and seventeen five zero seven six three the state of texas versus travis county texas and you may proceed with argument now please the court john sullivan on behalf of the balance of state is not a second class litigant in federal court when there's a federal cause of action on the line in an imminent lawsuit over a concrete controversy in both the statutory and constitutional elements of jurisdiction are meant here there's statutory standing under both thirteen thirty one in the declaratory judgment act and the constitutional standing is met by the harm posed by the in that litigation counsel what do we do with the fact that commentators seem commentators such as right miller have read franchise tax board to preclude a state from bringing a a statute i mean a lawsuit in this this manner you're right there it makes sense to read it that we have it in the context of franchise tax board where the supreme court was looking at a state cause of action  to determine if jurisdiction should be expanded in that instance even franchise tax board itself it kind of sets out that initial emulation that where there is a federal cause of action it makes sense that the federal question will lie there so the circumstances are different there i think the whole the whole case is more about kind of a well pleaded complaint type of analysis it's a it's related to that the court said it's a little bit particular language in the opinion while you're honoring the i can then get cites for you but the or it's part three of the of the union where the court kind of said sets out like that we're going to see he if this is a state law cause of action where there is a a federal question that's kind of brought in to a significant degree or whether this is actually a federal question kind of more about well there is a federal question here in that it's just the supremacy clause is brought in correct and that is and it would certainly be a federal lawsuit with federal question jurisdiction the it was mirror image lawsuit in so when it's not a defense but really the suit itself they wonder well played a complaint you would otherwise be entitled to bring the lawsuit assuming that you had standing except here we least have the preemption question which is this court you know has multiple times including in the various cases that is an affirmative federal claim that can be brought up and so it creates the obviously the the odd situation where in franchise tax board the non government party was not able to remove the case to federal court and there doesn't seem any way mooted by the progress in the other lawsuits you know given that we have already said at least preliminarily that the state can apply are but one provision of there are still additional coins though in the case that are outstanding including the just the claim of the laws passed with a discriminatory purpose and that was in the initial officials are saying that they're not going to enforce their proceedings ongoing in any of those there are there are complaints have been filed and there are investigations going on currently ok but that's nothing that's come to fruition at this point or drawn but there's nothing that keeps you from being able to do so at this point correct order so what do you get out of this lawsuit that you don't get out of the other one so we would not only discriminatory purpose things of that nature and you know again the district court's error as to article three standing shouldn't count against the state just to probe on both points raised by judge all right would though the legal one and the factual one what's your best case describing the limiting principle that you attribute to franchise task one that says you know it doesn't we don't have the comedy logic there do so what would be the case you would point to to say the subject matter exists here in spite of franchise tax board so i guess you could go a couple different ways one might be begin this court case in texas v knights of the k k k where the the court didn't specifically address jurisdiction in that case but it was assumed that the court had jurisdiction and i think rightly so because but any case discussing the limiting principle that you're offering this or even scholarly work so if it states that it's limited to a state cause of action where you really have a comedy clash well i think make that may be best i don't have a separate case b it is going to be the rare case where the facts arise such as in this case it's been twenty years perhaps at least since and the factual question she was probably you want if you were to prevail that there is jurisdiction and you have injury how would you then think the two cases would be coordinated the existing san antonio matter that's ahead well how would you suggest that those two with then work together your honor we would be able to then go back to the austin court and make our arguments there for why the court should exercise its discretion under the d j in taking the case yeah the court would would then be able to to take into account that yes there has been progress in these and it's only a case but it's been primarily progress on legal questions that's been of this court as you know a couple of times their last question i would have thought that i understand that is really what judge sparks ruled on which that there is an injury sufficient injury from the imminen of and as i understood your brief you're saying there are two different theories of law that would give you injury and standing yes one is the oryx the lawsuits were coming it's dated they were and the other is this mirror image theory you draw derived from carnal chemical history which would you say is the stronger basis for state injury here the stronger case is that works case this court has set out on multiple occasions has stated that when the there is an imminent  who the parties are there's no question it's the correct parties that are sort of the you know there was some question and maybe the haven case as to who the correct parties were there was you know various points there been discussions by this court about are these the right parties or not but when you've got the