       Case: 14-10949   Document: 00513567324     Page: 1   Date Filed: 06/27/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                   No. 14-10949                  United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
STATE OF TEXAS,                                                     June 27, 2016
                                                                   Lyle W. Cayce
               Plaintiff - Appellant                                    Clerk

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG,
in her official capacity as Chair of the Equal Employment Opportunity
Commission; LORETTA LYNCH, U. S. ATTORNEY GENERAL,

               Defendants - Appellees




                  Appeal from the United States District Court
                       for the Northern District of Texas


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
        In this declaratory judgment action, the State of Texas appeals the
district court’s order dismissing this action under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction. Texas’s complaint
seeks a declaration that an Enforcement Guidance document from the Equal
Employment Opportunity Commission (“EEOC”) regarding the hiring of
persons with criminal backgrounds violates the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701–06. The EEOC has instigated no legal proceedings
against the State of Texas regarding the subject of felony hiring bans and Title
VII.
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                                 No. 14-10949
      This appeal requires the court to address only the threshold issues of
justiciability and subject matter jurisdiction under both Article III and the
APA. In dismissing Texas’s complaint, the district court held that Texas lacked
Article III standing to bring this action because Texas could not show a
substantial likelihood of harm, noting that although the EEOC had the
statutory authority to investigate Title VII charges against Texas, it had no
authority to bring an enforcement action against the State, that authority
belonging only to the Attorney General of the United States. The district court
further asserted that Texas’s challenge to the EEOC’s Enforcement Guidance
was unripe, and that, in any event, the court lacked subject matter jurisdiction
over the APA claim because the EEOC’s Guidance did not constitute “final
agency action” under 5 U.S.C. § 704.
      Although the parties conflate the issues of standing, ripeness, and “final
agency action” under the APA, Texas essentially argues that it has standing
because it is an object of the challenged EEOC Guidance, and that the
Guidance is a “final agency action” because it creates legal consequences for
Texas and all other employers. Texas asserts that the Guidance implements a
mandatory regulatory framework for employers and EEOC staff to follow, and
that the Guidance purports to preempt Texas state law. In response, the
EEOC argues that the Guidance is purely advisory, and thus does not create
an actual injury sufficient to confer standing. The EEOC further contends
that, because it cannot bring an enforcement action against Texas directly, the
Guidance is not a “final agency action” under the APA.         In making this
argument regarding “final agency action,” the EEOC relies heavily on several
recent decisions from this circuit. The EEOC’s arguments regarding ripeness
overlap with its arguments regarding a lack of finality, as the EEOC
essentially contends that Texas’s challenge to the Guidance is unripe until
Texas faces a more certain threat of enforcement.
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                                  No. 14-10949
      After full briefing and argument, we REVERSE the district court’s
judgment and REMAND this action for further proceedings not inconsistent
with this opinion.
                                        I.
      Although this appeal presents only a jurisdictional issue, this action
ultimately seeks to question whether a bar on hiring felons constitutes an
unlawful employment practice under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Title VII makes it unlawful for an employer:
      (1) to fail or refuse to hire or discharge any individual, or otherwise
      to discriminate against any individual with respect to his
      compensation, terms, conditions, or privileges of employment,
      because of such individual’s race, color, religion, sex, or national
      origin; or
      (2) to limit, segregate, or classify his employees or applicants for
      employment in any way which would deprive or tend to deprive
      any individual of employment opportunities or otherwise
      adversely affect his status as an employee, because of such
      individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a).
      Texas employs hundreds of thousands of people across various state
agencies. Many of these state agencies do not hire convicted felons, felons
convicted of particular categories of felonies, or, in some cases, individuals
convicted of particular misdemeanors. The sources of these bans stem from
both Texas state statutes and longstanding employment policies adopted by
the agencies. According to Texas, its agencies apply the hiring bars neutrally
“to all job applicants, without regard to their races.” Where these exclusions
exist, however, Texas applies them categorically and does not undertake an
individualized assessment into the nature of the prospective employee’s
conviction.



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                                 No. 14-10949
      Although the EEOC enforces Title VII, its enforcement power is limited
in a number of respects that are relevant to this appeal. First, the EEOC has
only the limited regulatory authority “to issue, amend, or rescind suitable
procedural regulations to carry out the provisions of this subchapter.” 42
U.S.C. § 2000e-12(a). In other words, the EEOC cannot promulgate binding
substantive interpretations of Title VII. Second, the EEOC lacks the authority
to file an enforcement action against a state employer directly. See 42 U.S.C.
§ 2000e-5(f)(1). The EEOC does, however, have the power to investigate state
employers for potential Title VII violations. The EEOC refers any case for
which it finds reasonable cause to believe a Title VII violation occurred to the
Attorney General of the United States, who then decides whether to bring
enforcement action against the state. Id.
      Notwithstanding its limitation to only formulating procedural rules, the
EEOC holds and advances the view, as expressed through its policy
statements, that categorical bans on the hiring of felons can constitute a
violation of Title VII when they disproportionately affect blacks and Hispanics.
In 2012, the EEOC issued the “Enforcement Guidance on the Consideration of
Arrest and Conviction Records in Employment Decisions Under Title VII of the
Civil Rights Act of 1964” (the “Enforcement Guidance” or the “Guidance”),
which is at issue in this suit. The Enforcement Guidance provides that
       [w]ith respect to criminal records, there is Title VII disparate
      impact liability where the evidence shows that a covered
      employer’s criminal record screening policy or practice
      disproportionately screens out a Title VII-protected group and the
      employer does not demonstrate that the policy or practice is job
      related for the positions in question and consistent with business
      necessity.
      The Guidance then sets out a framework for addressing both whether a
hiring policy screens out a Title VII-protected group and whether a policy is
“consistent with business necessity.” On the first prong, the Guidance lays out
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                                      No. 14-10949
various criteria that the EEOC will use to determine whether a hiring policy
has a disparate impact, and asserts that an employer’s evidence of a racially
balanced workforce “will not be enough to disprove disparate impact.” On the
second prong, the Guidance addresses the “job-related, business necessity”
defense by offering employers the details of a screening policy that creates a
disparate impact, but nonetheless complies with Title VII because it is
narrowly tailored to serve a legitimate business need.
       Texas filed suit on November 4, 2013, and filed its amended complaint
on March 14, 2014. The amended complaint seeks declaratory and injunctive
relief, alleging that the Enforcement Guidance is, in effect, a binding
substantive interpretation of Title VII and thus violates the APA. The EEOC
moved to dismiss the amended complaint on three jurisdictional grounds: (1)
standing; (2) ripeness; and (3) lack of subject matter jurisdiction under the
APA. The district court granted the motion to dismiss. Although the district
court’s opinion cites all three grounds as independent bases for dismissal, the
district court addressed only in passing the issues of ripeness and jurisdiction
under the APA, and emphasized the lack of Article III standing. Texas filed a
timely appeal.
                                             II.
       First, we consider whether Texas has Article III standing. 1 Texas can
satisfy the constitutional elements of standing by “present[ing] (1) an actual or
imminent injury that is concrete and particularized, (2) fairly traceable to the
defendant’s conduct, and (3) redressable by a judgment in [Texas’s] favor.”



