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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
STATE OF TEXAS, et al.
Plaintiffs,
v.
UNITED STATES OF AMERICA,
UNITED STATES DEPARTMENT
OF LABOR, and THOMAS E. PEREZ,
in his Official Capacity as
SECRETARY OF LABOR,
Defendants.

CIVIL ACTION NO. 7:15-cv-56-O

__________________________________________________________
RESPONSE IN OPPOSITION TO DEFENDANTS MOTION
TO DISSOLVE PRELIMINARY INJUNCTION
__________________________________________________________

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ARGUMENT
The Defendants motion to dissolve the Courts well-reasoned preliminary injunction
should be denied for several reasons.
I.

The Court Has Jurisdiction.

A. The States Have Standing Because the Rule Injures Them in Multiple Ways.
Standing requires a plaintiff to show a real present or imminent injury that is traceable to

the defendants action and is judicially redressable. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992); Mass. v. E.P.A., 549 U.S. 497, 518 (2007); Tex. v. U.S., No. 7:15-CV-00056-O,
2015 WL 1378752, at *5 (N.D. Tex. Mar. 26, 2015) (hereinafter PI). The States have clearly
done so here. Defendants argue that the States failed to show an injury. Motion to Dissolve
Preliminary Injunction at 48, ECF No. 40. To the contrary, the States have standing coming and
going because they cannot comply with state law and the Rule at the same time.
On the one hand, if the States comply with the Departments Rule, they will incur
significant compliance costs (changing policies, educating employees, researching other states
and nations laws), they will be required to provide leave and other benefits to employees who do
not otherwise qualify, and they will be forced to violate their duly enacted state laws. Each of
these injuries is sufficient to establish standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 137
(1986) (recognizing a States standing because a State clearly has a legitimate interest in the
continued enforceability of its own statutes); Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967)
abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (explaining that there is
no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation
is directed at them in particular; it requires them to make significant changes in their everyday
business practices); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734

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F.3d 406, 419 (5th Cir. 2013) (recognizing the irreparable harm of denying the public interest in
the enforcement of its laws); Am. Forest & Paper Assn v. E.P.A., 137 F.3d 291, 296 (5th Cir.
1998) (concluding that the costs of compliance with EPAs new rule was injury establishing
standing); Wyoming ex rel. Crank v. U.S., 539 F.3d 1236, 1242 (10th Cir. 2008) (concluding that
Wyoming had standing to challenge a federal agencys regulation that effectively preempted state
law because [f]ederal regulatory action that preempts state law creates a sufficient injury-infact); 520 Mich. Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 963 (7th Cir. 2006) (Easterbrook, J.)
(Courts frequently engage in pre-enforcement review based on the potential cost that compliance
(or bearing a penalty) creates.); PI at *6.
The Department acknowledged the Rules compliance burden, see 80 FR 9998 (explaining
that the costs resulting from this Final Rule are: regulatory familiarization, maintenance of
preexisting employee health benefits during FMLA leave, and administrative costs), and cost, 80
FR 9999 (estimating the cost of compliance with the Rule to be $12,886,034). Nevertheless, it
asserts that these compliance costs they previously admitted the Rule would cause are now not
enough to establish standing because there is not a sufficient nexus between the costs and the Rule.
Mot. at 5. Nonsense. It is impossible to imagine a more direct nexus to the Rule than the
compliance costs that the Rules creator admitted would be imposed on the States once the Rule
went into effect.
The case that Defendants cite for justification, Diamond v. Charles, 476 U.S. 54 (1986),
does not support their argument against standing. Diamond addressed whether attorney fees
incurred while challenging a statute could establish standing; it did not address the costs incurred
complying with a statute itself. Costs directly caused by government action, as is the case here,
are materially different from the costs incurred from challenging government action.
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On the other hand, if the States elect to comply with state law rather than the Rule, they
face an enforcement action by the Department or by an employees lawsuit. The FMLA provides
that it is unlawful for any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter. 29 U.S.C. 2615(a). That
requirement can be enforced by the Department or by private lawsuit. 29 U.S.C. 2617(a), (b).
Defendants contend that the States have not shown any credible threat of enforcement,
Mot. at 6 n.1, but in the same footnote, they conceded that the Department initiated litigation in
at least six civil actions regarding an employers failure to provide adequate notice of employee
rights under the FMLA, and that it has imposed money penalties for violations of the FMLAs
general notice requirement on numerous occasions. 1 Id. See also Decl. of Rachel Goldberg 2
3; 29 U.S.C. 2617(b) (authorizing the Department to bring both administrative and civil action
against employers). And at the April 10 hearing, when asked whether the Department of Labor
intend[s] to enforce this change in regulations, the Departments counsel answered yes. Tr.
23:36. Surely the Departments history of administrative and judicial enforcement of FMLA
notice requirements along with its expressed present intent to enforce the Rule is sufficient to
establish a credible threat of enforcement. See, e.g., Susan B. Anthony List v. Driehaus, 134 S.Ct.
2334, 2345 (2014) (concluding that a threat of enforcement was substantial when there is a history
of past enforcement for the same conduct); Am. Forest & Paper Assn, 137 F.3d at 296 (holding

