IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC et al., 

 Plaintiffs 

v. 

UNITED STATES DEPARTMENT 

OF STATE et al., 

 Defendants. 

 Civil Action No. 6:23-cv-00609 (JDK) 

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 

BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER 

Special Counsel 

Federal Programs Branch 

DOROTHY M. CANEVARI 

CRISTEN C. HANDLEY 

 CODY T. KNAPP 

ARJUN MODY 

 Trial Attorneys 

 U.S. Department of Justice 

 Civil Division, Federal Programs Branch 

 1100 L Street NW 

 Washington, D.C. 20005 

 Tel: (202) 451-7723 

 Email: arjun.a.mody@usdoj.gov 

 Counsel for Defendants 

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TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................................................... 1

ARGUMENT ..................................................................................................................................................... 2

I. Plaintiffs’ standing and the merits of their claims are not “coterminous.” .................................. 2

II. Plaintiffs lack standing. ........................................................................................................................ 3

A. Texas lacks standing. .............................................................................................................. 3

B. Media Plaintiffs lack standing. .............................................................................................. 4

1. The allegations regarding NewsGuard and GDI do not establish 

standing....................................................................................................................... 4

2. Plaintiffs’ attempts to undermine the declarations in support of the 

motion to dismiss are unpersuasive. ...................................................................... 7

3. The Court should disregard Plaintiffs’ new allegations, which are in 

any event insufficient to establish standing. .......................................................... 9

III. Plaintiffs have not identified any final agency action. ................................................................... 11

IV. Jurisdictional discovery is not warranted. ....................................................................................... 12

CONCLUSION ............................................................................................................................................... 12

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TABLE OF AUTHORITIES

CASES

Adams v. Bain, 

697 F.2d 1213 (4th Cir. 1982) ...................................................................................................................... 2 

AGC of Am., Inc. v. FAR Council, 

2024 WL 1078260 (W.D. La. Mar. 12, 2024) ............................................................................................ 3 

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ..................................................................................................................................... 10 

Bennett v. Spear, 

520 U.S. 154 (1997) ....................................................................................................................................... 6 

Branch v. CEMEX, Inc., 

2012 WL 2357280 (S.D. Tex. June 20, 2012), aff’d, 517 F. App’x 276 (5th Cir. 2013) ........................ 4 

City of L.A. v. Lyons, 

461 U.S. 95 (1983) ......................................................................................................................................... 4 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) ....................................................................................................................................... 6 

Dep’t of Com. v. New York, 

139 S. Ct. 2551 (2019) ................................................................................................................................... 7 

Freeman v. United States, 

556 F.3d 326 (5th Cir. 2009) ...................................................................................................................... 12 

GLO v. Biden, 

71 F.4th 264 (5th Cir. 2023) ......................................................................................................................... 2 

In re Enron Corp., 

761 F. Supp. 2d 504 (S.D. Tex. 2011) ........................................................................................................ 9 

Inclusive Cmtys. Project, Inc. v. Dep’t of Treasury, 

946 F.3d 649 (5th Cir. 2019) ........................................................................................................................ 6 

Jaraba v. Blinken, 

568 F. Supp. 3d 720 (W.D. Tex. 2021)....................................................................................................... 9 

Johnson v. TheHuffingtonPost.com, Inc., 

21 F.4th 314 (5th Cir. 2021) ....................................................................................................................... 12 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ....................................................................................................................................... 6 

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Lujan v. National Wildlife Federation, 

497 U.S. 871 (1990) ..................................................................................................................................... 12 

Massachusetts v. EPA, 

549 U.S. 497 (2007) ....................................................................................................................................... 7 

O’Shea v. Littleton, 

414 U.S. 488 (1974) ....................................................................................................................................... 4 

Pickett v. Tex. Tech Univ. Health Sci. Ctr., 

37 F.4th 1013 (5th Cir. 2022)....................................................................................................................... 2 

Sierra Club v. Peterson, 

228 F.3d 559 (5th Cir. 2000) ...................................................................................................................... 12 

Spokeo, Inc. v. Robins, 

578 U.S. 330 (2016) ....................................................................................................................................... 3 

