eeoc's motion for summary judgment on judicial review of conciliation efforts

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO.

§ 11-CV-03425

§

BASS PRO OUTDOOR WORLD, LLC, §

and TRACKER MARINE, LLC, §

§

Defendants. §

EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT

AND SUPPORTING MEMORANDUM THAT THE EEOC’S

CONDITION PRECEDENT OF CONCILIATION IS SATISFIED

Case 4:11-cv-03425 Document 137 Filed in TXSD on 07/17/13 of 33

TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................... 1

II. SUMMARY OF ARGUMENT. ......................................................................................... 4

III. NATURE AND STAGE OF THE PROCEEDING. ........................................................ 7

IV. STATEMENT OF THE ISSUES TO BE RULED UPON BY THE

COURT. ............................................................................................................................... 7

V. FACTUAL BACKGROUND. ............................................................................................ 7

VI. LAW AND ARGUMENT................................................................................................... 9

A. SUMMARY JUDGMENT STANDARDS. ........................................................................ 9

B. THE EEOC IS ENTITLED TO PARTIAL SUMMARY JUDGMENT

BECAUSE, UNDER THE APA, THE COMMISSION’S

ADMINISTRATIVE PROCESSES ARE BEYOND THE SCOPE OF

JUDICIAL REVIEW. ................................................................................................... 9

1. Defendants Have No Standing Under the APA. ......................... 9

2. Conciliation is Not a “Final Agency Action for

Which There is No Other Adequate Remedy in a

Court” and is Therefore Not Reviewable. ................................ 13

3. The Conciliation Process is Statutorily

Unreviewable Because It Is Committed to

Agency Discretion by Law.......................................................... 19

VII. CONCLUSION. ................................................................................................................ 25


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TABLE OF AUTHORITIES

Page(s)

CASES

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967) .................................................................................................................18

Bennett v. Spear,

520 U.S. 154 (1997) .............................................................................................................1, 15

Borg-Warner Protective Services Corp. v. EEOC,

245 F.3d 831 (D.C. Cir. 2001) .................................................................................................10

Califano v. Sanders,

430 U.S. 99 (1977) .............................................................................................................14, 18

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ...................................................................................................................9

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) .................................................................................................................14

Del Marcelle v. Brown County Corp.,

680 F.3d 887 (7th Cir. 2012) ...................................................................................................17

EEOC v. Caterpillar,

409 F.3d 831 (7th Cir. 2005) ...................................................................................................17

EEOC v. Klingler Elec. Corp.,

636 F.2d 104 (5th Cir. 1981) .....................................................................................2, 5, 12, 19

Exxon Chemicals Am. v. Chao,

298 F.3d 464 (5th Cir. 2002) .............................................................................................15, 16

Freeman v. Texas Dep’t of Criminal Justice,

369 F.3d 854 (5th Cir. 2004) .....................................................................................................9

FTC v. Standard Oil Co. of Cal.,

449 U.S. 232 (1980) .................................................................................................................22

Georator Corp. v. EEOC,

592 F.2d 765 (4th Cir. 1979) ...................................................................................................17

Giuseppe Bottiglieri Shipping Co. S.P.A. v. United States,

843 F. Supp. 2d 1241 (S.D. Ala. 2012)..............................................................................22, 23


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Gouger v. U.S. Army Corps of Eng’rs,

779 F. Supp. 2d 588 (S.D. Tex. 2011) .....................................................................................10

Gray v. Powell,

314 U.S. 402 (1941) .................................................................................................................19

Heckler v. Chaney,

470 U.S. 821 (1985) ...........................................................................................................23, 24

Herman v. Excel,

37 F. Supp. 2d 1117 (C.D. Ill. 1999) .......................................................................................17

Hinck v. United States,

550 U.S. 501 (2007) .................................................................................................................23

ICC v. Locomotive Eng’rs,

482 U.S. 270 (1987) .................................................................................................................24

Kleindienst v. Mandel,

408 U.S. 753 (1972) .................................................................................................................19

Lincoln v. Vigil,

508 U.S. 182 (1993) .................................................................................................................24

Little v. Liquid Air Corp.,

37 F.3d 1069 (5th Cir. 1994) .....................................................................................................9

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................................................................................11

Lujan v. Nat'l Wildlife Fed'n,

497 U.S. 871 (1990) .................................................................................................................16

Muscogee (Creek) Nation Div. of Hous. v. U.S. Dep’t of Hous. & Urban Dev.,

819 F. Supp. 2d 1225 (E.D. Okla. 2011) .................................................................................23

Newsome v. EEOC,

301 F.3d 227 (5th Cir. 2002) ........................................................................................... Passim

Nimmrich & Prahm Reederei Gmbh & Co. KG MS Sonja v. United States,

CIV.A. H-12-1142, 2012 WL 1641009 (S.D. Tex. May 9, 2012) ...........................................15

Qureshi v. Holder,

663 F.3d 778 (5th Cir. 2011) ...............................................................................................7, 15

Schmidt v. Ivey,

CIV. A. 99-1319, 1999 WL 767448 (E.D. La. Sept. 24, 1999) ...........................................7, 18


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Sierra Club v. Peterson,

228 F.3d 559 (5th Cir. 2000) ...................................................................................................16

State of Texas v. U.S. Dep’t of Energy,

764 F.2d 278 (5th Cir. 1985) ...................................................................................................18

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) .................................................................................................................11

United States v. Lawrence,

179 F.3d. 343 (5th Cir. 1999) ..................................................................................................20

United States v. Denedo,

556 U.S. 904 (2009) ...................................................................................................................6

United States v. Range Prod. Co.,

793 F. Supp. 2d 814 (N.D. Tex. 2011) ....................................................................................16

Watson v. Chief Admin. Law Judge,

10-40411, 2010 WL 4033991 (5th Cir. Oct. 15, 2010) ...........................................................24

Webster v. Doe,

486 U.S. 592 (1988) ...........................................................................................................23, 24

Zheng v. Pogash,

416 F. Supp. 2d 550 (S.D. Tex. 2006) ...............................................................................14, 16

STATUTES

5 U.S.C. § 551(4)-(11) .............................................................................................................11, 14

5 U.S.C. § 551(13) ...............................................................................................................1, 11, 14

5 U.S.C. §§ 701-08 ........................................................................................................................10

5 U.S.C. § 701(a)(2) .............................................................................................................1, 19, 24

5 U.S.C. § 702 ................................................................................................................................10

5 U.S.C. § 704 ........................................................................................................................ Passim

5 U.S.C. § 706(2)(A)................................................................................................................13, 14

8 U.S.C. § 1182(n)(2)(A) ...............................................................................................................24

42 U.S.C. § 2000e-5(b) ........................................................................................................4, 21, 25

42 U.S.C. § 2000e-5(f)(3) ................................................................................................................6

42 U.S.C. § 2000e-5(f)(1) ...................................................................................................... Passim


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RULES AND REGULATIONS

29 C.F.R. § 1601.25 .........................................................................................................................9

Fed. R. Civ. P. 56(c) ........................................................................................................................9


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I. INTRODUCTION.

It is undisputed that the EEOC attempted conciliation in this case, for more than two

years. Therefore, entry of partial summary judgment that the EEOC satisfied that condition

precedent is proper. Whether the EEOC attempted conciliation is judicially reviewable, but how

the EEOC conducted conciliation is not. The constitutional doctrine of separation of powers

prevents judicial review of discretionary decisions by an executive agency, such as the EEOC.

The Administrative Procedure Act (―APA‖) provides limited exceptions, allowing review where

there is a ―final agency action for which there is no other adequate remedy in a court,‖ and where

Congress has not committed the action to agency discretion. 5 U.S.C. § 704; 701(a)(2). The

conciliation process does not meet the requirements for judicial review. Thus, the APA is not

satisfied and subject matter jurisdiction to review the EEOC‘s conciliation efforts does not exist.

