In 2012, the EEOC adopted a guidance document stating that employers may not categorically exclude felons from hiring. When a felon who was denied employment with the Texas Department of Public Safety filed a complaint with the EEOC, Texas brought suit seeking to prevent enforcement of the Guidance. This lawsuit, filed on November 4, 2013 in the U.S. District Court for the Northern District of Texas, sought declaratory and injunctive relief under the Declaratory Judgment Act and the Administrative Procedure Act, alleging that by issuing the Guidance, the EEOC had overstepped the authority granted to it by Title VII of the Civil Rights Act. The case was assigned to Judge Sam R. Cummings.
On August 20, 2014, the court granted the EEOC’s motion to dismiss for lack of subject matter jurisdiction. It held that the injury that Texas alleged was merely speculative, since the EEOC could not bring a direct enforcement action against the state, but could only refer the state’s case to the U.S. Attorney General for litigation or issue a right-to-sue letter to an aggrieved person. With only a speculative injury, Texas lacked Article III standing to sue. 2014 WL 4782992. Texas appealed this decision on August 25, 2014.
Nearly two years later, on June 27, 2016, the Fifth Circuit reversed the district court’s judgment: as Texas was the object of enforcement, even indirectly, it had standing to challenge the Guidance. Notably, this ruling was guided by the Supreme Court’s 2016 decision in
U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.Ct. 1807, which had been unavailable to the district court at the time of its 2014 ruling. The Fifth Circuit therefore withdrew the reversal on September 23, 2016, vacated the district court’s original ruling, and sent the case back to the district court for a new judgment in light of
Hawkes. 832 F.3d 327.
Nearly a year later, after the district court had denied an EEOC motion to dismiss, both Texas and the EEOC moved for summary judgment on September 14, 2017. On February 1, 2018 the court granted partial summary judgment to Texas. Holding that the Guidance was a substantive rule, promulgated without notice and the opportunity for comment, the court issued an injunction barring the EEOC from enforcing the Guidance until it had “complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.” The court declined to rule that the EEOC did not have authority to issue substantive rules, and it dismissed the state’s claim for declaratory judgment.
Both the EEOC and Texas appealed the ruling. On September 30, 2019, the Fifth Circuit (Judges Smith, Wiener, and Elrod) modified the district court’s injunction, upheld the modified version, and upheld the dismissal of the state’s other claims. The court held that the Guidance was a substantive regulation that the EEOC had no authority to promulgate. The modified injunction, therefore, enjoined the EEOC and the Attorney General from enforcing the Guidance against Texas, regardless of compliance with APA notice and comment requirements.
Jordan Rossen - 01/17/2014
Cianan Lesley - 02/24/2019
Gregory Marsh - 07/04/2020
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