The United States had a different view on standing in another recent case in this Court. In Mance v. Holder, the
United States initially argued that a plaintiff challenging a federal gun-transfer law lacked standing because there was
no imminent threat of prosecution, but the government dropped that standing argument after acknowledging that
the plaintiff would have a reasonable fear of prosecution if he violated the law. 2015 WL 567302, at *15 and n.4
(N.D. Tex. Feb. 11, 2015). As another federal court noted recently, the United States habit of advancing contrary
positions on core jurisprudential issues in different cases is troubling. See Tex. v. United States, No. CIV. B-14-254,
2015 WL 1540022, at *7 (S.D. Tex. Apr. 7, 2015) (explaining that, contrary to its prior position, the Government
now suggests for the first time here that this Court should apply one immigration scheme to Texas and a different one
to the rest of the states. This is tantamount to conceding that the Governments arguments in 2012 to the Supreme
Court in [Ariz. v. United States, 132 S.Ct. 2492 (2012)] and in 2014 to the Ninth Circuit in [Arizona Dream Act
Coalition v. Brewer, 757 F.3d 1053 (9th Cir. 2014)] were frivolous).
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that [p]ermit holders imminent need to comply [with the challenged rule], coupled with EPA's
frank announcement of its intentions [to enforce the rule], belies the agency's claim that any injury
is speculative); KVUE, Inc. v. Moore, 709 F.2d 922, 930 (5th Cir. 1983) aff'd sub nom. Tex. v.
KVUE-TV, Inc., 465 U.S. 1092 (1984) (That the statute has not been enforced and that there is no
certainty that it will be does not establish the lack of a case or controversy.).
B. There Is No Need to Scrutinize Each States Standing.
As an initial matter, each State has standing because each State has shown that its law
conflicts with Defendants FMLA regulations. See Second Amended Complaint at 810, ECF No.
35 (Complaint). No more is necessary. But even if it were, the Court need not engage in a Stateby-State assessment of standing because Texas easily satisfies the standing requirements, as this
Court has already recognized. See PI at *6. Standing requires that at least one party has alleged
such a personal stake in the outcome of the controversy as to warrant his invocation of federalcourt jurisdiction. Horne v. Flores, 557 U.S. 433, 445 (2009) (emphasis added); see also
Massachusetts, 549 U.S. at 518 (Only one of the petitioners needs to have standing to permit us
to consider the petition for review.); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 264 and n.9 (1977) (same). Because Texas has standing to challenge the Rule, the Court
need not consider whether the [other State plaintiffs] also have standing to do so. Horne, 557
U.S. at 446.
There is no merit to Defendants argument that each State has asserted a different claim
and therefore must separately establish standing in this case. Mot. at 89. The States have
asserted the same claims against the same defendants challenging the same agency action for the
same reasons. See Complaint at 1620 . All of the plaintiff States limit recognition of out-of-state
marriages to opposite-sex unions, id. at 810, and Defendants do not dispute that the States laws

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are substantively similar.

