State of Texas v. Department of Justice

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

STATE OF TEXAS,

Plaintiff,

v. No. 5:23-CV-034-H

MERRICK GARLAND, in his official

capacity as Attorney General., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Judges apply rules, not the parties’ preferences. The rule at issue here is

longstanding: the plaintiff gets to choose where to file suit from multiple permitted

locations. And since 1962, Congress has permitted suits against the federal government to

be brought where the plaintiff resides. Here, Texas brought suit in the Northern District of

Texas, but the defendants seek transfer because, in their view, Texas sues too often in

certain divisions. Notably, however, the defendants do not claim the Court is biased. To

the contrary, they “are not questioning this Court’s ability to decide the case fairly.” And

each argument the defendants do assert to justify transfer fails. First, the venue statute, case

law, and common sense contradict the claim that Texas resides solely in its capital. Second,

the request to transfer venue based on the parties’ and witnesses’ convenience is

unsupported by evidence, and the applicable balancing test tips decidedly against the

defendants. Finally, the defendants’ contention that Texas’s choice of forum undermines

public confidence in the judiciary rests on several flawed premises: that this is a single-judge

division (it is not), that litigation in single-judge divisions is novel (incorrect), and that filing

in this division guarantees an outcome (it does not). Because venue is proper and the

defendants have not shown another venue to be more convenient, the motion is denied.

1. Procedural History

The State of Texas—the sole plaintiff in this case—filed suit against various federal

agencies and executive officials, challenging two narrow provisions of the Consolidated

Appropriations Act of 2023. Dkt. No. 4. Specifically, Texas claims that Congress passed

the Act in violation of the Constitution’s Quorum Clause because less than half of the

Members of the House of Representatives were physically present, which prevented the

necessary quorum to do business. Id. at 1–2, 4–5, 9–14 (quoting U.S. Const. art. I, § 5, cl.

1). The House nevertheless accepted the Senate’s amendments to the Act based on a House

rule that allowed absent members to vote by proxy. Id. at 2–5.

Texas alleges that two particular provisions of the Act cause it harm—one imposing

novel obligations on employers and another that will result in Texas spending additional

funds for illegal aliens. Id. at 5–9. First, the Act expands Title VII’s protections and

obligations to cover pregnant employees. Id. at 5. Texas asserts that, although it already

accommodates the needs of its pregnant employees, the Act would subject it to new

litigation exposure, including EEOC complaints and investigations, lawsuits from the

Attorney General, and private actions from employees. Id. at 5–6. Second, Texas

complains that the Act “creates a program that encourages illegal aliens to seek additional

spending from States.” Id. at 6 (quoting Pub. L. 117-328, Div. F, Title I). In short, the Act

allocates $20 million to a case-management pilot program that, among other things,

connects illegal aliens released into the United States with various social services provided

by Texas, such as education and healthcare. Id. at 7–8. As a result, Texas alleges that the

Act “causes Texas and its local governments to spend additional monies on services to

illegal aliens they would not otherwise spend.” Id. at 8.

Because these provisions would cause direct economic and quasi-sovereign interest

harm—and stem from an Act that Texas believes passed into law in violation of the

Constitution—Texas asks the Court to “enjoin[] the Defendants from enforcing the

Pregnant Workers Fairness Act against it.” Id. at 15–16. Additionally, it asks the Court to

“enjoin[] the Defendants from continuing to fund grants through and otherwise operate

DHS’s pilot program.” Id.

In response, the defendants filed the instant motion, requesting transfer to the

Western District of Texas or the District of Columbia. Dkt. No. 9. Texas filed its response

(Dkt. No. 32), and the defendants filed their reply (Dkt. No. 34). The motion is ripe.

2. Analysis

The defendants seek transfer on three grounds. First, they assert that venue is

improper under 28 U.S.C. § 1406 because Texas does not reside in the Northern District of

Texas. Dkt. No. 10 at 10–15. Second, the defendants contend that, even assuming proper

venue, the Court should transfer the case to either Austin, Texas, or Washington, D.C.,

under 28 U.S.C. § 1404(a) because those locations are more convenient. Id. at 15–18.

Finally, regardless of convenience, they claim that the interest of justice justifies transfer

under Section 1404(a) to prevent the loss of public confidence in the judicial system. Id. at

18–20. Each argument, however, is unsupported by the law and the record. Thus, the

defendants fall well short of justifying deviation from the well-established default rule that

plaintiffs get to choose their forum.

A. Venue is proper in the Northern District of Texas.

The defendants first argue that the Court should transfer this case under the

improper-venue provision of Section 1406. Id. at 10. Their argument rests on the premise

that Texas is not a resident, for venue purposes, of the Northern District of Texas. Id. at 12.

The statute, precedent, and common sense all indicate otherwise.

The improper-venue statute requires district courts to dismiss or transfer cases filed

“in the wrong division or district.” 28 U.S.C. § 1406(a).1 Section 1391 defines proper venue

in civil actions filed against the federal government. 28 U.S.C. § 1391(e). It provides that a

suit against the federal government may be brought “in any judicial district in which (A) a

defendant in the action resides, (B) a substantial part of the events or omissions giving rise to

the claim occurred, or a substantial part of property that is subject to the action is situated,

or (C) the plaintiff resides if no real property is involved in the action.” Id. Thus, a plaintiff

can sue the federal government where it resides—regardless of where the events giving rise

to the action occurred. See id. The statute defines residency for (1) natural persons;

(2) entities “with the capacity to sue and be sued in its common name under applicable

law”; and (3) non-residents. Id. § 1391(c)(1)–(3). In a separate subsection, it defines

residency for corporations in states with multiple districts. Id. § 1391(d).

