Amicus Curiae Brief — United States, et al., Petitioners v. Texas, et al.

Supreme Court briefSep 19, 2022

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No. 22-58

IN THE

Supreme Court of the United States

______________

UNITED STATES OF AMERICA, ET AL.,

Petitioners,

STATE OF TEXAS AND STATE OF LOUISIANA,

Respondents.

______________

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

______________

BRIEF OF PROFESSOR STEPHEN I. VLADECK

AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

______________

Max Wolson

NATIONAL IMMIGRATION

LAW CENTER

P.O. Box 34573

Washington, DC 20043

(202) 216-0261

wolson@nilc.org

Lindsay C. Harrison

Counsel of Record

Samuel S. Ungar

JENNER & BLOCK LLP

1099 New York Ave. NW,

Suite 900

Washington, DC 20001

(202) 639-6000

lharrison@jenner.com

Lisa S. Graybill

NATIONAL IMMIGRATION

LAW CENTER

P.O. Box 40476

Austin, TX 78704

(213) 493-6503

graybill@nilc.org

Counsel for Amicus Curiae Professor Stephen I. Vladeck

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................... iii

INTERESTS OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT ........................................ 2

ARGUMENT ...................................................................... 4

II.

Texas Has Brought This Action As Part

Of An Intentional Strategy Of Shopping

For Its Preferred Judges To Enjoin

Federal Action Nationwide................................... 4

Texas Abuses The Orders

Assigning Divisional Casework

To Virtually Ensure Judges

Appointed During Democratic

Presidencies Do Not Hear

Texas’s Cases. ............................................. 7

Readily

Apparent

Alternative

Explanation

Explains Texas’s Conduct. ...................... 10

Texas’s Judge Shopping Cannot

Be Justified By Comparing

Texas’s Conduct To That Of

Other States. ............................................. 16

The Court Should Consider Texas’s

Judge Shopping In Evaluating Texas’s

Entitlement To Seek Equitable Relief

Against The United States. ................................ 19

III.

The Court Should Consider Texas’s

Judge Shopping In Evaluating Whether

Equitable Relief Is Appropriate. ....................... 23

CONCLUSION ................................................................ 26

Appendix A: List of Texas Challenges to

Federal Policy in Texas District Courts ....................... 1a

Appendix B: Texas Federal District Court

Division-of-Work Orders in Effect During

Relevant Timeframes ...................................................... 7a

Appendix C: List of Democratic Challenges to

Trump Administration Policies in Federal

District Courts Presided Over by Judges

Appointed

During

Republican

Administrations .............................................................. 12a

iii

TABLE OF AUTHORITIES

CASES

Arizona v. Biden, 31 F.4th 469 (6th Cir.

2022) .......................................................................... 24

Arizona v. Biden, 40 F.4th 375 (6th Cir.

2022) ................................................................ 9, 21, 22

Atlantic Marine Construction Co. v. United

States District Court for Western

District of Texas, 571 U.S. 49 (2013) .................... 25

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) .................................................. 19

Ellsworth v. Schneider National Carriers,

Inc., No. 20-cv-1699, 2021 WL 3417641

(C.D. Cal. June 14, 2021) ........................................ 25

Ferens v. John Deere Co., 494 U.S. 516

(1990) ........................................................................ 25

Harsman v. Cincinnati Children’s Hospital

Medical Center, No. 21-cv-597, 2021 WL

4504245 (S.D. Ohio Sept. 30, 2021) ....................... 24

Lexmark International, Inc. v. Static

Control Components, Inc., 572 U.S. 118

(2014) ........................................................................ 21

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) ............................................................ 19, 20, 21

Maryland v. Department of Education, 474

F. Supp. 3d 13 (D.D.C. 2020) ................................. 22

Massachusetts v. Mellon, 262 U.S. 447

(1923) .................................................................. 20, 21

Missouri v. Biden, No. 21-cv-420 (S.D. Tex.

filed Oct. 21, 2021), originally filed as

No. 6:21-cv-52 (S.D. Tex.) .................................. 9, 14

Paxton v. Richardson, No. 22-cv-143 (N.D.

Tex. filed Feb. 24, 2022) ......................................... 10

Raines v. Byrd, 521 U.S. 811 (1997) ........................... 19

Ramirez v. Collier, 142 S. Ct. 1264 (2022)................. 23

Texas General Land Office v. Biden, No. 21cv-272, 2021 WL 5588160 (S.D. Tex. Nov.

29, 2021) .................................................................... 14

Texas v. United States, No. 21-cv-3 (S.D.

Tex. filed Jan. 22, 2021) ............................................ 9

Texas v. United States, No. 21-cv-16 (S.D.

Tex. filed Apr. 6, 2021) ............................................. 9

Texas v. Biden, No. 21-cv-67 (N.D. Tex. filed

Apr. 13, 2021) ........................................................... 11

Texas v. Biden, No. 21-cv-579 (N.D. Tex.

filed Apr. 22, 2021) .................................................. 10

Texas v. Biden, No. 22-cv-4 (S.D. Tex. filed

Feb. 10, 2022) ............................................................. 9

Texas v. Biden, No. 22-cv-780 (N.D. Tex.

filed Jan. 28, 2022) ................................................... 13

Texas v. Walensky, No. 22-cv-13 (S.D. Tex.

filed Apr. 22, 2022) .................................................... 9

Valley Forge Christian College v.

Americans United for Separation of

Church & State, Inc., 454 U.S. 464

(1982) ............................................................ 20, 21, 23

Van Duyne v. CDC, No. 22-cv-122 (N.D.

Tex. filed Feb. 16, 2022) ......................................... 10

STATUTES

28 U.S.C. § 124(d)............................................................ 5

28 U.S.C. § 137(a) ............................................................ 5

28 U.S.C. § 1391(e)(1)(B)................................................ 5

28 U.S.C. § 1391(e)(1)(C)................................................ 5

OTHER AUTHORITIES

Amended Civil Cover Sheet, Texas v.

Biden, No. 22-cv-14 (N.D. Tex. Jan. 31,

2022), ECF No. 3 ..................................................... 14

Amended Order Assigning the Business of

the Court (W.D. Tex. May 10, 2021),

https://bit.ly/3IFt5Mg ...................................... 10, 12

J. Jonas Anderson & Paul R. Gugliuzza,

Federal Judge Seeks Patent Cases, 71

Duke L.J. 419 (2021) ............................................... 24

Civil Cover Sheet, Texas v. Biden, Case No.

22-cv-14 (N.D. Tex. Jan. 28, 2022), ECF

No. 1-1 ...................................................................... 13

Complaint, Texas v. Becerra, No. 22-cv-185H (N.D. Tex. July 14, 2022), ECF No. 1 ........ 15, 16

Explanation of the Decision to Terminate

the Migrant Protection Protocols, Dep’t

of Homeland Sec. (Oct. 29, 2021),

https://bit.ly/3c8Rqh0 ............................................. 12

First Amended Complaint, Texas v. United

States, No. 21-cv-16 (S.D. Tex. Oct. 22,

2021), ECF No. 109 ................................................... 9

General Order No. 2021-10 (S.D. Tex. May

27, 2021), https://www.txs.uscourts.gov/

file/6043/download?token=RxHEyGIv ............... 15

General Order No. 2022-13 (S.D. Tex. June

30, 2022), https://www.txs.uscourts.gov/

district/genord ................................................... 12, 13

Taylor Goldenstein, Paxton’s Legal Tactic:

Find the Right Judge, Houston Chron.,

2022 WLNR 13068986 (Apr. 23, 2022) ................. 16

Judges, United States District Court for the

Northern

District

California,

https://www.cand.uscourts.gov/judges/

(last visited Sept. 16, 2022) .................................... 17

Judges of the Southern District of New

York, https://www.nysd.uscourts.gov/

judges (last visited Sept. 16, 2022) ..................17-18

Camilo Montoya-Galvez, Republican States’

Lawsuits

Derail

Biden’s

Major

Immigration Policy Changes, CBS

News (July 22, 2022), https://www.cbs

news.com/news/immigration-biden-repu

blican-states-lawsuits/............................................ 16

Multistate Litigation Database, https://at

torneysgeneral.org/list-of-lawsuits-19

80-present/ (last visited Sept. 16, 2022) ............... 17

N.D. Cal. Civ. L.R. 3-2(d) ............................................ 17

vii

Order, Texas v. Biden, No. 2:22-cv-14 (N.D.

