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

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION
Perales Serna et al.,
Plaintiffs,
v.
Texas Department of State Health
Services, Vital Statistics Unit et al.,
Defendants.

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.

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.

Defendants Reply in Support of Motion to Dismiss

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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), rehg 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

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 Court
applied 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
Defendants Reply in Support of Motion to Dismiss

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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 States 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 reasonseither 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 alonea 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 powerincluding state power to promulgate laws not
in conflict with federal lawswas 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).
Defendants Reply in Support of Motion to Dismiss

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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

Defendants Reply in Support of Motion to Dismiss

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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 lawa 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. Natl 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. KerrMcGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Our

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 childrens 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 States 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 Courts 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 selfdeport. (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 35455 (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 35556.
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 197784. 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 statuteas 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 childs 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 Plaintiffs First Amended
Complaint on the grounds and to the extent requested in their Motion to Dismiss.
Respectfully Submitted,
KEN PAXTON
Attorney General of Texas

Defendants Reply in Support of Motion to Dismiss

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CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation
ANGELA V. COLMENERO
Chief, General Litigation Division
/s/ Thomas A. Albright
THOMAS A. ALBRIGHT
Texas Bar No. 00974790
Attorney-in-Charge
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, 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 courts CM/ECF electronic case management system,
thus providing service to the following participants:
Efren Carlos Olivares
Texas Civil Rights Project
P.O. Box 219
Alamo, TX 78516
956-787-8171 ext. 108
Fax: 956-787-6348
James C. Harrington
Texas Civil Rights Project
1405 Montopolis Drive
Austin, 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

Defendants Reply in Support of Motion to Dismiss

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