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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.

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Case No. 6:23-cv-609-JDK

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND 

DENYING IN PART MOTION TO DISMISS AND MOTION TO TRANSFER

“Congress shall make no law . . . abridging the freedom of speech, or of the 

press.” U.S. CONST. amend. I. This provision enshrines “[o]ur profound national 

commitment to the free exchange of ideas.” Harte-Hanks Comms., Inc. v. 

Connaughton, 491 U.S. 657, 686 (1989). Indeed, “[i]f there is any fixed star in our 

constitutional constellation, it is that no official, high or petty, can prescribe what 

shall be orthodox in politics, nationalism, religion, or other matters of opinion or force 

citizens to confess by word or act their faith therein.” W. Va. State Bd. of Ed. v. 

Barnette, 319 U.S. 624, 642 (1943).

In this case, two media companies (“Media Plaintiffs”) and the State of Texas 

allege that the U.S. Department of State acting through its Global Engagement 

Center is violating the First Amendment by “actively intervening in the news-media 

market to render disfavored press outlets unprofitable.” Docket No. 1 ¶ 1. The 

complaint details several instances in which Defendants allegedly funded, promoted, 

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and marketed censorship technologies that suppressed the Media Plaintiffs’ speech 

and limited the distribution of their reporting. See id. ¶¶ 54–166. For instance, 

Plaintiffs allege that the Global Engagement Center created an open-source platform 

cataloging censorship tools to “counter propaganda and disinformation.” Id. 

¶¶ 58, 81. The Center then promoted these tools to social media companies and 

encouraged their use against domestic media, including against Media Plaintiffs, “for 

the purpose of discrediting and demonetizing [them].” Id. ¶¶ 3–4, 38. 

Defendants now move to dismiss the case, primarily arguing that Plaintiffs 

lack standing. Docket No. 33. Defendants also ask the Court to transfer the action 

to the District of Columbia because, they contend, venue is improper in the Eastern 

District of Texas. Docket No. 14. 

As explained below, the Court rejects Defendants’ arguments. The complaint 

sufficiently alleges that Plaintiffs have standing to challenge Defendants’ actions, 

and venue is proper here under 28 U.S.C. § 1391. The Court thus denies both motions 

in large part. The Court grants Defendants’ motion to dismiss Count Four because 

Plaintiffs have not identified a final agency action for the Court to review under the 

APA.

I.

Plaintiffs are The Daily Wire, LLC; FDRLST Media, LLC (“The Federalist”); 

and the State of Texas. On December 6, 2023, they filed a sixty-seven-page complaint 

accusing the Defendants1 of engaging in “one of the most egregious government 

1 Defendants are: (1) the United States Department of State; (2) the Global Engagement 

Center; (3) Antony Blinken, in his official capacity as Secretary of State; (4) Leah Bray, in her official 

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operations to censor the American press in the history of the nation.” Docket No. 1 

at 1. 

As mentioned above, the complaint focuses largely on the Global Engagement 

Center (“GEC”), an interagency center funded by the State Department. Plaintiffs 

claim that GEC originated in a 2011 executive order as a center “to support federal 

agency communications in targeting ‘violent extremism and terrorist organizations.’” 

Id. ¶ 49 (quoting About Us—Global Engagement Center, U.S. DEP’T OF STATE,

https://www.state.gov/about-us-global-engagement-center-2/). By 2016, Congress 

directed the Secretary of State, in coordination with the Secretary of Defense, to 

“establish [GEC] within the Department of State.” 22 U.S.C. § 2656 note (Global 

Engagement Center). GEC’s purpose is “to direct, lead, synchronize, integrate, and 

coordinate efforts of the Federal Government to recognize, understand, expose, and 

counter foreign state and foreign non-state propaganda and disinformation efforts 

aimed at undermining or influencing the policies, security, or stability of the United 

States and United States allies and partner nations.” Id. GEC’s governing statute 

expressly prohibits the agency from using any funds “for purposes other than 

countering foreign propaganda and misinformation that threatens United States 

security.” Docket No. 1 ¶ 59 (quoting National Defense Authorization Act for Fiscal 

Year 2017, Pub. L. No. 114-328, § 1287, 130 Stat. 2000, 2548, (2016)).

capacity as Deputy Coordinator of GEC; (5) James P. Rubin, in his official capacity as Coordinator 

for GEC; (6) Daniel Kimmage, in his official capacity as Principal Deputy Coordinator of GEC; (7) 

Alexis Frisbie, in her official capacity as Senior Technical Advisor of the Technology Engagement 

Team at GEC; and (8) Patricia Watts, in her official capacity as Director of the Technology 

Engagement Team at GEC.

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Nevertheless, according to Plaintiffs, “many of GEC’s activities and initiatives 

targeted speech spoken in America among Americans, including Media Plaintiffs’ 

speech and press rights.” Id. ¶ 54. While claiming that Defendants attempt to 

conceal their censorship scheme from public view, see id. ¶ 260 (characterizing the 

alleged censorship scheme as “secretive”), Plaintiffs identify several public actions 

that they claim prove their theory. For example, Plaintiffs allege that GEC funded a 

private entity called Park Capital Investment Group, LLC to “develop and manage 

multiple initiatives of GEC,” including launching and maintaining the open-source 

platform “Disinfo Cloud.” Id. ¶¶ 56–58. Disinfo Cloud was a “repository to catalog 

an ever-growing list of CPD [Countering Propaganda and Disinformation] tools and 

technologies” to “counter adversarial propaganda and disinformation.” Id. ¶¶ 65–66. 