Tex. Mar. 29, 2022), ECF No. 28 .......................... 14

Jeffrey S. Passel & D’Vera Cohn, 20 Metro

Areas are Home to Six-in-Ten

Unauthorized Immigrants in U.S., Pew

Rsch. Ctr. (Mar. 11, 2019), https://pew

rsr.ch/3bX0Kob ....................................................... 12

Population Estimates of Texas Cities 20102017, Arranged in Descending Order,

Texas State Library & Archives

Comm’n (rel. May 2018), https://www.

tsl.texas.gov/ref/abouttx/popcity6.html .............. 10

Chief Justice John G. Roberts, Jr., 2021

Year-End Report on the Federal

Judiciary (Dec. 2021), https://bit.ly/

3IFzWoY ............................................................ 23, 24

Special Order 3-310 (N.D. Tex. Nov. 29,

2019), https://www.txnd.uscourts.gov/

sites/default/files/orders/03-310.pdf ....................... 6

Special Order 3-327 (N.D. Tex. July 3, 2019),

https://www.txnd.uscourts.gov/sites/

default/files/orders/3-327.pdf ............................ 6, 13

Special Order No. 3-330 (N.D. Tex. Aug. 9,

2019), https://www.txnd.uscourts.gov/

sites/default/files/orders/03-330.pdf ................. 6, 15

Special Order No. 3-337 (N.D. Tex. May 25,

2020), https://www.txnd.uscourts.gov/

sites/default/files/orders/SO3-337.pdf .................. 11

viii

Special Order No. 3-340 (N.D. Tex. June 21,

2021), https://www.txnd.uscourts.gov/

sites/default/files/orders/3-340.pdf ............. 6, 11, 13

INTERESTS OF AMICUS CURIAE1

Amicus curiae Stephen I. Vladeck holds the

Charles Alan Wright Chair in Federal Courts at the

University of Texas at Austin School of Law. He is the

author of dozens of academic and popular articles about

how federal courts doctrines shape the behavior of

parties in challenges to government policies, relevant

examples of which include The Demise of Merits-Based

Adjudication in Post-9/11 National Security Litigation,

64 Drake L. Rev. 1035 (2016); Pendent Appellate

Bootstrapping, 16 Green Bag 2d 199 (2013); and Texas

Judge’s Covid Mandate Ruling Exposes Federal ‘JudgeShopping’ Problem, MSNBC Daily, Jan. 11, 2022.

Professor Vladeck has also written extensively about

the recent uptick in emergency appellate litigation

arising from challenges to government policies,

including his forthcoming book, The Shadow Docket

(Basic Books 2023); The Supreme Court 2018 Term —

Essay: The Solicitor General and the Shadow Docket,

133 Harv. L. Rev. 123 (2019); and F.D.R.’s CourtPacking Plan Had Two Parts. We Need to Bring Back

the Second, N.Y. Times, Jan. 7, 2022. And Professor

Vladeck has testified before Congress on these topics on

multiple occasions, most recently before a September

2021 hearing of the Senate Judiciary Committee.

Professor Vladeck has studied the federal courts

for more than fifteen years. Most recently, he has

No counsel for a party authored this brief in whole or in part, and

no person other than amicus, its members, or its counsel made a

monetary contribution to fund the brief. All parties have consented

to the filing of this brief.

studied the ways courts may be abused by litigants to

promote and facilitate partisan political agendas. This

case illustrates this phenomenon. Professor Vladeck is

interested in providing data to the Court to aid its

understanding of how judge shopping occurs, impairs

the public interest, and if unchecked, can damage the

credibility of the federal judiciary as a whole.

SUMMARY OF ARGUMENT

Relying upon a boundless theory of standing, the

State of Texas has spent the duration of the current

presidency litigating against virtually any policy with

which Texas’s Governor or Attorney General disagree.

Texas has been particularly active against its political

opponent’s

immigration

policies,

wielding

interpretation of Article III that allows Texas to claim a

right to sue over all immigration guidance, policies, or

rules in contexts in which Texas is no differently

situated from any of the other 49 states.

Texas’s lawsuits, which are little more than

generalized grievances against a political opponent, do

great harm on their own to the courts’ Article IIImandated role. But Texas’s litigation conduct

considerably increases the damage. Texas has deployed

its approach to standing to engage in a deliberate

strategy of judge shopping, a strategy that undermines

core principles of Article III. Specifically, Texas has

abused the federal courts by intentionally, repeatedly,

and solely filing its Texas-based lawsuits against the

federal government in district court divisions staffed

entirely, or almost entirely, by judges appointed during

presidencies of the Texas Governor’s and Attorney

General’s party. In many of these cases, Texas has had a

95% (or greater) chance of drawing a specific judge.

Those courts have repeatedly issued nationwide

injunctions against a growing array of actions and

initiatives undertaken by the Biden Administration.

This case represents a low-water mark in that

effort—a judge Texas was guaranteed to draw based

upon its choice of division who enjoined the executive’s

most basic exercise of statutory and constitutional

enforcement discretion in the area of immigration law.

The facts and data underlying Texas’s recent litigation

demonstrate that this is indeed a concerted tactic—not

a coincidence.

Texas’s judge shopping undermines the district

court’s order in this case with respect to both Texas’s

standing and Texas’s entitlement to preliminary

injunctive relief. As to standing, Texas’s transparent

judge-shopping tactics demonstrate that it is engaged in

nothing more than a campaign of generalized grievances

against a political opponent—long an improper basis for

invoking federal jurisdiction. As to the injunction

factors, Texas’s judge shopping grossly disserves the

public interest. If litigants like Texas are regularly able

to obtain nationwide injunctions from judges whom they

have hand-picked to hear their complaints, it should go

without saying that public faith in the independence of

the federal judiciary will be undermined.

ARGUMENT

Texas Has Brought This Action As Part Of An

Intentional Strategy Of Shopping For Its

Preferred Judges To Enjoin Federal Action

Nationwide.

Texas has filed at least 28 lawsuits against the

Biden Administration. Among those 28 cases, the Texas

Attorney General appears to have filed 20 cases in the

Texas district courts and on behalf of Texas, the

Governor, or the Attorney General himself.2 Of those 20

lawsuits, judges appointed during Republican

presidencies are presiding in all but one.3 This situation

is no coincidence—Texas has intentionally filed its cases

in a manner designed to all-but foreclose having to

appear before judges appointed during Democratic

presidencies, including by not filing a single case where

the Texas state government, including the Office of the

Attorney General, is actually located—the Austin

Division of the Western District of Texas.

There are 677 federal district judges assigned

to 94 district courts across the country. Between full2

Attached to this filing as an Appendix is a chart identifying: the 20

cases, the division and district in which Texas initially filed the

lawsuit, the judge presiding over the lawsuit, the party of the

President at the time of the judge’s appointment, the number of

judges in the division, and the percentage of the division’s new civil

cases assigned to judges appointed during Republican presidencies.

The Appendix also includes citations to each of the districts’ division

of business orders in place at the times Texas filed its lawsuits.

See id.

state districts and larger multi-district states, some of

those districts are physically enormous. The Western

District of Texas, for example, runs from El Paso to east

of Austin and down to the Mexican border—more than

92,000 square miles. Thus, Congress has further

subdivided some district courts into as many as seven

smaller “divisions.” See, e.g., 28 U.S.C. § 124(d) (noting

that the Western District of Texas “comprises seven

divisions”). And, critically, the district courts are free to

allocate the work within and across divisions as they see

fit. See 28 U.S.C. § 137(a).

