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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

STATE OF TEXAS, et al.

Plaintiffs

v.

UNITED STATES OF AMERICA, et al.

Defendants

)

))

))

)

))

)

Civil Action No. 7:15-cv-00056-O

DEFENDANTS’ MOTION TO DISSOLVE PRELIMINARY INJUNCTION

Case 7:15-cv-00056-O Document 40 Filed 04/27/15 Page 1 of 28 PageID 706

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TABLE OF CONTENTS

PRELIMINARY STATEMENT ...................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

ARGUMENT .................................................................................................................................. 3

I. Standard of review .................................................................................................. 3

II. The plaintiffs are unlikely to carry their burden to establish subject matter jurisdiction. ............................................................................................................. 4

A. Texas cannot meet the “injury in fact” requirement of standing................. 4

B. Even if Texas can establish standing, the other plaintiff states cannot. ...... 8

C.

Federal courts cannot hear suits brought by state authorities seeking toestablish that their own laws are not preempted by federal law. ................ 9

III. The plaintiffs’ complaint fails to state any valid claim for relief. ......................... 10

A. The courts of the plaintiff states have not interpreted their states’ laws in away that would prohibit compliance with the February 2015 rule, and this

Court should not put itself ahead of the state courts by adopting such an

unprecedented interpretation. .................................................................... 10

B. Section 2 of the federal Defense of Marriage Act does not pertain to

anything less than full legal recognition of a marriage under state law. ... 15

C. The February 2015 rule should be upheld as valid under a straightforwardapplication of the Chevron two-step analysis. .......................................... 17

D. United States v. Windsor reaffirmed that federal laws that draw lines basedon marriage do not necessarily have to track state-law definitions of

marriage. ................................................................................................... 19

E. The plaintiffs’ other claims fail for reasons the defendants explained

earlier......................................................................................................... 20

IV. The plaintiffs have not shown a threat of irreparable harm. ................................. 20

V. The plaintiffs have not shown that the balance of equities tips in their favor or thatan injunction is in the public interest. ................................................................... 21

CONCLUSION ............................................................................................................................. 21


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TABLE OF AUTHORITIES

CASES

Adar v. Smith,

639 F.3d 146 (5th Cir. 2011) (en banc) ................................................................. 16

Arizona v. United States,

132 S. Ct. 2492 (2012) ................................................................................ 2, 14, 15

Ashcroft v. Iqbal ,

556 U.S. 662 (2009) ................................................................................................ 7

Calderon v. Ashmus,523 U.S. 740 (1998) ................................................................................................ 8

Chevron U.S.A. Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) .................................................................................... 2, 17, 19

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) .................................................................................................. 6

City of New York v. FCC ,

486 U.S. 57 (1987) ................................................................................................ 10

City of Rome v. Verizon Commc’ns, Inc.,

362 F.3d 168 (2d Cir. 2004) .................................................................................... 9

Crane v. Johnson,

No. 14-10049, 2015 WL 156662 (5th Cir. Apr. 7, 2015) .................................... 4, 6

Davis v. Fed. Election Comm’n,554 U.S. 724 (2008) ................................................................................................ 8

Diamond v. Charles,

476 U.S. 54 (1986) .................................................................................................. 5

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ........................................................................................ 17, 18

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust ,463 U.S. 1 (1983) .............................................................................................. 9, 10

Gearhart Indus., Inc. v. Smith Int’l, Inc.,741 F.2d 707 (5th Cir. 1984) ................................................................................. 20

Ghassemi v. Ghassemi,

998 So.2d 731 (La. Ct. App. 2008) ....................................................................... 13


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Huron Portland Cement Co. v. City of Detroit ,

362 U.S. 440 (1960) .............................................................................................. 15

In re Marriage of J.B. & H.B.,

326 S.W.3d 654 (Tex. App. 2010) ......................................................................... 13

Jackson Women’s Health Org. v. Currier ,760 F.3d 448 (5th Cir. 2014) ................................................................................. 20

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ................................................................................................ 7

Mance v. Holder ,

Civil Action No. 4:14-cv-539-O, 2015 WL 567302 (N.D. Tex. Feb. 11, 2015) ..... 6

Merrell Dow Pharm. Inc. v. Thompson,

478 U.S. 804 (1986) ................................................................................................ 9

Mullaney v. Wilbur ,

421 U.S. 684 (1975) .............................................................................................. 11

Mut. Pharm. Co. v. Bartlett ,133 S. Ct. 2466 (2013) .......................................................................................... 11

Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm.,283 F.3d 650 (5th Cir. 2002) ................................................................................. 15

Spiegel v. City of Houston,

636 F.2d 997 (5th Cir. Unit A Feb. 1981) ............................................................. 20

State Nat’l Bank of Big Spring v. Lew,

958 F. Supp. 2d 127 (D.D.C. 2013) ........................................................................ 5

State v. Naylor ,

330 S.W.3d 434 (Tex. App. 2011) ......................................................................... 12

Susan B. Anthony List v. Driehaus,

134 S. Ct. 2334 (2014) ............................................................................................ 6

TTEA v. Ysleta del Sur Pueblo,

181 F.3d 676 (5th Cir. 1999) ................................................................................. 10

United States v. Windsor ,

133 S. Ct. 2675 (2013) ...................................................................................... 2, 19

Vaughn v. St. Helena Parish Police Jury,

261 F. Supp. 2d 553 (M.D. La. 2002) ..................................................................... 3


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Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ................................................................................................ 8

Wyeth v. Levine,

555 U.S. 555 (2009) .............................................................................................. 10

CONSTITUTIONAL PROVISIONS

Full Faith and Credit Clause, U.S. Const. art. IV, § 1 ....................................................... 16

FEDERAL STATUTES

Defense of Marriage Act, 1 U.S.C. § 7 ............................................................................. 18

Defense of Marriage Act, 28 U.S.C. § 1738C ........................................................... passim

Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ............................ passim

FEDERAL REGULATIONS

29 C.F.R. § 825.300(a) ........................................................................................................ 7

STATE STATUTES

Ark. Code Ann. § 9-11-208(a)(3) ...................................................................................... 13

Tex. Civ. Prac. & Rem. Code § 71.004 ............................................................................. 12

Tex. Estates Code ch. 201 ................................................................................................. 12

Tex. Fam. Code § 6.204 ........................................................................................ 12, 13, 14

OTHER AUTHORITIES

Attorney General of Texas, Opinion No. GA-1003 (Apr. 29, 2013) ................................ 14

