employer's opposition to eeoc's motion for summary judgment on judicial review of...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. Case No: 4:11-cv-03425 Honorable Keith P. Ellison BASS PRO OUTDOOR WORLD, LLC, and TRACKER MARINE, LLC, Defendants.

_______________________________________/

DEFENDANTS’ OPPOSITION TO THE EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT THAT THE EEOC’S CONDITION PRECEDENT TO SUIT OF

CONCILIATION IS SATISFIED

Michael W. Johnston Georgia Bar No. 396720 Admission No. 1160289 Attorney-in-Charge Samuel M. Matchett Georgia Bar No. 476340 Admission No. 1276688 Carolyn Cain Burch Georgia Bar No. 094515 Admission No. 573550 KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 572 4600 Facsimile: (404) 572-5138 [email protected] [email protected] [email protected]

William R. Burns Texas Bar No. 24055236 Admission No. 705514 KING & SPALDING LLP 1100 Louisiana Suite 4000 Houston, Texas 77002 Telephone: (713) 276-7333 Facsimile: (713) 751-3290 [email protected] ATTORNEYS FOR DEFENDANTS

Case 4:11-cv-03425 Document 143 Filed in TXSD on 08/14/13 of 23

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TABLE OF CONTENTS

INTRODUCTION..........................................................................................................................1

NATURE AND STAGE OF THE PROCEEDINGS ..................................................................3

ISSUES PRESENTED ...................................................................................................................3

LEGAL STANDARD ....................................................................................................................4

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

ARGUMENT ..................................................................................................................................6

I. Federal Courts Have Power to Enforce Title VII’s Requirement that the EEOC Conciliate in Good Faith. ........................................................................................................6

A. Title VII Obligates the EEOC to Conciliate in Good Faith. ..........................................6

B. Adjudicating the Statutory Conciliation Requirement Does Not Violate the Separation of Powers. ........................................................................................................7

II. The EEOC’s Convoluted Constitutional, Jurisdictional, and Administrative-Law Arguments Are Meritless. .......................................................................................................8

A. The Administrative Procedure Act is Inapplicable to This Case. .................................8

B. When it Sues as a Plaintiff, the EEOC Has No Sovereign Immunity From the Defendants’ Defenses. ......................................................................................................12

C. The EEOC’s Other Arguments Are Meritless. .............................................................13

CONCLUSION ............................................................................................................................16


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TABLE OF AUTHORITIES

Page(s) CASES

Air Courier Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517 (1991) .................................................................................................................14

Bagguley v. Bush, 953 F.2d 660 (D.C. Cir. 1991) .................................................................................................15

Bennett v. Spear, 520 U.S. 154 (1997) .............................................................................................................9, 11

Bond v. United States, 131 S. Ct. 2355 (2011) .........................................................................................................5, 14

Camreta v. Greene, 131 S. Ct. 2020 (2011) .............................................................................................................14

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402 (1971) ..................................................................................................................2

Clark v. Barnard, 108 U.S. 436 (1883) .................................................................................................................12

EEOC v. Agro Distrib., LLC 555 F.3d 462 (5th Cir. 2009) .....................................................................................6, 7, 15, 16

EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003) .................................................................................................7

EEOC v. Bloomberg L.P., 751 F. Supp. 2d 628 (S.D.N.Y. 2010) ........................................................................................7

EEOC v. CRST Van Expedited, 679 F.3d 657 (8th Cir. 2012) .....................................................................................................7

EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981) .....................................................................................................7

EEOC v. Mach Mining, LLC, No. 11–cv–879–JPG–PMF, 2013 WL 319337 (S.D. Ill. Jan. 28, 2013) .................................10

EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005 (D. Ariz. 2013) .....................................................................................10

Gabelli v. SEC, 133 S. Ct. 1216 (2013) .............................................................................................................10


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Grocery Mfrs. Ass'n v. EPA, 704 F.3d 1005 (D.C. Cir. 2013) .................................................................................................9

Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273 (1906) .................................................................................................................12

Heckler v. Chaney, 470 U.S. 821 (1985) .......................................................................................................8, 15, 16

In re Segerstrom, 247 F.3d 218 (5th Cir. 2001) .....................................................................................................4

Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375 (2d Cir. 1973)......................................................................................................8

Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ...................................................................................................14

Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002) .................................................................................................................12

Lindsey v. Normet, 405 U.S. 56 (1972) ...................................................................................................................13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................................13

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).....................................................................................................2