In any event, the States certainly have standing under Mass. v. EPA, 549 U.S. 497 (2007).
In that case, the Court accepted the standing of all the petitioner Statesincluding land-locked
New Mexicobased on the threatened injury to Massachusettss coastline from rising sea levels.
See id. at 522. Although the States raised this basis for standing in support of their motion for
preliminary relief, see Reply at 4, ECF No. 15, Defendants have no answer for Massachusetts, and
do not even mention it.
C. The Court Has Authority Over the Preemption Claim.
Although the Court has already rejected Defendants flawed Franchise Tax Board
argument, see PI at *10, they nonetheless reassert it with the bald contention that invalid
preemption is not a legitimate basis for challenging agency action, Mot. at 10. That argument is
baseless. The Administrative Procedure Act (APA) authorizes judicial review for a person
suffering legal wrong because of agency action, or adversely affected or aggrieved by agency
action, 5 U.S.C. 702, and the APA requires courts to set aside agency action that is, among
other things, not in accordance with law, contrary to constitutional power, or in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right, id. 706(2). The States
preemption claim falls well within the Courts authority under the APA because the Rule adversely
affects the States interests in enforcing their own law, see Alfred L. Snapp & Son, Inc. v. Puerto
Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) (recognizing that States have a legally protected
interest in the power to create and enforce a legal code), in violation of the FMLA and the Full
Faith and Credit Statute, 28 U.S.C. 1738C.

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II.

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The States Are Likely to Prevail on the Merits.

A. The Rule Conflicts with State Law.
As the States have repeatedly explained and the Court correctly concluded, the Rule

irreconcilably conflicts with the States marriage laws, in violation of both the FMLA and the
Federal Full Faith and Credit Statute, 28 U.S.C. 1738C. See PI at *6, 910, 11, 12, 13.
Undeterred, Defendants now argue that there is no conflict because state law prohibits only full
recognition of out-of-state same-sex marriages, which Defendants define as according an out-ofstate marriage the same status under state law as an in-state marriage. Mot. at 11. That
remarkable argumentthat the States do not understand their own law 2lacks merit for several
reasons.
First, the argument contradicts state law. 3

Texas law deems same-sex marriage as

contrary to the public policy of [Texas] and . . . void. TEX. FAM. CODE 6.204(b). Texas law
also expressly forbids the State and its agencies and political subdivisions from giving effect to
any right or claim to any legal protection, benefit, or responsibility asserted as a result of a
marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.
Id. 6.204(c). The Texas Constitution similarly forbids the State and its political subdivisions
from creating or recognizing any same-sex marriage or similar legal union. TEX. CONST. art. I,
32. On their face, these laws are not limited to prohibiting only equal status to out-of-state samesex marriages; they expressly prohibit giving effect to any claim or benefit that might arise from

Federal courts traditionally defer to a States interpretation of its own law. See, e.g., Seaton v. Procunier, 750 F.2d
366, 368 (5th Cir. 1985) (declining to review that states interpretation of its own law); Fla. Power & Light Co. v.
Costle, 650 F.2d 579, 588 (5th Cir. Unit B 1981) (criticizing EPA for failing to defer to Floridas interpretation of its
own state law.).
3
Notably, a federal agency is to be accorded no discretion in interpreting state law. Fla. Power & Light, 650 F.2d
at 588.

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any such union.

