they please the court out spot but for the state of texas the u c formally adopted a lengthy and detailed rule concerning the use of criminal records in employment decisions the rule is judicially reviewable because it demands compliance from employers concerns whether or not the action that issue represents the consummation of the agency's decision making process in this case the e e o c does not contest that the rule is the consummation of their decision making process so the only question is the prong of the bennett inquiry which is whether or not the rule has legal consequences and this is a practical inquiry which focuses not necessarily on whether the rules of the words of the rule have force of law in and of themselves but rather on whether it is meant to have a practical impact in the field whether it's meant to be controlling in effect right now that either c does have subpoena enforcement powers that correctly i believe that's correct and they have against the state of texas in other words they can they can investigate the state of texas alleged unfair employment practices they just cannot sue them in federal court exactly limitation that is correct they can investigate us all here i mean if if you refused to turn over information with respect to the felony records of the agency that they were investigating whatever the part of the the seventh circuit sunbonnet decision in acheson where the agency announces a new view of the law makes clear that it's agents are supposed to enforce it in the field and the harm to the regulator one of these is the heightened risk of enforcement action i mean you don't have a question of standing the cars and the a p a i mean all you've got to show is that it is a final action with legal consequences is that correct that is correct ok and so if any as legal consequences i mean even if it's potential legal consequences that have never come to fruition do you still have the right to challenge that regulation we think we do and what do you mean you think you do do one of the cases say not what you think that is what the case say for instance that was there just a principle of law that's my point i agree with my colleague but we just don't have anything other than this is a viewpoint that they have and they've got a lot of viewpoints from time to time it changes unique aspect of this case which is that it purple for the first time this rule purports to preempt contrary state laws so the e e o c has taken the position in this rule the very aggressive position in our view i could  the example in the rule of a county and all that the county does is it enforces state law against hiring criminals and so then they instruct the enforcement personnel to invest in this to get that county and conclude that there's reasonable cause to believe that it violated title seven which in turn triggers the conciliation process it triggers the referral to the d o j it triggers the entire course of apparatus and another element of this rule that again uniquely creates legal consequences we would say your honor is that it contains safe harbors so it provides to circumstances in which the e e o c says very clearly that if you comply with one of these two approaches then we believe that you will consistently meet title seven and there's a number of cases for instance that the circuits opinion and call on and equally the actually the ninth circuit opinion in fairbanks  upon your honor explicitly endorsed the appalachian power opinion and they distinguished it it said it so happens that in this case the the rule does not have an impact on regulated industry as that create a new norm  for the regulated industry but it completely accepted the principle of barrack and appalachian appalachian power and all of those cases which state that if if you are creating a norm and you expect your agents to follow it and you expect the regulated against the state of texas does not constitute legal consequences is that what you're saying that's not legal consequence that certainly would be a legal consequence and one more point i mean they don't have to have the enforcement of the marriage to have legal consequences it means the pick can go into the federal district courts of the state of texas they can enforce a subpoena they can force you to deliver all the records that they want that are relevant to the court's  between a lawyer for a regulated entity and an investigator for the e e o c and the the lawyer for the regulator that he said you should not make an adverse finding against us simply because we did not hear the rule after all you said in your litigation with texas that this rule is not binding but i want you to to try to explain to me though is how do you distinguish this case from a bell curve case and b and the corps of engineers when they said there would be a fact that the agency has said we have jurisdiction over you is not a legal consequence your honor we think the case and that's what they say and here we have a legal we have jurisdiction over you by virtue of this legislative role again because it creates a norm both for the agents to follow and for the regulated than it is to follow and just to return to the exchange between the regulator then the and the investigator the investigator said it would not be wise for you to ignore past and the very reason that the issue of this rule is in order to provide additional legal and factual analysis in order to have a greater chance of having what's the first thought ok thank you must have half and when you have some s what we're talking about here standing in the article three or controversies three not even article three but just having a controversy between the court is not an issue in this case yes ok now how is it  issue is on is i understand tell me i'm wrong because it could be i could be there but as i understand the standard that we determine whether we can review this particular rule is whether it has legal consequences and if it has legal consequences then you don't have to have an actual controversy or you don't have to have an immediate threat of controversy or any other aspect that you usually  to stand is that correct incorrect i think i believe your honor is talking about the a p a cases cited by texas i'm talking about the question i'm talking about not question that is correct but it does not apply