Young Conservatives v. Smatresk
U.S. Court of Appeals for the Fifth Circuit
Young Conservatives v. Smatresk, 73 F.4th 304 (5th Cir. 2023)
Young Conservatives v. Smatresk
Opinion
Case: 22-40225 Document: 00516815506 Page: 1 Date Filed: 07/10/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 10, 2023
No. 22-40225
Lyle W. Cayce
____________ Clerk
Young Conservatives of Texas Foundation,
Plaintiff—Appellee,
versus
Neal Smatresk, President of the University of North Texas; Shannon
Goodman, Vice President for Enrollment of the University of North Texas,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:20-CV-973
______________________________
Before Smith, Clement, and Wilson, Circuit Judges.
Edith Brown Clement, Circuit Judge:
States often charge their residents one price for public college and
charge those who live elsewhere much more. Texas allows illegal aliens who
satisfy residency requirements to pay that in-state, lower tuition. A Texas
university student group of out-of-state students sued officials at the
University of North Texas, arguing that Texas’ tuition scheme violated
federal law. The district court agreed and barred the university from charging
out-of-state tuition. We now REVERSE the judgment and VACATE the
injunction.
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No. 22-40225
I
The facts here are undisputed. In 1996, Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act. See Pub. L. No. 104-
208, Div. C, 110 Stat. 3009-546 (1996). That act, among other things, restricts states’ authority to grant certain postsecondary education benefits to illegal aliens unless other conditions are met. It directs that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident.”8 U.S.C. § 1623
(a).
Meanwhile, Texas charges students who satisfy certain residency
requirements lower tuition than it charges to nonresident students. See Tex.
Educ. Code §§ 54.051(c)–(d), 54.052. So long as they satisfy the statute’s
residency requirements, illegal aliens are eligible for Texas resident tuition.
Out-of-state, nonresident American citizens are not. Currently, Texas
resident tuition is pegged at $50 per semester credit hour. See Tex. Educ.
Code § 54.051(c). Nonresident tuition instead totals $458 per semester
credit hour.
Enter this lawsuit. The Young Conservatives of Texas Foundation
(YCT) is a student group at the University of North Texas (UNT)
comprising many nonresident members. YCT’s “core organizational
purpose is to advance conservative values” through a variety of actions. It
has also “repeatedly opposed the disparate treatment of aliens who are not
lawfully present in the United States and United States citizens from other
states with regard to tuition.”
That latter goal collided with UNT’s tuition scheme. UNT, through
its President, Neal Smatresk, and its Vice President for Enrollment, Shannon
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Goodman, (the appellants here), charge illegal aliens who satisfied Texas’
residency requirements resident tuition, and charge U.S. citizens who failed
to meet those requirements nonresident tuition. YCT, believing this
disparity unlawful and harmful to its members, sued in state court for
injunctive and declaratory relief. Though it expressly disclaimed any
challenge to what UNT charges to illegal aliens, it argued that the UNT
officials improperly charged its members out-of-state tuition per § 54.051(d),
which YCT believed was preempted by 8 U.S.C. § 1623(a).
Sometime after removal, the parties cross-motioned for summary
judgment and the district court sided with YCT. It found that YCT had
associational standing to challenge § 54.051(d); that though UNT itself was
not a proper defendant under Ex parte Young, Smatresk and Goodman were1;
that § 54.051(d) is both expressly and impliedly preempted by § 1623(a); and
that YCT was entitled to a permanent injunction barring the UNT officials
from enforcing § 54.051(d). The court then declared § 54.051(d) preempted
and thus violative of the Constitution. It enjoined the UNT officials from
enforcing “the tuition rates prescribed by Section 54.051(d) of the Texas
Education Code against United States citizens at the University of North
Texas.” The UNT officials now appeal.
II
We review a grant (or denial) of summary judgment de novo.
Davidson v. Fairchild Controls Corp., 882 F.3d 180, 184(5th Cir. 2018). A “court should grant summary judgment when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”Id.
