Conservative states jointly challenging the Biden administration have found their preferred venue and, within it, an ideal judge in a rural Louisiana farming parish where, until recently, the federal courthouse doubled as a post office.
Republican attorneys general are precisely targeting federal courthouses in western Louisiana where they see the best chance of winning, according to a Bloomberg Law analysis of 239 partisan multistate cases across the past three administrations. The data was provided by Marquette University political science professor Paul Nolette.
Solid conservative majorities now control the US Court of Appeals for the Fifth Circuit, which hears appeals from Louisiana, and the US Supreme Court. As a result, Republican attorneys general have never had a better chance of prevailing in political battles if they land before the right trial court judge.
“Even in comparison to the last time Republicans had an opposing party administration in Washington with Obama, they’ve gotten a lot more sophisticated in terms of how they are forum shopping, and strategizing, and collaborating with each other,” said Nolette, who studies how states have used litigation against the federal government to influence national policy.
State officials from both parties try to ensure lawsuits are filed in trial courts most likely to rule in their favor, a strategy known as forum shopping. For instance, under President Barack Obama, Republican officials preferred federal courts in Texas when they filed at the district court level.
The US District Court for the Western District of Louisiana has emerged as a conduit for blunting President Joe Biden’s executive power in large part because it’s a place where Republicans can virtually guarantee their lawsuit will fall to a Republican-appointed judge.
Terry Doughty, a Trump appointee based in Monroe, La., is one judge the Republican attorneys general stumbled upon—and since then have sought out specifically.
Doughty first caught the attention of Republican attorneys general in the summer of 2021 when he ordered the White House to restart oil and gas leasing on federal lands. They returned to him again in fighting Biden’s Covid-19 vaccine mandates for health-care workers and Head Start teachers.
He’s now heard more multistate challenges to Biden’s priorities than any other judge in the nation. During a recent interview in his chambers Doughty joked that he doesn’t know if that makes him lucky or unlucky.
‘Duck Dynasty’ Country
Nine of the 45 multistate Republican lawsuits against the Biden administration have been heard in the US District Court for the Western District of Louisiana, which stretches from the Arkansas state line down to the Gulf of Mexico. Doughty has heard five of these challenges in less than two years, matching the most heard by a single judge during President Donald Trump’s entire four years in office.
How Doughty became a frequent target of Republican attorneys general is a story of happenstance, the peculiarities in how federal courts are structured, and partisan politics.
Doughty’s courthouse sits downtown where vacant storefronts outnumber occupied ones in a city of less than 50,000 people best known for its proximity to the “Duck Dynasty” reality TV show family. It is within the purview of the US Court of Appeals for the Fifth Circuit that encompasses Louisiana, Texas, and Mississippi.
The attorneys general, whose suits have represented as many as two dozen states, can file in any state that joins the litigation and they’re seeking out judges most likely to issue an injunction that halts a Biden administration directive. Even with a reliably conservative appeals court, a case is easier to win on appeal if a district court judge has already blocked the federal policy.
“If the district court rules against you, then you have to convince the court of appeals that the district court was wrong on the merits,” said Stephen Vladeck, a professor at the University of Texas at Austin School of Law who studies forum shopping. “That’s a much heavier lift than just convincing the court of appeals not to stay a district court injunction.”
Multistate challenges to an administration’s policies, like Biden’s vaccine mandate for health-care workers and some teachers, have the potential to be more powerful than a challenge from a single state, nurse, or doctor because they can have broader impacts. Even if a judge is only willing to block a policy from being enforced against the suing parties, that could still be half the country if a large swath of states signed onto the litigation.
Doughty, 63, said he likes hearing cases challenging the separation of powers between the executive and legislative branches, but he worries about how his rulings will be perceived. And the former state court judge, who was born, raised, and educated in Louisiana, said he first sought out the life-appointment on the federal bench during the Obama administration.
“I’m not political, I don’t feel like,” Doughty, who was confirmed unanimously by the Senate in 2018, said in a quiet drawl during an hour-long interview in his chambers. “I know it may be perceived that way, but I really honestly try not to be. I’m not deciding these cases because I’m wanting to get the Biden administration.”
Divided by Divisions
Republican attorneys general didn’t specifically seek out Doughty the first time around while fighting Biden’s attempt to halt new oil and gas leasing operations on federal lands and water. Rather, they appear to have been focused on finding a venue where they’d be assured of a Republican-appointed judge.
Such a sure bet is possible because of the way the nation’s 94 district courts are organized and cases are assigned. Many districts are split into multiple geographic divisions, particularly when a district encompasses a large territory.
Divisions in more rural areas may only have one or two judges assigned to cases filed there. That’s the case in Monroe where Doughty gets the bulk of the case assignments.
Individual district courts have a lot of flexibility when deciding how to divvy up disputes, said Jeremy Fogel, who served as a federal judge for the Northern District of California and also directed the Federal Judicial Center, the US judiciary’s education and research arm.
For example, some courts might assign cases randomly across all of their judges, while others split them up among judges based on predetermined percentages. Those variations are evident in the 39 divisions within the Fifth Circuit’s nine district courts, two of which don’t have divisions.
