When Texas Attorney General Ken Paxton (R) announced his latest lawsuit against the federal government, this time over health care coverage for transgender Americans, he sounded as if he had no choice.
“This is the thirteenth lawsuit I have been forced to bring against the Obama Administration’s continued threats on constitutional rights of Texans,” Paxton said in a Tuesday statement. The new legal action was filed two days after a federal judge, in a separate case, sided with the state and temporarily barred the federal government from instructing schools on how to implement transgender-inclusive policies.
One thing Paxton didn’t mention is that the state did have a choice in where the the new case was filed. Texas chose the courtroom of U.S. District Judge Reed O’Connor, the same judge who had just ruled in the state’s favor in the other transgender case.
O’Connor sits in the Northern District of Texas, which covers 100 counties and some of the state’s most populous cities ― including Dallas, Fort Worth and Arlington. It has eight district judges and four senior district judges overall to handle the thousands of cases filed there annually. But O’Connor is the only district judge available in the small Wichita Falls division.
And the Wichita Falls division ― located near the Oklahoma border, some 300 inconvenient miles from Paxton’s office in Austin ― is now the forum for two high-stakes multi-state disputes. Each seeks a nationwide declaration that federal agencies have no legal authority to issue rules and guidance aimed at protecting transgender individuals.
Paxton “has found a way to find a court he likes,” said Kenneth Upton, senior counsel at the Dallas office of Lambda Legal, an LGBT rights organization that filed a brief in support of the Obama administration in the schools case.
There’s nothing outright wrong with “forum shopping,” the practice of picking the court that would likely be the most sympathetic to your claims. Good legal strategy involves selecting where to sue when more than one court has the authority to hear your case. Lawyers routinely think about how the judges have ruled before, who makes up the jury pool and which appeals court would review a decision.
“A lawyer who did not sue in the place that’s most favorable to his or her client, it would be malpractice,” said Daniel Klerman, a law professor at the University of Southern California who has written about forum shopping. “Nothing shocking or untoward about it,” he added.
Still, the justice system recognizes that the idea of choosing your own judge carries a certain whiff of unfairness. There are rules and limitations around forum shopping, and exceeding them can land a litigator in trouble ― like the lawyer who forum-shopped “unreasonably and vexatiously” and got slapped with $35,000 in sanctions by an appeals court in June. Klerman has chronicled allegations that judges in another part of Texas sought to attract forum-shoppers by distorting their own rules and practices.
Now Texas appears to be mastering a new level of forum shopping ― where a large state with a healthy litigation budget identifies federal policies it disagrees with, invites other states to join in the action and then chooses a thinly staffed court with a sympathetic judge. Not unlike when Paxton spearheaded a successful 26-state challenge to President Barack Obama’s executive actions on immigration.
“He’s saying, ‘Here, I’m having a party. You’re invited,’” Upton observed.
The lawsuit filed Tuesday claims that a new federal rule interpreting the Affordable Care Act to prohibit discrimination against transgender individuals impinges on the medical judgment and religious tenets of certain health care providers.
“Tragically, the Regulation would force them to violate those religious beliefs and perform harmful medical transition procedures or else suffer massive financial liability,” reads the Texas complaint, which was filed on behalf of four other states and three medical groups. The latter organizations all have ties to religious groups but, curiously, none to Texas.
A spokesman for Paxton’s office, Marc Rylander, downplayed the forum shopping charges, pointing instead to a court rule in the Northern District of Texas that lets “a judge handle multiple cases that revolve around a common issue.” Rylander noted that the two transgender cases present “significant overlap.”
The U.S. Department of Justice declined to comment for this story.
Regardless of where the transgender cases were filed in Texas, Rylander added, they will likely follow a similar route.
“In any event, we fully expect both of these cases to be decided by the U.S. Court of Appeals for the Fifth Circuit, and potentially the U.S. Supreme Court,” Rylander said.
This, too, may be part of the strategic calculus in persuading other states in more liberal parts of the country to join a Texas-led case. The 5th Circuit ― which handles cases that originate in Texas, Louisiana or Mississippi ― is by far one of the most conservative federal courts in the country. Yet it repeatedly handles major constitutional controversies ― on abortion rights, affirmative action and immigration.
This past November, a 2-to-1 ruling from the 5th Circuit sided with Texas and refused to lift a district judge’s order blocking the nationwide rollout of Obama’s plan to defer deportation for millions of undocumented immigrants. The Supreme Court, evenly divided between conservative and liberal justices, left that ruling in place ― setting no precedent and making the 5th Circuit the de facto decision-maker for the entire country.
He’s saying, 'Here, I’m having a party. You’re invited.' Lambda Legal attorney Kenneth Upton, on Paxton's strategy
The immigration case also began in a small courthouse, this time near the Mexican border, some 350 miles from the Texas attorney general’s office. At the time, there was only one active federal judge serving there, U.S. District Judge Andrew Hanen. Like O’Connor, whose record suggested a lack of sympathy with LGBT concerns, ThinkProgress’ Ian Millhiser pointed out last year that Hanen had a history indicating he might rule against undocumented immigrants.
Alliance for Justice, an advocacy group that tracks judicial vacancies, has identified another quirk in these Texas-led cases: The state has the most federal judicial vacancies of any state, and they have all been designated judicial emergencies, meaning the courts are understaffed and overworked. (The Senate has not confirmed any Obama nominee to sit in the entire Northern District of Texas.)
“The bottom line is that the Texas Attorney General’s office has figured out it doesn’t need the Supreme Court to thwart laws nationwide it doesn’t agree with, just lower court judges that are willing to grab that power for themselves,” wrote Isidro Mariscal of Alliance for Justice in a blog post.
All of this puts Paxton in a very sweet spot in his legal crusade against the federal government.
“He’s in a candy shop right now, like a little kid,” said Upton.