Texas courts have likewise applied state law to prohibit actions that seek less than full
recognition of same-sex marriages. In the most recent, relevant example, the Dallas Court of
Appeals held that Texas law, including section 6.204, prohibits courts from giving any legal effect
even to a claim to a protection or benefit predicated on a same-sex marriage, In re Marriage of
J.B. & H.B., 326 S.W.3d 654, 664 (Tex. App.Dallas 2010, pet. granted).
Notably, the plaintiffs in J.B. raised similar arguments to Defendants, alleging that granting
a divorce does not recognize or give effect to a same-sex marriage formed in another jurisdiction,
and that a place-of-celebration test does not violate state law. Id. at 664. The Court rejected those
arguments as foreclosed by section 6.204 because granting a divorce would give some legal effect
to a claimed benefit predicated on a same-sex marriage. Id. at 665. The Court also held that a
place-of-celebration rule is contrary to the States choice-of-law provision, which declares that
[t]he law of this state applies to persons married elsewhere who are domiciled in this state. Id.
at 669 (quoting TEX. FAM. CODE 1.103).
Defendants cite dicta in State v. Naylor to suggest that Texas courts think section 6.204
may have a narrower meaning. Mot. at 12. But Defendants failed to acknowledge that the Rule
would conflict with even the two narrower interpretations mentioned in Naylor. State v. Naylor,
330 S.W.3d 434, 441 (Tex. App.Austin 2011, pet. granted) (noting without deciding that a party
might argue that divorce is a benefit of state residence (not marriage), or that section 6.204
prohibits only actions going forward, rather than looking back).
It is no surprise, then, that Defendants cite no caselaw for their novel position. In an attempt
to turn that weakness into a strength, they argue that the lack of caselaw against their no-conflict
interpretation validates the Rule. Mot. at 1115. That is not true, as explained above, but even if
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it were, a lack of caselaw does not establish the compatibility of the Rule with state law; at most it
highlights the unprecedented nature of the Departments regulatory intrusion into the States
domain. See U.S. v. Windsor, 133 S.Ct. 2675, 2691 (2013) (quoting Sosna v. Iowa, 419 U.S. 393,
404 (1975)) (explaining that regulation of domestic relations is an area that has long been
regarded as a virtually exclusive province of the States).
Defendants also argue that, to the extent of any conflict between the Rule and state law,
state law is preempted, regardless of whether Congress ever intended any preemption. Mot. at
11. No so. That argument rests on the erroneous assumption that the Rules attempted preemption
is lawful. That is not the case because Congress did not intend to preempt state marriage laws with
the FMLA. The FMLA was enacted in 1993, years before same-sex marriage was adopted by any
State, and Congress later enacted DOMA, which defined marriage exclusively as the union of
one man and one woman, 1 U.S.C. 1, while recognizing state sovereignty by exempting States
from giving effect to same-sex marriages from other States in accordance with their own laws, 28
U.S.C. 1738C. It is evident from this legislative chronology that Congress could not have
intended to displace the States traditional marriage laws, but rather intended to affirm them. See
also PI at *8.
Whats more, given the States historic and exclusive regulation of domestic relations,
Windsor, 133 S.Ct. at 2691, there is a presumption that State law is not preempted unless that was
the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947). Defendants have made no such showing here. The Department cannot accomplish by rule
what Congress did not intend in the statute. See Wyeth v. Levine, 555 U.S. 555, 565 (2009)
(explaining that the purpose of Congress is the ultimate touchstone in every pre-emption case).
Defendants also cite the inapposite case of Mut. Pharm. Co. v. Bartlett, 133 S.Ct. 2466
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(2013), which concerned state law that unequivocally conflicted with established federal law.
There was no need to inquire about congressional design because it was apparent on the face of
the statute. Here, in contrast, the FMLA does not expressly preempt state marriage law and it has
never been interpreted to do sountil the Department adopted the Rule. See, e.g., Wyeth, 555 U.S.
at 579 (refusing to accept the FDAs argument that federal law preempts state law in part because
Congress did not expressly preempt state law and the agencys interpretation represents a
dramatic change in position).
Defendants also argue that Texas law prohibits only full recognition of same-sex marriages
because some municipalities have extended benefits to same-sex couples that married in other
States. Mot. at 1314. Wrong. Texas law prohibits this practice, see TEX. CONST. art. I, 32(b),
TEX. FAM. CODE 6.204(c), and a citys open violation of state law cannot change the meaning of
the law. There is little doubt that these ordinances are invalid and unenforceable. See id.; see also
Tex. Atty Gen. Op. GA-1003 (2013) (concluding that municipal ordinances that extend spousal
benefits to same-sex couples violate Texas law).
Defendants contention that Texas has adopted a novel interpretation of its law for this
case, Mot. at 14, is also baseless. Their only ground for that argument is a 2013 Attorney Generals
opinion that addressed whether the Texas Constitution prohibits municipalities from extending
benefits to same-sex couples. Tex. Atty Gen. Op. GA-1003. Contrary to Defendants gloss, the
opinion concluded that extending spousal benefit to same-sex couples is barred by article I,
section 32 of the Texas Constitution. Id. at 4; see also id. at 6 (Article I, section 32 of the Texas
Constitution prohibits political subdivisions from creating a legal status of domestic partnership
and recognizing that status by offering public benefits based upon it.). Rather than supporting
Defendants full recognition interpretation, the opinion confirms that Texas law prohibits
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granting spousal benefits to public employees in same-sex relationships.