(quoting Fed. R. Civ. P. 56(a)). “We also review de novo the
district court’s ruling on standing[.]” See Students for Fair Admissions, Inc. v.
_____________________
1
The UNT officials do not challenge this conclusion.
3
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Univ. of Tex. at Austin, 37 F.4th 1078, 1083(5th Cir. 2022). And finally, we review a grant of a permanent injunction for abuse of discretion. Scott v. Schedler,826 F.3d 207, 211
(5th Cir. 2016) (per curiam).
A
First, we must decide whether YCT has standing to challenge
§ 54.051(d). We conclude they do.
To establish standing, YCT must demonstrate (1) an “injury in fact”
that is “concrete and particularized” and “actual or imminent”; (2) is fairly
traceable to the defendant’s actions; and (3) is likely to be redressed by a
favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). But even if YCT has suffered no injury, it “may have standing to assert the claims of its members[.]” Tex. Ent. Ass’n. v. Hegar,10 F.4th 495
, 504 (5th Cir. 2021) (citation omitted). To have associational standing, YCT must demonstrate that its members would have standing to sue in their own right, that the interests it seeks to protect are germane to its purpose, and that neither the claim nor the requested relief requires its members to participate in the lawsuit.Id.
(citation omitted). It need only show that just one of its members would have standing. See Hunt v. Wash. St. Apple Advert. Comm’n,432 U.S. 333, 342
(1977).
The court below found that YCT’s out-of-state members would have
standing; that the suit was germane to YCT’s interests of education reform
and the treatment of illegal aliens; and that the suit did not require the
involvement of YCT’s members. As for YCT’s members themselves, the
court found that they were injured by paying nine times more than in-state
residents; that their injury was traceable to the UNT officials’ enforcing §
54.051(d); and that an injunction stopping such enforcement would redress
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the injury. On appeal, the UNT officials question only whether YCT’s
members have standing.2
First, the UNT officials argue that YCT’s members are not injured.
YCT and the district court’s theory of injury here is straightforward: in-state
residents pay an amount for college; enforcement of § 54.051(d) improperly
charges out-of-state citizens a far higher amount; and that far-higher amount
is an economic injury sufficient for standing.
In analyzing standing, we assume that YCT is correct on the merits
such that § 54.051(d) is preempted by § 1623(a). See, e.g., Texas v. EEOC, 933
F.3d 433, 447(5th Cir. 2019) (“We assume, for purposes of the standing analysis, that Texas is correct on the merits of its claim that the Guidance was promulgated in violation of the APA.”). It’s also the case that an economic injury is the “quintessential injury upon which to base standing.” Tex. Democratic Party v. Benkiser,459 F.3d 582, 586
(5th Cir. 2006). And to confer standing, such injury “need not measure more than an identifiable trifle.” OCA-Greater Hous. v. Texas,867 F.3d 604, 612
(5th Cir. 2017)
(quotations and citation omitted).
UNT argues first that any “injury” the students sustained was of their
own making: out of all possible postsecondary options across the country, the
students chose to buy—at an open, disclosed price—an out-of-state
education where they are asked to pay more. In the UNT officials’ framing,
the university offered a bargain—out-of-state tuition in exchange for a college
education—which students accepted and got the benefit of.
_____________________
2
Though the UNT officials do not challenge the other components of standing, we
must nevertheless satisfy ourselves that they have been met. See Cleartrac, LLC v. Lanrick
Contractors, LLC, 53 F.4th 361, 364 (5th Cir. 2022). We conclude they have. Whether U.S.
citizens (or illegal aliens) are eligible for benefits is clearly germane to YCT’s mission, and
YCT’s members need not be involved in the pure legal question presented here.
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Indeed, “standing cannot be conferred by a self-inflicted injury.”
