United States Court of Appeals

for the Fifth Circuit

No. 22-50145

Restaurant Law Center; Texas Restaurant Association, 

Plaintiffs—Appellants,

versus

United States Department of Labor; Honorable Martin 

J. Walsh, Secretary of the U.S. Department of Labor; Jessica Looman, 

Acting Administrator of the Department of Labor’s Wage and Hour Division, in 

her official capacity, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:21-CV-1106

Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

The Restaurant Law Center and the Texas Restaurant Association

(“Plaintiffs”) challenge a Department of Labor regulation that refines how 

the federal minimum wage applies to tipped employees. The district court 

denied Plaintiffs a preliminary injunction on the sole ground that they failed 

to establish irreparable harm from complying with the new rule. We disagree.

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2023

Lyle W. Cayce

Clerk

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Because Plaintiffs sufficiently showed irreparable harm in unrecoverable 

compliance costs, we reverse and remand for further proceedings.

I.

The federal minimum wage is currently $7.25 per hour. 29 U.S.C. 

§§ 206(a)(1)(C), 213(a). There is an exception for “tipped employee[s],” 

meaning “any employee engaged in an occupation in which he customarily 

and regularly receives more than $30 a month in tips.” Id. § 203(t). Tipped

employees may be paid as low as $2.13 per hour, provided their tips fill out 

the rest of the minimum wage. Id. § 203(m)(2)(A). This is known as the “tip 

credit.” Over the past decades, the Department of Labor has fleshed out the 

contours of the tip-credit provision through regulations and other guidance.1

In late 2021, the Department revised and added to a regulation about

when an employee works in a “tipped occupation” under § 203(t). See 29 

C.F.R. § 531.56(e), (f) (2021). In relevant part, the new rule permits an 

employer to take a tip credit, not only for an employee’s tip-producing work, 

but also for other work that “directly supports tip-producing work, provided 

that the employee does not perform that work for a substantial amount of 

time.” 29 C.F.R. § 531.56(f)(4). In turn, a “substantial amount of time” 

exists when:

(i) The directly supporting work exceeds a 20 percent 

workweek tolerance, which is calculated by determining 20 

percent of the hours in the workweek for which the employer 

has taken a tip credit. The employer cannot take a tip credit for 

any time spent on directly supporting work that exceeds the 20 

1 See Fair Labor Standards Act Amendments of 1966, Pub. L. No. 89-601, § 602, 

80 Stat. 830, 844 (1966) (delegating authority to Secretary of Labor); Tip Regulations 

Under the Fair Labor Standards Act (FLSA); Partial Withdrawal, 86 Fed. Reg. 60,114, 

60,116–19 (Oct. 29, 2021) (discussing Department’s guidance “[o]ver the past several 

decades”).

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percent tolerance. Time for which an employer does not take a 

tip credit is excluded in calculating the 20 percent tolerance; or

(ii) For any continuous period of time, the directly supporting 

work exceeds 30 minutes. If a tipped employee performs 

directly supporting work for a continuous period of time that 

exceeds 30 minutes, the employer cannot take a tip credit for 

any time that exceeds 30 minutes. Time in excess of the 30 

minutes, for which an employer may not take a tip credit, is 

excluded in calculating the 20 percent tolerance in paragraph 

(f)(4)(i) of this section.

Ibid. The 20% rule in subpart (i) essentially codifies the “80/20 guidance” 

that had appeared in various Department documents over the past three and 

a half decades. See 86 Fed. Reg. at 60,116–17 (discussing development in 

Wage and Hour Division opinion letters and Field Operations Handbook of 

“80/20 guidance”). The “continuous 30-minute” rule in subpart (ii) is

entirely new, however. Seeid. at 60,115–20 (providing no historical precursor 

on the 30-minute limitation). Finally, the new rule carries forward the 

Department’s longstanding “dual jobs” regulation, which recognizes that, 

for employees employed in both tipped and non-tipped occupations, 

employers may claim the tip credit only for the time those employees spend 

in the tipped occupation. See id. at 60,116; see also 29 C.F.R. § 531.56(e).