Michael Reese Hosp. and Med. Ctr. v. Thompson, 427 F.3d 436 (7th Cir. 2005) .....................................................................................................9

Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011) ...............................................................................................................9

Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) .......................................................................................10, 11, 13

Powell v. Katzenbach, 359 F.2d 234 (D.C. Cir. 1965) ...................................................................................................8

Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984 (5th Cir. 2001) .....................................................................................................4

Stockman v. Fed. Election Comm’n, 138 F.3d 144 (5th Cir. 1998) ...........................................................................................4, 9, 14


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Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303 (5th Cir. 2002) .....................................................................................................4

Virginia Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632 (2011) .............................................................................................................12

Webster v. Doe, 486 U.S. 592 (1988) .................................................................................................................15

Williams v. Jones, 571 F. 3d 1086, 1110 (10th Cir. 2009) ......................................................................................9

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ...................................................................................................................7

STATUTES

5 U.S.C. § 701(a)(2) ...............................................................................................................2, 5, 15

5 U.S.C. § 702 ................................................................................................................9, 10, 11, 15

5 U.S.C. § 703 ..................................................................................................................................9

5 U.S.C. § 704 ............................................................................................................................9, 14

5 U.S.C. § 706 ........................................................................................................................6, 9, 11

42 U.S.C. § 2000e-5 ............................................................................................................... passim

42 U.S.C. § 2000e-6 ............................................................................................................... passim

OTHER AUTHORITIES

Fed. R. Civ. P. 56(a) ........................................................................................................................4

Random House College Dictionary 436 (Rev. ed. 1984) ................................................................6


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INTRODUCTION

The EEOC’s motion for partial summary judgment is a remarkable document. It

demonstrates a persistent and serious misunderstanding about basic principles of administrative

law, sovereign immunity, and the nature of judicial review.

The root of the problem is this: The Administrative Procedure Act (“APA”) provides a

private cause of action for private persons to obtain judicial review of federal agency action. It

has nothing to do with this case. When another federal statute, like Title VII, requires the

government to establish some fact about its own behavior before it may obtain a remedy against

a private party, that other statute, not the APA, is the source of the court’s obligation to examine

the government’s conduct.

The reason the EEOC disbelieves this—the reason it imagines that the APA must overlay

the entirety of public law—is that it also misapprehends another inapplicable doctrine: sovereign

immunity. Title VII’s conciliation requirement is a condition precedent to suit brought by the

government, not a cause of action on which to sue the government. And when, as here, the

government is the plaintiff, it has no sovereign immunity to invoke. Because the EEOC

misunderstands that principle, it believes Defendants need a waiver of sovereign immunity in

order to file a summary judgment motion in their own defense. It then casts about for a statute

that contains such a waiver—the APA—and from that concludes that the APA must restrict the

adjudication of Title VII questions.

Nevertheless, the EEOC concedes that courts can examine its conduct to some degree: It

admits this Court can review whether it engaged in conciliation at all, but denies it has power to

review whether it acted in good faith, as the Fifth Circuit has held Title VII requires. That

distinction regarding what aspects of conciliation are subject to judicial review is puzzling (and


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hard to square with the EEOC’s own APA and sovereign-immunity arguments), but the apparent

reason for it is yet a third misunderstanding: The EEOC contends that its good faith cannot be

reviewed because (i) it has some discretion over how to conduct conciliation; and (ii) in its view,

discretionary government actions are categorically immune from judicial review. For this

proposition it cites Marbury v. Madison1 and (again) the APA, reasoning that the APA does not

authorize review of “agency action committed to agency discretion by law.”2 But even if the

APA were applicable here, that narrow exception to judicial review assuredly would not be. The

Supreme Court has made clear that the “committed to agency discretion” exception to judicial

review is “narrow,” and applies only “in those rare instances where ‘statutes are drawn in such

broad terms that in a given case there is no law to apply.’”3 The language of the conciliation

statute, requiring the EEOC to “endeavor to eliminate any . . . alleged unlawful employment

practice by informal methods of conference, conciliation, and persuasion,”4 is nowhere close to

the kind of standardless grant of authority that would trigger that exception.