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) .................................................................................................................................... 2, 3 

Summers v. Earth Island Inst., 

555 U.S. 488 (2009) ....................................................................................................................................... 4 

Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 

778 F.3d 502 (5th Cir. 2015) ........................................................................................................................ 3 

Texas v. Biden, 

20 F.4th 928 (5th Cir. 2021), rev’d and remanded, 597 U.S. 785 (2022) .................................................... 7 

U.S. ex rel. Vuyyuru v. Jadhav, 

555 F.3d 337 (4th Cir. 2009) ........................................................................................................................ 2 

Williamson v. Tucker, 

645 F.2d 404 (5th Cir. 1981) ........................................................................................................................ 2 

STATUTES

22 U.S.C. § 2656 note (Global Engagement Center) .................................................................................. 12 

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INTRODUCTION 

The complaint focused largely on GEC’s interactions with two private companies—

NewsGuard and GDI—whose products, Plaintiffs claim, are used by other private parties, injuring 

Media Plaintiffs’ economic and First Amendment interests and Texas’s sovereign interests. As 

explained in the government’s motion to dismiss, that speculative theory cannot establish standing as 

a matter of law. As for Media Plaintiffs, there is no concrete, certainly impending injury-in-fact as 

required for prospective injunctive relief. Moreover, any such injury would depend on the independent 

actions of third parties and is therefore not traceable to Defendants or redressable by this Court. As 

for Texas, none of the alleged conduct interferes with its enforcement of H.B. 20, and even if it did, 

Texas is not currently enforcing H.B. 20, and this litigation will not change that reality. Plaintiffs also 

lack standing as a factual matter because the record shows that GEC did not fund GDI’s relevant 

technology or NewsGuard’s ratings, neither of which “censor” anyone in the first instance. 

Underscoring all of that, Media Plaintiffs do not cite a single example in which an internet user 

could not access their content, or an advertiser chose not to spend money on their websites, as a result 

of Defendants’ conduct—let alone an example of that happening now or imminently. Likewise, Texas 

has not offered any example of a company violating H.B. 20, or of Texas’s inability to enforce its law 

against such a hypothetical company, as a result of Defendants’ conduct. Instead, Plaintiffs in their 

response recycle the same theories of speculative and conclusory harm—far-removed from any of 

Defendants’ alleged conduct—that the government has already rebutted. Plaintiffs also improperly 

raise entirely new allegations about third parties and third-party technologies that do not appear in the 

complaint, many of which Plaintiffs do not even attempt to tie to any concrete injury to themselves. 

The Court should not consider these new allegations, but even if it does, the allegations suffer from 

the same problems as those regarding NewsGuard and GDI because the new theories of harm 

similarly depend on the independent actions of private third parties. Finally, Plaintiffs fail to identify 

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the final agency action they challenge, which forecloses their APA claim. 

At bottom, Plaintiffs’ opposition and the nearly six-hundred pages of exhibits attached to it 

confirm that Plaintiffs seek to use this litigation to air generalized grievances largely about the conduct 

of third-party private companies, in contravention of Article III’s case-or-controversy requirement. 

The Court should dismiss the complaint in its entirety for lack of subject-matter jurisdiction. 

ARGUMENT 

I. Plaintiffs’ standing and the merits of their claims are not “coterminous.” 

A court must confirm its jurisdiction—including “Article III standing”—before proceeding 

to the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).1 And, as Plaintiffs agree, a 

court can resolve factual disputes in deciding whether jurisdiction exists. Mot. (ECF 33) at 14–15; 

Opp. (ECF 41) at 4. Nevertheless, Plaintiffs argue that the government’s factual attack on jurisdiction 

is “inextricably intertwined with the merits,” and therefore the Court should wait to decide it. Opp. at 

4–5. Not so. The authorities Plaintiffs cite for that proposition involve an entirely different scenario—

that in which “the subject-matter jurisdiction and merits questions are coterminous.” Pickett v. Tex. 