City of Fort Worth, City’s Survival Benefits Will Soon Apply to All Legally MarriedCouples, The Roundup (Jan. 27, 2015) ................................................................. 14

City of Fort Worth, Employee Benefits ............................................................................ 13

City of Smyrna, Personnel Policies and Procedures: Benefit Eligibility .......................... 14

Defense of Marriage Act, H.R. Rep. No. 104-664 (1996) .......................................... 15, 16

Definition of Spouse Under the Family and Medical Leave Act, 80 Fed. Reg. 9989 (Feb.25, 2015). .............................................................................................................. 10


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Transcript of Hearing on Motions for Summary Judgment, Mance v. Holder , Civil Action

No. 4:14-cv-539-O, 2015 WL 567302 (N.D. Tex. Feb. 11, 2015) .......................... 6

Wage and Hour Division, U.S. Dep’t of Labor, Fiscal Year Statistics for WHD ............... 7


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PRELIMINARY STATEMENT

The plaintiffs in this case are challenging a February 2015 rule issued by the Department

of Labor revising the regulatory definition of the term “spouse” under the federal Family and

Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq., to refer to the law of the place

where an employee celebrated his or her marriage instead of the law of the place where the

employee resides. On March 26, 2015, the Court granted the plaintiffs’ request for a preliminary

injunction against application of the rule. For the reasons presented in the defendants’ earlier

opposition memorandum, discussed at the April 10, 2015, hearing, and discussed further below,

the preliminary injunction should not have issued and now should be dissolved. The plaintiffs

have not shown a likelihood of success on the merits and have not met the other requirements for

issuance of a preliminary injunction.

The challenged February 2015 rule has no application outside the narrow scope of the

federal FMLA. It does not displace state marriage law or interfere with the enforcement of state

marriage laws in any way. The plaintiffs’ assertion that the February 2015 rule forces state

authorities to violate the laws of Texas and the other plaintiff states depends on unprecedented

and ultimately unjustified interpretations of those state laws. The plaintiffs have not cited, and

the Government is not aware of, any decision by the courts of the plaintiff states suggesting that

any of the plaintiff states’ marriage laws would prohibit state officials from complying with

federal spousal-leave requirements under the February 2015 rule, and those laws could easily be

construed more narrowly. The plaintiffs are asking this Court to stretch the meaning of the laws

of five different states without solid grounds for doing so and before the courts of any of those

states have spoken on the issues. The Supreme Court has warned against such sweeping action; it

has repeatedly held that federal courts should not “seek[] out conflicts between state and federal


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regulation where none clearly exists.” Arizona v. United States, 132 S. Ct. 2492, 2510 (2012)

(quoting Huron Portland Cement Co. v. City of Detroit , 362 U.S. 440, 446 (1960)).

The plaintiffs’ claims that the February 2015 rule conflicts with the Constitution or other

federal laws are also unfounded. The rule is compatible with section 2 of the Defense of

Marriage Act, 28 U.S.C. § 1738C. The legislative history as well as the language and structure of

that provision favor interpreting that statute narrowly and reading it as at most addressing only

the issue of full legal recognition of out-of-state marriages. And the February 2015 rule should be

upheld under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), because Congress left

open how to resolve differences between different states’ marriage laws in the definition of

“spouse,” and the rule resolves that issue in a way that is fully consonant with the policy goals

underlying the FMLA. Finally, United States v. Windsor , 133 S. Ct. 2675 (2013), does not call

the validity of the rule into question; the Supreme Court in Windsor reaffirmed that federal laws

that draw lines based on marriage do not necessarily have to track state-law definitions of

marriage.

The plaintiff states also did not produce sufficient evidence to support their claims of

impending irreparable harm. Texas’s declaration was slim and conclusory, and the other states

submitted no evidence at all. The preliminary injunction should be dissolved entirely, but even if

it is left in place with respect to Texas, it should certainly be dissolved with respect to the other

states.

BACKGROUND

The defendants fully summarized the relevant statutory and regulatory background of this

case in their earlier opposition memorandum and do not repeat their earlier account here. See

Defs.’ Opp’n to Pl.’s Appl. for a Prelim. Inj. (Defs.’ Prelim. Inj. Opp’n) 3–5, ECF No. 11.


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The procedural background of this case merits a brief review. Plaintiff Texas filed its

complaint and motion for preliminary injunction on March 18, 2015. See Defs.’ Prelim. Inj.

Opp’n 6 (summarizing the complaint and motion). After the defendants filed their opposition to

the plaintiffs’ motion for preliminary injunction, the plaintiffs filed an amended complaint adding

the states of Arkansas, Louisiana, and Nebraska as plaintiffs. Am. Compl. for Declaratory and

Injunctive Relief and Appl. for TRO and Prelim. Inj./Stay of Administrative Proceedings, ECF

No. 14.

On March 26, 2015, the Court entered a preliminary injunction staying the application of

the February 2015 rule. Mem. Op. and Order, ECF No. 18. At the Court’s invitation, see Mem.

Op. and Order 24, the defendants requested a hearing on the matter, Defs.’ Req. for Hr’g, ECF

No. 19, and the Court held a hearing on April 10, 2015, Tr. of Mots. Hr’g, ECF No. 29. The

Court directed the defendants to file an appropriate motion seeking dissolution of the preliminary

injunction.

On April 24, 2015, the plaintiffs filed a second amended complaint adding Georgia as a

plaintiff. Second Am. Compl. for Declaratory and Injunctive Relief and Appl. for TRO and

Prelim. Inj./Stay of Administrative Proceedings (Second Am. Compl.), ECF No. 35.

ARGUMENT

I. Standard of review

A court’s authority to issue a preliminary injunction includes authority to modify or

dissolve a preliminary injunction once issued. Generally, a court evaluating a request to dissolve

a preliminary injunction applies the same analysis that it uses in evaluating a request to issue a

preliminary injunction. See Vaughn v. St. Helena Parish Police Jury, 261 F. Supp. 2d 553, 556

(M.D. La. 2002) (citing Parks v. Dunlop, 517 F.2d 785, 787 (5th Cir. 1975) (per curiam)).


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The Court noted at the April 10 hearing that it did not intend to restrict the scope of the

present motion to arguments raised or authorities cited in the defendants’ preliminary injunction

opposition. See Tr. of Mots. Hr’g 43:6–17. The Court’s approach is sensible and appropriate in

that regard, since the defendants did not have an opportunity to address arguments, evidence, or

issues that were introduced for the first time in the plaintiffs’ amended complaint, in the

plaintiffs’ reply memorandum, or in the Court’s March 26 opinion.

