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(ORDER LIST: 589 U.S.) MONDAY, APRIL 6, 2020 ORDERS IN PENDING CASES 19M119 WALSH, WILLIAM F. V. UNITED STATES The motion for leave to file a petition for a writ of certiorari with the supplemental appendix under seal is granted. 19M120 REBENSTORF, GLENN W. V. GRANT, JEFFREY 19M121 CRENSHAW, PHILLIP E. V. JONES, SEC., FL DOC 19M122 WARREN, MORRIS J. V. ORMOND, WARDEN, ET AL. 19M123 LOWERY, MICHAEL L. V. DAVIS, DIR., TX DCJ The motions to direct the Clerk to file petitions for writs of certiorari out of time are denied. 19M124 ARMSTRONG, ARCHIE G. V. PENNSYLVANIA, ET AL. 19M125 ARMSTRONG, ARCHIE G. V. UNITED STATES, ET AL. 19M126 ARMSTRONG, ARCHIE G. V. AMTRAK POLICE 19M127 ARMSTRONG, ARCHIE G. V. GEICO INSURANCE The motions to direct the Clerk to file petitions for writs of certiorari out of time under Rule 14.5 are denied. CERTIORARI DENIED 19-573 AL-AMIN, JAMIL A. V. WARD, COMM'R, GA DOC, ET AL. 19-659 SALGADO, MILADIS V. UNITED STATES 19-680 SEALEY, KENNETH, ET AL. V. GILLIAM, J. DUANE, ET AL. 19-690 NEVILLE, TINA V. DHILLON, CHAIR, EEOC, ET AL. 19-710 CT FINE WINE AND SPIRITS V. SEAGULL, MICHELLE A., ET AL. 19-956 CRAIG, DONALD E., ET AL. V. O'KELLEY, JANET T., ET AL. 19-986 VOSBURGH, MARY LOU, ET AL. V. BURNT HILLS SCH. DIST., ET AL. 1 19-990 SOUTHERN ILLINOIS STORM SHELTERS V. 4SEMO.COM, INC. 19-994 HILL, JEFFREY L. V. JOHNSON, LEANDRA G., ET AL. 19-996 WATERS, LINDSAY V. GEORGIA 19-998 COOK, VICKIE, ET AL. V. HOPKINS, TONYITA, ET AL. 19-1003 KINUTHIA, ISAAC G. V. VELARDE, BARBARA, ET AL. 19-1072 ROTHSTEIN, SCOTT V. UNITED STATES 19-1075 COPELAND, BRYAN A. V. UNITED STATES 19-1102 SMALL, DONTAE V. UNITED STATES 19-1103 INO THERAPEUTICS LLC, ET AL. V. PRAXAIR DISTRIBUTION, ET AL. 19-6410 RAGER, DONALD W. V. AUGUSTINE, WARDEN, ET AL. 19-6501 FELICIANOSOTO, ALVIN V. UNITED STATES 19-6800 MITCHELL, RODNEY D. V. UNITED STATES 19-6967 BOYD, MICHAEL E., ET AL. V. CA PUB. UTIL. COMM'N, ET AL. 19-7081 ADEBOWALE, ADEOYE O. V. WOLF, SEC. OF HOMELAND, ET AL. 19-7086 PREZIOSO, WALTER D. V. UNITED STATES 19-7088 CORTEZ-ROGEL, MARCOS V. UNITED STATES 19-7102 MENDEZ, RUBEN V. UNITED STATES 19-7104 PACHECO-ASTRUDILLO, JULIO C. V. UNITED STATES 19-7112 GALINDO-SERRANO, GABRIEL V. UNITED STATES 19-7131 HANNA, ERIC V. UNITED STATES 19-7493 KIRVIN, CHARLES T. V. GRANT, L., ET AL. 19-7513 SMITH, OMAR V. CLARKE, DIR., VA DOC 19-7529 WILLIAMS, VERONICA A. V. LITTON LOAN SERVICES, ET AL. 19-7532 WELSH, TRAVIS V. FLORIDA 19-7537 SPICE, DONALD A. V. MICHIGAN 19-7541 HURLES, RICHARD V. SHINN, DIR., AZ DOC, ET AL. 19-7542 PELMEAR, NOAH-WADE, ET AL. V. O'CONNOR, MAUREEN, ET AL. 19-7545 PALMER, WILLIE V. INCH, SEC., FL DOC, ET AL. 2 19-7546 JORGE, JUAN V. FLORIDA, ET AL. 19-7554 HILLYGUS, ROGER V. DOHERTY, FRANCES, ET AL. 19-7556 JACOBS, ERIKA V. MIHCS 19-7559 JACKSON, ELIJAH V. HUD, ET AL. 19-7563 SPEED, TERRY G. V. DAVIS, DIR. TX DCJ 19-7582 ARELLANO, RAUL V. PARAMO, WARDEN 19-7583 BYRD, TIFFANY R. V. BOUTTE, WARDEN 19-7591 PAYNE, LEO L. V. MANGUM, JESSICA 19-7595 MAJOR, RICKEY T. V. BAKER, WARDEN 19-7600 SUNDY, TIM V. FRIENDSHIP PAVILION, ET AL. 19-7605 KANE, VINCENT V. PENNSYLVANIA 19-7609 CASTILLO, JUAN M. V. BACA, WARDEN 19-7628 GUYN, GLEN G. V. KENT, WARDEN 19-7644 JONES, GEORGE V. GRIFFITH, WARDEN 19-7660 WEST, RONALD B. V. UNITED STATES 19-7666 WOODS, DONNIEL V. JOYNER, WARDEN 19-7676 JACKSON, ROBERT V. FLORIDA 19-7679 BROWNLEE, JONATHAN V. HEARNS, KEITH, ET AL. 19-7708 ALJINDI, AHMAD J. V. UNITED STATES, ET AL. 19-7723 BRAMMER, JAMES W. V. MADDEN, WARDEN 19-7734 DENNIS, ANDRE V. JOHNSON, ADM'R, NJ, ET AL. 19-7740 BELL, YOLANDA V. UNITED STATES 19-7759 EMERS, LYARRON T. V. ILLINOIS 19-7762 AMERSON, GALEN, L., ET AL. V. ATLAS LAW FIRM, P.C., ET AL. 19-7791 JACKSON, JERMAINE M. V. PENNSYLVANIA 19-7813 JAMERSON, MICHAEL C. V. LEWIS, WARDEN 19-7830 PANTALEON-AVILES, PABLO A. V. UNITED STATES 19-7835 RODRIGUEZ, MIGUEL V. UNITED STATES 3 19-7836 SALAHUDDIN, TAJUDDIN V. UNITED STATES 