Case: 21-50949 Document: 00516055044 Page: 1 Date Filed: 10/14/2021

No. 21-50949

In the United States Court of Appeals

for the Fifth Circuit
United States of America,
Plaintiff-Appellee,
v.
State of Texas,
Defendant-Appellant,
Erick Graham; Jeff Tuley; Mistie Sharp,
Intervenor Defendants-Appellants.

On Appeal from the United States District Court

for the Western District of Texas, Austin Division
No. 1:21-cv-00796-RP

APPELLANT THE STATE OF TEXAS’S REPLY IN

SUPPORT OF EMERGENCY MOTION TO STAY
PRELIMINARY INJUNCTION PENDING APPEAL

Ken Paxton Judd E. Stone II

Attorney General of Texas Solicitor General
[email protected]
Brent Webster
First Assistant Attorney General Beth Klusmann
Natalie D. Thompson
Office of the Attorney General Assistant Solicitors General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548 Counsel for Appellant
Tel.: (512) 936-1700 the State of Texas
Fax: (512) 474-2697
 Case: 21-50949 Document: 00516055044 Page: 2 Date Filed: 10/14/2021

Table of Contents
Page
Introduction ............................................................................................................ 1
Argument................................................................................................................ 1
I. The District Court Lacked Jurisdiction...................................................... 1
II. The Federal Government Cannot Succeed on the Merits. .........................2
A. The federal government lacks a cause of action. ..................................2
B. There is no separate cause of action for preemption and
intergovernmental-immunity claims.................................................... 4
C. Congress displaced any equitable cause of action. ............................... 5
III. The District Court’s Injunction Cannot Lawfully Apply To
Anyone. ..................................................................................................... 7
IV. The Federal Government’s Hyperbole and Exaggeration Reveal
the Weaknesses in Its Case. ....................................................................... 9
Conclusion ............................................................................................................ 11
Certificate of Service............................................................................................. 11
Certificate of Compliance ..................................................................................... 12

i
 Case: 21-50949 Document: 00516055044 Page: 3 Date Filed: 10/14/2021

Introduction
The federal government cannot justify the district court’s unprecedented in-
junction that enjoins a State, its courts, and all its citizens. The government’s re-
sponse alternately misreads and ignores relevant precedent, relying on the mistaken
notion that federal district courts (as opposed to state courts) must be able enjoin
any constitutional violation, wherever found. This argument, and the district court’s
injunction, are erroneous. The Court should stay the injunction pending appeal.

Argument

I. The District Court Lacked Jurisdiction.

A sovereign defendant does not have sufficiently “adverse” interests to support
Article III jurisdiction by virtue of enacting a law enforced through private litigation.
Muskrat v. United States, 219 U.S. 346, 361-62 (1911). The federal government un-
successfully tries to distinguish Muskrat in two ways. First, it suggests Texas is “ad-
verse” because it defends the constitutionality of S.B. 8, Opp’n 15, but the federal
government defended the constitutionality of its statutes in Muskrat, 219 U.S. at 349.
Second, the federal government suggests Muskrat was a “collusive” suit, Opp’n 15,
but the parties genuinely disputed the constitutionality of the challenged laws. The
chief difference was that Congress expressly created a cause of action in Muskrat. Of

course, that gave Muskrat a stronger—though still insufficient—claim to being heard

in federal court. Mot. 8.
This Court should apply Muskrat, as it has in other litigation about private causes

of action related to abortion. Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en
 Case: 21-50949 Document: 00516055044 Page: 4 Date Filed: 10/14/2021

banc). Any other result would create a split with the Seventh Circuit, which held that
the inability to enjoin private causes of action against abortion providers “follows
directly from Muskrat.” Hope Clinic v. Ryan, 249 F.3d 603, 605 (7th Cir. 2001) (per
curiam).