But all that is a distraction. The APA does not apply to this case at all, making an

attempt to squeeze the conciliation inquiry into the APA’s framework a diverting but ultimately

pointless adventure into the merits of a hypothetical APA claim no one has brought. It is Title

VII that requires the EEOC to conciliate in good faith. Having sued as a plaintiff under Title

VII, the EEOC enjoys no sovereign immunity from the Court’s jurisdiction, and no power to

block the Court from determining whether it is actually entitled to the coercive relief it has

1 5 U.S. (1 Cranch) 137 (1803). 2 5 U.S.C. § 701(a)(2). 3 Citizens to Preserve Overton Park, Inc., v. Volpe, 401 U. S. 402, 410 (1971) (quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977). 4 42 U.S.C. § 2000e-5(b) (emphasis added).


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sought from a citizen. Accordingly, the EEOC’s motion for partial summary judgment should be

denied.

NATURE AND STAGE OF THE PROCEEDINGS

This Court previously granted Defendants’ motion to stay discovery pending resolution

of its summary judgment motion.5 The Court denied the EEOC’s motion for a protective order

forbidding Defendants from disclosing any information about the course of conciliation,6 and

further denied its cross-motion to strike evidence related to conciliation from Defendants’ motion

for a stay.7

On May 15, 2013, Defendants moved for summary judgment on the ground that the

EEOC failed to engage in good-faith conciliation prior to suit as Title VII required.8 On July 17,

the EEOC filed an opposition to Defendants’ summary judgment motion,9 and filed its own

motion for partial summary judgment arguing that the EEOC satisfied the conciliation condition

precedent to suit.10

ISSUES PRESENTED

1. Does the Court have authority to adjudicate whether the EEOC complied with its statutory obligation under Title VII to conciliate in good faith as a condition precedent to suit?

2. Does the Administrative Procedure Act apply to this case?

3. Is the EEOC entitled to sovereign immunity when it sues as a plaintiff?

4. Whether the EEOC’s remaining arguments are meritless, including its contention that this Court lacks subject matter jurisdiction and that whether to conciliate in good faith is committed to agency discretion by law.

5 Minute Entry for Hearing of May 14, 2013. 6 Id.; see also Mot. for Protective Order (Dkt. No. 105). 7 Minute Entry for Hearing of May 14, 2013; see also Cross-Motion to Strike (Dkt. No. 115). 8 Dkt. No. 119. 9 Dkt. No. 136. 10 Dkt. No. 137.


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LEGAL STANDARD

Summary judgment is appropriate if no genuine issues of material fact exist, and the

moving party is entitled to judgment as a matter of law.11 The party moving for summary

judgment has the initial burden to prove there are no genuine issues of material fact for trial.12

Dispute about a material fact is “genuine” if a reasonable jury could find for the nonmoving

party.13 “An issue is material if its resolution could affect the outcome of the action.”14

SUMMARY OF ARGUMENT

I. Federal courts have power to enforce Title VII’s requirement that the EEOC conciliate

in good faith. A court’s inquiry into whether the EEOC has satisfied that obligation is not a

violation of the separation of powers, as the EEOC contends, because whether to conciliate in

good faith is not a matter of prosecutorial discretion; it is a condition precedent to suit created by

Congress. There is no doubt Congress has the constitutional power to impose such a condition,

and the federal courts have the power to enforce it.

II. Contrary to the EEOC’s assertion, the Administrative Procedure Act has nothing to do

with this case. That statute “creates a cause of action” on which a private person can sue the

government using particular procedures.15 No one has invoked that cause of action or those

procedures here. Despite its lengthy submission, the EEOC nowhere attempts to justify its

interpretation of the APA by reference to the text, structure, or judicial interpretation of that

statute.

11 Fed. R. Civ. P. 56(a). 12 Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). 13 In re Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). 14 Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002). 15 Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).


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III. Instead, the EEOC infers that the APA must apply because only the APA can supply

Defendants with a needed waiver of sovereign immunity. That is mistaken. Sovereign immunity

protects the government from being an unwilling defendant in a lawsuit, but there is no authority

for the proposition that a government can sue as a plaintiff and then use its sovereign immunity

to block the defendant’s defenses.

IV. The EEOC’s remaining arguments are meritless. This Court has subject-matter

jurisdiction to adjudicate Defendants’ summary judgment motion because it is part of the Article

III controversy initiated by the EEOC when it sought relief against Defendants, and the Supreme

Court has held that “Article III does not restrict [a defendant’s] ability to object to relief being

sought at its expense.”16 Moreover, although the APA is inapplicable to this case, the EEOC

badly misunderstands its requirements. Contrary to the EEOC’s contention, the threshold

requirements for bringing an APA action are not jurisdictional; a stay is not an “adequate”

substitute remedy for dismissal; and agency action is not “committed to agency discretion by

law”17 unless there are no judicially manageable standards by which to judge the agency’s

exercise of that discretion.