Tech Univ. Health Sci. Ctr., 37 F.4th 1013, 1030 (5th Cir. 2022). That is true if “subject matter jurisdiction 

is derived from the same statute as the cause of action,” or if the “legal issues” relevant to jurisdiction 

and merits “are identical.” Id. at 1031.2 Neither circumstance is present here. Plaintiffs’ asserted basis 

for subject-matter jurisdiction does not derive from a statutory cause of action, and Plaintiffs’ standing 

to bring this lawsuit turns on legal issues distinct from the merits of their claims. That is, whether 

1

 Internal quotations and citations omitted throughout this brief. 

2

 In Pickett, “the merits question—whether Pickett stated ADA claims—[was] the first element of the 

jurisdictional question.” 37 F.4th at 1031. Plaintiffs’ other authorities are similarly inapposite; none 

involved a motion to dismiss for lack of standing based on a factual attack. See Williamson v. Tucker, 

645 F.2d 404, 415 (5th Cir. 1981) (“[D]efendant’s challenge to the court’s jurisdiction is also a challenge 

to the existence of a federal cause of action . . . .”); U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337 (4th Cir. 

2009) (jurisdiction turned on whether particular statutory provision was met); Adams v. Bain, 697 F.2d 

1213 (4th Cir. 1982) (same); GLO v. Biden, 71 F.4th 264, 277 (5th Cir. 2023) (Graves, J., concurring in 

part) (“Here, the . . . Defendants brought a facial challenge, not a factual challenge, to . . . standing.”). 

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Plaintiffs have identified a source of ongoing or imminent injury, caused by Defendants’ conduct, and 

redressable by this Court, is a different question than whether Defendants have violated Plaintiffs’ 

First Amendment rights, have complied with the APA, or are exceeding the bounds of their statutory 

authority. To be sure, some of the same facts are relevant to standing and to the merits—as is routinely 

the case when a plaintiff argues that a constitutional violation automatically establishes an injury—but 

that does not mean the standing and merits inquiries here turn on “identical” “legal issues”—far from 

it. As the Supreme Court explained in Steel Co., this Court should address standing before nonjurisdictional issues. 523 U.S. at 101. 

II. Plaintiffs lack standing. 

Plaintiffs have failed to “clearly . . . allege facts demonstrating” standing, as they are required 

to “at the pleading stage.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Plaintiffs have also failed to 

establish standing by a preponderance of the evidence as required to survive a factual attack under 

Rule 12(b)(1). Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015). 

A. Texas lacks standing. 

Contrary to Plaintiffs’ assertion that the Court does not need to resolve Texas’s standing if the 

Media Plaintiffs have standing, Opp. at 24, the Court must decide whether Texas has standing because 

Plaintiffs premised venue in this District on Texas’s presence in this lawsuit. See Compl. ¶ 8; Mot. to 

Transfer (ECF 14) at 1. And if Texas lacks standing, venue cannot be based on Texas’s claims or its 

residence. AGC of Am., Inc. v. FAR Council, 2024 WL 1078260, at *7 (W.D. La. Mar. 12, 2024) (holding 

that venue was improper after concluding that the court lacked jurisdiction over the venue-creating 

plaintiff’s claims, and collecting similar cases); see Mot. to Transfer Reply (ECF 40) at 1. 

Texas lacks standing because none of the alleged conduct prevents social media companies 

from complying with any of H.B. 20’s provisions. Mot. at 16. If H.B. 20’s content-moderation 

provisions prohibit social media companies from using certain technologies in particular ways, those 

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companies can act accordingly. The same is true for H.B. 20’s “transparency” provisions (which are 

not mentioned in the complaint) that require companies to explain content-moderation decisions. In 

short, none of Defendants’ conduct affects, much less actively interferes with, any company’s decision 

to follow Texas law, or Texas’s ability to enforce its law against would-be violators.3 Texas’s bare 

speculation and conclusory assertions that corporations might independently choose to violate state 

law are patently insufficient to meet any of the standing requirements. Underscoring the implausibility 

of that theory, Plaintiffs fail to offer even a single instance of a company that is in fact currently 

violating its law as a result of Defendants’ conduct.4

Finally, as the government has explained at length, all of this assumes H.B. 20 is currently 

being or will imminently be enforced, which is not the case. Mot. at 17–18; Mot. to Transfer at 5–6. 