II. The plaintiffs are unlikely to carry their burden to establish subject matter

jurisdiction.

A. Texas cannot meet the “injury in fact” requirement of standing.

Texas cannot establish an actual or imminent injury supporting standing and therefore

cannot establish a likelihood of success on the merits. See, e.g., Crane v. Johnson, No. 14-10049,

2015 WL 1566621, at *4 (5th Cir. Apr. 7, 2015) (noting that Article III requires an “actual or

imminent” injury, and “[a]llegations of possible future injury” are not enough (alteration in

original)).

Texas has alleged that its agencies have received “inquiries” regarding their FMLA

policies, apparently in an effort to suggest that the state will be called upon to grant leave in

accordance with the regulation in the near future. But that is far too vague to establish standing.

To establish standing, Texas would need to make a more specific showing of “actual” or

“imminent” injury from the February 2015 rule—by showing, for example, (1) that those

inquiries came from state employees; (2) that those employees are likely to request FMLA leave

specifically, and not another form of leave such as paid annual leave or sick leave; and (3) that

those employees would qualify for leave under the new rule, but would not have qualified under

the old rule. Cf. Crane, 2015 WL 1566621 at *5 (holding that the state of Mississippi lacked

standing to challenge a federal program because it failed to allege specific facts indicating that it


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would incur increased costs attributable specifically to that program). Indeed, when pressed on

this point at the April 10 hearing, Texas’s attorneys alluded only to “State agency inquiries to the

Attorney General,” and said nothing about inquiries coming from employees seeking to take

leave. See Tr. of Mots. Hr’g 35:5–20.

Texas also alleges that state agencies will incur costs familiarizing themselves with the

regulation. But costs associated with studying a new regulation are not the kind of injuries that

can support standing to challenge the regulation. Rather, “standing requires an injury with a

nexus to the substantive character of the statute or regulation at issue.” Diamond v. Charles, 476

U.S. 54, 70 (1986) (holding that a dispute over attorney’s fees did not establish standing to

challenge the validity of a statute because the fee dispute was “unrelated to the subject matter of

the litigation”); see also State Nat’l Bank of Big Spring v. Lew, 958 F. Supp. 2d 127, 153 (D.D.C.

2013) (holding that a plaintiff cannot establish standing based on costs it incurs “to identify its

statutory obligations, or indeed to determine if it even has any”), appeal docketed , Nos. 13-5247,

13-5248 (D.C. Cir. argued Nov. 19, 2014).

Texas also cannot establish standing based on the fact that it is required to provide notice

to employees of the requirements of the FMLA. Given that the plaintiffs are required to provide

notice of FMLA rights with or without the new regulation, it appears the plaintiffs are asserting

more specifically that they will suffer injury in the form of the cost associated with updating their

existing notices to match the new rule. That claim fails to meet the requirement discussed

above—that to support a showing of standing, the purported injury have a “nexus to the

substantive character of the . . . regulation at issue.” Diamond , 476 U.S. at 70. Moreover, to the

extent that Texas’s present notices are arguably inaccurate because they imply that the term

“spouse” under the FMLA is defined by the Texas Family Code in all cases, see Second Am.


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Compl. ¶ 29 & Ex. E at 45, that does not accurately reflect either the older “place of residence”

rule or the new “place of celebration” rule—under the place-of-residence rule, the Texas Family

Code would not affect the FMLA rights of Texas state government employees who resided

outside Texas. So whatever need Texas has to correct its notices is not caused by the new

regulation and would not be eliminated if the new regulation were invalidated.1

1 At the April 10 hearing, the Court asked the Federal Government whether, if Texas

believed that its written policies accurately reflected the old rule, the need to update written

policies to match the new rule could then qualify as injury-in-fact. See Tr. of Mots. Hr’g 17:15– 18:4. It still would not qualify as injury-in-fact traceable to the regulatory amendment that Texas

is challenging. Texas was required to provide notice of its written policies before and after thatamendment took effect. Standing depends on actualities, not a plaintiff’s own beliefs or

perceptions. A plaintiff cannot manufacture standing based on its erroneous subjective belief thata new rule requires action that the previous rule did not. Cf. City of Los Angeles v. Lyons, 461

U.S. 95, 107 n.8 (1983) (“It is the reality of the threat of . . . injury that is relevant to the standing

inquiry, not the plaintiff’s subjective apprehensions.”); Crane, 2015 WL 1566621 at *5 (holdingthat the plaintiffs’ subjective belief that the challenged policy would require them to violate their

oaths to uphold the laws of the United States did not qualify as injury in fact).Moreover, Texas has not shown that it would face any credible threat of enforcement

action if it failed to update its written notices. See generally Susan B. Anthony List v. Driehaus,

134 S. Ct. 2334, 2342 (2014) (explaining that a plaintiff claiming injury from “threatenedenforcement of a law” usually must establish a “credible threat of enforcement”). At the April 10

hearing, the Court expressed concern that this argument might be in tension with a concession

made by the Government in Mance v. Holder , Civil Action No. 4:14-cv-539-O, 2015 WL 567302(N.D. Tex. Feb. 11, 2015), appeal docketed , No. 15-10311 (5th Cir. Apr. 14, 2015). In Mance, the

Government stated at a hearing that “[i]f a law is . . . applicable to . . . a proposed course of

conduct, it doesn’t require a plaintiff to be under imminent threat of prosecution in order to have

standing.” Transcript of Hearing on Motions for Summary Judgment at 43:3–6, Mance, 2015 WL567302. When the Government made this statement, however, it did not mean to suggest that the

firearms dealer plaintiff in Mance never had any need to establish a credible threat of

enforcement. Rather, the Government in Mance intended to concede only that that plaintiff methis burden to establish a credible threat of enforcement, as the Government clarified a moment

later. See id. 43:16–18 (“We no longer contend that the law would not apply to Mr. Mance or

that he has no sufficient fear of prosecution.” (emphasis added)).At the April 10 hearing, the Court inquired about the enforcement of the FMLA. Tr. of

Mots. Hr’g 44:2–12. Based on a review of records and information that are readily available for

current review, it appears that the Department of Labor initiated litigation in at least six civil

actions that involved allegations, requests for relief, court-awarded relief, or settlements relatedto an employer’s failure to provide adequate notice of employee rights under the FMLA. See

Decl. of Rachel Goldberg ¶ 3 (attached as Exhibit 1). In the course of the review conducted to

(continued . . .)