In a suit against the United States, Congress has

provided that venue lies, inter alia, in a district in which

“a substantial part of the events or omissions giving rise

to the claim occurred” or in which “the plaintiff resides

if no real property is involved in the action.” Id.

§ 1391(e)(1)(B)-(C). But the Code does not establish

where within a subdivided district an action must be

brought, leaving the determination instead to “the rules

and orders of the court.” Id. § 137(a) (delegating

authority to divide the business of the district court).

Each of Texas’s four federal district courts is

divided into divisions named for the city in which the

divisional courthouse is located. The Texas district

courts divide their respective business by designating

which of the district’s judges receive the cases in each

division. Within multiple-judge divisions, cases are still

subject to random assignment, with a standing order

dictating at what proportion the random assignment

should send a case to each of the division’s judges. Thus,

for example, in the Northern District of Texas, civil

cases filed in the Dallas Division are randomly assigned

to 11 different district judges at percentages ranging

from five to ten percent of new filings per judge.4

In other divisions, however, civil cases are

assigned to only one, two, or three judges. Of the seven

divisions in the Northern District of Texas, for example,

five divisions have one judge hearing all or most cases.5

Thus, while the divisional approach can ensure random

assignment in theory, it does not necessarily do so in

practice. In its recent lawsuits challenging federal

policies, Texas has consistently exploited this situation,

filing exclusively in those small divisions where it can

all-but guarantee which judge will hear its case. This

case exemplifies this practice of Texas hand-selecting its

judges.

Special Order No. 3-340 (N.D. Tex. June 21, 2021), https://www.

txnd.uscourts.gov/sites/default/files/orders/3-340.pdf (addressing

Dallas Division).

See Special Order No. 3-330 (N.D. Tex. Aug. 9, 2019), https://www.

txnd.uscourts.gov/sites/default/files/orders/03-330.pdf (assigning

64%, 67%, and 67% of civil cases to a single judge in Lubbock,

Abilene, and San Angelo Divisions, respectively); Special Order 3327 (N.D. Tex. July 3, 2019), https://www.txnd.uscourts.gov/sites/

default/files/orders/3-327.pdf (assigning 95% of Amarillo Division

civil cases to one judge), Special Order No. 3-310 (N.D. Tex. Nov.

29,

2016),

https://www.txnd.uscourts.gov/sites/default/files/

orders/03-310.pdf (assigning 85% of cases in Wichita Falls Division

to single judge).

A. Texas Abuses The Orders Assigning

Divisional Casework To Virtually Ensure

Judges Appointed During Democratic

Presidencies Do Not Hear Texas’s Cases.

Texas is unwilling to bring its lawsuits in

locations where they may be heard by judges appointed

by Democratic presidents. Instead, Texas has

exclusively filed suits challenging federal policies,

including this one, in divisions where all or nearly all

cases are assigned to judges appointed by Republican

presidents. In fact, almost without exception, Texas has

filed its cases in districts presided over entirely or

almost entirely by judges appointed by President

Trump.

First, Texas has litigated only in divisions with

three or fewer judges. That is, of the 20 lawsuits filed by

the Texas Attorney General in Texas’s federal courts

against the federal government since President Biden’s

inauguration, not one was filed in a district where more

than three judges preside over new civil cases. And

Texas filed just five of these 20 cases in courthouses with

more than two judges.

This is more than forum shopping, it is thinly

veiled judge shopping. Each of the 20 cases was filed in

a division that assigns all or virtually all cases to judges

appointed during Republican presidencies. Twelve of

the 20 cases were filed in divisions in which judges

appointed during Republican presidencies preside over

100% of newly filed civil cases. The remaining eight

cases were filed in divisions where judges appointed

during Republican presidencies preside over at least

95% of new civil cases. Put another way, Texas has filed

20 lawsuits against the federal government without ever

risking more than a five-percent chance of having the

matter initially assigned to a judge appointed by a

Democratic president.

It would be one thing if that pattern were

unavoidable, e.g., if every single judge in a single district

court, and not just a single division, had been appointed

by presidents of the same party. But that’s not true of

any of the district courts in Texas; and it’s not true of any

of the larger divisions within those district courts. Texas

is choosing to file cases hundreds of miles away from the

state capital, typically with no explanation of why a

challenge to immigration policy, for example, should be

heard anywhere other than either the state capital or in

courthouses close to the international border.

This case is a perfect example of Texas shopping

for judges. The United States District Court for the

Southern District of Texas spans forty-three counties

and includes the cities of Houston, Corpus Christi, and

Laredo. Texas filed this particular suit in the Victoria

Division of the Southern District of Texas. Victoria is

neither Texas’s state capital nor is it on the border, nor

does it have any particular connection to the Guidance

adopted by Secretary Mayorkas in September 2021 at

issue in this case. Texas’s Amended Complaint in the

case does not contain a single allegation tying Victoria to

its lawsuit, claiming only that venue lies “because the

State of Texas is a resident of this judicial district, and a

substantial part of the events or omissions giving rise to

Plaintiffs’ claims occurred in this District.” That

allegation would apply with equal force in each of the 28

district court divisions in Texas.6

So why did Texas file this lawsuit in Victoria?

Although the Southern District of Texas has 19

authorized judgeships—the fifth-most of any district in

the country—the Victoria Division has exactly one

district judge to whom new civil cases are assigned:

Judge Drew B. Tipton, appointed in 2020 by President

Trump. This lawsuit is one of five that Texas has filed

against the Biden Administration in the Victoria

Division which was then assigned to Judge Tipton.7 By

filing this case in Victoria, Texas was able to select not

just the location for its lawsuit, but the specific federal

judge who would decide this case: a judge Texas likely

believed would enjoin the Guidance—and who in fact did

so, even as another court has rejected similar challenges.

See Arizona v. Biden, 40 F.4th 375 (6th Cir. 2022)

(reversing injunction against the same Guidance at issue

in this case). In other words, when Texas filed this

First Am. Compl. ¶ 21, Texas v. United States, No. 21-cv-16 (S.D.

Tex. Oct. 22, 2021), ECF No. 109. The Complaint also asserts that

venue is proper under Section VIII of the Texas Agreement, which

again does not mention Victoria or connect Victoria to Texas’s

claims. Id.

Texas v. United States, No. 21-cv-3 (S.D. Tex. filed Jan. 22, 2021)

(Tipton, J., presiding); Texas v. United States, No. 21-cv-16 (S.D.

Tex. filed Apr. 6, 2021) (Tipton, J., presiding); Missouri v. Biden,

No. 21-cv-420 (S.D. Tex. filed Oct. 21, 2021) (Alvarez, J., presiding)

originally filed as No. 21-cv-52 (S.D. Tex.) (Tipton, J., presiding);

Texas v. Biden, No. 22-cv-4 (S.D. Tex. filed Feb. 10, 2022) (Tipton,

J., presiding); Texas v. Walensky, No. 22-cv-13 (S.D. Tex. filed Apr.

22, 2022) (Tipton, J., presiding).

lawsuit, it had a 100% chance of drawing Judge Tipton—

a fact it knew when it filed.

B. No

Readily

Apparent

Alternative

Explanation Explains Texas’s Conduct.

Consideration of where Texas has not filed its

lawsuits bolsters the conclusion that Texas is

deliberately judge shopping. First, despite being both

the seat of its state government and the location of the

Attorney General’s Office, Texas has not filed any of its

lawsuits against the Biden Administration in Austin.

This is no coincidence: Half of new cases filed in Austin

are assigned to a judge appointed by President Obama.8

Second, Texas is not litigating based on the

location of most of its residents. Texas has filed only

three of its lawsuits against the federal government in a

division serving any of Texas’s ten largest cities.9 In

See Amended Order Assigning the Business of the Court, Items

IV(a) and IX(a) (W.D. Tex. May 10, 2021), https://bit.ly/3IFt5Mg

(assigning 50% of civil docket to Judge Lee Yeakel, who was

appointed during a Republican administration, and the remaining

50% to Judge Robert Pitman, who was appointed during a

Democratic administration).