B. Media Plaintiffs lack standing. 

1. The allegations regarding NewsGuard and GDI do not establish standing. 

Injury-in-fact. Plaintiffs have not established a “real and immediate threat of repeated injury” 

as required for prospective injunctive relief. O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974); City of 

L.A. v. Lyons, 461 U.S. 95 (1983). The theory of injury to Media Plaintiffs pled in the complaint focused 

primarily on two subgrants that Defendants issued years ago to GDI and NewsGuard and then—

without explaining this leap in logic—focused on GDI and NewsGuard products unrelated to 

Defendants’ grants and alleged that those products are used by other private companies in a way that 

3

 Plaintiffs confusingly argue that they need not show that Defendants “induced” companies to violate 

H.B. 20, Opp. at 27, but that is Plaintiffs’ entire theory of injury. See Compl. ¶ 237 (“Defendants . . . 

induce social media companies to violate HB 20.”). In any event, Plaintiffs show no causal connection 

between Defendants’ alleged actions and Texas’s alleged injury. 

4

 Plaintiffs assert for the first time, in a one-sentence footnote, a “procedural injury” to Texas from 

the APA claim. Opp. at 24 n.54. Not only is this injury not referenced in Plaintiffs’ complaint, but a 

“one-sentence footnote briefly mentioning [an] issue . . . is insufficient to raise” it. Branch v. CEMEX, 

Inc., 2012 WL 2357280, at *12 n.8 (S.D. Tex. June 20, 2012), aff’d, 517 F. App’x 276 (5th Cir. 2013). 

In any event, the argument fails as a matter of law because “deprivation [of] a procedural right in vacuo

[] is insufficient to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). 

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causes Media Plaintiffs economic and First Amendment harms. Compl. ¶¶ 125–32 (GDI), ¶¶ 142–47 

(NewsGuard). Plaintiffs also pointed to various GEC initiatives that are unconnected to any particular 

harm to Media Plaintiffs. But none of that establishes actual, concrete, and ongoing or imminent harm 

to Media Plaintiffs. Mot. at 19–20. 

In response, Plaintiffs fail to explain how those subgrants, from years ago, cause them ongoing

or future injury. Plaintiffs also fail to rebut the core fact in the government’s submitted declarations: 

both subgrants were used for the sole purpose of countering foreign disinformation circulated 

overseas that harms U.S. national security. Plaintiffs do offer a grab bag of purported injuries based 

on “still-available” Internet content such as years-old Twitter posts written by GEC’s grantee on an 

account GEC does not control (Opp. at 12); a years-old video of the U.S.-Paris tech challenge hosted 

on a third-party website (id. at 13); an academic article written by a third party and linked from a State 

Department website that used NewsGuard in conducting a study (id. at 15); a link to a third-party 

think tank website that in turn describes GDI and links to GDI’s website (id.); and generalized 

allegations about GEC’s private-sector engagement work, untethered to Media Plaintiffs (id. at 17). 

Plaintiffs do not articulate or provide a single example of how any of the above—none of which 

directly references Media Plaintiffs at all—is in fact causing them injury. Nor have they alleged or 

established that internet users cannot access their content as a result of NewsGuard’s ratings, which 

do not block any content and simply provide a score and additional context for news articles, or GDI’s 

non-public Dynamic Exclusion List, which similarly does not prevent readers from accessing the Daily 

Wire’s or Federalist Media’s (or anyone else’s) websites. Skibinski Decl. ¶ 41 (“NewsGuard does not 

censor any content. . . . [It] offers platforms, search engines, internet users, and others an alternative 

to blocking or censoring content.”); id. ¶ 12 (“In all cases, [buying] decisions are entirely up to the 

advertiser.”); Rogers Decl. ¶ 6 (“GDI provides data to advertisers around the world. . . . GDI has 

neither the capability nor remit to ‘blacklist’ any media entities. All buying decisions are made by the 

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advertising buyers themselves, in accordance with free market principles.”). 