The CPD tools included “supposed fact-checking technologies, media literacy tools, 

media intelligence platforms, social network mapping, and machine 

learning/artificial intelligence technology.” Id. ¶ 69. Disinfo Cloud also provided 

information and reviews of these tools and technologies and “more intricate technical 

details” from their tools’ creators. Id. ¶¶ 70–71. 

Although Defendants contend that Disinfo Cloud was launched to fight only 

foreign propaganda, Plaintiffs allege that “the Disinfo Cloud repository of CPD tools 

and technologies included many that targeted American speech, including Media 

Plaintiffs.” Id. ¶ 68. Plaintiffs contend that the Administrator of Disinfo Cloud 

announced that the tools and technologies would be available to “anyone working in 

the counter-disinformation space”—and that access was provided to more than 2,000 

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users in “private industry, social media companies, academic, and civil society.” Id. 

¶¶ 73–74. In 2019, Plaintiffs allege, GEC established a “Silicon Valley Engagement” 

initiative and “marketed censorship technology to American companies, including the 

major social media companies, such as Twitter (now X), Meta, LinkedIn, and others,” 

“encourag[ing] [them] to join Disinfo Cloud to identify a ‘technological solution’ suited 

to the specific tech company’s needs to ‘counter propaganda and disinformation.’” Id. 

¶ 76 (quoting Margot Cleveland, Government Is Marketing Censorship Tools to Big 

Tech to Gag Conservatives, THE FEDERALIST (April 11, 2023), 

https://thefederalist.com/2023/04/11/government-is-marketing-censorship-tools-tobig-tech-to-gag-conservatives/). Defendants even invited users, “including American 

technology companies,” to “[w]rite to inform [GEC’s Technology Engagement Team 

(“TET”)] or Disinfo Cloud what your office needs to counter propaganda and 

disinformation.” Id. ¶ 81 (quoting Defeat Disinfo, U.S. DEP’T OF STATE,

https://www.state.gov/defeat-disinfo/). Although GEC’s TET discontinued Disinfo 

Cloud, Plaintiffs allege that GEC relocated the information about the censorship tools 

and technologies to a new platform. Id. ¶ 165.

Among the tools and technologies partially funded by GEC and promoted on 

Disinfo Cloud were two media-rating companies—Global Disinformation Index 

(“GDI”) and NewsGuard Technologies, Inc. Id. ¶¶ 3, 72–73, 101. Plaintiffs allege 

that “these entities generate blacklists of ostensibly risky or unreliable American 

news outlets for the purpose of discrediting and demonetizing [them] and redirecting 

money and audiences to news organizations that publish favored viewpoints.” Id. ¶ 3. 

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Both GDI and NewsGuard included the Media Plaintiffs on their lists of disfavored 

news outlets. Id. ¶¶ 116, 122. Plaintiffs allege that GDI and NewsGuard work with 

the World Federation of Advertisers and its subsidiary, the Global Alliance for 

Responsible Media, to steer blue-chip advertisers away from Media Plaintiffs. Id. 

¶ 102. And, again, Plaintiffs claim that Defendants, mostly acting through GEC, 

“funded and promoted” GDI and NewsGuard, which operate “to defund, deplatform, 

and discredit . . . Media Plaintiffs.” Id. ¶¶ 3, 84, 114. Finally, GEC highlights on its 

.gov webpage several “counter-disinfo resources” that “offer commercial, non-profit, 

think tank, and academic technology solutions, dashboards, and research.” Id. ¶ 174. 

Among these “counter-disinfo” “solutions, dashboards, and research” are entities that 

promote NewsGuard and GDI and “target the American press and/or American 

speakers.” Id.

The complaint details other activities by GEC that, Plaintiffs say, “target[] 

both foreign and domestic speech, including Media Plaintiffs’ speech.” Id. ¶ 93. One 

such activity is managing a “tech testbed” to “test[] specific tools or technologies 

against a submitted proposal” to determine whether the tools are effective in 

countering supposed propaganda in “real operational” situations. Id. ¶ 91. Disinfo 

Cloud users, including “members of academia, the private sector, and tech vendors in 

the United States,” were “encouraged to submit requests to test the technology 

against their needs.” Id. ¶ 95. Plaintiffs further allege that GEC “continues to 

operate the testbed,” which “continues to test and/or develop censorship technology 

that targets the American press and Americans’ speech.” Id. ¶¶ 171–72.

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Plaintiffs also claim that GEC, through Disinfo Cloud, conducts “tech 

challenges” to “identify and ‘advance’ ‘innovative counter-disinformation tech 

solutions.’” Id. ¶ 97 (quoting Events-Technology Engagement Division, U.S. DEP’T OF 

STATE, https://www.state.gov/upcoming-events-technology-engagement-division/). 