First, conciliation is not an ―agency action‖ within the meaning of the APA, which

defines that term as ―the whole or a part of an agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act.‖ 5 U.S.C. § 551(13). Further, even if it were

―agency action,‖ conciliation is not ―final‖ within the meaning of the APA. The Supreme Court

has held:

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. And second, the action must be one by which ―rights or obligations have

been determined,‖ or from which ―legal consequences will flow.‖

Bennett v. Spear, 520 U.S. 154, 177 (1997) (citations omitted). Conciliation did not consummate

the EEOC‘s process and did not fix any legal obligations. Additionally, even a ―final agency

action‖ is unreviewable where it is ―committed to agency discretion by law.‖ 5 U.S.C. §

701(a)(2). Title VII unquestionably committed conciliation to the EEOC‘s discretion by stating

that it may file suit if an ―agreement acceptable to the Commission‖ cannot be reached. 42


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U.S.C. § 2000e-5(f)(1) (―Section 706(f)(1)‖). In short, the APA bars review of conciliation.

Moreover, Title VII gives the courts explicit discretion to order a stay of up to 60 days to

permit ―further efforts of the Commission to obtain voluntary compliance.‖ Section 706(f)(1).1

This is an ―adequate remedy in a court‖ under the APA, such that conciliation is not reviewable.

5 U.S.C. § 704. A court may thus ensure ample opportunity to conciliate, by ordering a stay,

without ever reviewing the facts concerning how the EEOC exercised its discretion in

conciliation. This would avert needless, costly litigation of the conciliation process, as well as

constitutional problems inherent in judicial review of discretionary actions by executive agencies.

In 1803, the Supreme Court settled a then-novel constitutional question, in Marbury v.

Madison, 5 U.S. 137, 170 (1803), establishing definitively that the courts may not direct the

manner in which executive agencies carry out the duties in their discretion:

The province of the court is, solely, to decide on the rights of individuals, not to

enquire how the executive, or executive officers, perform duties in which they

have a discretion. Questions, in their nature political, or which are, by the

constitution and laws, submitted to the executive, can never be made in this court.

Moreover, a court may not grant relief against the United States unless it has waived its

sovereign immunity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255 (1999). Any waiver must be

explicit in the statutory text, and may not be implied. Id. at 261. ―[A] waiver of the

Government‘s sovereign immunity will be strictly construed, in terms of its scope, in favor of the

sovereign‖ — here, the EEOC. Lane v. Pena, 518 U.S. 187, 192 (1996); see also In re Supreme

Beef Processors, Inc., 468 F.3d 248, 253 (5th Cir. 2006). The APA, 5 U.S.C. § 500, et seq., is a

limited waiver of sovereign immunity, but forbids review of conciliation because it is not a ―final

1 Although this provision mentions a stay in the context of actions against state or local respondents, the

Fifth Circuit has indicated that it applies to suits brought by the EEOC against private employers: ―On the facts

before us now, the appropriate remedy, should the district court find that the EEOC has not adequately attempted

conciliation, would be the stay permitted by 42 U.S.C. s 2000e-5(f)(1).‖ EEOC v. Klingler Elec. Corp., 636 F.2d

104, 107 (5th Cir. 1981).


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agency action,‖ and because conciliation is clearly committed to the discretion of the Agency.2

Fifth Circuit precedent applying the APA holds likewise. Newsome v. EEOC, 301 F.3d 227 (5th

Cir. 2002) (holding that manner in which EEOC conducts its investigations is discretionary and

not reviewable). Bass Pro has conceded that any review by the Court of the conciliation process

here would have to pass muster under the APA.3 Because conciliation is unreviewable under the

APA, and the undisputed facts establish that the EEOC did engage in conciliation, the Court

should grant summary judgment that the EEOC‘s condition precedent of conciliation is satisfied.

―To be sure, because the essence of the executive function is the exercise of discretion, a

court transgresses the separation of powers when it dictates that an agency take one particular

action instead of others within its discretionary prerogative,‖ Merrick B. Garland, Deregulation

and Judicial Review, 98 Harv. L. Rev. 505, 564 (1985), which is precisely what Bass Pro asks

the Court to do. To decide whether the EEOC properly conducted conciliation of a charge, a

court would have to (a) evaluate what the EEOC did and did not do, (b) normatively decide how

conciliation should have been conducted, and (c) use its judgment to determine whether the first

(a) comports with the second (b). Such a process inherently requires a court to impermissibly

substitute its judgment for that of the executive agency. Congress recognized this during debates

concerning Title VII, with Senator Javits making the point perhaps most cogently, leading to the

rejection of an amendment seeking to guarantee judicial review of conciliation:

I have never heard of a case in which a court could force anybody to make a

settlement. The court might call them up to the bench and urge strongly that they

settle and might imply that things go wrong if they do not. But to provide that

some court should review the determination that they cannot settle is almost

unheard of. I cannot conceive of how a lawyer could advance such a proposal.

2 If the APA, as a waiver of sovereign immunity, does not apply to a given set of circumstances, then the

Constitutional doctrines of separation of powers and sovereign immunity foreclose judicial review or the grant of

relief. Reference herein that the APA forecloses review means that sovereign immunity and separation of powers

foreclose review, because the APA does not provide an exception to those constitutional principles. 3 ECF No. 118 at 12 of 16.


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118 Cong. Rec. 3806 (Feb. 14, 1972).

II. SUMMARY OF ARGUMENT.

On April 29, 2010, the EEOC issued a ―cause‖ Letter of Determination (―LOD,‖ ECF No.

119-11), stating that it had reasonable cause to conclude that Bass Pro had violated Title VII.4

The EEOC invited Bass Pro to conciliate. After nearly seven months of informal efforts of post-

LOD conciliation, conference, and persuasion, the EEOC issued a letter on November 19, 2010,

notifying Bass Pro that conciliation had failed because an agreement acceptable to the

Commission could not be reached (―notice of conciliation failure‖ or ―NCF,‖ ECF No. 120-3).5

Defendants contend that the EEOC‘s investigative and conciliation processes were

inadequate, and have filed a motion for summary judgment on that basis. See ECF No. 119.6

The only conditions precedent to an action under Section 706 of Title VII are set forth in Section

706(f)(1), the suit-authorizing provision.7 Beyond verifying occurrence of these two events —

passage of thirty days after a charge is filed and the lack of an agreement acceptable to the

Commission — the federal courts are not permitted under the APA to review the sufficiency of

the EEOC‘s administrative processes, including conciliation. Among other requirements, the

APA only permits judicial review of executive agencies where there is a ―final agency action for

4 A cause LOD is a letter in which the EEOC states that it has found reasonable cause to conclude that the

respondent violated the statute. 5 The parties here also engaged in significant informal efforts of conference, conciliation and persuasion

before the LOD issued. Use of anything said or done during the conciliation process without written consent of all

persons concerned is proscribed by Title VII. 42 U.S.C. § 2000e-5(b), Section 706(b). As the EEOC has stated

repeatedly in this action, the Commission does not consent to the use of such evidence. The Court denied the

EEOC‘s motion for a protective order foreclosing the use of such evidence by oral order dated May 14, 2013. As a

result, the EEOC has effectively been forced to refer to evidence of what was said or done during conciliation, in

order to oppose Defendants‘ pending motion for summary judgment. Therefore, the Court has taken away the

EEOC‘s ability to withhold consent under Section 706(b). The EEOC notes its continuing objection and reserves all

of its rights. 6 The EEOC has opposed the motion for summary judgment. See ECF No. 136. 7 ―If within thirty days after a charge is filed with the Commission . . . the Commission has been unable to

secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a

civil action against any respondent not a government, governmental agency, or political subdivision named in the

charge.‖ 42 U.S.C. § 2000e-5(f)(1) (emphasis added).


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which there is no other adequate remedy in a court.‖ 5 U.S.C. § 704. Relevant case law from

the Supreme Court and the Fifth Circuit Court of Appeals make clear that the conciliation

process is not a ―final agency action‖ under the APA. Likewise, Title VII provides an ―adequate

remedy in a court‖ as the Court may order a 60-day stay. Section 706(f)(1).