Traceability. Standing cannot be premised on injury caused by “the independent action of 

some third party not before the court.” Bennett v. Spear, 520 U.S. 154, 169 (1997); Clapper v. Amnesty 

Int’l USA, 568 U.S. 398 (2013); Inclusive Cmtys. Project, Inc. v. Dep’t of Treasury, 946 F.3d 649 (5th Cir. 

2019). Thus, where, as here, the “plaintiff is not himself the object of the government action or 

inaction he challenges, standing is . . . substantially more difficult to establish.” Lujan v. Defs. of Wildlife, 

504 U.S. 555, 562 (1992). Relatedly, as the Fifth Circuit has held, even “chains of causation with at 

least two links” fail to establish standing. Inclusive Cmtys., 946 F.3d at 658 (collecting cases). These 

principles foreclose Plaintiffs’ theories of harm, which depend on at least three links of actions taken 

by third parties. Foremost, Defendants were not involved in the development of NewsGuard’s or 

GDI’s products of which Plaintiffs complain. Skibinski Decl. ¶ 17; Rogers Decl. ¶¶ 6–8. In other 

words, Defendants’ conduct has no connection—let alone a “causal” one—to how NewsGuard rates 

the credibility of Media Plaintiffs and whether Media Plaintiffs are included in GDI’s non-public 

Dynamic Exclusion List. See Lujan, 504 U.S. at 560. Second, those products are updated on a regular 

basis, also independently of Defendants; how those products rate Media Plaintiffs presently or in the 

future is entirely out of Defendants’ hands. Finally, whether any particular advertiser or social media 

company will use those technologies in the future to “harm” Media Plaintiffs is far-removed from 

Defendants’ past or present conduct. Again, Plaintiffs’ failure to cite even a single instance of current, 

concrete injury tied to Defendants’ conduct highlights the implausibility of their theory of traceability. 

In response, Plaintiffs argue that their “injuries are the predictable result” of Defendants’ 

actions, and that “only one relevant third-party choice remains” in their purported causal chain of 

harm—“an organization adopting the tool or technology promoted by Defendants.” Opp. at 18–19. 

That “one-step” characterization is wrong, as explained above. It also hinges on the premise that 

Defendants’ “promotion” of tools or technologies for particular purposes—i.e., GEC and its grantees 

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encouraging others to use products that it identified as being promising in combatting foreign 

disinformation overseas—opens the courthouse doors to Plaintiffs’ generalized complaints about how 

NewsGuard and GDI have independently described them, and then further how their products are 

used by other third parties. Plaintiffs’ cited cases do not support that expansive and novel theory of 

traceability. See Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019) (traceability was satisfied where it 

turned only on a single inference supported by empirical evidence—that noncitizens would respond 

to the census at a lower rate due to the challenged action—that directly injured the plaintiffs); Texas v. 

Biden, 20 F.4th 928 (5th Cir. 2021) (traceability similarly turned on a single inference—that noncitizens 

would apply for driver’s licenses), rev’d and remanded, 597 U.S. 785 (2022); Massachusetts v. EPA, 549 

U.S. 497, 523–24 (2007) (defendants “[did] not dispute the existence of a causal connection”). 

Redressability. Plaintiffs cannot show that the injunction they seek would remedy their 

purported injuries. In addition to the fundamental problem that their injuries, if any, are caused by 

private companies, Plaintiffs have not established any ongoing connection between Defendants and 

any of the third-party companies—those named in either the complaint or in the new allegations in 

their opposition—that this Court could alter through an injunction. In fact, the overbroad nature of 

the relief Plaintiffs seek highlights the problem with their entire theory of standing: they fail to identify 

a particular set of ongoing actions to enjoin, because they have not identified any ongoing concrete 

harm to them that is traceable to ongoing conduct. See Opp. at 19–20 (requesting that the Court enjoin 

unspecified “ultra vires testing, funding, developing and promotion of . . . tools and technologies that 

target the domestic press and speech”). And the ongoing “harms” of which Plaintiffs complain, 

summarized above, largely derive from third-party websites, underscoring the lack of redressability. 

2. Plaintiffs’ attempts to undermine the declarations in support of the motion 

to dismiss are unpersuasive. 

