule. Defendants argue that the Felon-Hiring Rule is not worth the paper it’s printed on — even
though it urges other courts to defer to it. See Ex. A. Defendants say that Title VII (rather than the
Felon-Hiring Rule) preempts state law — even though the Department of Justice previously argued
the opposite. See Ex. B. Defendants also say that the Felon-Hiring Rule is nothing new — even
though EEOC’s own webpage says that the 2012 Rule is the Commission’s first attempt to preempt
state law. See Ex. C. Defendants imply that they have not and will not authorize disparate-impact
suits against governmental employers — even though they issued a probable-cause determination
against the Cincinnati Public School System for following no-felon laws like those in Texas. See Ex.
D. And Defendants ask this Court to stay its hand until the parties’ roles are reversed, the EEOC is
on offense, and the damage from its “frivolous” and “groundless” allegations already has been done.
Peoplemark, 732 F.3d at 592.

See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII
of the Civil Rights Act of 1964, No. 915.002, at 24 (Apr. 25, 2012) (“Felon-Hiring Rule,” attached as Exhibit
A to the First Amended Compl. (“FAC”), ECF No. 24 (Mar. 18, 2014)).
1

The Administrative Procedure Act (“APA”) prevents Defendants’ tactics. The State of
Texas already has addressed most of Defendants’ counterarguments; rather than repeat itself, the
State incorporates its prior opposition by reference. Defendants offer a handful of new arguments,
however, which warrant this brief response.
ARGUMENT
I.

THE FELON-HIRING RULE CONSTITUTES FINAL AGENCY ACTION
A.

Defendants’ first “jurisdictional”2 challenge is the easiest to dispatch because the

Felon-Hiring Rule constitutes “final agency action” reviewable under 5 U.S.C. § 704 (“Section 704”).
As explained in the State’s original opposition, EEOC never has contested that the Felon-Hiring
Rule is “final” within the meaning of Section 704. See Ex. A at 16–17; MTD3 at 7 (tacitly conceding
finality). Rather, the Commission’s only argument is that the Rule is not “final agency action,” 5 U.S.C.
§ 704 (emphasis added), because the only reviewable “agency action[s]” are “substantive rules” that
“bind a court” in the sense that they are subject to deference under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843–44 (1984). MTD at 7–13 & n.4; see also id. at 13 n.8
(“An agency document, like the [Felon-Hiring Rule], that expresses a legal view . . . that receives
[only] Skidmore deference[ ] lacks legal consequences and so is not a final agency action.”).
The EEOC is wrong. In Whitman v. American Trucking Associations, 531 U.S. 457 (2001), the
Supreme Court unanimously rejected DOJ’s efforts to limit the kinds of “agency actions” that are
subject to judicial review under Section 704:
We have little trouble concluding that this [“policy” document] constitutes final
agency action subject to review under § [704]. The bite in the phrase “final action”
. . . is not in the word “action,” which is meant to cover comprehensively every manner in which

2 Defendants are wrong to characterize Section 704 as jurisdictional. See, e.g., Reliable Automatic Sprinkler
Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003) (When “judicial review is sought under
the APA . . . the requirement of final agency action is not jurisdictional.”); Center for Auto Safety v. NHTSA,
452 F.3d 798, 805 (D.C. Cir. 2006) (same); Trudeau v. FTC, 456 F.3d 178, 184 (D.C. Cir. 2006) (same).
3

Unless otherwise indicated, “MTD” refers to Defendants’ motion to dismiss the FAC.
2

an agency may exercise its power. It is rather in the word “final,” which requires that the
action under review mark the consummation of the agency’s decisionmaking
process.
Id. at 478 (emphasis added; citation and internal quotation marks omitted); accord Abbott Labs. v.
Gardner, 387 U.S. 136, 140–41 (1967) (“The legislative material elucidating that seminal act [viz., the
APA] manifests a congressional intention that it cover a broad spectrum of administrative actions,
and this Court has echoed that theme by noting that the Administrative Procedure Act’s generous
review provisions must be given a hospitable interpretation.” (footnote, citation, and internal
quotation marks omitted)). That is the exact opposite of holding, as EEOC would have it, that
Section 704 makes reviewable only that small subset of agency actions that qualify for Chevron
deference. Indeed, if EEOC’s view were the law, the Court in United States v. Mead Corp. would have
determined that the Customs Service’s letter rulings did not warrant Chevron deference and then
dismissed for lack of jurisdiction because the letters were not “final agency actions” in the first place.
533 U.S. 218, 226–27, 230–31 (2001); see also, e.g., Sackett v. EPA, 132 S. Ct. 1367 (2012) (finding an
informal adjudication constituted “final agency action” without reference to Chevron, Skidmore, or any
other deference doctrine); Robert A. Anthony, Interpretative Rules, Policy Statements, Guidances, Manuals,
and the Like—Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992) (collecting
scores of examples of final and reviewable “agency actions” that do not warrant Chevron deference).
Defendants cite no case from any court in the history of the Nation that ever has adopted their
Chevron-only conception of Section 704, and this Court should not be the first.
B.