The motion for partial summary judgment should be denied.

16 Bond v. United States, 131 S. Ct. 2355, 2361 (2011) (emphasis added). 17 5 U.S.C. § 701(a)(2).


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ARGUMENT

I. FEDERAL COURTS HAVE POWER TO ENFORCE TITLE VII’S REQUIREMENT THAT THE EEOC CONCILIATE IN GOOD FAITH.

A. Title VII Obligates the EEOC to Conciliate in Good Faith.

As the EEOC acknowledges,18 Title VII’s conciliation requirement “is a precondition to

suit.”19 But the EEOC believes it can satisfy that condition precedent merely by formally

“attempt[ing] conciliation,” even if it proceeds in bad faith and is not genuinely trying to resolve

the dispute on fair terms.20 That is not what the statute says.

Section 706(b) of Title VII requires the EEOC to “endeavor to eliminate any . . . alleged

unlawful employment practice by informal methods of conference, conciliation, and

persuasion.”21 Those words refer to more than the formality of holding a settlement conference.

In plain English, “endeavor” means to try—to “make an effort” or “strive.”22 “Conciliate”

means “to overcome the distrust or hostility of [another]; to placate [him]” or to “reconcile.”23

And “persuade” means “to prevail on (a person) to do something” or to “convince” him.24

No wonder, then, that the Fifth Circuit has interpreted § 706(b) to require the EEOC to

conciliate in “good faith,” meaning that it must “(1) outline to the employer the reasonable cause

for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance;

and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the

employer.”25 That is not an extra-statutory requirement superimposed on Title VII by the

18 Dkt. No. 137 at 1. 19 EEOC v. Agro Distrib., 555 F.3d 462, 469 (5th Cir. 2009). 20 Id. at 468. 21 42 U.S.C. § 2000e-5(b) (emphasis added). 22 Random House College Dictionary 436 (Rev. ed. 1984). 23 Id. at 279. 24 Id. at 991. 25 Agro, 555 F.3d at 468.


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judiciary; it is an interpretation of the text itself. Unless the EEOC takes those minimal steps, it

cannot be said to have “endeavor[ed]” to persuade or conciliate the employer. And, as many

courts have held, where the EEOC has flouted that statutory obligation by “fail[ing] to act in

good faith, dismissal remains an appropriate sanction.”26

B. Adjudicating the Statutory Conciliation Requirement Does Not Violate the Separation of Powers.

Determining whether the EEOC has satisfied its statutory obligation is not, as the EEOC

claims, an intrusion on the separation of powers.27 When Congress authorizes federal courts to

evaluate executive action against a particular standard, as in Title VII, following Congress’s

direction cannot violate the separation of powers unless doing so infringes on the President’s

independent Article II authority.28 Cases satisfying that standard will be rare. As Justice

Jackson explained, when acting against “the expressed or implied will of Congress,” executive

power is “at its lowest ebb” because the President can then “rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter. Courts can

sustain exclusive presidential control in such a case only by disabling the Congress from acting

upon the subject.”29 Any claim by the executive to “a power at once so conclusive and

preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by

our constitutional system.”30

Here, the statutory good-faith conciliation requirement plainly does not violate Article II.

There can be no plausible argument that Congress lacks the constitutional power (i) to direct the

26 Id. at 469; EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981); see also EEOC v. CRST Van Expedited, 679 F.3d 657, 671 (8th Cir. 2012); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1261 (11th Cir. 2003); EEOC v. Bloomberg L.P., 751 F. Supp. 2d 628, 642-43 (S.D.N.Y. 2010). 27 Dkt. No. 137 at 1. 28 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring). 29 Id. 30 Id. at 638.


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EEOC, an independent agency of its own creation, to try in good faith to conciliate Title VII

claims before filing suit to obtain money or coercive relief against a citizen; and (ii) to authorize

the federal courts to enforce that requirement through the ordinary rules of litigation.

The EEOC, however, characterizes the good-faith conciliation requirement as an attempt

to control the exercise of its discretion about what cases to bring.31 But it is no such thing.