here and that's exactly why standing is an issue here because there are no legal consequences the fight that's why the final agency action question x has legal consequences whether it's a final rule within the agency and it has legal consequences is that basically what we're trying to determine your honor we think that is sufficient to affirm the district court and that is the logically into stephen question here and is also dispositive on standing however we note that you need in the article three sense there has to be an injury in fact but when you're a regulated party under a rule that plus consequences normally there would be but here there are no legal consequences and texas has not shown any current enforcement by the department of justice in the argument that it is a controversy and it has legal consequences on us if they can prove that have they satisfied b n in court the only consequences here would be from title seven itself title seven has prohibited disparate impact discrimination from the very beginning from the time that title seven was extended to the states and that's where the guidance didn't change anything in that respect that the guy actually was just consolidating and updating prior policy guidance by the city and so under the statute itself the e e o c does an investigation and if it finds reasonable cause to believe a violation has occurred it then engages in conciliation but that's under title seven itself and the guidelines they are are there just to make the agency more transparent so employers will know the if if if if applying of whose application was rejected could have a jury and i don't know if you'd ever get a jury against the state maybe you would the judge would have to give a chart which give more deference to a new that would be that would be something the plaintiff would don't know it does not control the actions of the or any regulated parties because if you look at the guidance there's nothing in there that provides directives to employers that they have to have certain policies or can't have other policies called guidance but the reason the d c circuit itself distinguish between up in power and eighteen is there the e p a and its guidance said it will insist that state and local authorities comply with in setting the terms and conditions of permits so that is actually is a new norm and it's binding in her future permit applications there's nothing analogous in this guidance but you could run a point  statement of policy that it that's intended to avoid trying to go as far as it can go without bringing us up to the rule well of this court i think it's decision looming and is is very instruct so it's in women and in people's national bank the court has noted that if the what the agency has done is not pretty is not setting any new norms or providing any new requirements for it and it's just and where are the legal requirements come from is the underlying law but just to state the agency's view of what the law is is not final agency action and because c two thousand ease seven it there website cites the relevant provision and that's what it's saying would preempt a contrary state law so it's not the guidance isn't purporting to do that it solved its title it's just citing the provision of title seven that does insists on compliance with its regulate then it is a final agency action regardless of whether or not we formally speaking have a force of law so the question is is this a case like appalachian power in which he was he will insist on that facially troll state laws against hiring criminals are not a shield against title seven liability and that is precisely the opposite of the position that the united states took in the supreme court just seven years ago in the and there they said there they said that there is no support for that position in the text of title seven they said they're completely vitiates the business necessity defense because of course it is a business necessity for business to comply with state laws and that it puts employers in the impossible position of having to decide whether to follow state law or whether to follow the e e o c is interpretation of federal law and so when you have an agency that takes this radical new position announces it with the force of law demands that regulated entities follow it that is a parody of magic example of final agency action in addition my friend insists that there is no mandatory language in the rule in fact we're we've cited many examples of mandatory languages of requirements that it purports to impose both on the uses agents and on the state so for instance it says that in order to prove business necessity an employer must show a specific link between a given crime and then the given the given job and the dangers of working in that given job so what that means is all of our policies which are sort of blanket refusals to hire criminals for certain sensitive areas of government they're all inconsistent with that so now we're having to face potential enforcement from the d o j with respect to a wide range of our laws and so that's putting us on the horns of a compliance dilemma that is created standing right by us and finally agency action for decades your honor and we would also say that the again they have not addressed the safe harbor point in cohen the d c circuit pointed out that if you give the regulated entities  norm to follow if you say just do these things and there will be no unfortunately against you that is a mark of final agency action and it's essentially uncontested that this rule does that it says you know if you have a targeted scream that is followed by an individualized assessment that is safe and so there is clearly an attempt to influence the behavior of regulated aunties and that also makes it a final agency action so short of the rule of law as does the agency have the expectation that regulated parties will opponent you must show up at least a current threat of legal consequence of that we disagree with that we think it merely has to be reasonable to expect that there will be a threat of legal consequences you have to show more than a theoretical three sure but we think that this is very real here because first of all again we have an example of agency personnel threatening regulating and use for not complying with the rule we all think it's very clear