In December 2021, Plaintiffs challenged these amendments to

§ 531.56 in federal court. They alleged the rule violated the Fair Labor 

Standards Act, the Administrative Procedure Act, and the Constitution’s 

separation of powers. On December 17, 2021, Plaintiffs moved for a

preliminary injunction. The district court held an evidentiary hearing on 

February 9, 2022.

On February 22, 2022, the district court denied a preliminary 

injunction. The court did not reach the merits of Plaintiffs’ claims. Rather, 

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the court assumed Plaintiffs were likely to succeed on the merits but 

concluded they had failed to show they were irreparably harmed by the costs 

of complying with the new rule. Compliance costs, the court reasoned, 

“should have already been incurred” because the rule had been in place a 

month before Plaintiffs sued. The court found any “remaining” costs to be 

“unspecific,” “purely speculative,” and “overstate[d].” For instance, the 

court emphasized that the new rule “does not require the level of detailed 

monitoring of which Plaintiffs warn,” and that it is “similar[]” to the 

longstanding 80/20 Rule. The court also criticized Plaintiffs’ witnesses for 

making “only rough generalizations” about compliance costs and, in one 

instance, “wholly uncredible” claims about those costs. The court 

concluded that the “regulations may be costly, but that does not make them 

unlawful.”

Plaintiffs timely appealed. We have jurisdiction under 28 U.S.C. 

§ 1292(a)(1). 

II.

“We review a preliminary injunction for abuse of discretion, 

reviewing findings of fact for clear error and conclusions of law de novo.” Tex. 

All. for Retired Ams. v. Scott, 28 F.4th 669, 671 (5th Cir. 2022) (citation 

omitted). To obtain the “extraordinary remedy” of a preliminary injunction, 

the movant must show he is likely to prevail on the merits and also 

“demonstrate a substantial threat of irreparable injury if the injunction is not 

granted; the threatened injury outweighs any harm that will result to the nonmovant if the injunction is granted; and the injunction will not disserve the 

public interest.” Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 

F.3d 692, 696 (5th Cir. 2018) (citation omitted).

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III.

On appeal, Plaintiffs argue the district court erred in its irreparable 

harm analysis. They also urge us to reach the other prongs of the preliminary 

injunction test, but, like the district court, which simply assumed a likelihood 

of success on the merits, we confine ourselves to irreparable harm. See, e.g., 

Stringer v. Town of Jonesboro, 986 F.3d 502, 509 (5th Cir. 2021) (“As we have 

repeatedly observed, we are a court of review, not first view.” (citation 

omitted)).

Under our precedent, the nonrecoverable costs of complying with a

putatively invalid regulation typically constitute irreparable harm. See

Louisiana v. Biden, 55 F.4th 1017, 1034 (5th Cir. 2022) (“[C]omplying with a 

regulation later held invalid almost always produces the irreparable harm of 

nonrecoverable compliance costs[.]” (citing Texas v. EPA, 829 F.3d 405, 433 

(5th Cir. 2016))).

2 To be sure, such costs must be based on more than 

“speculat[ion]” or “unfounded fears.” Louisiana v. Biden, 55 F.4th at 1034 

(quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 

1985)). In determining whether costs are irreparable, the key inquiry is “not 

so much the magnitude but the irreparability.” Texas v. EPA, 829 F.3d at 

433–34 (quoting Enter. Int’l Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 

762 F.2d 464, 472 (5th Cir. 1985)). Even purely economic costs may count as 

irreparable harm “where they cannot be recovered ‘in the ordinary course of 

litigation.’” Id. at 434 & n.41 (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 

674 (D.C. Cir. 1985)); see also, e.g., In re NTE Conn., LLC, 26 F.4th 980, 990–

91 (D.C. Cir. 2022) (“We have recognized that financial injury can be 

2 See also Wages & White Invs., LLC v. FDA, 16 F.4th 1130, 1142 (5th Cir. 2021) 

(same); BST Holdings, LLC v. OSHA., 17 F.4th 604, 618 (5th Cir. 2021) (same).

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irreparable where no adequate compensatory or other corrective relief will be 

available at a later date, in the ordinary course of litigation.” (cleaned up)).