Plaintiffs allege that the tools and technologies identified through the tech challenges 

target both foreign and domestic media organizations and speech and include those 

used specifically to target Media Plaintiffs. Id. ¶ 99. For example, in 2021, GEC 

funded the U.S.-Paris Tech Challenge, which awarded $100,000 to GDI after it 

“pitched its technology that purported to assess the ‘disinformation risk’ of media 

outlets” and explained its goal to “disrupt the funding of so-called disinformation by 

steering away ‘ad dollars’ from disfavored media outlets.” Id. ¶ 128 (quoting Global 

Engagement Center & Digital Forensic Research Lab, U.S.-Paris Tech Challenge, 

ATL. COUNCIL (Sept. 30, 2021), https://www.atlanticcouncil.org/event/u-s-paris-techchallenge/). Plaintiffs allege that GEC “continues to host the tech challenges” and 

“award grants to fund the development of censorship technology or censorship 

enterprises that target the American press and Americans’ speech.” Id. ¶ 170.

In the spring and summer of 2020, the State Department co-sponsored a 

“COVID-19 misinformation and disinformation” tech challenge. Id. ¶ 142. The three 

winners were NewsGuard, Peak Metrics, and Omelas—“all American companies 

which offer censorship technologies that target Americans’ speech broadcast to 

Americans,” according to Plaintiffs. Id. ¶ 143. The prize included a $25,000 

government-funded award, which the State Department paid through Disinfo Cloud. 

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Id. ¶ 144. Plaintiffs claim that NewsGuard later volunteered to “help” the State 

Department by identifying and flagging those spreading alleged COVID 

disinformation and hoaxes, and that Peak Metrics’ technology entered in the COVID 

challenge “monitors American speech, including that of the American press.” Id. 

¶¶ 147, 150.

Plaintiffs allege that Defendants’ actions harm the Media Plaintiffs by 

abridging their rights to free speech and free press and by reducing their advertising 

revenue, growth, and circulation. Id. ¶¶ 1–3, 38. They contend that Defendants harm 

the State of Texas by encouraging social media platforms to violate Texas House 

Bill 20, a state law prohibiting such platforms from censoring speech based on the 

viewpoint of its speaker. Id. ¶ 5; TEX. CIV. PRAC. & REM. CODE § 143A.002(a). 

Plaintiffs assert five claims against Defendants: (1) abridgment of Media Plaintiffs’

right to freedom of speech, (2) abridgment of Media Plaintiffs’ right to freedom of the 

press, (3) ultra vires non-final agency action beyond statutory authority, (4) unlawful 

final agency action in violation of the Administrative Procedure Act, and (5) ultra 

vires action beyond constitutional bounds. Id. ¶¶ 272–313.

As mentioned above, Defendants filed a motion to dismiss this case, primarily

for lack of standing. Docket No. 33. Defendants also separately moved to transfer 

venue to the District of Columbia, asserting that Plaintiffs cannot satisfy venue in 

the Eastern District of Texas under 28 U.S.C. § 1391. Docket No. 14.

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II. Motion to Dismiss

The Court first addresses the motion to dismiss, which challenges subject 

matter jurisdiction. Sangha v. Navig8 Shipmanagement Priv. Ltd., 882

F.3d 96, 100 (5th Cir. 2018) (citing Sinochem Int’l Co. v. Malay. Int’l Shipping, 549 

U.S. 422, 436 (2007); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587–88 (1999)). 

Although “there is no mandatory ‘sequencing of jurisdictional issues,’” the “general 

expectation [is] that federal courts address subject matter jurisdiction at the outset” 

before resolving other non-merits issues. Id. (quoting Sinochem, 549 U.S. at 431). 

Defendants primarily attack Plaintiffs’ standing—both facially and factually. Docket 

No. 14 at 15–26. They also argue (1) that Plaintiffs’ APA claim should be dismissed 

because the complaint does not identify a final agency action and (2) that the claims 

against the individual Defendants in their official capacities should be merged with 

the claims against the agencies. Id. at 26–27.

A. Standing

Article III of the Constitution limits federal court jurisdiction to “cases” or 

“controversies.” This ensures “that the Federal Judiciary respects ‘the proper—and 

properly limited—role of the courts in a democratic society.’” DaimlerChrysler Corp. 

v. Cuno, 547 U.S. 332, 341 (2006) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)); 

see also Raines v. Byrd, 521 U.S. 811, 828–29 (1997) (“Our regime contemplates a 

more restricted role for Article III courts . . . ‘not some amorphous general supervision 

of the operations of government.’”) (quoting United States v. Richardson, 418 

U.S. 166, 192 (1974)). “One element of the case-or-controversy requirement is that [a 

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plaintiff], based on [its] complaint, must establish that [it has] standing to 

sue.” Raines, 521 U.S. at 818. A standing inquiry is “especially rigorous” where the 

merits of the dispute would require the Court to determine whether an action taken 

by one of the other two branches of the Federal Government is unconstitutional. Id. 

at 819–20 (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986); 

Valley Forge Christian Coll. v. Ams. United for Separation of Church & St., Inc., 454 

U.S. 464, 473–74 (1982)). 

