IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

AMARILLO DIVISION 

) 

STATE OF TEXAS, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 2:22-cv-00094-Z

) 

ALEJANDRO MAYORKAS, ) 

in his official capacity as ) 

Secretary of Homeland Security, et al., ) 

 ) 

Defendants. ) 

 ) 

DEFENDANTS’ PROPOSED SCHEDULE 

 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 1 of 13 PageID 683
1 

INTRODUCTION 

On May 24, 2022, the Court ordered the parties “to confer and to each separately propose 

a briefing schedule with respect to Plaintiff’s Motion for Preliminary Injunction.” ECF No. 28. 

The Court further ordered that “[t]he proposed briefing schedules shall address whether—and to 

what extent—discovery is needed and the earliest date that such discovery can be completed,” and 

“also address the feasibility of Defendants’ proposed June 3 and June 10 dates.” Id. For the reasons 

set out below, Defendants propose the following. 

First, Defendants propose the Court stay this case pending resolution of Defendants’ 

motion to transfer, and pending further developments in Arizona v. Garland, No. 6:22-cv-1130 

(W.D. La.), a case challenging the same Interim Final Rule (IFR) in which an earlier-filed motion 

for preliminary injunction is pending. Second, if the Court is not inclined to stay this case, the 

Court should permit Defendants to conduct some limited jurisdictional discovery into Texas’s 

standing to bring this suit before requiring additional briefing. That discovery should take place 

on a schedule similar to that ordered in Arizona, where the court has permitted similar discovery 

before requiring additional briefing on the preliminary injunction motion or considering the court’s 

jurisdiction to hear a suit challenging the IFR. Third, if the Court is not inclined to permit some 

jurisdictional discovery before moving forward with this matter, the Court should allow 

Defendants until June 3, 2022, to assemble and produce the administrative record for the IFR, the 

same expedited schedule Defendants are working to meet for the record in Arizona, and permit 

Defendants a reasonable amount of time after the record is available, at least until June 10, to 

respond to the motion for preliminary injunction. The Court should reject any effort by Texas to 

seek a more compressed schedule in light of Texas’s decision to wait 55 days to draft and file a 

motion for a preliminary injunction in this case. 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 2 of 13 PageID 684
2 

I. The Court Should Stay This Case.

As set out in Defendants’ fully briefed Motion to Transfer and Motion to Stay, ECF Nos. 

7, 15, rather than move forward with briefing on Texas’s Motion for Preliminary Injunction, 

Defendants believe all deadlines and proceedings in this case should be stayed until the Court rules 

on the Motion to Transfer. As noted in that motion, courts in this circuit do not have jurisdiction 

to hear claims of the nature Texas raises in this case, and there is thus no jurisdiction for the Court 

to consider or grant a preliminary injunction. Moreover, Defendants cannot fully begin a response 

to the Motion for a Preliminary Injunction until Defendants know which circuit’s law applies. 

In addition, as noted in Defendants’ Notice of Related Authority, the District Court for the 

Western District of Louisiana is already considering a similar challenge to the IFR, and has ordered 

supplemental briefing and expedited discovery that is relevant to the transfer motion and to States’ 

ability to pursue a similar, and earlier filed, motion for preliminary injunction in that case. See ECF 

No. 18 at 1-2 (noting court in Arizona ordered expedited discovery related to State standing to 

challenge the IFR and supplemental briefing on, among other things, section 1225(b)(1)(B)(ii), 

which relates to the basis for Defendants’ transfer motion and may result in transfer in that case). 

Because these developments may also inform the course of this case, and because the Louisiana 

court is further along in resolving these issues, it is appropriate to stay this case to avoid 

unnecessary duplicative litigation and conserve judicial resources. Id. at 3-4; see also Conner v. 

Biden, No. 6:21-cv-074, 2021 WL 6773174, at *5 (N.D. Tex. Dec. 28, 2021) (noting a “Court may 

stay a case sua sponte based on a potential lack of standing pending a ruling by another court” and 

collecting cases). 