Plaintiffs’ attempts to discredit the sworn declarations attached to the government’s motion 

to dismiss are unpersuasive. See Opp. at 20–24. First, Plaintiffs attack GEC Principal Deputy 

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Coordinator Daniel Kimmage’s declaration because “not once does he deny that GEC’s various 

initiatives likewise reached domestic press and speech.” Opp. at 20–21. That contention betrays a 

profound misunderstanding of the relevant issues before this Court. It is not Defendants’ burden to 

establish that none of the companies or researchers whose products GEC (or its grantees) identified 

as being useful for combatting foreign disinformation overseas could, under no circumstances, be 

used by other actors to identify disinformation from domestic news sources. Rather, Plaintiffs have 

the burden to show that they are suffering concrete injury attributable to Defendants’ conduct. On 

that score, Kimmage’s Declaration explains why Plaintiffs’ various attempts to tie their purported 

injuries to GEC lack a factual basis. Indeed, GEC would be “severely constrain[ed]” in carrying out 

its statutorily mandated mission if it could not support a technology merely because that technology 

has more than one possible use. Kimmage Decl. ¶¶ 24–25. Most technologies that identify foreign 

disinformation overseas can be used in a wide range of settings, id., but the evidence shows that GEC 

limits its assessment and support of technologies to foreign contexts, id. ¶¶ 8, 10–11. 

Plaintiffs’ attacks on the declarations submitted by NewsGuard’s General Manager Matthew 

Skibinski and GDI’s CEO Dr. Daniel Rogers fare no better. Those declarations establish that there is 

no causal link between Defendants’ conduct and the development of NewsGuard’s or GDI’s products 

that Plaintiffs complain of, because Defendants did not fund or otherwise support those products. 

Skibinski Decl. ¶¶ 17, 23–24; Rogers Decl. ¶¶ 6–8. Plaintiffs are left to criticize facts such as that 

NewsGuard took care to minimize data collection on U.S. persons. Plaintiffs then speculate that this 

means NewsGuard “gathered at least some domestic information,” Opp. at 21, a claim that lacks 

record support and does not establish particularized injury to Plaintiffs. Similarly, Plaintiffs take 

quotations from NewsGuard’s press release about the 2020 Countering Disinformation Challenge out 

of context; NewsGuard’s statements in its press release reference the projects it presented as part of 

that Tech Challenge, not the work it subsequently performed for GEC pursuant to its subgrant. ECF 

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11-24. Plaintiffs cannot dispute that “the scope of the project was limited to monitoring foreign statesponsored sources of disinformation—with no focus on domestic news sources.” Skibinski ¶ 25.5

Finally, contrary to Plaintiffs’ assertions, Dr. Rogers attested that “GDI’s Dynamic Exclusion List”—

the purported sources of Plaintiffs’ injuries—“was not funded by the State Department or any State 

Department-affiliated entity.” Rogers ¶ 7. Instead of contesting that key point, which they cannot, 

Plaintiffs raise several red herrings, none of which establishes any causal connection between 

Defendants and ongoing harm to Plaintiffs through GDI, as is Plaintiffs’ burden.6 

3. The Court should disregard Plaintiffs’ new allegations, which are in any 

event insufficient to establish standing. 

Perhaps in recognition that the complaint is deficient as-is, Plaintiffs’ opposition raises 

allegations about numerous new third-parties, third-party technologies, and State Department 

activities that appear nowhere in the complaint. Opp. at 13–14 (Media Literacy Now); id. at 15–18. 

But “it is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to 

dismiss.” Jaraba v. Blinken, 568 F. Supp. 3d 720, 727 (W.D. Tex. 2021). The Court should not consider 

any of these new allegations in deciding the motion to dismiss.7 Plaintiffs might believe that these new 

allegations permissibly derive from the complaint’s amorphous and overbroad rhetoric about the State 

Department’s “censorship scheme” and the unidentified technologies that the complaint references. 

5

 Plaintiffs fail to articulate harm from NewsGuard’s Misinformation Fingerprints product, which 

“does not rate the credibility of news publishers and is not used to direct the placement of 

advertisements.” Skibinski Decl. ¶ 16. 

6

 Read in context, Dr. Rogers’s statement that the government does not fund GDI’s infrastructure 

costs is speaking about infrastructure for the Dynamic Exclusion List, referenced in the prior sentence. 