Texas does not argue that any defendant resides in this district, nor does it argue that

the events giving rise to the claim occurred here. Dkt. No. 32 at 6. Rather, it contends that

“[v]enue is proper here because Texas resides here.” Id. Thus, the issue is whether Texas

resides in the Northern District of Texas. For multiple reasons, the Court concludes that it

does.

1 While the defendants take issue with the plaintiff’s filing of the case in this division, they argue that

venue is improper only because it was brought in the wrong district and do not rely on Section

1406’s “wrong division” language. Dkt. No. 10 at 10 (quoting 28 U.S.C. § 1406(a)). Thus, the

Court will analyze whether venue is proper within the Northern District of Texas.

First, precedent dictates this outcome. The Fifth Circuit confirmed more than a

century ago that a state “resides at every point within [its] boundaries.” Atlanta & F.R. Co. v.

W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1892). Notwithstanding Atlanta & F.R. Co.’s

posture as assessing jurisdiction in a dispute between corporations, courts have consistently

relied on this on-point precedent when addressing a plaintiff state’s residency under Section

1391(e). California v. Azar, 911 F.3d 558, 570 (9th Cir. 2018) (quoting id. at 791); Utah v.

Walsh, No. 2:23-CV-016-Z, 2023 WL 2663256, at *3 (N.D. Tex. March 28, 2023) (same);

Texas v. Dep’t of Homeland Sec., No. 6:23-CV-007, 2023 WL 2457480, at *3 (S.D. Tex. March

10, 2023) (same); Florida v. United States, No. 3:21-CV-1066-TKW-EMT, 2022 WL 2431443,

at *2 (N.D. Fl. Jan. 18, 2022) (same). This Court will likewise follow the Fifth Circuit’s

clear statement and conclude that Texas resides at every point within its boundaries,

including in the Northern District of Texas. Therefore, it can bring suit against the federal

government in this district.

Second, common sense—and every court presented with the question—make clear

that a state resides in every district and division within its borders. Nearly 20 years ago, one

court explained that “[c]ommon sense suggests that the Plaintiffs are correct” in arguing that

a state “‘resides’ in every district it encompasses.” Alabama v. U.S. Army Corps of Eng’rs, 382

F. Supp. 2d 1301, 1329 (N.D. Ala. 2005). And, more recently, the Northern District of

California and the Ninth Circuit agreed. California v. Health and Human Servs., 281 F. Supp.

3d 806, 824 (N.D. Cal. 2017), vacated in part on other grounds by Azar, 911 F.3d 558

(“[C]ommon sense dictates that for venue purposes, a state plaintiff with multiple federal

judicial districts resides in any of those districts.”); Azar, 911 F.3d at 570 (explaining that

any “interpretation limiting residency [of a state plaintiff] to a single district in the state

would defy common sense”). Courts in the Eastern District of Pennsylvania and the

Northern District of Florida reached the same conclusion. Pennsylvania v. Trump, 351 F.

Supp. 3d 791, 809 (E.D. Pa. 2019), rev’d on other grounds sub nom. Little Sisters of the Poor

Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Florida, 2022 WL 2431443,

at *2.

Additionally, in recent months—and in response to similar transfer motions brought

by the United States—district courts in this Circuit have joined the chorus of courts finding

that states reside in every district within their borders. Walsh, 2023 WL 2663256, at *3

(stating that common sense dictates that Texas is a resident of the Northern District of

Texas) (quoting both Alabama, 382 F. Supp. 2d at 1328–29, and Azar, 911 F.3d at 570);

Texas, 2023 WL 2457480, at *3 (stating that “every court that has considered the residency

of a state” has concluded that a state resides in every district within its borders) (citing Azar,

911 F.3d 558). Thus, the Court joins every other court to address the issue in concluding

that a plaintiff state resides in every district of that state.

Third, the defendants’ assertion that the venue statute proves that a state cannot

reside in all districts within its borders is undermined by the statute’s text and context.

Section 1391(c), entitled “Residency,” provides that for “all venue purposes”:

(1) a natural person . . . shall be deemed to reside in the judicial district in which

that person is domiciled;

(2) an entity with the capacity to sue and be sued in its common name under

applicable law, whether or not incorporated, shall be deemed to reside, . . . if

a plaintiff, only in the judicial district in which it maintains its principal place

of business; and

(3) a defendant not resident in the United States may be sued in any judicial

district.

28 U.S.C. § 1391(c).

The defendants contend that subsection (c)(2) governs the residency of a state

plaintiff, so “the State of Texas ‘resides’ for venue purposes in its principal place of business,

its capital Austin, located in the Austin Division of [the] Western District of Texas.” Dkt.

No. 10 at 12. More specifically, the defendants claim that the venue statute prescribes the

residency of every possible type of litigant, and they characterize Section 1391(c)(2) as a

“residual category.” Id.; Dkt. No. 34 at 3 (arguing that the “all venue purposes” language

covers every possible type of litigant). Texas disagrees, arguing that (c)(2) “does not purport

to include every possible party to every possible action for venue purposes; its definition of

‘entity’ is not a residuary receptable into which sovereign States fall.” Dkt. No. 32 at 7.