19-7838 SHOCKEY, ANTHONY V. UNITED STATES 19-7839 SANCHEZ, CHRISTOPHER V. UNITED STATES 19-7851 MARTINEZ-ALVARADO, LENIN V. UNITED STATES 19-7869 WILSON, RAYMOND D. V. UNITED STATES 19-7873 ALLEN, DERRICK M. V. UNITED STATES 19-7875 GAY, BYRON V. DAFFENBACH, WARDEN, ET AL. 19-7876 RICHARDSON, AARON V. UNITED STATES 19-7881 FARRINGTON, TAVARES L. V. UNITED STATES 19-7886 MAHON, DENNIS V. UNITED STATES 19-7887 JUVENILE FEMALE V. UNITED STATES 19-7896 HUGHES, NICHOLAS V. UNITED STATES 19-7898 MURPHY, RICHARD C. V. UNITED STATES 19-7909 KILMARTIN, SIDNEY P. V. UNITED STATES 19-7911 CORNELIUS, THOMAS W. V. UNITED STATES 19-7916 GELAZELA, MARK V. UNITED STATES 19-7917 FELDMAN, ISAAC V. UNITED STATES 19-7934 BETTS, KATHLEEN V. UNITED AIRLINES, INC. 19-7940 MORALES, LUIS F. V. UNITED STATES 19-7942 PARSONS, DANIEL D. V. BLADES, WARDEN 19-7949 DEVORE, KENNETH R. V. UNITED STATES 19-7950 VALENTINE, DAEJERRON L. V. NEBRASKA 19-7967 DURANT, KENNETH V. LAWRENCE, WARDEN 19-7970 SHADE, SHAWNTE L. V. WASHBURN, WARDEN The petitions for writs of certiorari are denied. 19-678 U.S., EX REL. SCHNEIDER V. JPMORGAN CHASE BANK, ET AL. The petition for a writ of certiorari is denied. Justice Kavanaugh took no part in the consideration or decision of this 4 petition. 19-726 JONES, MALLORY, ET AL. V. LAMKIN, RAMONE, ET AL. The motion of National Fraternal Order of Police for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied. 19-7573 DONAHUE, SEAN M. V. SCALIA, SEC. OF LABOR, ET AL. 19-7597 WAZNEY, ROBERT W. V. NELSON, WARDEN The motions of petitioners for leave to proceed in forma pauperis are denied, and the petitions for writs of certiorari are dismissed. See Rule 39.8. HABEAS CORPUS DENIED 19-7894 IN RE CHARLES S. RENCHENSKI 19-8026 IN RE JONATHAN A. HAMPTON The petitions for writs of habeas corpus are denied. MANDAMUS DENIED 19-7884 IN RE JAMES E. FRYE The petition for a writ of mandamus is denied. REHEARINGS DENIED 19-6427 SMITH, RAY A. V. CHAPDELAINE, WARDEN, ET AL. 19-6762 WIMBERLEY, FRED M. V. SACRAMENTO, RACHEL M. 19-6863 IN RE MELVIN BONNELL 19-6931 JOHNSON, ROBERT W. V. LINEBARGER GOGGAN BLAIR 19-7095 SMITH, DAVID L. V. USDC ED NC The petitions for rehearing are denied. 19-6846 RILEY, JAMES W. V. METZGER, WARDEN, ET AL. 19-6856 RILEY, JAMES W. V. DELAWARE The petitions for rehearing are denied. Justice Alito took no part in the consideration or decision of these petitions. 5 1 Cite as: 589 U. S. ____ (2020) Statement of GORSUCH, J. SUPREME COURT OF THE UNITED STATES ARCHDIOCESE OF WASHINGTON v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18–1455. Decided April 6, 2020 The petition for a writ of certiorari is denied. JUSTICE KAVANAUGH took no part in the consideration or decision of this petition. Statement of JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, respecting the denial of certiorari. Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that com- plication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit. See 910 F. 3d 1248, 1250– 1254 (CADC 2018) (Griffith, J., dissenting from denial of rehearing en banc); Northeastern Pa. Freethought Society v. Lackawanna Transit System, 938 F. 3d 424, 435–437 (CA3 2019) (noting disagreement with D. C. Circuit). At Christmastime a few years ago, the Catholic Church sought to place advertisements on the side of local buses in Washington, D. C. The proposed image was a simple one— a silhouette of three shepherds and sheep, along with the words “Find the Perfect Gift” and a church website address. No one disputes that, if Macy’s had sought to place the same advertisement with its own website address, the Washing- ton Metropolitan Area Transit Authority (WMATA) would have accepted the business gladly. Indeed, WMATA admits that it views Christmas as having “ ‘a secular half ’ ” and “ ‘a religious half,’ ” and it has shown no hesitation in taking 2 ARCHDIOCESE OF WASHINGTON v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY Statement of GORSUCH, J. secular Christmas