       1 The doctrine of standing is derived from Article III’s “Case[]” or “Controvers[y]”
requirement, and “‘the gist of the question of standing’ is whether [the party invoking
standing has] ‘such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so
largely depended for illumination.’” Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497,
517 (2007) (quoting Baker v. Carr, 369 U.S. 186 (1962)).
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                                   No. 14-10949
Durante ex rel. Durante v. City of Lewisville, Tex., 759 F.3d 514, 517 (5th Cir.
2014). A plaintiff must support each standing element “with the manner and
degree of evidence required at the successive stages of the litigation.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). Thus, at the motion to dismiss
stage, the court accepts as true all well-pleaded allegations concerning
standing. Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d
547, 550 (5th Cir. 2010).       The court reviews de novo a district court’s
determination of standing. Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779
F.3d 258, 264 (5th Cir. 2015). Furthermore, because Texas is bringing this
action in its capacity as a sovereign state being pressured to reevaluate state
law or incur substantial costs, it “is entitled to special solicitude in our standing
analysis.” Massachusetts, 549 U.S. at 520.
      Our discussion here begins with “a basic question that underlies all three
elements of standing—‘whether the plaintiff is [itself] an object’” of the
challenged agency “rule.” Contender Farms, 779 F.3d at 264 (quoting Lujan,
504 U.S. at 561). If a plaintiff can establish that it is an “object” of the agency
regulation at issue, “there is ordinarily little question that the action or
inaction has caused [the plaintiff] injury, and that a judgment preventing or
requiring the action will redress it.” Lujan, 504 U.S. at 561–62. “[W]hether
someone is in fact an object of a regulation is a flexible inquiry rooted in
common sense.” See Contender Farms, 779 F.3d at 265.
       We have no question but that Texas is an “object” of the challenged
Enforcement Guidance, which, as we shall later see more fully, has a
regulatory effect on employers. With the narrow exception of some federal
agency employers, the Guidance purports to apply to all employers (including
state agencies) that conduct criminal background checks as part of their hiring
process. Indeed, the EEOC effectively concedes that Texas—or any other
employer subject to Title VII, for that matter—is an object of the Guidance at
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                                  No. 14-10949
issue, but nevertheless argues that Texas lacks standing to mount a legal
challenge to the Enforcement Guidance because, being purely advisory, the
Guidance does not impose any obligations on Texas or expose it to any legal
consequences. In making this argument, the EEOC erroneously conflates the
question of standing under Article III with the question of “final agency action”
under the APA. Although the two inquiries may engage similar concerns,
constitutional standing analysis is ultimately separate from the question of
whether “final agency action” exists within the meaning of § 704 of the APA.
See, e.g., Holistic Candlers and Consumers Ass’n v. Food & Drug Admin., 664
F.3d 940, 943–45 (D.C. Cir. 2012) (concluding that the plaintiffs established
constitutional standing, but nonetheless finding that the plaintiffs failed to
show “final agency action” under the APA); see also Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (noting that constitutional standing and “final agency
action” are separate inquires).
      As Texas is an object of the Guidance at issue, there is no reason to
deviate from the presumption that Texas has constitutional standing to
challenge it. The district court found that Texas lacked an injury sufficiently
concrete and imminent to confer standing because Texas did not allege that
any enforcement action had been filed against it by the Department of Justice
(“DOJ”). An enforcement action is not, however, the only injury sufficient to
confer constitutional standing upon Texas. Texas alleges several injuries that
it is currently suffering because of the Guidance. First, Texas asserts that the
Guidance imposes a mandatory scheme for employers regarding hiring
policies.   If we take these allegations as true, the Enforcement Guidance
amounts to an increased regulatory burden on Texas as an employer, and “[a]n
increased regulatory burden typically satisfies the injury in fact requirement.”




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                                      No. 14-10949
See Contender Farms, 779 F.3d at 266 (citing Ass’n of Am. R.R.s v. Dep’t of
Transp., 38 F.3d 582 (D.C. Cir. 1994)). 2
       Texas further asserts that the Enforcement Guidance effectively
preempts state laws that bar employee-applicants with certain criminal
histories from being considered for specific jobs, such as school teachers or state
law enforcement officers.         Regardless of whether the Guidance actually
preempts Texas’s laws regarding hiring bans, the Guidance does, at the very
least, force Texas to undergo an analysis, agency by agency, regarding whether
the certainty of EEOC investigations stemming from the Enforcement
Guidance’s standards overrides the State’s interest in not hiring felons for
certain jobs. 3 Putting aside the question of whether these practical injuries
transform the Guidance into “final agency action” for the purposes of APA
jurisdiction, these injuries are sufficient to confer constitutional standing,
especially when considering Texas’s unique position as a sovereign state
defending its existing practices and threatened authority. See Texas v. United
States, 787 F.3d 733, 749 (5th Cir. 2015) (finding, in the context of an appeal
of a denial of a stay, that the government failed to make a showing that Texas
lacked standing to challenge another federal agency’s action when, as a result
of that action, Texas faced a “forced choice between incurring costs and
changing its laws”). 4 As this court has stated before, “being pressured to


       2 The dissent’s argument with respect to Article III standing—casting the Guidance
as merely an expression of the EEOC’s view on Title VII—assumes that the Guidance is not
binding on EEOC staff in the performance of their official duties. As this opinion makes
clear, however, the Guidance shows the opposite. These features of the Guidance are
discussed more in depth infra Part III, as they are also crucial to the discussion of whether
the Guidance is “final agency action” under the APA.
       3 Indeed, the EEOC admitted at oral argument that it intended to investigate

disparate impact complaints against Texas for non-compliance with the Guidance’s criminal
background screening standards.
       4 As stated, the court in Texas v. United States, 797 F.3d 733, affirmed the district

court’s denial of a stay regarding an injunction against the Department of Homeland
Security’s “DAPA” program, which made certain illegal aliens eligible for select federal
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                                        No. 14-10949
change state law constitutes an injury” for the purpose of state standing
analysis. Id.; see also Texas v. United States, 809 F.3d at 156–57 (concluding
that Texas had standing to challenge agency action even when it could avoid
financial harm by changing its own laws and practices, and asserting that
“[s]tates have a sovereign interest in the power to create and enforce a legal
code, and the possibility that a plaintiff could avoid injury by incurring other
costs does not negate standing” (internal quotations and citations omitted)).
       In sum, the district court erred; Texas has constitutional standing to
challenge the Enforcement Guidance under the APA. Texas has standing
because it is an object of the Guidance and, taking the complaint’s allegations
as true, has alleged a sufficient injury in fact, that is that the Guidance forces
Texas to alter its hiring policies or incur significant costs. The court now turns
to whether the EEOC’s Enforcement Guidance is a “final agency action” under
the APA.
                                              III.
       The APA provides that “[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C.



benefits. Texas asserted that, by virtue of becoming eligible for these federal benefits, illegal
aliens would also be entitled to driver’s licenses and state unemployment benefits, which
would raise state costs. The government contended that no injury existed, as DAPA did not,
on its own, require states to issue driver’s licenses or subsidize to account for increased costs.
This court, however, found that the government failed to show that Texas lacked standing,
asserting that “Texas’s forced choice between incurring costs and changing its laws is an
injury because those laws exist for the administration of a state program, not to challenge
federal law, and Texas did not enact them merely to create standing.” Id; see also id. (citing
with approval a Sixth Circuit opinion that held “making the enforcement of an existing state
law more difficult qualifies” as an injury for the purposes of Article III standing (citing State
of Ohio ex rel. Celebrezze v. U.S. Dept. of Transp., 766 F.2d 228, 232–33 (6th Cir. 1985))). This
court has since affirmed the district court’s grant of injunctive relief against DAPA,
concluding, for many of the same reasons, that Texas had standing. See Texas v. United
States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 579 U.S. ___, 2016 WL
3434401 (June 23, 2016).
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                                   No. 14-10949
§ 702. An aggrieved party is entitled to seek this review, however, only if the
agency action is “made reviewable by statute” or, relevant to this appeal,
whether the action is “final agency action for which there is no other adequate
remedy in a court.”      Id. § 704.   In this circuit, the “final agency action”
requirement is a jurisdictional threshold, not a merits inquiry. See Peoples
Nat’l Bank v. Office of the Comptroller of the Currency of the United States, 362
F.3d 333, 336 (5th Cir. 2004) (“If there is no ‘final agency action,’ a federal court
lacks subject matter jurisdiction.” (citing Am. Airlines, Inc. v. Herman, 176
F.3d 283, 287 (5th Cir. 1999))).
       An administrative action is “final agency action” under the APA if: (1)
the agency’s action is the “consummation of the agency’s decisionmaking
process;” and (2) “the action must be one by which rights or obligations have
been determined, or from which legal consequences will flow.” Bennett, 520
U.S. at 177–78 (internal quotation marks omitted). “In evaluating whether a
challenged agency action meets these two conditions, this court is guided by
the Supreme Court’s interpretation of the APA’s finality requirement as
‘flexible’ and ‘pragmatic.’” Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011)
(quoting Abbott Labs. v. Gardener, 387 U.S. 136, 149–50 (1967)). The standard
of review is de novo. Id. at 780. The parties do not appear to contest that the
Enforcement Guidance is the “consummation” of the EEOC’s decisionmaking
process. Thus, this appeal turns on the second prong of the Bennett test, and
the court must determine whether the EEOC Guidance constitutes an agency
action “by which rights or obligations have been determined,” or, in the
alternative, “from which legal consequences will flow.” Bennett, 520 U.S. at
178.
                                         A.
       The EEOC contends that the Guidance does not create “legal
consequences” because the EEOC lacks the authority to bring an enforcement
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                                  No. 14-10949
action against Texas directly; that is, it can only refer a case to the U.S.
Attorney General for prosecution following an EEOC investigation. Texas,
however, asserts that the Guidance creates legal consequences that go beyond
the mere threat of investigation and agency referral.        Specifically, Texas
argues that the Guidance itself creates legal consequences because it binds
EEOC staff to a specific course of action, and asserts that an employer who
adheres to one of the Guidance’s two “safe harbor” provisions will avoid a
finding of liability before the EEOC, and thus will avoid DOJ referral and
enforcement. See Cohen v. United States, 578 F.3d 1, 9 (D.C. Cir. 2009) (“When
‘the language of the [agency] document is such that private parties can rely on
it as a norm or safe harbor by which to shape their actions, it can be binding
as a practical matter.’” (quoting Gen. Elec. Co. v. U.S. Envtl. Prot. Agency, 290
F.3d 377, 383 (D.C. Cir. 2002)), vacated in part on other grounds, 599 F.3d 652
(D.C. Cir. 2010)); see also U.S. Army Corps of Engineers v. Hawkes Co., Inc.,
136 S. Ct. 1807, 1814 (2016) (stating that an agency action creates “legal
consequences” when it “narrows the field of potential plaintiffs and limits the
potential liability” that a regulated entity faces).
      The alleged safe harbor provisions read as follows:
      Two circumstances in which the Commission believes employers
      will consistently meet the “job related and consistent with business
      necessity” defense are as follows:
      • The employer validates the criminal conduct screen for the
        position in question per the Uniform Guidelines on Employee
        Selection Procedures (Uniform Guidelines) standards (if data
        about criminal conduct as related to subsequent work
        performance is available and such validation is possible); or
      • 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 Green factors), and then provides an opportunity
        for an individualized assessment for people excluded by the