B. The Rule Conflicts with the Full Faith and Credit Statute.
As they did with state law, Defendants attempt to cabin the Full Faith and Credit Statute,
28 U.S.C. 1738C, by arguing that it only applies to full recognition of a marriage under state
law. Mot. at 15. Any argument that so quickly resorts to legislative history is likely doomed by
the plain language of the statute and well-established principles of statutory construction.
A courts role in statutory construction is to interpret the language of the statute enacted
by Congress, Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461 (2002). Statutory construction
begins and ends with the text if the statute is unambiguous. See Lamie v. U.S. Tr., 540 U.S. 526,
534 (2004) (explaining that the starting point in discerning congressional intent is the existing
statutory text); Rubin v. U.S., 449 U.S. 424, 430 (1981) (holding that when the terms of a statute
[are] unambiguous, judicial inquiry is complete).
The language of section 1738C unambiguously proclaims that no State shall be required
to give effect to any same-sex marriage from another State. 28 U.S.C. 1738C. The common
meaning of to give effect in this context is to apply, enforce, or put into operation. See Effect
Definition,

OXFORD

DICTIONARY,

http://www.oxforddictionaries.com/us/definition

/american_english/effect (last visited May 10, 2015); Effect Definition, MERRIAM-WEBSTER

DICTIONARY, http://www.merriam-webster.com/ dictionary/effect (last visited May 10, 2015).
The Rule directly conflicts with section 1738C because it forces States to give effect to out-ofstate same-sex marriages for purposes of employment benefits, in violation of their own law.
Defendants have no textual answer for this fatal problem. Instead, they invoke legislative
history to argue that when Congress enacted the phrase to give effect to it really meant to give
full recognition to. Mot. at 1516. That argument fails because legislative history cannot change
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the meaning of an unambiguous statute and, in any event, legislative history is not a reliable
indicator of congressional intent. See, e.g., Barnhart , 534 U.S. at 461 (observing that legislation
is often a compromise amidst highly interested parties attempting to pull the provisions in
different directions, and therefore [t]he deals brokered during a Committee markup, on the floor
of the two Houses, during a joint House and Senate Conference, or in negotiations with the
President are not for us to judge or second-guess); Bd. of Governors of Fed. Reserve Sys. v.
Dimension Fin. Corp., 474 U.S. 361, 374 (1986) (explaining that because final language of the
legislation may reflect hard-fought compromises the [i]nvocation of the plain purpose of
legislation at the expense of the terms of the statute itself takes no account of the processes of
compromise and, in the end, prevents the effectuation of congressional intent).
There is another problem with Defendants reliance on legislative history: they cherry pick
from the congressional report to create the false impression that the legislative history favors their
position. Defendants curiously fail to mention that in the same passage of the committee report
they cite, see Mot. at 1516, the report claims that section 1738C will not require States to
recognize an out-of-state same-sex marriage or any right or claim arising from it. H.R. Rep. No.
104-664 at 25. And in the discussion following that point, the report stated that section 1738C is
best understood as a choice-of-law provision, id. at 27 n.68, that shields States from having to
follow the laws of other States that have contrary positions on same-sex marriage, id. at 2627.
The legislative history does contain the word narrow, but not for the purpose Defendants
contend. By narrow, the committee report meant that section 1738C was not intended to
interfere with a States development of its own marriage laws. Id. at 25 & n.61.
Far from indicating that the statute addresses only full recognition of same-sex marriage,