Rogers ¶ 7. GDI CEO Melford’s statement during the U.S.-Paris Tech Challenge that the resulting 

subgrant would fund GDI’s infrastructure in that different context—a project aimed at targeting 

foreign disinformation—does not contradict that. See Opp. at 22–23. 7

 To be sure, the Court can and should consider Plaintiffs’ evidence in support of the complaint’s 

existing allegations in deciding the factual motion to dismiss. But Plaintiffs cannot use evidence to 

amend their complaint. Cf. In re Enron Corp., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011) (“[T]he Court 

does not consider new arguments raised by Plaintiffs in opposition to [Defendant’s] motion to dismiss 

as part of their pleadings. . . .”). 

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That would be mistaken. The core lesson from Twombly and its progeny is that broad “terms like 

‘conspiracy’ or even ‘agreement’ . . . might well be sufficient in conjunction with a more specific 

allegation—for example identifying a written agreement . . ., but a court is not required to accept such 

terms as a sufficient basis for a complaint.” 550 U.S. 544, 558–59 (2007). In other words, Plaintiffs 

cannot use the complaint’s vague, conclusory language to bootstrap new, specific allegations. 

In any event, as a matter of law, Plaintiffs’ new allegations do not come close to establishing 

standing. Plaintiffs do not even attempt to connect several of the new theories—those involving 

“Public Editor,” “Critical Mass LLC,” “Election Integrity Partnership,” and flagging Chinese Twitter 

accounts—to Media Plaintiffs, instead resting on the specter of generalized, purported harm to 

“American speech” as a whole. Opp. at 16–17. That ignores virtually every legal principle underlying 

the case-or-controversy requirement, and the Court should reject them outright.8 

Moreover, the allegations regarding Logically.AI and Media Literacy Now fail for the same 

reasons that the complaint’s allegations about NewsGuard and GDI fail. As for the former, Plaintiffs’ 

theory of injury apparently stems from one paragraph of a three-year-old newsletter written by a GEC 

grantee about a private company that independently fact-checks news articles, including a handful of 

Media Plaintiffs’ articles in 2021. Opp. at 15–16. That chain of events does not meet Article III’s 

requirements. There is no plausible basis to infer that the paragraph in the years-old newsletter, on a 

website that is no longer accessible, is causing ongoing or imminent injury to Media Plaintiffs. 

Moreover, there are numerous traceability problems: (a) GEC’s grantee, not GEC, wrote the post; (b) 

the theory depends on the independent decisions of third parties to adopt Logically.AI’s products; 

and (c) it further depends on those third parties using one of those products in a way that will harm 

Media Plaintiffs in the future. And there is no injunction this Court could order, directed at 

8

 Even if true, these allegations cannot support injury to Texas either, because they do not show that 

Defendants are currently engaged in any activity that prevents social media companies from complying 

with H.B. 20 or prevents Texas from enforcing H.B. 20 against a company that violates that law. 

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Defendants, that would remedy any of the above, because Plaintiffs have not asserted any ongoing 

connection between Defendants and Logically.AI, and the Disinfo Cloud Digest no longer exists. 

The same analysis applies to the 2021 Media Literacy Now seminar. See Opp. at 13–15. 

Plaintiffs assert that (a) the State Department’s Embassy in Berlin, Germany (not GEC) issued a 

$30,000 grant three years ago to a private company for the purpose of promoting disinformation 

training for teachers abroad; (b) during one of the seminar sessions organized by the private company 

grantee, one speaker presented a chart about media bias; (c) the chart is part of a broader tool 

published by a different third party (Ad Fontes) that rates media companies including Media Plaintiffs; 

and (d) one of the sessions presented a “Data Detox Kit,” and on a separate webpage, the Detox Kit 

lists NewsGuard in a list of tools that rate the credibility of news sources. It is difficult to understand 

how Plaintiffs are imminently harmed by this years’ old sequence of events, let alone in a way that is 

traceable to the original $30,000 grant, or is redressable. As for injury, this one-time seminar in 2021 

was held for teachers, not for the advertisers and social media companies that are the purported source 

of Media Plaintiffs’ injury; Plaintiffs fail to establish a relevant connection between the two. The 

“Detox Kit” webpage does not “instruct” anyone to do anything; it contains a list of resources and 

tells the reader to “use that information to decide for yourself” whether a news source is credible. 