Article III standing requires a plaintiff to plead and prove “an injury that is 

‘concrete, particularized, and actual or imminent; fairly traceable to the challenged 

action; and redressable by a favorable ruling.’” Texas v. United States, 809 

F.3d 134, 150 (5th Cir. 2015) (quoting Clapper v. Amnesty Int’l USA, 568 

U.S. 398, 409 (2013)). “[S]tanding is not dispensed in gross; rather, plaintiffs must 

demonstrate standing for each claim that they press and for each form of relief that 

they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). But “[t]he 

presence of one party with standing is sufficient to satisfy Article III’s case-orcontroversy requirement.” Texas v. United States, 809 F.3d at 151 (citing Rumsfeld 

v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006)). And “[w]hen 

considering whether a plaintiff has Article III standing, a federal court must assume 

arguendo the merits of his or her legal claim.” N. Cypress Med. Ctr. Operating Co. v. 

Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015); see also RLI Ins. Co. v. 

Roberts, 819 F. App’x 227, 229 (5th Cir. 2020) (“[Defendant] cannot dispute that 

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[Plaintiff] suffered an Article III injury by arguing that [Plaintiff]’s claims fail on the 

merits.”).

A defendant may challenge jurisdiction, including standing, in a motion to 

dismiss under Federal Rule of Civil Procedure 12(b)(1). Moore v. Bryant, 853 

F.3d 245, 248 n.2 (5th Cir. 2017). When a defendant seeks dismissal under 

Rule 12(b)(1), the plaintiff bears the burden of proof. Ramming v. United States, 281 

F.3d 158, 161 (5th Cir. 2001). A court should grant a Rule 12(b)(1) dismissal motion 

“only if it appears certain that the plaintiff cannot prove any set of facts in support of 

his claim that would entitle plaintiff to relief.” Id. (citing Home Builders Ass’n of 

Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). 

A motion to dismiss for lack of standing “may be either ‘facial’ or ‘factual.’” 

Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th 

Cir. 2015). In analyzing a facial attack on standing, the court assesses whether the 

plaintiff has sufficiently alleged standing in the complaint and accepts as true the 

complaint’s well-pleaded, non-conclusory factual allegations. Paterson v. 

Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a factual attack, the defendant 

“submits affidavits, testimony, or other evidentiary materials” to challenge the truth 

of the jurisdictional allegations. Superior MRI Servs., 778 F.3d at 504. “To defeat a 

factual attack, a plaintiff must prove the existence of subject-matter jurisdiction by a 

preponderance of the evidence” and is “obliged to submit facts through some 

evidentiary method to sustain his burden of proof.” Id. (quotations omitted). If, 

however, the defendant’s jurisdictional attack is “intertwined with the merits of a 

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claim,” then the court should defer ruling on the motion until summary judgment or 

trial. Pickett v. Tex. Tech Univ. Health Sciences Ctr., 37 F.4th 1013, 1029 (5th 

Cir. 2022) (“If . . . a decision on the jurisdictional issue requires a ruling on the 

underlying substantive merits of the case, the decision should await a determination 

of the merits either by the district court or by the fact finder at trial.”) (quoting Wright 

& Miller, 5B FED. PRAC. & PROC. JURIS. § 1350 (3d ed. 2004)).

1. Texas

Defendants challenge Texas’s standing both facially and factually. The Court 

rejects the facial challenge because the complaint sufficiently alleges that Texas 

suffered a sovereign injury, which is fairly traceable to Defendants’ actions and is 

likely to be redressed by a favorable decision. The Court declines to resolve 

Defendants’ factual attack at this stage of the proceeding.

a. Injury

Injury is the first element of standing. It requires “an invasion of a legally 

protected interest that is concrete and particularized and actual or imminent, not 

conjectural or hypothetical.” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) 

(quotations omitted). Here, Texas plausibly alleges an injury to its sovereign interest 

in enforcing H.B. 20, a state law prohibiting social media platforms from censoring 

speech based on viewpoint.

“[S]tates have a sovereign interest in ‘the power to create and enforce a legal 

code.’” Tex. Off. of Pub. Util. Couns. v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (holding 

that Texas had standing to challenge the Federal Communication Commission’s 

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regulation over an aspect of telecommunications that Texas believed it 

controlled) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 

U.S. 592, 601 (1982)). “Pursuant to that interest, states may have standing based 

on (1) federal assertions of authority to regulate matters they believe they 

control, (2) federal preemption of state law, and (3) federal interference with the 

enforcement of state law.” Texas v. United States, 809 F.3d at 153; see also Texas v. 

Nuclear Regul. Comm’n, 78 F.4th 827, 836 (5th Cir. 2023) (a state has standing based 

on the “preemption of an existing state law” or “a conflict between federal and state 

law if the state statute at issue regulates behavior or provides for the administration 

of a state program.”) (quoting Texas v. United States, 787 F.3d 733, 749 (5th 

Cir. 2015)). 