The APA permits the courts to review the conduct of, and grant relief with respect to, an

executive agency — that is, it grants subject matter jurisdiction — only under very narrow

circumstances, where all of the following conditions are met: (1) the challenging party has been

aggrieved and, therefore, has standing to sue; (2) the challenged conduct fits the definition of an

―agency action‖ (3) the agency action is ―final,‖ viz., (a) consummates the agency‘s process and

(b) finally determines legal rights of the parties involved; (4) there is no other adequate remedy

in court; and (5) the challenged conduct has not been placed in the discretion of the agency. As

shown below, each of these required factors is absent, and summary judgment is warranted. 8

Defendants have, as noted, conceded that the APA applies. Nevertheless, their motion

for summary judgment wrongly assumes that the EEOC‘s administrative processes are subject to

judicial review in the first instance. However, the APA, and Fifth Circuit case law applying it —

in combination with the constitutional limitations — dictate that the EEOC‘s conciliation efforts

are not reviewable. The Fifth Circuit held in Newsome, 301 F.3d at 232-33, that the court was

foreclosed under the APA from reviewing the Agency‘s dismissal of a charge because, inter alia,

8 The EEOC is unaware of any Fifth Circuit decision which has held that conciliation is reviewable in light

of the APA. The EEOC submits that the Court must answer this threshold question before the considering whether

the standard regarding conciliation in EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981) applies. Because

Title VII and the APA foreclose review of the conciliation process, Fifth Circuit case law concerning the sufficiency

of conciliation efforts are not binding or even applicable in this case. As discussed further below, the EEOC

recognizes that the Fifth Circuit has from time to time issued decisions concerning the content and sufficiency of the

Commission‘s conciliation efforts. For example, the Fifth Circuit uttered dicta regarding the conciliation process in

EEOC v. Agro Distribution, LLC, 555 F.3d 462 (5th Cir. 2009). The Agro court granted summary judgment on the

merits and was therefore not required to decide the issue of whether the EEOC‘s conciliation process was proper, or

even reviewable. See also Klingler. In none of those cases, however, did the court address the threshold issue of the

reviewability of the EEOC‘s administrative processes under the APA.


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the court lacked subject matter jurisdiction. The court held that the manner in which the EEOC

investigates charges is in the discretion of the agency and is not reviewable under the APA.

Newsome requires the conclusion that conciliation is also non-reviewable.

The Supreme Court has recognized that subject matter jurisdiction is the power to decide

an issue, irrespective of who the parties are, viz., regardless of whether a court has personal

jurisdiction, whether a plaintiff has a cause of action, or whether the relief is sought by the

defendant. Henderson v. United States, 517 U.S. 654, 671 n. 19, 20 (1996) (subject matter

jurisdiction is the power ―to adjudicate a controversy of a particular kind,‖ as distinguished from

jurisdiction over persons‖). The courts lack subject matter jurisdiction over the issue of how the

EEOC handles conciliation, regardless of whether it is raised by a plaintiff suing the EEOC, or

by an employer whom the EEOC has sued. Id. Existence of subject matter jurisdiction is

distinct from, and independent of, the question whether a party has a private cause of action.

Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010). Because no subject matter

jurisdiction exists, there is no basis for judicial relief regarding the conciliation process.

Justice Kennedy observed that, ―Assuming no constraints or limitations grounded in the

Constitution are implicated, it is for Congress to determine the subject matter jurisdiction of

federal courts.‖ United States v. Denedo, 556 U.S. 904, 912 (2009). Congress made that

determination in Title VII, where there is no subject matter jurisdiction to hear challenges to the

EEOC‘s administrative processes. Rather, the courts may only decide actions brought by

plaintiffs alleging substantive violation of Title VII: ―Each United States district court and each

United States court of a place subject to the jurisdiction of the United States shall have

jurisdiction of actions brought under this subchapter.‖ 42 U.S.C. § 2000e-5(f)(3). ―The power to

issue relief depends upon, rather than enlarges, a court‘s jurisdiction.‖ Denedo, 556 U.S. at 912.

No subject matter jurisdiction exists to permit judicial review of the EEOC‘s exercise of


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discretion in conducting conciliation. See Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011)

(under the APA, ―If there is no final agency action, a federal court lacks subject matter

jurisdiction.‖) (citations and quotation marks omitted).9

III. NATURE AND STAGE OF THE PROCEEDING.

On July 17, 2013, the EEOC filed this motion and its opposition to Defendants‘ pending

motion for summary judgment, which centers on the purported insufficiency of conciliation.

Discovery is currently stayed and the Court has not yet issued a scheduling order. The EEOC

filed on July 16, 2013, a motion for leave to amend the Complaint to name as a defendant

Tracker Marine Retail, LLC rather than Tracker Marine, LLC. See ECF No. 135.

IV. STATEMENT OF THE ISSUES TO BE RULED UPON BY THE COURT.

The issue presented is whether, in light of the APA and applicable constitutional

limitations, there is any genuine dispute of material fact to prevent entry of partial summary

judgment that the EEOC satisfied its condition precedent of conciliation.

V. FACTUAL BACKGROUND.

On February 20, 2007, then-EEOC-Commissioner Stuart Ishimaru filed a charge of

discrimination (―Commissioner‘s Charge‖) against Bass Pro, alleging (inter alia) that it had

discriminated against Blacks in hiring and promotion, in violation of Title VII. See ECF No.

119-4. On May 5, 2008, the EEOC amended the Commissioner‘s Charge, by adding a claim that

Bass Pro discriminated against Hispanics in hiring and retaliated against persons who had

engaged in protected activity. See ECF No. 119-5. Before issuing a merits determination, the

EEOC engaged in settlement talks — informal efforts of conference, conciliation, and persuasion

— with Bass Pro from at least October of 2008 through April of 2010. See Declaration of

9 See also Schmidt v. Ivey, CIV. A. 99-1319, 1999 WL 767448 * 4 (E.D. La. Sept. 24, 1999) (―Therefore,

because the matter presented by Schmidt to this Court is not yet a final agency action, this Court lacks subject matter

(continued . . .)


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Deputy Director Martin Ebel at 2.10

On April 29, 2010, the EEOC issued its LOD regarding the

Amended Commissioner‘s Charge. See ECF No. 119-11. The LOD stated in part that

―Respondent has engaged in a nationwide pattern and practice of discriminating against African

American and/or Black and Hispanic individuals with respect to store hiring for hourly and

salaried positions on the basis of race and national origin.‖ Id. at 4.

The LOD invited Bass Pro to engage in further conciliation. Id. at 4. Thereafter, the

parties engaged in informal attempts at post-LOD conciliation for approximately seven months.

It is undisputed that the parties engaged in conciliation and that they were unable to agree to

terms which were acceptable to the Commission. The EEOC attempted to resolve the

Commissioner‘s Charge in good faith. See Ebel Declaration at ¶¶ 3-17. Deputy Director Ebel

determined, before conciliation ended, that Bass Pro had no honest interest in settlement, that

Bass Pro was attempting in bad faith to use the conciliation process as a means of creating a

defense to litigation, and that further settlement efforts would be futile. See id. at ¶¶ 13-17.

On November 19, 2010, the Commission wrote to BPOW to advise that the conciliation

process had failed because an ―agreement acceptable to the Commission,‖ 42 U.S.C. 2000e-

5(f)(1), could not be reached.11

Since the NCF‘s issuance, Bass Pro has not made or solicited

any offers of compromise. The EEOC Houston District Office‘s Regional Attorney provided

additional information to Bass Pro after issuance of the NCF and encouraged its counsel to make

a settlement offer. See, e.g., ECF No. 120-6. One may reasonably infer that Bass Pro was not

interested in settlement but, rather, preferred to litigate the sufficiency of the EEOC‘s

(. . . continued)

jurisdiction to hear the case under the APA.‖). 10 Exhibit 2 to the EEOC‘s response in opposition to Defendants motion for summary judgment. The Ebel

Declaration is short and is directly relevant to the issue of conciliation. The EEOC respectfully directs the Court to

the entirety of its contents. 11 See ECF No. 120-3, NCF.