II. The Federal Government Cannot Succeed on the Merits.

A. The federal government lacks a cause of action.

Disclaiming any constitutional cause of action, the federal government relies ex-
clusively on “a cause of action in equity” under In re Debs, 158 U.S. 564 (1895).
Opp’n 11. Debs rests on two limitations, neither of which the federal government can
satisfy.
First, Debs involved a cause of action to abate a public nuisance, which is inap-
plicable here. See Mot. 10; App.330-31. “The crux of the Debs decision” was “that
the Government may invoke judicial power to abate what is in effect a nuisance det-
rimental to the public interest.” United Steelworkers of Am. v. United States, 80 S. Ct.
177, 186 (1959) (Frankfurter, J., concurring). The federal government suggests Debs
is not about nuisances but does not explain why the opinion discusses the rule that

“a public nuisance has always been held subject to abatement at the instance of the
government.” Debs, 158 U.S. at 587 (using “nuisance” twenty-six times).
Second, Debs applies only when the federal government “has assumed control”
over “routes of commerce” by statute. Wyandotte Transp. Co. v. United States, 389
U.S. 191, 201 (1967) (interpreting the Rivers and Harbors Act of 1899). If Debs al-
lowed an equitable cause of action whenever the federal government wanted “to

2
 Case: 21-50949 Document: 00516055044 Page: 5 Date Filed: 10/14/2021

protect its interests,” Opp’n 9 (citing Wyandotte), then Wyandotte would not have
had to “infer[]” a cause of action from a particular statute, Wyandotte, 389 U.S. at
204. The federal government would have this Court split with the Fourth Circuit,
which holds that Debs requires “a well-defined statutory interest of the public at
large.” United States v. Solomon, 563 F.2d 1121, 1127 (4th Cir. 1977); see Mot. 6-7.

That is why this Court and others have rejected the federal government’s at-
tempts to sue for violations of the Constitution without an established cause of ac-
tion. Mot. 10-11. The federal government attempts to distinguish these cases—in-
cluding United States v. Madison County Board of Education, 326 F.2d 237 (5th Cir.
1964)—on the ground that those cases involved the “rights of individuals,” not the
federal government’s “own interests.” Opp’n 12. The distinction is meaningless be-
cause here the federal government is claiming an interest in the alleged violation of
individual rights. Opp’n 9-10. The federal government’s supposed interest was
equally implicated in each of the cases it is trying to distinguish. 1

Finally, the federal government points to three additional cases, Opp’n 9, but
none helps. United States v. American Bell Tel. Co., 128 U.S. 315 (1888), rested on the
same equitable cause of action for fraud that private individuals have, id. at 357, and

analyzed English precedent permitting the King to sue in Chancery to revoke fraud-
ulently obtained patents, id. at 360-61. The two remaining cases both rested on

1
The federal government tries to distinguish Madison County because it also in-
volved the war power (which this case does not), Opp’n 13, but that makes this case
weaker, not stronger.

3
 Case: 21-50949 Document: 00516055044 Page: 6 Date Filed: 10/14/2021

statutory causes of action, which are not at issue here. See Sanitary Dist. of Chi. v.
United States, 266 U.S. 405, 428 (1925); Heckman v. United States, 224 U.S. 413, 442
(1912).
Federal courts’ equity jurisdiction is limited to that exercised by the English
Court of Chancery in 1789 unless Congress expands it by statute. Grupo Mexicano de

Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999). The federal gov-
ernment concedes as much, Opp’n 12, but suggests its newfound cause of action
could be limited to situations in which review is not available under Section 1983 or
Ex parte Young, Opp’n 1, 3, 6, 9-10, 12, both of which long post-date 1789. The fed-
eral government’s argument is at war with itself. A cause of action cannot both have
existed in 1789 and spring into existence based on an alleged “attempt to evade judi-
cial review” under procedures that did not exist until after the Civil War.

B. There is no separate cause of action for preemption and intergov-

ernmental-immunity claims.
The federal government wrongly suggests that Texas has not disputed the exist-
ence of a cause of action for the government’s non-abortion claims. Opp’n 7. As

Texas has already explained, the federal government does not have a cause of action
for any of its claims. See Mot. 9-11; App.326-32; United States v. California, 507 U.S.
746, 759-60 (1993) (no “federal common-law cause of action” to recover unlawful

taxes paid by federal contractor).