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                                      No. 14-10949
           screen to determine whether the policy as applied is job related
           and consistent with business necessity.
The Enforcement Guidance clarifies what sort of individualized assessment is
required by the second provision, 5 providing that such an assessment
       would consist of notice to the individual that he has been screened
       out because of a criminal conviction; an opportunity for the
       individual to demonstrate that the exclusion should not be applied
       due to his particular circumstances; and consideration by the
       employer as to whether the additional information provided by the
       individual warrants an exception to the exclusion . . . .
       Reviewing the parties’ arguments, we find that the Guidance imposes
“legal consequences” in the sense that the EEOC has committed itself to
applying the Guidance when conducting enforcement and referral actions; in
particular, the Guidance suggests that its provisions are to be taken as
conclusive, and offers only two escapes from an adverse EEOC determination.
Moreover, the promulgation of the Guidance is an agency action by which
“rights and obligations” have been determined: the agency has committed itself
to following the Guidance, and has assured employers that if they conform
their conduct to the Guidance’s “safe harbor” requirements, they will not be
deemed to be in violation of Title VII by EEOC investigators.                     Such an
exoneration by EEOC investigators would, in turn, ensure that Texas is
protected from referral of its case to the U.S. Attorney General for prosecution,
and, ultimately, from a potential finding of injunctive and/or monetary liability
in a DOJ-led prosecution.
       In defending the Guidance against the scrutiny of the federal courts, the
EEOC comes down hard and often on the mantra that the Guidance is not final



       5 The parties do not discuss the first safe harbor—the Uniform Guidelines on
Employee Selection Procedures—in any detail. Accordingly, the court also focuses on only
the second purported “safe harbor,” which flows in part from the Eighth Circuit’s analysis in
Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975).
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                                       No. 14-10949
agency action because the EEOC cannot directly bring an enforcement action
against Texas, since only the U.S. Attorney General can enforce Title VII
against a sovereign state. But the Guidance is not simply limited to one or
only a few investigations conducted by the EEOC against Texas or some other
state. Instead, it is a blanket policy that the EEOC has committed itself to
applying with respect to virtually all public and private employers. 6 The
EEOC does not dispute that, as a general matter, agency “guidance” that
cabins an agency’s discretion with respect to enforcement actions can be
considered “final agency action.”          Holding that the Guidance is not “final
agency action” simply because the EEOC cannot bring an enforcement action
against Texas directly would stand for the proposition that whether a blanket
agency rule is “final agency action” turns on the identity of the class of
plaintiffs, instead of the nature, character, and effect of the rule in and of itself.
In other words, to hold that the Guidance is not “final agency action” solely
because of the EEOC’s limited enforcement authority with respect to a state
employer is essentially to hold that there is no rule-related EEOC action
against a state that is reviewable under the APA, even though the EEOC
clearly can subject state employers to harms sufficient to confer Article III
standing. Accordingly, the “flexible” and “pragmatic” approach to assessing
the finality of agency action, see Qureshi, 663 F.3d at 781, leads to the
conclusion that the Guidance is “final agency action” under § 704 of the APA.




       6 Specifically, the Enforcement Guidance unambiguously states that “the [EEOC]
intends this document for use . . . by EEOC staff who are investigating discrimination charges
involving the use of criminal records in employment decisions.” Elsewhere, the Guidance
asserts that “[t]he EEOC enforces Title VII, which prohibits employment discrimination
based on race, color, religion, sex, or national origin.” Thus, in practical terms, the
Enforcement Guidance indicates that the EEOC staff will be bound to follow the Guidance’s
standards when making enforcement-related decisions.
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                                 No. 14-10949
                                       B.
                                       1.
      The EEOC does not dispute that its staff would use the Guidance when
conducting their official duties under Title VII. Nor does it dispute that, if
employers will conform their conduct to reflect the “safe harbors” set forth by
the Guidance, such employers would virtually always escape adverse EEOC
determinations on charges of felony hiring discrimination, and thus effectively
be immunized from a DOJ-backed enforcement action. Still, the EEOC points
to two cases of this court, Luminant Generation Co., L.L.C. v. United States
Environmental Protection Agency, 757 F.3d 439, 442 (5th Cir. 2014), and Belle
Co., L.L.C. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir.
2014), judgment vacated by Kent Recycling Servs., LLC v. U.S. Army Corps of
Engineers, ---S. Ct.---, 2016 WL 3128836 (June 6, 2016), which it argues
preclude a holding that the Enforcement Guidance is “final agency action.”
      We begin our review of this authority by noting that the Supreme Court
recently vacated this court’s judgment in Belle Co., and remanded the case for
this court to reconsider its holding in the light of U.S. Army Corps of Engineers
v. Hawkes Co., Inc., 136 S. Ct. 1807 (2016). In Belle Co., this court had held
that the Army Corps of Engineers’ “affirmative” jurisdictional determination
(“JD”), which asserted that the plaintiff’s property development was subject to
the Clean Water Act’s (“CWA”) permitting requirements, did not create legal
consequences. See Belle Co., 761 F.3d at 394. The court had reasoned that the
agency’s determination of its own authority did not create legal consequences
because the determination merely notified the plaintiff that it was subject to
permitting requirements. As this court then stated, the JD did nothing to alter
the plaintiff’s legal obligations, because “even if [the plaintiff] had never
requested the [determination] and instead had begun to fill [the land], it would
not have been immune to enforcement action by the Corps or EPA.” Id. at 391.
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                                  No. 14-10949
In everyday language, the plaintiff was no worse off after the JD issued than
it was before.
      In Hawkes Co., however, the Supreme Court rejected such reasoning and
effectively reversed our decision in Belle Co. Under nearly identical facts, the
Court concluded that the Corps’ issuance of an “affirmative” JD, which, as in
Belle Co., asserted that a petitioner’s property is subject to the CWA’s
permitting requirements, is a “final agency action” under the APA because it
creates legal consequences. Hawkes Co., 136 S. Ct. at 1814. This is so, the
Supreme Court observed, because if the Corps had issued a “negative” JD—
that is, a JD stating that the plaintiff’s property did not contain “waters of the
United States”—the plaintiff would have been entitled to a five-year period of
protection from any government-brought CWA enforcement action. Id. In
short, the determination to issue the affirmative JD denied the plaintiffs the
benefits that would have flowed from a negative JD, and thus this effect
constituted “legal consequences” to the plaintiffs resulting from the affirmative
JD. Id.
      In reaching this holding, the Supreme Court once again emphasized that
a “pragmatic” approach must be taken when deciding whether an agency
action is “final,” and thus subject to court review:
            This conclusion tracks the “pragmatic” approach we have
      long taken to finality. For example, in Frozen Food Express v.
      United States, 351 U. S. 40 (1956), we considered the finality of an
      order specifying which commodities the Interstate Commerce
      Commission believed were exempt by statute from regulation, and
      which it believed were not. Although the order “had no authority
      except to give notice of how the Commission interpreted” the
      relevant statute, and “would have effect only if and when a
      particular action was brought against a particular carrier,” we
      held    that      the   order   was    nonetheless    immediately
      reviewable. . . . So too here, while no administrative or criminal
      proceeding can be brought for failure to conform to the approved
      JD itself, that final agency determination not only deprives
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                                      No. 14-10949
       respondents of a five-year safe harbor from liability under the Act,
       but warns that if they discharge pollutants onto their property
       without obtaining a permit from the Corps, they do so at the risk
       of significant criminal and civil penalties.
Id. at 1815 (internal citations omitted).
       As the above passage applies to this case, an agency action can create
legal consequences even when the action, in itself, is disassociated with the
filing of an enforcement proceeding, and is not authority for the imposition of
civil or criminal penalties. Instead, “legal consequences” are created whenever
the challenged agency action has the effect of committing the agency itself to a
view of the law that, in turn, forces the plaintiff either to alter its conduct, or
expose itself to potential liability. In Hawkes Co., this agency action was the
issuance of a JD asserting that the plaintiff’s land was subject to the CWA’s
permitting requirements, thus depriving the plaintiff of the agency-created
safe harbor and forcing the plaintiff to submit to the agency’s view or risk
liability. Here, it is the EEOC’s promulgation of the Guidance, which offers
regulated entities a safe harbor from DOJ referral, and thus ultimately from
liability, only if employers alter their hiring policies to comply with the
Guidance’s directives. 7