Moreover, for as long as Section 704 has existed, plaintiffs have been presumptively

entitled to challenge the lawfulness of federal agency action, and it is the federal agency’s burden to
prove by “clear and convincing evidence of legislative intention” that Congress intended to override
that presumption. Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986); accord
Abbott Labs., 387 U.S. at 140–41 (collecting cases); Ex. A at 8–9. But the only source of legislative
3

intention that Defendants can find is a provision of Title VII that expressly prohibits the Commission
from adopting substantive rules. See 42 U.S.C. § 2000e-12(a) (EEOC only may issue “procedural
regulations”); General Electric Co. v. Gilbert, 429 U.S. 125, 140–46 (1976) (same). It is circular to claim,
as Defendants do (MTD at 10–11), that the Felon-Hiring Rule is not a substantive rule because
Congress prohibited EEOC from promulgating substantive rules. The whole point of this lawsuit is
that EEOC has violated clear statutory commands from Congress (including Section 2000e-12(a))
and promulgated an unlawful substantive rule; EEOC cannot credibly claim that the very command
it violated somehow forever shelters its unlawful conduct from judicial review.
C.

Finally, Defendants have doubled down on their argument that the State’s “relevant

legal obligation . . . arises out of Title VII,” not the final agency action EEOC took in the FelonHiring Rule. MTD at 8. But in 2008, DOJ told the Supreme Court the opposite; it argued that an
employer “is not liable under Title VII for complying with a facially neutral state licensing regime that
limits the universe of potential employees to those who have complied with the State’s
requirement.” Br. of United States as Amicus Curiae 9, Board of Education of New York City School
District v. Gulino, 554 U.S. 917 (2008) (mem.), No. 07-270 (emphasis added) (“Gulino Amicus,”
attached as Ex. B). In that case, a class of African-American and Latino educators brought a
disparate-impact challenge against a facially neutral state law that prohibited public schools from
employing teachers that failed certain licensing exams.

Echoing almost verbatim the State’s

arguments in this case, DOJ argued in Gulino that compliance with a facially neutral state
employment law — there, a prohibition on unlicensed teachers; here, a prohibition on convicted
felons — always satisfies “business necessity.” Id. at 9–10. Having convinced the Court not to grant
certiorari in Gulino on the ground that Title VII does not vitiate facially neutral hiring qualifications
required by state law, DOJ cannot credibly claim that Title VII vitiates facially neutral hiring
qualifications required by state law. See New Hampshire v. Maine, 532 U.S. 742, 749–55 (2001).
4

The requirements of Title VII do not change based on presidential elections and whether
EEOC is playing offense or defense. Of course, Defendants can change their interpretation of the
statute — as they did when EEOC finally and formally adopted the Felon-Hiring Rule. Compare
Gulino Amicus (Ex. B) at 8–15 (arguing that facially neutral state-law hiring requirements do not
violate Title VII), with Felon-Hiring Rule (FAC Ex. A) at 24 (arguing the exact opposite). But after
doing so, Defendants cannot deny that the Felon-Hiring Rule is carrying their water; nor can they
deny that their administrative efforts to preempt state law constitute “agency action” within the
meaning of Section 704, “which is meant to cover comprehensively every manner in which an
agency may exercise its power.” American Trucking, 531 U.S. at 478.
II.