The Court disagrees with the defendants’ suggested interpretation. Section

1391(c)(2) does not reference, let alone define, the residency of a state. Its reference to “an

entity with the capacity to sue and be sued in its common name . . . whether or not

incorporated” is a reference to unincorporated associations. Azar, 911 F.3d at 570 (stating

that this section “is a response to ‘division in authority as to the venue treatment of

unincorporated associations’”) (citing H.R. Rep. No. 112-10, at 21 (2011)); Pennsylvania,

351 F. Supp. 3d at 809 (noting that “Congress was contemplating ‘unincorporated

associations, such as partnerships and labor unions, and other entities with capacity to sue

in their common name’”) (citing H.R. Rep. No. 112-10, at 21 (2011)). Moreover, that

phrase—“capacity to sue and be sued in its common name”—is mirrored in Federal Rule of

Civil Procedure 17(b), which provides that an “unincorporated association” that has “no []

capacity [to sue] under [] state[] law” may “sue or be sued in its common name to enforce a

substantive right existing under the United States Constitution or laws.” Fed. R. Civ. P.

17(b)(3)(A); see also Busby v. Elec. Utils. Emps. Union, 323 U.S. 72, 73 (1944) (“Under these

Rules, a plaintiff may proceed . . . against an unincorporated labor union in its common

name . . . .”) (citing Rule 17). Thus, Texas is not an “entity” within the meaning of Section

1391(c)(2), given its plain reference to unincorporated associations. The defendants fail to

cite any authority holding otherwise.

Further, it is clear that Section 1391(c)(2) “makes no reference one way or the other

as to the residency of a sovereign state” because states, unlike corporations, do not have a

principal place of business. Texas, 2023 WL 2457480, at *3. The defendants argue that

Austin is Texas’s principal place of business, citing a number of authorities. Dkt. No. 10 at

12–13. But the Court finds these bare citations unpersuasive because none addresses a

sovereign state. O’Neill v. Battisti involved state judicial officials, rather than the sovereign

state. 472 F.2d 789, 790 (6th Cir. 1973) (noting that the case was filed “by the Chief Justice

and the Associate Justices of the Supreme Court of Ohio”). And the remainder of the

defendants’ citations all relate to public officials—not sovereign states. Fla. Hometown

Democracy, Inc. v. Browning, No. 08-CV-80636, 2008 WL 3540607, at *3 (S.D. Fla. Aug. 12,

2008) (Florida Secretary of State); Leonhart v. McCormick, 395 F. Supp. 1073, 1078 (W.D.

Pa. 1975) (noting that “all defendants are state officers”); Perkins v. Snider, No. 94-CV-4785,

1994 WL 530045, at *1 (E.D. Pa. Sept. 2, 1994) (Secretary of the Pennsylvania Department

of Public Welfare); Nestor v. Hershey, 425 F.2d 504, 521 (D.C. Cir. 1969) (Director of the

Selective Service System); Brinbaum v. Blum, 546 F. Supp. 1363, 1366 (S.D.N.Y. 1982)

(Commissioner of the Oneida County Department of Social Services and Budget Director of

New York State). Thus, the defendants do not cite any case holding that a sovereign state

has a principal place of business. To the contrary, while these cases discuss the residence of

state officials, none even uses the term “principal place of business.”

Nor is Section 1391(c)(2) a residual clause that captures all litigants that are not

natural persons or foreign defendants, as the defendants suggest. The defendants argue that

“[i]f Congress intended to limit the entity category described in Section 1391(c)(2) to

particular entities that it had in mind, it could have enumerated them individually.” Dkt.

No. 10 at 14 (cleaned up). But regardless of what Congress allegedly intended, the text of

Section 1391(c)(2) is not the “generally phrased . . . catchall” that the defendants claim it is.

Republic of Iraq v. Beaty, 556 U.S. 848, 860 (2009). “A residual clause is just that—something

that is ‘left over’ and considered after the primary question has first been reviewed.” United

States v. Castro, 755 F. App’x 371, 373 (5th Cir. 2018) (quoting the Oxford English

Dictionary). Subsection (c)(2), in contrast, is the second in a list of three residency

definitions—an odd place to hide a leftover catchall. Nor is it “generally phrased.” It

addresses specific entities with the capacity to sue and be sued in their common name—

even if an entity is not incorporated. Likewise, Supreme Court precedent provides that the

statutory language “[f]or all venue purposes” is not phrased as a residual clause. TC

Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258, 268 (2017) (rejecting the

premise that the statute’s “[f]or all venue purposes” language applies in all cases). Finally,

Section 1391’s saving clause—“[e]xcept as otherwise provided by law”—“expressly

contemplates that certain venue statutes may retain definitions of ‘resides’ that conflict with

its default definition.” Id. at 269.

Beaty, the defendants’ sole case cited in support of the proposition that Section

1391(c)(2) is a residual clause, involved materially different statutory language. There, the

Supreme Court considered the following language:

The President may suspend the application of any provision of the Iraq

Sanctions Act of 1990 . . . Provided further, That the President may make

inapplicable with respect to Iraq section 620A of the Foreign Assistance Act of

1961 or any other provision of law that applies to countries that have supported

terrorism . . . .

Beaty, 556 U.S. at 856 (citing 117 Stat. 579) (first emphasis in original, second

emphasis added). Because it “supplied an amorphous catchall at the end of a more

definite list,” the language in Beaty, unlike the language of Section 1391(c), looks like

other statutory language that has been called a residual clause. See Brown v. United

States, 139 S. Ct. 14, 15 (2018) (Sotomayor, J., dissenting from denial of certiorari).