then, the committee report is consistent with the plain meaning of the statutory text, which
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establishes that the States are not required to give effect other States same-sex marriages by
granting leave based on those unions. As the Court suggested at the April 10 hearing, Tr. at 24:17
25, the term give effect should be given its plain and ordinary meaning, which reveals that the
Rule is contrary to Section 1738C and should be enjoined on that basis.
C. Defendants Chevron Argument Fails Because the FMLA Is Not Ambiguous.
Defendants argue for Chevron deference with respect to the Rule on the theory that
Congress did not directly resolve how to deal with conflicting state laws on marriage in the
FMLA. Mot at 1719. But as already explained, see supra Part II.A-.B, Congress left nothing to
resolve on this point because the statute is unambiguous and it could not have intended to usurp
traditional state marriage laws when it enacted the FMLA. Congress defined spouse in the
FMLA as a husband or wife, as the case may be. 29 U.S.C. 2611(13). At the time of that
enactment, no State permitted same-sex marriage. See Windsor, 133 S.Ct. at 2683. And Congress
later clarified with the full-faith and credit statute that it did not intend for spouse to include
same-sex spouses and did not intend for a State that did not recognize same-sex unions as marriage
to give effect to such marriages from other States. PI at *8-9; 28 U.S.C. 1738C. The FMLA is
unambiguous and therefore the Court need not defer to Defendants flawed interpretation. See
Chevron, U.S.A., Inc. v. Natl Res. Def. Council, Inc., 467 U.S. 837, 84243 (1984) (If the intent
of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.); see also id. at 843 n.9 (The judiciary
is the final authority on issues of statutory construction and must reject administrative
constructions which are contrary to clear congressional intent.).
D. Windsor Affirmed the States Authority to Define and Regulate Marriage.
Defendants argument that Windsor validates the Rule, Mot. at 1920, reflects a serious

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misreading of that opinion. Windsor did not alter any States right to define marriage according
to the will of its electorate. Rather, the Supreme Court reaffirmed the States authority to define
and regulate marriage, 133 S.Ct. at 269193, which is the very principle embodied in section
1738C. Far from condoning federal modification of State marriage policy, as Defendants suggest,
the Court disapproved of federal interference with State marriage law. See id. at 269293 ([T]he
states, at the time of the adoption of the Constitution, possessed full power over the subject of
marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the
United States on the subject of marriage and divorce. (quoting Haddock v. Haddock, 201 U.S.
562, 575 (1906) (alterations and omission in original)).
III.

The States Would Likely Suffer Irreparable Harm Without the Preliminary
Injunction, and the Balance of the Equities Favors the States.
The States explained in their complaint that the Rule, if allowed to take effect, would

irreparably harm them by preventing enforcement of state law and imposing an enormous
compliance burden on state employers. See Complaint at 2223. On this issue, Defendants simply
reassert their flawed standing arguments. See Mot. at 2021. The States and the Court have
already addressed those arguments, see supra Part I.A, .B, and PI at *56, and they need not be
repeated here.
Defendants argument regarding the balance of the equities is likewise a rehash of their
earlier arguments and depends entirely on the validity of the Rule. See Mot. at 21. As the States
explained in the complaint, see Complaint at 2325, and the Court already addressed, see PI at
*1213, the balance of the equities tips heavily in the States favor because the Rule would suspend
longstanding duly enacted state law. Although some States may choose to grant the leave that the
Rule requires, the Department cannot force States to comply in violation of their own law.