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The states also cannot establish standing based on supposed interference with state law,

see Second Am. Compl. ¶ 28; Reply in Supp. of Appl. for TRO and Prelim. Inj./Stay of

Administrative Proceedings 2–4, ECF No. 15. The challenged rule does not “enjoin” operation of

state law in any sense. Indeed, the state of Georgia was not covered by this Court’s March 26,

respond to the Court’s inquiry, the Department of Labor did not locate any affirmative indication

that any of these past civil enforcement actions pertained to interference with FMLA rights in theform of a failure to promptly update a posted notice to reflect recent amendments to regulations.

Decl. of Rachel Goldberg ¶ 4. However, in light of the passage of time and the limitations of

available records, the Department of Labor is not in a position to speak definitively aboutwhether it has ever initiated litigation in such circumstances. Decl. of Rachel Goldberg ¶ 4.

In addition, the Department of Labor has received and investigated many FMLAcomplaints that did not lead to civil enforcement actions in district court. Decl. of Rachel

Goldberg ¶ 5. Tabulations of complaints regarding compliance with the FMLA from federalfiscal year 2007 to federal fiscal year 2014 are available on the Department of Labor’s Web site.

See Wage and Hour Division, U.S. Dep’t of Labor, Fiscal Year Statistics for WHD, http://www

.dol.gov/whd/statistics/statstables.htm#fmla (last visited Apr. 27, 2015).Finally, the Department of Labor’s records indicate that it has assessed civil money

penalties for violations of the FMLA’s general notice requirement, see 29 U.S.C. § 2619; 29C.F.R. § 825.300(a), on 14 occasions since federal fiscal year 2001. See Decl. of Rachel

Goldberg ¶ 6.

In its inquiry, the Court also mentioned enforcement of the Americans with DisabilitiesAct of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights

Act of 1964 by the Department of Labor and enforcement action taken by the Equal Employment

Opportunity Commission. Tr. of Mots. Hr’g 44:2–8. The Department of Labor does not have primary enforcement responsibility for the ADA and Title VII; its involvement in enforcing those

statutes is restricted to limited circumstances in which the Department’s Office of Federal

Contract Compliance Programs acts as an agent of the EEOC in resolving certain claims

involving federal contractors. The EEOC has no responsibility for enforcement of the FMLA.Further information regarding enforcement of the ADA or Title VII or EEOC enforcement action

therefore has no apparent bearing on whether Texas would face any credible threat of

enforcement with respect to the notice provisions of the FMLA. However, if the Court seeksadditional specific information regarding ADA or Title VII enforcement or EEOC enforcement,

the defendants request that the Court clarify what information it is seeking so that the defendants

can make appropriate inquiries.The Department is providing this information in light of the Court’s inquiry and not

because of any need to counter the plaintiffs’ position that they have standing. It is the plaintiffs’

burden to establish standing—not the defendants’ burden to disprove standing. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992); Ashcroft v. Iqbal , 556 U.S. 662, 678–79 (2009)(noting that if the allegations of a plaintiff’s complaint are legally insufficient, a plaintiff is not

entitled to discovery to find further support for those allegations).


http://www.dol.gov/whd/statistics/statstables.htm#fmlahttp://www.dol.gov/whd/statistics/statstables.htm#fmlahttp://www.dol.gov/whd/statistics/statstables.htm#fmlahttp://www.dol.gov/whd/statistics/statstables.htm#fmla

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2015, preliminary injunction, and so the Department of Labor was not enjoined from applying

the rule in Georgia after the rule went into effect on March 27, 2015. That has not hindered

Georgia from enforcing its marriage laws since that date.

Finally, the plaintiffs cannot establish standing based on potential exposure to future

lawsuits. They have not shown that any future lawsuits will materialize, nor can they show that a

ruling in this case will directly forestall or resolve any future lawsuit. See Calderon v. Ashmus,

523 U.S. 740, 749 (1998) (finding that when a suit merely seeks resolution of a legal issue that

may arise in future litigation, but the outcome of the suit will not itself “completely resolve” any

material dispute, the suit fails to meet the Article III case or controversy requirement).

B. Even if Texas can establish standing, the other plaintiff states cannot.

Even if Texas could establish standing, the other plaintiff states cannot, and so a

preliminary injunction should be dissolved with respect to the other states even if it is left in

place with respect to Texas.

When multiple plaintiffs are all bringing the same claim, the court only needs to evaluate

whether at least one of the plaintiffs has standing. See Vill. of Arlington Heights v. Metro. Hous.

Dev. Corp., 429 U.S. 252, 263–64 (1977). But when an action includes more than one claim, the

“plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief

that is sought.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)) (internal quotation marks omitted).

Accordingly, when a group of plaintiffs is bringing several distinct claims, the plaintiffs must

show that, for each individual claim, there is at least one plaintiff that has standing. Here, to the

extent that the plaintiff states are bringing claims based on supposed conflicts with state law,

each state is asserting a different claim—Texas is claiming a conflict with Texas law; Arkansas is


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claiming a conflict with Arkansas law, and so on. Each state must separately establish standing to

bring these claims.

Even if Texas could establish standing to challenge the application of the February 2015

rule to Texas state government employees, the complaint does not adequately allege any injury to

any plaintiff arising out of application of the rule to employees of other states’ governments.

Accordingly, even if the preliminary injunction is left in place with respect to Texas, it should be

dissolved with respect to the other states.

C. Federal courts cannot hear suits brought by state authorities seeking to

establish that their own laws are not preempted by federal law.

The defendants also noted in their preliminary injunction opposition that under Franchise

Tax Board of California v. Construction Laborers Vacation Trust , 463 U.S. 1 (1983), federal

courts lack jurisdiction to hear suits brought by state authorities seeking to establish that their

own regulations are not preempted by federal law.

The Court’s March 26 opinion noted that the Supreme Court, in Merrell Dow

Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986), and the Second Circuit, in City of Rome

v. Verizon Communications, Inc., 362 F.3d 168 (2d Cir. 2004), downplayed certain statements in

Franchise Tax Board and said they should be read narrowly. See Mem. Op. and Order 19 (citing

City of Rome, 362 F.3d at 176 & n.5). But Merrell Dow and City of Rome were discussing a

different part of the Franchise Tax Board opinion—specifically, a passage that appeared to

suggest that the presence of a federal issue in a state-law cause of action is sufficient to establish

federal jurisdiction. See Merrell Dow, 478 U.S. at 808–09; City of Rome, 362 F.3d at 176 & n.5.

