The Justice Department is tripling down on its allegations that Texas is “judge-shopping” in the lawsuits the state has brought against the Biden administration.
But the department is running into headwinds as it tries to push back against the Lone Star State’s pattern of filing cases in a way that allows it to effectively choose the judges that hear them.
At a hearing last week on a Justice Department request that one such case be transferred to another federal court, the judge seemed to dismiss DOJ’s concerns and appeared to blame the department for creating any perception that the case assignment set up was unfair.
The judge, US District Judge Drew Tipton, is one of three judges presiding over cases where DOJ has called out Texas for funneling its litigation against the Biden administration to courthouses – often in remote parts of the state – where a single, pre-determined judge is assigned most or all of the cases.
With its tactics, Texas can “circumvent the random assignment system by never filing in Divisions where they have a non-trivial chance of not knowing what judge they are likely to be assigned,” the DOJ said in brief submitted to Tipton this week.
Private litigants have been accused of taking advantage of the system as well – with perhaps the most high-profile example being a lawsuit by anti-abortion activists seeking to block the FDA’s approval of a drug used in medication abortions, the most common method of terminating a pregnancy. The case is before Judge Matthew Kacsmaryk, a Trump appointee who has issued controversial rulings against the Biden administration in the past and who is all but guaranteed to hear cases filed in the Amarillo division, where the medication abortion lawsuit was brought.
The DOJ asked Kacsmaryk last month to transfer a separate, Texas-brought lawsuit against the administration – a challenge to climate change-related regulations for investors – to another district. On Monday the department filed a similar request with another Trump-appointee, Judge James Wesley Hendrix, in a case Texas filed that takes aim at the annual federal spending bill that Biden signed late last year.
Texas Attorney General Ken Paxton’s office denies it’s done anything improper in where it has filed cases.
“There are numerous compelling reasons for these cases to be heard where they are filed,” Paige Wiley, a Paxton spokesperson, told CNN in an email. She accused the Biden administration of “perpetuating” a “baseless smear” of judge-shopping that “risks undermining the public’s trust in the legal system.”
Texas and private conservative activists have had a remarkable success rate in securing court orders that block nationwide major Biden agenda items – often in lawsuits filed in divisions where a particular judge is guaranteed to hear the case. When those judges’ orders are appealed, they go to the US 5th Circuit Court of Appeals, perhaps the most conservative appeals court in the country.
Forum shopping is a strategy embraced by litigants on the left and the right. Progressives were strategic in where they brought cases against the Trump administration. But legal experts say there’s a distinction between the practice then and the current trends, because with the Trump-era cases, those lawsuits were filed in courthouses where one of several Democratic-appointed judges could be assigned the case.
Tipton, however, seemed largely unconcerned with Texas’ tactics of targeting its cases at his courtroom, as he grilled a DOJ attorney on whether the department was suggesting the judge would be unfair.
Tipton told the DOJ attorney, Erez Reuveni, that the department could help with the perception of fairness by saying on the public record that it believed that Tipton, as a judge, would give them a fair shake.
“Wouldn’t that go a long way to addressing any public perception issues?” Tipton said, according to a transcript of the hearing.
Paxton’s office has brought 28 cases against the Biden administration in Texas federal courts, according to a DOJ brief, which said that all of those lawsuits have been filed “in just seven Divisions where local rules severely limit the number of judges to whom the cases could be assigned.” Eighteen of those cases were filed in divisions where a single, pre-determined judge is assigned all lawsuits, the DOJ has said.
Tipton presides over virtually all civil litigation filed in Victoria, Texas, including at least seven lawsuits brought by Paxton against the administration in that division. In one of those cases – concerning the how the administration prioritizes deportations – Tipton in 2021 halted the policy and ordered regular updates from the administration on how it was managing its deportations in accordance with his order.
That case is now being reviewed by the US Supreme Court, which has kept the Biden policy on pause. Tipton was appointed by former President Donald Trump and is viewed as a very conservative judge, having been confirmed without the support of any Democrats.
Hendrix, another Trump appointee, hears two-thirds of the civil lawsuits filed in the Lubbock division, which is located in northwest Texas and is several hours’ drive from the state’s biggest cities. DOJ, with its Monday request in the spending legislation case, asked the judge to move the lawsuit to DC or to Austin. The department argued that Texas’ “sole allegation related to an event in Texas is the National Board’s award of a grant to a non-profit organization in Houston.”
Kacsmaryk, meanwhile, is assigned every civil case filed in Amarillo, another division in northern Texas. The judge has ruled in favor of Texas in disputes over Biden administration’s LGBT protections and the president’s attempts to end Trump-era migration restrictions. He is now in the national spotlight for his forthcoming ruling in the medication abortion case, which could be issued any day now.
The lead plaintiff in that case, a medical organization called the Alliance for Hippocratic Medicine, filed its paperwork incorporating in Amarillo just a few months before filing the lawsuit. However, the organization’s attorney pushed back on allegations that the filing location was chosen strategically to get the case before Kacsmaryk.
“It’s an utterly nonsensical argument to make because we have every right to file a lawsuit where our clients are injured,” Erik Baptist – a senior counsel at Alliance Defending Freedom, which is representing the abortion pill challengers – told CNN. He pointed to an individual plaintiff in the lawsuit, Dr. Shaun Jester, who practices near Amarillo.
“Congress has authorized the American public to sue federal agencies where the American public has actually been injured and where they reside,” Baptist said. “And that’s exactly what Dr. Jester did here. He filed this lawsuit with the other plaintiffs in this case because he is based in the Amarillo area, and therefore, we filed this lawsuit where he resides.”
To explain why its lawsuits against the Biden administration often end up in single-judge divisions miles from the state capital, Texas is leaning on case law that says that states – when suing the federal government – reside in all parts of their borders and are not restricted to filing suits in the court divisions containing their state capitals.
Leif Olson, an attorney in Paxton’s office, told Tipton at last week’s hearing that “I don’t know why our office chooses to file in seven divisions over and over,” referring to the seven divisions DOJ highlighted in its briefs.
Olson told Tipton that the specific immigration case was filed in Victoria because Paxton’s office felt like it knew how the judge ran his court room and because Tipton was familiar with the statutes relevant to the case.
“The long and short of it, Your Honor, is that the public interest is served by having the case decided fairly and quickly. That is available in the Victoria Division,” Olson said.
Reuveni, the DOJ attorney, meanwhile, stressed that their motion wasn’t targeted at Tipton, whom the department thought was a fair judge, but rather it was aimed at Texas’ tactics. Reuveni said that the department would have no issue if the case was randomly assigned to Tipton, having been transferred to a court division where Tipton shares case assignment with other judges.
Tipton, however, suggested DOJ was to blame for exacerbating any public perception of unfairness, and the judge highlighted his tendency of granting DOJ requests for pauses of his orders so they can be appealed.
When pressed by the judge, Reuveni confirmed that the department believed that Tipton was impartial.
“Don’t you think if the public heard the Department of Justice say that, that it would go a long way towards addressing your public perception concern?” the judge said.
The judge is expected to rule on the motion to transfer in the next few weeks.