right parties and you have the concrete controversy this court has said that the in the lawsuit is enough i was a little surprised i mean i learn law every time i have a case in briefs presented to me it  perhaps the defendants would wait until the eve of the law actually going into to effect and so as in exactly the next days two weeks later right you filed the day it signed they filed two weeks later so your honor it was the the next day was the suit in san antonio say that let's say the hand started i'm an interrupt myself let's say they hadn't filed suit it doesn't mean you then lose standing injury you know you're on to correct because it is the again that's in the business cont resolve that in your opinion we believe he missed the question is so it six forty two six forty three of the record you can see that he is looking at the question of whether or not the municipalities were going to break the law was that the issue that with that wasn't the issue was whether or not they want to bring suit and so the that was in our initial complaint and then that wasn't refuted of course by the defendants and as this court is held on sure enough they did and and the injury was the injunction against the state state's law which as it turns out came to fruition that there was a period of time under which the state should have been able to enforce the law but you know it was enjoying from doing so by the senate on the court but we don't have to resolve the subject matter jurisdiction first there's no question on that ok and but there were contemporaneous statements not just that they didn't like the law and even if we believe that sparks his interpretation was correct that it's when they break the law there are contemporaneous statements that they were going to continue their course of conduct just no matter what you know come the high water or whatever a know it was going to be is going to stay that way is in aren't there contemporaneous statements even at the time i mean there are some that didn't come until june in the amended complaints but there were some statements by the mayor to different people who could speak their pre dated against theory the plaintiffs in this particular law that made that crack  resolve those issues in a timely manner you know so that there were there were four months from the time that the law was signed into law was going to be enforced and so just trying to get that taken care of  the suit should we send this back to judge sparks to rule on the the franchise tax board question first that didn't ever get ruled on because i can't  to to bring suit and so yeah he has never addressed that but that it is in it is a pure legal question so you think we should address it that seems to insight on how it was that all of these other consolidations happened in the second filed suit before the first filed suit issues were resolved normally you would put them into the first filed suit order because first filed normally would have some teeth if the first filed suit is a legitimate one you show ok thank you the expansion of federal court jurisdiction advocated by the state is dangerous and has severe first amendment implications texas assertion that this new rule would be quite limited is disingenuous just look at in this in this particular instance it's not that they should be stymied it's that they are unable to prove direct injury as is required by the standing rules the fact that there might be  litigation against them in based on declarations allowed by the first amendment of the united states constitution is is going beyond what other litigants would would  would need to to show in order to have standing in a situation that was judged sparks focused on fact where to be resolved though the oryx line of authority where it isn't just first amendment public criticism it is a stated intent to immediately and then sue coughs where's his resolution of that aspect i do so i don't see it in his opinion but the issue is easily resolved because well first of all let me  that on the day the lawsuit was filed all they had pushed declarations by individuals about the evils of s b four and in oryx we had more than that we had actual a written notice that was sent to the to the opposing party indicating in telling them that a lawsuit was being filed on the record in this case there is nothing else in the record that the state of texas point stands an important distinction do you have post orks authority that because it's a blurry line what's do you have any draws that line between sort of stated intent versus a notice we will so think well i think i don't have anything off off right now but i mean i think the important thing as well to consider in that circumstance is that there is nothing that would prevent the state from defending those those allegations of unconstitutionality that that a putative plaintive might might bring they are fully capable of defending and raising the issues that they're raising here so there is no imminent harm there's no imminent injury that the state would would suffer and you're not relinquishing the threshold point that even if there were injury the supreme court  states can't test the validity of their laws in federal court i think franchise tax is is clear on that one of you two and i forget which one brief that extensively but the other side the other did not that that's a criticism so it wasn't as a parrot at the district court level either so mr armed or we'll discuss in more detail the thirteen thirty one issues ok but i think franchise tax also discusses the the  fact that the state has other alternatives at law when times limit so you go on with what you were going to do if he's going to cut your sure texas so the standard as as is clearly noted is that they must show concrete and imminent injury the district court in this case got it right the state's alleged injury turns on the legal consequences of some act that may or may not occur we have to look at the date when the various jurisdictions that they were going to continue with their other policies that are in conflict with the law your honor elected officials have a first amendment right to inform their