It should not be surprising that the venue statute does not define residency for all

types of litigants because Congress has never sought to define all possible conceptions of

residency. “Venue in the federal courts has been primarily a matter of statute, and not

common law, from 1789 until the present.” Wright & Miller, 15 Fed. Prac. & Proc. Juris.

§ 3802 (4th ed. 2022 update). And yet, “[u]ntil 1948, Congress made no effort to define the

residence of litigants.” Id. at § 3804. The defendants themselves implicitly recognize that

Section 1391(c) is not the exhaustive source of residency for venue purposes, as they note

that subsections (d), (e), and (f) define residency for various types of litigants. Dkt. No. 10

at 14 (noting that “Congress recognized six specific entities in the venue statute as ‘residing’

in a certain district”) (citing 28 U.S.C. §§ 1391(c)–(f)). Thus, the defendants’ attempt to

characterize Section 1391(c)(2) as a residual clause is belied by a fair reading of the statutory

text, context, precedent, and tradition.

Finally, the Court is not persuaded by the defendants’ reference to Ironridge Global—a

Northern District of Georgia case concluding that the SEC was “an entity with the capacity

to sue and be sued in its common name.” Ironridge Global IV, Ltd. v. SEC, 146 F. Supp. 3d

1294, 1311 (N.D. Ga. 2015). First, that case considered the residency of a federal agency,

not of a sovereign state. See generally id. And its posture as an order granting a preliminary

injunction means that the court only considered whether the plaintiffs had shown a

likelihood of success on the venue question. Id. at 1312. Second, the Court disagrees with

the reasoning. Ironridge Global was decided prior to TC Heartland and erroneously concluded

that the “for all venue purposes” language applied to all venue determinations. Compare TC

Heartland LLC, 581 U.S. at 268 (concluding that “all venue purposes” is not without

exception), with id. (concluding that in enacting the “[f]or all venue purposes” language,

“Congress could not have been clearer”). Moreover, Ironridge Global did not consider the

cases finding sovereign states are not included under Section 1391(c)(2) or the limitation

Congress imposed by adding the principal-place-of-business language.

By its plain terms, Section 1391(c)(2) refers to corporations and unincorporated

associations—not sovereign states. Thus, the Court joins every other court to consider the

issue by finding that a state resides, for venue purposes, in every district within its borders.

Venue is proper in the Northern District of Texas.

B. Transfer is not appropriate under Section 1404.

Although venue is proper in this Court, the defendants argue in the alternative that

the Court should transfer the case to Austin or the District of Columbia for the convenience

of the parties and witnesses. Dkt. No. 10 at 9–12. The defendants provide no evidence,

however, to meet their burden of showing good cause through a clear demonstration that

transfer would serve the convenience of the parties and witnesses. To the contrary, the

public- and private-interest factors the Court must consider weigh decidedly against the

defendants’ request.

If venue is otherwise proper, as it is in this case, transfer is only appropriate under 28

U.S.C. § 1404(a). The statute provides that the Court may transfer a case to another district

in which the case “might have been brought” if it is “[f]or the convenience of parties and

witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a). To satisfy this statute, a

party “must show good cause” by “clearly demonstrat[ing] that a transfer is ‘[f]or the

convenience of parties and witnesses, in the interest of justice.’” In re Volkswagen of Am.,

Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quoting 28 U.S.C. § 1404(a)). If the moving party

cannot carry its burden to show that the transferee venue is clearly more convenient, “the

Plaintiff's choice should be respected.” Id. And when venue is proper, “the fact that

litigating would be more convenient for the defendant elsewhere is not enough to justify

transfer.” Def. Distributed v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022). Thus, to satisfy the

burden, the moving party “must adduce evidence and arguments that clearly establish good

cause for transfer based on convenience and justice.” Id.

In light of the statutory language, the “transfer analysis proceeds in two parts.” In re

Planned Parenthood Fed’n of Am., Inc., 52 F.4th 625, 630 (5th Cir. 2022). “First, the district

court must ask whether the case ‘might have been brought’ in the destination venue.” Id.

(quoting 28 U.S.C. § 1404(a)). “Second, the district court must weigh the public and private

interest factors set forth in . . . Gilbert . . . to determine whether the destination venue is

‘clearly more convenient than the venue chosen by the plaintiff.’” Id. (citing Gilbert, 330

U.S. 501 and quoting In re Volkswagen, 545 F.3d at 315). The defendants argue in favor of a

third step—considering the interest of justice as its own factor—but regardless of whether

they are right on that point of law, the Court finds the interest of justice does not justify

transfer.

The private-interest factors are: “(1) the relative ease of access to sources of proof;

(2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost

of attendance for willing witnesses; and (4) all other practical problems that make trial of a

case easy, expeditious and inexpensive.” Id. (quoting In re Volkswagen, 545 F.3d at 315).

The public-interest factors are “(1) the administrative difficulties flowing from court

congestion; (2) the local interest in having localized interests decided at home; (3) the

familiarity of the forum with the law that will govern the case; and (4) the avoidance of

unnecessary problems of conflicts of laws or in the application of foreign law.” Id. (quoting

In re Volkswagen, 545 F.3d at 315).