See Texas v. Biden, No. 21-cv-579 (N.D. Tex. filed Apr. 22, 2021)

(filed in Fort Worth Division); Van Duyne v. CDC, No. 22-cv-122

(N.D. Tex. filed Feb. 16, 2022) (same); Paxton v. Richardson, No.

22-cv-143 (N.D. Tex. filed Feb. 24, 2022) (same). As of 2017, Texas’s

ten largest cities were: Houston, San Antonio, Dallas, Austin, Fort

Worth, El Paso, Arlington, Corpus Christi, Plano, and Laredo.

Population Estimates of Texas Cities, 2010-2017, Arranged in

Descending Order, Texas State Library & Archives Comm’n (rel.

May 2018), https://www.tsl.texas.gov/ref/abouttx/popcity6.html. Of

those three cases, Texas filed in the Fort Worth division

of the Northern District of Texas, a three-judge division

in which no judge appointed during a Democratic

administration is regularly assigned civil cases.10 The

Fort Worth Division courthouse is only 12 miles away

from the Dallas Division courthouse, where 11 judges

appointed by a mix of Democratic and Republican

presidents receive civil case assignments.11 Texas has

not filed a single lawsuit in the Dallas Division.

Third, proximity to the border also does not

explain Texas’s division selections for its eight

immigration-related Texas-based lawsuits. Texas did

not originally file any of its immigration-related suits

within 150 miles of the border. Of particular note is

Texas’s suit challenging the Biden Administration’s

efforts to rescind the Migrant Protection Protocols

(“MPP”).12 Texas filed that case in Amarillo, over 400

miles from the nearest segment of the United StatesMexico border. Texas filed in Amarillo even though the

MPP program proceedings actually took place in three

Texas border cities with federal courthouses (El Paso,

those cities, Houston, San Antonio, Dallas, Austin, Fort Worth, El

Paso, Corpus Christi, Laredo, and Plano have federal court houses.

The Fort Worth courthouse serves Arlington (Tarrant County).

Special Order No. 3-337 (N.D. Tex. May 25, 2020), https://www.tx

nd.uscourts.gov/sites/default/files/orders/SO3-337.pdf (establishing

division of work for Fort Worth Division).

Special Order No. 3-340, supra note 4 (addressing Dallas

Division).

See generally Texas v. Biden, No. 21-cv-67 (N.D. Tex. filed Apr.

13, 2021).

Laredo, and Brownsville).13 Texas passed over those

jurisdictions to file in Amarillo—the northernmost

federal court in the state. And, again, that is no

coincidence. At present, 42%,14 100%,15 and 50%16 of cases

filed in the El Paso, Laredo, and Brownsville divisions,

respectively, are assigned to judges appointed during

Democratic administrations.

Fourth, Texas’s filing decisions in immigration

cases cannot be explained based on the location of

undocumented people. Undocumented people in Texas

tend to live overwhelmingly in Texas’s largest cities. A

2017 Pew study showed that the majority of this

country’s 11.1 million undocumented persons live in

metropolitan areas, with about 500,000 in Houston and

475,000 in Dallas-Fort Worth.17 Again, Texas has not

See Explanation of the Decision to Terminate the Migrant

Protection Protocols, Dep’t of Homeland Sec. at 6 n.18 (Oct. 29,

2021), https://bit.ly/3c8Rqh0 (identifying El Paso, Laredo, and

Brownsville as locations Texas uses for MPP hearings).

See Amended Order Assigning the Business of the Court, supra

note 8, Items VIII(a), XV(a) (assigning 29% of El Paso cases to

Judge David Guaderrama and 13% of El Paso cases to Judge David

Briones, both appointed during Democratic presidencies).

See, e.g., General Order No. 2022-13 at 2-3 (S.D. Tex. June 30,

2022), https://www.txs.uscourts.gov/district/genord (continuing to

provide in most-recent work order that Laredo cases be divided

50/50 between Judges Saldaña and Marmolejo, both appointed

during Democratic presidencies).

Id. at 3 (assigning 50% of Brownsville cases to Judge Rolando

Olvera, who was appointed during a Democratic presidency).

Jeffrey S. Passel & D’Vera Cohn, 20 Metro Areas are Home to

Six-in-Ten Unauthorized Immigrants in U.S., Pew Rsch. Ctr.

(Mar. 11, 2019), https://pewrsr.ch/3bX0Kob.

filed a single lawsuit in Dallas or in Houston, where 1/5

and 1/3 of new civil cases, respectively, are assigned to

judges appointed during Democratic administrations.18

Finally, two cases, in particular, provide

substantial additional support for the conclusion that the

only explanation for Texas’s conduct is judge shopping.

In the first, Texas filed a lawsuit against the

federal government concerning the Central American

Minor Refugee and Parole Program. Texas v. Biden, No.

22-cv-780 (N.D. Tex. filed Jan. 28, 2022) (originally

numbered 22-cv-14). Texas originally filed the lawsuit in

the Amarillo Division. When Texas initially filed the

suit, Judge Matthew Kacsmaryk, an appointee of

President Trump, received 95% of new civil cases in

Amarillo.19 The court assigns the remaining five percent

of cases to Chief Judge Barbara Lynn, an appointee of

President Clinton who keeps her chambers in Dallas.20

Initially, Texas did not identify any related cases

on its civil cover sheet. See Civil Cover Sheet at 1, Texas

v. Biden, No. 22-cv-14 (N.D. Tex. Jan. 28, 2022), ECF No.

1-1 (providing no information in Section VIII. “Related

Case(s) If Any”). Against the 1-in-20 odds, the court

randomly assigned the matter to Chief Judge Lynn.

See Special Order No. 3-340, supra note 4 (addressing Dallas

Division); see also General Order No. 2022-13, supra note 15

(assigning cases to Southern District divisions, including Houston

Division).

See Special Order 3-327, supra note 5 (addressing Amarillo

Division).

Id.

Apparently dissatisfied with this assignment, Texas

filed an amended cover sheet only after its new case had

been assigned, now contending that the matter was

related to a case already pending before Judge

Kacsmaryk. See Am. Civil Cover Sheet at 1, Texas v.

Biden, No. 22-cv-14 (N.D. Tex. Jan. 31, 2022), ECF No.

3 (identifying as related Northern District of Texas case

No. 21-cv-67). Chief Judge Lynn declined to transfer the

matter. Order, Texas v. Biden, No. 22-cv-14 (N.D. Tex.

Mar. 29, 2022), ECF No. 28.

In the second, Texas challenged the Biden

Administration’s decision to walk back its predecessor’s

effort to build a border wall. Missouri v. Biden, No. 21cv-420 (S.D. Tex. filed Oct. 21, 2021), Prior to Texas’s

filing, the Texas General Land Office, which is not

represented by the Attorney General’s office, filed a

lawsuit in McAllen—the division serving a portion of the

land on which the border wall would actually have been

built (“the GLO lawsuit”). The court randomly assigned

the GLO lawsuit to Judge Micaela Alvarez, appointed in

2004 by President George W. Bush.

Several months after the GLO lawsuit was filed,

Texas, joined by Missouri, filed Missouri v. Biden. Texas

sued “functionally identical” defendants, seeking

“markedly similar” relief, and raising “fundamental

questions [that were] the same . . . .” Tex. Gen. Land Off.

v. Biden, No. 21-cv-272, 2021 WL 5588160, at *3-4 (S.D.

Tex. Nov. 29, 2021) (granting motion to consolidate

earlier filed border wall lawsuit with Texas’s subsequent

lawsuit). Despite these overlaps, Texas filed the

Missouri case in the Victoria Division rather than the

McAllen Division. Judge Tipton, the district judge in the

instant case, receives 100% of civil cases filed in

Victoria.21 And yet, unlike McAllen, the Victoria

Division does not encompass land purportedly impacted

by the border wall decision. Worse still, Texas’s civil

cover sheet made no mention of any related cases,

including the GLO lawsuit filed by another agency of

Texas’s own state government. Clearly, Texas is picking

and choosing where and how it files to capitalize upon

this phenomenon.