Zimmerman v. City of Austin, 881 F.3d 378, 389(5th Cir. 2018) (citation omitted); see also Nat’l Fam. Plan. & Reprod. Health Ass’n, Inc. v. Gonzales,468 F.3d 826, 831
(D.C. Cir. 2006) (“We have consistently held that self- inflicted harm doesn’t satisfy the basic requirements for standing. Such harm does not amount to an ‘injury’ cognizable under Article III.”). But, at base, the students are handing over money that, in the absence of Texas’ presumed-unlawful statute, they would happily retain. Cf. Maya v. Centex Corp.,658 F.3d 1060, 1069
(9th Cir. 2011) (“[P]laintiffs spent money that, absent defendants’ actions, they would not have spent. . . . This is a quintessential injury-in-fact.”). Just because they agreed to do so does not mean they are not, in fact, harmed by the 900% higher price UNT supposedly lacks power to impose. See also 13A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 3531.5 (3d ed. 2008 & Supp. 2022) (“Standing is not defeated merely because the plaintiff has in some sense contributed to his own injury. . . . Standing is defeated only if it is concluded that the injury is so completely due to the plaintiff’s own fault as to break the causal chain.” (emphasis added)); Baldwin v. Fish & Game Comm’n of Mont.,436 U.S. 371, 373
, 377 n.14 (1978) (standing to challenge nonresident
pricing for hunting licenses).
“Causation and redressability then flow naturally from th[at] injury.”
Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th Cir.
2015); see also Lujan, 504 U.S. at 561–62 (explaining that when the plaintiff
“is himself an object of the action . . . at issue,” “there is ordinarily little
question that the action . . . has caused him injury, and that a judgment
preventing . . . the action will redress it”). The harm is directly traceable to
the UNT officials’ wrongfully enforcing § 54.051(d). That section sets out-
of-state tuition for these students (making them the statute’s indirect object),
which is then implemented and enforced by the UNT officials here. See Tex.
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Educ. Code § 54.051(d). That enforcement causes the students’ harm and
will continue to do so as more payments are collected. That’s enough to
establish traceability. Lujan, 504 U.S. at 560 (“[T]he injury has to be fairly
traceable to the challenged action of the defendant.” (cleaned up)).
The UNT officials offer thin arguments in response. They insist that
any duty to pay out-of-state tuition does not lie in a failure to properly apply
§ 1623(a), but instead comes from Texas’ legislative choice to charge that
tuition. They’re right in that, but the argument misunderstands YCT’s
claim. YCT agrees that it’s Texas’ legislative choice to charge their members
out-of-state tuition that caused their harm—but the entire point is that that
legislative choice is preempted by § 1623(a) and is thus void. That must be
assumed as true at this stage, and so we disagree with the UNT officials’
arguments to the contrary.
The future harm is also redressable by favorable action here. If the
UNT officials may no longer enforce § 54.051(d), then they may no longer
calculate and charge out-of-state tuition. That erases the students’ future
harm. The UNT officials’ responses again miss the mark. They claim that an
order enjoining § 54.051(d) cannot make these students suddenly eligible for
in-state tuition, which the officials believe to be the injury. But that
misunderstands YCT’s injury and, in turn, its desired remedy. YCT is not
asking us to make its members categorically eligible for in-state tuition.
Rather, YCT is asking us to stop UNT officials from charging an improper
or unlawful price. The officials muddy the two.
In response, the officials insist that they only charge rates set by
statute and the district court lacks any power to force Texas to change its
statutes. But as YCT notes, that misunderstands redressability. While it’s
true that no “provision in the Constitution permits a court to dictate to
legislative bodies . . . what laws . . . they must promulgate,” Mi Familia Vota
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v. Abbott, 977 F.3d 461, 469 (5th Cir. 2020), we need not do so here. As the
officials themselves explain, “[u]nder state law, a public university cannot
assess a charge unless authorized by law, giving UNT no choice but to assess
to out-of-state U.S. citizens the only tuition rate that was not enjoined: the in-
state tuition rate.” That’s exactly the fix that would—and so far, did—redress
the students’ injury. Preventing application of the unlawful rate imposed by
§ 54.051(d) is sufficient redress to establish standing.