constituents about what they're feeling about what they this is not about feelings are right and i agree with you that if it were just i think the law is stupid i think the law is bad i think the law harms people that's a totally different thing than to say as we're going to continue our existing policy which is in conflict with the law that's a very different statement so again it's a political statement that's made by by an elected official and i think if you're going to look at the fact that these lawsuits came then you should look at the fact of where has there been any break with us before even before the even after the injunction was lifted there has been no violation of s b four by any of these officials or anyone else there's been no attempt to enforce the provisions of s b four against any individual in texas any jurisdiction and you elected official that's this rule of law is accepted by this court they get to choose who the defendant is going to be they get to bring the resources of the state against whatever potential or putative defendant they want to choose they c choose the ones that have the least resources in the least ability to bring these sorts of actions or to defend these kinds of actions it doesn't make any sense that the state of texas is going to be expanded or extended this kind of power in terms of its laws so you believe we should affirm then i'm actually a little bit surprised you believe we should affirm on the grounds that the district court found that there is a lack of standing i believe that that's what your argument is that is your entity yes i think it is and i think a recent decision from this court is informative in google versus good the this court ruled that a preemptive lawsuit to block a potential of a subpoena was inappropriate for a number of reasons including the fact that the google ha probably know i was on that decision when we when we cited it in our brief i didn't know you're going to it's not that no no there's no positive or negative that it's just i think i remember but i may be wrong the facts it was much more attenuated right that was maybe maybe we had some language you're about to quote me that would apply this is much much further a wall well we we know that only because the lawsuits were filed the next day that we didn't know that he didn't the state didn't know that that's the way it was going to proceed but good this court said courts generally dismiss anticipatory actions filed by parties challenging such as subpoenas as not being right for review because of the availability of an adequate remedy at without the sanction of a district court this is not an injunction that the parties are going to secure simply by finding filing a lawsuit there is going to be hearings there is a deep burden that is placed on the plaintiffs in order to establish that they're entitled to injunctive relief and i think moreover i think the point that judge al rod made at the a close of the state's argument almost all of these issues have been resolved and are when the revise written policy concerning travis county non cooperation took place the one that sally hernandez in her official capacity as sheriff issued was that prior to or post the la filing i am not familiar with the with the defined in the record but i don't have the dates handy and i don't recall that but i can tell you that the county of el paso has never changed its policy and it is b four was unconstitutional simply shouldn't be allowed to be standards the rule on these sorts of cases ok and then my other question had to do with what effect any is there for the to the point that the our court has already found that that the state face imminent harm  and a determination by district court for injunctive relief i think it's different when the injunction is actually granted then the court can can see that they're against the enforcement of the statute that's your upper ball injury but at the spending at the point where a court is to determine standing that's too far along for it to base its determination of standing at that point ok to what extent did these arguments today are they influenced by the idea that the true plaintiffs a get to have his or her forum has to what extent is that philosophical viewpoint you know underlying these i think argument yeah i think to some degree it should it should filter into the through the analysis here i don't think but you know both san antonio and austin are in the western district of but i think the way the rules are set up that is supposed to be the parag that of the putative plaintive and but also as the rules are set up isn't the first filed lawsuit the one that the last cases are supposed to be transferred into unless you rule that the first filed lawsuits and invalid lawsuit for some reason it's my understanding that the first filed rule is discretionary and judge parks had before it motions to consolidate and bring the cases together in austin and he those motions thank you good morning may please the court i'd like to go to thirteen thirty one jurisdiction but i want to first just make two very quick points about standing to respond to a couple of things first joe rod travis county as i think texas is brief said changed its policy as soon as s b four became effective and what that there was straits is that there really were no actual promises to violate the law once it was in effect that would have subjected the officials to crushing financial penalties remov from office and possible jail time and there's just no indication that they were actually willing to incur those i encourage the court to look very closely at texas actual allegations about this which are pages twenty two to twenty t thirty three to thirty five of the record all they cite is that they were previous before policies but of course the cities didn't have to change their policies in response to a bill being proposed and then public statements saying that officials disagreed with s b four on the policies behind it those just don't plausibly suggest an intent to buy late the law second point is judgments and you asked about a case distinguishing a sort of general promise to sue from a