For example, Texas had standing to challenge a federal license to store nuclear 

waste in Texas because issuing the license directly conflicted with a state law 

prohibiting the storage of nuclear waste in Texas. NRC, 78 F.4th at 836. The 

“enforceability conflict between the license and operation of the facility, which 

authorizes storage of high-level radioactive waste in Texas, and H.B. 7, which 

proscribes such storage,” was “enough for Texas to assert an injury.” Id. Similarly, 

Texas had standing to challenge federal guidance that “theoretically allow[ed] for 

abortions in cases prohibited by Texas law.” Texas v. Becerra, 623 F. 

Supp. 3d 696, 712 (N.D. Tex. 2022). By “encourag[ing] [] hospitals and doctors to 

violate Texas abortion laws,” the federal guidance “harm[ed] Texas’s legitimate 

interest in the continued enforceability of its abortion laws” and “create[d] an 

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increased regulatory burden on Texas to prosecute more violation of its laws.” Id. 

at 714 (citing Contender Farms, LLP v. USDA, 779 F.3d 258, 266 (5th Cir. 2015)).

So too here. The complaint is replete with allegations that Defendants, acting 

through GEC, are encouraging social media platforms to violate H.B. 20 by 

censoring “misinformation” and “disinformation”—e.g.: 

• GEC encouraged “American companies, including the major social media

companies, such as Twitter (now X),” to use censorship tools and

technologies to “counter propaganda and disinformation.” See Docket No. 1

¶¶ 48, 73, 76–78, 85–86, 158.

• GEC established a “Silicon Valley Engagement” initiative that “pushed

social media companies to join Disinfo Cloud,” “maintained a Senior

Advisor, Samaruddin K. Stewart (‘Stewart’), as a permanent

disinformation liaison between the government and Silicon Valley” for the

purpose of marketing censorship technology to social media companies, and

“encourag[ed]” those companies to “identify, understand, and address

misinformation.” Id. ¶¶ 76–78.

• TET and GEC’s front office and senior leadership meets regularly with

social media platforms to market and promote censorship tools that

“abridged Media Plaintiffs’ First Amendment rights.” Id. ¶¶ 84–86.

• Defendants “have provided ‘significant encouragement’ to social media . . .

to limit the circulation and/or distribution of Media Plaintiffs’ news

reporting and speech.” Id. ¶ 215.

And, according to Plaintiffs, the pressure campaign has worked. Social media 

companies are using these tools “to suppress Media Plaintiffs’ speech and the 

distribution of Media Plaintiffs’ reporting, as well as to destroy Media Plaintiffs’ 

advertising opportunities.” Id. ¶ 101; see also id. ¶¶ 102–04 (alleging that social 

media companies utilize GDI and NewsGuard through the World Federation of 

Advertisers and Global Alliance for Responsible Media to “steer blue-chip advertisers 

away from Media Plaintiffs”).

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H.B. 20, meanwhile, expressly prohibits social media platforms from 

“censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of 

another person” based on viewpoint. TEX. CIV. PRAC. & REM. CODE § 143A.002(a). 

“Censor” is defined to mean “to block, ban, remove, deplatform, demonetize, de-boost, 

restrict, deny equal access or visibility to, or otherwise discriminate against 

expression.” Id. § 143A.001(1). Thus, as in NRC and Becerra, Defendants’ 

encouraging social media companies to deplatform or demonetize so-called 

misinformation and disinformation “directly conflict[s]” with Texas law. See NRC, 78 

F.4th at 836; Becerra, 623 F. Supp. 3d at 713–14. Defendants’ actions also assert

federal authority over a matter that Texas believes it controls, creating an 

“enforceability conflict” that is “enough for Texas to assert an injury” here. See 

NRC, 78 F.4th at 836; Becerra, 623 F. Supp. 3d at 714. This “encouraged disregard” 

of Texas’s anti-censorship law, moreover, creates an “increased regulatory burden” 

on Texas to prosecute more violations of H.B. 20. See Becerra, 623 F. Supp. 3d at 714. 

Defendants argue there is no enforceability conflict because GEC never 

required social media platforms to use censorship technology. Docket No. 33 at 16. 

“[I]f HB 20 prohibits a social media company from using a particular technology in a 

particular way,” Defendants contend, “then the company can simply choose not to use 

that technology as such.” Id. But Defendants underestimate the power of the State 

Department to “significant[ly] encourage[]” private parties to act—especially during 

a global pandemic like COVID-19, a subject Defendants sought to control and 

regulate. Docket No. 1 ¶ 215; id. ¶¶ 142–54. Defendants’ efforts, moreover, allegedly 

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paid off because, as noted above, social media platforms are allegedly deplatforming 

Media Plaintiffs based on their viewpoint. Id. ¶¶ 101–04. In any event, the federal 

agency in NRC never required a facility to violate Texas law by storing nuclear 

waste. 78 F.4th at 833–35. The agency in that case simply issued a license 

authorizing a private company to operate a storage facility, and yet the Fifth Circuit 

held that this action sufficiently injured Texas for purposes of standing. Id. 

at 833–34, 836.