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Complaints and, henceforth, its conciliation efforts. Sometimes employers prefer to litigate than

to settle, as is their prerogative.

VI. LAW AND ARGUMENT.

A. SUMMARY JUDGMENT STANDARDS.

Summary judgment is appropriate ―if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.‖ Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). ―[T]he

nonmovant cannot satisfy [its] burden with conclusory allegations, unsubstantiated assertions, or

only a scintilla of evidence.‖ Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d 854, 860

(5th Cir. 2004) (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

B. THE EEOC IS ENTITLED TO PARTIAL SUMMARY JUDGMENT BECAUSE, UNDER

THE APA, THE COMMISSION’S ADMINISTRATIVE PROCESSES ARE BEYOND THE

SCOPE OF JUDICIAL REVIEW.

There are no facts in dispute regarding whether a court can review the adequacy of the

EEOC‘s conciliation process. It is undisputed that the EEOC issued a reasonable cause LOD,

the Commission invited BPOW to conciliate, an agreement acceptable to the Commission could

not be reached, and the EEOC issued a notice of the end of conciliation in accordance with 29

C.F.R. § 1601.25. Accordingly, partial summary judgment in favor of the EEOC is warranted.

1. Defendants Have No Standing Under the APA.

Although the Commission is required to follow certain procedures prior to filing suit

under Section 706 of Title VII, not all administrative actions (or inactions) by the Commission

— or other federal executive agencies — are subject to judicial review. The APA significantly

and expressly circumscribes what types of executive agency actions are subject to judicial


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review.12

A threshold requirement for judicial review under the APA is standing, which is only

held by one who has been aggrieved by a ―final agency action.‖ Bass Pro is not an ―aggrieved‖

person. Section 702 of the APA provides the right of a person to challenge executive agency

action in court: ―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. § 702 (emphasis added). Because Bass Pro has suffered no ―legal

wrong‖ and was not ―adversely affected or aggrieved,‖ it lacks standing under the APA. It is

undisputed that the end of the conciliation process did not fix any legal obligations on Bass Pro.

Defendants were not aggrieved by the EEOC‘s issuance of the LOD or by the

conciliation process. Cf. Borg-Warner Protective Servs. Corp. v. EEOC, 245 F.3d 831, 838 (D.C.

Cir. 2001).13

No legal harm flowed from the manner in which the EEOC conducted conciliation.

Further, standing does not exist here because there is no causal connection between any harm

which Defendants claim to have suffered and the EEOC‘s conduct. Gouger v. U.S. Army Corps

of Eng’rs, 779 F. Supp. 2d 588, 600-01 (S.D. Tex. 2011) (―[A] plaintiff must demonstrate a

causal relationship between the final agency action and the alleged injuries.‖) (citation and

quotation marks omitted). This dispute could not be resolved in conciliation because the parties

were not able to agree on acceptable terms of compromise. That is not the EEOC‘s fault. It is

not necessarily anyone‘s fault when compromise cannot be achieved. The courts are not well-

suited to tell the EEOC, or an employer, on what terms they should or should not be willing to

12 See 5 U.S.C. §§ 701-08. 13 (requiring standing to challenge EEOC administrative actions: ―The short of the matter is that Borg-Warner

is not aggrieved by the existence of the EEOC‘s Policy Statement. It is not suffering any legally cognizable injury

from the Policy Statement, and for that reason the district court properly dismissed its complaint. Given this

disposition, we do not address any questions of comity between this circuit and the Ninth, or the propriety of a

federal court in the District of Columbia enjoining the EEOC from adhering to a litigating position in the Ninth

(continued . . .)


- 11 -

settle a charge, or when they should litigate instead. The legislative history of Title VII shows

that Congress recognized this. See, e.g., 118 Cong. Rec. 3806-07 (Feb. 14, 1972).14

Moreover, there is no ―agency action,‖ which is also a prerequisite to standing. ―Agency

action‖ includes the whole or a part of an agency rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act. 5 U.S.C. § 551(13). Dispositively, the EEOC‘s

investigative and conciliation processes are not a ―rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act,‖ and are therefore not an ―agency action‖ within

the meaning of the APA. See 5 U.S.C. § 551(4)-(11) (defining those terms). Apart from the

second-tier requirement of finality — which is discussed further herein — there is no reviewable

―action‖ here in the first instance.

Without the APA, given constitutional limitations, the Judicial Branch would not be

empowered at all to review administrative actions of the Executive Branch. See, e.g., Summers v.

Earth Island Inst., 555 U.S. 488, 492-93 (2009). The requirement of standing to bring a Case or

Controversy to a court for decision is part-and-parcel of the separation of powers. Without it,

Article III does not permit the courts to decide an issue. In Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992), the Supreme Court identified three ―irreducible‖ elements of

standing.15

None of the three irreducible elements of standing outlined in Lujan exists here.

(. . . continued)

Circuit that the court of appeals for that circuit has sustained.‖) 14 Senator Javits described the idea of court review of whether the EEOC should have settled a case as

―unheard of‖ and ―inconceivable.‖ Id. As Senator Javits advocated, efforts to amend Title VII to provide that

conciliation be judicially reviewable failed. See Section 706(f)(1) (standard remains whether ―an agreement

acceptable to the Commission‖ can be reached, with no provision for court review). 15 (―Over the years, our cases have established that the irreducible constitutional minimum of standing

contains three elements. First, the plaintiff must have suffered an ‗injury in fact‘-an invasion of a legally protected

interest which is (a) concrete and particularized, and (b) ‗actual or imminent, not ―conjectural‖ or ‖hypothetical.‖‘

Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be

‗fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of

some third party not before the court.‘ Third, it must be ‗likely,‘ as opposed to merely ‗speculative,‘ that the injury

will be ‗redressed by a favorable decision.‘‖) (citations omitted).


- 12 -

Moreover, Defendants cannot satisfy the requirement that it is likely, as opposed to

speculative, that any such injury will be redressed by a favorable decision. Id. Judicial review of

the conciliation process, assuming a favorable decision for the employer, traditionally entitles the

employer to nothing more than a stay to permit further negotiations. See EEOC v. Klingler Elec.

Corp., 636 F.2d 104, 107 (5th Cir. 1981); 42 U.S.C. § 2000e-5(f)(1). Our research revealed no

Fifth Circuit case which has affirmed dismissal based on insufficient conciliation. Since the

conciliation process ended with the issuance of the NCF in November of 2010, Defendants have

not made or solicited any offers of compromise. The EEOC has twice offered during this

litigation a stay to discuss settlement, and Bass Pro has rejected those offers out of hand. As

such, a stay order to permit further conciliation talks would be futile and would not meaningfully

change the posture of this case. In short, it is at best speculative, and far from likely, that a

favorable decision for Bass Pro — a stay to allow further negotiations — would have any benefit

here. Accordingly, Defendants lack standing and there is no basis for judicial review.

The EEOC has sovereign immunity from the grant of any relief against it by a court,

unless that immunity is waived. See Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260-61

(1999). As noted, the APA constitutes a limited waiver of sovereign immunity — the conditions

under which the APA permits relief to be granted against the United States must be met, or else

sovereign immunity forecloses that relief.16

Because the requirements of the APA are not met

here, the EEOC has sovereign immunity from the grant of any relief at Defendants‘ behest

regarding conciliation.

As the Supreme Court has stated, ―This Court consistently has given voice to, and has

16 St. Tammany Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 317-18 (5th Cir. 2009)

(―Section 702 of the APA authorizes suits against the United States through a limited waiver of sovereign immunity

for ‗relief other than money damages‘ related to an agency‘s regulatory action. See 5 U.S.C. § 702. . . . However, the

waiver does not apply ‗to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to

(continued . . .)


