Dkt #18 20150813_Ds' Reply in Support - Motion to Dismiss

8/20/2019 Dkt #18 20150813_Ds' Reply in Support - Motion to Dismiss

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Defendants’ Reply in Support of Motion to Dismiss Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Perales Serna et al.,

Plaintiffs,v.

Texas Department of State HealthServices, Vital Statistics Unit et al.,

Defendants.

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Civil Action No. 15-cv-00446 RP

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS

TO THE HONORABLE U.S. DISTRICT JUDGE ROBERT PITMAN:

Texas Department of State Health Services, Vital Statistics Unit (“DSHS”), Interim

Commissioner Kirk Cole, in his official capacity, and State Registrar Geraldine Harris, in her

official capacity, collectively (“Defendants”) reply to Plaintiffs’ Response to Defendants’ Motion

to Dismiss (Doc. 17) as follows:

Where Plaintiffs Agree. With the exception of Defendants’ challenge to the preemption

claim, discussed below, Plaintiffs have effectively agreed with each ground for dismissal stated in

Defendants’ Motion to Dismiss:

The Eleventh Amendment bars all four “Causes of Action” against DSHS.1

The Eleventh Amendment also bars the state law claim in Plaintiffs’ Fourth Cause of

Action against the official capacity defendants, Cole and Harris.

1 Plaintiffs’ lengthy Ex parte Young discussion was unnecessary insofar as Defendants’ Eleventh Amendment

challenge to the constitutional claims was made only on behalf of DSHS, not the official capacity defendants. (Doc.

16, p. 3.) In that regard, it is not clear why Plaintiffs make the further argument, by footnote, that abrogation of the

Eleventh Amendment may be found in 8 U.S.C. § 1503(a). (Doc. 17, p. 6, n.3.) The argument is irrelevant. It is also

wrong. Omitted from the quotation of the statute is the limiting language that the claim in issue must be one where

the claimant is denied a right and the denial is “upon the ground that he is not a national of the United States.” This

lawsuit includes no such denial.

Case 1:15-cv-00446-RP Document 18 Filed 08/13/15 Page 1 of 11


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State sovereign immunity bars all four “Causes” against DSHS and the state law claim in

Plaintiffs’ Fourth Cause of Action against the official capacity defendants, Cole and Harris.2

Subject matter jurisdiction under 42 U.S.C. § 1983 for all three constitutional claims

against DSHS fails because DSHS is not a “person.”

The foregoing grounds for dismissal are valid and effectively uncontested.

Where Plaintiffs Disagree. Plaintiffs do not concede a failure to state a preemption claim,

but their argument fails to show why that claim should not be dismissed as well. Plaintiffs appear

to agree that express preemption does not apply. Plaintiffs conclude their preemption argument

by stating “Both field and conflict preemption are presented here.” The argument leading to this

conclusion, however, offers little by way of structure and analysis tied directly to the requirements

necessary for either preemption ground to apply. Defendants will structure their reply on this point

by reference to these requirements.

Field Preemption. In their Motion to Dismiss, Defendants anticipated that of the three

forms of preemption, the only argument Plaintiffs might make is field preemption. Therefore,

Defendants cited applicable law from Arizona v. United States, 132 S.Ct. 2492 (2012),3 LeClerc

v. Webb, 419 F.3d 405 (5th Cir. 2005), reh’g en banc denied , 444 F.3d 428 (2006), and DeCanas

v. Bica, 424 U.S. 351, 355 (1976).4 Under these authorities, “courts should assume that ‘the

2 Plaintiffs do not wholly concede dismissal on this point. They ask instead for a severance of the state law claim.

(Doc. 17, p.7) That does not make sense, however, because if the claim is barred in the current suit, it would be barred

in a severed suit.3 In Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013)(en banc), cert. denied ,

134 S.Ct. 1491 (2014), the Fifth Circuit more recently discussed the preemption tests described in Arizona. The Courtapplied the conflict preemption test from Arizona. Although it recognized the field preemption test as described in

Arizona, the Fifth Circuit did not decide Villas on the basis of field preemption and it did not alter the test for field

preemption as it appears in Arizona. 726 F.3d at 529, n.4.4 In their Response (Doc. 17, p. 10), Plaintiffs describe “field pre-emption” as: “‘field’ preemption, as evidenced by

a detailed and pervasive federal statutory scheme and/or so crucial a federal interest that pre-emption is presumed .”

