Litigation Tracker: 1 TX win, 1 TX loss, and 1 in which TX walks away

Summer is just around the corner, and with that are also some recent decisions coming out of Texas in extremist challenges to immigrant inclusive policies; see below for developments from May. As always, you can find more information about these and other cases on our microsite.

Judge Tipton denies intervention in border wall dispute, enters final judgment for TX

Earlier this week, Judge Tipton entered two orders of consequence in the Texas border wall case (that we have reported on in the last three newsletters). First, he denied the five pending motions to intervene, holding that movants had waited too long to try to intervene and that, regardless, they had other avenues to litigate their legal claims (the opinion did not acknowledge that the environmental organizations and ranch owner seeking to intervene had already litigated their claims—and won—yet seem to have no way to attack his injunction without intervention). Minutes later, he granted the joint request of Texas and the Biden Administration to make permanent his March preliminary injunction (prohibiting DHS from using billions of appropriated funds other than to build “physical barriers” at the border) and to enter final judgement for Texas.

Any of the parties or would-be intervenors can now appeal to the Fifth Circuit, but there’s a ticking clock on the funds, which (by law) expire if not obligated to be spent (i.e., via contract) within five years. Half of the money at issue would expire in five months, on October 1, while the other half would expire on October 1, 2025.

Judge Tipton rejects Texas’s reconsideration request, case to proceed at the Fifth Circuit

Also this week, Judge Tipton denied Texas’s motion for reconsideration of his March 8 decision dismissing Texas’s challenge to the CHNV parole program. Judge Tipton explained that Texas’s motion was simply an impermissible re-hashing of the same arguments from trial back in August of last year. As a result, nothing has changed in terms of Judge Tipton’s final order and judgment in the CHNV parole case or to the CHNV parole program. The appeal at the Fifth Circuit will now proceed on a schedule that has yet to be issued.

Interestingly, but surely coincidentally, twice in a row now Judge Tipton has signed opinions giving Texas both a loss (in the CHNV case) and a win (in the border wall case) on the same day: earlier this week and on March 8, 2024.

Texas decides not to appeal standing loss in ATD funding case

Also in May, Texas’s deadline to appeal Judge Hendrix’s decision dismissing the state’s claims regarding an appropriation to the Alternatives to Detention (ATD) case management pilot program came and went without any action from the state. (The Biden Administration did appeal Judge Hendrix’s injunction prohibiting application of the Pregnant Workers Fairness Act to Texas as an employer). This is not surprising: Texas’s arguments that it has standing to sue over the ATD appropriation are exceptionally weak, and the state surely worried what precedent could result if it lost such an appeal.

As always, we’ll keep you posted on these and other cases.

Thanks for reading,

Esther Sung
Legal Director

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