- 13 -

reaffirmed, the central judgment of the Framers of the Constitution that, within our political

scheme, the separation of governmental powers into three coordinate Branches is essential to the

preservation of liberty.‖ Mistretta v. United States, 488 U.S. 361, 380 (1989). ―Accordingly,‖

the Mistretta Court added, ―as we have noted many times, the Framers ‗built into the tripartite

Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement

of one branch at the expense of the other.‘‖ Id. at 381-82 (citations omitted). The separation of

powers ensures ―that the Judicial Branch neither be assigned nor allowed ‗tasks that are more

properly accomplished by [other] branches,‘ Morrison v. Olson, 487 U.S., at 680-681, 108 S.Ct.,

at 2613.‖ Id. at 383. As Senator Javits noted in the legislative history of Title VII, ―a pendente

lite decision‖ regarding whether the EEOC was able to secure an acceptable settlement ―would

simply hold up the works forever and espouse the proposition that people can be made to settle,

which just is not a judicial proposition.‖ 118 Cong. Rec. 3807 (Feb. 14, 1972).

2. Conciliation is Not a “Final Agency Action for Which There is No

Other Adequate Remedy in a Court” and is Therefore Not

Reviewable.

In addition to the requirement of standing — which Defendants do not meet — the APA

provides that only ―agency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court are subject to judicial review.‖ 5 U.S.C. § 704.17

Notably, even where judicial review is permitted — unlike the case at bar — the standard (as

Bass Pro concedes, ECF No. 118 at 12 of 16) is whether the ―final agency action‖ was ―arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.‖ 5 U.S.C. §

(. . . continued)

agency discretion by law.‘ 5 U.S.C. § 701(a).‖) 17 Because Title VII does not make any EEOC actions reviewable, conciliation is not ―made reviewable by

statute.‖


- 14 -

706(2)(A);18

Zheng v. Pogash, 416 F. Supp. 2d 550, 557 (S.D. Tex. 2006) (citing Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99, 105 (1977). 19

As noted, in the case at bar, there is no ―agency

action ‖ in the first place, much less a reviewable, ―final‖ agency action.20

In Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002), the Fifth Circuit ruled that the

EEOC‘s dismissal of a charge — a more definitive action than the conciliation process here — is

not a final agency action and is not reviewable under the APA.21

The Newsome court held that

there is no subject matter jurisdiction over the EEOC‘s administrative processes, and the EEOC

is entitled to sovereign immunity. Id. at 232-33.22

In Newsome, the plaintiff sued the EEOC,

contending that the Commission‘s handling of her charge was insufficient. Disposing of her

claims, the Fifth Circuit stated:

Newsome also sought relief under the APA. The APA allows for judicial review

of ―[a]gency action made reviewable by statute and final agency action for which

there is no other adequate remedy in a court....‖ 5 U.S.C. § 704. The APA defines

―agency action‖ to include ―the whole or a part of an agency rule, order, license,

sanction, relief, or the equivalent or denial thereof, or failure to act.‖ 5 U.S.C. §

551(13). The Supreme Court has addressed the meaning of ―final agency action‖:

As a general matter, two conditions must be satisfied for agency

18 Section 706(2)(A) of the APA provides, in relevant part, ―The reviewing court shall . . . (2) hold unlawful

and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.‖ 19 Because there is no reviewable final agency action here, the EEOC does not in this motion address in detail

whether its actions were arbitrary, capricious, or abusive of discretion. In the event the Court were to decide that the

EEOC‘s administrative processes are subject to judicial review, the EEOC submits that its opposition to Defendants‘

pending motion for summary judgment, which the Commission is filing this date, establishes that its conduct of

conciliation was not arbitrary, capricious, or an abuse of discretion. 20 The EEOC‘s investigative and conciliation processes are not a ―rule, order, license, sanction, relief, or the

equivalent or denial thereof, or failure to act,‖ and are therefore not an ―agency action‖ within the meaning of the

APA. See 5 U.S.C. § 551(4)-(11). 21 As noted, the holding in Newsome hinged on subject matter jurisdiction. Accordingly, the fact that the

EEOC was the defendant in Newsome is immaterial to the present case. 22 Newsome had brought an earlier lawsuit against the EEOC, involving claims ―virtually identical‖ to those

in the cited Newsome opinion. In the earlier case, the district court had found that it lacked subject matter

jurisdiction over the issue of a challenge to the EEOC‘s administrative processes, and that the EEOC was entitled to

sovereign immunity with respect to such issues. Id.


- 15 -

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.‖

Bennett v. Spear, 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)

(citations omitted). The EEOC‘s dismissal of Newsome‘s complaint did not

determine her rights or have legal consequences. It simply ended the agency‘s

investigation of her charge, and notified Newsome of her right to pursue her claim

in court. Any final determination would occur in court. Therefore, there is no final

agency action here, and no review available under the APA.

Id. at 232 (emphasis added). Thus, the Fifth Circuit held that the EEOC‘s conclusion of an

investigation, and its notifying a party of the right to pursue her claim in court — despite

consummating the EEOC‘s process — did not constitute reviewable ―final agency action.‖23

Contrary to Newsome, Bass Pro seeks review of the entire process by which the EEOC

engaged in conciliation and, moreover, how the EEOC conducted its investigation. Fatally for

Defendants, though, a process is not a cognizable ―agency action,‖ much less a ―final‖ agency

action, susceptible of APA review. The jurisprudence recognizes that parties‘ reaching a

stalemate in settlement negotiations does not present a reviewable final agency action. Nimmrich

& Prahm Reederei Gmbh & Co. KG MS Sonja v. United States, CIV.A. H-12-1142, — F. Supp.

2d. —, 2012 WL 1641009 *4 (S.D. Tex. May 9, 2012).24

This is especially true given that the

EEOC has never foreclosed continued negotiations, even after issuance of the NCF. Id.

As noted, Defendants contend that the EEOC did not engage in the conciliation process

— a series of acts, which spanned years — in good faith. It is undisputed that the EEOC

engaged in the post-LOD conciliation process over some seven months and determined, in its

23 See also Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (denial of asylum not final); Exxon Chems.

Am. v. Chao, 298 F.3d 464, 466-67 (5th Cir. 2002) (remand order is not final because its consequences depend on

future administrative action). 24 (finding that stalemate is not final agency action and noting that Coast Guard remained open to

negotiations, as did the EEOC here).


- 16 -

discretion, that an agreement ―acceptable to the Commission‖ could not be reached. Fatally for

Bass Pro, the Supreme Court and the Fifth Circuit Court of Appeals have confirmed that a

process or series of acts cannot be a ―final agency action‖ reviewable under the APA.25

The failure of conciliation — which was not the consummation of the Agency‘s

administrative processes — was effected by a short letter which does not lend itself to

substantive judicial review. See NCF, ECF No. 120-3. The NCF was merely a notice to Bass

Pro that the seven-month-long post-LOD negotiation process — which had followed a year and a

half of pre-LOD negotiations — was unsuccessful. It is not a reviewable ―final agency action.‖

Cf. United States v. Range Prod. Co., 793 F. Supp. 2d 814, 822 (N.D. Tex. 2011) (final agency

action existed because EPA issued an order, compelling action, violation of which subjected

respondent to sanctions, and from which there was no further administrative appeal).

Even assuming that the EEOC‘s year-and-a-half of pre-LOD conciliation efforts, the

LOD issuance, seven months of post-LOD conciliation efforts, the decision that further

negotiations were futile, and/or the notice of conciliation failure, were to constitute an ―agency

action,‖ those actions did not determine Defendants’ legal rights, nor did they have legal

consequences. They are, therefore, not ―final agency action.‖ See Bennett, 520 U.S. at 177;

Newsome, 301 F.3d at 232.26

Further, unlike the facts in Newsome, the LOD and NCF in the

case at bar did not mark the consummation of the EEOC‘s processes. Accordingly, the EEOC‘s

cause determination in this matter, and its handling of conciliation before referring the case for

25 See, e.g., Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899 (1990) (holding that ―day-to-day operations‖ as

opposed to an ―identifiable action or event‖ are not a reviewable ―final agency action‖); Sierra Club v. Peterson,

228 F.3d 559, 565 (5th Cir. 2000) (―The final action must be an identifiable action or event. Absent a specific and

final agency action, we lack jurisdiction to consider a challenge to agency conduct.‖) (citations and quotation marks

omitted). In Sierra Club, the Fifth Circuit initially upheld the district court‘s grant of an injunction, but the en banc

court reversed, finding no ―final agency action.‖ 26 See also Exxon Chems., supra, 298 F.3d at 466-67; cf. Zheng, 416 F. Supp. 2d 550 (where DHS‘s refusal to

consent for plaintiff to pursue special immigrant juvenile status had concrete legal consequences and was therefore

―final‖).