formal notice i just direct the court to the innovative faeries case in the federal circuit where the court held there was no standing even once the patent owner filed its own lawsuit because at the time of  filing there wasn't a credible enough promised specific enough promise to sue is that is that how you distinguish that cardinal chemical is it is somewhat uncertain the line or i was beginning to think just looking at this that against the face big financial liability as opposed to the texas saying we have a future for loss of federal funds but that's pretty i see two things i'd say one it's clear there has to be an injury i mean if you look at footnote eight of metal mune the court is saying this is an cooperating if that there's a risk because the federal government can deprive i mean i know that may be being enjoined in some other lawsuits somewhere but the federal government can deprive the state of texas with the  amount of financial resources as a result of that i'm not aware of any i mean texas hasn't raised any argument about any money it was going to lose i'm not aware of anything that isn't that the statute there's i mean there's a federal provision now that will take money away if people are not complying with the immigration cooperation those are i think those are in specific context that i think texas hasn't raised that for a reason maybe the localities where we're facing that but not the state  itself if i could turn to thirteen thirty one jurisdiction though i do think that that in some ways is the the most straightforward way to resolve this case so in franchise tax board the supreme court held that there is no original juristic and over suits by states to declare their laws valid the court stated that rule categorically all the reasons it gave apply across the board and every single court to address that part of franchise tax board has understood the case that same way including the eighth circuit in the ninth circuit which i didn't hear the state address that's why texas hasn't been able to find a single case anywhere in the country where a court has gotten over these jurisdictional objections to allow a state like a suit like this to pursue the reef they said that for us to do that it would be quote comedy record right so i'd like to address that very clearly there's no discrimination against the state here because what the supreme court said in franchise tax board is this is a unique situation where states not only can defend challenges and they don't suffer any harm in the meantime but they also can enforce their laws in their own courts using remedies that they themself have chosen which as before his remedies are very powerful there's really no private analog for that but they couldn't enforce that remedies in that they mean they couldn't because it would be immediately removed you believe that your clients could remove right if it the case for the opposite way i'm not sure they could i mean if they if they filed an enforcement action there was a they couldn't remove only based on their federal defenses no i mean i think that we we deny remove all the time when the federal issue only arises as a defense i mean this was the same thing in google versus hood where the court said that go on yet if the state filed a state court your client would say absolutely we can remove you mean if texas had filed the declaratory judgment action suit or yeah or some other type of proceeding a direct take on one of these city officials i'm sorry i misunderstood i agree of texas had filed the declaratory suit well or a direct for proceeded directly against one of the city officials i'm not sure that any of those cases could have been removed because if texas had filed the declaratory suit that would have been the exact same posture as franchise tax board itself so you think texas could have kept it in texas court yes and you're standing on that yes because i mean that's exactly the  posture of franchise tax board so what if texas filed the proceeding against one of your officials and did this statute in texas court today you're saying that couldn't be removed i mean unless i'm missing something your honor i believe the cause of action would be a purely state law cause of action right as before itself and the defense would be fed it all but it's clear the country can't remove based soley on a federal defense so i mean but so i think that illustrates that texas has has these avenues available as the supreme court said they have multiple ways to enforce their own laws in their own courts so you say you're predations comedy and hansing comedy rick that's right in footnote twenty two says the same thing right it doesn't limit so texas says that franchise tax board is limited to the removal context but the supreme court addressed that squarely in footnote eighteen and said we are analyzing this case as if it's an original action brought by the state in federal court same posterous here and that has to be the case because section fourteen forty one makes removal jurisdiction entirely dependent on the original jurisdiction that's why an income fleeing gutierrez the eighth the ninth circuit's both rejected suits by states that were originally brought in federal court and what footnote twenty two of franchise tax board says is that that enhances comedy because by depriving states of original jurisdiction where are by depriving the people they sue of removal jurisdiction as happened in franchise tax board their last distinction is that there is no pending state enforcement action here exact same thing was true in both  as i mean that reasoning would open up a circuit split and for no reason i mean the supreme court again said this isn't about removing stated foresman actions this is a nial of original jurisdiction  and you know the reason for the rule i think is inherently a pre enforcement reason which is there's no harm in waiting to see who decides to challenge the law or who violates the law in my last minute if i could on that matter where you that segues nicely actually into our third basis to affirm which is the discretionary factors and any of these three would be a sufficient basis now when