Nor does Texas show signs of correcting its

conduct. Before this Court granted certiorari, amicus

filed a brief supporting Petitioner’s motion to stay the

district court’s injunction, detailing the harm that

Texas’s judge shopping does to the public interest.

Despite having just had its judge shopping highlighted,

Texas responded the next day by filing yet another suit

against the Biden Administration in a division in which

it was virtually certain to, and did, obtain a Republicanappointed judge.22 Texas did so offering no factual basis

General Order No. 2021-10 at 4-5 (S.D. Tex. May 27, 2021),

https://www.txs.uscourts.gov/file/6043/download?token=RxHEyG

Iv (providing, in order applicable in late 2021, that Judge Tipton

“receives all civil cases filed in the Victoria Division, except

government collection cases and 28 U.S.C. § 2255 cases assigned to

other judges . . . ”).

See generally Compl., Texas v. Becerra, No. 22-cv-185 (N.D. Tex.

July 14, 2022), ECF No. 1 (challenging abortion-access policy in

Lubbock Division and obtaining assignment to Judge Wesley

Hendrix, a 2019 appointee of President Trump); see also Special

Order No. 3-330, supra note 5 (assigning 64% of Lubbock civil cases

to Judge Hendrix, 33% of civil cases to Senior Judge Sam

for selecting the division in which it filed.23 Simply put,

there appears to be little reason for Texas to alter its

manipulative litigation behavior so long as it comes with

no consequences.

C. Texas’s Judge Shopping Cannot Be Justified

By Comparing Texas’s Conduct To That Of

Other States.

Despite the temptation to argue that Texas’s

judge shopping is justified (or, at least, unexceptional)

because Democratic state officials engaged in similar

conduct

during

Republican

presidential

administrations, that turns out not to be accurate. And

even if it were true (and it isn’t), it would not justify

Texas’s conduct.

While

Democratic

state

attorneys

general

Cummings, a 1987 appointee of President Reagan, and 3% of civil

cases to Chief Judge Lynn).

See Compl. ¶ 10, Becerra, supra note 22 (justifying venue solely

by reference to 28 U.S.C. § 1391).

See generally Camilo Montoya-Galvez, Republican States’

Lawsuits Derail Biden’s Major Immigration Policy Changes, CBS

News (July 22, 2022), https://www.cbsnews.com/news/immigrationbiden-republican-states-lawsuits/ (“Brnovich, the Arizona attorney

general, said it’s hypocritical for Democratic officials to criticize the

Republican lawsuits against the Biden administration, citing the

dozens of legal challenges that Democratic-controlled states filed

against the Trump administration.”). See also Taylor Goldenstein,

Paxton’s Legal Tactic: Find The Right Judge, Houston Chron., 2022

WLNR 13068986 (Apr. 23, 2022) (quoting supporter of Texas’s

strategy claiming Texas’s judge shopping is a “long-standing,

across-the-board tactic”).

brought and otherwise participated in numerous

lawsuits against Trump Administration policies, they

did not regularly file their lawsuits in one-, two-, or

three-judge divisions. For example, the most common

courts in which Democratic-led states filed lawsuits

were, by far, the San Francisco and Oakland courthouses

of the Northern District of California and in the

Manhattan courthouse of the Southern District of New

York.25 Eighteen Article III judges sit in the San

Francisco and Oakland courthouses,26 while 37 currently

sit in Manhattan.27

The most exhaustive compilation of lawsuits by state attorneys

general against the federal government appears to be a website

maintained by Dr. Paul Nolette, an Associate Professor of Political

Science at Marquette University. See generally Multistate

Litigation Database, https://attorneysgeneral.org/list-of-lawsuits1980-present/ (last visited Sept. 16, 2022). Dr. Nolette’s site

identifies 88 lawsuits filed by Democratic state attorneys general

against the Trump Administration and originating in the district

courts. Twenty-two of those cases were initially filed in the

Northern District of California and 25 were initially filed in the

Southern District of New York.

See Judges, United States District Court for the Northern

District of California, https://www.cand.uscourts.gov/judges/ (last

visited Sept. 16, 2022) (listing 18 Article III judges as serving in

either the San Francisco or the Oakland courthouses as of

September 15, 2022, which number would vary depending on

vacancies at the time of a given case filing). See also N.D. Cal. Civ.

L.R. 3-2(d) (“[A]ll civil actions that arise in the counties of Alameda,

Contra Costa, Marin, Napa, San Francisco, San Mateo or Sonoma

shall be assigned to the San Francisco Division or the Oakland

Division.”).

See

Judges

the

Southern

District

New

York,

The case assignments further bear out the

difference between Texas’s judge shopping and the

Democratic-led lawsuits: 20 of the states’ 85 district

court-originating

suits

against

the

Trump

Administration were initially assigned to judges

appointed by Republican presidents.28 That roughly 1-in4 rate is incomparable to Texas’s current 1-in-20, with

Texas having tried unsuccessfully to have the one

reassigned.

What’s more, even when Democratic state

attorneys general had decent odds of having a case

randomly assigned to a district judge appointed by a

Democratic president, none of those cases looked like

this one—in which the state knew in advance that it had

a 100% chance of drawing a specific judge. Simply put,

Texas is an outlier when it comes to filing suit based not

on where it has allegedly sustained injury or where its

Attorney General is located, but rather where it can

predict with near-certainty which judge will decide its

case.

Furthermore, the political affiliation of a state’s

attorney general is and should be irrelevant to this

Court’s analysis of judge shopping. If Democratic state

attorneys general engage in the same type of blatant

judge shopping as Texas (and, again, the actual evidence

is to the contrary), it would be entirely appropriate for

https://www.nysd.uscourts.gov/judges (last visited Sept. 16, 2022)

(listing 37 judges as having chambers in New York City as of

September 15, 2022, which number would vary depending on

vacancies at the time of a given case being filed).

See Appendix A.

the Court to consider that conduct in analyzing those

states’ entitlement to pursue injunctive relief against

the federal government, just as the Court should do

here.

II.

The Court Should Consider Texas’s Judge

Shopping In Evaluating Texas’s Entitlement

To Seek Equitable Relief Against The United

States.

This Court should consider Texas’s judge

shopping in evaluating Texas’s entitlement to seek

equitable relief against the United States, because of

both its implications for whether Texas has suffered a

particularized injury and the extent to which the public

interest weighs against awarding injunctive relief in

these circumstances.

To establish standing, Texas must show that the

Guidance has caused it an injury in fact that a favorable

decision would redress. See Lujan v. Defs. of Wildlife,

504 U.S. 555, 560-62 (1992). This requirement “serves to

prevent the judicial process from being used to usurp the

powers of the political branches.” Clapper v. Amnesty

Int’l USA, 568 U.S. 398, 408 (2013). Indeed, the “single

basic idea” underlying Article III’s standing

requirement is the “separation of powers.” Raines v.

Byrd, 521 U.S. 811, 820 (1997) (citation omitted). In

Lujan, the Court described Article III’s standing

requirement as “[o]ne of those landmarks” guiding “the

Constitution’s central mechanism of separation of

powers[, which] depends largely upon common

understanding of what activities are appropriate to

legislatures, to executives, and to courts.” 504 U.S. at

559-60. Thus, Article III’s standing requirement both

serves and derives from the Constitution’s separation of

powers.

This separation of powers function is important to

protect the legitimacy of federal courts:

[R]epeated and essentially head-on

confrontations between the life-tenured

branch and the representative branches of

government will not, in the long run, be

beneficial to either. The public confidence

essential to the former and the vitality

critical to the latter may well erode if we

do not exercise self-restraint in the

utilization of our power to negative the

actions of the other branches.

Valley Forge Christian Coll. v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 474

(1982) (quoting United States v. Richardson, 418 U.S.

