Case: United States v. Texas; Annunciation House v. Abbott

3:21-cv-00173 | U.S. District Court for the Western District of Texas

Filed Date: Aug. 30, 2021

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Case Summary

This case is about Texas Governor Greg Abbot's executive order that prevented anyone other than law-enforcement officials from transporting multiple categories of non-citizen migrants regardless of unaccompanied minor, asylum, or refugee status. The United States filed a complaint on July 30, 2021, in the United States District Court for the Western District of Texas asking for an injunction to prevent enforcing the executive order relating to the transportation of migrants during the COVID-19 …

The United States filed a complaint on July 30, 2021, in the United States District Court for the Western District of Texas asking for an injunction to prevent enforcing the executive order relating to the transportation of migrants during the COVID-19 disaster, and declaratory relief stating the order violated the Supremacy Clause and the doctrine of intergovernmental immunity, and therefore is invalid, null, and void.

Gov. Greg Abbott had signed Executive Order GA-37 two days prior, on July 28, 2021. Gov. Abbott used his authority and responsibility "for meeting . . . the dangers to the state and people presented by disasters" to enact this order for the remainder of the COVID-19 pandemic. The order stated that "No person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants who have been detained by CBP [Customs and Border Patrol] for crossing the border illegally or who would have been subject to expulsion under the Title 42 order." It also granted authority to the Texas Department of Public Safety (DPS), to enforce this order including stopping vehicles upon suspicion of violating the order, rerouting vehicles, and impounding vehicles found to be transporting migrants. The order made clear that the government of Texas believed that the Biden Administration was not doing enough to enforce Title 42, the order put in place at the beginning of the COVID-19 pandemic that allowed immigration officials to expel migrants who crossed the border quickly without allowing them to apply for asylum.

The plaintiffs argued that GA-37 was unconstitutional, interrupted processes carried out by the federal government, and would cause injury to a number of non-citizen migrants, and citizens who work in immigration facilities, and their families by exacerbating the spread of COVID-19. The executive order would prevent all Customs and Border Patrol (CBP) and Office of Refugee Resettlement (ORR) contractors from transporting people out of CBP and ORR facilities which in turn would cause a number of associated problems including:

preventing unaccompanied minors from being transported to their sponsors who are usually family members who have agreed to care for the children while they await trials regarding more permanent immigration;
preventing people in immigration facilities from accessing emergency healthcare at local hospitals;
making it difficult if not impossible for people seeking more permanent immigration to get to their court hearing, and trials;
overburdening CBP facilities with people who should have already been released and transported elsewhere, which could cause COVID-19 to spread between those who cannot properly distance from others;
and preventing people, who are not citizens but have been granted the authority to live outside detention facilities while awaiting trial, from going about their normal business.

On August 4, 2021, Annunciation House, Angry Tias & Abuelas of the Rio Grande Valley, and two other individuals also involved in the assistance and transportation of migrants, refugees, and asylum seekers filed a complaint in the U.S. District Court for the Western District of Texas. Represented by the ACLU, they also requested declaratory and injunctive relief from GA-37, as well as attorneys' fees. On the same day, they filed a motion for a preliminary injunction and a motion to consolidate their case with the one filed by the United States. Judge Kathleen Cardone consolidated the cases on August 26.

Also on August 26, 2021, Judge Cardone issued a preliminary injunction that directed Gov. Abbott and all other actors on behalf of the State to stop enforcement of Executive Order GA-37 until the resolution of this action.

On January 12, 2022, the trial court denied Private Plaintiffs’ preliminary injunction as moot, referencing the August 26, 2021, order granting Plaintiff United States of America’s preliminary injunction motion. There, the court ordered that “Defendants, their agents, officers, and employees, and all other persons and entities in active concert or participation with them are enjoined from taking any action to enforce the executive order.”

Later, on February 17, 2022, the District Judge denied Defendant's motion to dismiss -filed on October 11, 2021-, for lack of subject matter jurisdiction and failure to state a claim. The judge noted that courts commonly enjoin states and their governors from enforcing unconstitutional laws or otherwise entertain suits in which the United States seeks an injunction against a state citing Arizona v. United States, 567 U.S. 387, 416 (2012).

The District Judge pointed out that the Texas Governor has sufficient control over the activities of the DPS, concluding that he can direct the enforcement of the executive order by that department. Moreover, as the State's head executive, he appoints the commission that commands the DPS.

