Case 5:13-cv-00982-OLG Document 84 Filed 11/25/14 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CLEOPATRA DE LEON, NICOLE
DIMETMAN, VICTOR HOLMES, and
MARK PHARISS,
Plaintiffs,
v.

RICK PERRY, in his Official Capacity as

Governor of the State of Texas, GREG
ABBOTT, in his Official Capacity as Texas
Attorney General, GERARD RICKHOFF,
in his Official Capacity as Bexar County
Clerk, and DAVID LAKEY, in his Official
Capacity as Commissioner of the Texas
Department of State Health Services,
Defendants.

CIVIL ACTION
NO. 5:13-CV-982-OLG

STATE DEFENDANTS RESPONSE IN OPPOSITION

TO MOTION TO LIFT STAY OF INJUNCTION
The plaintiffs unfounded challenge to this Courts decision to stay the
execution of the preliminary injunction should be denied for several reasons. The
plaintiffs motion is untimely, coming nine months after the Courts unopposed stay
and at the cusp of expedited oral argument in the Fifth Circuit. The motion is also
out of order, since the Court stayed the entire case pending appeal and the plaintiffs
have not sought to reopen the case.

The plaintiffs requested relief is also

jurisdictionally barred because it would interfere with the Fifth Circuits appellate
jurisdiction and it would alter the status quo while the case is on appeal.

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The impropriety of the plaintiffs motion is matched by the weakness of their

substantive arguments. The sole purported basis for their requestthe Supreme
Courts denial of certiorari in other same-sex marriage caseshas no constitutional
significance, as they admit, and it actually cuts against their argument for lifting
the stay. Furthermore, the plaintiffs alleged harms are speculative or have already
been considered by the Court. For any of these reasons, explained in more detail
below, the Court should deny the plaintiffs motion.
I.

THE PLAINTIFFS MOTION IS UNTIMELY AND IMPROPER

Nearly nine months after the Court stayed the preliminary injunction

without objection, almost two months after all appellate briefing was completed,
and a little more than one month before expedited oral argument in the Fifth
Circuit, the plaintiffs now ask the Court to immediately suspend enforcement of
longstanding Texas marriage law. This last-minute request is even more surprising
given that (1) the plaintiffs voiced no opposition to a stay when the Court directly
asked them at the preliminary-injunction hearing,1 (2) they did not challenge the
stay in the Fifth Circuit, and (3) they did not oppose a stay of the entire case while
the appeal is pending.2 Whats more, the sole basis for the plaintiffs motion (denial
of certiorari in other same-sex marriage cases) occurred almost two months ago, on
October 6, 2014. The plaintiffs offer no explanation for why they waited so long to

See ROA.2102:1118 (In the event that a[] [preliminary-injunction] order is

entered, we would understand why the Court, Your Honor, would want to [stay the
injunction pending appellate review]. We would not immediately appeal the stay.).
2 See Unopposed Mot. to Stay Proceedings Pending Interloc. Appeal, Doc. 75 (March
6, 2014).
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file their motion.

They should not be rewarded for lying behind the log and

springing this challenge on the Court and the State at the eleventh hour,
demanding immediate relief.
The plaintiffs motion is also improper because the entire casenot merely
the preliminary injunctionis currently stayed. See Order Granting Unopposed
Mot. to Stay Proceedings, Doc. 76, (March 7, 2014). Notably, the plaintiffs did not
object to the stay. See Unopposed Stay Mot., Doc. 75. If the plaintiffs wish to
restart trial proceedings with a modification of the Courts preliminary-injunction
order, then they must first move to reopen the case. The District Court has broad
discretion to stay proceedings as an incident to its power to control its own docket,
Clinton v. Jones, 520 U.S. 681, 706 (1997), and the plaintiffs cannot avoid the
Courts stay by ignoring it.
II.

THE COURT LACKS JURISDICTION TO

INJUNCTION ORDER TO REMOVE THE STAY

MODIFY

THE

PRELIMINARY-

The plaintiffs attempt to lift the stay wrongly assumes the Courts authority
to substantively modify the preliminary-injunction order while it is under review by
the Fifth Circuit. The Court granted and stayed the preliminary injunction in the
same order. See Order Granting Plaintiffs Mot. for Prelim. Inj., De Leon v. Perry,
975 F. Supp. 2d 632, 666 (W.D. Tex. 2014) ([T]his Court stays execution of this
preliminary injunction pending the final disposition of any appeal to the Fifth
Circuit Court of Appeals.).