The Fifth Circuit has repeatedly held that, “regardless of whether or not the suits here are 

identical, if they overlap on the substantive issues,” the issues should be resolved “in ... the 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 3 of 13 PageID 685
3 

jurisdiction first seized of the issues.” Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 n.6 (5th 

Cir. 1971); see also West Gulf Maritime Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 728-29 

(5th Cir. 1985) (“As between federal district courts, ... the general principle is to avoid duplicative 

litigation,” and “piecemeal resolution of issues that call for a uniform result.” (quotation marks 

omitted)); Burger v. Am. Mar. Officers Union, 170 F.3d 184 (5th Cir. 1999) (“[A] district court 

may ... stay ... an action where the issues presented can be resolved in another federal court,” 

particularly “when similar actions are pending in two federal district courts.”); Save Power Ltd. v. 

Syntek Fin. Corp., 121 F.3d 947, 950-51 (5th Cir. 1997) (applying first-to-file rule to simultaneous 

litigation with “substantial overlap” even though parties and issues were not identical, and holding 

district court abused its discretion in denying transfer motion and failing to defer to second court 

already considering motion for preliminary injunction on related issues); Mulvey v. Vertafore, Inc., 

No. 3:21-CV-00213-E, 2021 WL 4137522, at *1-2 (N.D. Tex. May 7, 2021) (granting stay based 

on separate “earlier-filed, substantially similar” case and pending “motion to transfer” finding “the 

potential for saving judicial resources by avoiding duplicative litigation favors a short stay”).1

A stay would also allow the Court to benefit from guidance the Supreme Court is likely to 

 

1

 It may also ultimately be more appropriate for Texas to join the 20 States challenging the IFR in 

Louisiana, should that case move forward in that district, rather than litigate a separate, very similar 

case and a later-filed preliminary injunction motion here. ECF No. 18 at 4 n.1. This approach was 

adopted in Louisiana v. Centers for Disease Control & Prevention (“CDC”), No. 6:22-CV-885 

(W.D. La.), where Texas filed a separate suit challenging the termination of COVID-related 

restrictions under Title 42, but then, rather than litigate a separate suit, joined the further-along suit 

brought by multiple States raising similar challenges in Louisiana. See Amended Compl., ECF No. 

44, Louisiana v. CDC, No. 6:22-CV-885 (W.D. La. May 5, 2022) (adding Texas); Minute Entry, 

Texas v. Walensky, No. 6:22-cv-13 (S.D. Tex. Apr. 26, 2022) (terminating motion for temporary 

restraining order and noting “related case in Louisiana”). Should the Court require additional 

briefing on the appropriateness of a transfer on that basis, Defendants would be happy to provide 

such briefing. But, because additional briefing and factual development in Arizona v. Garland over 

the next month may effect whether consolidating these cases is appropriate, staying this matter to 

await those further developments may aid consideration of such an approach and thus also serve 

to avoid unnecessary and duplicative litigation, and conserve judicial resources. 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 4 of 13 PageID 686
4 

provide in the next month on whether 8 U.S.C. § 1252(f)(1) bars Texas’s request for a preliminary 

injunction to restrain the operation of 8 U.S.C. § 1252(b)(1)(B)(ii). See Biden v. Texas, 21-954, 

2022 WL 1299971 (May 2, 2022) (ordering supplemental briefing on section 1252(f)(1)).2

 Texas 

asks this Court to read requirements into section 1252(b)(1)(B)(ii) that bar the IFR’s approach to 

implementing that provision. For the reasons set out in Defendants’ Supplemental Memorandum 

on 8 U.S.C. § 1252(f), ECF No. 17, Congress eliminated injunctions of that sort, and the Supreme 

Court is likely to issue a decision in the next month in one or more pending cases that will clarify 

section 1252(f) further. Whatever the Supreme Court ultimately decides about section 1252(f)(1), 

whether favorable to the government’s position or not, will inform the Court’s decisions in this 

case, should this case remain in this district. 