That is not the part of the Franchise Tax Board holding that the Government is relying on in this

case. The principle the Government is relying on—that states cannot bring suit in federal court to

establish that their own regulations are not preempted—has not been narrowed by later decisions


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and applies with full force here. See TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir.

1999) (quoting and summarizing this part of the Franchise Tax Board holding).

The states attempt to escape Franchise Tax Board by arguing that a suit seeking to

establish that state laws are not preempted is different from a suit seeking to challenge the

validity of a federal regulation on the ground that it impermissibly attempts to preempt state law.

But a contention that a federal regulation does not validly preempt state law is generally not a

basis for challenging the validity of the regulation. When a federal law is found not to preempt

state law, the result is generally just that the state law survives preemption, and the federal law

and the state law both remain operative.

2

See, e.g., Wyeth v. Levine, 555 U.S. 555, 581 (2009)

(finding that an FDA rule did not preempt state tort law and simply allowing a state court

judgment to stand, without declaring the FDA rule invalid).

III. The plaintiffs’ complaint fails to state any valid claim for relief.

A. The courts of the plaintiff states have not interpreted their states’ laws in a

way that would prohibit compliance with the February 2015 rule, and this

Court should not put itself ahead of the state courts by adopting such an

unprecedented interpretation.

As the defendants explained in their preliminary injunction opposition, the challenged

rule does not create any conflict between federal law and state marriage laws. The February 2015

2 There is one circumstance in which the preemptive effect of a federal agency action

affects the validity of the action—when a federal agency adopts a rule that expressly precludes

parallel state regulation, the validity of that express preclusion can be tested in judicial review.That is why the plaintiffs in City of New York v. FCC , 486 U.S. 57 (1987), were able to seek

judicial review of FCC rules that imposed express limits on state regulatory action. See id. at 61–

62 (describing the plaintiffs’ challenge against cable regulations that precluded certain localregulation). In this case, however, the Department of Labor did not expressly preclude state

regulation; on the contrary, the Department of Labor assumed that its rule was wholly compatible

with state law. See Definition of Spouse Under the Family and Medical Leave Act, 80 Fed. Reg.

9989, 9994, 9999 (Feb. 25, 2015) (noting that the February 2015 rule did not conflict with statelaw or raise significant federalism concerns). As explained below, that assumption was correct;

there is no conflict between state and federal law in this case.


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rule affects only leave rights under one federal law, the FMLA; it does not require any state to

grant a marriage license to any person and does not change any individual’s marital status for any

purpose as a matter of state law. The plaintiffs’ assertion that state laws prohibit state employees

from complying with the February 2015 rule rests on an unprecedented and ultimately

unjustified interpretation of the laws of the plaintiff states.

If the law of one of the plaintiff states did strictly prohibit compliance with the

Department of Labor’s FMLA regulations, then that state’s law would be preempted in that

respect, regardless of whether Congress ever intended any preemption of state law. See Mut.

Pharm. Co. v. Bartlett , 133 S. Ct. 2466, 2473 (2013) (noting that when it is strictly impossible

for a private party to comply with both state and federal requirements, the federal requirement

prevails, and “no inquiry into congressional design” is necessary in such a case (quoting Fla.

Lime & Avocado Growers, Inc. v. Paul , 373 U.S. 132, 142–43 (1963))). But this case does not

present any preemption issue, because there is simply no reason to read any of the plaintiff states’

laws as prohibiting compliance with the February 2015 rule.

The laws of the plaintiff states at most prevent state authorities from granting full legal

recognition to marriages between persons of the same sex—that is, at most, they prevent state

authorities from according an out-of-state marriage the same status under state law as an in-state

marriage. The attorney general’s offices of the plaintiff states argue for a broader interpretation of

state laws restricting marriage, and their views may be entitled to some weight. But it is the

highest court of a state—not its attorney general—that is the “ultimate expositor[] of state law.”

Mullaney v. Wilbur , 421 U.S. 684, 691 (1975). The plaintiffs have not cited any decision from the

courts of any of the plaintiff states that would suggest that state law would prohibit state


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authorities from following the February 2015 rule in complying with the federal FMLA. Indeed,

there are abundant reasons not to interpret the plaintiff states’ laws in such a manner.

Texas points to Texas Family Code § 6.204, which provides that state authorities shall not

“give effect” to a “public act, record, or judicial proceeding that creates, recognizes, or validates

a marriage between persons of the same sex” or a “right or claim to any legal protection, benefit,

or responsibility asserted as a result of a marriage between persons of the same sex.” Id.

§ 6.204(c). Texas Family Code § 6.204 is best interpreted as speaking at most only to the

treatment of marriages under Texas state law, and “rights” and “claims” that attach based on

marriage under state law, such as rights of intestate succession and the right to recover for the

wrongful death of a spouse. See Tex. Civ. Prac. & Rem. Code § 71.004 (wrongful death); Tex.

Estates Code ch. 201 (intestate succession). Nothing in the statute suggests that it would bar state

authorities from following the February 2015 rule in complying with the federal FMLA.

The Texas courts have never held that § 6.204 operates so broadly that it would restrict

compliance with the FMLA. The meaning of § 6.204 remains unsettled as a matter of Texas law.

There are two cases pending before the Supreme Court of Texas in which the court is considering

the implications of the provision for granting divorces under Texas state law to persons married

to persons of the same sex under the laws of other states.3 In one of those cases, the court of

appeals remarked that § 6.204 could readily be given a narrower interpretation than the

interpretation Texas’s attorneys were suggesting in that case. See State v. Naylor , 330 S.W.3d

434, 441–42 (Tex. App. 2011). In the other case, a court of appeals concluded that § 6.204

3 In re Marriage of J.B. & H.B., No. 11-0024 (Tex. argued Nov. 5, 2013); State v. Naylor ,

No. 11-0114 (Tex. argued Nov. 5, 2013). On April 17, 2015, the petitioner in In re Marriage of J.B. & H.B. filed a motion to dismiss the case as moot, based on the death of his spouse, and

vacate the rulings below.


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prohibited giving “any effect whatsoever ” to a marriage, but the court’s analysis was confined to

effects under state law; the court did not have occasion to consider whether § 6.204 would ever

restrict compliance with a federal statute. In re Marriage of J.B. & H.B., 326 S.W.3d 654, 666

(Tex. App. 2010).