In the Western District of Louisiana’s Lake Charles Division, where the oil and gas moratorium suit was filed in March 2021, two Republican appointees heard all of the civil cases filed there. Ten percent went to Doughty and 90% got assigned to Judge James Cain, another Trump appointee.
Doughty granted the requested preliminary injunction in the oil and gas leasing case, temporarily lifting that moratorium nationwide. Having obtained the outcome they wanted from Doughty, Republicans, often led by Louisiana, sought him out by filing their next cases specifically in the Monroe Division.
“If you know that a particular judge has ordered a preliminary injunction in the past, it’s a valuable piece of information when you’re thinking about what forum you might want to file in, in the future,” Elysa Dishman, an associate professor at Brigham Young University Law School, said of multistate filings.
Doughty has been assigned to hear anywhere from 80% to 100% of cases filed there during the Biden administration, in addition to his assignments in other divisions within the Western District.
Looking back on the first multistate lawsuit Republicans filed against the Biden administration in Monroe, Doughty second guessed his decision to block Biden’s vaccine mandate for health-care workers across the country, rather than just in the suing states.
“I shouldn’t have done it nationwide,” Doughty told Bloomberg Law while sitting behind his desk decorated with wooden mallards and a radio shaped like a miniature jukebox. But Doughty said he thought he was the only judge with a case challenging the rule at the time.
If the first judge who hears a challenge to a federal policy blocks it nationwide, that can lead to forum shopping, Doughty noted.
About a month after Doughty blocked Biden’s vaccine rule for health-care workers across the country, he also blocked Biden’s vaccine mandate for Head Start teachers, but this time limited the ruling to Louisiana and the 23 other states that challenged it.
Route to Victory
Under Obama, the Northern and Southern Districts of Texas attracted the most of the 27 multistate suits Republican attorneys general filed in district courts. Northern District of Texas Judge Reed O’Connor oversaw the most of any judge with a total of four cases over Obama’s eight years.
Democrats brought 90 multistate suits against Trump at the district level and 59% of them were filed in the Southern District of New York and Northern District of California. In Trump’s four years in office, the most multistate cases any single judge heard was five, equal to the number Doughty already has heard targeting Biden policies.
In the highest profile of those cases, the vaccine mandate for health-care workers, the Fifth Circuit limited Doughty’s injunction to the 14 states that filed the litigation and then tossed it out in light of the Supreme Court’s decision to allow the mandate to take effect in a different case.
Republican attorneys general have focused on a handful of Fifth Circuit venues where Republican-appointed trial court judges are assigned nearly all of the cases.
In total, 82% of the cases brought in district courts within the Fifth Circuit were filed in just five divisions: the Northern District of Texas’ Amarillo Division, the Southern District of Texas’ Victoria Division, and three of the five divisions within the Western District of Louisiana.
All but one of those 17 lawsuits against the Biden administration were assigned to Republican-appointed judges.
Having several divisions with one or two active judges makes the sprawling Western District attractive. It also has the highest proportion of active judges appointed by Republican presidents of any within the Fifth Circuit. The district’s sole active Democratic appointee, Elizabeth Erny Foote, took a form of semi-retirement known as senior status in January, which allows judges to take on fewer cases.
Selection Process
In joining forces, state attorneys general have more options in where to file, a decision that is made together, said former Democratic Maine Attorney General James Tierney, a lecturer in law at Harvard Law School.
Often the state that takes the lead is where the litigation is filed, said Peter Bisbee, executive director of the Republican Attorneys General Association. He doesn’t think Republican attorneys general really forum shop. Where a case ends up has more to do with where the most aggressive attorneys general are located than the court itself, Bisbee said.
“The most aggressive states on the left fall into the circuit courts that are furthest to the left with their judges. The same thing goes for our circuits,” he said, noting that’s the Ninth Circuit for Democrats and the Fifth Circuit for Republicans.
Nolette, however, said the data clearly shows evidence of forum shopping.
“It’s not a coincidence that the same judges keep coming up time and time again and that’s an intentional strategy.” Nolette said. “If it was just a matter of aggressive states in the Fifth Circuit, you wouldn’t have those patterns.”
Republican state attorneys general in Texas and six other states involved in the multistate lawsuits against the Biden administration didn’t respond to requests for comment about their rationale for where they are filing suits.
Aggressive Attorneys General
Most of the cases filed in Louisiana’s Western District have been led by the state’s Attorney General Jeff Landry and Solicitor General Elizabeth Murrill, both of whom are running for higher office in 2023.
Landry, a former congressman who has served as the state’s attorney general since 2016, joined what’s expected to be a crowded field of gubernatorial candidates in October. Murrill is seeking to succeed him as attorney general.
Highlighting their court fights against what both describe as federal “overreach” is a way to help them stand apart in competitive races.
“I’m not saying that Jeff Landry doesn’t believe in the lawsuits that he’s joining or initiating against the Biden administration, but I am saying that it is also a good way to make sure that you are noted in the press as fighting those darn liberals up in Washington and holding steady for conservative Louisiana values,” said Pearson Cross, a political science professor at the University of Louisiana at Monroe.