(Emphasis added.) They cite three cases for this proposition but none supports the emphasized language. Defendants

believe Plaintiffs have incorrectly stated the law and urge this Court to follow the standard supplied by Arizona v.

United States, 132 S.Ct. 2492, 2501 (2012)( ‘[t]he intent to displace state law altogether can be inferred from a

framework of regulation ‘so pervasive . . . that Congress left no room for the States to supplement it’ or where there



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historic police powers of the States’ are not superseded ‘unless that was the clear and manifest

purpose of the Congress.’” Arizona, 131 S.Ct. at 2501. Here, a State’s police power5 to determine

to whom and upon what showing the State should issue a certified copy of a birth certificate

(including, as pertinent here, whether an applicant has provided reliable evidence of identity),

enjoys a presumption of validity and “[f]ederal regulation . . . should not be deemed preemptive in

the absence of persuasive reasons—either that the nature of the regulated subject matter permits

no other conclusion, or that the Congress has unmistakably so ordained.” DeCanas, 96 S.Ct. at

937. Plaintiffs have simply failed to make any showing of this type of field preemption. Plaintiffs

provide no answer to the straightforward question: What federal laws or regulations has the United

States, which does not provide certified copies of birth certificates, enacted or adopted that speak

at all to what evidence of identity an applicant must provide to a State, which does provide certified

copies of birth certificates, in order to obtain such a copy? Plaintiffs offer no such field preemption

analysis--even superficially. Plaintiffs do not even undertake to define the “field” in which

preemption obtains. Rather, it appears that Plaintiffs are still arguing for some type of per se

preemption based on immigration alone—a concept rejected in LeClerc, 419 F.3d at 423, and

DeCanas, 424 U.S. at 355. See also, Defendants’ Motion to Dismiss, Doc. 16, p. 8, n.4. The

doctrine of field preemption is not nearly as expansive as Plaintiffs would have it. “Only a

demonstration that complete ouster of state power—including state power to promulgate laws not

in conflict with federal laws—was the clear and manifest purpose of Congress would justify th[e]

conclusion” that Congress “intended to oust state authority to regulate ... in a manner consistent

with pertinent federal laws.” De Canas, 424 U.S. at 357 (quotations omitted).

is a ‘federal interest . . . . so dominant that the federal system will be assumed to preclude enforcement of state laws

on the same subject.”)5 Historically, the police power extends to whatever measures a polity chooses to enact to protect, preserve and

enhance the lives of its citizens. See Gonzales v. Oregon, 546 U.S. 243, 270 (2006).



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Conflict Preemption. For conflict preemption to apply, state laws must be in conflict with

federal laws. This conflict occurs one of two ways. “[Conflict preemption] includes cases where

‘compliance with both federal and state regulations is a physical impossibility,” . . . and those

instances where the challenged law “stands as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress.” Arizona, 132 S.Ct. at 2501; Villas at Parkside

Partners v. City of Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013)(en banc), cert. denied , 134

S.Ct. 1491 (2014). Defendants will address each.

No Direct Conflict . In their response, Plaintiffs set up no conflict between state law and

any identified federal law, much less demonstrate that compliance with both is a physical

impossibility. A person can of course comply with federal law about whether they are allowed to

be here or not and with state law about presenting reliable identification to obtain a birth certificate.

People who are complying with federal law regarding immigration do not, as a result of that

compliance, somehow become unable to submit valid identification when seeking state benefits

and access to state programs.