Prosecutorial discretion protects the executive’s ability to set enforcement priorities and forego

the prosecution of particular defendants against whom the government might have a plausible

case.32 There are sound reasons for leaving those decisions to the unreviewable discretion of the

prosecutor. For one thing, “when an agency refuses to act it generally does not exercise its

coercive power over an individual’s liberty or property rights, and thus does not infringe upon

areas that courts often are called upon to protect.”33 But here, the EEOC has chosen to bring an

enforcement action against Defendants, and it now must prove its case according to the standards

Congress prescribed.

II. THE EEOC’S CONVOLUTED CONSTITUTIONAL, JURISDICTIONAL, AND ADMINISTRATIVE-LAW ARGUMENTS ARE MERITLESS.

A. The Administrative Procedure Act is Inapplicable to This Case.

The EEOC’s motion for partial summary judgment essentially amounts to a lengthy

discourse on the Administrative Procedure Act. That is puzzling, for the APA has no application

to this case. The APA “creates a cause of action for ‘[a] person suffering legal wrong because of

31 See Dkt. No. 137 at 9, 13 19-20 & n.33. It bears noting, however, that at least two courts of appeals have held open the possibility that even charging decisions might be subject to congressional control. Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375, 382 (2d Cir. 1973); Powell v. Katzenbach, 359 F.2d 234, 235 (D.C. Cir. 1965) (per curiam). 32 See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). 33 Id. at 832.


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agency action, or adversely affected or aggrieved by agency action.’”34 This Title VII lawsuit

by the EEOC is plainly not an action under the APA, as the APA’s text makes clear. The

plaintiff is not some person “aggrieved by agency action” as the APA requires;35 it is the agency

itself. The agency’s cause of action is not 5 U.S.C. § 702, but rather Sections 706 and 707 of

Title VII.36 This suit is not an action “against the United States” or its agencies, as 5 U.S.C.

§ 703 prescribes, but rather a suit against private defendants. And Defendants’ summary

judgment motion does not seek to “set aside” agency action37 that marks the “consummation” of

some “decisionmaking process” (as required by the APA’s “final agency action” rule);38 it asks

the Court to dismiss a civil complaint because the plaintiff has not satisfied all conditions

precedent to its suit. In short, this case looks nothing like an APA action because it is not one.

“The disarming reason why square pegs do not fit into round holes is that they are not round.”39

Notably, the EEOC’s brief makes no effort to ground its arguments in the text or structure

of the APA—even though the interpretation of any statute “starts with its text.”40 To be sure, it

discusses the technical requirements the APA imposes on would-be plaintiffs—such as the “final

agency action” rule, the “zone of interests” standing test, and the condition that a decision not be

“committed to agency discretion by law”—but the EEOC never points to any provision of the

APA that says or implies that those technical requirements apply to anything other than a lawsuit

brought under 5 U.S.C. § 702. Nor does it cite any decision of any court so holding. And

34 Stockman, 138 F.3d at 151 (emphasis added) (quoting 5 U.S.C. § 702); see also Grocery Mfrs. Ass'n v. EPA, 704 F.3d 1005, 1006 (D.C. Cir. 2013), cert. denied, 133 S. Ct. 2880 (2013); Michael Reese Hosp. and Med. Ctr. v. Thompson, 427 F.3d 436, 440 (7th Cir. 2005). 35 5 U.S.C. § 702. 36 Third Am. Compl., Dkt. No. 104. 37 5 U.S.C. § 706(2). 38 5 U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 177-78 (1997). 39 Williams v. Jones, 571 F. 3d 1086, 1110 (10th Cir. 2009) (Gorsuch, J., dissenting). 40 Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1264 (2011).


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indeed, the EEOC’s position has recently been rejected by two district courts to have considered

it.41

Yet the EEOC is untroubled by the absence of any authority supporting its position. It

dismisses the Fifth Circuit precedents establishing that courts can review its good faith in

conciliation, which make no reference to the APA, on the ground that the court of appeals must

have overlooked the issue.42 But the more plausible explanation is that the many courts to have

enforced the good-faith conciliation requirement against the EEOC made no mention of the APA

because they knew it does not apply—and because the EEOC had not yet mustered the temerity

to advance that argument. The EEOC has previously suggested that, in all those prior cases, it

must have “explicitly or tacitly waived” the argument that conciliation is unreviewable.43 That is

most unlikely. As the Supreme Court recently noted, when the government suddenly advances

an interpretation of a longstanding statute that gives it sweeping power, the best explanation is

that the government’s newfound reading of the statute is simply wrong—not that the power went

unnoticed by everyone until now.44

The principal case on which the EEOC relies, the Fifth Circuit’s per curiam opinion in