Similarly, there is no reason in the constitutions, statutes, or state court decisions of the

four other plaintiff states to conclude that state law restricts state authorities from following the

February 2015 rule in complying with the FMLA. Indeed, these state-law sources only weigh

against the plaintiffs’ interpretation. The Arkansas Code explicitly provides that its restrictions on

marriages of same-sex couples do not “prevent an employer from extending benefits to a person

who is a domestic partner of an employee.” Ark. Code Ann. § 9-11-208(a)(3). And a Louisiana

appeals court in one marriage-related case observed that determining whether a marriage is valid

in the place of celebration, and evaluating the consequences of that determination, is not the

same as “giving effect” to a marriage under state law. In Ghassemi v. Ghassemi, 998 So.2d 731

(La. Ct. App. 2008), a family court had reasoned that it should not examine the validity of a

marriage under Iranian law because doing so would unduly “give effect to the laws of Iran and/or

a marriage document issued by Iran.” Id. at 740. The court of appeals rejected the family court’s

reasoning, explaining that “determining whether a foreign marriage is valid where contracted . . .

does not equate to enforcing a foreign law here [in Louisiana].” Id.

Other governmental authorities within Texas and the other plaintiff states have not

subscribed to the view that their states’ marriage restrictions speak to anything other than full

legal recognition of marriages. The City of Fort Worth, for example, provides spousal health care

and survivor benefits to employees who are validly married to persons of the same sex under the

laws of other states. See City of Fort Worth, Employee Benefits, http://fortworthtexas.gov


http://fortworthtexas.gov/benefits/employee/http://fortworthtexas.gov/benefits/employee/

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/benefits/employee/ (last visited Apr. 27, 2015); City of Fort Worth, City’s Survival Benefits Will

Soon Apply to All Legally Married Couples, The Roundup (Jan. 27, 2015), http://fortworthtexas

.gov/roundup/news/?id=138060 (last visited Apr. 27, 2015). The city of Smyrna, Georgia,

similarly provides various spousal benefits to city employees married to persons of the same sex.

See City of Smyrna, Personnel Policies and Procedures: Benefit Eligibility, https://smyrnacity

.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-

87A41BD31FC6 (text of a policy adopted by the City Council of the City of Smyrna on January

5, 2015).

Texas’s expansive interpretation of Texas Family Code § 6.204 also appears to be a recent

invention. Just two years ago, the Texas Attorney General issued an opinion in which he stopped

short of expressing any view on whether providing employee benefits based on same-sex

relationships would contravene Texas law. See Attorney General of Texas, Opinion No.

GA-1003, at 3 n.5 (Apr. 29, 2013), available at https://www.texasattorneygeneral.gov/opinions

/opinions/50abbott/op/2013/pdf/ga1003.pdf. Indeed, that opinion quoted legislative history

suggesting that providing employee benefits based on same-sex relationships would not offend

Texas law. See id. at 4–5. Also, neither Texas nor the other plaintiff states ever challenged the

place-of-residence rule that was in effect since 1995, even though that earlier rule required states

to look to other states’ laws when determining the FMLA rights of state employees who resided

in different states.

Ultimately, the plaintiff states are asking this Court to apply the same tenuous and

unprecedented interpretation to the laws of five different states without any support and without

any endorsement of that interpretation from the states’ courts. The Supreme Court has warned

federal courts against this kind of overreaching. In Arizona v. United States, 132 S. Ct. 2492


http://fortworthtexas.gov/benefits/employee/http://fortworthtexas.gov/roundup/news/?id=138060http://fortworthtexas.gov/roundup/news/?id=138060https://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6https://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6https://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6https://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2013/pdf/ga1003.pdfhttps://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2013/pdf/ga1003.pdfhttps://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2013/pdf/ga1003.pdfhttps://www.texasattorneygeneral.gov/opinions/opinions/50abbott/op/2013/pdf/ga1003.pdfhttps://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6https://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6https://smyrnacity.legistar.com/View.ashx?M=F&ID=3305035&GUID=2205D0FF-7827-4F24-A774-87A41BD31FC6http://fortworthtexas.gov/roundup/news/?id=138060http://fortworthtexas.gov/roundup/news/?id=138060http://fortworthtexas.gov/benefits/employee/

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(2012), the Supreme Court held that it would be premature to find any conflict between an

Arizona law and a federal law when there was a “basic uncertainty” about the meaning of the

Arizona law and the state’s courts had not issued any definitive interpretation. The Court quoted

an earlier case, Huron Portland Cement Co. v. City of Detroit , 362 U.S. 440 (1960), that

inveighed against “seeking out conflicts between state and federal regulation where none clearly

exists.” Arizona, 132 S. Ct. at 2510 (quoting Huron Portland Cement Co., 362 U.S. at 446); see

also Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650, 652–53

(5th Cir. 2002) (explaining the Pullman doctrine, which requires federal courts to abstain from

exercising jurisdiction “when difficult and unsettled questions of state law must be resolved

before a substantial federal constitutional question can be decided”).

B. Section 2 of the federal Defense of Marriage Act does not pertain to anything

less than full legal recognition of a marriage under state law.

There is also no reason to interpret section 2 of the federal Defense of Marriage Act, 28

U.S.C. § 1738C, as prohibiting the Department of Labor from requiring state-government

employers to grant spousal leave in accordance with the February 2015 rule. At most, § 1738C

speaks only to the narrow issue of whether a state, acting in its capacity as a sovereign, must

accord full legal recognition to a marriage conducted in another state. It does not impose any

limits on the spousal rights that may be afforded under a federal regulation when a state acts

solely in its capacity as an employer.

A House Judiciary Committee report on the Defense of Marriage Act demonstrates that

§ 1738C was intended to operate narrowly. Defense of Marriage Act, H.R. Rep. No. 104-664, at

25 (1996) (“The Committee would emphasize the narrowness of this provision.”), available at

http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf. The report

explains that the provision is concerned “exclusively” with attempts to obtain “full legal


http://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdfhttp://www.gpo.gov/fdsys/pkg/CRPT-104hrpt664/pdf/CRPT-104hrpt664.pdf

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recognition” of marriages of same-sex couples under the Full Faith and Credit Clause of the

Constitution, U.S. Const. art. IV, § 1. H.R. Rep. No. 104-664, at 25; see also id. at 25–26. Thus,

the term “give effect” in § 1738C should be construed narrowly as referring, at most, to giving a

marriage “full faith and credit,” that is, according the marriage full effect within the state’s own

legal system. See H.R. Rep. No. 104-664, at 26 (explaining that the general constitutional rule of

“full faith and credit” involves states treat[ing] laws of other States as they would their own”

(emphasis added)). Indeed, § 1738C and the Full Faith and Credit Clause employ similar

language. Compare U.S. Const. art. IV, § 1 with 28 U.S.C. § 1738C.