Defendants also argue that no conflict exists because a district court enjoined 

Texas from enforcing H.B. 20 shortly before the law went into effect. Docket No. 33 

at 16–17 (citing NetChoice, L.L.C. v. Paxton, 573 F. Supp. 3d 1092 (W.D. Tex. 2021)). 

But Texas does not need to initiate an enforcement action under H.B. 20 to allege 

Article III harm. NRC is again instructive. There, Texas had standing to challenge 

the storage-facility license before the facility was built—that is, before the law was 

ever violated. NRC, 78 F.4th at 836. Similarly, Texas had standing to challenge the 

federal guidance in Becerra before a provider violated the State’s anti-abortion laws 

and necessarily before Texas initiated an enforcement action. 623 F. Supp. 3d at 714. 

Here, in contrast, Plaintiffs have alleged that Defendants are continuing to encourage 

social media platforms to censor and deplatform them—and that the platforms are 

obliging. This interference with the adherence to Texas law alone is an adequate 

injury to the State’s sovereign interests to satisfy Article III. See NRC ̧ 78 F.4th

at 835–36; Becerra, 623 F. Supp. 3d at 705, 713–14.

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Further, at the time Plaintiffs filed their complaint in this case, the Fifth 

Circuit had ruled that H.B. 20 was constitutional, found that the district court’s 

preliminary injunction was an abuse of discretion, and vacated the injunction in its 

entirety. See NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022). Although the 

Fifth Circuit stayed its mandate pending Supreme Court review, the stay is 

necessarily temporary, and Texas is entitled to presume that it will be able to enforce 

H.B. 20 as upheld by the Fifth Circuit. Defendants claim that Texas’s standing 

“rest[s] on pure speculation concerning the Supreme Court’s forthcoming 

ruling.” Docket No. 14 at 12. But it is Defendants who speculate that the Fifth 

Circuit’s decision will be reversed and the injunction will be reinstated, thereby 

precluding Texas from enforcing H.B. 20.2 

b. Traceability

“[Traceability] requires a causal connection between the plaintiff’s injury and 

the defendant’s challenged conduct, [but] it doesn’t require a showing of proximate 

cause or that ‘the defendant’s actions are the very last step in the chain of 

causation.’” Inclusive Cmtys. Proj., Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th 

Cir. 2019) (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)). Where, as here, the 

“causal relation between the claimed injury and the challenged action depends upon 

the decision of an independent third party[,] standing is not precluded, but it is 

2 Texas also argues that the Fifth Circuit upheld certain provisions of H.B. 20 that are “not part of 

the grant of certiorari” and that the State therefore “maintains, at a minimum, an interest in 

enforcing [these provisions]” “regardless of the Supreme Court’s decision.” Docket No. 41 

at 26. Because the Court finds that Texas has sufficiently alleged an injury-in-fact as set forth 

above, the Court need not address Texas’s alternative argument at this time.

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ordinarily substantially more difficult to establish.” Missouri v. Biden, 83 

F.4th 350, 369 (5th Cir. 2023) (quoting California v. Texas, 593 U.S. 659, 675 (2021)),

cert granted sub nom. Murthy v. Missouri, 144 S. Ct. 7 (2023). “‘To satisfy that 

burden, the plaintiff must show at the least that third parties will likely react in 

predictable ways.’” Id. (quoting California v. Texas, 593 U.S. at 661). Indeed, courts 

routinely find that the injury is traceable to the challenged act when standing “does 

not rest on mere speculation about the decisions of third parties” but instead “on the 

predictable effect of [g]overnment action on the decisions of third parties.” Dep’t of 

Com. v. New York, 139 S. Ct. 2551, 2566 (2019); see also Missouri, 83 F.4th at 370. 

Here, Texas alleges that its injury is the predictable result of Defendants’ 

deliberate efforts to market and promote the censorship tools and technologies to 

social media platforms. The Court agrees. As highlighted above, the complaint 

identifies several actions by Defendants, acting through GEC, to encourage and 

coerce platforms to demote and deplatform certain users. And, the complaint alleges, 

at least some social media platforms have in fact demoted and deplatformed certain 

users, thereby injuring Texas’s sovereign interest. See supra Section II.A.1.a. 

Defendants contend that the complaint does not specify the coercion or threats they 

purportedly made to social media companies. But allegations that one of “the most 

powerful office[s] in the world” repeatedly promoted and marketed the tools to social 

media companies is sufficient to allege that the companies, “faced with [such] 

unrelenting pressure,” likely “did, and would continue to, bend to the government’s 

will.” See Missouri, 83 F.4th at 371. 

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Defendants argue that any harm to Texas resulted from “the decisions of 

independent actors” (the social media companies), not Defendants. Docket No. 33 

at 16 (first citing Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 48 (D.C. Cir. 1994); and 

then citing Clapper, 568 U.S. at 414 n.5). But the Fifth Circuit rejected this argument 

in Missouri. There, the plaintiffs alleged that federal officials pressured social media 

platforms to censor certain content in violation of the First Amendment. 83 F.4th 

at 359. The defendants argued that traceability was lacking because any censorship 

“was a result of ‘independent decisions of social-media companies,’” not government 

officials. Id. at 370. The court disagreed, explaining that the platforms’ “censorship 

decisions were likely attributable at least in part to the platforms’ reluctance to risk 

the adverse legal or regulatory consequences that could result from a refusal to 

adhere to the government’s directives.” Id.; see also Dep’t of Com., 139 S. Ct. at 2566 

(holding that plaintiffs had satisfied the traceability requirement by “showing that 

third parties will likely react in predictable ways” in responding to certain 

government action). 