II. The Court Should Allow Time For Defendants To Conduct Limited Jurisdictional 

Discovery Before Additional Briefing. 

If the Court does not stay this case, Defendants propose the following schedule: 

June 3, 2022 Defendants produce to Plaintiff the administrative record for the IFR 

June 27, 2022 Parties complete 30-day period of limited jurisdictional discovery into 

Texas’s alleged injuries and standing to bring this suit 

July 1, 2022 Parties submit updated proposals for additional briefing and proceedings 

This schedule closely matches the schedule ordered in Arizona. See Minutes of Court, ECF No. 

24, No. 6:22-cv-1130 (W.D. La. May 18, 2022). As in that case, this Court should stay additional 

briefing on the motion for preliminary injunction and Defendants’ answer deadline pending a 

limited period of discovery “regarding the State[’s] standing to bring this action.” Id. 

As to the administrative record, the Arizona court has set a June 3 deadline that the agencies 

are working to meet. Defendants can thus produce the administrative record in this case at the same 

 

2

 The supplemental briefing on this question in the Supreme Court has already been completed. 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 5 of 13 PageID 687
5 

time as in Arizona. Defendants need this reasonable amount of time to identify what should be 

included in, and to compile, the administrative record for the challenged IFR. Defendants 

anticipate that the record for the 148-page IFR, issued by two separate agencies, will be 

voluminous, and will take a significant amount of time to compile, certify, and produce. 

Defendants have begun to compile the administrative record and are working to complete that 

process by June 3, 2022, the deadline the district court set in Arizona.

3

 

Defendants should also be provided a reasonable amount of time to conduct jurisdictional 

discovery on Texas’s standing to bring its claims before having to brief Texas’s lack of standing 

in response to the preliminary injunction motion. Texas’s theory of standing is based entirely on 

speculation, and Defendants should have an opportunity to test these speculative allegations of 

harm before the Court considers whether Texas may even pursue its request for a preliminary 

injunction. At a minimum, Defendants should be allowed 30 days to serve a set of discovery 

requests and conduct depositions on Texas’s unsupported allegations that the IFR will cause 

increased costs to the State related to licenses, education, healthcare, law enforcement, and 

corrections, Mot. 17-19, as well as the assertion that the IFR will cause immediate and irreparable 

harm due to these asserted cost increases, id. at 35-36. In order to seek a preliminary injunction, 

Texas must show, among other things, “a substantial likelihood of establishing Article 

 

3

 This deadline—21 days after Plaintiffs in that case submitted their earlier-filed motion for a 

preliminary injunction related to the same IFR—to produce an administrative record is itself a very 

accelerated timeline. Although this Court does not have a local rule governing when an 

administrative record should be produced, fellow district courts usually do not require the 

production of an administrative record until Defendants file an answer to a complaint. See, e.g., 

D.D.C. L. Civ. R. 7(n)(1) (filing of administrative record after answer); D. Kansas L. Civ. R. 

83.1(c)(1) (filing of administrative record with answer); D. Utah L. Civ. R. 7-4(a)(4–5) (filing of 

administrative record after ruling on motion to dismiss); N.D. Cal. Local Rule 16-5 (in cases 

seeking “District Court review on an administrative record, the defendant must serve and file an 

answer, together with a certified copy of the transcript of the administrative record, within 90 days 

of receipt of service of the summons and complaint”). 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 6 of 13 PageID 688
6 

III standing,” and “a substantial threat of irreparable injury.” Louisiana v. CDC, No. 6:22-CV00885, 2022 WL 1604901, at *10, 15 (W.D. La. May 20, 2022); see also Barber v. Bryant, 860 

F.3d 345, 352 (5th Cir. 2017) (“Because a preliminary injunction ‘may only be awarded upon a 

clear showing that the plaintiff is entitled to such relief,’ the plaintiffs must make a ‘clear showing’ 

that they have standing to maintain the preliminary injunction.’” (quoting Winter v. Nat. Res. Def. 