Relying on these principles, Plaintiffs point out that the Department 

concedes that some businesses will incur ongoing costs to comply with the 

rule. That is correct. In the rule, the Department explains that “some 

employers may incur ongoing management costs . . . to ensure that tipped 

employees are not spending more than 20 percent of their time on directly 

supporting work per workweek, or more than 30 minutes continuously 

performing such duties.” 86 Fed. Reg. at 60,142.3 Additionally, Plaintiffs 

argue they produced uncontested evidence that their member businesses (all 

of whom want to continue claiming the tip credit) project precisely those 

kinds of ongoing management costs—costs, moreover, that will far exceed 

the Department’s rosy estimate of “10 minutes per week.” Further, 

Plaintiffs also introduced evidence that their members would have to 

institute costly measures to track employee time to comply with the rule and 

to defend against investigations or lawsuits.

Curiously, the district court did not acknowledge the Department’s 

concession that some businesses will incur ongoing costs to ensure they can

continue to claim a tip credit. See 86 Fed. Reg. at 60,142 (“The Department 

. . . believes that some employers may incur ongoing management costs [to 

ensure compliance with the 20-percent and 30-minute rules].”). Nor did the 

court cite our precedent teaching that nonrecoverable compliance costs are 

usually irreparable harm. See, e.g., Texas v. EPA, 829 F.3d at 433. Those 

omissions are striking, given that Plaintiffs assert that their members will 

3 These yearly costs would be in addition to presumably one-time costs associated 

with businesses’ familiarizing themselves with the new regime and “adjust[ing] their 

business practices and staffing to ensure” compliance with the 20-percent and 30-minute 

rules. 86 Fed. Reg. at 60,141–42.

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incur exactly the kinds of continuing compliance costs predicted by the 

Department itself. And, of course, no one claims that those costs could be 

recovered if the rule were held invalid. See Wages & White Invs., 16 F.4th at 

1142 (observing agency did not claim recoverable compliance costs 

“probably because federal agencies generally enjoy sovereign immunity for 

any monetary damages”). The district court’s order mentions none of this, 

despite the fact that Plaintiffs argued these points in support of a preliminary 

injunction.

Instead, the district court emphasized the weakness of Plaintiffs’ 

evidence, as the Department now does on appeal. For instance, the court

found Plaintiffs’ claimed ongoing costs “to be overstate[d]” because the rule 

does not require “the level of detailed monitoring of which Plaintiffs warn.”

Similarly, the Department claims that the “rule expressly states that it has 

‘no recordkeeping requirement.’” DOL Br. at 20 (citing 86 Fed. Reg. at 

60,140). Both points are meritless.

To claim the tip credit, employers must “ensure that tipped 

employees are not spending more than 20 percent of their time on directly 

supporting work, or more than 30 minutes continuously performing such 

duties.” 86 Fed. Reg. at 60,142; see 29 C.F.R. § 531.56(f)(4)(i), (ii). We 

cannot fathom how an employer could honor these specific constraints 

without recording employee time. What if an employer is investigated by the 

Department or sued by an employee for wrongly claiming the tip credit?

Without time records, how could an employer defend itself? See Rafferty v. 

Denny’s Inc., 13 F.4th 1166, 1190–91 (11th Cir. 2021) (emphasizing the 

employer’s duty to create time records where a plaintiff claimed to perform 

non-tipped duties for more than 20 percent of her time). The rule itself 

confirms all this. Contrary to the Department’s claim that the rule has “no 

recordkeeping requirement,” DOL Br. at 20, here is what the rule actually 

says: “[T]he Department did not propose new records requirements and the 

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final rule does not contain a revision to current recordkeeping requirements 

nor does it enact new recordkeeping requirements.” 86 Fed. Reg. at 60,140 

(emphases added). Translated into English: the rule still has a recordkeeping 

requirement, and now it includes the new 30-minute limitation.

In the same vein, the Department also claims that “employers need 

not engage in ‘minute to minute’ tracking of an employee’s time in order to 

ensure that they qualify for the tip credit.” DOL Br. at 20. No evidence is 

given for this assertion. The Department merely cites a sentence from the 

rule that baldly states, “the minute-to-minute tracking discussed by 

commenters is not required by the rule.” See 86 Fed. Reg. at 60,154. No 

explanation is given (nor can we imagine one) why an employer would not 

have to track employee minutes to comply with a rule premised on the exact 

number of consecutive minutes an employee works. The Department also 

assures us that a “30-minute uninterrupted block of time . . . can be readily 

distinguished from the work that surrounds it.” DOL Br. at 21 (citing 86 Fed. 