166, 188 (1974) (Powell, J., concurring)); see also

Massachusetts v. Mellon, 262 U.S. 447, 488-89 (1923)

(holding that where plaintiff lacked standing, for the

Court to decide the case “would be, not to decide a

judicial controversy, but to assume a position of

authority over the governmental acts of another and

coequal department, an authority which plainly we do

not possess”).

Invoking this relationship between standing,

separation of powers, and judicial legitimacy, the Court

has previously rebuffed litigants who sought only to

vindicate a generalized grievance with federal policy.

See, e.g., Mellon, 262 U.S. at 488-89; Lujan, 504 U.S. at

573-74; Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118, 126 (2014) (discussing

the Court’s prudential standing doctrine as

“encompassing (we have said) at least three broad

principles[ including a] rule barring adjudication of

generalized grievances more appropriately addressed in

the representative branches” (internal quotation marks

and citation omitted)). In so doing, this Court has made

clear that lawsuits fall short of Article III’s

requirements where they are “predicated on ‘the right,

possessed by every citizen, to require that the

Government be administered according to law.”’ Valley

Forge, 454 U.S. at 482-83 (quoting Fairchild v. Hughes,

258 U.S. 126, 129 (1922)).

Texas’s strategy of judge shopping reflects that it

suffers only a generalized grievance in cases like this

one. It has not sued in a venue that is the locus of any

particular injury, because the executive action being

challenged “does not directly injure the States[, does]

not regulate the States by telling them what they can or

cannot do. . . . [a]nd it does not purport to preempt any

state or local law . . . .” See Arizona, 40 F.4th at 383

(holding that states lacked standing to challenge the

Guidance at issue in this matter). To the contrary, Texas

argues only that the Guidance has downstream

consequences that might not exist if the United States

were to prioritize immigration enforcement efforts

differently. This expansive theory of standing would

entitle Texas to challenge essentially every executive

immigration action, and in whatever forum it chooses to

file—Texas need only invoke the potential downstream

consequences it will feel to usurp for itself plenary power

over immigration.29 It can do so even though

“considerable speculation undergirds the claim,” as

Chief Judge Sutton put it in rejecting virtually identical

standing arguments. See id.

And if that’s true for Texas, presumably, it’s true

for every state in the union. “Article III standing

requires significantly more than just the ‘common sense’

beliefs upon which” Texas claims its injuries lie. See

Maryland v. Dep’t of Educ., 474 F. Supp. 3d 13, 34

(D.D.C. 2020) (Jackson, J.). Indeed, Texas never explains

why its theory of standing would not allow the exact

same suit to be brought by each of the other 49 states.

And if every state has standing, no state has standing.

Put another way, if there was a specific reason why

Texas is the proper plaintiff in cases like this one,

presumably, that reason would have some connection to

the place in which Texas is bringing these suits.

Because no such connection exists, allowing

Texas to proceed on its attenuated basis for standing

here is irreconcilable with the separation of powers and

the limited role of courts in matters of national policy, as

conceived by the Framers. The consequences of allowing

such an expansive view of standing are magnified when

There is no reason to believe that Texas’s theory of standing

would be limited to immigration, either. As the Sixth Circuit noted,

this theory of standing would be so broad as to allow states “to

challenge a ‘disagreeable war.’” Arizona, 40 F.4th at 386 (citing

Alexander Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79,

89-90 (1966)).

the State asserting a claim can not only invent any claim

it wants but can choose the judge who will decide it.

Given this Court’s recognition that “public confidence”

is “essential” to the judiciary, Valley Forge, 454 U.S. at

474, it should consider Texas’s practice of judge

shopping as part of its standing analysis, not just on its

own (de)merits, but because of what it would mean for

future state challenges to future federal policies were it

to be sustained.

III.

The Court Should Consider Texas’s Judge

Shopping In Evaluating Whether Equitable

Relief Is Appropriate.

Insofar as the preliminary injunctive relief Texas

obtained in this case includes consideration of the public

interest, that interest would be undermined by allowing

a state to so transparently manipulate the legal system

in order to obtain injunctive relief against any party—

including the federal government.

In order to obtain a preliminary injunction, a

movant must establish that an injunction is in the public

interest. Ramirez v. Collier, 142 S. Ct. 1264, 1275 (2022).

A judiciary that is perceived as being independent is

undoubtedly in the public interest. As the Chief Justice

noted in his 2021 Year-End Report on the Federal

Judiciary: “Decisional independence is essential to due

process, promoting impartial decision-making, free from

political or other extraneous influence.”30 In the very

Chief Justice John G. Roberts, Jr., 2021 Year-End Report on the

Federal Judiciary at 1 (Dec. 2021), https://bit.ly/3IFzWoY.

same report, the Chief Justice singled out the

phenomenon of judge shopping in patent cases—in

which patent litigants took advantage of the very same

quirk in Texas procedure to file a wildly

disproportionate percentage of patent suits in the Waco

Division of the Western District of Texas. Although

Congress has given the district courts broad discretion

to manage their dockets, “the Judicial Conference has

long supported the random assignment of cases,” as one

of the values “important to public confidence in the

courts.”31 Obviously, that public confidence is

jeopardized when hand-picked district judges are

allowed to dictate national policy. See also Arizona v.

Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, C.J.,

concurring) (explaining that nationwide injunctions,

inter alia, “sometimes give States victories they did not

earn,” and “incentivize forum shopping”).

This Court can act to curb the practice consistent

with the law applicable to preliminary injunctions. As

pertinent here, in considering the various public

interests that weigh against affirming the district

court’s nationwide injunction, this Court may decide

that Texas’s blatant judge shopping counsels against the

public interest, especially when, as here, there is no

countervailing explanation for Texas’s litigation

behavior. See, e.g., Harsman v. Cincinnati Children’s

Hosp. Med. Ctr., No. 21-cv-597, 2021 WL 4504245, at *6

(S.D. Ohio Sept. 30, 2021) (denying temporary

restraining order “tantamount to . . . preliminary

Id. at 5; see also, e.g., J. Jonas Anderson & Paul R. Gugliuzza,

Federal Judge Seeks Patent Cases, 71 Duke L.J. 419 (2021).

injunction” in part due to judge shopping, so court would

not “improperly countenance Plaintiffs’ gamesmanship

to the detriment of the public’s interest in a wellfunctioning judicial system”).

Indeed courts in many different contexts have

held that judge or forum shopping weighs against the

public interest. See, e.g., Atl. Marine Constr. Co. v. U.S.

Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 64-65 (2013)

(explaining that a transfer to enforce a forum-selection

clause under 28 U.S.C. § 1404 has “public-interest

considerations,”

including

discourage

“gamesmanship” such as the “creat[ion] or

multipl[ication] [of] opportunities for forum shopping”

(internal quotation marks and citation omitted); Ferens

v. John Deere Co., 494 U.S. 516, 527-28 (1990) (explaining

that public interest considerations weighing against a

transfer include possibility that movants are forum

shopping); Ellsworth v. Schneider Nat’l Carriers, Inc.,

No. 20-cv-1699, 2021 WL 3417641, at *2 (C.D. Cal. June

14, 2021) (considering forum shopping a public interest

factor as part of stay analysis).

Reversing the nationwide injunction in part due

to its connection to unabashed judge shopping is firmly

in the public interest and would send a strong message

about the importance of public confidence in the

independence of the judiciary. Conversely, upholding

the injunction encourages politically adverse states—

both now and for all future administrations of either

party—to take even the most generalized grievances

over federal policies to judges who the states may

presume to be amenable to their arguments. Condoning

(or even continuing) Texas’s conduct ensures that the

credibility of the federal judiciary, and the public

interest as a whole, will suffer. The public interest thus

favors reversing the injunction.

CONCLUSION

The Court should reverse the district court and

remand this matter to dismiss for lack of standing.