THE STATE HAS STANDING
In a misguided attempt to make the best of a bad situation, Defendants observe that only

two courts have found that EEOC used “frivolous” and “groundless” allegations to enforce the FelonHiring Rule. See Ex. A at 1–2, 7, 11–12, 15 (discussing sanctions awarded by district court and
affirmed by Sixth Circuit in Peoplemark); MTD at 14–16 (same). Defendants argue that, because
EEOC committed its sanctionable conduct “against someone else,” MTD at 15, Texas won’t be injured
by the Rule until it gets its own, personalized dose of “frivolous” and “groundless” abuse in the future.
Again, that’s wrong. The State already has incurred three separate injuries, each of which is
independently sufficient to create Article III standing.
A.

When the plaintiff is “an object of the [agency’s] action,” “there is ordinarily little

question that the action . . . has caused him injury, and that a judgment preventing . . . the action will
redress it.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992). The State of Texas is “an
object of the [EEOC’s] action.” The State employs hundreds of thousands of people, see FAC
¶¶ 23–30, and as an employer, the State is squarely the “object” of the Felon-Hiring Rule, see, e.g.,
FAC Ex. A at 8–20 (purporting to prohibit all employers from using categorical no-felons policies).
5

Moreover, the State is “seeking to enforce a procedural requirement” — namely, EEOC’s
compliance with the APA’s notice-and-comment provisions — “the disregard of which could impair
a separate concrete interest of theirs” — namely, the State’s interest in following the no-felon
policies mandated by state law. Lujan, 504 U.S. at 572. Indeed, because the APA’s notice-andcomment provisions give the State “a procedural right to protect [its] concrete interests,” it “can
assert that right without meeting all the normal standards for redressability and immediacy.” Id. at
572 n.7. Defendants say nothing about the State’s standing under Lujan.
B.

The State previously explained that the standing inquiry does not turn on the

imminence of future federal enforcement actions under the Felon-Hiring Rule. See Ex. A at 6–7.
That is so because the State is injured now:
The Agency’s standing argument . . . ignores the very idea that it advances to justify
adopting the [ ] rule in the first place: a punitive stick (it says) is necessary to increase
compliance with [the agency’s] regulations. The [agency’s] rule aims to alter truck
drivers’ behavior now to avoid a remedial directive in the future. . . . In the end, it
strikes us as odd that the Agency is arguing that it must have a strict rule now to get
truck drivers to be more compliant with [the agency’s] rules, but at the same time it is
asserting that these rules are not meant to change anyone’s immediate behavior
enough to confer standing to challenge that regulation.
Owner-Operator Indep. Drivers Ass’n v. Federal Motor Carrier Safety Admin., 656 F.3d 580, 586 (7th Cir.
2011); see also Stilwell v. Office of Thrift Supervision, 569 F.3d 514, 518 (D.C. Cir. 2009) (finding it “more
than a little ironic” that a federal agency “would suggest Petitioners lack standing and then, later in
the same brief,” label the petitioner a “prime example” of the “very problem the [r]ule was intended
to address” (internal quotation marks omitted)). Defendants cannot muster a single word (or even a
citation to Owner-Operator or Stilwell ) in response.
C.

In all events, the State is injured whenever a federal agency purports to preempt state

law. See Ex. A at 7–8 (collecting cases). And EEOC’s own website gives the lie to its effort to blame
Title VII, rather than the Felon-Hiring Rule, for preempting Texas’s no-felons policies. Compare
EEOC, Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration
6

of Arrest and Conviction Records in Employment Decisions Under Title VII, http://www.eeoc.
gov/laws/guidance/qa_arrest_conviction.cfm (attached as Ex. C), with MTD at 5. While EEOC
now claims that it “has embraced the same basic view of the law with respect to criminal-record
exclusions for 25 years,” id. at 3, EEOC’s own website advises the public that the Felon-Hiring Rule
represents the first time since Title VII’s enactment that the Commission ever has purported to
preempt States’ facially neutral no-felons policies:
How does the [Felon-Hiring Rule] differ from the EEOC’s earlier policy
statements?
*

*

*

The [Felon-Hiring Rule] says that state and local laws or regulations are preempted
by Title VII if they [cause an unlawful disparate impact].
Ex. C at 2. Indeed, the reader of Defendants’ 117-page appendix will search in vain for any previous
attempt by EEOC to preempt state law, and Defendants point to none.
EEOC’s effort to run away from its own website is consistent with its desire to tell the
Nation’s employers one thing and to tell this Court the exact opposite. But that’s not how the APA
works. If an agency wants to change its position, it must “display awareness that it is changing
position” and “show that there are good reasons for the new policy.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009). The Commission cannot rewrite history, deny the novelty of the
Felon-Hiring Rule’s purportedly preemptive effect, and then claim that no one has standing to
challenge the about-face. Cf. Allina Health Services v. Sebelius, --- F.3d ---, 2014 WL 1284834, at *4
(D.C. Cir. Apr. 1, 2014) (“[A]gencies may not pull a surprise switcheroo on regulated entities.”
(internal quotation marks omitted)).4