Council, Inc., 555 U.S. 7, 22 (2008)). 

After expressing skepticism about States’ standing to bring a suit challenging the IFR, the 

district court in Arizona ordered a similar reasonable 30-day period for such discovery before 

evaluating, or requiring further briefing, on plaintiffs’ earlier-filed motion for preliminary 

injunction in that case, despite plaintiffs asking for an expedited briefing schedule. See Minutes of 

Court, ECF No. 24 at 1, No. 6:22-cv-1130 (W.D. La. May 18, 2022). That skepticism is especially 

warranted because asylum applications will initially only be decided under the IFR for individuals 

whose final destination is one of six locations, none of which is in Texas. See DHS Fact Sheet, 

available at https://www.dhs.gov/news/2022/05/26/fact-sheet-implementation-credible-fear-andasylum-processing-interim-final-rule (explaining that initially referrals for asylum merits 

interviews under the IFR will be limited to “approximately a few hundred noncitizens” a month, 

and also “will be limited to those individuals who indicate ... an intention of residing in one of the 

following six cities: Boston, Los Angeles, Miami, New York, Newark, or San Francisco”). 

Although the Fifth Circuit has not established a standard for when expedited discovery 

should be allowed, courts generally permit such discovery when good cause exists. See, e.g., 

Equistar Chemicals, LP v. Maschinenfabrik Alfing Kessler GmbH, No. 2:13-CV-02642, 2014 WL 

3735219, at *1 (W.D. La. July 28, 2014) (collecting cases). Good cause exists where the need 

for expedited discovery outweighs the prejudice to the responding party. Id. “In determining 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 7 of 13 PageID 689
7 

whether good cause exists, courts often consider ‘[ ] whether a preliminary injunction is pending.’”

Greenthal v. Joyce, No. 4:16–CV–41, 2016 WL 362312, at *2 (S.D. Tex. Jan. 29, 2016) 

(quoting St. Louis Grp., Inc. v. Metals & Additives Corp., 275 F.R.D. 236, 240 (S.D. Tex. 2011)); 

Fed. R. Civ. P. 26(d), Advisory Committee Note to 1993 Amendment (noting that early discovery 

“will be appropriate in some cases, such as those involving requests for a preliminary injunction”). 

Good cause exists here because there are genuine questions as to Texas’s standing to challenge the 

IFR and the State’s assertions of imminent harm, particularly given the phased rollout of the IFR 

discussed further below, and agency guidance initially limiting the locations where noncitizens 

will get asylum decisions under the IFR. The Court will need to address these questions in any 

ruling on the motion for preliminary injunction. And, as noted below, Texas cannot assert any 

prejudice from allowing a brief period of jurisdictional discovery before additional briefing. 

III. The Court Should Allow Time For Defendants To Compile An Administrative 

Record Before Any Additional Briefing. 

The parties conferred and reached agreement on a proposed schedule that should apply if 

the Court is not inclined to adopt a schedule that would permit time for jurisdictional discovery 

before additional briefing. The parties jointly propose the following schedule in that scenario: 

June 3, 2022 Defendants produce to Plaintiff the administrative record for the IFR 

June 10, 2022 Defendants’ response to the motion for preliminary injunction 

June 17, 2022 Texas’s reply in support of the motion for preliminary injunction 

This proposed schedule allows Defendants at least a minimum amount of time to review and 

address the administrative record in Defendants’ response to the motion for preliminary injunction, 

and provides Texas time to do so as well. All of Texas’s claims are raised under the Administrative 