Furthermore, the Judge expressed that despite the Defendants' arguments to the contrary, Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), does not address the federal government’s ability to bring suit under the Supremacy Clause; it holds only that the constitutional provision does not create a private cause of action.

Additionally, the Judge noted that “GA-37 directs DPS to make and act on two immigration determinations that are reserved for the federal government. First, it directs DPS to determine whether a noncitizen has been ‘detained by CBP for crossing the border illegally,’ which apparently turns on whether the noncitizen has violated federal immigration law. Second, it directs DPS to determine whether a noncitizen ‘would have been subject to expulsion under the Title 42 order.’ [...] Because GA-37 requires DPS officials to classify noncitizens in this way, the United States has stated a claim that GA-37 violates the Supremacy Clause under Arizona.”

On the same day, the District Court ruled on the defendants’ motion to dismiss regarding the nonprofit organizations. The court dismissed the organizations’ Supremacy Clause claim for lack of standing because they “have offered no explanation or authority supporting the position that their intended conduct is affected with a constitutional interest related to the Supremacy Clause.” However, the judge allowed the case to move forward on their Fourth Amendment claim, noting that “Plaintiffs regularly engage in the specific conduct targeted by GA-37 and intend to continue doing so. As such, Plaintiffs have alleged a credible threat that GA-37 will be enforced against them absent an injunction—which is currently in effect on a preliminary basis only. Plaintiffs have established an injury-in-fact sufficient to establish standing to bring their Fourth Amendment claim.”

After these decisions, on March 18, 2022, Defendants filed notice of appeal. He, then, contested only the district court’s order dealing with the private plaintiffs’ claims. The key question was “whether the private plaintiffs have Article III standing to bring their Fourth Amendment claim against Governor Abbott and whether Ex parte Young, 209 U.S. 123 (1908), permits this suit against him.” On March 22 of the same year, the trial court also granted a motion to stay based on that “divested of jurisdiction over the matters on appeal and that the claims remaining before this Court are inextricably intertwined with those on appeal.”

The following year, on December 19, the United States Court of Appeals for the Fifth Circuit, by split decision, reversed and remanded with instructions to dismiss the plaintiffs’ suit against the Governor, based on sovereign immunity, which bars the private plaintiffs from suing him. Said Court of Appeals sustained that the private plaintiffs “cannot satisfy these requirements to bring an Ex parte Young suit. That is because (1) the Governor is not charged with enforcement of the order; (2) plaintiffs identify no relevant, threatened future enforcement action; and (3) plaintiffs seek recourse for the Governor’s past conduct.”

The next day, on December 20, 2023, the District Court ordered that all claims against Defendant Governor Greg Abbott be dismissed with prejudice. Notwithstanding, the private Plaintiffs’ claims against Defendant Steven McCraw, as well as all claims brought by the United States in case remain pending, lifting the stay.

At the beginning of this year, on January 18, nonprofit plaintiffs filed a motion for reconsideration based on a Fifth Circuit precedent, holding that “[e]ven if a statute does not confer a private right, a plaintiff is not prevented from gaining equitable relief on preemption grounds.’ United States v. Texas, 97 F.4th 268, 277 (5th Cir. 2024) (quoting Crown Castle Fiber, L.L.C. v. City of Pasadena, 76 F.4th 425, 434–45 (5th Cir. 2023))”. The District Court granted the motion on July 30, 2024, and vacated the dismissal of Private Plaintiffs’ Supremacy Clause claim against Director McCraw.