In short, Plaintiffs provide no answer to these straightforward questions: How does

compliance with DSHS’ requirement that applicants for certified copies of birth certificates must

provide reliable evidence of their identity cause compliance with federal law to be impossible?

What federal law(s)? Conversely, how will compliance with a federal law (which law?) make

compliance with State law impossible? There is simply no direct conflict.

Rather than setting up a direct conflict, Plaintiffs make the conclusory assertion: “By

denying the parents the birth certificates, Texas born infants are deprived of the rights and benefits

to which federal law entitles them. Defendants’ practices are thus in direct conflict with federal

laws and the Constitution.” (Doc. 17, pp. 12-13.), but they offer no substantive analysis in support



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of this assertion. They provide no details whatsoever of the “rights and benefits to which federal

law entitles them.” The only reference to federal statutory law is a generic reference to Medicaid,

for which Plaintiffs make no showing of a conflict between state and federal law. Plaintiffs also

refer to an abridgement of “rights” under the Fourteenth Amendment, but again fail to identify any

specific right, including its source, that is preemptive of State law. Plaintiffs have failed to

demonstrate a conflict between federal and state law—a conflict that results in compliance with

both being impossible--that would support a preemption claim.

Congressional Purposes and Objectives. Conflict preemption may also be found where

the challenged law “stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of the Congress." Arizona, 132 S.Ct. at 2501.6 “What is a sufficient obstacle is a

matter of judgment, to be informed by examining the federal statute as a whole and identifying its

purpose and intended effects.” Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,

372 (2000)). See also, Villas, 726 F.3d at 528.

Additional guidance comes from the Supreme Court in Chamber of Commerce of the

United States v. Whiting, 131 S.Ct. 1968 (2011), in which the Court stated:

Implied preemption analysis does not justify a “freewheeling judicial inquiry into whether

a state statute is in tension with federal objectives”; such an endeavor “would undercut the

principle that it is Congress rather than the courts that preempts state law.” Gade v.

National Solid Wastes Management Assn., 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d

73 (1992) (KENNEDY, J., concurring in part and concurring in judgment); see Silkwood

v. Kerr–McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Our

6 In their Response (Doc. 17, p. 10), Plaintiffs describe “conflict pre-emption” as occurring “when state and federal

mandates are in direct conflict, or when state law interferes with federal discretion and objectives.” (Emphasis added.)

None of the three cases Plaintiffs cite supports the emphasized language. Defendants believe Plaintiffs have

incorrectly stated the law and urge this Court to follow the standard supplied by Arizona v. United States, 132 S.Ct.

2492, 2501 (2012)( “state laws are preempted when they conflict with federal law. . . . This includes cases where

‘compliance with both federal and state regulations is a physical impossibility,’ . . . and those instances where the

challenged law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the

Congress.”)



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precedents “establish that a high threshold must be met if a state law is to be preempted for

conflicting with the purposes of a federal Act.” Gade, supra, at 110, 112 S.Ct. 2374.

Again, tested against the applicable standard for establishing preemption, Plaintiffs come

up short. Plaintiffs do not even identify the federal statute, the full purposes or objective of which

are obstructed by 25 Texas Admin. Code § 181.28. They thus fail at the very threshold of this type

of conflict analysis.

Far from a straightforward application of any of the tests for preemption, Plaintiffs instead

offer arguments grouped in three categories, “1. Denial of Rights and Privileges to U.S.-Citizen

Children” (Doc. 17, pp. 10-13), “2. De Facto Removal” (Doc. 17, pp. 13-15),” and “ B. Sanctions

and Benefits (Doc. 17, pp. 15-17). The first section appears to deal with the plaintiffs who are

alleged to be United States citizens. As to them, the claim of preemption is that “Defendants’

practices are thus in direct conflict with federal laws and the Constitution.” (Doc. 17, pp. 12-13.)