The federal government cites only two cases, neither of which discussed the
cause-of-action issue. Opp’n 7-8. First, United States v. Washington, 971 F.3d 856
(9th Cir. 2020), rejected the federal government’s intergovernmental-immunity

4
 Case: 21-50949 Document: 00516055044 Page: 7 Date Filed: 10/14/2021

claims, so it had no occasion to consider the non-jurisdictional cause-of-action issue.

See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (explaining cases
are not precedent for issues not ruled upon).
Second, Arizona v. United States, 567 U.S. 387 (2012), included a state official as
a defendant, so it may have been based on the equitable cause of action against state

officers from Ex parte Young or the later-rejected assumption that the Supremacy
Clause creates a cause of action. See Armstrong v. Exceptional Child Ctr., Inc., 575
U.S. 320, 324 (2015). Regardless, it also did not consider whether there was a cause
of action. Moreover, just as Arizona held that the congressionally enacted scheme
for enforcing federal immigration laws precluded States from supplementing that en-
forcement, see Arizona, 567 U.S. at 401-02, the congressionally enacted scheme for
enforcing constitutional rights precludes the executive branch from supplementing
that enforcement here—even if it considers the congressional scheme inadequate.
That the executive branch claims “to vindicate, not circumvent, Congress’s judg-

ment” (Opp’n 14) is just as irrelevant in this case as the State’s argument was in
Arizona.
But even if there were a cause of action for these claims, it could not support an

injunction any broader than preventing enforcement of S.B. 8 to federal employees

(and perhaps contractors), which Texas courts will not do anyway. See Mot. 5.

C. Congress displaced any equitable cause of action.

The federal government does not deny that a congressionally enacted enforce-
ment scheme can displace equitable causes of action, instead arguing that “Congress

did not consider” whether to grant the Attorney General a civil cause of action when

5
 Case: 21-50949 Document: 00516055044 Page: 8 Date Filed: 10/14/2021

it enacted Section 1983. Opp’n 14. But the case it cites says the opposite: “[T]he
extensive congressional consideration of the problem of enforcement and the com-
prehensive legislative program that [Congress] developed [between 1865 and 1871]
simply foreclose the possibility that it implicitly created an additional remedy with-
out ever mentioning its existence in either the statutes or the debates.” United States

v. City of Philadelphia, 644 F.2d 187, 194-95 (3d Cir. 1980). Even if Congress did not
reject that idea “until the 1950s,” Opp’n 14, its decision would remain equally bind-
ing. The federal government does not address the numerous limited causes of action
(both old and new) that Congress has given the Attorney General—all of which
would be superfluous if the federal government had an equitable cause of action to
enforce the Constitution.
Finally, the federal government wrongly suggests Texas’s argument undermines
Ex parte Young and City of Jackson. Opp’n 14. First, Supreme Court precedent rec-
ognizes that equitable causes of action, like Ex parte Young, are sometimes displaced

by “implied statutory limitations.” Armstrong, 575 U.S. at 327; see Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 74 (1996) (“detailed remedial scheme” foreclosed
“action against a state officer based upon Ex parte Young”).

Second, City of Jackson was based on a statutory cause of action under the Inter-
state Commerce Act, not an equitable one. United States v. City of Jackson, 318 F.2d
1, 9 (5th Cir. 1963); see 320 F.2d 870, 872-73 (5th Cir. 1963) (Bootle, J., specially

concurring) (limiting “the extent” of his concurrence); id. at 873 (Ainsworth, J.,
specially concurring) (same).