advertisements. Pet. for Cert. 1. Still, when it came to the church’s proposal, WMATA balked. That is viewpoint discrimination by a governmental en- tity and a violation of the First Amendment. In fact, this Court has already rejected no-religious-speech policies ma- terially identical to WMATA’s on no fewer than three occa- sions over the last three decades. See Good News Club v. Milford Central School, 533 U. S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993). In each case, the government opened a forum to discussion of a particular subject but then sought to ban discussion of that subject from a religious viewpoint. What WMATA did here is no different. WMATA’s response only underscores its error. WMATA suggests that its conduct comported with our decision in Rosenberger because it banned religion as a subject rather than discriminated between religious and nonreligious viewpoints. But that reply rests on a misunderstanding of Rosenberger. There, the Court recognized that religion is not just a subject isolated to itself, but often also “a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” 515 U. S., at 831. That means the government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic. See Good News Club, 533 U. S., at 110–112. So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s David or Handel’s Messiah. And once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally in- vites it. 3 Cite as: 589 U. S. ____ (2020) Statement of GORSUCH, J. That’s not to say WMATA lacks a choice. The Constitu- tion requires the government to respect religious speech, not to maximize advertising revenues. So if WMATA finds messages like the one here intolerable, it may close its buses to all advertisements. More modestly, it might re- strict advertisement space to subjects where religious view- points are less likely to arise without running afoul of our free speech precedents. The one thing it cannot do is what it did here—permit a subject sure to inspire religious views, one that even WMATA admits is “half ” religious in nature, and then suppress those views. The First Amendment re- quires governments to protect religious viewpoints, not sin- gle them out for silencing. 1 Cite as: 589 U. S. ____ (2020) Statement of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES RANDY ETHAN HALPRIN v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 19–6156. Decided April 6, 2020 The petition for a writ of certiorari is denied. Statement of JUSTICE SOTOMAYOR respecting the denial of certiorari. The facts underlying this petition are deeply disturbing. I write to explain why I nevertheless do not dissent from the denial of certiorari. In December 2000, petitioner Randy Ethan Halprin and six others escaped from a Texas prison and robbed a sporting-goods store. During the robbery, Officer Aubrey Hawkins responded to a distress call and was fatally shot. The State of Texas tried Halprin and the other escapees separately for their roles in Officer Hawkins’ death. Pre- siding over most of those trials, including Halprin’s, was Judge Vickers Cunningham. In 2003, a jury found Halprin guilty of capital murder and recommended the death penalty, and then-Judge Cunning- ham announced a death sentence. For the next decade, Halprin unsuccessfully sought appellate and collateral re- lief in the state courts. In 2014, he petitioned for a writ of habeas corpus under 28 U. S. C. §2254, to no avail. Years after the trial, Cunningham—no longer a judge— ran for a position as a county commissioner. In May 2018, a news outlet published that Cunningham had created a living trust for his children that would have withheld pay- ments had they married nonwhite non-Christians. (Halprin is Jewish, a fact that featured prominently at his 2 HALPRIN v. DAVIS Statement of SOTOMAYOR, J. trial.) A former campaign staffer of Cunningham’s also re- layed to the news outlet that the former judge used the ac- ronym “T.N.D.”