Reg. at 60,137). Maybe so, but that does not remove an employer’s need to 

account for blocks of employee time, especially if an employer is accused of 

violating the rule.

Next, the district court doubted that compliance would be 

“unworkably burdensome” given the rule’s “similarity to the 80/20 

guidance, which has governed the industry for decades.” The Department 

echoes this argument. Both miss a key point, however. Even assuming the 

new rule’s 20 percent threshold is exactly like the previous 80/20 rule, the 

30-minute limit is, as everyone agrees, brand-new.4 And it is an independent 

4 See Dist. Ct. Op. at 3 (observing the rule “codifies the 80-20 guidance and adds a 

thirty-minute limitation on non-tipped work allowable when taking the tip credit”); DOL 

Br. at 12–13 (describing 30-minute limit as “an additional protection for workers” beyond 

the “longstanding 80-20 guidance”); 86 Fed. Reg. at 60,136 (describing 30-minute limit as 

an “addition to the 20 percent limitation”) (emphases added). At oral argument, the 

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constraint on an employer’s taking the tip credit. Quite apart from the 20-

percent rule (which concerns the workweek as a whole), an employer cannot 

take the credit for discrete periods where directly supporting work “exceeds 

30 minutes.” 29 C.F.R. § 531.56(f)(4)(ii). Moreover, the 30-minute limit 

affects the 20-percent standard: time beyond 30 continuous minutes is 

excluded from the 20-percent workweek calculation. Ibid. In other words, the 

30-minute limitation is a new constraint on the tip credit that both requires 

distinct recordkeeping and affects the existing 20-percent standard. Neither 

the district court nor the Department explains why this new requirement 

would not impose new costs. To the contrary, the rule itself confirms that

employers who want to continue claiming the tip credit—like Plaintiffs’ 

members—will “incur ongoing management costs” to ensure employees do 

not spend more than 30 minutes continuously performing directly supporting 

work. 86 Fed. Reg. at 60,142.

Finally, the district court faulted Plaintiffs for providing “only rough 

generalizations” about their members’ ongoing compliance costs and failing 

to “provide concrete evidence, or even rough estimates of the costs 

themselves.” The Department presses these points on appeal. We are again 

unpersuaded. For example, Plaintiffs’ witnesses offered specific estimates of 

the additional time that managers would incur to comply with the rule: “at 

least 8 hours a week,” said one, “at least 10 hours,” said another—all far 

exceeding the Department’s own 10-minute estimate. Plaintiffs also noted 

the need to “hire additional managers to perform ongoing monitoring of 

tasks, audits, and correct back pay when servers, bartenders, and bussers do 

not clock in and out correctly.” Further contrary to the district court’s view, 

Department’s attorney acknowledged the 30-minute rule’s novelty. U.S. Court of Appeals 

for the Fifth Circuit, 22-50145 Restaurant Law Center v. LABR, December 6, 2022, 

YouTube, at 19:59 (Dec. 12, 2022), https://youtu.be/Z48ODelv6sY?t=1199.

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this evidence is not “[s]peculative.” See Holland Am. Ins. Co., 777 F.2d at

997. The Department itself estimated that businesses would incur $177 

million each year in compliance costs mirroring the ones Plaintiffs’ members 

claim. See 86 Fed. Reg. at 60,142–43. And even this figure was based on the 

Department’s “estimate” that businesses would only spend an average of 

“10 minutes per week on management costs.” Id. at 60,142 But the 

Department does not explain how it arrived at this “estimate,” and in any 

event the Department also believes the new rule requires no recordkeeping—

an assumption we have already rejected. Nor does it matter that Plaintiffs did 

not convert each allegation of harm into a specific dollar amount. Our 

precedent requires only that alleged compliance costs must be “more than 

de minimis.” Louisiana v. Biden, 55 F.4th at 1035 (quoting Enter. Int’l, 762 

F.2d at 472). Stringently insisting on a precise dollar figure reflects an 

exactitude our law does not require. Under the proper inquiry for irreparable 

harm, Plaintiffs have provided sufficient evidence for a finding in their favor.