Thus, YCT’s members have an injury in fact, traceable to the
complained-of acts of the defendants, which is likely redressable by favorable
action by this court. They therefore have standing. Because those members’
participation here is not needed, and because this suit is germane to YCT’s
purpose, YCT also has standing to challenge § 54.051(d).
B
Next, we must decide whether the specific provision that YCT has
chosen to challenge is preempted by federal law. We conclude it is not, even
if other, unchallenged provisions in Texas’ scheme may be.
Thanks to the Constitution’s Supremacy Clause, state laws that
conflict with federal law are without effect. See Cipollone v. Liggett Grp., Inc.,
505 U.S. 504, 516(1992). Federal law can preempt state law when (1) Congress expressly commands it so; (2) the state law and federal law actually conflict; or (3) Congress “so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.”Id.
(quotations and citations omitted). “In determining whether a state law or regulation is preempted, Congress’s intent is the ultimate touchstone.” Union Pac. R.R. Co. v. City of Palestine,41 F.4th 696, 704
(5th Cir. 2022) (quotations and citation omitted). Finding Congress’s
intent requires “examin[ing] the explicit statutory language and the structure
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and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133,
138 (1990).
The district court first found that § 1623(a) expressly preempted
§ 54.051(d). Then, in the alternative, the district court found that § 1623(a)
and § 54.051(d) conflicted to such a degree that following them both was
impossible. The UNT officials disagree on both fronts.
1
A federal statute expressly preempts a state law when Congress
“adopts express language defining the existence and scope of pre-emption.”
Est. of Miranda v. Navistar, Inc., 23 F.4th 500, 504 (5th Cir. 2022) (citation omitted). And when the statute contains an express preemption clause, the court does not indulge “any presumption against pre-emption but instead focus[es] on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Puerto Rico v. Franklin Cal. Tax-Free Tr.,579 U.S. 115, 125
(2016) (quotations and citation omitted). “Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue, and in the first instance we focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre- emptive intent.” United Motorcoach Ass’n, Inc. v. City of Austin,851 F.3d 489, 492
(5th Cir. 2017) (alterations adopted) (quotations and citation omitted).
Section 1623(a) contains an express preemption clause. It directs that
“[n]otwithstanding any other provision of law,” an illegal alien “shall not be
eligible on the basis of residence within a State . . . for any postsecondary
education benefit unless a citizen or national of the United States is eligible
for such a benefit . . . without regard to whether the citizen or national is such
a resident.” 8 U.S.C. § 1623(a). To reach its conclusion, the district court
framed the statute a different way. In § 1623(a) the district court found a
“simple rule: If a State makes an unlawfully present alien eligible for a
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postsecondary education benefit on the basis of state residency, it must make
a United States citizen eligible for the same benefit regardless of whether the
citizen is such a resident.” Thus, said the court, Congress meant to
“invalidate state laws that deny United States citizens eligibility for a
postsecondary education benefit . . . based on residency if unlawfully present
aliens are eligible for that benefit based on residence within the State.”
Because § 54.051(d) does exactly that (by charging nonresident tuition), it
was found expressly preempted.
The UNT officials balk at the court’s rewording. Rather than merely
make the statute easier to read, they say, the court instead “converted
Section 1623’s ‘unless’ clause—a condition precedent to granting a benefit
to aliens—into an affirmative obligation to give citizens benefits granted to
aliens.” This led the court to require states to grant benefits to citizens if they
grant those benefits to illegal aliens. Per the UNT officials, this improperly
rewrites Congress’s prohibitory statute and falsely implicates § 54.051(d).