—short for “Typical N*** Deals”—to refer to criminal cases involving black defendants. Record 19–70016.1120. These developments prompted Halprin’s counsel to inves- tigate whether Cunningham had harbored bias against Halprin. Witnesses recounted that, shortly after Halprin’s trial, Cunningham had referred to Halprin with derogatory terms like “f***n’ Jew”—and that the former judge had also referred to Halprin’s accomplices using similar slurs. Id., at 19–70016.1064. Halprin’s counsel further discovered that Cunningham had told campaign staffers that he sought public office to “save” his city from “ ‘n***s,’ ‘wet- backs,’ Jews, and dirty Catholics.” Id., at 19–70016.1235. On May 17, 2019, presented with this newly discovered evidence, Halprin filed another §2254 petition in Federal District Court. He asserted that Cunningham’s bias consti- tuted structural error depriving Halprin of his constitu- tional right to a fair trial. Halprin also requested that the federal court stay the proceedings so that he could exhaust his claim in state court, and then filed an application for habeas relief in the Texas Court of Criminal Appeals. (That court has since stayed Halprin’s execution to allow a trial court to consider the claim of judicial bias.) Meanwhile, the District Court transferred Halprin’s re- cent §2254 petition to the Court of Appeals for the Fifth Cir- cuit to determine whether it was an unauthorized “second or successive” petition. See 28 U. S. C. §2244(b).* The Fifth —————— * Section 2244(b)(2)(B) provides in pertinent part: “A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless . . . (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evi- dence as a whole, would be sufficient to establish by clear and convincing 3 Cite as: 589 U. S. ____ (2020) Statement of SOTOMAYOR, J. Circuit recognized that Halprin had cited evidence of “hor- rible” “racism and bigotry” that, if true, would be “com- pletely inappropriate for a judge.” In re Halprin, 788 Fed. Appx. 941, 942, n. 2 (2019) (per curiam). Nevertheless, the Court of Appeals held, Halprin’s filing was a second or suc- cessive petition under federal law because, “even if ” Cun- ningham’s prejudice were “unknown to Halprin at the time,” the judicial-bias claim would have been “ripe” during the jury trial. Id., at 943. The Fifth Circuit then concluded that Halprin could not satisfy §2244(b)’s “ ‘strict’ ” require- ments for authorizing a second or successive §2254 applica- tion. Id., at 945. Granting Halprin’s argument that judicial bias is “structural error” warranting an automatic retrial, the Fifth Circuit still found that Halprin could not show “by clear and convincing evidence that, absent such bias, no reasonable factfinder would have found Halprin guilty of the underlying offense.” Id., at 944–945. In this Court, Halprin contests whether his recent federal petition is “second or successive” at all. Drawing on Panetti v. Quarterman, 551 U. S. 930 (2007), and Magwood v. Pat- terson, 561 U. S. 320 (2010), Halprin contends that his fed- eral habeas claim cannot count as “second or successive” under §2244(b) because he never “ ‘had a full and fair oppor- tunity to raise the claim in [his] prior application’ ” to the Federal District Court. Pet. for Cert. 14. Halprin also urges the Court to exercise its “traditional equitable authority” to excuse defaulted claims that do not satisfy §2244(b)’s literal text. Id., at 15 (internal quotation marks omitted). Despite these potent arguments, the Court declines to grant certiorari. I do not dissent for two reasons. First, state-court proceedings are underway to address—and, if appropriate, to remedy—Halprin’s assertion that insidious racial and religious bias infected his trial. For its part, the —————— evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 4 HALPRIN v. DAVIS Statement of SOTOMAYOR, J. State represents that “Halprin has not been deprived of an opportunity to bring his claim in state court” because the Texas Court of Criminal Appeals