	Document
3:21-cv-00178	Docket [PACER] Annunciation House v. Abbott	Aug. 26, 2021	Aug. 26, 2021 Docket
3:21-cv-00173	Docket [PACER] United States v. Texas	Aug. 26, 2021	Aug. 26, 2021 Docket
2 3:21-cv-00173	Request for Issuance of Summons	July 30, 2021	July 30, 2021 Other
1 3:21-cv-00173	Complaint United States v. Texas	July 30, 2021	July 30, 2021 Complaint
5 3:21-cv-00173	Order United States v. State of Texas and Greg Abbott	July 31, 2021	July 31, 2021 Order/Opinion
14 3:21-cv-00173	Texas's Unopposed Motion For Leave to File Response in Excess of Page Limits United States v. Texas	Aug. 2, 2021	Aug. 2, 2021 Pleading / Motion / Brief
9 3:21-cv-00173	Pleading/Motion/Brief United States v. State of Texas and Greg Abbott	Aug. 2, 2021	Aug. 2, 2021 Pleading / Motion / Brief
18 3:21-cv-00173	Temporary Restraining Order	Aug. 3, 2021	Aug. 3, 2021 Order/Opinion 2021 WL 3362598
17 3:21-cv-00173	United States of America's Reply in Support of its Emergency Motion For a Temporary Restraining Order or Preliminary Injunction United States v. State of Texas and Greg Abbott	Aug. 3, 2021	Aug. 3, 2021 Pleading / Motion / Brief
1 3:21-cv-00178	Complaint for Declaratory and Injunctive Relief Annunciation House v. Abbott	Aug. 4, 2021	Aug. 4, 2021 Complaint