5

* * *

Because the district court abused its discretion in finding no evidence 

of irreparable harm, we REVERSE the order denying a preliminary 

injunction and REMAND for further proceedings consistent with this 

5 We note that, to reach this conclusion, we need not rely on Tracy Vaught’s 

testimony, which the district court deemed “uncredible.” Nevertheless, the district 

court’s asserted basis for discounting that testimony was mistaken. See Dist. Ct. Op. at 9 

(characterizing Vaught as asserting “that it would cost one million dollars across her five 

restaurants to comply with the Rule”). Vaught’s estimate of one million extra dollars per 

year was not an exaggerated guess as to compliance costs; it was an estimate of labor costs if 

the tip credit were scrapped altogether. Vaught’s actual compliance-cost estimate was far 

more modest: “in the thousands of dollars.” In any event, we need not assume the rule will 

cause restaurants to scrap the tip credit altogether to find enough evidence of irreparable 

harm from compliance costs.

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opinion. We are confident that the district court will proceed expeditiously 

to consider the remaining prongs of the preliminary injunction analysis.

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Patrick E. Higginbotham, Circuit Judge, dissenting: 

With respect to my able brethren, I must dissent. 

I.

The recitation of the facts is accurate, but the majority falls short in 

accounting for the demanding standard of review of a denial of a preliminary 

injunction, an “extraordinary remedy.”1 Plaintiffs must establish, inter alia, 

that they are “likely to suffer irreparable harm”2 that is “more than 

‘speculative;’ ‘there must be more than an unfounded fear on the part of the 

applicant.’”3 We review a “grant or denial of a preliminary injunction for 

abuse of discretion, with any underlying legal determinations reviewed de 

novo and factual findings for clear error,”4 “giving ‘due regard to the trial 

court’s opportunity to judge the witnesses’ credibility.”5

“Clear error review follows from a candid appraisal of the 

comparative advantages of trial courts and appellate courts.”6 “In ‘applying 

this standard to the findings of a district court sitting without a jury, appellate 

1 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

2 Id. (citation and quotation marks omitted).

3 Louisiana v. Biden, 55 F.4th 1017, 1034 (5th Cir. 2022) (quoting Texas v. United 

States Env’t Prot. Agency, 829 F.3d 405, 433 (5th Cir. 2016)); see also Daniels Health Scis., 

L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 585 (5th Cir. 2013) (“[S]peculative 

injury is not sufficient; there must be more than an unfounded fear on the part of the 

applicant.” (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 

1985))).

4 Topletz v. Skinner, 7 F.4th 284, 293 (5th Cir. 2021) (citing Dennis Melancon, Inc. 

v. City of New Orleans, 703 F.3d 262, 267 (5th Cir. 2012)).

5 CAE Integrated, L.L.C. v. Moov Techs., Inc., 44 F.4th 257, 261 (5th Cir. 2022) 

(quoting Harm v. Lake-Harm, 16 F.4th 450, 455 (5th Cir. 2021)).

6 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2141 (2020) (Roberts, C.J., 

concurring in the judgment).

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courts must constantly have in mind that their function is not to decide 

factual issues de novo.’”7 Thus, “[a] finding that is ‘plausible’ in light of the 

full record—even if another is equally or more so—must govern.”8 It follows 

that “[e]ven if we disagree with the district court’s analysis in some places, 

‘we may not simply . . . substitute our judgment for the trial court’s, else that 

court’s announced discretion would be meaningless.’”9 In practice, then, 

“[o]nly under ‘extraordinary circumstances’ will we reverse the denial of a 

preliminary injunction.”10

II.

I would not set aside the able United States District Judge’s 

assessment of the record evidence: “Plaintiffs’ arguments and evidence of 

irreparable harm amount only to speculative concerns, conclusory claims, 

and uncredible assertions.” Whether I would agree upon a de novo review

aside, the record supports its finding. As the evidence shows that while the 

new rule may have irreparably harmed some set of restaurants within the 

United States or would, in the future, engender harm, Plaintiffs did not show 

that they themselves have suffered or would suffer harm.11

7 Id. at 2121 (plurality opinion) (alteration omitted) (quoting Anderson v. Bessemer 

City, 470 U.S. 564, 573 (1985)).