Defendants cannot credibly claim that the State does not have standing to sue the Attorney General of
the United States. See MTD at 17 n.12. The State added the Attorney General as a party to the FAC because
EEOC wanted to pass the buck for bringing enforcement actions against state employers. See First MTD,
ECF No. 16, at 5 (Jan. 27, 2014). Standing doctrine does not license the Attorney General to pass it back.
4

7

III.

THE STATE’S CLAIMS ARE RIPE
A.

Defendants save the weakest of their arguments for last. Defendants now claim for

the first time that their Rule does not require “individualized assessments” for all job applicants.
MTD at 21 (citing Felon-Hiring Rule at 14). Again, that’s wrong. The Felon-Hiring Rule says that
an employer may be able to show job-relatedness and business necessity if it can prove — after an
EEOC investigation and to the EEOC’s satisfaction — two things:
The employer develops a targeted screen considering at least the nature of the crime,
the time elapsed, and the nature of the job (the three factors identified by the court
in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy
then provides an opportunity for an individualized assessment for those people identified by the
screen, to determine if the policy as applied is job related and consistent with business necessity.
FAC Ex. A at 2 (emphasis added); accord id. at 14. Then, exhibiting the sort of double talk that
already has become Defendants’ theme in this litigation, EEOC’s very next sentence asserts:
“Although Title VII does not require individualized assessment in all circumstances, the use of a
screen that does not include individualized assessment is more likely to violate Title VII.” Id. at 2;
accord id. at 14.
To the extent those contradictory commands make any sense, they appear to say that some
employer on some set of unarticulated hypothetical facts might be able to convince unidentified
EEOC investigators to exercise their administrative grace and bless an employer’s no-felons policy
even though it does not include individualized assessments. That’s hollow solace both because it
does not save an employer from facing an abusive EEOC investigation and fending off “frivolous”
and “groundless” allegations of racism, Peoplemark, 732 F.3d at 592, and because the Felon-Hiring Rule
does not offer a single example of an employer that can avoid a disparate-impact investigation using
a blanket no-felons policy like the ones pleaded in the FAC. To the contrary, the Felon-Hiring Rule
provides that a governmental employer (“County Y”) is subject to an EEOC investigation and a
finding of disparate-impact liability based on nothing more than its decision to follow state law and
8

“reject[ ] Chris’s application as soon as it learns that he has a felony conviction.” FAC Ex. A at 24.
The Texas Department of Public Safety (“DPS”) likewise follows state law and automatically rejects
applications from convicted felons like “Chris,” FAC ¶ 37; it is far too late for EEOC to rewrite its
Rule and pretend that both “County Y” and DPS get off scot-free.
B.

As ironic as it is for EEOC to defend the Felon-Hiring Rule by abandoning it, none

of its machinations bear on ripeness. This case presents a purely legal question: Whether the State
of Texas can continue to follow its facially neutral blanket no-felons policies (as DOJ previously
argued in Gulino), or whether the State must abandon those facially neutral policies (as EEOC
purports to require for the first time on page 24 of the Felon-Hiring Rule). In Gulino, DOJ agreed
that the question is purely legal and that it has a simple answer: an employer “is not liable under
Title VII for complying with a facially neutral state licensing regime that limits the universe of
potential employees to those who have complied with the State’s requirement.”

Ex. B at 9.