       7 In a post-argument letter, submitted after the issuance of Hawkes Co. and pursuant
to Fed. R. App. P. 28(j), the government argues—for the first time and without citation to
authority—that the Guidance does not create a safe harbor because the DOJ could always
disagree with a favorable EEOC finding, and thus bring an enforcement action against a
public employer even where the EEOC has first conducted an investigation and concluded
that no Title VII violation has occurred. We disagree, and note that Title VII’s enforcement
provision contemplates EEOC referral as a prerequisite for any DOJ-brought enforcement
action. See 42 U.S.C. 2000e-5(f)(1) (“If the [EEOC] has been unable to secure from the
respondent a conciliation agreement acceptable to the [EEOC], the [EEOC] shall take no
further action and shall refer the case to the Attorney General who may bring a civil action
against such respondent in the appropriate United States district court.”); see also United
States v. South Carolina, 445 F. Supp. 1094, 1110 (D.S.C. 1977) (“It is also clear from the
language of Section [2000e-5] that individual complaints against public employers are to be
brought to the [EEOC] . . . and that the [EEOC] is to proceed with its ‘informal methods of
conference, conciliation and persuasion.’ Only when such methods fail does authority shift to
the Attorney General, who is then empowered to bring a civil action. The Attorney General
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                                      No. 14-10949
       As we earlier noted, the EEOC also points to a second Fifth Circuit
decision as suggesting a finding that the Guidance is not final agency action.
See Luminant, 757 F.3d 439. In Luminant, the plaintiff, an energy company,
received two notices of violation (“NOVs”) from the EPA, asserting that two of
its Texas-based power plants were emitting pollutants in violation of multiple
provisions of the Clean Air Act and the state-level implementation plan. This
court held that a challenged EPA notice of violation (“NOV”) was not “final
agency action” because the relevant federal statute, the Clean Air Act, and not
the NOV, set out the parties’ obligations.              Luminant, 757 F.3d at 442.
Specifically, the court reasoned that “adverse legal consequences will flow only
if the district court determines that Luminant violated” the Clean Air Act. Id.
Phrased differently, the court asserted that, so long as the EPA took no further
action, “Luminant would have no new legal obligation imposed on it and would
have lost no right it otherwise enjoyed.” Id.
       To the extent that the Supreme Court’s decision in Hawkes Co. does not
also undermine the Fifth Circuit’s reasoning in Luminant (principally, the
Supreme Court’s emphasis on a “pragmatic approach” to assessing whether
APA review is appropriate, instead of reliance on formalistic criteria, such as
whether the agency decision itself imposes penalties or is binding on a court),
we find Luminant distinguishable from the instant case. The agency document
in Luminant merely expressed the agency’s opinion about the legality of the
plaintiff’s conduct; it did not, as here, commit the administrative agency to a
specific course of action should the plaintiff fail to comply with the agency’s
view. Furthermore, the agency action in Luminant was limited to a fact-



has no authority to investigate such charges or to bring such actions on his own initiative,
but can only step in to sue public employers with respect to individual complaints when a
case is referred to him by the [EEOC] following the procedures prescribed in [42 U.S.C.
§ 2000e-5].”), aff’d by 434 U.S. 1026 (1978).
                                            17
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                                No. 14-10949
specific situation and a particular violator. In contrast, the Guidance here
provides an analytical framework that applies across the board to all
employers—including the hundreds of state agencies at issue in this suit,
which employ hundreds of thousands of employees—and binds EEOC staff in
later actions. See Barrack Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 48–
49 (D.C. Cir. 2000) (finding that “legal consequences” existed, even when no
enforcement action had yet been threatened against the plaintiff, where the
agency expressed a definitive agency position that applied to all facilities
within its regulatory purview, and had the effect of requiring all regulated
facilities to undertake increased reporting and record-retention obligations or
risk enforcement actions and fines).       Furthermore, as earlier said, the
Guidance’s safe harbor provisions set out rules that employers are to follow if
they wish to avoid legal consequences. Or, stated another way, an employer is
assured protection from agency referral and prosecution—effectively immune
to a government-backed enforcement action—if it conducts itself in the manner
prescribed by the Guidance.
      Finally, other factors distinguish the Guidance from the type of agency
action that this court previously has indicated does not create legal
consequences. For example, the Enforcement Guidance does not simply repeat
the relevant provisions of Title VII.      Instead, the Guidance purports to
interpret authoritatively both the meaning of “disparate impact” in the context
of employer hiring policies regarding criminal convictions and the scope of the
“job related, business necessity” defense. This court has always considered
such a distinction important when deciding whether agency action is “final”
under the APA. See Resident Council of Allen Parkway Vill. v. U.S. Dep’t of
Hous. & Urban Dev., 980 F.2d 1043, 1056 (5th Cir. 1993) (finding that the
Department of Housing and Urban Development’s “internal and informal”
interpretation of the relevant statutory term did not constitute “final agency
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                                   No. 14-10949
action” under the APA, but adding that “[w]ere HUD to formally define the
phrase [at issue] . . . [the plaintiffs] would undoubtedly have the right to
review HUD’s final agency action under § 702 [of the APA]”).
                                         2.
      In addition to relying on this court’s precedents, the EEOC also leans
heavily on AT&T Co. v. Equal Employment Opportunity Commission, 270 F.3d
973 (D.C. Cir. 2001), in asserting that its Enforcement Guidance is not “final
agency action.” In AT&T, the D.C. Circuit considered whether language in the
EEOC’s compliance manual regarding the calculation of pregnancy leave was
“final agency action” under the APA.          The litigation ultimately concerned
whether the plaintiff employer was required to give former employees credit
towards their pensions for time missed due to pregnancy before the passage of
the Pregnancy Discrimination Act of 1979 (the “PDA”). The plaintiff employer
challenged language in the EEOC’s compliance manual that stated that
denying   full   work    credit   for   pre-PDA    pregnancy     leave   was   “past
discrimination” sufficient to constitute a “present violation of Title VII.” Id. at
974–75. The plaintiff employer also challenged several letters that the EEOC
sent to the plaintiff suggesting that its practices violated Title VII.          The
plaintiff argued that the EEOC’s actions, taken as a whole, made clear that it
reached a conclusion concerning the plaintiff employer’s policy, and that that
conclusion was “final agency action” under the APA. Id. at 975.
      The D.C. Circuit disagreed, however, and held that the EEOC’s conduct,
including its statement in the compliance manual, was not “final agency
action” under the APA. Id. at 976–77. In making this determination, the court
noted that the EEOC “has not inflicted any injury upon [the plaintiff employer]
merely by expressing its view of the law—a view that has force only to the
extent the agency can persuade a court to the same conclusion.” Id. at 976.
The court also noted that legal consequences did not necessarily flow from the
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                                   No. 14-10949
EEOC’s actions because “the EEOC is not bound to sue [the plaintiff
employer],” and because the compliance manual “does not say whether, how,
against which companies, or under what circumstances the Commission will
act upon [its] view.” Id.
      The EEOC contends that, like the compliance manual in AT&T,
Enforcement Guidance is not “final agency action” because it has the force of
law only to the extent that a court presiding over any enforcement action
agrees with it. In dwelling on this point, however, the EEOC evades the
obvious differences. Most notably here, the Enforcement Guidance purports to
bind the agency itself. Indeed, the D.C. Circuit recognized in AT&T that, had
the policy guidance at issue in that case intended to bind EEOC staff in their
official conduct, instead of merely expressing the agency’s views with respect
to employers’ actions, the Court would likely have reached a different
conclusion:
      Although there are . . . particular circumstances in which an
      agency’s taking a legal position itself inflicts injury or forces a
      party to change its behavior, such that taking that position may be
      deemed final agency action, . . . this is not such a case. . . . Unlike
      the EPA Guidance at issue in Appalachian Power, the EEOC
      Compliance Manual [at issue in AT&T] does not affect the
      regulated community. Whereas “EPA officials in the field [were]
      bound to apply” the EPA Guidance . . . the EEOC is not bound to
      sue AT&T.
AT&T, 270 F.3d at 975–76 (emphasis added) (internal citations omitted).
      The policy guidance in AT&T provided little to no insight concerning
what the EEOC itself was obligated to do as a result of the agency’s expressed
viewpoint. In contrast, the Guidance here provides an exhaustive procedural
framework for EEOC officials to follow. 8 As explained supra Part III.A, by