The plaintiffs suggest that the Full Faith and Credit Clause applies only to judgments and

is inapplicable to marriages. See Tr. of Mots. Hr’g 37:4–5 (“The Full Faith and Credit Clause

regards state judgments, but marriages are not judgments . . . .”). That is inaccurate—the Full

Faith and Credit Clause expressly applies not just to judicial proceedings but to “public Acts,

Records, and judicial Proceedings.” U.S. Const. art. IV, § 1. It is true, however, that the Fifth

Circuit has stated that before the Constitution was adopted, the concept of full faith and credit

under the common law historically applied only to judgments. See generally Adar v. Smith, 639

F.3d 146, 154 (5th Cir. 2011) (en banc). It is also true that the Supreme Court has not yet

conclusively resolved whether a marriage qualifies as an “Act” or “Record” under the Full Faith

and Credit Clause. But even assuming for the moment that the Full Faith and Credit Clause had

no application to marriages, that would not favor a broader interpretation of § 1738C—it would

favor a narrower interpretation. As explained above, § 1738C at most provides that states are not

required to give marriages the effect that they are due under the Full Faith and Credit Clause. If

marriages are not due any effect under the Full Faith and Credit Clause, that would simply mean


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that § 1738C has even less effect than Congress intended. It would not be a reason to accord

greater effect to § 1738C, as the plaintiffs would have it.

C. The February 2015 rule should be upheld as valid under a straightforward

application of theChevron

two-step analysis.

Under Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), a court reviewing an

administrative agency’s implementation of a statute must uphold the agency’s implementation if

it embodies “a reasonable choice within a gap left open by Congress,” id. at 866. Analyzing the

February 2015 rule under the Chevron framework supports upholding the rule as a reasonable

way of resolving an issue that Congress did not directly resolve in the FMLA itself.

Congress did not specify in the FMLA how to interpret the term “spouse” when the laws

of various states point in different directions. See Defs.’ Prelim. Inj. Opp’n 15–16 (contrasting

Congress’s silence in the FMLA with its decision to mandate use of a place-of-residence rule for

certain purposes under the Social Security Act, 42 U.S.C. § 416(h)(1)(A)(i)). And as explained in

the previous section, 28 U.S.C. § 1738C does not impose any limits on the definition of the term

within the FMLA. Thus, “Congress has not directly addressed the precise question at issue,”

Chevron, 467 U.S. at 843, and “the question for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Id. The only question is whether the agency made a

“reasonable policy choice,” id. at 845, not whether it made the best possible choice or whether it

made the same choice that the Court would have made in the agency’s stead. See id. at 843 &

n.11. The agency’s choice of a place-of-celebration rule was certainly reasonable here. Among

other reasons, the rule is consonant with Congress’s overall scheme of making family-care leave

universally available rather than restricting it to certain groups. See Defs.’ Prelim. Inj. Opp’n 19.

The Court’s March 26 opinion reasoned that the FMLA likely precludes the Department

of Labor from adopting a place-of-celebration rule, relying on FDA v. Brown & Williamson


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Tobacco Corp., 529 U.S. 120 (2000). But Brown & Williamson is simply not apposite. In Brown

& Williamson, the Supreme Court concluded that the FDA lacked authority to regulate tobacco

under the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq., because the structure

and operation of the Act made clear that it applied only to products that were “safe for [their]

intended use,” while tobacco has no safe uses and thus was outside the scope of the FDCA. See

529 U.S. at 142–43. In this case, no aspect of the structure or operation of the FMLA supports a

conclusion that a place-of-celebration rule is incompatible with the FMLA. The Court in Brown

& Williamson also pointed to a long series of tobacco-related enactments—comprising six

statutes enacted in the preceding thirty-five years—as evidence that Congress did not intend

tobacco to be regulated under the FDCA. See id. at 143–59. In this case, the plaintiffs have only

pointed to two sections of the same enactment—sections 2 and 3 of the federal Defense of

Marriage Act. Section 2 of DOMA is simply inapplicable, as discussed in the previous section.

Section 3 of DOMA, which imposed a universal definition of the term “spouse” for all federal

law, has been held unconstitutional by the Supreme Court. A single, now-invalidated statute that

attempted to override existing definitions of the term “spouse” is not comparable to the long and

“consistent” pattern of Congressional action discussed in Brown & Williamson.

The Court’s March 26 opinion also criticized the February 2015 rule because it is not

“neutral” between states with different marriage policies. Mem. Op. and Order 16 n.9. But

nothing in the statute requires that the Department of Labor adopt rules that are “neutral” in this

respect. And the place-of-residence rule is not “neutral” either—it favors the policy choices of

the states with more restrictive definitions of marriage.

The fact that the challenged regulation touches on a politically contentious issue—

marriage between persons of the same sex—is not a reason for closer judicial scrutiny of the


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Department of Labor policy. Rather, it only makes it more important that the Court avoid

interfering with the agency’s judgments. As the Supreme Court put it in Chevron:

[A]n agency to which Congress has delegated policymaking responsibilities may,

within the limits of that delegation, properly rely upon the incumbentadministration’s views of wise policy to inform its judgments. While agencies are

not directly accountable to the people, the Chief Executive is, and it is entirely

appropriate for this political branch of the Government to make such policychoices—resolving the competing interests which Congress itself either

inadvertently did not resolve, or intentionally left to be resolved by the agency

charged with the administration of the statute in light of everyday realities. . . .[F]ederal judges—who have no constituency—have a duty to respect legitimate

policy choices made by those who do. The responsibilities for assessing the

wisdom of such policy choices and resolving the struggle between competingviews of the public interest are not judicial ones: “Our Constitution vests such

responsibilities in the political branches.”

Chevron, 467 U.S. at 865–66 (quoting TVA v. Hill , 437 U.S. 153, 195 (1978)).

D. United States v. Windsor reaffirmed that federal laws that draw lines based on

marriage do not necessarily have to track state-law definitions of marriage.

The February 2015 rule is fully compatible with the principles set forth in United States v.