Defendants now want to switch horses and demand answers to lots of factual questions, see MTD at
18–21, but the whole point of this suit is that none of those questions matter. Texas has the right to
categorically bar all felons from employment by the Department of Public Safety — and EEOC has
no right to use “frivolous” and “groundless” allegations of racism to justify abusive investigations and to
demand that DPS carry its burden to prove job-relatedness and business necessity according to
EEOC’s view of the relevant “facts and circumstances.” MTD at 20; Peoplemark, 732 F.3d at 592.
And there can be no doubt about the hardship that would be imposed on the State by
delaying review. DPS already has received one charge of discrimination under the Felon-Hiring
Rule — from a convicted felon named William R. Smith who wanted a job involving access to
sensitive personal information for all 26 million Texans. See FAC Ex. C. If EEOC were as
committed to walking away from its Felon-Hiring Rule as its papers in this Court suggest, it would
have dismissed Mr. Smith’s charge for failure to state a claim. See FAC Ex. D at 1 (allowing EEOC
9

to find that “[t]he facts alleged in the charge fail to sate a claim under any of the statutes enforced by
EEOC.”). But that’s not what EEOC did. Rather, it was “unable to conclude that the information
obtained establishes violations of the statutes,” and it emphasized that “[t]his does not certify that
[DPS] is in compliance with the statutes.” Id. So it gave Mr. Smith the right to sue DPS on his own.
And notwithstanding Defendants’ assurances to this Court, they have, in fact, issued
probable-cause findings against governmental employers who follow no-felons policies required by
state law. Cf. MTD at 6. In 2007, the State of Ohio passed a facially neutral statute that is materially
identical to the ones referenced in the FAC; it prohibited schools from hiring or employing
convicted felons. See OHIO REV. CODE § 3319.391. Consistent with state law, the Cincinnati Public
Schools (“CPS”) fired everyone (regardless of race) who had a disqualifying felony conviction. As a
reward for its faithful implementation of Ohio’s facially neutral law, CPS received the following
condemnation from EEOC:

“The Commission finds that the evidence substantiates that the

Charging Party was discriminated against because of his race as alleged and that Blacks as a class
were discriminated against.” Ex. D at 1. The EEOC referred the charges to DOJ, see id. at 3–4, and
almost five years later, CPS still is defending itself against allegations that it discriminated against
“Blacks as a class” — all because it followed a facially neutral state law that disqualified felons in the
exact same way that Texas law does. See Waldon v. Cincinnati Public Schools, No. 1:12-cv-677 (S.D.
Ohio). It is remarkable that Defendants presumably know about Waldon and nonetheless urge this
Court to dismiss on the theory that cases like Waldon don’t exist.5

See also, e.g., Foxworth v. Pennsylvania State Police, 228 F. App’x 151 (3d Cir. 2007). It is impossible for
anyone other than DOJ or EEOC to know how many other cases like Foxworth and Waldon exist within
Defendants’ administrative files, and the Court apparently cannot count on Defendants to identify them. The
State thinks the answer to that question is irrelevant; but to the extent the Court disagrees and thinks that the
ripeness turns on the contents of Defendants’ administrative files, the State reserves it right to seek
jurisdictional discovery.
5

10

*

*

*

Each of EEOC’s objections is premised on the misconception that the Felon-Hiring Rule is
reviewable only when the Commission says it is. The whole point of the APA, like that of the
Declaratory Judgment Act, is “to relieve potential defendants from the Damoclean threat of
impending litigation which a harassing adversary might brandish, while initiating suit at his leisure or
never.” Societe de Conditionnement v. Hunter Engineering Co., Inc., 655 F.2d 938, 943 (9th Cir. 1981). And
having arrogated to itself the power to preempt States’ facially neutral no-felons policies, EEOC
should not be allowed to dodge judicial review by comparing its Damoclean sword to a “law review
article.” MTD at 14. The Nation’s employers are entitled to know whether they can follow state
law (as DOJ previously argued in Gulino, see Ex. B at 8–15) or whether they instead have to follow
EEOC’s law-review-article-cum-rule. Either way, there is no doubt that the State’s challenge to
EEOC’s final agency action is ripe, and that the State has standing to bring it.
CONCLUSION
Defendants’ motion to dismiss should be denied.

11

Respectfully submitted.
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JONATHAN F. MITCHELL
Solicitor General
/s/ Andrew S. Oldham
ANDREW S. OLDHAM
Deputy Solicitor General
ARTHUR C. D’ANDREA
RICHARD B. FARRER
DUSTIN M. HOWELL
Assistant Solicitors General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
[phone]
Dated: April 18, 2014

12

CERTIFICATE OF SERVICE
I hereby certify that, on April 18, 2014, a true and correct copy of the foregoing was served
by CM/ECF on:
Justin M. Sandberg, Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Mass. Ave. NW, Rm. 7302
Washington, D.C. 20001
[e-mail]

/s/ Andrew S. Oldham
Andrew S. Oldham