8 Cooper v. Harris, 581 U.S. 285, 293 (2017) (emphasis added) (citing Anderson, 470 

U.S. at 574).

9 Future Proof Brands, L.L.C. v. Molson Coors Beverage Co., 982 F.3d 280, 289 (5th 

Cir. 2020) (quoting White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989)).

10 Anderson v. Jackson, 556 F.3d 351, 355–56 (5th Cir. 2009) (emphasis added)

(quoting White, 862 F.2d at 1211).

11 See Winter, 555 U.S. at 20 (holding that a plaintiff must establish “that he is likely 

to suffer irreparable harm” (emphasis added)).

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First, it is true, as the majority writes, that “the Department concedes 

that some businesses will incur ongoing costs to comply with the rule.”12 But 

neither the majority nor Plaintiffs speak to the specifics of that concession.

The Department’s analysis, as published in the Federal Register, concedes 

the rule could engender three categories of costs—(1) regulatory 

familiarization costs, (2), adjustment costs, and (3) management costs.

13

Consider the regulatory familiarization costs. The Department only

conceded that some businesses would incur a cost to familiarize themselves 

with the rule, requiring on average 1 hour of time to get up to speed.14 But 

even that concession was qualified, concluding that the estimate “represents 

an average of employers who would spend less than 1 hour or no time 

reviewing, and others who would spend more time.”15

Similarly, the Department estimated that adjusting the scheduling of

staff would, on average, require a single hour of work,16 and the Department 

then qualified this concession: “the Department believes that many 

employers likely would not need to make any adjustments at all, because 

either they do not have any tipped employees, do not take a tip credit, or the 

work that their tipped employees perform complies with the requirements 

set forth in this rule.”17

Stepping back, because familiarization and adjustment precede rule 

implementation, there is good reason to believe that restaurants—including 

12 Op. at 6.

13 86 Fed. Reg. at 60,141–43.

14 Id. at 60,141.

15 Id.

16 Id. at 60,142.

17 Id.

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those represented by Plaintiffs and others—incurred these upfront costs

prior to the district court’s evidentiary hearing. As the record evidence does 

not clearly and unmistakably show otherwise, one cannot say record evidence 

fails to lend plausible support for the district court’s finding of fact that 

“these costs should have already been incurred” with regard to the first two 

categories of costs. Implicitly making this point, Plaintiffs attack the district 

court’s conclusion with evidence regarding ongoing costs. Similarly, the 

majority focuses its attention to purported “ongoing management costs.”18

True again, the Department concedes in the published rule that “some

employers may incur ongoing management costs . . . to ensure that tipped 

employees are not spending more than 20 percent of their time on directly 

supporting work per workweek, or more than 30 minutes continuously 

performing such duties.”19 Frustration with the district court’s failure to 

explicitly acknowledge this concession misses the mark. The question is solely

if the district court’s finding of fact—that Plaintiffs failed to establish that 

they would be irreparably harmed in the form of ongoing management costs 

as a result of the rule—is plausible based on the attendant record. It is. And 

it is for the precise reason that the concession does not connect these costs 

to the specific plaintiffs in this action.

For example, the district court was within its right to credit the 

Department’s evidence that many employers would not spend time on 

ensuring compliance with the rule because their businesses are already set up 

to comply with it,

20 but for the ones who would, compliance would likely 

18 Op. at 6.

19 86 Fed. Reg. at 60,142 (emphasis added).

20 Id.

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require ten minutes per week.21 Reframed, the concession comes clear: the 

Department cannot promise that no business will incur a cost, which does not 

reach as far as Plaintiffs wish—or the majority accepts. 