ECF Number	Description	Date	Link Date / Link
1	COMPLAINT (Filing fee $ 402.), filed by UNITED STATES OF AMERICA. (Attachments: # 1 Civil Cover Sheet)(Kolsky, Joshua) (Entered: 07/30/2021) 1 Civil Cover Sheet View on RECAP	July 30, 2021	July 30, 2021 Clearinghouse
2	REQUEST FOR ISSUANCE OF SUMMONS by UNITED STATES OF AMERICA. (Kolsky, Joshua) (Entered: 07/30/2021)	July 30, 2021	July 30, 2021 Clearinghouse
3	MOTION for Temporary Restraining Order or Preliminary Injunction by UNITED STATES OF AMERICA. (Attachments: # 1 Hastings Declaration, # 2 Hott Declaration, # 3 Sualog Declaration, # 4 Proposed Order)(Avallone, Zachary) (Entered: 07/30/2021) 1 Hastings Declaration View on RECAP 2 Hott Declaration View on RECAP 3 Sualog Declaration View on RECAP 4 Proposed Order View on RECAP	July 30, 2021	July 30, 2021 PACER
	Case assigned to Judge Kathleen Cardone. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (mt)	July 30, 2021	July 30, 2021 PACER
	If ordered by the court, all referrals will be assigned to Magistrate Judge Berton (mt)	July 30, 2021	July 30, 2021 PACER
4	NOTICE of Attorney Appearance by Zachary Avallone on behalf of UNITED STATES OF AMERICA (Avallone, Zachary) (Entered: 07/30/2021)	July 30, 2021	July 30, 2021 PACER
	Case Assigned/Reassigned	July 30, 2021	July 30, 2021 PACER
	To be Referred to EP Mag Judge	July 30, 2021	July 30, 2021 PACER
5	ORDER SETTING GOVERNMENT'S EMERGENCY MOTION (TRO/PRELIMINARY INJUNCTION) HEARING (set for Monday, 8/2/2021 02:00 PM MOUNTAIN TIME before Judge Kathleen Cardone, COURTROOM 522, UNITED STATES COURTHOUSE, 525 MAGOFFIN AVE, EL PASO, TEXAS). Signed by Judge Kathleen Cardone. (mt) (Entered: 07/31/2021)	July 31, 2021	July 31, 2021 Clearinghouse
6	NOTICE of Attorney Appearance by Brian Boynton on behalf of UNITED STATES OF AMERICA. Attorney Brian Boynton added to party UNITED STATES OF AMERICA(pty:pla) (Boynton, Brian) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
7	NOTICE of Attorney Appearance by Jean Lin on behalf of UNITED STATES OF AMERICA (Lin, Jean) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
8	Summons Issued as to Greg Abbott, STATE OF TEXAS. (ep1) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
9	Memorandum in Opposition to Motion, filed by Greg Abbott, STATE OF TEXAS, re 3 MOTION for Temporary Restraining Order or Preliminary Injunction filed by Plaintiff UNITED STATES OF AMERICA (Sweeten, Patrick) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 Clearinghouse
10	NOTICE of Attorney Appearance by Judd E. Stone on behalf of Greg Abbott, STATE OF TEXAS (Stone, Judd) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
11	NOTICE of Attorney Appearance by William Thomas Thompson on behalf of Greg Abbott, STATE OF TEXAS (Thompson, William) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
12	NOTICE of Attorney Appearance by Patrick K. Sweeten on behalf of Greg Abbott, STATE OF TEXAS (Sweeten, Patrick) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
13	APPENDIX to 9 Memorandum in Opposition to Motion by Greg Abbott, STATE OF TEXAS. (Sweeten, Patrick) (Entered: 08/02/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
14	Unopposed MOTION for Leave to Exceed Page Limitation for Response to Plaintiff's Motion for Emergency Temporary Restraining Order by Greg Abbott, STATE OF TEXAS. (Attachments: # 1 Proposed Order)(Sweeten, Patrick) (Entered: 08/02/2021) 1 Proposed Order View on RECAP	Aug. 2, 2021	Aug. 2, 2021 Clearinghouse
	Text Order GRANTING 14 Motion for Leave to File Excess Pages entered by Judge Kathleen Cardone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (KC)	Aug. 2, 2021	Aug. 2, 2021 PACER
15	Minute Entry for proceedings held before Judge Kathleen Cardone: Motion Hearing held on 8/2/2021 re 3 MOTION for Temporary Restraining Order or Preliminary Injunction filed by UNITED STATES OF AMERICA (Motion taken under advisement, supplemental documents due 08/03/21 (Minute entry documents are not available electronically.). (Court Reporter ecro.)(ep1) (Entered: 08/03/2021)	Aug. 2, 2021	Aug. 2, 2021 PACER
	Order on Motion for Leave to File Excess Pages	Aug. 2, 2021	Aug. 2, 2021 PACER
	Motions Taken Under Advisement: 3 MOTION for Temporary Restraining Order or Preliminary Injunction (ep1)	Aug. 3, 2021	Aug. 3, 2021 PACER
16	Unopposed MOTION for Leave to Exceed Page Limitation by UNITED STATES OF AMERICA. (Attachments: # 1 Proposed Order)(Kolsky, Joshua) (Entered: 08/03/2021)	Aug. 3, 2021	Aug. 3, 2021 PACER
17	REPLY to Response to Motion, filed by UNITED STATES OF AMERICA, re 3 MOTION for Temporary Restraining Order or Preliminary Injunction filed by Plaintiff UNITED STATES OF AMERICA (Attachments: # 1 Affidavit)(Kolsky, Joshua) (Entered: 08/03/2021) 1 Affidavit View on RECAP	Aug. 3, 2021	Aug. 3, 2021 Clearinghouse