recently “stayed his exe- cution and remanded his judicial bias claim to the trial court for review.” Brief in Opposition 21–22; see also id., at 28 (“[A]venues of relief remain, including state habeas pro- ceedings”). Thus, were the Texas courts to agree with Halprin on the merits of his judicial-bias claim, this petition for a writ of certiorari about a federal procedural provision would become moot. Second, this Court’s denial “carries with it no implication whatever regarding the Court’s views on the merits of ” Halprin’s claims. Maryland v. Baltimore Radio Show, Inc., 338 U. S. 912, 919 (1950) (Frankfurter, J., respecting denial of certiorari). Though the Fifth Circuit has already inter- preted §2244 to deny Halprin authorization to file a §2254 petition, this Court’s denial of certiorari does not prevent Halprin from seeking direct review from a constitutional ruling by the Texas courts. Nor does it preclude Halprin from seeking an original writ of habeas corpus under this Court’s Rule 20. * * * “[T]he Due Process Clause clearly requires a ‘fair trial in a fair tribuna[l]’ before a judge with no actual bias against the defendant.” Bracy v. Gramley, 520 U. S. 899, 904–905 (1997) (citation omitted). I trust that the Texas courts con- sidering Halprin’s case are more than capable of guarding this fundamental guarantee. 1 Cite as: 589 U. S. ____ (2020) THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES VF JEANSWEAR LP v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 19–446. Decided April 6, 2020 The petition for a writ of certiorari is denied. JUSTICE THOMAS, dissenting from the denial of certiorari. This case presents the question whether the Equal Em- ployment Opportunity Commission (EEOC) may continue to investigate an employer’s purported wrongdoing after is- suing a right to sue notice to a private party who, in turn, has initiated her own litigation. The Seventh and Ninth Circuits have determined that Title VII of the Civil Rights Act of 1964, 78 Stat. 253, grants the EEOC that power. See EEOC v. Union Pacific R. Co., 867 F. 3d 843, 848 (CA7 2017); EEOC v. Federal Express Corp., 558 F. 3d 842, 851– 852 (CA9 2009). The Fifth Circuit, on the other hand, has concluded that the plain text of Title VII prohibits such in- vestigations. See EEOC v. Hearst Corp., 103 F. 3d 462, 469 (1997). Though this split in authority is shallow, it directly im- plicates the EEOC’s core investigative powers. If the Fifth Circuit is correct that issuing a right to sue notice termi- nates the EEOC’s ability to investigate, then the EEOC may be wielding ultra vires power, impermissibly subject- ing employers to time-consuming investigations. I would grant certiorari to determine whether the agency is oper- ating within the confines of the authority granted by Congress. I A A preliminary analysis of the text suggests that the 2 VF JEANSWEAR LP v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION THOMAS, J., dissenting EEOC may lack the authority to continue an investigation after it has issued a right to sue notice. The basic provisions governing the EEOC’s role in investigating discrimination claims are found in 42 U. S. C. §2000e–5. As relevant here, the EEOC’s duties are triggered when it receives “a charge . . . filed by or on behalf of a person claiming to be ag- grieved.” §2000e–5(b); University of Pa. v. EEOC, 493 U. S. 182, 190 (1990). The EEOC must provide notice to the em- ployer “within ten days, and shall make an investigation thereof.” §2000e–5(b) (emphasis added). “If the Commis- sion determines after such investigation that there is rea- sonable cause to believe that the charge is true, the Com- mission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of con- ference, conciliation, and persuasion.” Ibid. (emphasis added). Otherwise, it will dismiss the charge. Ibid. “The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.” Ibid. But “[i]f a charge filed with the Commis- sion pursuant to subsection (b) is dismissed by the Commis- sion, or if within one hundred and eighty days from the fil- ing of such charge . . . the Commission has not filed a civil action under this section[,] . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the re- spondent named in the charge.” §2000e–(5)(f )(1); see also Fort Bend County v. Davis, 587 U. S. ___ (2019). Regardless of how the EEOC may approach this process in practice, these statutory provisions set out a clear time- table and a sequential series of steps for the EEOC to fol- low. After giving notice to the employer, it must engage in an investigation that comes to a definitive end either be- cause the EEOC has entered into a conciliation process or 3 Cite as: 589 U. S. ____ (2020) THOMAS, J., dissenting because it has dismissed the charge. Further, the EEOC must issue the right to sue notice after 180 days—60 days after the timeline contemplated by the statute for a reason- able cause determination, which triggers dismissal of a charge or conciliation efforts. Thus, at first glance, it ap- pears that the more natural reading of these provisions is that Congress “expected the EEOC to complete investiga- tions within 120 days[, l]eaving an additional 60 days for the EEOC to determine whether suit should be filed.” Hearst, 103 F. 3d, at 467. B Whatever the correct interpretation of the text, however, the Ninth Circuit’s approach in Federal Express, 558 F. 3d 842, is highly problematic. The Ninth Circuit began by as- serting that it was bound to enforce an EEOC subpoena if the agency’s jurisdiction was “plausible” and not “plainly lacking.” Id., at 848 (internal quotation marks omitted). Next, the court noted that the EEOC has, through regula- tion, interpreted its own statutory authority to allow the agency to continue processing a charge after it has issued a right to sue notice. Id., at 850; see 29 CFR §1601.28(a)(3) (2019). To cap off its analysis, the Ninth Circuit gave weight to the fact that the EEOC had further interpreted its own regulation allowing “ ‘further processing [of] the charge’ ” after issuing notice to “includ[e] further investiga- tion.” Federal Express, 558 F. 3d, at 850 (citing EEOC Com- pliance Manual §6.4 (2006)). Thus, under this dual layer of agency interpretation, the Ninth Circuit concluded that Ti- tle VII permitted the EEOC to continue with its investiga- tion after issuing a right to sue notice. The Ninth Circuit acknowledged that its reading conflicted with the Fifth Cir- cuit’s decision in Hearst, 103 F. 3d 462. But it disagreed with the Fifth Circuit primarily because it viewed Hearst as conflicting with the EEOC’s role in vindicating the public’s 4 VF JEANSWEAR LP v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION THOMAS, J., dissenting interest in eradicating employment discrimination.* Fed- eral Express, 558 F. 3d, at 852. The Ninth Circuit’s analysis contains at least four flaws. Most egregiously, the Ninth Circuit failed to consider the most useful, and perhaps dispositive, evidence—the text of Title VII itself. Nor did it perform anything remotely re- sembling an independent assessment of that text. Even un- der Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), courts are instructed to engage in their own analysis of the statute to determine whether any gap has been left for the agency to fill. Id., at 843, n. 9; see also INS v. Cardoza-Fonseca, 480 U. S. 421, 447–448 (1987). The Ninth Circuit, by contrast, bypassed the statutory text entirely. Second, the Ninth Circuit’s approach to jurisdiction was highly suspect, if not outright erroneous. As the Ninth Cir- cuit has elsewhere recognized, all administrative agencies “are creatures of statute, bound to the confines of the stat- ute that created them.” United States Fidelity & Guaranty Co. v. Lee, 641 F. 3d 1126, 1135 (2011). This fundamental principle applies not only to substantive areas regulated by an agency but also to the agency’s underlying jurisdiction. There