      8 Whereas the policy statement in AT&T consisted of little more than a fleeting
sentence and imposed no obligations on EEOC staff, the Enforcement Guidance, which is
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                                      No. 14-10949
binding itself to the Guidance’s standards and directives, the EEOC has
assured employers nation-wide, public and private, that, so long as they
conform their conduct to the Guidance’s “safe harbor” requirements, they will
not be deemed to be in violation of Title VII by EEOC investigators. Thus, they
will avoid referral to the U.S. Attorney General for prosecution. This, in turn,
guarantees employers that they will not face an ultimate finding of monetary
or injunctive liability as a result of a government enforcement action.
       For this reason, the EEOC errs in relying on AT&T to suggest that
agency actions are “final” under the APA only when federal courts are later
bound to give deference to the agency’s interpretation of the statute at issue.
Of course, such a method is one way to show final agency action, but it is only
one way. See, e.g., Hawkes Co., 136 S. Ct. at 1815; Frozen Food, 351 U.S. at
44–45. It is also sufficient that the Enforcement Guidance has the immediate
effect of altering the rights and obligations of the “regulated community” (i.e.,
virtually all state and private employers) by offering them a detailed and
conclusive means to avoid an adverse EEOC finding, and, by extension, agency
referral and a government-backed enforcement action.
                                            C.
       Finally, we address the major prop of the EEOC’s argument: because the
EEOC has only investigatory authority over state employers, no action that
the EEOC might take with respect to state employers can be “final” for the
purposes of review under the APA.             Implicit in this argument is the clear
suggestion that, although EEOC investigations undoubtedly subject employers
to practical harms, no “legal consequences” sufficient to invoke APA




over fifty pages in length, routinely uses mandatory language to convey the conduct expected
of both EEOC staff and employers.
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                                  No. 14-10949
jurisdiction flow from the mere initiation of an investigation into an employer’s
hiring practices.
      We can certainly agree that an agency’s decision to investigate a specific
regulated entity, including the issuance of subpoenas related to that
investigation, normally does not constitute “final agency action.” See Jobs,
Training, and Servs., Inc. v. E. Tex. Council of Gov’ts, 50 F.3d 1318, 1324 (5th
Cir. 1995) (citing Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (5th Cir.
1994)).     Texas is not, however, simply challenging the prospect of an
investigation by the EEOC.        Instead, it is challenging the Enforcement
Guidance itself, which represents the legal standards that the EEOC applies
when deciding when and how to conduct such an investigation, and what
practices may require charges. The Guidance is an agency determination in its
final form and is applicable to all employers nation-wide; it is not an
intermediate step in a specific enforcement action that may or may not lead to
concrete injury. Indeed, when previously concluding that the threat of agency
investigation is not a “legal consequence,” this court has relied heavily on the
notion    that   such   an   investigation   is   merely     an     initial,   relatively
inconsequential step towards a definitive declaration of the petitioner’s legal
rights and obligations regarding the dispute that prompted the investigation.
See Stockman v. Fed. Election Comm’n, 138 F.3d 144, 155 (5th Cir. 1998) (citing
Veldhoen, 35 F.3d at 226). When, as here, the agency action being challenged
is the promulgation of agency rules that mandate such investigations across
the entire regulated community, and provide a specific, detailed “safe harbor”
practice by which the regulated community may avoid adverse agency findings
and eventual DOJ-led prosecution, the agency has already acted definitively
by altering both its own obligations and the rights of the regulated entities it
oversees.


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                                       No. 14-10949
                                             D.
       We repeat ourselves to say that, in publishing the Enforcement Guidance
at issue, the EEOC has enacted a policy statement couched in mandatory
language that is intended to apply to all employers.                 At no point in this
litigation has the EEOC contended that it does not intend to follow the
Guidance to its full extent when carrying out its official duties.                        By
nevertheless arguing that the Guidance cannot be reviewed, the EEOC exploits
the limitations of its enforcement authority, while denying that state agencies
will face legal consequences should they fail to follow the Enforcement
Guidance’s directives.
       The EEOC’s Guidance may well be a valid exercise of its authority. That
conclusion has yet to be determined. To wholly deny judicial review, however,
would be to ignore the presumption of reviewability, and to disregard the
Supreme Court’s instruction that courts should adopt a pragmatic approach
for the purposes of determining reviewability under the APA. Abbott Labs.,
387 U.S. at 140 (stating that there is a presumption that judicial review is
available to one wronged by agency action); see also id. at 149. Accordingly, we
find that the Guidance is “final agency action” for the purposes of the APA. 9




       9 Having determined that the Guidance is “final agency action” under the APA, it
follows naturally that Texas’s APA claim is ripe for review. See Jobs, Training & Servs., 50
F.3d at 1325 (asserting that the ripeness doctrine overlaps with the finality requirement);
see also John Doe, Inc. v. Drug Enforcement Agency, 484 F.3d 561, 567 (D.C. Cir. 2007)
(“Finality, ripeness, and exhaustion of administrative remedies are related, overlapping
doctrines that are analytically but not categorically distinct.”). Texas’s challenge to the
EEOC Guidance is a purely legal one, and as such it is unnecessary to wait for further factual
development before rendering a decision. See Roark & Hardee LP v. City of Austin, 522 F.3d
533, 545 (5th Cir. 2008). Furthermore, Texas faces significant hardships should the court
decline to consider its claims. Taking Texas’s allegations as true, it must change its hiring
practices to ensure compliance with the Guidance, or face the numerous adverse effects
already set forth.
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                                 No. 14-10949
                                      IV.
      To conclude, the district court erred in dismissing this action on
justiciability and subject matter jurisdiction grounds.     The district court’s
judgment is therefore REVERSED, and this action is REMANDED to the
district court for further proceedings not inconsistent with this opinion.
                                                REVERSED and REMANDED.