Here, Texas does not contend that the case could not have been brought in either of

the defendants’ preferred venues—the District of Columbia and the Western District of

Texas—and rightfully so. The case could have been brought in either district. The presence

of federal-official defendants makes the District of Columbia a proper venue under Section

1391(e), and Texas’s residency throughout its borders would have allowed it to file suit in

the Western District. Therefore, the Court turns to the public- and private-interest factors to

determine whether the defendants have shown that the alternative locations are clearly more

convenient than the venue chosen by the plaintiff.

i. The private-interest factors do not support transfer.

In their initial briefing, the defendants do not attempt to argue the private-interest

factors. Instead, they merely state that “[t]he challenged law was enacted in Washington,

D.C. and all 17 Defendants reside there.” Dkt. No. 10 at 17. In their reply, however, the

defendants argue for the first time that two of these factors—the relative ease of access to

sources of proof and the cost of attendance for willing witnesses—require transfer.2 Dkt.

No. 34 at 7–8.

The Court disagrees. First, the relative ease of access to sources of proof does not

weigh in the defendants’ favor because the evidence in this case is overwhelmingly

electronic and publicly available. Where “the vast majority of the evidence [is] electronic,

and therefore equally accessible in either forum,” the ease-of-access factor does not weigh in

favor of transfer. In re Planned Parenthood, 52 F.4th at 630. The “location of evidence bears

much more strongly on the transfer analysis when, as in Volkswagen, the evidence is physical

in nature.” Id. (citing In re Volkswagen, 545 F.3d at 316–17). Here, the defendants fail to

refer to any evidence in their motion or brief in support, let alone physical evidence that

would impact the convenience of the forum. And in their reply, the defendants state

without support that “[d]ocuments, including those relevant to standing declarations and

the enactment of the challenged Act, are also located in the Washington, D.C. area.” Dkt.

No. 34 at 8. Nothing in that last-minute, conclusory assertion alters the Court’s analysis

because the defendants have not shown, for instance, documents that “are fragile, not easily

scanned and transferred electronically” or that “risk damage in being transported during

discovery.” Word to Info, Inc. v. Facebook, Inc., No. 3:14-CV-3487-K, 2015 WL 13870507, at

*3 (N.D. Tex. July 23, 2015). To the contrary, this case focuses on the undisputed actions

of Congress; thus, extensive testimony, factual disputes, and difficult-to-obtain evidence are

2 The Court’s “usual practice is to decline to consider arguments raised for the first time in a reply

brief.” Shah v. Univ. of Tex. Sw. Med. Sch., 129 F. Supp. 3d 480, 494 (N.D. Tex. 2015) (Fitzwater, J.).

And while pointing to new sources of evidence and identifying witnesses might not qualify as

entirely new arguments, it still interferes with the function of the briefing process and violates “the

rule that the nonmovant should be given a fair opportunity to respond to a motion.” Springs Indus.,

Inc. v. Am. Motorists Ins. Co., 137 F.R.D. 238, 239 (N.D. Tex. 1991) (Fitzwater, J.). Nonetheless,

because the Court denies the motion, the new arguments will be considered.

all unlikely. The plaintiff’s challenge to the Act’s constitutionality is based primarily on

legal arguments, and the sources of proof are readily accessible as electronically available

public records. This factor does not weigh in favor of transfer.

Second, the cost of attendance for willing witnesses likewise does not weigh in favor

of transfer. In their reply, the defendants assert that they have “identified witnesses at

various agencies in the Washington, D.C. area who will . . . be used in support of their

jurisdictional arguments.” Dkt. No. 34 at 8. While normally a rule applied in the context

of compulsory process, the movant should still “specifically identif[y] witnesses,” and the

Court accords less weight to “vague assertions that witnesses are likely to be found in a

particular forum.” Word to Info, Inc., 2015 WL 13870507, at *3. Nonetheless, even if certain

witnesses will need to “travel more than 1,000 miles to Lubbock” and “take time ‘away

from their regular employment,’” this factor still does not weigh in favor of transfer. Dkt.

No. 34 at 8 (quoting In re Volkswagen AG, 371 F.3d at 204–05). Lubbock is “considerably

less expensive to visit than Austin and Washington, D.C. for many reasons.” Texas, 2023

WL 2457480, at *5. “[M]eal and lodging expenses” are significantly lower in Lubbock than

in Austin or Washington, D.C. In re Volkswagen AG, 371 F.3d at 205 (stating that the

witness-travel distance is relevant because of increased meal and lodging expenses).

The defendants cite In re Volkswagen for the proposition that “witness travel more

than 100 miles supports transfer” (Dkt. No. 34 at 8 (citing id.)), but the distinction between

this case and Volkswagen is that this case involves a legal challenge to a federal law, while

Volkswagen involved a car accident with physical evidence and private-party witnesses. 371

F.3d at 202, 206 (stating that “the accident produced a wide array of [private-party]

witnesses”). Moreover, by allowing plaintiffs to sue in the district of their residence,

Congress has already decided that suits against the federal government can be heard

nationwide. 28 U.S.C. § 1391(e); see also Stafford v. Briggs, 444 U.S. 527, 542 (1980) (“What

emerges is that the bill’s author, the Committees, and the Congress intended nothing more

than to provide nationwide venue for the convenience of individual plaintiffs in actions

which are nominally against an individual officer but are in reality against the

Government.”). The potential for increased costs to the government resulting from a

congressional choice in favor of plaintiffs is a feature of the statute, not a bug. Thus, the

Court finds that neither the relative ease of access to sources of proof nor the cost of

attendance for willing witnesses favors transfer.

ii. The public-interest factors do not support transfer.