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IV.

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The Scope of the Preliminary Injunction Should Protect the Plaintiff States and
Their Political Subdivisions from the Departments Invalid Rule.
Consistent with its view of a unified executive branch that possesses the sum of all power

of federal and state governments, Defendants responded to the Courts preliminary injunction by
stating that they made the unilateral determination that they were enforcing the injunction only
against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees
of those states acting in their official capacity.

Request for Hearing at 2, ECF No. 19.

Defendants interpretation of the injunction nowhere finds support in the language of the injunction
itself, which orders the Department of Labor [to] STAY the application of the Final Rule, pending
a full determination of this matter on the merits. PI at *13. Nor did the Court narrow the scope
of the injunction at the April 10 hearing.
Nonetheless, Defendants motion now adopts the novel concept of allowing for the Courts
input on the scope of its preliminary injunction. Specifically, they contend that if the injunction
stands at all, it should only apply to Texas state agencies. See Mot. at 2 ([B]ut even if [the
injunction] is left in place with respect to Texas, it should certainly be dissolved with respect to
the other states.).
There are certainly circumstances in which a nationwide injunction is warranted. See Lewis
v. Casey, 518 U.S. 343, 360 and n.7 (1996) (the scope of injunctive relief is dictated by the extent
of the violation established); Natl Mining Assn v. U.S. Army Corps of Engrs, 145 F.3d 1399,
1409 (D.C. Cir. 1998) ([w]hen a reviewing court determines that agency regulations are unlawful,
the ordinary result is that the rules are vacatednot that their application to the individual
petitioners is proscribed (quotation marks omitted) (alteration in original)). For example, the
Presidents unlawful action on immigration required a nationwide preliminary injunction to
enforce a uniform rule of naturalization and protect the 26 plaintiff States from suffering the
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irreparable harm that would result from eligible aliens obtaining work permits in non-plaintiff
states and then moving to a plaintiff State. 4 As with the immigration proceeding and other
proceedings involving a nationwide injunction, this case involves a facial challenge whose remedy
is to set aside the Final Rule as unlawful under the APA.
Nonetheless, there are unique attributes of this proceeding that make the plaintiff States
amenable to narrowing the scope of the preliminary injunction to applying to state and local
governments in the plaintiff States. If the Court so narrows the preliminary injunction, the former
place-of-residence rule will govern FMLA leave for state and local governments in the plaintiff
States. Under that rule, a same-sex couple married in New York that moves to Texas to work
would not qualify for same-sex FMLA leave (unlike the related scenario in the immigration
proceeding).
Two points on this scope bear mentioning. First, there are additional non-plaintiff States
that (like the five plaintiff States) currently do not recognize out-of-state same-sex marriages. If
another State later joins the plaintiff States in this suit, the plaintiff States respectfully request that
the Court consider modifying the scope of the preliminary injunction accordingly.
Second, the Defendants proposed scope of only enjoining the Rule as applied to the state
agencies of the plaintiff States fails to protect local governments in the plaintiff States. For
example, Texas law provides that no political subdivision may recognize or give benefits based on
same-sex marriage. TEX. FAM. CODE 6.204(c). Under the Defendants proposed scope, these

Incidentally, the Department of Justice has identified in neither this proceeding nor the immigration proceeding any
case limiting the geographic reach of a preliminary injunction. Arg. Recording, 0:37:20-0:37:35, Texas v. United
States, No. 15-40238 (5th Cir. Apr. 17, 2015).