Respectfully submitted,

Max Wolson

NATIONAL IMMIGRATION

LAW CENTER

P.O. Box 34573

Washington, DC 20043

(202) 216-0261

wolson@nilc.org

Lindsay C. Harrison

Counsel of Record

Samuel S. Ungar

JENNER & BLOCK LLP

1099 New York Ave. NW,

Suite 900

Washington, DC 20001

(202) 639-6000

lharrison@jenner.com

Lisa S. Graybill

NATIONAL IMMIGRATION

LAW CENTER

P.O. Box 40476

Austin, TX 78704

(213) 493-6503

graybill@nilc.org

Counsel for Amicus Curiae Professor Stephen I. Vladeck

APPENDIX

APPENDIX A

List of Texas Challenges to Federal Policy in Texas District Courts

Case name

(in order of

filing date)

Texas v.

Biden

Texas v.

United

States

Policy or Action

Challenged

Temporary

deportation

6:21-cv-3 moratorium

Revocation of

permit for

3:21-cv-65 building pipeline

Memorandum

establishing DHS

enforcement

6:21-cv-16 priorities

Original

Filing Div.

(District)

Original

Presiding

Judge

Victoria

(S.D.)

Republican

(Trump)

100

Tipton

Galveston

(S.D.)

Brown

Republican

(Trump)

100

Victoria

(S.D.)

Republican

(Trump)

100

Tipton

Percentages and number of judges reflect those in effect at the time of the case-at-issue’s filing. See

generally Appendix B (identifying orders dividing courts’ work).

Texas v.

United

States

Case

Number

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

Case name

(in order of

filing date)

Texas v.

Biden

Texas v.

Yellen

Texas v.

BrooksLasure

Policy or Action

Challenged

Termination of

Migrant

Protection

2:21-cv-67 Protocols

Certain

exceptions to

policy expelling

persons pursuant

4:21-cvto public health

579

directive

Statutory

limitation on use

of funds in

COVID-19

2:21-cv-79 legislation

Rescission of

6:21-cvMedicaid

191

program waiver

Original

Filing Div.

(District)

Original

Presiding

Judge

Amarillo

(N.D.)

Republican

Kacsmaryk (Trump)

100

Texas v.

Biden

Case

Number

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

Ft.

Worth

(N.D.)

Pittman

Amarillo

(N.D.)

Republican

Kacsmaryk (Trump)

Tyler

(E.D.)

Barker

Republican

(Trump)

Republican

(Trump)

Case name

(in order of

filing date)

Case

Number

Original

Filing Div.

(District)

Original

Presiding

Judge

2:21-cv194

7:21-cv420

(originally Termination of

Missouri v. 6:21-cvcertain border

Biden

52)2

wall construction

Republican

Kacsmaryk (Trump)

Victoria

(S.D.)

Tipton

Republican

(Trump)

Texas v.

Biden

Galveston

(S.D.)

Brown

Republican

(Trump)

3:21-cv309

COVID-19

vaccine mandate

100

Guidance

regarding

application of

nondiscrimination Amarillo

laws

(N.D.)

Texas v.

EEOC

Policy or Action

Challenged

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

Respondents initially filed this matter in the Victoria Division; however, the matter was subsequently

transferred to a different division and judge following a determination that the matter was related to, and

should be consolidated with, an earlier-filed case by other plaintiffs.

Case name

(in order of

filing date)

Case

Number

Policy or Action

Challenged

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

Original

Filing Div.

(District)

Original

Presiding

Judge

Amarillo

(N.D.)

Republican

Kacsmaryk (Trump)

Lubbock

(N.D.)

Hendrix

Republican

(Trump)

Barker

Republican

(Trump)

for federal

contractors

2:21-cv229

Texas v.

Becerra

5:21-cv300

Abbott v.

Biden

6:22-cv-3

Tyler

(E.D.)

100

Texas v.

Becerra

COVID-19

vaccine mandate

for certain

healthcare

professionals

COVID-19

vaccine mandate

for Head Start

programs

COVID-19

vaccine mandate

for National

Guard members

Case name

(in order of

filing date)

Case

Number

Policy or Action

Challenged

Amarillo

(N.D.)

Victoria

(S.D.)

Ft.

Worth

(N.D.)

Original

Presiding

Judge

Lynn

Tipton

O’Connor

100

Democrat

(Clinton)

Republican

(Trump)

Republican

(G.W.

Bush)

3:22-cv780

(originally Central

Texas v.

2:22-cvAmerican Minors

Biden

14)3

Program

Increased

minimum wage

Texas v.

for federal

Biden

6:22-cv-4 contractors

Requiring masks

Van Duyne 4:22-cvfor public

v. CDC

122

transportation

Original

Filing Div.

(District)

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

The Court later transferred this matter to the Dallas Division. Chief Judge Lynn’s assignment occurred at

the initial filing in Amarillo, and remained unchanged with the transfer to Dallas. The case number changed

following transfer as the Northern District numbers cases by division.

Case name

(in order of

filing date)

Case

Number

Policy or Action

Challenged

Texas v.

Becerra

5:22-cv185

Abortion

guidance

Original

Filing Div.

(District)

Original

Presiding

Judge

Ft.

Worth

(N.D.)

Pittman

Republican

(Trump)

Victoria

(S.D.)

Tipton

Republican

(Trump)

Amarillo

(N.D.)

Republican

Kacsmaryk (Trump)

Lubbock

Hendrix

100

Regulation of

Paxton v.

4:22-cvfirearm

Richardson 143

suppressors

Termination of

policy expelling

persons pursuant

Texas v.

to public health

Walensky 6:22-cv-13 directive

Changes to

credible fear

Texas v.

screening of

Mayorkas 2:22-cv-94 asylum seekers

Percentage

of Div.’s

Number

New Civil

President’s

of Judges

Cases

Party at

in Div.

Assigned to

Judge’s

Receiving

Judges

Appointment

New Civil Appointed

(President)

Cases

During

Republican

Presidencies1

Republican

(Trump)

Appendix B

Texas Federal District Court Division-of-Work

Orders in Effect During Relevant Timeframes

Northern District

 Dallas Division

o September 8, 2022 – present

 Special Order No. 3-342 (N.D.

Tex. Sep. 8, 2022), https://www.

txnd.uscourts.gov/sites/default/

files/orders/03-342.pdf

o July 5, 2021 – September 7, 2022

 Special Order No. 3-340 (N.D.

Tex. June 21, 2021), https://

www.txnd.uscourts.gov/sites/de

fault/files/orders/3-340.pdf

o September 28, 2020 – July 4, 2021

 Special Order No. 3-339 (N.D.

Tex. Sept. 28, 2020), https://

www.txnd.uscourts.gov/sites/de

fault/files/orders/3-339.pdf

 Fort Worth Division

o May 25, 2020 – present

 Special Order No. 3-337 (N.D.

Tex. May 25, 2020), https://

www.txnd.uscourts.gov/sites/de

fault/files/orders/SO3-337.pdf

 Lubbock, Abilene, and San Angelo Divisions

o August 9, 2019 – present

 Special Order No. 3-330 (N.D.

Tex. Aug. 9, 2019), https://www.

txnd.uscourts.gov/sites/default/

files/orders/03-330.pdf

 Amarillo Division

o September 14, 2022 – present

 Special Order 3-344 (N.D. Tex.

Sep. 14, 2022),

https://www.txnd.uscourts.gov/

sites/default/files/orders/3344.pdf

o July 3, 2019 – September 13, 2022

 Special Order 3-327 (N.D. Tex.

July 3, 2019), https://www.tx

nd.uscourts.gov/sites/default/fil

es/orders/03-330.pdf

 Wichita Falls Division

o September 14, 2022 – present

 Special Order No. 3-343 (N.D.

Tex. Sep. 14, 2022),

https://www.txnd.uscourts.gov/

sites/default/files/orders/3344.pdf

o November 29, 2016 – September 13,

2022

 Special Order No. 3-310 (N.D.