ECF 41-24. All of the above is also not traceable Defendants—it involves numerous independent 

actions by third parties—nor could any theoretical ongoing harm be redressed by an injunction aimed 

at Defendants because the grant to Media Literacy Now has ended. 

III. Plaintiffs have not identified any final agency action. 

Plaintiffs do not satisfy the APA’s jurisdictional requirement to identify the final agency action 

that they challenge. Mot. at 26–27. Plaintiffs’ opposition brief reiterates that, in their view, the “final 

agency action” they challenge is “Defendants’ secretive scheme to suppress . . . a segment of the 

press.” Opp. at 7. In other words, Plaintiffs offer no rebuttal to the fact that the APA’s “prohibition 

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12 

on programmatic challenges” forecloses their claim. Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir. 

2000) (discussing Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), which held that a plaintiff 

could not challenge the Secretary of the Interior’s entire “land withdrawal review program” because 

there was no identified final agency action). Plaintiffs lastly argue that the complaint identifies some 

discrete agency actions, but even assuming those were final for APA purposes, Plaintiffs fail to address 

the Fifth Circuit’s holding that they cannot “challenge an entire program by simply identifying specific 

allegedly-improper final agency actions within that program.” Peterson, 228 F.3d at 567; see Mot. at 27.9

IV. Jurisdictional discovery is not warranted. 

Finally, Plaintiffs request discovery to remedy the jurisdictional deficiencies in the complaint, 

just as they have sought discovery to remedy the deficiencies in their preliminary injunction motion. 

Opp. at 29–30. As the government has explained, this request should be denied. See Defs.’ Opp. to 

Mot. for Exp. Disc. (ECF 20) at 6. “[A] party is not entitled to jurisdictional discovery if the record 

shows that the requested discovery is not likely to produce the facts needed to withstand a Rule 

12(b)(1) motion.” Freeman v. United States, 556 F.3d 326, 342 (5th Cir. 2009). Plaintiffs’ cursory request 

fails to explain what facts Plaintiffs seek, or how those facts are likely to overcome the numerous facial 

and factual flaws underlying their standing theories. The Court should reject that “jurisdictional fishing 

expedition.” Johnson v. TheHuffingtonPost.com, Inc., 21 F.4th 314, 325 (5th Cir. 2021).10

CONCLUSION 

 For these reasons, the Court should grant Defendants’ motion to dismiss. 

9

 Defendants have only moved to dismiss the APA claim for failure to identify final agency action. 

10 In seeking to maintain their duplicative claims against the official-capacity Defendants, Plaintiffs 

assert without support that GEC “could be shifted to another federal agency.” Opp. at 30. Not so; 

Congress directed the Secretary of State to establish the GEC within the State Department. 22 U.S.C. 

§ 2656 note (Global Engagement Center) § (a)(1). 

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13 

Dated: April 17, 2024 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER

Special Counsel 

Federal Programs Branch 

/s/ Arjun Mody 

DOROTHY M. CANEVARI (NY # 5989694) 

CRISTEN C. HANDLEY (MO # 69114) 

CODY T. KNAPP (NY # 5715438) 

ARJUN MODY (DC #90013383) 

Trial Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W. 

Washington, D.C. 20005 

Tel: (202) 451-7723 

Email: arjun.a.mody@usdoj.gov 

Counsel for Defendants 

 

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14 

CERTIFICATE OF SERVICE 

 On April 17, 2024, I electronically submitted this document to the clerk of the court of the 

U.S. District Court for the Eastern District of Texas using the court’s electronic case filing system. I 

certify that I have served all parties electronically or by another manner authorized by Federal Rule of 

Civil Procedure 5(b)(2). 

 /s/ Arjun Mody

 Arjun Mody 

Case 6:23-cv-00609-JDK Document 45 Filed 04/17/24 Page 18 of 18 PageID #: 1765