6
 Case: 21-50949 Document: 00516055044 Page: 9 Date Filed: 10/14/2021

III. The District Court’s Injunction Cannot Lawfully Apply To Anyone.

An injunction must “operat[e] in personam” by being “directed at someone, and
govern[ing] that party’s conduct.” Nken v. Holder, 556 U.S. 418, 428 (2009). But the
district court’s injunction cannot lawfully direct anyone’s conduct. Mot. 13-14. And
the federal government cites no authority for its novel argument that “the State of
Texas” can be enjoined because its Legislature enacted an allegedly unconstitutional
private cause of action. Opp’n 15-16.

A. The federal government’s suggestion that executive officials (who do not

enforce S.B. 8) could be enjoined from enforcing state-court judgments (Opp’n 16)
would cause inconsistent chaos. Private citizens would still have non-executive
means of enforcing S.B. 8 judgments. In re Sheshtawy, 154 S.W.3d 114, 124-25 (Tex.
2004) (contempt); Cont’l Oil Co. v. Lesher, 500 S.W.2d 183, 185 (Tex. Civ. App.—
Houston [1st Dist.] 1973, no writ) (referring to “judgments which are self execut-
ing”). They could also seek enforcement of judgments through other courts’ sys-
tems. See, e.g., 28 U.S.C. § 1332 (federal enforcement under diversity jurisdiction);
cf. Tex. Civ. Prac. & Rem. Code §§ 35.001-.008 (domesticating foreign judgments).
In any event, the district court did not enjoin executive officials from enforcing judg-
ments, but enjoined “state court judges and state court clerks.” App.934.
Of course, enjoining enforcement of hypothetical future judgments would vio-

late Article III because there has been no showing that such judgments are “immi-
nent” or “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013). The federal government’s theory would also violate Younger abstention: a

7
 Case: 21-50949 Document: 00516055044 Page: 10 Date Filed: 10/14/2021

federal court must “stay its hand” when its injunction would “interfere with the
execution of state judgments.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987).
B. The federal government does not seriously defend enjoining judges, clerks,
or other judicial officials. It conspicuously ignores this Court’s ruling that “chal-
leng[ing] an unfavorable state law” by suing “state court judges” is “absurd.” Whole

Woman’s Health v. Jackson, 13 F.4th 434, 444 (5th Cir. 2021) (per curiam). It simi-
larly disregards this Court’s holding that “[t]he requirement of a justiciable contro-
versy is not satisfied where a judge acts in his adjudicatory capacity.” Bauer v. Texas,
341 F.3d 352, 359 (5th Cir. 2003).
The federal government purports to avoid these obstacles by simply refusing to
name state judicial officials as defendants. But a suit against a sovereign does not bind
that sovereign’s courts in future litigation involving private parties. See Muskrat, 219
U.S. at 361-62. As Texas explained below, “the federal government gets things pre-
cisely backward. There are more hurdles, not fewer, to enjoining those who are not

named as defendants.” App.315.

* * *
The federal government’s insistence that there must be someone for a federal

district court to enjoin in a pre-enforcement challenge, Opp’n 16, contradicts bind-

ing precedent. Courts must determine whether each case is procedurally proper in-
dependent from whether a different pre-enforcement challenge is available. Whole

Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495-96 (2021); Whole Woman’s Health,
13 F.4th at 447; Okpalobi, 244 F.3d at 429.

8
 Case: 21-50949 Document: 00516055044 Page: 11 Date Filed: 10/14/2021

IV. The Federal Government’s Hyperbole and Exaggeration Reveal the

Weaknesses in Its Case.
The federal government’s position boils down to a simple—but erroneous—
claim: Any law that avoids pre-enforcement review in federal district court is an

“open threat” to our constitutional order. Opp’n 10; see also Opp’n 7 (positing hy-
pothetical laws). That is ahistorical nonsense. Such laws have been enacted, and how
such laws have historically been reviewed is telling.