We agree. Start with the text. Section 1623(a) commands that an
illegal alien “shall not be eligible on the basis of residence within a State . . .
for any postsecondary education benefit unless a citizen or national of the
United States is eligible for such a benefit . . . without regard to whether the
citizen or national is such a resident.” 8 U.S.C. § 1623(a) (emphasis added). A preliminary question is what is meant by the chameleon “shall.” See Words of Authority, Bryan Garner, Garner’s Dictionary of Legal Usage (3d ed. 2011) (explaining that “shall can bear five to eight senses even in a single document”). Typically, shall is meant to impose a duty (e.g., you shall file your taxes by April 15). But when followed by not, shall often instead means may (i.e., you shall not means you may not). Seeid.
(“The
word shall gives permission (as opposed to a duty), and shall not denies
permission (i.e., it means ‘may not’)”—Garner laments the “pervasive
problem” of shall/may misuse); see also Shall, Black’s Law
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Dictionary (11th ed. 2019) (explaining that shall can mean may,
especially when paired with a negative word like not or no).
That latter reading of “shall not” is the better understanding here: it
denies permission. Otherwise, § 1623 would impose a duty on illegal aliens to
not be eligible for benefits if citizens are not. That outcome wouldn’t make
sense. Instead—with “shall not” given proper effect—the statute simply
requires that all U.S. citizens be eligible for a benefit, without regard to
residency, before any alien be able to receive the same benefit (based on
residency). Hence the title, “Limitation on eligibility for preferential
treatment of aliens not lawfully present on basis of residence for higher
education benefits.” In doing so, it merely targets offending laws.
That brings us to the district court’s rewrite. The district court’s new
“rule” says, in essence, “that if a state says illegal aliens are eligible, it shall
say that U.S. citizens are eligible.” This is wrong in several ways. First, unlike
the statute, the district court imposes a duty—i.e., it uses the wrong
definition of shall. Unlike the statute as written, which is entirely prohibitory
and limits what can properly be done, the court’s rule demands action.
Second, it moves shall to the wrong side of the sentence. Rather than using
the statute’s proper “if A, then B” form (“if immigrants shall be eligible,
U.S. citizens are”), the court has it backwards (“if immigrants are eligible,
U.S. citizens shall be”). Third, it changes the object of the statute’s
regulation. Now, rather than declaring a limitation on illegal alien eligibility
itself, the court’s rule regulates states directly. In short, the district court
applied an entirely different rule than the one Congress passed.
So, going instead with the proper reading of § 1623(a), the statute
expressly preempts state rules that grant illegal aliens benefits when U.S.
citizens haven’t received the same. No matter what a state says, if a state did
not make U.S. citizens eligible, illegal aliens cannot be eligible. But, to be
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clear, § 1623(a) doesn’t impose any duty to grant the same benefits to U.S.
citizens. Cf. Day v. Bond, 500 F.3d 1127, 1139 (10th Cir. 2007) (“Section 1623
does not provide that ‘No nonresident citizen shall be denied a benefit’
afforded to an illegal alien, but rather imposes a limit on the authority of
postsecondary educational institutions.”). Its sole focus is on improper
benefits for illegal aliens.
Section 54.051(d)—the one and only section challenged here—does
not grant those benefits. It does nothing more than set the tuition price for
nonresident students, citizens or not. It takes no stance on whether illegal
aliens are eligible for a cheaper price.3 Section 1623(a) has nothing to say
about a rule like that. Therefore, § 54.051(d) is not expressly preempted by
§ 1623(a).
2
The district court, relying again on its erroneous reading, also found
that § 54.051(d) conflicted with § 1623(a) to such degree that it was impliedly
preempted. It is not.
Unlike express preemption, conflict preemption begins with the
presumption “that Congress did not intend to displace state law.” Maryland
v. Louisiana, 451 U.S. 725, 746(1981) (citation omitted). Such preemption exists when “compliance with both state and federal law is impossible, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Oneok, Inc. v. Learjet, Inc.,575 U.S. 373, 377
(2015) (quotations and citation omitted).
Per the district court, it’s impossible to both (1) to charge out-of-state
U.S. citizens the nonresident tuition rate (as § 54.051(d) requires of
_____________________
3
Which we here assume is a postsecondary benefit.
