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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CHRISTOPHER DANIEL McNOSKY, Plaintiff, SVEN STRICKER, Plaintiff, v. TEXAS GOVERNOR RICK PERRY, Defendant. DEFENDANTS RULE 12(B)(1) MOTION TO DISMISS TO THE HONORABLE SAM SPARKS: Defendant Texas Governor Rick Perry pursuant to Rule 12(b)(1) FED. R. CIV. P moves this Court to dismiss all claims alleged by the Plaintiffs for lack of subject matter jurisdiction, and would respectfully show the Court the following: I. INTRODUCTION 1. Plaintiffs McNosky and Stricker filed this suit alleging that an unnamed Tarrant ' ' ' ' ' ' ' ' '

Case No. A13-CV-0631 SS

County official refused to process their application for a marriage license because they were both of the same sex. Amended Complaint, 4. They allege that this violated their rights to equal protection under the Fourteenth Amendment of the U.S. Constitution. 2. Their only jurisdictional allegation of standing is that Defendant Governor Perry

had some undisclosed role in the enforcement of Article I. Sec. 32 of the Texas Constitutionand Texas Family Code , 2.001(b) presumably in the purported denial of the Plaintiffs application for a marriage license.

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II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(1) 3. The Federal Rules of Civil Procedure require dismissal of a lawsuit if the

plaintiffs case is not ripe for adjudication, since a lack of a case or controversy prevents a court from exercising subject matter jurisdiction over the matter. FED. R. CIV. P. 12(b)(1). The lack of ripeness can be raised at any time by a party. Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). 4. The Court should dismiss a case when the plaintiff fails to establish subject matter

jurisdiction. FED. R. CIV. P. 12(b)(1). "It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking." Stockman v. Federal Election Com'n, 138 F.3d 144, 151 (5th Cir. 1998). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Mississippi, Inc. v. City of

Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted). The burden of establishing federal jurisdiction rests on the party

seeking the federal forum. Stockman, 138 F.3d at 151. In this case, the Plaintiff has the burden of establishing that the court has subject matter jurisdiction over his claims. III. ARGUMENT AND AUTHORITIES Eleventh Amendment 5. The Eleventh Amendment bars suits by private citizens against a state in federal

court, irrespective of the nature of the relief requested, including suits against state officials in their official capacities. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984).Under the narrow Ex parte Young exception, however, a federal

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court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law. Pennhurst, 465 U.S. at 102-103. 6. In order to overcome the Eleventh Amendment bar through this Ex parte Young

fiction, however, the defendant state official that is sued must have some connection with the enforcement of the act in question or be specially charged with the duty to enforce the statute. Okpalobi v. Foster, 244 F.3d 405, 414-15 (5th cir. 20021) (en banc). Otherwise, just because he is the Governor of Texas, Plaintiffs here could test ...then the constitutionality of every act passed by the legislature by a suit against the governor and the attorney general.... (quoting Ex parte Young, at pp.411-412.). 7. In order to establish the connection required under Ex parte Young, the state

officer that is sued must have more than some generalized duty to enforce or defend the laws of the state. Eleventh Amendment immunity obtains unless They were not expressly directed to see to its enforcement. Okpalobi, at 413. 8. For the foregoing reasons, the Plaintiffs cannot demonstrate that the Governors

immunity from suit can be overcome under Ex Parte Young; as such, their claims are jurisdictional barred and must be dismissed. See Okpalobi, 244 F.3d at 416-21. A. 9. Plaintiffs Cannot Establish Standing or Ripeness

To obtain Art. III jurisdiction under the Constitution plaintiffs must meet the

standards set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, they must show that they have suffered, or are about to suffer, an injury in fact. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. (citation

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omitted). If any one of these three elementsinjury, causation, and redressability-is absent, plaintiffs have no standing in federal court under Article III of the constitution to assert their claim. Okpalobi, at 425. No Redressability of Plaintiffs alleged Injury 10. Here, Plaintiffs constitutional challenges cannot redress their injuries in this

lawsuit, because For all practical purposes, the injunction granted by the district court is utterly meaningless. The governor and attorney general have no power to redress the asserted injuries. Okpalobi, at 426-427. In Okpalobi v. Foster, the plaintiffs tried to enjoin enforcement of a Louisiana statute that made abortion providers liable in tort for any damages caused by abortion procedures, and named Louisianas governor and attorney general as defendants in the lawsuit. In an en banc opinion, the Fifth Circuit held that an injunction against the governor and the attorney general would be utterly meaningless because [t]he governor and the attorney general have no power to redress the asserted injuries Likewise, because the defendants in this suit have no authority to redress the injuries alleged, the plaintiffs have no case or controversy with these defendants that will permit them to maintain this action in federal court. Id. at 427. 11. The same is true of Plaintiffs claims against Governor Perry in this lawsuit. As a

result, Plaintiffs lack standing and this suit should be dismissed. IV. CONCLUSION For the foregoing reasons, Defendant Governor Perry respectfully requests that the Court dismiss all of Plaintiffs claims and that Defendant Perry go hence without day.

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GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation JAMES BEAU ECCLES Division Chief - General Litigation
s/ William T. Deane WILLIAM T. DEANE Texas Bar No. 05692500 Assistant Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 936-1534 (512) 320-0667 FAX ATTORNEY FOR DEFENDANTS

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing instrument has been sent via certified mail, return receipt requested on this 16th day of September 2013, to: Christopher Daniel McNosky 5108 Pleasant Run Colleyville, Texas 76034 Sven Stricker 3047 Bent Tree Ct Bedford, Texas 76021 /s/ William T. Deane WILLIAM T. DEANE

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