is no basis for applying a “plainly lacking” standard when assessing the authority of an agency to act, let alone to issue wide-ranging subpoenas that consume the time and resources of employers. Third, reliance on and deference to the EEOC’s regula- tion also seems inappropriate under this Court’s Chevron framework. The regulation was originally promulgated be- fore this Court’s decision in Chevron. See 29 CFR §1601.28 —————— *The Ninth Circuit also relied in part on this Court’s decision in EEOC v. Waffle House, Inc., 534 U. S. 279 (2002), where this Court held that an employee’s agreement to arbitrate employment disputes did not prevent the EEOC from pursuing victim-specific relief in court. But that decision conflicts with the principle that the EEOC takes a plaintiff as it finds him. See id., at 303–312 (THOMAS, J., dissenting). 5 Cite as: 589 U. S. ____ (2020) THOMAS, J., dissenting (a)(3) (1978). The associated rulemaking contains no indi- cation that the agency invoked its interpretive authority or even believed it was interpreting the statute at all. See 42 Fed. Reg. 42025, 42030–42031, 47831 (1977); see also 37 Fed. Reg. 9214–9220 (1973). Thus, it is hardly self-evident that, even under our precedents, Chevron deference should apply. See Barnhart v. Walton, 535 U. S. 212, 222 (2002). Last but not least, the Ninth Circuit’s invocation of the EEOC Compliance Manual not only assumes that the reg- ulation is ambiguous—itself a dubious proposition—but also is premised on so-called Auer deference to the agency’s interpretation of its own ambiguous regulation. Auer v. Robbins, 519 U. S. 452 (1997). This doctrine has rightly fallen out of favor in recent years, as it directly conflicts with the constitutional duty of a judge to faithfully and in- dependently interpret the law. See Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (GORSUCH, J., concurring in judgment); Perez v. Mortgage Bankers Assn., 575 U. S. 92, 112 (2015) (THOMAS, J., concurring in judgment). II Leaving the Seventh and Ninth Circuit’s highly question- able interpretation undisturbed has wide-reaching ramifi- cations for employers subject to litigation in those Circuits. In this case, for instance, a former salesperson employed by petitioner VF Jeanswear LP filed a charge with the EEOC, alleging that she was demoted on the basis of her sex and age in violation of Title VII. §2000e–2(a)(1). After she filed a complaint in state court, the EEOC issued her a right to sue notice, indicating that it would not finish processing her charge within the allotted 180-day timeframe. The former employee proceeded to litigate her claims in federal court, and the EEOC did not intervene. Meanwhile, the EEOC continued with its own, far broader investigation, including a subpoena directing VF Jeanswear to “[s]ubmit an electronic database identifying 6 VF JEANSWEAR LP v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION THOMAS, J., dissenting all supervisors, managers, and executive employees at VF Jeanswear’s facilities during the relevant period,” including information such as the “position(s) held and date in each position” and, “if no longer employed, [the] date of termina- tion, and reason for termination.” 2017 WL 2861182, *2 (D Ariz., July 5, 2017). Thus, the EEOC not only subjected VF Jeanswear to a second investigation, but it also issued a subpoena covering material that departed significantly from the employee’s original, individualized allegations. As the District Court noted in refusing to enforce the sub- poena, the EEOC sought information regarding positions for which the employee never applied, and amounted to “a companywide and nationwide subpoena for discriminatory promotion, a discriminatory practice not affecting the charging party.” Id., at *6. Because the textual argument against the EEOC’s power to issue this subpoena seems strong, and the argument sup- porting it particularly weak, I respectfully dissent from the denial of certiorari.
