United States District Court

Northern District of Texas

Amarillo Division 

STATE OF TEXAS,

Plaintiff,

v.

ALEJANDRO MAYORKAS, in his official 

capacity as Secretary of Homeland 

Security, et al., 

Defendants. 

Case 2:22-cv-00094

Texas’ Opposition to Defendants’ Motion 

For Relief From Scheduling Order

The Defendants’ motion seeking postponement should be denied. 

First, as the Defendants concede, ECF No. 24 at 3, several of Texas’s claims 

do not require an administrative record. If the Interim Final Rule violates the 

Homeland Security Act, the Appointments Clause, and or the Defendants’ 

parole authority, it does so regardless of the record the Defendants assembled 

to support their policy choice to violate them. 

Second, this is one of two lawsuits, both filed on April 28, that the 

Defendants are facing. ECF No. 1; see ECF No. 1, Arizona v. Garland, No. 6:22-

cv-1130 (W.D. La. Apr. 28, 2022). They have known for nearly a month that, 

whether filed in this court, in Louisiana, or in the District of Columbia, they 

would need an administrative record. 

Third, to the extent a record is necessary, there is no reason the 

Defendants can’t identify gaps that need filling when they file their opposition.

The Defendants have to rely on the reasons they gave when they propounded 

their rule; they can’t use the administrative record to invent new justifications 

for it. See Dept. of Commerce v. New York, 139 S. Ct. 2551, 2556 (2019) (“A 

court is ordinarily limited to evaluating the agency’s contemporaneous 

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Texas’s Opp. to Mot. for Relief from Sched. Order

explanation in light of the existing administrative record[.]”). If the quarterream of preamble prepended to the rule—which is already before the Court—

doesn’t justify their choices, the back-up documents are irrelevant, and the 

Defendants lose anyway. If the justification in the quarter-ream needs 

additional explanation, the Court can rule on the portions of the preliminaryinjunction motion that don’t need elaboration—that is, rule based on its 

“review [of] those parts of [the record] cited by the parties, 5 U.S.C. § 706— 

and postpone ruling on the pending portions until the entire record is produced. 

Fourth, just as with their motion to transfer, the Defendants identify no 

particular jurisdictional discovery they need. Vague notions that facts might 

be out there do not warrant postponements. Cf. Adams v. Travelers Indem. Co. 

of Conn. 465 F.3d 156, 162 (5th Cir. 2006) (“A party cannot evade summary 

judgment simply by arguing that additional discovery is needed, and may not 

simply rely on vague assertions that additional discovery will produce needed, 

but unspecified, facts.”) (cleaned up). And at any rate, if their only 

jurisdictional argument is that this case belongs in the District of Columbia, 

that is a legal conclusion, not a fact-based one.

Fifth, the Defendants ask this Court to wait, paralyzed, for a ruling from 

the Supreme Court in the coming month that might prove dispositive to their 

motion to transfer. They claim potential prejudice due to a circuit split, but, as 

with their vague notion regarding discovery, the point to no specific issues

where such a split exists, much less describe how it matters. 

Sixth, the Defendants concede that their rule is going to be rolled out slowly 

and will take months to fully implement. ECF No. 24 at 7. If so, and if the 

Court is inclined to grant discovery or postpone the preliminary-injunction 

schedule, what harm accrues to the Defendants from a postponement of the 

effective date of the rule until after consideration of the motion? If Texas is 

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Texas’s Opp. to Mot. for Relief from Sched. Order

correct, it is threatened with irreparable harm as soon as the Interim Rule goes 

into effect; the Court has the power to, “as may be required and to the extent 

necessary to prevent irreparable injury, issue all necessary and appropriate 

process to postpone the effective date of [the Defendants’] action. . . .” 5 U.S.C. 

§ 705. The equities prefer preventing harm to Texas over the Defendants’ 

admittedly pokey roll-out plans.

Texas respectfully requests that the Court deny Defendants’ Motion for 

Relief from the Scheduling Order and further requests all other relief to which 

it may be entitled. 

Dated May 24, 2022. Respectfully submitted,

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General 

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

AARON F. REITZ

Lead Counsel

Deputy Attorney General for Legal Strategy

Texas Bar No. 24105704

aaron.reitz@oag.texas.gov

/s/ Leif A. Olson 

LEIF A. OLSON

Special Counsel

Texas Bar No. 24032801

leif.olson@oag.texas.gov

GENE P. HAMILTON

America First Legal Foundation

300 Independence Avenue SE

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org 

Counsel for the State of Texas

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Texas’s Opp. to Mot. for Relief from Sched. Order

Certificate of Service

I certify that on May 24, 2022, this opposition was filed through the Court’s 

CM/ECF system, which served it upon all counsel of record.

/s/Leif A. Olson

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