- 17 -

litigation review, are not ―final agency action.‖ They are, accordingly, not judicially reviewable.

Cf. Georator Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979) (citing Supreme Court cases and

noting that finality requires the fixing of obligations).27

The Seventh Circuit Court of Appeals,

relying on APA cases, has likewise reached the conclusion that the EEOC‘s basis for finding

probable cause for a Title VII violation is not judicially reviewable. EEOC v. Caterpillar, 409

F.3d 831, 832 (7th Cir. 2005).

The Supreme Court has made clear that neither an agency‘s determination that conditions

precedent to its filing suit have been satisfied, nor an agency‘s initiation of enforcement

proceedings, is ―final agency action‖ subject to judicial review. See FTC v. Standard Oil Co. of

Cal., 449 U.S. 232, 241 (1980).28

Like the complaint which the FTC issued in Standard Oil, EEOC Complaints in federal

court merely initiate proceedings and do not fix any obligations. They have no legal effect on

the defendant, except to impose the burden of responding to the suit. ―Although this burden

certainly is substantial, it is different in kind and legal effect from the burdens attending what

heretofore has been considered to be final agency action.‖ Standard Oil, 449 U.S. at 242.

Without question then, under Standard Oil, even the EEOC‘s filing this lawsuit is not ―final

agency action.‖ The LOD and the NCF — or more precisely, the investigative and conciliation

27 (―The Supreme Court had occasion to interpret s 551(6) in ITT v. Electrical Workers (1975) 419 U.S. 428,

95 S.Ct. 600, 42 L.Ed.2d 558 and ruled that for an order to be final, it must have some ‗determinate consequences

for the party to the proceeding.‘ Id. at 443, 95 S.Ct. at 610. The interpretation in that case is in accordance with

established practice. Courts have long considered the touchstone of finality to be the fixing of obligations or legal

relationships. See C. & S. Air Lines v. Waterman Corp. (1948) 333 U.S. 103, 112-13, 68 S.Ct. 431, 92 L.Ed. 568;

Ecee, Inc. v. F.P.C. (5th Cir. 1976) 526 F.2d 1270, 1273, Cert. denied, 429 U.S. 867, 97 S.Ct. 176, 50 L.Ed.2d

147.‖) 28 (―[T]he averment of reason to believe is a prerequisite to a definitive agency position on the question

whether Socal violated the Act, but itself is a determination only that adjudicatory proceedings will commence.‖).

See also Del Marcelle v. Brown County Corp., 680 F.3d 887, 905 (7th Cir. 2012) (―[R]eview is limited to the

agency‘s final decision. Issuing a complaint is not reviewable even though it portends a multi-year adjudicative

process that may cost millions to resolve.‖); Herman v. Excel, 37 F. Supp. 2d 1117, 1120-21 (C.D. Ill. 1999)

(holding that the Secretary of Labor‘s decision to sue the defendant was not final agency action).


- 18 -

processes — are even less ―final‖ and are undoubtedly not reviewable. Corollary to the lack of

finality, the sufficiency of the EEOC‘s conciliation efforts are not ripe, and are therefore not

justiciable. Schmidt v. Ivey, CIV. A. 99-1319, 1999 WL 767448 * 2 (E.D. La. Sept. 24, 1999).29

The factors considered in determining ripeness include ―whether resolution of the issues

will foster, rather than impede, effective enforcement and administration by the agency.‖ State

of Texas v. U.S. Dep’t of Energy, 764 F.2d 278, 283 (5th Cir. 1985). The EEOC attempts to

conciliate on the order of 4,000 to 6,000 charges each year.30

Bass Pro proposes that the courts

are empowered to judicially review whether the EEOC‘s handling of conciliation is proper in all

of many thousands of charges. By logical extension, Bass Pro‘s arguments would subject all of

the EEOC‘s scores of thousands of investigations every year — in 2012, the EEOC resolved

nearly 80,000 charges — to judicial review. Id. Such judicial review of the EEOC‘s exercise of

discretion in discharging its duties would certainly ―impede‖ rather than ―foster‖ the Agency‘s

effective enforcement and administration.

Whether the EEOC‘s issuing a notice of conciliation failure is a ―final agency action‖ has

not often been addressed in the courts, presumably because the EEOC has rarely made this

argument.31

The unambiguous statutory language of the APA and its application under Title VII

29 (―The finality requirement is part of the overall ripeness requirement, which prevents federal courts from

hearing matters before they are fit for adjudication. A court should consider four factors in examining ripeness: ―(1)

whether the issues presented are purely legal; (2) whether the challenged agency action constitutes ‗final agency

action‘ within the meaning of the APA; (3) whether the challenged action has or will have a direct and immediate

impact on the petitioner; and (4) whether resolution of the issues will foster, rather than impede, effective

enforcement and administration by the agency.‖ State of Texas v. U.S. Dep’t of Energy, 764 F.2d 278, 283 (5th Cir.

1985) (designation by Secretary of Energy, under Nuclear Waste Policy Act, of two sites in Texas as potentially

acceptable sites for development as nuclear waste repository was neither final nor ripe for judicial review) (citing

Abbott Laboratories v. Gardner, 387 U.S. 136, 149–54 (1967), overruled on other grounds by Califano v. Sanders,

430 U.S. 99 (1977)). Thus, it follows that any challenged action that is not yet final is also not yet ripe for judicial

review under the Texas test.‖) 30 EEOC All Statutes FY 1997–2012, http://eeoc.gov/eeoc/statistics/enforcement/all.cfm (showing, for

example, 6,878 cause findings in 2002, and 4,207 in 2012). 31 Historically, judicial review of EEOC conciliations has not posed a significant obstacle to the

Commission‘s litigation efforts. More recently, it has become common for employers to routinely challenge

conciliation. Given the vexatious nature of these challenges, and the undue consumption of the courts‘ and parties‘

(continued . . .)


http://eeoc.gov/eeoc/statistics/enforcement/all.cfm

- 19 -

have no less force, however, simply because this argument has not often arisen.

Still further, even if the conciliation process were a ―final agency action,‖ it is not one as

to which there is no ―adequate remedy in a court,‖ which is an additional requirement for

reviewability under Section 704 of the APA (as quoted above). As the Klingler court noted,

Section 706(f)(1) of Title VII states that, ―Upon request, the court may, in its discretion, stay

further proceedings for not more than sixty days pending . . . further efforts of the Commission to

obtain voluntary compliance.‖ 636 F.2d at 107. Thus, without need of any determination

concerning whether conciliation was sufficient, a district court has discretion to stay Title VII

litigation for up to 60 days to allow further negotiations. This is an ―adequate remedy in a court‖

for any alleged insufficiency of the conciliation process. Therefore, Section 704 of the APA

renders the conciliation process unreviewable, even if it were a ―final agency action.‖

3. The Conciliation Process is Statutorily Unreviewable Because It Is

Committed to Agency Discretion by Law.

The EEOC has already shown at least four APA impediments to judicial review of

conciliation: (1) no standing; (2) no agency action; and (3) no final agency action (4) as to which

there is no adequate remedy in court. Beyond these fatal obstacles, the APA explicitly prohibits

judicial review of ―agency action committed to agency discretion by law.‖ 5 U.S.C. § 701(a)(2).

Title VII commits discretion to EEOC by law, stating that it may file suit if an ―agreement

acceptable to the Commission‖ cannot be reached. 42 U.S.C. § 2000e-5(f)(1). The courts have

long recognized that administrative decisions by executive agencies are presumptively non-

reviewable. Gray v. Powell, 314 U.S. 402, 412 (1941); see also Kleindienst v. Mandel, 408 U.S.