Procedure Act (APA), and the merits of at least some of these claims must be assessed based on 

the record that was before the agencies. See Compl. ¶¶ 63-64 (claims I and II, challenging IFR as 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 8 of 13 PageID 690
8 

“contrary to law” under the APA); id. ¶¶ 65-69 (claim III, challenging IFR as “contrary to 

constitutional power” under the APA); id. ¶¶ 70-77 (claim IV, challenging IFR as “arbitrary and 

capricious” under the APA); id. ¶ 78 (claim V, challenging IFR as violating APA’s “notice and 

comment” requirements). Texas moved for a preliminary injunction on four of these five APA 

claims, and acknowledged that “[t]his is an Administrative Procedure Act case.” ECF No. 21, at 

20; see also id. at 22-35. A court reviewing agency action under the APA is limited to reviewing 

“the whole record or those parts of it cited by the party,” 5 U.S.C. § 706; Fla. Power & Light Co. 

v. Lorio, 470 U.S. 729, 743-44 (1985), and at least some of Texas’s claims will require an 

administrative record to resolve. See also Order, ECF No. 52 at 4, Texas v. Biden, No. 21-cv-67 

(N.D. Tex. Jun. 7, 2021) (Kacsmaryk, J.) (“In judicial review of agency action, the focal point for 

judicial review should be the administrative record.” (quotation marks and citation omitted)). 

Courts, including this Court, have allowed agencies time to submit a record before 

requiring a response to a motion for a preliminary injunction that is based on APA claims so that 

the response can address the record, the focal point for review of certain APA claims. See Order, 

ECF No. 19, Louisiana v. CDC, 6:22-cv-885-RRS-CBW (Apr. 20, 2022); Order, ECF No. 52 at 

4, Texas v. Biden, No. 2:21-cv-67 (N.D. Tex. Jun. 7, 2021) (Kacsmaryk, J.) (setting record deadline 

14 days after filing of preliminary injunction motion because “focal point of judicial review should 

be the administrative record” and “inclusion of the administrative record will provide a firm basis 

for the Court’s analysis of Plaintiffs’ APA claims); Order, ECF No. 37, Texas v. Biden, 2:21-cv67 (N.D. Tex. May 21, 2021) (Kacsmaryk, J.) (setting deadline to respond to motion for 

preliminary injunction after deadline to produce the administrative record, and ordering record be 

produced 17 days after the motion); cf. Louisiana Crawfish Producers Ass’n-W. v. Mallard Basin, 

Inc., No. 10-CV-1085, 2014 WL 4207607, at *3 (W.D. La. Aug. 25, 2014) (explaining that 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 9 of 13 PageID 691
9 

“[u]nder the APA, ‘[t]he task of the reviewing court is to apply the appropriate standard of 

review, 5 U.S.C. § 706 to the agency decision based on the record the agency presents to the 

reviewing court’” (citations omitted)).4

 

Courts have held that a district court abuses its discretion in ruling on a motion for 

preliminary injunction without allowing time to produce the administrative record. See Am. 

Bioscience, Inc. v. Thompson, 243 F.3d 579, 582–83 (D.C. Cir. 2001) (holding that “before 

assessing ... probability of success on the merits” court “should have required the [agency] to file 

the administrative record,” and vacating and remanding because district court improperly ruled on 

motion for preliminary injunction without a sufficient basis); see also id. (noting that Supreme 

Court’s decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971), also 

“arose on a motion for a preliminary injunction (to halt construction of a highway)” and ruled that 

the review must “be based on the full administrative record that was before the [agency]”). 

