The Texas suit against the EEOC over the Commission’s criminal guidance was dismissed for lack of subject matter jurisdiction. U.S. District Judge Sam R. Cummings ruled that Texas requested “a premature adjudication in the abstract without any actual facts and circumstances relating to the employment practices at issue.” Judge Cummings added that “[i]mportantly, Texas does not allege that any enforcement action has been taken against it by the Department of Justice…in relation to the guidance”. He continued, “[b]ased upon this, the court cannot find a ‘substantial likelihood’ that Texas will face future Title VII enforcement proceedings from the Department of Justice arising from the guidance.”
The Court largely adopted the EEOC’s contention that the Commission could not be sued for violating the Administrative Procedures Act (APA). “For the reasons argued by the Defendants, Texas has not shown that the Guidance is a final agency action, that any case or attempt at enforcement of the Guidance has been brought against Texas by the Department of Justice, or that the claims raised herein are not seeking a premature adjudication in the abstract without any actual facts and circumstances relating to the employment practices at issue.”
In its opinion and order, the Court noted that the APA allows for judicial review of final agency actions “only of ‘final agency action for which there is no other adequate remedy in Court.’” And where there is no final agency action there is no subject matter jurisdiction. The Court added that “[a]s 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. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” (citations omitted).
The district court’s opinion is a victory for the EEOC, it may cost the Commission in the long run. In its motion to dismiss, the EEOC acknowledged that “[t]he Guidance is just that – guidance. . . [it] does not have any legal consequences.” EEOC Motion to Dismiss, April 4, 2014, 1-2. The EEOC also said that “no legal consequences flow from the Guidance”, id., 9, and that the guidance is “non-binding”. Id., 8, 12. The Commission also said that “no ‘mandatory language’ addressing the employment policies [arises from the Guidance]. Id., 12.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More