Defendants have already addressed this “direct conflict” theory, above, and have shown that

Plaintiffs have failed to come forward with any specific conflicts that support preemption. The

remaining two categories pertain to the children’s undocumented parents. Defendants further reply

to those, as follows.

De Facto Removal. Plaintiffs’ de facto removal theory of preemption may be summarized

as follows: the State’s requirement that an applicant must provide what the State deems to be

reliable proof of identity results in some applicants not being able to obtain birth certificates for

their children; not receiving a birth certificate for a child is effectively the same as being removed

from the State; and, because removal of immigrants is solely a federal function, the State rule is

preempted. The problem with this argument is that it is based entirely on a theory of preemption

that, although urged, could not garner a majority of the en banc Fifth Circuit. Villas at Parkside



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Partners v. City of Farmers Branch, 726 F.3d 524 (5th Cir. 2013)(en banc), cert. denied , 134 S.Ct.

1491 (2014).

While Plaintiffs refer once to the concurring opinions of four judges in that opinion (Doc.

17, p. 13), elsewhere they incorrectly present the de facto theory as if it were the opinion of the

Court.7 The Court in Villas, however, made clear that it was not deciding the case on the basis of

field preemption. Villas, 726 F.3d at 529, n.4. Despite the wishes of some members of the Court,

and despite the full Court’s consideration of the other cases Plaintiffs rely upon to support the

theory,8 the Fifth Circuit simply did not adopt a preemption theory based on de facto removal.

Field preemption based on de facto removal is not the law in the Fifth Circuit.

Nothing in 25 Texas Admin. Code § 181.28 even remotely purports to remove anyone from

the United States. A voluntary decision to leave the United States, even if caused by a State

denying benefits accorded to citizens or legal immigrants, is not a de facto removal because the

State is not physically removing anyone. Plaintiffs’ expansive notion of removal, if accepted,

would apply equally to the California law in De Canas and the Arizona law in Whiting, based on

the contention that denying aliens employment inevitably has the same effect of “removing” some

of them from the State. Yet the Supreme Court upheld the validity of these laws in both cases.

The issue in De Canas was whether a California law imposing fines on employers who knowingly

employed unlawfully present aliens was an unconstitutional attempt by the State to regulate

immigration. As the Court framed the issue:

Power to regulate immigration is unquestionably exclusively a federal power. But the Court

has never held that every state enactment which in any way deals with aliens is a regulation

7 E.g., “The Fifth Circuit, in [Villas], addressing a similar problem of de facto removal, struck down a city ordinance

for that very reason.” (Doc. 17, p. 13, emphasis added.) Also, “In Villas, the Fifth Circuit reasoned that, if

undocumented persons are unable to obtain basic necessities such as shelter, they will have no recourse but to ‘self-

deport.’” ( Id ., emphasis added.)8 Lozano v. City of Hazelton, 620 F.3d 170 (3d Cir. 2010), vacated on other grounds by 131 S.Ct. 2958 (2011); United

States v. Alabama, 691 F.3d 1269 (11th Cir. 2012), cert. denied , 133 S.Ct. 2022 (2013).



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of immigration and thus per se pre-empted by this constitutional power, whether latent or

exercised.... [T]he fact that aliens are the subject of a state statute does not render it a

regulation of immigration, which is essentially a determination of who should or should

not be admitted into the country, and the conditions under which a legal entrant may

remain.

424 U.S. at 354–55 (citations omitted). While acknowledging that the California law may have

some “indirect impact on immigration,” the Court held that it was not constitutionally preempted.

Id . at 355–56.

Plaintiffs' broad notion of preemption is also inconsistent with the Supreme Court's

decision in Whiting, 131 S.Ct. at 1987, upholding an Arizona law that mandated the use of E–

Verify and revoked the licenses of employers who knowingly employed aliens lacking work

authorization. The Court gave no hint that the Arizona law constituted impermissible state

regulation of immigration based on the suggestion that it may have the effect of causing certain

aliens to leave the State. Instead, the Court carefully analyzed whether the Arizona law was either

expressly preempted by IRCA, or was impliedly preempted because it conflicted with federal law.

