Notas del episodio
In 2012, the EEOC issued enforcement guidance on how employers should handle arrest and conviction records. It wasn't a regulation. It never went through notice and comment. It said an across-the-board exclusion of everyone with a record screens people out by race and national origin, and that employers generally can't justify it. Texas barred convicted felons from every job in its Department of Public Safety, and parts of Texas law forbid exactly the individualized assessment the guidance treated as the safe route. So Texas sued the EEOC before anyone could sue Texas.
The government's first answer wasn't that the guidance was correct. It was that nobody could challenge it, because guidance isn't final agency action, and because the EEOC lacks authority to issue binding interpretations of Title VII in the first place. That argument bought almost six years and two trips to the Fifth Circuit.
Gwen and Marc use the case to work through finality: the gate that stands between having an injury and having something to sue over. The test comes from Bennett v. Spear and asks two things, whether the agency is done and whether legal consequences flow from what it did. Agencies have a lot of control over how both questions get answered, because they decide what the document looks like long before any court applies the test.
In this episode:
- APA section 704, and why preliminary steps can be reviewed only alongside a final action
- Bennett v. Spear, the Klamath biological opinion, and Scalia's point that a document labeled advice can still function as a command
- Why the final judgment rule is the same instinct but not the same problem, since a trial court can't decline to ever enter judgment
- FDA warning letters, Holistic Candlers, and why real pressure isn't the same as legal consequences
- Sackett v. EPA: a compliance order, $75,000 a day under the government's reading, and the answer to "efficiency of regulation conquers all"
- Army Corps v. Hawkes, where a determination that ordered nobody to do anything was still final, because a definitive document cuts both ways
- The 2019 executive order conceding that non-binding guidance carries an implicit threat of enforcement, while creating no right to challenge it
- Texas v. EEOC: sovereign interest in a state's own laws, safe harbors, and a document that binds agency staff
- Why the Fifth Circuit held the same document can't be final for a private employer and non-final for a state
- The 2011 Dear Colleague letter on campus sexual assault: six years of nationwide effect, withdrawn before any court reached the merits
- The case against all of this, that guidance binds nobody and an employer who ignores it gives up nothing it had a right to do
- Rescission as the mirror image, including the EEOC's June vote on the 1979 affirmative action guidelines and the section 713 good-faith defense that went with them
Next week: ripeness, exhaustion, and mootness, three more ways of asking when, with the Sacketts again.