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                                 No. 14-10949
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
      I am not persuaded that this controversy meets Article III’s demand of
ripeness, injury, and adversarial engagement. Nor am I persuaded that we
have been called upon to review an action of the EEOC with sufficient finality
to support our jurisdiction. Texas seeks to challenge an EEOC “Enforcement
Guidance” document that the EEOC cannot enforce against it.                 This
description should be enough to resolve this case. I must dissent.
                                       I.
      On April 25, 2012, the EEOC issued the “Enforcement Guidance on the
Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964.” The Guidance sets forth the
EEOC’s legal position that “[a]n 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.” The Guidance’s principal observation is that blanket bans
on hiring individuals with criminal records—or “criminal record exclusions”—
have a disparate impact on minorities. As the majority recounts, the Guidance
thus warns that blanket “criminal record exclusions” may violate Title VII
unless they are “job related and consistent with business necessity.”
      On November 4, 2013, the State of Texas filed a complaint seeking “[a]
declaratory judgment holding unlawful and setting aside” the Guidance; and
“[a] declaration and injunction that” the Department of Justice—the sole
government body that can sue a state employer—“may not issue right-to-sue
letters to persons seeking to sue the State of Texas or any of its constituent
agencies or state officials based on the interpretation of Title VII that appears
in” the Guidance. The EEOC moved to dismiss for lack of jurisdiction. The
district court granted this motion, concluding that (1) Texas lacks standing to


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                                      No. 14-10949
challenge the Guidance; (2) the Guidance is not a “final agency action”; and (3)
Texas’s challenge to the Guidance is not ripe. Texas appealed to this Court.
                                             II.
       This Court lacks subject-matter jurisdiction if Texas does not have
standing to challenge the Guidance or if its challenge is not ripe. So, too, if the
Guidance is not a “final agency action.” 1 Texas has the burden to establish
that all three of these distinct but complementary requirements have been
satisfied. 2
                                             A.
       The history of Title VII and the creation of the EEOC provides critical
context for this case. Congress enacted Title VII of the Civil Rights Act of 1964
to prohibit employers from “fail[ing] or refus[ing] to hire . . . any individual . . .
because of . . . race, color, religion, sex, or national origin.” 3               The Act
“created . . . the Equal Employment Opportunity Commission,” headed by five
commissioners, who are “appointed by the President by and with the advice
and consent of the Senate” and “not more than three of whom shall be members
of the same political party.” 4 The EEOC’s original powers of enforcement did
not include the power to sue. On the contrary, the Commission was allowed
only to “make an investigation of” charges of discrimination and use informal
methods of “conference, conciliation, and persuasion” to bring employers into
compliance. 5 If these efforts failed, the Act authorized private suits “by the
person claiming to be aggrieved,” 6 but not by the EEOC.




       See Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011).
       1

       See, e.g., Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012).
       2
     3 Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 253, 255 (codified as

amended at 42 U.S.C. § 2000e-2(a)(1)).
     4 Id., 78 Stat. 258 (codified as amended at 42 U.S.C. § 2000e-4(a)).
     5 Id., 78 Stat. 258-59 (codified as amended at 42 U.S.C. § 2000e-5(b)).
     6 Id., 78 Stat. 260 (codified as amended at 42 U.S.C. § 2000e-5(f)(1)).

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                                       No. 14-10949
       Congress, however, did authorize the Attorney General to file suit upon
“reasonable cause to believe that any person or group of persons is engaged in
a pattern or practice of resistance to the full enjoyment of any of the rights
secured by [Title VII].” 7 In enacting this provision, Congress intended to
“provide the government with a swift and effective weapon to vindicate
the broad public interest in eliminating unlawful practices, at a level which
may or may not address the grievances of particular individuals.” 8 Between
1964 and 1972, the Attorney General filed numerous pattern or practice suits
pursuant to this authority. 9 Yet over those eight years, “Congress became
convinced . . . that the ‘failure to grant the EEOC meaningful enforcement
powers [had proved] to be a major flaw in the operation of Title VII.’” 10 In 1972,
Congress gave the EEOC the power to bring two types of suits against private
employers alleged to have violated Title VII. 11 First, “[i]f . . . the Commission
[is] unable to secure from the respondent a conciliation agreement acceptable
to the Commission, the Commission may bring a civil action against [the]
respondent.” 12 And second, “[e]ffective two years after the date of enactment,”
Congress transferred the Attorney General’s power to bring pattern or practice
suits to the EEOC. 13
       Notably, Congress did not give the EEOC the power to sue state agencies
or employers. Rather, “[i]n the case of a respondent which is a government,



       7  Id., 78 Stat. 261 (codified as amended at 42 U.S.C. § 2000e-6(a)).
       8  United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 843 (5th Cir. 1975).
        9 118 Cong. Rec. 4080 (1972) (remarks of Sen. Williams); cf., e.g., United States v.

Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971); United States ex rel. Clark v. Dillon
Supply Co., 429 F.2d 800 (4th Cir. 1970).
        10 Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 325 (1980) (quoting S. Rep. No. 92-

415, at 4 (1971)).
        11 Id. at 325-26.
        12 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, 105

(codified as amended at 42 U.S.C. § 2000e-5(f)(1)).
        13 Id., 86 Stat. 107 (codified as amended at 42 U.S.C. § 2000e-6(c)).

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                                     No. 14-10949
governmental agency, or political subdivision, if the Commission has been
unable to secure from the respondent a conciliation agreement acceptable to
the Commission, the Commission shall take no further action and shall refer
the case to the Attorney General who may bring a civil action against such
respondent in the appropriate United States district court.” 14 Although this
considered judgment by Congress does not resolve all of the issues presented
here, the allocution of authority between the Attorney General and the EEOC
speaks directly to the Article III questions of standing and ripeness, as well as
the finality of the Guidance. Any challenge to the employment practices of a
state employer can proceed only upon decision of the Attorney General, not the
EEOC. This not only underscores the lack of a concrete controversy between
the State of Texas and the EEOC, but also accents the reality that this case
touches on sensitive political decisions bearing on the essence of dual
sovereignty.    In service of this fault line of shared sovereignty, Congress
confined the power to sue states for violations of Title VII to a Cabinet-level
member of the incumbent administration, a delicate call upon its powers under
the Commerce Clause and Section 5 of the Fourteenth Amendment. 15 This
structure must signify in our analysis.
                                            B.
      Turning first to Article III, the want of an adversarial engagement here
is palpable. “Under Article III, § 2, of the Constitution, the federal courts have
jurisdiction over this dispute between appellant[] and appellee[] only if it is a
‘case’ or ‘controversy.’     This is a ‘bedrock requirement.’” 16          Indeed, “[n]o



      14  Id., 86 Stat. 105 (codified as amended at 42 U.S.C. § 2000e-5(f)(1)).
      15  See S. Rep. No. 92-415, at 25 (“This enforcement scheme provides the necessary
power to achieve results without the needless friction that might be created by a Federal
executive agency issuing orders to sovereign States and their localities.”).
       16 Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Valley Forge Christian Coll. v.

Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)).
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                                        No. 14-10949
principle is more fundamental to the judiciary’s proper role in our system of
government than the constitutional limitation of federal-court jurisdiction to
actual cases or controversies.” 17           This principle finds expression in the
intertwined doctrines of standing and ripeness. Both require dismissal in this
case.
        “[T]he ‘irreducible constitutional minimum’ of standing consists of three
elements. The plaintiff must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” 18 While the Guidance is a
cloud on the political horizon, it inflicts no injury upon Texas. The majority
concludes otherwise because Texas is the “object” of the EEOC’s action. 19 But
that assertion cannot be sustained. There is no doubt that the EEOC would
prefer that Texas follow the Guidance, but it lacks the authority to bring a suit
enforcing that preference. 20 The EEOC may refer a case against Texas to the
Attorney General, but the Attorney General has no obligation to adhere to the
Guidance. 21 And if the Attorney General or a private citizen sues Texas, the
Guidance is entitled to Skidmore deference, 22 at best. 23 Indeed, as Texas fully
concedes, the EEOC does not have the authority to issue a binding




        17 Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)).
        18 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citation omitted) (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
        19 See Lujan, 504 U.S. at 561-62.
        20 See 42 U.S.C. § 2000e-5(f)(1).
        21 See id. (“In the case of a respondent which is a government, governmental agency,

or political subdivision, if the Commission has been unable to secure from the respondent a
conciliation agreement acceptable to the Commission, the Commission shall take no further
action and shall refer the case to the Attorney General who may bring a civil action against
such respondent in the appropriate United States district court.” (emphasis added)).
        22 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 n.6 (2002).
        23 Cf. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533-34 (2013) (concluding

that the EEOC’s view was not entitled to any deference).
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                                       No. 14-10949
interpretation of Title VII. 24 As a result, Texas’s reliance on cases involving
preemption is misplaced. The Guidance is not a substantive regulation—it can
neither dictate the outcome of a Title VII action nor preempt state law.
       The facts here are also distinguishable from this Court’s recent decision
in Texas v. United States. 25 In Texas v. United States, a divided panel of this
Court concluded that Texas had standing because it faced a “forced choice
between incurring costs and changing its laws.” 26 Texas faces here no such
choice—there is no financial penalty if it declines to change its hiring policies
beyond the expense of a court proceeding, an expense it has elected to incur.
In sum, Texas is left with the argument that the EEOC has injured it by
expressing its view of the law. As the D.C. Circuit has observed, “an injury
typically is not caused when an agency merely expresses its view of what the
law requires of a party, even if that view is adverse to the party.” 27 This is the
“typical[]” case.
                                              C.
       Texas’s challenge is also not ripe. At least since Abbott Laboratories v.
Gardner, the Supreme Court has recognized that a party may raise a pre-
enforcement challenge to an agency action. 28                    “That being said, pre-
enforcement review is still subject to the constraints of the ripeness test.” 29 “In
deciding whether an agency’s decision is, or is not, ripe for judicial review, the
Court has examined both the ‘fitness of the issues for judicial decision’ and the




       24 See Texas’s First Amended Complaint at 3 (citing 42 U.S.C. § 2000e-12(a)).
       25 787 F.3d 733 (5th Cir. 2015), aff’d by an equally divided court, --- S. Ct. ----, 2016
WL 3434401 (U.S. June 23, 2016).
       26 Id. at 749.
       27 See AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001).
       28 387 U.S. 136 (1967).
       29 Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 413 F.3d 479, 482 (5th Cir.

2005).
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                                       No. 14-10949
‘hardship to the parties of withholding court consideration.’” 30 Generally, a
challenge is fit for judicial decision if it “presents an issue that is ‘purely legal,
and will not be clarified by further factual development.’” 31 That the issues
here would be significantly aided “by further factual development” is an
understatement. Texas has raised an abstract challenge that is unmoored
from a specific “criminal record exclusion,” or even a class of “criminal record
exclusions.” To be sure, Texas sprinkles some facts into its briefing, but only
to illustrate the alleged absurdity of the EEOC’s position—not to demonstrate
that a particular “criminal conduct exclusion” complies with Title VII. Such a
theoretical challenge is not fit for judicial decision. Indeed, the Supreme Court
has repeatedly warned that “[d]etermination of the scope . . . of legislation in
advance of its immediate adverse effect in the context of a concrete case
involves too remote and abstract an inquiry for the proper exercise of the
judicial function.” 32
       Texas responds that the facts are irrelevant because “the whole point of
this suit is that the [Guidance] is facially invalid — irrespective of the factual
circumstances in which EEOC or DOJ might invoke it.” 33 That is, Texas
argues that this Court need not consider a specific “criminal record exclusion”
because “the EEOC does not have legal authority to regulate employers’
refusals to hire felons.” 34 But the Guidance does not just address the disparate
impact of the “blanket no felon-hiring policies” discussed in Texas’s briefing—


       30  Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998) (quoting Abbott Labs.,
387 U.S. at 149).
        31 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (quoting Thomas

v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985)); see also Roark & Hardee L.P.
v. City of Austin, 522 F.3d 533, 546 (5th Cir. 2008).
        32 Int’l Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224

(1954); accord Texas v. United States, 523 U.S. 296, 301 (1998); Renne v. Geary, 501 U.S. 312,
323 (1991).
        33 Texas’s Opening Brief at 43-44.
        34 Texas’s Reply Brief at 19.

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                                        No. 14-10949
it also covers a significant amount of less controversial terrain. The Guidance,
for instance, contains an entire section about “Disparate Treatment
Discrimination and Criminal Records.” In this section, the Guidance explains
that “there is Title VII disparate treatment liability where the evidence shows
that a covered employer rejected an African American applicant based on his
criminal record but hired a similarly situated White applicant with a
comparable criminal record” and provides several clarifying examples. Unless
Texas disagrees with this elementary legal proposition, it cannot seriously
contend that the Guidance is invalid “irrespective of the factual circumstances
in which EEOC or DOJ might invoke it.” The validity of the Guidance must
hinge on the specific circumstances in which it is deployed.
       Moreover, the Supreme Court rejected an argument almost identical to
the one raised here in a previous dispute between the State of Texas and the
Federal Government. In Texas v. United States, Texas argued that its pre-
enforcement challenge to the Voting Rights Act was fit for review because it
“asked [the Court] to hold that under no circumstances” was the relevant
conduct subject to the Act. 35          The Supreme Court declined to accept this
invitation, explaining that it did “not have sufficient confidence in [its] powers
of imagination to affirm such a negative.” The Court’s reasoning is just as
applicable here: “The operation of the statute is better grasped when viewed in
light of a particular application.” 36 Regardless, Texas cannot show that it will
suffer any hardship if this Court withholds adjudication. 37 The Guidance does
not injure Texas in any way. If Texas is certain that its view of Title VII is



       35 523 U.S. at 301.
       36 Id.
       37 See Lopez v. City of Houston, 617 F.3d 336, 342 (5th Cir. 2010) (“[E]ven where an

issue presents purely legal questions, the plaintiff must show some hardship in order to
establish ripeness.” (alteration in original) (quoting Cent. & S.W. Servs., Inc. v. EPA, 220 F.3d
683, 690 (5th Cir. 2000))).
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                                       No. 14-10949
correct, it faces no hardship in waiting for its day of vindication.
       Texas’s challenge is also not ripe for the independent reason that it is
uncertain whether the Guidance will ever be enforced against it.                         Even
assuming the EEOC intends to sue every private employer who does not
comply with the Guidance, it can only refer a case against the State of Texas
to the Attorney General. The possibility that the Attorney General may act on
that referral—and because of the non-binding Guidance—is not enough to
make Texas’s challenge ripe. As the Supreme Court has oft-repeated, “[a]
claim is not ripe for adjudication if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’” 38 In this respect,
the facts of this case are far different from those of Abbott Laboratories, where
the regulations under review had a “direct and immediate” impact on the
plaintiffs and enforcement was a virtual certainty. 39 Rather, this Court faces
facts similar to those presented in one of its companion cases, Toilet Goods
Ass’n v. Gardner. 40        In Toilet Goods, the Court declined to review the
challenged regulation because it “ha[d] no idea whether or when” it would be
enforced. 41 The Court explained that it “believe[d] that judicial appraisal [was]
likely to stand on a much surer footing in the context of a specific application
of this regulation than could be the case in the framework of the generalized
challenge made here.” 42 This Court must abide by this seminal precedent.




       38  Texas, 523 U.S. at 300 (quoting Thomas v. Union Carbide Agric. Prods. Co., 473
U.S. 568, 580-581, (1985)).
        39 387 U.S. 136, 152-53 (1967); see also Tex. Indep. Producers & Royalty Owners Ass’n

v. EPA, 413 F.3d 479, 482 (5th Cir. 2005) (“If there is certainty that the law will be enforced,
then it is irrelevant that the law has yet to be enforced, unless the Government demonstrates
that the statute itself specifically demonstrates that Congress has prohibited pre-
enforcement review.” (emphasis added) (citing Abbott Labs., 387 U.S. at 141)).
        40 387 U.S. 158 (1967).
        41 Id. at 163; see also Texas, 523 U.S. at 300.
        42 Toilet Goods, 387 U.S. at 164.