Murrill publicly touted that the attorney general’s office had more than 30 cases pending against the Biden administration while speaking at an event in June hosted by the Republican Party of East Baton Rouge Parish. “I will tell y’all, we’ve been busy,” Murrill said in a video of the event posted to Facebook.
In a statement, Murrill said, “We have no control over the assignment of cases, although we are always grateful to be assigned to a court that will give full and fair consideration of the issues presented.”
Landry didn’t respond to multiple requests for comment submitted to his office and his campaign.
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For Bisbee it’s no surprise the Western District of Louisiana has gotten more multistate cases than any other district or that Landry has been leading the charge.
“General Landry is one of our most aggressive state attorneys general,” Bisbee said. “He has some of the best relationships with the other AGs across the country.”
In addition to Louisiana, Texas has also been a key player, leading 10 of the multistate lawsuits filed against the Biden administration, seven of which have been filed within its borders.
When Texas joins multistate litigation or goes it alone to challenge federal policies, Vladeck found it consistently files in divisions in the state’s Northern and Southern Districts where it can hand-pick which judge will hear the case.
He pointed out this phenomenon in a brief to the Supreme Court supporting the federal government in a challenge to Biden’s immigration enforcement guidelines brought by Texas and Louisiana. The court heard arguments in the case on Nov. 29.
‘Just Good Lawyering’
Attorneys and legal scholars alike say lawyers are supposed to get the best outcome for their client and shopping for favorable forums or judges are a means to that end.
“You can’t blame the lawyers,” said Gregg Costa, a former Fifth Circuit judge who retired in August to return to private practice at Gibson Dunn & Crutcher LLP.
Before he was on the appeals court, Costa was a trial judge in the Galveston division of the Southern District of Texas where he handled 100% of civil cases. He knows if a judge keeps ruling for the filing party, the lawyers are going to keep trying to get them.
“It’s just good lawyering,” he said.
Costa has also seen judges favor litigants. It’s why he’s advocated for changes that would make judge shopping in single-judge divisions harder, such as instituting three-judge panels for lawsuits seeking nationwide injunctions.
“There’s 677 district judges” across the country, Costa said. “If you can pick one of them, it’s not hard to find someone who’s going to agree with your position, however extreme it might be. And so this is just feeding the perception that the courts are partisan actors.”
In addition to the vaccine and oil and gas drilling cases, Doughty got a multistate lawsuit challenging a federal statute related to horse racing that was filed in the Lafayette Division. He was also assigned a multistate lawsuit filed by Missouri and Louisiana in Monroe against Biden administration officials for allegedly colluding with social media companies to censor conservatives online. That case is still pending.
Republicans have largely gotten what they wanted from the cases filed with Doughty.
In the oil and gas drilling dispute, the Fifth Circuit tossed out the district court’s injunction and remanded the case, but the district court ruled for the states a second time and issued a permanent injunction.
The Fifth Circuit struck down the law that shifted regulating power of the horse racing industry to a private body in a separate case filed in Texas and sent the case back to Doughty in light of that decision.
‘One-Two Punch’
Private plaintiffs have also sought Doughty out. A day after the states filed a lawsuit in Monroe challenging the vaccine mandate for Head Start teachers and staff, and the mask mandate for kids in the program, two former Head Start teachers in Louisiana and Ohio filed a lawsuit of their own.
The teachers, Sandy Brick and Jessica Trenn, argued the government exceeded its statutory authority in issuing the rule, and failed to follow proper notice and comment rulemaking procedure.
The case, which was ultimately consolidated with the state’s lawsuit, is a good example of how public interest groups can work alongside state coalitions to challenge federal policies, said Daniel Suhr, managing attorney at the Liberty Justice Center, a Chicago-based nonprofit law firm that represented the teachers.
“There are times when having an individual like Sandy Brick might have individual constitutional rights that the states can’t necessarily press,” he said. “It’s really a one-two punch.”
Suhr said there needs to be judges willing to rein in the legislative and executive branches when they overstep their federal authority.
“The corollary to people charging that we have an over politicized judiciary is that we have a president and Congress that are pushing beyond the constitutional boundaries that our system sets up,” he said.
Doughty, who became chief judge of the Western District on Dec. 5, rejected any notion that he will always rule against the Biden administration because he’s a Trump appointee or that he feels pressured to do so.
“There’s no question I’m conservative but that doesn’t mean I’ll rule a certain way,” he said.
Doughty, though, sometimes feels pressured not to block a federal policy nationwide if he’s issued several injunctions in other cases already.
“But I just, it comes down to it, I’ve got to follow what I think is the law,” he said.
Methodology
Bloomberg Law analyzed Marquette University professor Paul Nolette’s database of multistate actions to determine the litigation’s most frequent circuits, original courts, and judges. The data included in this story, last updated Nov. 26, represents only instances where partisan coalitions of state attorneys general challenged an opposite-party administration, either as original plaintiffs or successful intervenors.
Bloomberg Law used public information available on federal court websites and contacted courts to collect information about divisions and case assignment practices within those divisions. Reporters matched the lawsuits with the assignment order in effect at the time the cases were filed. Special thanks to Alex Cohen.
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