The defendants also fail to justify transfer through reliance on the public-interest

factors. They concede that “the public interest factors concerning a conflict of laws or

familiarity with the law are inapplicable.” Dkt. No. 34 at 8. In their brief in support, the

only factor the defendants argue is the “local interest in having localized interests decided at

home.” Dkt. No. 10 at 18. For the first time in their reply, the defendants also contend that

the factor considering court congestion “lean[s] in favor of transfer.” Dkt. No. 34 at 8; see

also supra note 2. Neither consideration supports transfer.

The factor considering court congestion weighs in favor of denying the motion. “To

the extent docket efficiency can be reliably estimated, the district court is in the best position

to do so.” Walsh, 2023 WL 2663256, at *2 (citing In re Planned Parenthood, 52 F.4th at 631).

Texas correctly notes that the median time from commencement of a civil suit to trial is 20%

higher in the Western District of Texas and 107% higher in the District of Columbia than in

the Northern District of Texas. Dkt. No. 32 at 14 (citing Admin. Off. of U.S. Courts,

Federal Court Management Statistics—Profiles (Sep. 30, 2022) (available at

https://www.uscourts.gov/file/62591/download)). And as of March 31, 2023, the Court

had no motions pending for more than six months and no cases pending longer than three

years. Id. Notably, after the motion was filed, the Honorable Judge Lee Yeakel retired

from his position, meaning that the Austin Division now has one of its two active

judgeships vacant. Judge Lee Yeakel Retiring After 20 Years of Service, AUSTIN BAR ASS’N,

https://perma.cc/8L5H-CD96; see also Western District of Texas, In re Court Docket

Management (May 11, 2023). The defendants quibble with the statistics, but they do not

assert that the Court is unable to resolve this dispute expeditiously nor do they show how

transfer would alleviate court congestion.

To the contrary, the Court has an established track record of swiftly resolving cases

involving requests for emergency injunctive relief concerning issues of national significance.

For example, the Court recently issued a 55-page Memorandum Opinion and Order in a

case of critical significance for the horseracing industry. Nat’l Horsemen’s Benevolent and

Protective Ass’n v. Black, No. 5:21-CV-071, 2023 WL 3293298 (N.D. Tex. May 4, 2023).

That order was entered 23 days after consolidating the cases and eight days after trial. And

in that case, the Court decided several emergency motions on an expedited timeframe. E.g.,

Nat’l Horsemen’s, No. 5:21-CV-071, Dkt. No. 134 (resolving an application for temporary

restraining order within five days). And last fall, a 67-page order was entered in a case of

national significance within eight days of becoming ripe. Texas v. Becerra, No. 5:22-CV-185,

2022 WL 3639525 (N.D. Tex. Aug. 23, 2022). In 2021, the Court entered a 56-page order

the day after the hearing and within just three days of becoming ripe. Texas v. Becerra, 577

F. Supp. 3d 527, 562 (N.D. Tex. 2021). Neither side has sought expedited, emergency relief

in this case, but the Court’s track record demonstrates that the defendants will receive a

thorough decision in an efficient manner.

Finally, the defendants fail to identify the “local interest” that would be better

resolved in Austin or Washington, D.C. They argue that Texas is “at home” in Austin, but

the Court disagrees. The citizens of the Lubbock Division have no lesser interest in the

constitutionality of federal laws than do those in metroplexes such as Austin and

Washington, D.C. Texas’s statement that “[c]itizens of Lubbock . . . are as offended and

affected by the purported, unconstitutional appropriation of $1.7 trillion of public funds as

citizens in any other district” (Dkt. No. 32 at 15) does not, as the defendants claim, show

that Texas “admits that the citizens of Lubbock have no particular local interest in the

outcome of this dispute.” Dkt. No. 34 at 8. It simply shows, as Texas admits, that the

localized-interest factor is neutral in this case. Dkt. No. 32 at 15 (noting that the case “is not

explicitly or closely tied to any one district or division”). Ultimately, it is the defendants

who bear the burden of showing that one of the destination venues clearly has a greater

local interest than the Lubbock Division, and they fail to meet that burden. Defense

Distributed v. Bruck, 30 F.4th 414, 433 (5th Cir. 2022) (stating that the party seeking transfer

must “clearly establish good cause for transfer based on convenience and justice”). The

Court finds that this factor is neutral and, thus, does not favor transfer. As a whole, the

public- and private- interest factors weigh decidedly against transfer.

C. The defendants fail to establish that the interest of justice requires transfer.

As a final argument, the defendants suggest that “the fair administration of justice

would be harmed if a filing with strong indicia of judge shopping were left unchecked.”

Dkt. No. 10 at 18. But their argument conflicts with the defendants’ own concessions that

(1) this Court can fairly and impartially adjudicate the case, and (2) filing this type of

motion “exacerbates the very public perception about single-judge divisions that it does not

share.” Dkt. No. 10 at 12 n.4; Texas v. United States Dep’t of Homeland Sec., No. 6:23-CV-

00007, 2023 WL 2457480, at *8 (S.D. Tex. Mar. 10, 2023). The defendants’ speculative

assertion that public harm could result—from a misperception that even the defendants do

not share—does not justify transfer.

Two primary considerations lead the Court to this conclusion. First, the statutory

requirement that courts consider “the interest of justice” in the transfer analysis is already

satisfied by applying the public- and private-interest factors. Second, even if the interest of

justice were an independent inquiry, the defendants’ generic, unsupported assertion of harm

to the public does not justify upending Congress’s default rule and transferring the case.

i. The interest-of-justice analysis is subsumed in the public- and

private-interest analysis.