So, too, was the district court within its right to discredit vague and 

unsupported testimony by self-interested witnesses. Consider the testimony 

of Angelo Amador, the Executive Director of RLC. Amador did not name a 

single specific member restaurant that incurred additional compliance costs,

presumed that restaurant owners were likely paying attorneys absent a single 

invoice, and thought that the time for such training “will be like 10 hours, not 

10 minutes.” Further, Amador said, “I don’t see anybody taking 10 minutes 

in training for this regulation.” The same vagueness permeates the testimony 

of Emily Knight, the President and CEO of the Texas Restaurant 

Association. Knight attested to the fact that the rule would cause a “massive 

financial hit,” but the greatest specificity she could give was that monitoring 

costs would “be in the thousands of dollars” without any evidence to 

substantiate that number. And yet again, the declaration of one restaurateur 

similarly averred that bringing five restaurants into compliance with the rule 

would cost one million dollars per year without any documentation to 

support this assertion. As the majority writes—albeit only with regard to the 

rule—“[n]o evidence is given for th[e]s[e] assertion[s],” and “[n]o 

explanation is given.”22

The attestants’ omnipotence is enviable, but “[s]peculation and 

suspicion are just not any evidence at all”;23 to establish a concrete harm 

21 Id.

22 Op. at 8.

23 Kinnear-Weed Corp. v. Humble Oil & Ref. Co., 441 F.2d 631, 634 (5th Cir. 1971).

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sufficient for injunctive relief, “[s]peculation is not enough.”24 Indeed, the 

district court’s treatment of Amador’s statements is entitled to even more 

weight, as he made those statements at an evidentiary hearing wherein the 

trial court had the opportunity to assess his command of the issue firsthand. 

At bottom, the majority writes: “We cannot fathom how an employer 

could honor these specific constraints”25 without incurring costs pursuant to 

the rule. Of course, and few would quarrel with the idea that no employer will 

come out of this rule’s implementation unscathed; rather, I stress only that 

the district court was entitled to insist on a far more concrete presentation of 

harms than these unsubstantiated observations—sound though they may be. 

Perhaps the harms are there, but we ought not fault a veteran District Judge 

for demanding more specificity and concrete evidence, or to at least be wary 

of its absence, particularly with such a far-reaching rule and proportionally 

far-reaching relief at stake. 

* * * * *

The district court refused to issue a preliminary injunction—again, 

“an extraordinary remedy that may only be awarded upon a clear showing that 

the plaintiff is entitled to such relief”26—because Plaintiffs failed to make a 

clear showing that they were harmed. To my eyes, the majority yields to the 

temptation to insert its own logic to fill the void, as shown by the questions 

hypothetically and rhetorically posed. While they are powerful tools of the 

trade, the effect here is to supplant the district court’s judgment for its own,27

24 Sells v. Livingston, 561 F. App’x 342, 345 (5th Cir. 2014) (unpublished) (per 

curiam) (refusing to enjoin an execution on the basis of a prisoner’s speculation as to the 

harm created by the procedures and protocols for execution).

25 Op. at 7.

26 Winter, 555 U.S. at 22 (emphasis added).

27 See Future Proof, 982 F.3d at 289 (quoting White, 862 F.2d at 1211).

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reasoning that because some employers will be harmed by the Rule’s wide 

net, Plaintiffs via their member restaurants will inevitably be caught in the 

seine. “Where ‘the district court’s account of the evidence is plausible in 

light of the record viewed in its entirety, the court of appeals may not reverse 

it even though convinced that had it been sitting as the trier of fact, it would have 

weighed the evidence differently.’”28

The district court’s factual findings that Plaintiffs have failed to make 

a clear showing that they will be harmed is plausibly supported by the record, 

viz. an absence of evidence connecting their restaurants to the Rule’s costs.

With respect to my colleagues, I must DISSENT.29

28 June Med., 140 S. Ct. at 2121 (emphasis added) (quoting Anderson, 470 U.S. at 

573–74).

29 Setting aside my thoughts on the majority’s irreparable harm analysis, I concur 

that the appropriate course of action is to allow the able District Judge to make factual 

findings regarding the remaining elements of a preliminary injunction. Op. at 5 (citing 

Stringer v. Town of Jonesboro, 986 F.3d 502, 509 (5th Cir. 2021)); id. at 10–11. I trust that if 

either party appeals that determination to our Court, we will afford his analysis and findings 

of fact their due weight.

Case: 22-50145 Document: 00516731070 Page: 18 Date Filed: 04/28/2023