Restaurant Law Center v. LABR ( 2023 )

Case: 22-50145 Document: 00516731070 Page: 1 Date Filed: 04/28/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 28, 2023
No. 22-50145 Lyle W. Cayce
Clerk
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.
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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”).
2
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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. See id. 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 non-
movant 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).
5
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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.
6
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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
8
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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.
9
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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.
10
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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.
11
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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).
12
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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)).
13
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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.
14
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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.
15
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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).
16
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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).
17
Case: 22-50145 Document: 00516731070 Page: 18 Date Filed: 04/28/2023
No. 22-50145
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.
18