Well, I previously wrote about yet another frivolous lawsuit by the former Attorney General, Greg Abbott. But, then he actually won the suit on appeal. See my prior post here. The former AG sued the EEOC regarding enforcement guidance issued by the agency on criminal background checks. The case is State of Texas v. EEOC, No. 14-10949 (5th Cir. 1/27/2016). Criminal background checks have been controversial in recent years because they affect minorities in disproportionate numbers. At the district court level, the suit was dismissed. Judge Sam Cummings in Lubbock found that there was no case or controversy. The guidance was just that, guidance. It is not a binding rule. So, there was nothing to fuss about, said the lower court judge.

But, The Fifth Circuit viewed things differently. It said it is true that EEOC enforcement guidance is only advisory. But, the lack of binding or final effect of the rules does not mean there is no case or controversy. Said the higher court, the guidance amounts to a regulatory burden on Texas agencies as employers. The EEOC pointed out that the guidance does not create legal consequences for Texas employers. In that sense, the guidance is not “final” agency action. But, the Fifth Circuit panel stretched reality a bit to find that when the EEOC refers cases to the U.S. Attorney General (which is quite rare), it (the U.S. Attorney General) would rely on this guidance. Only the U.S. Attorney can enforce action against a Texas state agency.

In dissent, Judge Higginbotham points out that for there to be a “case,” the victim must have suffered some injury. The judge suggests the case is more political than legal. While the guidance is only a “cloud on the political horizon,” it inflicts no injury upon Texas, he observed. It is true the guidance could be relied on by the U.S. Attorney General – after the EEOC refers a case to that entity – but, the U.S. Attorney General can choose to ignore the guidance. Its a valid point.

See the decision here. I think there will be an attempted appeal to the Supreme Court. The majority decision has some flaws. But, the U.S. Supreme Court accepts so few cases that an appeal may go unnoticed.