Newsome v. EEOC,45 lends it no support. In Newsome, a private plaintiff sued the EEOC under

the cause of action created by § 702 of the APA; that is the APA’s purpose. But because her

lawsuit sought merely to challenge the EEOC’s decision not to investigate her discrimination

41 See EEOC v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1035-36 (D. Ariz. 2013) (“The Administrative Procedure Act does not bar this Court from determining as a matter of law whether the EEOC satisfied its statutory duties.”); EEOC v. Mach Mining, LLC, No. 11-cv-879-JPG-PMF, 2013 WL 319337, at *4 n.1 (S.D. Ill. Jan. 28, 2013) (“The Court also notes that the EEOC makes an argument that the Administrative Procedure[] Act . . . is relevant to the Court’s decision. The EEOC cites no authority that directly supports this proposition. Further, this is an action brought directly by the EEOC, not a person aggrieved by an agency action.”). 42 See Dkt. No. 137 at 5 n.8. 43 See Doc. No. 114 at 7. 44 See Gabelli v. SEC, 133 S. Ct. 1216, 1221-22 (2013). 45 301 F.3d 227 (5th Cir. 2002) (per curiam).


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claim further, the Fifth Circuit concluded that was not “final agency action” under Bennett v.

Spear because “[t]he 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.”46 That unexceptional holding proves

nothing about this case. Unlike Ms. Newsome, Defendants here have not sued the EEOC, and

have not sought to have this Court “set aside” any agency action, final or otherwise.47

Perhaps most striking of all, the EEOC claims that “Bass Pro has conceded that any

review by the Court of the conciliation process here would have to pass muster under the APA,”

citing Defendants’ reply brief in support of their motion to stay discovery in this case.48 Bass

Pro has done no such thing. The EEOC is radically mischaracterizing Defendants’ submission.

The relevant passage on the cited page reads in full:

The EEOC claims that the separation of powers prohibits judicial review of “an executive agency’s discretionary administrative actions.” That is wrong. Federal courts routinely review the actions of administrative agencies, even those over which they have substantial discretion, without contravening the separation of powers. [Footnote 25: See Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (courts may set aside agency action as “an abuse of discretion”).] It cannot seriously be argued that the Administrative Procedure Act is unconstitutional for that reason, and the EEOC cites no authority in support of its argument.49

Nowhere in this passage did Defendants say anything about the APA’s applicability to this case.

Rather, Defendants responded to the EEOC’s claim that the Constitution generally prohibits

courts from reviewing discretionary executive actions by pointing out, by way of example, that

courts routinely and uncontroversially engage in that type of review in APA cases.

46 Id. at 232. 47 5 U.S.C. § 706(2). 48 Dkt. No. 137 at 3 (quoting Defs’ Reply in Support of Mot. for Stay of Discovery (Dkt. No. 118) at 8). 49 Dkt. No. 118 at 8.


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B. When it Sues as a Plaintiff, the EEOC Has No Sovereign Immunity From the Defendants’ Defenses.

Lacking any support in the text, structure, or judicial interpretations of either Title VII or

the APA, the EEOC instead seeks to ground its contention that the APA governs this case in a

contorted argument about sovereign immunity. In particular, the EEOC claims that “the EEOC

has sovereign immunity from the grant of any relief at Defendants’ behest regarding

conciliation” because sovereign immunity protects it “from the grant of any relief against it by a

court, unless that immunity is waived,” and here the only waiver available is the one found in the

APA.50 That argument is frivolous.

“Sovereign immunity is the privilege of the sovereign not to be sued without its

consent.”51 It protects the sovereign from “[t]he specific indignity . . . of being haled into court”

unwillingly.52 That has not happened here. The EEOC is the plaintiff in this action, not the

defendant. It has not been “haled into court” at all, much less without its consent. And it is well

settled that when a sovereign “voluntarily becomes a party to a cause and submits its rights for

judicial determination, it will be bound thereby and cannot escape the result of its own voluntary

act by invoking [sovereign immunity].”53 That has been the rule since 1883.54

In this case, the consequence of that rule for the EEOC is unremarkable. Defendants

have no counter-claim against the agency. They merely have a defense to the suit brought

against them by the EEOC. The Constitution does not require the courts to permit a government

agency to sue a citizen and then plead sovereign immunity whenever the defendant raises a

50 Dkt. No. 137 at 12. 51 Virginia Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011) (emphasis added). 52 Id. at 1640. 53 Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002) (quoting Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906)). 54 Clark v. Barnard, 108 U.S. 436, 447-48 (1883).