IV. Additional Factors Weigh Against Requiring A More Expedited Schedule.

To the extent Texas argues for a more expedited schedule based on the IFR soon taking 

effect, the proximity of the IFR’s effective date is a result of Texas’s own actions, and should be 

given no weight. The IFR was published on March 29, 2022, meaning that Texas had more than 

60 days after the IFR was published before the effective date. Yet Texas took 55 days to draft and 

file a motion for preliminary injunction. If Texas wanted its motion considered before the effective 

date, it should not have waited until the week before the effective date to file. A party cannot 

“create their own emergency” “by waiting so long to file a motion” and then use that emergency 

 

4

 Because Texas relies in part on extra-record evidence in support of its arguments on the merits 

of its APA claims, Defendants also anticipate moving to strike extra-record evidence, to the extent 

it is cited for this improper purpose, at the same time Defendants respond to the motion for 

preliminary injunction. 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 10 of 13 PageID 692
10 

to justify the need for emergency relief. Johnson v. Secure Ventures LLC, No. CV-22-00568-PHXJAT, 2022 WL 1046388, at *1 (D. Ariz. Apr. 7, 2022) (collecting cases). 

Texas also cannot claim any harm from a briefing schedule that concludes within a 

reasonable amount of time after the IFR’s effective date. Even after it goes into effect, the agencies 

will undertake a “phased implementation” that “will allow the Departments to begin employing 

the proposed process in a controlled manner for a limited number of cases” during the initial phase. 

87 Fed. Reg. at 18114. To implement the IFR, the agencies will need to hire additional employees. 

Id. at 18114, 18185. And, “once USCIS meets its staffing requirements, time will be required for 

the new asylum staff to be trained for their positions, which may occur over several months.” Id. 

at 18196. “Given limited agency resources, the Departments anticipate first implementing this new 

process for only a limited number of noncitizens who receive a positive credible fear determination 

after the effective date.” Id. at 18185. “The Departments also anticipate limiting referrals under 

the initial implementation of this rule to noncitizens apprehended in certain Southwest border 

sectors or stations, as well as based on the noncitizen’s final intended destination.” Id.; see also 

DHS Fact Sheet. It is likely that only a few hundred individuals will have their asylum application 

resolved on the merits by USCIS under the IFR’s provisions in the months following the IFR’s 

effective date, and only in locations outside of Texas. Id. 

Considering Texas’s delay in filing and the lack of evidence of any prejudice to Texas, 

Texas cannot justify an expedited schedule, or a schedule that would require the parties to brief 

the motion and the Court to evaluate it without the benefit of an administrative record or 

jurisdictional discovery. Nor is there any justification to deny Defendants a reasonable amount of 

time to respond to Texas’s nearly 40-page motion, which raises a range of claims and arguments. 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 11 of 13 PageID 693
11 

Dated: May 27, 2022 Respectfully submitted, 

 

 BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

WILLIAM C. PEACHEY 

Director 

Office of Immigration Litigation 

District Court Section 

EREZ REUVENI 

Assistant Director 

 By:/s/ Brian C. Ward 

 BRIAN C. WARD 

 Senior Litigation Counsel 

 U.S. Department of Justice 

 Civil Division 

Office of Immigration Litigation 

District Court Section 

P.O. Box 868, Ben Franklin Station 

Washington, DC 20044 

Tel.: (202) 616-9121 

brian.c.ward@usdoj.gov 

 

Counsel for Defendants 

 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 12 of 13 PageID 694
12 

CERTIFICATE OF CONFERENCE 

I hereby certify that on May 26, 2022, I conferred with counsel for Plaintiff about the 

proposed schedule for this case. 

/s/ Brian C. Ward 

BRIAN C. WARD 

U.S. Department of Justice 

CERTIFICATE OF SERVICE 

I hereby certify that on May 27, 2022, I electronically filed this document with the Clerk 

of the Court for the United States District Court for the Northern District of Texas by using the 

CM/ECF system. Counsel in the case are registered CM/ECF users and service will be 

accomplished by the CM/ECF system. 

/s/ Brian C. Ward 

BRIAN C. WARD 

U.S. Department of Justice 

Case 2:22-cv-00094-Z Document 59 Filed 05/27/22 Page 13 of 13 PageID 695