Response to Motion to Dissolve Preliminary Injunction

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local governments would still be forced to violate either a federal rule or state law. 5 Accordingly,
the preliminary injunction should apply to state and local governments in the plaintiff States to
adequately protect against the Rules irreparable harm. 6
V.

Conclusion
The Court need not indulge Defendants invitation to distort federal cases on standing,

ignore its own estimates of the cost of implementing the Rule, and disregard the States
interpretations of their own unambiguous laws. As surely as New Mexico is land-locked, the
plaintiff States have standing. The Courts well-reasoned opinion granting the preliminary
injunction thoroughly dismantled Defendants contentions. The plaintiff States are amenable,
however, to narrowing the scope of the stay to apply to the state and local governments in the
plaintiff States.
PRAYER
The Court should deny the motion to dissolve the preliminary injunction and confirm that
the injunction applies to all plaintiff States, their agencies, and political subdivisions.

Defendants contend that the City of Fort Worth is currently providing benefits to same-sex spouses and should
continue to be able to do so. Mot. at 13. But as explained supra, Attorney General opinion GA-1003 held that the
Texas Constitution prohibits political subdivisions from creating a legal status of domestic partnership and
recognizing that status by offering public benefits based upon it. Tex. Atty Gen. Op. GA-1003 at 6 (2013). The
Defendants suggestion that the Court narrow the scope of the preliminary injunction to allow a political subdivision
to continue to knowingly violate state law hardly seems prudent.
6

The laws of the other plaintiff States would likewise force subordinate local governments to violate state law if they
followed the Rule. See ARK. STAT. 9-11-107 (Marriage shall be only between a man and a woman. A marriage
between persons of the same sex is void.); GA. CODE ANN. 19-3-3.1 (No marriage between persons of the same
sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex
pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state . .
. .); LA. CIV. CODE art. 96 (A purported marriage between parties of the same sex does not produce any civil
effects.); id. art. 3520(B) (providing that a same-sex marriage contracted in another state shall not be

recognized in this state for any purpose, including the assertion of any right or claim as a result of the
purported marriage); NEB. CONST. art. 1, 29 (The uniting of two persons of the same sex in a civil
union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in
Nebraska.).
Response to Motion to Dissolve Preliminary Injunction

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Respectfully submitted,
LESLIE RUTLEDGE
Attorney General of Arkansas

KEN PAXTON
Attorney General of Texas

JAMES D. BUDDY CALDWELL

Attorney General of Louisiana

CHARLES E. ROY
First Assistant Attorney General

TREY PHILLIPS
First Assistant Attorney

JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation

LOUISIANA
DEPARTMENT
OF JUSTICE
P.O. Box 94005
Baton Rouge, Louisiana
70804
S. KYLE DUNCAN
Louisiana Bar No. 25038
Special Assistant Attorney
General
Duncan PLLC
1629 K. Street NW, Suite 300
Washington, DC 20006
(202) 714-9492
kduncan@duncanpllc.com
ATTORNEYS FOR
STATE OF LOUISIANA
PLAINTIFF

DOUG PETERSON
Attorney General of Nebraska

Response to Motion to Dissolve Preliminary Injunction

SHELLEY DAHLBERG
Associate Deputy Attorney General
ANGELA V. COLMENERO
Division Chief - General Litigation
MICHAEL P. MURPHY
Assistant Solicitor General
/s/ William T. Deane
WILLIAM T. DEANE
Texas Bar No. 05692500
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol
Station
Austin, Texas 78711-2548
(512) 936-1534
FAX: (512) 320-0667
bill.deane@texasattorneygeneral.gov
ATTORNEYS FOR
PLAINTIFFS

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CERTIFICATE OF SERVICE
On May 14, 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 record
electronically or by another manner authorized by Rule 5(b)(2) of the Federal Rules of Civil
Procedure.

/s/ William T. Deane

WILLIAM T. DEANE
Assistant Attorney General

Response to Motion to Dissolve Preliminary Injunction

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