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defense to the relief sought. Apart from being absurd on its face, that result would vitiate the

protections of the Due Process Clause, which “requires that there be an opportunity to present

every available defense.”55 It is unsurprising, therefore, that the EEOC cites no case in which a

government agency acting as a plaintiff successfully invoked sovereign immunity.56 The EEOC

invites this Court to be the first to announce that rule.

C. The EEOC’s Other Arguments Are Meritless.

The EEOC’s brief also misunderstands many of the administrative-law requirements it

invokes. Many of those requirements make no sense as applied to a summary judgment motion,

and since the APA is plainly inapplicable, Defendants will not detain the Court by quarreling

with the EEOC about fictitious questions. But in some cases, the EEOC’s arguments require a

brief response.

1. The EEOC advances at least two frivolous arguments about this Court’s subject matter

jurisdiction. First, the EEOC claims that Defendants lack standing under Article III to challenge

its compliance with the conciliation requirement, because they cannot satisfy the three-part test

announced in Lujan v. Defenders of Wildlife: injury-in-fact, causation, and redressability.57 That

argument is squarely foreclosed by Supreme Court precedent. As the Court recently explained, it

is only the “[o]ne who seeks to initiate or continue proceedings in federal court,” i.e., the

plaintiff, that must satisfy the Lujan test; the opposing party need only have an “ongoing interest

55 Lindsey v. Normet, 405 U.S. 56, 66 (1972) (internal quotation marks omitted). 56 In what might be a reference to the sovereign-immunity doctrine, the EEOC cryptically argues that “the fact that the EEOC was the defendant in Newsome is immaterial to the present case” because, it claims, “the holding in Newsome hinged on subject matter jurisdiction.” Dkt. No. 137 at 14 n.21-22. It is not clear what the EEOC means by that. In Newsome, in addition to her APA claim, the plaintiff attempted to sue the EEOC and its officials under the Fourteenth Amendment for civil rights claims. The Fifth Circuit held that the “United States and its officials are entitled to sovereign immunity for the civil rights claims brought by Newsome, because the United States has not consented to suit under the civil rights statutes.” 301 F.3d at 233 (quotation marks omitted). It then dismissed the appeal as frivolous. Id. at 234. Nothing in the Newsome decision suggests that the EEOC enjoys sovereign immunity when it is the plaintiff. 57 Dkt. No. 137 at 11-12; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).


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in the dispute . . . sufficient to establish concrete adverseness.” 58 The Court held that, “[w]hen

those conditions are met, Article III does not restrict the opposing party’s ability to object to

relief being sought at its expense.”59 Here, the Article III controversy is the EEOC’s suit against

Defendants. Defendants are therefore entitled to object to the considerable relief “sought at

[their] expense” by seeking summary judgment.

Second, the EEOC claims that the APA “grants subject matter jurisdiction” only when all

of the threshold requirements for obtaining judicial review are met.60 That is wrong. The

Supreme Court has squarely held that “the judicial review provisions of the APA are not

jurisdictional.”61 Rather, those requirements—such as the need for final agency action—are

“part of a party’s cause of action.”62 Because the APA does not apply, however, the agency’s

error is harmless.

2. The EEOC contends that, even if this were an APA challenge to final agency action,

Defendants have an “adequate remedy in a court”—they could request a stay of the lawsuit for

further conciliation proceedings under Section 706(f)(1).63 But of course that is not the relief

Defendants are seeking. They seek dismissal.

3. The EEOC argues at length that judicial review of its conciliation efforts is barred

because whether a conciliation agreement is “acceptable to the Commission”64 is a matter

58 Bond, 131 S. Ct. at 2361 (internal quotation marks omitted) (emphasis added); see also Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011). 59 Bond, 131 S.Ct. at 2361 (emphasis added). 60 Dkt. No. 137 at 5. 61 Air Courier Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 523 n. 3 (1991); accord Stockman, 138 F.3d at 152 n.13. 62 Iowa League of Cities v. EPA, 711 F.3d 844, 863 n.12 (8th Cir. 2013). 63 Dkt. No. 137 at 19; see 5 U.S.C. § 704, 42 U.S.C. § 2000e-5(f)(1). 64 42 U.S.C. § 2000e-5(f)(1).