(. . . continued)

resources dealing with issues that are not reviewable under the APA, it is beneficial for courts to first confront the

threshold APA issue of reviewability.


- 20 -

753, 769-70 (1972);32

accord United States v. Lawrence, 179 F.3d 343, 349 (5th Cir. 1999)

(courts not empowered to review exercise of prosecutorial discretion); United States v. Ketner,

566 F. Supp. 2d 568, 579 (W.D. Tex. 2008) (prosecutorial discretion derives from Separation of

Powers and is ill-suited to judicial review).33

Informal settlement negotiations have been recognized as committed to the sound

discretion of the executive agency. Action on Safety & Health v. F.T.C., 498 F.2d 757, 761 (D.C.

Cir. 1974) (―When it passed § 554(c) of the APA, Congress clearly intended that the

development of informal consent decree procedures be left to the individual agency's

discretion.‖). Whether to settle a dispute is likewise left to the sound discretion of the executive

agency and, therefore, a court lacks subject matter jurisdiction to review it. Baltimore Gas &

Elec. Co. v. F.E.R.C., 252 F.3d 456, 461-62 (D.C. Cir. 2001).34

The Fifth Circuit noted in Newsome that the manner in which the EEOC conducts its

investigations is within the EEOC‘s discretion and, therefore, unreviewable:

Here, although Title VII provides that the EEOC ―shall make an investigation‖ of

32 In Kleindienst, writing for the majority, which upheld the Attorney General‘s exclusion of an alien with

Marxist views, Justice Blackmun wrote: ―In summary, plenary congressional power to make policies and rules for

exclusion of aliens has long been firmly established. In the case of an alien excludable under s 212(a)(28), Congress

has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this

power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the

exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those

who seek personal communication with the applicant. What First Amendment or other grounds may be available for

attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or

decide in this case.‖ Id. 33 The Ketner court stated, ―This broad discretion derives from the separation of powers doctrine as well as

the fact that prosecutorial decisions are especially ill-suited to judicial review. . . . Such factors as the strength of the

case, the prosecution‘s general deterrence value, the Government‘s enforcement priorities, and the case‘s

relationship to the Government‘s overall enforcement plan are not readily susceptible to the kind of analysis the

courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular

concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by

subjecting the prosecutor‘s motives and decisionmaking to outside inquiry, and may undermine prosecutorial

effectiveness by revealing the Government‘s enforcement policy.‖ Id. (footnotes omitted). 34 (―We conclude, therefore, that FERC's decision to settle its enforcement action against Columbia was

within the agency's nonreviewable discretion. Because we have no jurisdiction under 5 U.S.C. § 701(a)(2) as

illuminated by Heckler v. Chaney, we need not reach FERC's alternative argument that BG&E lacks standing. Nor

need we evaluate the substantive reasonableness of FERC's decision to settle.‖)


- 21 -

a charge filed, see 42 U.S.C. § 2000e-5(b), it does not prescribe the manner for

doing so. The EEOC did investigate Newsome‘s charge, though not to her

satisfaction. However, ―the nature and extent of an EEOC investigation into a

discrimination claim is a matter within the discretion of that agency.‖

301 F.3d at 231 (emphasis added). Similarly, Title VII requires that the EEOC engage in

conciliation, but does not ―prescribe the manner for doing so.‖ It is therefore within the EEOC‘s

discretion and beyond judicial review. Id.

As noted, Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), establishes that the

purpose of conciliation is ―a conciliation agreement acceptable to the Commission,‖ and permits

the Commission to bring a civil action in the absence of such an agreement. (Emphasis added).

As in Newsome, Title VII contains no other guidance about what is necessary to satisfy the

conciliation process. It is difficult — if not impossible — to conceive of statutory language that

more completely delegates a decision to the discretion of an agency than the phrase ―acceptable

to the Commission,‖ especially in the context of ―informal methods of conference, conciliation

and persuasion.‖ This language is in contrast to other, mandatory provisions in Title VII.35

Newsome soundly supports this conclusion.36

By tautology, no one other than the EEOC can

determine what is ―acceptable to the Commission.‖

The legislative history reaffirms there is no standard to govern review and that Congress

35 See, e.g., the following nine provisions, in which the EEOC has italicized Congress‘s use of mandatory

language: Section 705(d) (―The Commission shall have an official seal which shall be judicially noticed.‖); Section

705(e); Section 705(f) (―The principal office of the Commission shall be in or near the District of Columbia, but it

may meet or exercise any or all its powers at any other place. The Commission may establish such regional or State

offices as it deems necessary to accomplish the purpose of this subchapter.‖); Section 705(h); Section 705(j)(1);

Section 705(k)(2); Section 706(b); Section 706(f)(1) (―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.‖); Section 709(b) (―The Commission shall rescind any such agreement whenever it determines

that the agreement no longer serves the interest of effective enforcement of this subchapter.‖) (emphasis added). 36 301 F.3d at 231 (―Here, although Title VII provides that the EEOC ‗shall make an investigation‘ of a

charge filed, see 42 U.S.C. § 2000e-5(b), it does not prescribe the manner for doing so. The EEOC did investigate

Newsome‘s charge, though not to her satisfaction. However, ‗the nature and extent of an EEOC investigation into a

discrimination claim is a matter within the discretion of that agency.‘‖) (citations omitted).


- 22 -

intended to leave it to the EEOC‘s discretion to determine what is acceptable. Senator Javits,

responding to a proposal to require judicial review of conciliation, called judicial review

―inconceivable,‖ stating ―we would substitute the court for the parties insofar as a settlement is

concerned.‖ 118 Cong. Rec. 3807 (Feb. 14, 1972). When Senator Ervin asked how the EEOC

would demonstrate that no conciliation agreement was reached, Senator Javits replied that the

EEOC would simply ―certify [that] for the record.‖ Id. He added:

I do not know what the court would decide or how a court could probe into the

minds of members of the Commission, whether they did or did not, in good faith,

decide that they would or would not work out a conciliation agreement which the

respondent might have wished. . . . If they settle, they do. If not, they do not and

they go to court. This tries to introduce a totally different standard than anything

encompassed by our laws of practice.

Id. The proposed requirement of judicial review of conciliation was ―soundly rejected‖ as

―unworkable.‖ EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980).

The Southern District of Alabama has recognized that the process of negotiating an

outcome satisfactory to an agency is inherently committed by Congress to agency discretion.

Giuseppe Bottiglieri Shipping Co. S.P.A. v. United States, 843 F. Supp. 2d 1241, 1248 (S.D. Ala.

2012).37

Giuseppe is highly instructive: ―A court could not possibly evaluate what is or is not

actually ‗satisfactory‘ to the Coast Guard, save perhaps by cross-examining the Commandant of

the Coast Guard about his own subjective beliefs and perceptions.‖ Id. As there, Title VII here

37 The court stated, ―But § 1908(e) says merely that ‗[c]learance may be granted upon the filing of a bond or

other surety satisfactory to the Secretary.‘ Id. On its face, this language confers enormously broad discretion on the

Coast Guard to decide, in the first place, whether to grant clearance at all (hence the statement that clearance may—

not ‗must‘ or ‗shall‘—be granted) and, if so, on what terms (hence the allowance for bond or other surety

‗satisfactory to the Secretary‘). From the text of § 1908(e), a reviewing court would have no meaningful standard at

all against which to judge whether the Coast Guard’s exercise of its discretion was appropriate or not. Congress did

not require the Coast Guard to accept a bond or other surety in any case. It did not grant an absolute right to a vessel

owner to obtain departure clearance. It did not outline (even in the broadest brushstrokes) the parameters for what

form or amount a bond or other surety should take. It did not impose a reasonableness limitation on the bond or

other surety fixed by the Coast Guard. It did not even specify what a ‗bond or other surety‘ is, or clearly bar the

Coast Guard from including nonfinancial terms in § 1908(e) surety agreements.‖ Id. (footnotes omitted, emphasis

added).