Id . at 1977–84. This analysis would have been unnecessary if the Arizona law was “a

constitutionally proscribed regulation of immigration that Congress itself would be powerless to

authorize or approve.” De Canas, 424 U.S. at 356.

Plaintiffs’ theory of field preemption by virtue of de facto removal is contrary to controlling

Supreme Court precedents and finds no support in Fifth Circuit preemption law.

Plaintiffs also characterize their de facto theory as conflict preemption. They have failed,

however, to demonstrate a direct conflict between state law and a specific federal statute. Nor

have they identified any specific federal statute, examined it as a whole, identified its purpose and

intended effects, and then shown how the State statute is an obstacle to the accomplishment and



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execution of the full purposes and objectives of the Congress behind that statute—as required by

Arizona and Villas.

Sanctions and Benefits. The final section of Plaintiffs’ response appears under the

heading “Sanctions and Benefits” and concludes with the assertion “Both field and conflict

preemption are presented here.” The preemption analysis that precedes that conclusion, however,

is less than clear and does not support the conclusion. If the argument is field preemption, the

threshold question is what “field” or “fields” has the United States Congress exclusively occupied?

Only then can it be determined whether 25 Texas Admin. Code § 181.28 encroaches upon any

such field. Plaintiffs do not answer the threshold question and thus do not demonstrate

encroachment by state law. Plaintiffs’ citations to statutes that impose restrictions on persons who

enter the United States unlawfully establish no “field” in conflict with a Texas rule on what an

applicant must show to obtain a child’s birth certificate. Plaintiffs’ citations to statutes they

characterize as preventing “inhumane local treatment of undocumented” individuals likewise do

not lay out a defined exclusive federal field nor do they include any federal statute that preempts

the State from requiring reliable evidence of an applicants’ identity in order to obtain a certified

copy of a birth certificate. In short, Plaintiffs’ concluding section fails to show preemption of any

nature.

For the foregoing reasons, Texas Department of State Health Services Vital Statistics Unit,

Interim Commissioner Kirk Cole, in his official capacity and State Registrar Geraldine Harris, in

her official capacity, respectfully request that this Court dismiss Plaintiff’s First Amended

Complaint on the grounds and to the extent requested in their Motion to Dismiss.

Respectfully Submitted,

KEN PAXTON

Attorney General of Texas



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CHARLES E. ROYFirst Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for CivilLitigation

ANGELA V. COLMENERO

Chief, General Litigation Division

/s/ Thomas A. Albright

THOMAS A. ALBRIGHT

Texas Bar No. 00974790

Attorney-in-ChargeAssistant Attorney General

General Litigation DivisionP.O. Box 12548, Capitol StationAustin, Texas 78711-2548

(512) 463-2120

(512) 320-0667 (Fax)

ATTORNEYS FOR DEFENDANTS



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CERTIFICATE OF SERVICE

I hereby certify that on this, the 13th day of August, 2015, a true and correct copy of the

foregoing document has been filed with the court’s CM/ECF electronic case management system,

thus providing service to the following participants:

Efren Carlos Olivares

Texas Civil Rights Project

P.O. Box 219Alamo, TX 78516

956-787-8171 ext. 108

Fax: 956-787-6348

James C. Harrington

Texas Civil Rights Project1405 Montopolis DriveAustin, TX 78741

(512) 474-5073

Fax: (512) 474-0726

Jennifer K. Harbury

Texas Rio Grande Legal Aid, Inc.

TRLA, 300 S. Texas Blvd.Weslaco, TX 78596

956-447-4800

Fax: 956-968-8823

ATTORNEYS FOR PLAINTIFFS

/s/ Thomas A. Albright

THOMAS A. ALBRIGHT

Assistant Attorney General


Documents

Dkt #18 20150813_Ds' Reply in Support - Motion to Dismiss