can you answer my question first before you segue nicely sorry so the first filed rule in the declaratory judgment context regularly yields to factors of can convenience and fairness and in fact this court in travelers insurance it said it was quixotic to think that of that the first filed rule is just always dispositive in the declaratory what factor of can be me and applies here right so multiple i mean there's the fact that another court will another action in another court will fully resolve all the issues the san antonio case has all of the challenges already consolidated there are more cities in that case than here and the court has already invested that's because the court took actions after the filing of the last states isn't it and they and  did not rule on the consolidations in this lawsuit i mean that's been kind of that's been created by events that occurred as we've gone along and choices that have been made that's right but number one i mean the senate tonio court didn't rule on those motions because judge sparks dismissed this case right so he waited for judge sparks who dismissed the case and so there's no need to rule on those motions you know in  before judge sparks ever ruled in august ninth well they were consolidated with each other in san antonio which made san antonio have a bigger package ship cases which you just now are good but all the cases were already there i mean all the challenges were already related before the same judge briefing a preliminary injunction on the same fast timeline i mean just to get to the reason though that judge sparks dismissed the case because i think you can even if you found thirteen thirty one in standing to be not a issues you could just affirm on discretionary grounds because the judge sparks made absolutely clear that he saw no good reason to retain jurisdiction and multiple good reasons to dismiss this case i mean he said this case would open a pandora's box because it with up and the normal way we had to tape challenges to state laws inviting more of these lawsuits it would raise first amendment concerns it would be in the spec to him to resolve the franchise tax issue or should we rule on it it so nicely and argued it today we agree with the state of texas here it's a purely legal issue and we think it's a straightforward one at that i mean if you send it back number one you'd have to address standing which you wouldn't have to do if you resolve on franchise tax board presenter standing argument much weaker than your franchise tax argument well we think both are strong your honor because texas wasn't facing any injury just from imminent judicial review you think both are strong but you come up with a whole new really big here on appeal that wasn't even raised and you've led with it i certainly agree with you that franchise tax has the stronger case i mean courts across the country every single court to face that issue has come out the same way and held that we're just not going to open the door to every state and local government to rush into court the moment they enacted the law haul their critics into court and deprive the natural plaintiffs of their traditional choice about timing and venue so we believe the court just a couple of quick points earners in oryx at age ninety seven this court said quote controversy exists when the declaratory plaintiff has a real and reasonable apprehension of litigation so the line my friends are trying to draw there regarding when someone has actually sent you a notice that they're going to sue or something like that is artificial that that's not the test that this  this court has said on a motion to dismiss for lack of jurisdiction uncontroverted allegations in the plaintiff's complaint must be taken this true that was never controverted of course because the defendants were going to sue us so again you can look at i think you asked earlier it was february first of two thousand and seventeen was when sheriff hernandez revised that policy so you had these statements going on at a time where it's everyone knew that the legal challenge was him page thirteen of the franchise tax board opinion so the the court starts out even though state law creates opponents causes a backlash and its case might still arise under the laws of the united states so you can see right there the whole inquiry is aimed at is this a different case isn't it an exceptional case where we're going to say that federal question jurisdiction lies on a state law cause of action so that the entire entirety of part three of that opinion is is not relevant to our discussion was to accept your theory when it's texas asking to go into federal court to related validate its law which texas title to  anybody else but that really is the rule of law going forward you want and you're saying you're right if so if i understood counsel correctly on the other side he said if we had filed this declaratory judgment action in state court that they would have been able to remove at that would be pretty handy for the state but i don't believe that's correct your honor as a matter of law if we were to accept your view necessarily conflict with the ninth circuit we don't believe so honor we gave some some ways to distinguish couple now i think a circuit opinion has already potentially established a conflict with this court's opinion in texas versus knights of the k k i don't i think of lee is over reading franchise tax board but even if they're not even if you're saying every time that the state falzon and foresman action that it's not going to be removed because it's a federal question is only going to rise on the defense there it is a different circumstance i think is judge was getting at it's a different circumstance when you're in that pre enforcement posture that the state during the summer of twenty seventeen could not inforce the law we couldn't bring that state law cause of action at that point so there was only a federal cause of  action the state has an important interest here in having its rights declared in a concrete controversy and we believe should have access to the federal courts on a federal cause of action thank you we have your argument