The defendants claim that “it is well settled ‘that the interest of justice is a factor . . .

to be considered on its own.’” Dkt. No. 10 at 16. In support of their claim, the defendants

cite generally to a section of a legal treatise that itself cites hundreds of cases. Wright &

Miller, 15 Fed. Prac. & Proc. Juris. § 3854 (4th ed. 2022 update); see Dkt. No. 10 at 16

(stating that the relevant section of Federal Practice and Procedure “collect[s] cases”).

Once analyzed, however, the citation only confirms that the public-interest factors

outlined in Gilbert—and confirmed to apply in Volkswagen—mirror the interest-of-justice

analysis. Wright & Miller notes that the interest-of-justice analysis includes consideration of

“the desire to avoid multiplicity of litigation,” “docket conditions in the two courts,”

judicial familiarity with state law in diversity cases, “the local interest in having local

controversies resolved at home,” “the relative means of the parties,” and the “possibility of

prejudice against a party.” 15 Fed. Prac. & Proc. Juris. § 3854. Similarly, Volkswagen

provides that the public-interest factors are (1) administrative difficulties flowing from court

congestion; (2) the local interest in having localized interests decided at home; (3) the

familiarity of the forum with the governing law; and (4) the avoidance of unnecessary

problems of conflicts of laws. 545 F.3d at 315. Thus, “the ‘interest of justice’ analysis

referenced in Section 1404(a) is already encompassed in the public interest factors that

courts consider under existing precedent.” Walsh, 2023 WL 2663256, at *5 (collecting

cases); see also Terra Intern., Inc. v. Miss. Chem. Corp., 119 F.3d 688, 696 (8th Cir. 1997)

(stating that the interest-of-justice analysis “parallel[s] the factors that courts typically

analyze under section 1404(a)”).

The Court recognizes, of course, that “the eight private and public interest factors

‘are not necessarily exhaustive or exclusive.’” Walsh, 2023 WL 2663256, at *6 (quoting In re

Planned Parenthood, 52 F.4th at 630). But the Court does not find that an allegation of forum

shopping is sufficient on its own to merit transfer of this case, especially when the

defendants admit that any forum shopping will not affect this case’s outcome.

ii. The defendants’ argument rests on several flawed premises.

The defendants allege that Texas filed the case in the Lubbock Division to hand-

select its judge, “undermin[ing] public confidence in the administration of justice” (Dkt. No.

10 at 7), but the allegation rests on several flawed premises.

First, the Lubbock Division is not a single-judge division. Rather, Senior Judge

Samuel R. Cummings receives one-third of the civil docket, and the undersigned receives

the remaining two-thirds. Northern District of Texas, Special Order No. 3-330. Moreover,

Senior Judge Cummings is a very active Senior Judge. His 416 opened cases in 2022 were

the third-most of any judge in the district. See Northern District of Texas, Quarterly Civil

Case Assignment Report, at 1 (Oct. 13, 2022). And any litigant that suggests or assumes

that Senior Judge Cummings would treat his cases with anything but the utmost fairness

and impartiality is unfamiliar with his decades of service to the rule of law. Moreover, to

the extent the defendants are insinuating that Texas prefers to try cases before judges

appointed by presidents that share the Governor’s political party, the Court reminds the

defendants that the undersigned was nominated by two presidents from differing political

parties. Presidential Nominations Sent to the Senate, WHITEHOUSE.GOV (March 15, 2016),

https://perma.cc/X8SV-EMR4; President Donald J. Trump Announces Nineteenth Wave of

Judicial Nominees, WHITEHOUSE.GOV (Jan. 16, 2019), https://perma.cc/Z5RW-ZU3Q.

The undersigned was confirmed by a vote of 89–1. On the Nomination (Confirmation:

James Wesley Hendrix, of Texas, to be U.S. District Judge for the Northern District of

Texas), CONGRESS.GOV (July 30, 2019), https://perma.cc/57LM-BL5Z.

Second, putting aside that this is not a single-judge division, the defendants’ motion

speaks as though litigating in single-judge divisions is somehow a new phenomenon that

requires new remedies. But single-judge divisions are not new. Walsh, 2023 WL 2663256,

at *6 n.2 (“Single-judge divisions were long the norm in this Nation’s history.”) (citing

Erwin C. Surrency, Federal District Court Judges and the History of Their Courts, 40 F.R.D. 139,

150 (1967)). Plaintiffs were, of course, permitted to file in these divisions—“[t]he Judiciary

Act of 1789 permitted a plaintiff to file suit in a federal district court if the defendant was ‘an

inhabitant’ of that district.” TC Heartland LLC, 581 U.S. at 263–64; see also Texas, 2023 WL

2567480, at *6. And it is far from novel or surprising that plaintiffs bring suit in their

preferred forum. In fact, history is replete with examples of plaintiffs repeatedly litigating in

the same court. For example, the federal government chose to bring numerous Texas

public-school desegregation cases before the same judge in the Eastern District of Texas.3

Similarly, litigants consistently brought redistricting and voting-rights litigation before the

same judge in the Western District of Texas.4 Recently, the United States sued Texas

related to events occurring in the Western District of Texas’s Del Rio Division, but it chose

to bring suit over 200 miles away in the Austin Division. United States v. Abbott, 1:23-CV-

853 (W.D. Tex. July 24, 2023).