Tex. Nov. 29, 2016), https://

www.txnd.uscourts.gov/sites/de

fault/files/orders/03-310.pdf

Eastern District

 December 16, 2021 – present

o General Order Assigning Civil & Criminal

Actions, Gen. Order 21-19 (Dec. 16, 2021),

https://www.txed.uscourts.gov/sites/defau

lt/files/goFiles/GO%2021-19%20Assigning

%20Civil%20and%20Criminal%20Actions.

pdf.

 April 30, 2021 – December 16, 2021

o General Order Assigning Civil & Criminal

Actions, Gen. Order 21-08 (Apr. 30, 2021),

https://www.txed.uscourts.gov/sites/defau

lt/files/goFiles/GO%2021-08%20Assigning

%20Civil%20and%20Criminal%20Actions.

pdf.

 June 15, 2020 – April 30, 2021

o General Order Assigning Civil & Criminal

Actions, Gen. Order 20-14 (June 15, 2020),

https://www.txed.uscourts.gov/sites/defau

lt/files/goFiles/GO%2020-14%20Assigning

%20Criminal%20and%20Civil%20Actions.

pdf

Southern District

 Note: The internet addresses provided for

the Southern District Orders automatically

trigger a download of a PDF copy of the

corresponding court order

 July 1, 2022 - present

o Third Am. Division of Work Order for

2022, Gen. Order 2022-13 (S.D. Tex.

June 30, 2022), https://www.txs.us

courts.gov/file/6532/download?token=j

QaaRfvg.

 April 11, 2022 – June 30, 2022

o Second Am. Division of Work Order

for 2022, Gen. Order 2022-8 (S.D. Tex.

Apr. 11, 2022), https://www.txs.us



10a

courts.gov/file/6408/download?token=r

baJpcjK.

April 1, 2022 – April 10, 2022

o Am. Division of Work Order for 2022,

Gen. Order 2022-6 (S.D. Tex. Mar. 31,

2022), https://www.txs.uscourts.gov/

file/6406/download?token=8LA7NKhC

January 1, 2022 – March 31, 2022

o Division of Work Order, Gen. Order

2022-1 (S.D. Tex. Dec. 30, 2021),

https://www.txs.uscourts.gov/file/6352

/download?token=GxFxj2EG.

June 1, 2021 – December 31, 2021

o Third Am. Division of Work Order,

Gen. Order 2021-10 (S.D. Tex. May 27,

2021), https://www.txs.uscourts.gov/

file/6043/download?token=RxHEyGIv.

April 1, 2021 – May 31, 2021

o Second Am. Division of Work Order,

Gen. Order 2021-7 (S.D. Tex. Apr. 1,

2021), https://www.txs.uscourts.gov/fi

le/5973/download?token=qYAcMMSQ.

March 4, 2021 – March 31, 2021

o Am. Division of Work Order, Gen

Order 2021-4 (S.D. Tex. Mar. 4, 2021),

https://www.txs.uscourts.gov/file/5908

/download?token=hyDceGID.

January 1, 2021 – March 3, 2021

o Division of Work Order, Gen. Order

2021-1 (S.D. Tex. Dec. 31, 2020),

11a

https://www.txs.uscourts.gov/file/5798

/download?token=dDvvri0x.

Western District

 May 10, 2021 – present

o Amended Order Assigning the

Business of the Court (W.D. Tex. May

10, 2021), https://www.txwd.uscourts.

gov/wp-content/uploads/Standing%20

Orders/District/Amended%20Order%

20Assigning%20Business%20of%20the

%20Court%20051021.pdf.

 Mar. 8, 2021 – May 10, 2021

o Amended Order Assigning the

Business of the Court (W.D. Tex. Mar.

8, 2021), https://www.txwd.uscourts.

gov/wp-content/uploads/Standing%20

Orders/District/Amended%20Order%

20Assigning%20Business%20of%20the

%20Court%20030821.pdf.

APPENDIX C

List of Democratic Challenges to Trump Administration Policies in Federal District Courts

Presided Over by Judges Appointed During Republican Administrations

Case name (in

order of filing

date)

Washington v.

Trump

Case

Number

Original

Presiding

Judge

President’s Party

at Judge’s

Appointment

(President)

Seattle (W.D.

Wash.)

Robart

Republican (G.W.

Bush)

SF/Oak (N.D.

Cal.)1

Armstrong

Republican

(G.H.W. Bush)

Boston (D.

Mass.)

Saylor

Republican (G.W.

Bush)

SF/Oak (N.D.

Cal.)

Armstrong

Republican

(G.H.W. Bush)

The Northern District of California initially assigns all civil cases to a Magistrate Judge. The case is then

assigned to a district judge if either party does not consent prior to the consent deadline. The court

eventually assigned a district judge to all but two of the Northern District of California cases. Cases included

here rely upon the first district judge assigned to the case following reassignment away from a magistrate

judge.

12a

Travel ban

Health insurance

California v.

cost share

Trump

3:17-cv-5895 subsidies

FOIA

Massachusetts v.

immigration

DHS

1:17-cv-12022 records

Royalties on

California v. Dep’t

extracted

of Interior

4:17-cv-5948 resources

2:17-cv-141

Subject

Original Filing

Div. (District)

Case name (in

order of filing

date)

Massachusetts v.

Dep’t of Educ.

Case

Number

1:17-cv-2679

Subject

Failure to

discharge student

loans

Original Filing

Div. (District)

Original

Presiding

Judge

President’s Party

at Judge’s

Appointment

(President)

Republican

(Trump)

McFadden

Manhattan

(S.D.N.Y.)

Sullivan

D.D.C.

Walton

Republican (G.W.

Bush)

Republican (G.W.

Bush)

New York v. HHS 1:18-cv-683

New York v.

Pruitt

1:18-cv-773

Basic Health

Programs funds

Methane

emissions

Washington v.

United States

2:18-cv-939

Seattle (W.D.

Family separation Wash.)

Jones

Republican (G.W.

Bush)

New York v.

Dep’t of Labor

1:18-cv-1747

Health plans and

ACA compliance

D.D.C.

Bates

Republican (G.W.

Bush)

New Jersey v.

Acosta

1:19-cv-621

D.D.C.

Kelly

Republican

(Trump)

New Jersey v.

Mnuchin

1:19-cv-6642

Manhattan

(S.D.N.Y.)

Gardephe

Republican (G.W.

Bush)

California v.

McAleenan

2:19-cv-7390

Western (C.D.

Cal.)

Walter

Republican (G.W.

Bush)

Workplace injury

reporting

Rule re:

state/local tax

credit for donor

Rule violating

permanent

injunction

13a

D.D.C.

Case name (in

order of filing

date)

Case

Number

Subject

Original Filing

Div. (District)

Original

Presiding

Judge

President’s Party

at Judge’s

Appointment

(President)

1:19-cv-3247

Ozone pollution

D.D.C.

Nichols

Republican

(Trump)

Washington v.

Dep’t of State

2:20-cv-111

3D printed guns

Seattle (W.D.

Wash.)

Jones

Republican (G.W.

Bush)

Pennsylvania v.

Devos

1:20-cv-1468

Title IX rule

Chesapeake Bay

Maryland v. EPA 1:20-cv-2530 Agreement

Pesticide

New York v. EPA 1:20-cv-10642 regulation

D.D.C.

Nichols

D.D.C.

Manhattan

(S.D.N.Y.)

Nichols

Washington v.

Vought

2:21-cv-2

Sale of National

Archives facility

Pennsylvania v.

Scalia

2:21-cv-258

New York v.

Dep’t of Interior

1:21-cv-448

Liman

Republican

(Trump)

Republican

(Trump)

Republican

(Trump)

Seattle (W.D.

Wash.)

Coughenour

Republican

(Reagan)

Tipped minimum

wage

Philadelphia

(E.D. Pa.)

Robreno

Republican

(G.H.W. Bush)

Migratory birds

Manhattan

(S.D.N.Y.)

Gardephe

Republican (G.W.

Bush)

14a

New Jersey v.

Wheeler

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.