When other States’ private causes of action for violations of restrictive covenants
burdened the equal-protection rights of African-American homebuyers, the Su-
preme Court declared them unconstitutional, but it did so in an appeal from a state-

court judgment, not on appeal from an injunction entered by federal district judge
against his state-court colleagues. Shelley v. Kraemer, 334 U.S. 1, 6-8 (1948). And
when Alabama’s private cause of action for defamation—created by common law
but “supplemented by statute”—burdened pro-civil-rights speech, the Supreme
Court again reviewed it on appeal from a state-court judgment. N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 265, 291-92 (1964).

S.B. 8 does not threaten “constitutional nullification” any more than those laws
did. Opp’n 10. And requiring abortion providers to rely on the same procedures that
tort defendants with constitutional defenses use regularly is not a constitutional cri-

sis.
But even if one focuses myopically on private causes of action regarding abortion,
the federal government is wrong to claim that this case is “unique.” Opp’n 14. This
Court twice rejected attempts by abortion providers to challenge a private cause of

9
 Case: 21-50949 Document: 00516055044 Page: 12 Date Filed: 10/14/2021

action enacted by Louisiana, as the state officials sued did not enforce that provision.
K.P. v. LeBlanc, 729 F.3d 427, 437 (5th Cir. 2013) (holding state Board did not en-
force the private cause of action); Okpalobi, 244 F.3d at 417-21 (plurality op.) (hold-
ing the Governor and Attorney General did not have a connection to enforcement of
the law).

Similarly, the Seventh Circuit held that plaintiffs were “not entitled to challenge
the state laws to the extent that these laws authorize private suits for damages”
against abortion providers.” Hope Clinic, 249 F.3d at 605. The Eleventh Circuit held
that plaintiffs could not bring a pre-enforcement challenge against “the private civil
enforcement provision of [Alabama’s] partial-birth abortion statute.” Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1342 (11th Cir. 1999); see also Nova Health Sys.
v. Gandy, 416 F.3d 1149, 1157 (10th Cir. 2005).
That some of these cases affirmed injunctions against other types of enforcement
demonstrates that the federal government is wrong to accuse Texas of trying “to

evade review.” Opp’n 10. Even if Texas allowed public officials to enforce S.B. 8,
federal district courts still would not have the ability to enjoin private suits. To the
extent there is any practical difference between an injunction against public enforce-

ment and a law never authorizing public enforcement in the first place, it is in the
supposed value of an advisory opinion, which federal courts cannot provide. Musk-
rat, 219 U.S. at 361-62.

10
 Case: 21-50949 Document: 00516055044 Page: 13 Date Filed: 10/14/2021

Conclusion
The Court should grant a stay pending appeal.

Respectfully submitted.

Ken Paxton /s/ Judd E. Stone II

Attorney General of Texas Judd E. Stone II
Solicitor General
Brent Webster [email protected]
First Assistant Attorney General
Beth Klusmann
Office of the Attorney General Natalie D. Thompson
P.O. Box 12548 (MC 059) Assistant Solicitors General
Austin, Texas 78711-2548
Tel.: (512) 936-1700 Counsel for Appellant
Fax: (512) 474-2697 the State of Texas

Certificate of Service
On October 14, 2021, this reply was served via CM/ECF on all registered coun-
sel and transmitted to the Clerk of the Court. Counsel further certifies that: (1) any
required privacy redactions have been made in compliance with Fifth Circuit Rule

25.2.13; (2) the electronic submission is an exact copy of the paper document in com-
pliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with
the most recent version of Symantec Endpoint Protection and is free of viruses.

/s/ Judd E. Stone II

Judd E. Stone II

11
 Case: 21-50949 Document: 00516055044 Page: 14 Date Filed: 10/14/2021

Certificate of Compliance
This reply complies with: (1) the type-volume limitation of Federal Rule of Ap-
pellate Procedure 27(d)(2)(A) because it contains 2590 words, excluding the parts
exempted by Rule 27(a)(2)(B); and (2) the typeface and type style requirements of
Rule 27(d)(1)(E) because it has been prepared in a proportionally spaced typeface
(14-point Equity) using Microsoft Word (the program used for the word count).

/s/ Judd E. Stone II

Judd E. Stone II

12