Windsor , 133 S. Ct. 2675 (2013). As the defendants explained in their earlier-filed opposition

memorandum, the Supreme Court in Windsor reaffirmed “the constitutionality of limited federal

laws that regulate the meaning of marriage in order to further federal policy.” Id. at 2690. The

Court noted that “Congress, in enacting discrete statutes, can make determinations that bear on

marital rights and privileges. . . . When the Federal Government acts in the exercise of its own

proper authority, it has a wide choice of the mechanisms and means to adopt. Congress has the

power both to ensure efficiency in the administration of its programs and to choose what larger

goals and policies to pursue.” Id. The Court gave examples of several federal statutes that

prescribed marriage-based rules that did not correspond perfectly with state-law definitions of

marriage. See id. Thus, Windsor does not support the plaintiffs’ assertion that the February 2015


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rule unconstitutionally encroaches on state regulation of marriage; on the contrary, it

demonstrates that the February 2015 rule is within the bounds of federal authority.

E. The plaintiffs’ other claims fail for reasons the defendants explained earlier.

The plaintiffs’ remaining claims on the merits fail for the reasons that the defendants set

forth in their earlier opposition. See Defs.’ Prelim. Inj. Opp’n 16–20, 20–21 (addressing the

plaintiffs’ claims that the challenged rule unlawfully commandeers state authority, invalidly

abrogates state sovereign immunity, and invalidly enlarges federal court jurisdiction).

IV. The plaintiffs have not shown a threat of irreparable harm.

As explained in the defendants’ preliminary injunction opposition, a request for a

preliminary injunction must be supported by evidence of a threat of impending irreparable harm.

See Defs.’ Prelim. Inj. Opp’n 21. As discussed in the defendants’ earlier opposition and in the

above discussion regarding the issue of standing, Texas has not presented adequate evidence of

any impending harm; at most, Texas’s submissions establish only a speculative and remote risk

of harm. And the plaintiffs have not presented any evidence with respect to the other four

plaintiff states. The preliminary injunction should be dissolved entirely, but if it is left in place

with respect to Texas, it should still be dissolved with respect to the other states. The Fifth

Circuit has repeatedly instructed that the breadth of a preliminary injunction must be

appropriately tailored to the circumstances and the plaintiffs’ demonstrated interests in avoiding

irreparable harm. See Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707, 715 (5th Cir. 1984)

(“[I]njunctive relief is drastic medicine indeed. . . . [I]t should be carefully tailored to the

situation presented and should be no broader than necessary to accomplish the purpose of the

court in granting it.”); Spiegel v. City of Houston, 636 F.2d 997, 1002–03 (5th Cir. Unit A Feb.

1981) (dissolving an excessively broad preliminary injunction); Jackson Women’s Health Org. v.


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Currier , 760 F.3d 448, 458–59 (5th Cir. 2014) (narrowing an excessively broad preliminary

injunction), petition for cert. filed (U.S. Feb. 18, 2015) (No. 14-997).

V. The plaintiffs have not shown that the balance of equities tips in their favor or that

an injunction is in the public interest.

The plaintiffs also did not show that the balance of equities tips in their favor or that an

injunction is in the public interest. As discussed above, the plaintiffs have not shown that there is

any real conflict between the February 2015 regulation and any state law, nor have they shown

that they are faced with any impending request to grant leave under the new regulation. But even

if the plaintiffs had met those burdens, the balance of equities would still tip against entry of a

preliminary injunction. The abstract interests the plaintiff states have invoked are

counterbalanced by the United States’ interest in the administration of the FMLA. Cf. Mem. Op.

and Order 23 (“The Court finds the threatened injury to both parties in the instant action to be

serious . . . .”). Adding the interests of employees and their families to the analysis tips the

balance clearly against the states. To an employee who may risk being fired for taking time off to

care for a seriously ill spouse, bond with a newly adopted child, or make preparations for a

spouse’s military deployment, an injunction could mean much more than a mere “delay of

FMLA benefits,” Mem. Op. and Order 24; it could mean outright denial of FMLA benefits at the

time the employee needs them most, and a serious, even life-changing, hardship.

CONCLUSION

Because the plaintiffs have not shown any likelihood of success on the merits, have not

demonstrated any possibility of irreparable harm, and have failed to establish the other factors

necessary to justify preliminary relief, the preliminary injunction entered March 26 should be

dissolved.

Date: April 27, 2015 Respectfully submitted,


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BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

JOHN R. PARKER

Acting United States Attorney

JUDRY L. SUBAR

Assistant Branch Director

s/ JAMES C. LUH

JAMES C. LUH (N.Y. Bar)

Trial AttorneysUnited States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave NWWashington DC 20530

Tel: (202) 514-4938Fax: (202) 616-8460

E-mail: [email protected] for Defendants


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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

STATE OF TEXAS, et al.

Plaintiffs

v.

UNITED STATES OF AMERICA, et al.

Defendants

))

)

))

)

))

)

Civil Action No. 7:15-cv-00056-O

ORDER GRANTING DEFENDANTS’ MOTION TO DISSOLVE PRELIMINARY

INJUNCTION

Defendants’ Motion to Dissolve Preliminary Injunction is hereby GRANTED.

The preliminary injunction entered in this case on March 26, 2015, Mem. Op. and Order,

ECF No. 18, is dissolved.

Date:

REED O’CONNOR

UNITED STATES DISTRICT JUDGE


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CERTIFICATE OF CONFERENCE

On April 22, 2015, I conferred with William T. Deane, attorney for the plaintiffs, and he

indicated that the plaintiffs oppose this motion.

s/ JAMES C. LUHJAMES C. LUH

Trial Attorney

United States Department of JusticeCivil Division, Federal Programs Branch

20 Massachusetts Ave NW

Washington DC 20530

Tel: (202) 514-4938Fax: (202) 616-8460

E-mail: [email protected]

Attorney for Defendants


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CERTIFICATE OF SERVICE

On April 27, 2015, I electronically submitted the foregoing document with the Clerk of

Court for the U.S. District Court, Northern District of Texas, using the electronic case filing

system of the Court. I hereby certify that I have served all counsel and/or pro se parties of recordelectronically or by another manner authorized by Rule 5(b)(2) of the Federal Rules of Civil

Procedure.

s/ JAMES C. LUHJAMES C. LUH

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch20 Massachusetts Ave NW

Washington DC 20530

Tel: (202) 514-4938Fax: (202) 616-8460

E-mail: [email protected]

Attorney for Defendants


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