15

“committed to agency discretion by law.”65 As Defendants have already explained, however,

whether to conciliate in good faith is not a matter of agency discretion at all; it is the command

of Congress, as interpreted by the Fifth Circuit and other federal courts of appeals.66

But in any event, the EEOC’s APA analysis is wrong on its own terms. Although the

APA does not apply to this case, if it did, the good-faith conciliation requirement would certainly

not be “committed to agency discretion by law” under APA § 702(a)(2). That statute provides “a

very narrow exception” to judicial review “applicable in those rare instances where statutes are

drawn in such broad terms that in a given case there is no law to apply.”67 Under the Supreme

Court’s construction, “if no judicially manageable standards are available for judging how and

when an agency should exercise its discretion, then it is impossible to evaluate agency action for

‘abuse of discretion,’” which is normally a ground for setting agency action aside under the

APA.68 Examples of cases fitting the narrow § 702(a)(2) category include the decision to

terminate a CIA security officer,69 whether the Attorney General should permit the transfer of

alien prisoners to their home country,70 and whether a federal agency should undertake an

enforcement action at all.71 The good-faith conciliation requirement would not satisfy

§ 702(a)(2). The Fifth Circuit has announced a workable three-part test for determining whether

the EEOC has fulfilled its obligation to “endeavor to eliminate any . . . alleged unlawful

65 5 U.S.C. § 701(a)(2). 66 E.g., Agro, 555 F.3d at 468. 67 Id. at 830 (internal quotation marks omitted). 68 Id. 69 Webster v. Doe, 486 U.S. 592 (1988). 70 Bagguley v. Bush, 953 F.2d 660 (D.C. Cir. 1991). 71 Heckler, 470 U.S. at 832.


16

employment practice by informal methods of conference, conciliation, and persuasion,”72 and

the EEOC has given no reason why that test is not a “judicially manageable standard[].”73

CONCLUSION

The EEOC’s brief advances a jumble of arguments so plainly lacking in justification,

particularly its invocation of sovereign immunity, that sanctions might well be appropriate. At a

minimum, however, this Court should reject the EEOC’s latest attempt to avoid adjudication of

its compliance with Title VII and, for the reasons set forth above, deny the EEOC’s motion for

partial summary judgment (Dkt. No. 137).

This 14th day of August 2013.

Respectfully submitted, s/ Michael W. Johnston Michael W. Johnston Georgia Bar No. 396720 Admission No. 1160289 Attorney-in-Charge Samuel M. Matchett Georgia Bar No. 476340 Admission No. 1276688 Carolyn Cain Burch Georgia Bar No. 094515 Admission No. 573550 KING & SPALDING LLP 1180 Peachtree Street Atlanta, Georgia 30309 Telephone: (404) 572 4600 Facsimile: (404) 572-5138 [email protected] [email protected] [email protected]

72 42 U.S.C. 2000e-5(b); see also Agro, 555 F.3d at 468. 73 Id. at 830.


17

William R. Burns Texas Bar No. 24055236 Admission No. 705514 KING & SPALDING LLP 1100 Louisiana Suite 4000 Houston, Texas 77002 Telephone: (713) 276-7333 Facsimile: (713) 751-3290 [email protected] ATTORNEYS FOR DEFENDANTS


UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff Case No: 4:11-cv-03425 Honorable Keith P. Ellison v. BASS PRO OUTDOOR WORLD, LLC, and TRACKER MARINE, LLC, Defendants. _______________________________________/

CERTIFICATE OF SERVICE

I hereby certify that on August 14, 2013, I electronically filed DEFENDANTS’ OPPOSITION TO THE EEOC’S MOTION FOR PARTIAL SUMMARY JUDGMENT THAT THE EEOC’S CONDITION PRECEDENT TO SUIT OF CONCILIATION IS SATISFIED with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorneys of record listed below:

Timothy M. Bowne Rudy Sustaita Jim Sacher Connie K. Wilhite Equal Employment Opportunity Comm’n 1201 Louisiana Street, 6th Floor Houston, TX 77002

Robert D. Rose Konrad Batog Equal Employment Opportunity Comm’n 33 Whitehall Street, 5th Floor New York, NY 10004

Gregory T. Juge Equal Employment Opportunity Comm’n 1555 Poydras Ave., Suite 1900 New Orleans, LA 70112

Tanya L. Goldman Equal Employment Opportunity Comm’n 10 S. Howard Street, 3rd Floor Baltimore, MD 21201

s/ Michael W. Johnston Michael W. Johnston


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