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universities) and also (1) to charge out-of-state U.S. citizens the resident
price (as, thought the court, was required by § 1623(a) since illegal aliens
could earn resident tuition). Unsurprisingly, then, the district court found §
54.051(d) preempted.
But again, § 1623(a) does not require what the district court insists it
does. The court and YCT have it backwards: the problem with Texas’ system
relevant to § 1623(a) is that it grants illegal aliens in-state benefits, not that it
denies those benefits to U.S. citizens. Section 1623(a) does not restrict the
latter, and burdens Texas with no duty related to U.S. citizens. That
§ 54.051(d) calculates and imposes a nonresident tuition rate (for U.S.
citizens, foreign nationals, and immigrants alike) has nothing to do with
§ 1623(a)’s mandate that illegal aliens are ineligible for in-state benefits
unless U.S. citizens are. Thus, even though a different, unchallenged portion
of Texas’ scheme seems to conflict with § 1623(a), it is entirely possible to
follow both § 1623(a) and § 54.051(d) at the same time.
YCT’s arguments generally track the district court’s reasoning and
are wrong for the same reasons. But one warrants addressing. YCT contends
that § 1623(a) requires that universities either make illegal aliens eligible for
in-state tuition, or they can charge U.S. citizens out-of-state tuition. They
cannot do both. And, says YCT, § 1623(a) is “wholly agnostic on how
universities choose to comply with its terms.” Id. That is not correct. While
it’s true that § 1623(a) disallows alien eligibility if paired with citizen
ineligibility, the statute makes clear that if a state tries both, the former must
give. The statute does not grant a choice—illegal aliens simply are not eligible
if citizens aren’t.
Further still, though the district court didn’t address the question,
§ 54.051(d) does not hamper Congress’s § 1623(a) objectives. To start,
declaring a statute enough of an obstacle for implied preemption is “a matter
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of judgment, to be informed by examining the federal statute as a whole and
identifying its purpose and intended effects[.]” Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 373(2000). As luck would have it, Congress made explicit its aims for the Illegal Immigration Reform and Immigrant Responsibility Act. See8 U.S.C. § 1601
. They include promoting immigrant self-sufficiency, reducing immigrant reliance on public assistance, and ensuring that public benefits aren’t incentives to enter illegally.Id.
The
strictures of § 54.051(d) are silent on those objectives. Section 54.051(d) only
imposes nonresident tuition for those who do not qualify for Texas residency
(alien or citizen alike). It does not offer a public benefit to illegal aliens, and
thus cannot affect that class’s self-sufficiency, their reliance on public
services, or their incentives to come to America. Unlike Texas’ rule allowing
illegal aliens to qualify for resident tuition (which implicates every IIRIRA
objective, often in the negative), § 54.051(d) speaks only to the price that
nonresidents pay. Congress’s objectives are not thwarted by that higher
price.
Since § 54.051(d) neither conflicts with, nor harms the objectives of,
§ 1623(a), the latter does not impliedly preempt it. The district court was
wrong to find otherwise.
C
With that conclusion in mind, we turn next to whether the district
court abused its discretion in permanently enjoining the university officials
from enforcing § 54.051(d). We conclude it did.
The court reviews a grant of a permanent injunction for abuse of
discretion. Scott, 826 F.3d at 211. A district court “abuses its discretion if (1)
relies on clearly erroneous factual findings when deciding to grant or deny
the permanent injunction (2) relies on erroneous conclusions of law when
deciding to grant or deny the permanent injunction, or (3) misapplies the
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factual or legal conclusions when fashioning its injunctive relief.” Peaches
Ent. Corp. v. Ent. Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995).
Because the district court awarded a permanent injunction by relying
on its erroneous preemption analysis, it abused its discretion.
III
There may be valid preemption challenges to Texas’ scheme here. But
this is not one of them. The district court’s judgment is REVERSED, and
its permanent injunction is VACATED.
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