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                                      No. 14-10949
                                             D.
       Apart from these two constitutional hurdles, I am not persuaded that the
Guidance is a “final agency action.” “As a general matter, two conditions must
be satisfied for agency action to be ‘final’: First, the action must mark the
‘consummation’ of the agency’s decisionmaking process—it must not be of a
merely tentative or interlocutory nature.” 43 “And second, the action must be
one by which ‘rights or obligations have been determined,’ or from which ‘legal
consequences will flow.’” 44 In describing the legal position the EEOC will take
in enforcement proceedings, the Guidance delineates “[t]wo circumstances in
which the Commission believes employers will consistently meet the ‘job
related and consistent with business necessity’ defense”:
       • The employer validates the criminal conduct screen for the
       position in question per the Uniform Guidelines on Employee
       Selection Procedures (Uniform Guidelines) standards (if data
       about criminal conduct as related to subsequent work performance
       is available and such validation is possible); or
       • The employer develops a targeted screen considering at least the
       nature of the crime, the time elapsed, and the nature of the job
       . . . , and then provides an opportunity for an individualized
       assessment for people excluded by the screen to determine
       whether the policy as applied is job related and consistent with
       business necessity.
Texas argues that these “[t]wo circumstances” create legally binding “safe
harbors.” That is, Texas urges that the EEOC has effectively promised not to
bring an enforcement action against any employer with a “criminal record
exclusion” that fits within one of the “[t]wo circumstances.”                  The EEOC
responds that the Guidance merely expresses its view of the law and carries



       43 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citation omitted) (quoting Chi. & S.
Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)).
       44 Id. at 178 (quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget

Transatlantic, 400 U.S. 62, 71 (1970)).
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                                      No. 14-10949
no legal consequences. The majority embraces Texas’s position, relying heavily
on the Supreme Court’s recent decision in United States Army Corps of
Engineers v. Hawkes Co. 45
      In Hawkes, the Court considered whether an “approved jurisdictional
determination,” or JD, issued by the U.S. Army Corps of Engineers qualifies
as a final agency action.          The Corps issues JDs in conjunction with the
enforcement of the Clean Water Act, which prohibits inter alia the discharge
of pollutants into “the waters of the United States” without a permit. A JD
advises a property owner whether her piece of property contains “waters of the
United States.”      It is “binding for five years on both the Corps and the
Environmental Protection Agency, which share authority to enforce the Clean
Water Act.” As the Court noted, this is significant because “[t]he Clean Water
Act imposes substantial criminal and civil penalties for discharging any
pollutant into waters covered by the Act without a permit from the Corps.” 46
On these facts, the Court readily concluded that a JD is a final agency action.
The Court explained that a “negative JD”—that is, “an approved JD stating
that a party’s property does not contain jurisdictional waters”—“creat[es] a
five-year safe harbor” from Clean Water Act enforcement. “In other words, a
negative JD both narrows the field of potential plaintiffs and limits the
potential liability a landowner faces for discharging pollutants without a
permit.”    And from that, “[i]t follows that affirmative JDs have legal
consequences as well: They represent the denial of the safe harbor that
negative JDs afford.” 47




      45 136 S. Ct. 1807 (2016).
      46 Id. at 1811-12.
      47 Id. at 1814.

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                                        No. 14-10949
       The facts here are far different. A negative JD is a legally binding
promise that carries weighty consequences for the affected party. 48                         The
Guidance does not carry any consequences for any party. To the contrary, it
merely expresses the EEOC’s view of the law, or the position that it may take
in future enforcement actions. Texas insists that the Guidance goes further
and creates two legally binding “safe harbors.” But the Guidance contains no
definitive or mandatory language. Instead, it sets out “[t]wo circumstances in
which the Commission believes employers will consistently meet the ‘job
related and consistent with business necessity’ defense.” This mushy language
cannot fairly be read as a promise to do anything. And even if it creates some
level of practical pressure, this does not mean that it imposes legal
consequences. 49
       There is, however, a more fundamental distinction between Hawkes and
the instant case. When the Corps issues a JD, it informs a specific party that
it is or is not subject to the Clean Water Act. There is a direct engagement
between the two parties concerning a specific tract of land that produces a
binding determination with salient and valuable consequences. In this case,
the EEOC has not taken any action against Texas—it has issued a general
statement of its view of the law. As the D.C. Circuit stated in a similar case:
              In these circumstances, to allow [Texas] to institute
       litigation with the Commission over the lawfulness of its policy
       would be to preempt the Commission’s discretion to allocate its
       resources as between this issue and this employer, as opposed to
       other issues and other employers, as well as its ability to choose
       the venue for its litigation, as the statute contemplates. See 42


       48 See id. (citing 33 C.F.R. pt. 331, App. C; EPA, Memorandum of Agreement:
Exemptions Under Section 404(F) of the Clean Water Act § VI–A (1989)).
       49 See Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 811

(D.C. Cir. 2006) (“The flaw in appellants’ argument is that the ‘consequences’ to which they
allude are practical, not legal. . . . But de facto compliance is not enough to establish that the
guidelines have had legal consequences.”).
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                                      No. 14-10949
      U.S.C. § 2000e-5(f)(1), (f)(3). For the court to find here final agency
      action subject to judicial review, therefore, would disrupt the
      administrative process in a manner clearly at odds with the
      contemplation of the Congress. 50
These concerns are compounded by Congress’s decision that the Attorney
General—not the EEOC—should determine whether and when to act against
a state employer. Hence, allowing Texas to proceed not only deprives the
EEOC of resources that are designated for enforcement actions against private
employers—it interferes with the discretion of one of the highest-ranking
members of the Executive Branch. “For the court to find here final agency
action subject to judicial review, therefore, would disrupt the administrative
process” in more ways than one.

                                            III.
     The majority’s opinion is not without purchase, but some basic principles
bear repeating:
             The Constitution allots the nation’s judicial power to the
      federal courts. Unless these courts respect the limits of that
      unique authority, they intrude upon powers vested in the
      legislative or executive branches. Judicial adherence to the
      doctrine of the separation of powers preserves the courts for the
      decision of issues, between litigants, capable of effective
      determination. Judicial exposition upon political proposals is
      permissible only when necessary to decide definite issues between
      litigants. When the courts act continually within these
      constitutionally imposed boundaries of their power, their ability to
      perform their function as a balance for the people’s protection
      against abuse of power by other branches of government remains
      unimpaired. Should the courts seek to expand their power so as to
      bring under their jurisdiction ill defined controversies over




      50   AT&T Co. v. EEOC, 270 F.3d 973, 976-77 (D.C. Cir. 2001).
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                                        No. 14-10949
       constitutional issues, they would become the organ of political
       theories. 51
This case forcefully demonstrates the importance of respecting the limits of
Article III. The State of Texas seeks to challenge an “Enforcement Guidance”
that the EEOC lacks the ability to enforce against it. This Court should not
allow such a nakedly political suit to proceed. That the Attorney General of a
State may wish to jumpstart a political fight with the incumbent political party
is far from unusual. It is also without surprise that the State’s suit here
extends an invitation to the judiciary to join the fray. But this is an invitation
we must decline. With its “cases” and “controversies” command, Article III
walls in and walls out. Chief Justice Marshall taught that we have a duty to
decide—but that includes a duty to not do so in the absence of jurisdiction. 52
In dismissing this suit, the district court abided by this duty, a decision which,
with due respect to the Texas Attorney General and to our differing roles, if
overturned would breach these aged walls. There the matter ought lie until a
case or controversy triggers our duty to resolve Texas’s not insubstantial
challenge to the EEOC’s view of the law. Until then, the political arena is the
appropriate field of contest. I respectfully dissent.




       51  United Public Workers of America (C.I.O) v. Mitchell, 330 U.S. 75, 90-91 (1947); see
also Roark & Hardee L.P. v. City of Austin, 522 F.3d 533, 541-42 (5th Cir. 2008) (“The many
doctrines that have fleshed out that ‘actual controversy’ requirement—standing, mootness,
ripeness, political question, and the like—are ‘founded in concern about the proper—and
properly limited—role of the courts in a democratic society.’” (quoting Allen v. Wright, 468
U.S. 737, 750 (1984))).
        52 See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (“It is most true that this

Court will not take jurisdiction if it should not: but it is equally true, that it must take
jurisdiction if it should.”).
                                              38