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does not require the EEOC to accept a reasonable offer in conciliation, and does not ―outline

(even in the broadest brushstrokes) the parameters for what form or amount‖ of a settlement

which the Commission should take. Id. In holding that the Coast Guard‘s refusal to settle with

the petitioner was not judicially reviewable, the Giuseppe court cogently stated:

What this Court deems ―satisfactory‖ and what the Coast Guard deems

―satisfactory‖ may be very different things. Congress has given this Court no ―law

to apply‖ and no meaningful standards to review the Coast Guard‘s inherently

subjective determination. It is beyond cavil that ―[t]he court is not empowered to

substitute its judgment for that of the agency ... when the relevant statute leaves

room for a responsible exercise of discretion and may not require particular

substantive results in particular problematic instances.‖ Forsyth County, 633 F.3d

at 1041 (internal citations and quotation marks omitted). Yet that is, in effect,

what petitioners are asking the Court to do.

Id. at 1249. Relevant case law, where the language in question is less discretionary than here,

confirms this self-evident conclusion. For example, the Supreme Court has recognized that a

statute providing that the ―Secretary may abate‖ the assessment of interest is discretionary and

non-reviewable. Hinck v. United States, 550 U.S. 501, 503-04 (2007).38

The Supreme Court has also held that where a statutory provision lacks a meaningful

standard against which to judge the agency‘s exercise of discretion, the agency‘s actions are not

subject to judicial review. See Heckler v. Chaney, 470 U.S. 821, 830 (1985). See also Newsome,

supra, 301 F.3d at 231 (Title VII does not prescribe manner of investigation, which is therefore

committed to agency discretion and nonreviewable). In Webster v. Doe, examining Section

102(c) of the National Security Act, which allows termination of an agency employee whenever

the Director ―shall deem such termination necessary or advisable,‖ the Supreme Court held that

because the provision uses the phrase ―deem necessary‖ as opposed to ―is necessary,‖ it ―fairly

exudes deference to the Director, and appears to us to foreclose the application of any

38 See also Muscogee (Creek) Nation Div. of Hous. v. U.S. Dep’t of Hous. & Urban Dev., 819 F. Supp. 2d

1225, 1230-31 (E.D. Okla. 2011) (discretionary action ―as approved by‖ the Secretary not reviewable).


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meaningful judicial standard of review [and] . . . thus strongly suggests that its implementation

was ‗committed to agency discretion by law.‘‖ Webster v. Doe, 486 U.S. 592, 600 (1988). Like

the statutory provision at issue in Webster, both the language of Section 706(f)(1) of Title VII

(―conciliation agreement acceptable to the Commission‖) and the language of Section 706(b) of

Title VII (―informal methods of conference, conciliation, and persuasion‖) provide no

meaningful standard against which to judge the EEOC‘s exercise of discretion during

conciliation. Rather, they ―exude‖ deference to the EEOC. See also Lincoln v. Vigil, 508 U.S.

182, 191-92 (1993) (agency decision on how to allocate funds is committed to agency

discretion); ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (Section 701(a)(2)

precludes judicial review of an agency‘s refusal to grant reconsideration of an action because of

material error in administrative decision traditionally left to agency discretion). ―As in Heckler,

so here, the agency is far better equipped than the courts to deal with the many variables

involved in the proper ordering of its priorities.‖ 39

The Fifth Circuit has recognized, citing Heckler, that Section 701(a)(2) forecloses

judicial review of actions committed to agency discretion, such as a reasonable cause finding.40

Making a reasonable-cause determination, which the Fifth Circuit held in Watson v. Chief

Admin. Law Judge, 10-40411, 2010 WL 4033991 * 2 (5th Cir. Oct. 15, 2010), cannot be

reviewed under Section 701(a)(2) of the APA, is a process less committed to agency discretion

39 Lincoln, 508 U.S. at 193 (citations and quotations omitted). 40 ―Under the APA, there is no judicial review of agency action when that ‗agency action is committed to

agency discretion by law.‘ 5 U.S.C. § 701(a)(2). The H-1B provisions of the INA instruct the Secretary of Labor (or

her designee) to ‗conduct an investigation‘ into complaints that an employer has failed to abide by the H-1B

provisions regarding the displacement of U.S. workers with H-1B foreign workers ‗if there is reasonable cause to

believe that such a failure ... has occurred.‘ 8 U.S.C. § 1182(n)(2)(A). By the terms of the INA, therefore, only the

Secretary is empowered to make this reasonable-cause assessment. In other words, WHD‘s determination that there

was no reasonable cause to investigate Watson‘s allegations, and the Board‘s affirmance of that determination, are

decisions that are committed to the discretion of a federal agency under the statute and, therefore, are unreviewable.

See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).‖ Watson v. Chief Admin. Law

Judge, 10-40411, 2010 WL 4033991 * 2 (5th Cir. Oct. 15, 2010).


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than determining whether an agreement ―acceptable to the Commission‖ can be reached.

Importantly, Defendants‘ contention that the EEOC‘s conciliation process is judicially

reviewable under the APA necessarily leads to the absurd result that every successful

conciliation, every conciliation failure, and every EEOC investigation, would be justiciable.

Every employer and every Charging Party or claimant in an EEOC investigation could make the

same claim that Defendants do here — the EEOC did not fulfill its duty to conciliate or did not

investigate properly. Notably, the EEOC has a statutory obligation to conciliate in every case

where it finds reasonable cause, and that duty does not apply only to cases where the EEOC files

suit. 42 U.S.C. § 2000e-5(b).41

The principles set forth above establish that there is no support

for the conclusion that the EEOC‘s investigative processes are reviewable.42

VII. CONCLUSION.

It is undisputed that the EEOC offered Bass Pro the opportunity to conciliate the claims

raised in this lawsuit, and that an agreement ―acceptable to the Commission‖ could not be

reached. It is undisputed that the EEOC engaged in conciliation efforts for more than two years

and exchanged numerous monetary and non-monetary offers. The EEOC‘s exercise of

discretion in determining whether an ―agreement acceptable to the Commission‖ has been

reached is not reviewable under the APA. There is no genuine dispute of material fact to save

Defendants from the grant of this motion.

41 This provision states, ―If the Commission determines after such investigation that there is reasonable cause

to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful

employment practice by informal methods of conference, conciliation, and persuasion.‖ Id. Thus, if the court were

to have subject matter jurisdiction under the APA to review the EEOC‘s conciliation process, it would not be limited

to the context of whether the EEOC satisfied a condition precedent. 42 The fact that such a result would subject the courts to an additional 4,000 to 6,000 lawsuits per year,

concerning whether the EEOC had conciliated properly — and to 80,000 suits per year concerning whether the

EEOC resolved a charge properly — underscores the untenable nature of Defendants‘ position.


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Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JAMES L. LEE

Deputy General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

Equal Employment Opportunity

Commission

131 M Street, N.E.

Washington, D.C. 20507

/s/ Gregory T. Juge

GREGORY T. JUGE

Acting Supervisory Trial Attorney

Attorney-in-Charge

La. State Bar # 20890

Admitted Pro Hac Vice

U.S. Equal Employment Opportunity

Commission

1555 Poydras Avenue, Suite 1900

New Orleans, LA 70112

Direct: 504.595.2877

Fax: 504.595.2886

Email: [email protected]

/s/ Robert D. Rose

ROBERT D. ROSE

Supervisory Trial Attorney

Admitted Pro Hac Vice

U.S. Equal Employment Opportunity

Commission

33 Whitehall Street, 5th Floor

New York, New York 10004

Direct: 212.336.3620

Email: [email protected]


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CERTIFICATE OF SERVICE

I certify that counsel for Defendants have been served with the foregoing pleading via the

Court‘s ECF system.

July 17, 2013 /s/ Gregory T. Juge

Date GREGORY T. JUGE


eeoc's motion for summary judgment on judicial review of conciliation efforts

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