	Text Order GRANTING 16 Motion for Leave to File Excess Pages entered by Judge Kathleen Cardone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (KC)	Aug. 3, 2021	Aug. 3, 2021 PACER
18	ORDER GRANTING 3 Motion for TEMPORARY RESTRAINING ORDER, Signed by Judge Kathleen Cardone. (mt) (Entered: 08/03/2021)	Aug. 3, 2021	Aug. 3, 2021 Clearinghouse
19	EXPEDITED TRANSCRIPT REQUEST by STATE OF TEXAS for proceedings held on 8/2/21. Proceedings Transcribed: Hearing on TRO. Court Reporter: Walter Chiriboga. (mt) (Entered: 08/03/2021)	Aug. 3, 2021	Aug. 3, 2021 PACER
	Motions Taken Under Advisement	Aug. 3, 2021	Aug. 3, 2021 PACER
	Order on Motion for Leave to File Excess Pages	Aug. 3, 2021	Aug. 3, 2021 PACER
20	TRANSCRIPT REQUEST by UNITED STATES OF AMERICA for proceedings held on August 2, 2021. Proceedings Transcribed: Hearing for motion for TRO. Court Reporter: Walter Chiriboga. (Avallone, Zachary) (Entered: 08/04/2021)	Aug. 4, 2021	Aug. 4, 2021 PACER
57	COMPLAINT, filed by Annunciation House, FIEL Houston, Angry Tias & Abuelas of the Rio Grande Valley, Jennifer Harbury. (Attachments: # 1 Civil Cover Sheet)(ep1) (Entered: 09/07/2021) 1 Civil Cover Sheet View on PACER	Aug. 4, 2021	Aug. 4, 2021 RECAP
58	MOTION for Preliminary Injunction by Angry Tias & Abuelas of the Rio Grande Valley, Annunciation House, FIEL Houston, Jennifer Harbury. (Attachments: # 1 Exhibit A. Executive Order GA-37, # 2 Exhibit B. Garcia Declaration, # 3 Exhibit C. Sandefur Declaration, # 4 Exhibit D. Harbury Declaration, # 5 Exhibit E. Espinosa Declaration, # 6 Exhibit F. Title 42 Order, # 7 Exhibit G. Gov. Greg Abbott Proclamation, # 8 Exhibit H. Executive Order GA-38, # 9 Proposed Order)(ep1) (Entered: 09/07/2021) 1 Exhibit A. Executive Order GA-37 View on PACER 2 Exhibit B. Garcia Declaration View on PACER 3 Exhibit C. Sandefur Declaration View on PACER 4 Exhibit D. Harbury Declaration View on PACER 5 Exhibit E. Espinosa Declaration View on PACER 6 Exhibit F. Title 42 Order View on PACER 7 Exhibit G. Gov. Greg Abbott Proclamation View on PACER 8 Exhibit H. Executive Order GA-38 View on PACER 9 Proposed Order View on RECAP	Aug. 4, 2021	Aug. 4, 2021 RECAP
21	TRANSCRIPT REQUEST for proceedings held on 08/2/21. Proceedings Transcribed: ECRO. Court Reporter: Walter Chiriboga. (ep1) (Entered: 08/05/2021)	Aug. 5, 2021	Aug. 5, 2021 PACER
22	Transcript filed of Proceedings held on 08/02/2021, Proceedings Transcribed: Hearing on Motion for TRO. Court Reporter/Transcriber: Walter A. Chiriboga, Jr., Telephone number: 915-834-0553. Tape Number: 01. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 8/30/2021, Redacted Transcript Deadline set for 9/7/2021, Release of Transcript Restriction set for 11/5/2021, (wc) (Entered: 08/07/2021)	Aug. 7, 2021	Aug. 7, 2021 PACER
23	NOTICE of Attorney Appearance by Michael Joseph Gerardi on behalf of UNITED STATES OF AMERICA. Attorney Michael Joseph Gerardi added to party UNITED STATES OF AMERICA(pty:pla) (Gerardi, Michael) (Entered: 08/08/2021)	Aug. 8, 2021	Aug. 8, 2021 PACER
24	Joint MOTION for Clarification Regarding August 13 Hearing by UNITED STATES OF AMERICA. (Lin, Jean) (Entered: 08/09/2021)	Aug. 9, 2021	Aug. 9, 2021 RECAP
25	ORDER GRANTING IN PART 24 Joint Motion for Clarification. FURTHER ORDERED that, on or before August 11, 2021, at 5:00 p.m. the parties shall each FILE with the Court a list of all witnesses and an Exhibit List. Signed by Judge Kathleen Cardone. (mc4) (Entered: 08/09/2021)	Aug. 9, 2021	Aug. 9, 2021 RECAP
26	MOTION to Appear Pro Hac Vice by Steven C. Levatino (For Eric Rassbach- Becket Fund for Religious Liberty) ( Filing fee $ 100 receipt number 0542-15104022) by on behalf of Catholic Charities of the Rio Grande Valley. (Attachments: # 1 Exhibit Application for Pro Hac Vice-Rassbach)(Levatino, Steven) (Entered: 08/10/2021)	Aug. 10, 2021	Aug. 10, 2021 PACER
27	MOTION to Appear Pro Hac Vice by Steven C. Levatino (For Llori Whindham- Becket Fund for Religious Liberty ( Filing fee $ 100 receipt number 0542-15104107) by on behalf of Catholic Charities of the Rio Grande Valley. (Attachments: # 1 Exhibit Application for Pro Hac Vice-Windham)(Levatino, Steven) (Entered: 08/10/2021)	Aug. 10, 2021	Aug. 10, 2021 PACER
28	ORDER GRANTING IN PART 26 Motion to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order.; GRANTING IN PART 27 Motion to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Attorneys Rassbach and Windham shall apply for admission to practice before the United States District Court for the Western District of Texas on or before September 22, 2021, and diligently pursue such application until they are either admitted to practice before this Court or denied admission. Signed by Judge Kathleen Cardone. (ep1) (Entered: 08/11/2021)	Aug. 11, 2021	Aug. 11, 2021 RECAP

Case: United States v. Texas; Annunciation House v. Abbott

3:21-cv-00173 | U.S. District Court for the Western District of Texas

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