Removing the Courts stay would therefore require

substantive modification of the order that the State is appealing in the Fifth
Circuit. It is well established, however, that a federal district court and a federal

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court of appeals should not attempt to assert jurisdiction over a case

simultaneously. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)
(per curiam).
The filing of a notice of appeal is an event of jurisdictional significanceit
confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal. Griggs, 459 U.S. at 58;
see also Rutherford v. Harris Cnty., 197 F.3d 173, 190 (5th Cir. 1999) (A district
court loses all jurisdiction over matters brought to the court of appeals upon the
filing of a notice of appeal. Once an appeal is taken, the district court is divested of
jurisdiction except to take action in aid of the appeal until the case is remanded to it
by the appellate court, or to correct clerical errors under Rule 60(a). (citations
omitted)); Coastal Corp. v. Tex. E. Corp., 869 F.2d 817, 819 (5th Cir. 1989)
(explaining that as a general rule, a notice of appeal ousts the district court of
jurisdiction over the judgment or order appealed). When one aspect of a case is
before the appellate court on interlocutory review, the district court is divested of
jurisdiction over that aspect of the case. Dayton Indep. Sch. Dist. v. U.S. Mineral
Products Co., 906 F.2d 1059, 1063 (5th Cir. 1990).
In Coastal, the Fifth Circuit specifically addressed the scope of the district
courts jurisdiction over its injunction while it is on appeal, 869 F.2d at 819, and
concluded that the powers of the district court over an injunction pending appeal
should be limited to maintaining the status quo, id. at 820; cf. Fed. R. Civ. P. 62(c)
(While an appeal is pending from an interlocutory order or final judgment that

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grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or
grant an injunction on terms for bond or other terms that secure the opposing
partys rights.).
In this case, modifying the preliminary-injunction order to remove the stay
would interfere with the Fifth Circuits appellate jurisdiction by creating issues that
were not addressed by the parties in their Fifth Circuit briefing but which would
become significant in resolving the appeal.

For example, if the Fifth Circuit

reversed and vacated the preliminary injunction, what would be the legal status of
same-sex marriages entered into during the pendency of the appeal or parental
rights regarding children born into interim same-sex marriages? The Fifth Circuit
has not had the occasion to consider these issues and would not have the benefit of
briefing if the stay were removed now. Lifting the stay would also dramatically
alter the status quo by suspending enforcement of longstanding Texas law. The
Court therefore has no authority to modify the preliminary-injunction motion to
remove the stay.
III.

THE BASIS FOR THE STAY IS STRONGER THAN EVER

Notwithstanding the Courts lack of jurisdiction to lift the stay, the plaintiffs

only purported justification for such relief actually cuts against their argument.
The plaintiffs argue that the Court should remove the stay because its basisthe
Supreme Courts stay order in Herbert v. Kitchen, No. 13A687 (Jan. 6, 2014)no
longer stands, now that the Supreme Court denied certiorari in appeals from the
Fourth, Seventh, and Tenth Circuits decisions finding that state laws banning

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same-sex marriage were unconstitutional. Mot. to Lift Stay at 2, Doc. 83 (Nov. 24,
2014). But the plaintiffs misread the Supreme Court tea leaves.
To begin with, the certiorari denials reveal that the Supreme Court is
committed to the idea that a single district judge should not set marriage policy for
an entire State. Even though the Supreme Court eventually denied certiorari, it
nevertheless stayed the district courts injunction in Herbert until the appellate
process had run its course. The Supreme Courts willingness to enjoin district-court
injunctions of state law in cases that it eventually declines to review does not
support the plaintiffs demand that the Court immediately enjoin enforcement of
Texas law; to the contrary, it confirms the prudence of the stay.
The plaintiffs make much of recent Supreme Court orders declining to stay
injunctions in same-sex marriage cases, but they fail to recognize that those cases
arose in circuits in which there is binding circuit precedent on the relevant issues
and the Supreme Court has already denied certiorari from that circuit courts
decision. See Mot. at 4. Those stay denials are irrelevant because there would be
little reason for the Court to stay an injunction based on binding circuit precedent
that the Supreme Court previously declined to review. The plaintiffs cite no case
(and we are aware of none) in which the Supreme Court has declined to stay a
district courts injunction of a States marriage law in a circuit that has not yet
resolved the issue.
The Supreme Courts denial of certiorari also is legally inconsequential, as
the plaintiffs concede.