This case is indistinguishable. 

c. Redressability

“To satisfy redressability, a plaintiff must show that ‘it is likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.’” 

Inclusive Cmtys. Proj., 946 F.3d at 655 (emphasis in original) (quoting Friends of the 

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). “The relief 

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sought needn’t completely cure the injury, however; it’s enough if the desired relief 

would lessen it.” Id. (citing Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014)). 

The Court can redress Texas’s injury by granting the requested relief. Texas 

does not ask the Court to “overturn the Western District of Texas’s current 

injunction,” as Defendants suggest. Docket No. 33 at 17. Rather, Texas properly 

seeks an injunction prohibiting Defendants from continuing to encourage social 

media platforms to violate H.B. 20. Docket No. 1 at 65–66. Although the platforms 

may independently enforce their own censorship policies, see Missouri, 83 F.4th 

at 371, the requested injunction would no doubt “lessen” the injury to Texas to a 

meaningful degree. See Inclusive Cmtys. Proj., 946 F.3d at 655; see also Missouri, 83 

F.4th at 371 (holding that an injunction “restrain[ing] the officials from unlawfully

interfering with the social-media companies’ independent application of their 

content-moderation policies” would redress plaintiffs’ injury); Texas v. United 

States, 40 F.4th 205, 219 (5th Cir. 2022) (injunction “would naturally redress Texas’s 

harm to a meaningful degree.”). 

d. Factual Attack

Defendants also factually attack Texas’s standing. They argue that “the 

evidence submitted with [their] motion demonstrates that GEC has made no efforts 

to block either public or private enforcement of HB 20, or otherwise interfere with 

compliance with the law, defeating Plaintiffs’ assertions otherwise.” Docket No. 33 

at 17. For support, Defendants cite a declaration by Daniel Kimmage, the Principal 

Deputy Coordinator of GEC, stating that “GEC has not made any efforts to prevent 

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the State of Texas or any private actor from enforcing HB 20 against social media 

platforms, or to otherwise interfere with the State’s efforts to maintain compliance 

with HB 20.” Id., Ex. 1. 

As an initial matter, Mr. Kimmage’s single, conclusory statement denying 

Plaintiffs’ allegations is hardly sufficient to lodge a factual attack on jurisdiction. See, 

e.g., Harmouche v. Consulate Gen. of Qatar, 313 F. Supp. 3d 815, 821 (S.D. Tex. 2018)

(dismissing as conclusory a statement within an affidavit in support to a defendant’s 

factual attack on jurisdiction); Vasic v. Patent Health, L.L.C., 2013 WL 4716341, at *2 

(S.D. Cal. Sept. 3, 2013) (denying a motion to dismiss for lack of subject matter

jurisdiction because defendant’s self-serving affidavit in support of its factual attack 

on jurisdiction also attacked the merits of plaintiff’s case); see also Evans v. 

Tubbe, 657 F.2d 661, 663 (5th Cir. 1981) (“[T]he court is free to weigh the evidence 

and satisfy itself as to the existence of its power to hear the case.”). In any event, the 

Court declines to resolve the factual dispute at this stage in the proceeding. 

A district court may grant a Rule 12(b)(1) motion for lack of subject matter 

jurisdiction “on any one of three separate bases: (1) the complaint alone; (2) the 

complaint supplemented by undisputed facts evidenced in the record; or (3) the 

complaint supplemented by undisputed facts plus the court’s resolution of disputed 

facts.” Pickett, 37 F.4th at 1029 (quoting Williamson v. Tucker, 645 F.2d 404, 413 

(5th Cir. 1981)). Regarding the third basis, a court may not resolve disputed facts on 

a Rule 12(b)(1) motion “where issues of fact are central both to subject matter 

jurisdiction and the claim on the merits.” Id. at 1030 (quoting Montez v. Dep’t of the 

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Navy, 392 F.3d 147, 150 (5th Cir. 2004)); see also Montez, 392 F.3d at 150 

(“[R]esolution of the jurisdictional issue on a 12(b)(1) motion is improper” where the 

jurisdictional attack “is intertwined with the merits of a claim.”).

And here, the dispute at issue—whether Defendants interfered with Texas’s 

enforcement of H.B. 20—is the merits question. See Worldwide Parking, Inc. v. New 

Orleans City, 123 F. App’x 606, 608–09 (5th Cir. 2005) (quoting Williamson, 645 F.2d

at 415) (reversing the grant of a motion to dismiss for lack of subject matter

jurisdiction because “the district court’s resolution of the factual issue . . . precluded 

federal jurisdiction because it doomed [plaintiff’s] federal claim on the merits.”). 

