Restaurant Law Center v. LABR

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”).

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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.

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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).

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