Third, the defendants’ allegation that keeping the case in this Court would erode

public trust is undermined by recent litigation, which makes clear that filing in the Lubbock

Division is no guarantee of a certain outcome. See, e.g., Nat’l Horsemen’s Benevolent and

Protective Ass’n v. Black, No. 5:21-CV-071, 2023 WL 3293298, at *25 (denying all relief to

Texas and private plaintiffs). Senior Judge Cummings’s record indicates the same. See

Texas v. EEOC, No. 5:13-CV-255-C, 2014 WL 4782992, at *1 (N.D. Tex. Aug. 20, 2014),

rev’d and remanded sub nom. Texas v. EEOC, 827 F.3d 372 (5th Cir. 2016), opinion withdrawn

on reh’g, 838 F.3d 511 (5th Cir. 2016), and vacated and remanded sub nom. Texas v. EEOC, 838

F.3d 511 (5th Cir. 2016) (granting a motion to dismiss Texas’s claims for lack of

3 See United States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285 (E.D. Tex. 1969); United States v. Texas,

321 F. Supp. 1043 (E.D. Tex. 1970); United States v. Texas, 342 F. Supp. 24 (E.D. Tex. 1971); United

States v. Texas, 356 F. Supp. 469 (E.D. Tex. 1972); Doe v. Plyler, 458 F. Supp. 569 (E.D. Tex. 1978);

United States v. Texas, 498 F. Supp. 1356 (E.D. Tex. 1980); United States v. Texas, 523 F. Supp. 703

(E.D. Tex. 1981); United States v. Texas, 506 F. Supp. 405 (E.D. Tex. 1981); United States v. Texas, 628

F. Supp. 304 (E.D. Tex. 1985); see also Frank R. Kemerer, William Wayne Justice: A Judicial

Biography 118 (University of Texas Press, 1st ed. 1991).

4 See League of United Latin Am. Citizens, Council No. 4836 v. Midland Indep. Sch. Dist., 648 F. Supp. 596

(W.D. Tex. 1986); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 884 F.2d 185 (5th

Cir. 1989); League of United Latin Am. Citizens Council No. 4434 v. Clements, 902 F.2d 293 (5th Cir.

1990), on reh’g, 914 F.2d 620 (5th Cir. 1990); League of United Latin Am. Citizens Council No. 4434 v.

Clements, 923 F.2d 365 (5th Cir. 1991); League of United Latin Am. Citizens, Council No. 4434 v.

Clements, 986 F.2d 728 (5th Cir. 1993), on reh’g, 999 F.2d 831 (5th Cir. 1993).

jurisdiction). Moreover, the Court has stayed judgment in high-profile cases to permit

appellate review. See Texas v. Becerra, No. 5:21-CV-300-H, 2023 WL 2754350, at *33 (N.D.

Tex. Mar. 31, 2023) (setting aside and vacating an interim final rule nationwide, but staying

the judgment).

Fourth, the defendants fault the plaintiff for “provid[ing] no explanation for its

decisions” to bring suit in this Court (Dkt. No. 10 at 12), but the defendants confuse the

relevant burdens. It is the plaintiff’s burden to demonstrate that venue is proper, which it

has done. As a result, the burden shifts to the defendants to show that the transferee venue

is clearly more convenient and in the interest of justice. In re Volkswagen II, 545 F.3d at 315.

Given that the defendants fail to meet this burden, “the plaintiff’s choice [of forum] should

be respected.” Id.

Finally, the defendants offer no reliable, workable standard to govern when transfer

is appropriate due to the public’s potential perception that forum shopping will lead to

unjust results—again, a perception that the defendants do not share here. And the only

standard offered cuts both ways. Even assuming the defendants’ unsupported assertion that

some in the public would perceive injustice if the case were to proceed here, it is no doubt

equally possible that others in the public would perceive injustice if the Court were to

transfer the case despite venue otherwise being proper under the rules. To end where the

Court began: Judges apply rules, not the parties’ preferences. This Court must proceed

based on the rules regardless of any potential misperceptions that may result.

In this case, as in every case the Court encounters, the Court will strive to deliver to

the parties and public a decision that is fair, impartial, and correct under the law. The Court

will resolve the parties’ dispute in a written order that—to the best of the Court’s ability—is

right on the law and facts, is sufficiently reasoned to allow for appellate review, and is

delivered as efficiently as possible. It would be a dereliction of the Court’s duty to send this

dispute to another judge to resolve when the case is already filed in a proper venue, and no

evidence indicates—let alone clearly shows—that another forum would be more convenient

or in the interest of justice.

3. Conclusion

Plaintiffs get to choose where to file their lawsuits from multiple permissible forums.

In suits against the federal government, Congress authorizes plaintiffs to bring suit in their

district of residence. Because Texas resides everywhere within its borders and is suing

federal officials, venue is proper in the Northern District of Texas. Although this case could

have been brought in Austin or Washington, D.C., after careful consideration of the public-

and private-interest factors, the Court finds that transfer under Section 1404(a) is

inappropriate. The defendants fail to identify evidence that cannot be digitized or specific

witnesses who will need to travel, so there is little inconvenience to the parties and witnesses

by litigating the case here. And given that the defendants’ interest-of-justice argument rests

on flawed premises—and is contradicted by their own admission that this Court can fairly

and impartially resolve this case—they fail to justify deviating from the default venue rules.

Thus, the Court denies the motion to transfer venue.

So ordered on July 28, 2023.

Loss (UO. AeAy

J ES WESLEY HENDRIX

UNITED STATES DISTRICT JUDGE

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