Id. at 2.

As the Sixth Circuit recently explained in its

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decision upholding traditional-marriage laws in four States, the denials of certiorari

are simply decisions not to decide; they tell us nothing about the democracyversus-litigation path to same-sex marriage . . . . DeBoer v. Snyder, No. 14-1341,
2014 WL 5748990, at *7 (6th Cir. Nov. 6, 2014).
In any event, the plaintiffs are wrong that the Court stayed the preliminary
injunction only due to the Supreme Courts stay in Herbert. After acknowledging
the legal and practical problems that would proceed from a temporary suspension of
Texass marriage laws while the case is on appeal, the Court explained that those
concerns do not counsel against a preliminary injunction because the Court intends
to stay execution of this order pending appeal to prevent any legal and practical
complications. De Leon, 975 F. Supp. 2d at 665. The plaintiffs motion ignores this
important, independent basis for the stay and there is no reason to think that lifting
the stay now would not produce the same legal and practical problems that the
Court sought to prevent when it stayed the preliminary injunction.
IV.

THE ALLEGED HARMS ARE SPECULATIVE OR SIMPLY RENEWED ASSERTIONS

OF PREVIOUSLY UNSUCCESSFUL ARGUMENTS
The plaintiffs allegations of harm also provide no ground for lifting the stay.

The plaintiffs raise two arguments for why the stay causes grave harm to
plaintiffs; one is speculative and the other is simply a repeat of previous
arguments. Mot. at 5.
First, the plaintiffs assert harm that hinges on death or incapacity. Plaintiffs
Dimetman and De Leon argue that if Dimetman, who is pregnant, died or was
incapacitated, then De Leon would not be able to care for the child until the

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adoption was complete. Id. at 56. Similarly, Plaintiffs Holmes and Phariss argue
that if one of them died before they could marry, they would be denied spousal
survivor benefits, the joy of a wedding, and the validation of their relationship in
the eyes of the State. Id. at 67.
These alleged harms are speculative; they are contingent on death or
incapacity of one of the parties, but the plaintiffs do not allege any threat or
expectation that these potential tragedies will befall them.

Assertions of

speculative injury are not sufficient for preliminary injunctive relief; there must be
more than an unfounded fear on the part of the applicant. Janvey v. Alguire, 647
F.3d 585, 600 (5th Cir. 2011); see also Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 22 (2008) (Issuing a preliminary injunction based only on a possibility of
irreparable harm is inconsistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.).
Second, the plaintiffs simply repeat alleged harms that they asserted in the
preliminary-injunction motion, such as the uncertainty, time, and cost associated
with having to adopt a child, Mot. at 5, and the social harms suffered from the
continued denial of the right to marry or have out-of-state marriages recognized, id.
at 67. These alleged harms did not justify an immediate injunction of Texas law at
the preliminary-injunction stage and the plaintiffs offer no reason why the same
alleged injuries now suffice to lift the stay.

Taken together, the plaintiffs

assertions of harm do not support the drastic step of modifying the preliminary-

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injunction order to remove the stay, even if the Court had authority to take such
action.
CONCLUSION
The Court should deny the plaintiffs motion.

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Date: November 25, 2014

Respectfully submitted.
GREG ABBOTT
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for
Legal Counsel
JONATHAN F. MITCHELL
Solicitor General
/s/ Michael P. Murphy
MICHAEL P. MURPHY
Assistant Solicitor General
Texas Bar No. 24051097
BETH KLUSMANN
Assistant Solicitor General
Texas Bar No. 24036918
WILLIAM T. DEANE
Assistant Attorney General
Texas Bar No. 05692500
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-2995
Fax: (512) 474-2697
michaelp.murphy@texasattorneygeneral.gov
COUNSEL FOR STATE DEFENDANTS
RICK PERRY, GREG ABBOTT,
AND DAVID LAKEY

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CERTIFICATE OF SERVICE
I certify that on November 25, 2014, this document was served on counsel of
record, via the Courts CM/ECF Document Filing System and/or electronic mail.

/s/ Michael P. Murphy

MICHAEL P. MURPHY
Assistant Solicitor General

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