Defendants in fact concede that “some of the same facts are relevant to standing and 

to the merits.” See Docket No. 45 at 3. The Court thus determines at this stage only 

whether Plaintiffs stated a claim “by accepting [their] well-pleaded allegations as 

true and considering them in the light most favorable to [Plaintiffs].” Pickett, 37 F.4th 

at 1031. Defendants can of course reassert their factual attack at summary judgment 

or trial. See Texas v. Mayorkas, 2023 WL 5616184, at *2 (S.D. Tex. Aug. 30, 2023) 

(denying motion to dismiss for lack of standing where the issue “is better resolved at 

the summary judgment stage where the Court can consider extra-record discovery 

evidence for standing”).

2. Media Plaintiffs

Defendants also challenge Media Plaintiffs’ standing both facially and 

factually. Although Texas’s standing satisfies the case-or-controversy requirement 

for the three claims brought by all Plaintiffs, the Court must determine whether 

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Media Plaintiffs adequately alleged standing for their First Amendment claims. See 

TransUnion, 594 U.S. at 432. As explained below, the Court rejects Defendants’ 

facial challenge because Media Plaintiffs sufficiently allege an injury, the injury is 

fairly traceable to Defendants’ actions, and a favorable decision will likely redress the 

injury. The Court again declines to resolve the factual attack at this stage. 

a. Injury

To establish injury, a plaintiff must allege that “he or she suffered ‘an invasion 

of a legally protected interest that is ‘concrete and particularized’ and ‘actual or 

imminent, not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Here, Plaintiffs allege actual

injury by identifying ongoing conduct by Defendants that presently violates their 

First Amendment rights: 

• TET and GEC’s front office and senior leadership meets regularly with

social media platforms to market and promote censorship tools that, upon

information and belief, “abridged Media Plaintiffs’ First Amendment

rights.” Docket No. 1 ¶¶ 84–86.

• GEC’s Disinfo Cloud Twitter account “remains live, displaying posts

promoting GDI and NewsGuard, as well as providing links to the Disinfo

Cloud Digest that promotes NewsGuard and other tools and technologies

that target Americans.” Id. ¶ 161.

• “Upon information and belief, GEC continues to use the research and

reports Disinfo Cloud authored about the 350-plus available censorship

tools and technologies, including ones that target Media Plaintiffs.” Id.

¶ 162.

• “[U]pon information and belief, the information available at

DisinfoCloud.com, including information about censorship tools and

technologies that target the American press and Americans’ speech, was

moved to another platform.” Id. ¶ 165.

• TET “continues to host the tech challenges and, upon information and

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belief, continues to award grants to fund the development of censorship 

technology or censorship enterprises that target the American press and 

Americans’ speech.” Id. ¶ 170. 

• Upon information and belief, GEC continues to operate the testbed that

“test[s] and/or develop[s] censorship technology that targets the American

press and Americans’ speech.” Id. ¶¶ 171–72

• “Upon information and belief, [] GEC maintains a platform of censorship

technology and tools, including those that target segments of the American

press and Americans’ speech.” Id. ¶ 173.

• “GEC also maintains a ‘Silicon Valley location’ and, upon information and

belief, continues to promote and market censorship tools and technology

that target segments of the American press and Americans’ speech to the

tech industry, the private sector, and academia.” Id. ¶ 175.

Defendants argue that these allegations are mere “labels and conclusions.” 

Docket No. 33 at 19. But when viewed in context, including the specific details of 

past instances of alleged conduct, the allegations are more than sufficient to allege 

injury-in-fact at this stage in the proceeding. See, e.g., Jackson v. Wright, 82 

F.4th 362, 369 (5th Cir. 2023) (“At the motion to dismiss stage where we must accept

all [plaintiff’s] allegations as true, [plaintiff] has plainly alleged both a continuing 

and a future injury sufficient to confer standing for [plaintiff] to seek prospective 

relief.”).

To be sure, as Defendants acknowledge, the complaint also includes numerous 

allegations of past harm. See, e.g., Docket No. 1 ¶¶ 142–44, 160–67; Docket No. 33 

at 19. But “[p]ast harm can constitute an injury-in-fact for purposes of pursuing 

injunctive relief if it causes ‘continuing, present adverse effects.’” Missouri, 83 F.4th 

at 367 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)); And here, Media 

Plaintiffs sufficiently allege that the harm from these injuries is ongoing, as required 

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to pursue injunctive relief. The complaint, as noted above, specifies numerous 

instances in which Defendants, acting through GEC, promoted, funded, and 

marketed censorship tools and technologies to “the tech industry, the private sector, 

and academia” to censor “misinformation” and “disinformation,” including Media 

Plaintiffs’ speech. See supra Section II.A.1.a. The complaint also alleges that social 

media companies are presently using these tools “to suppress Media Plaintiffs’ speech 

and the distribution of Media Plaintiffs’ reporting, as well as to destroy Media 

Plaintiffs’ advertising opportunities.” See Docket No. 1 ¶ 101; see also id. ¶¶ 102–04 

(alleging that social media companies utilize GDI and NewsGuard through the World 

Federation of Advertisers and Global Alliance for Responsible Media to “steer bluechip advertisers away from Media Plaintiffs”). These allegations sufficiently allege 

past injuries with “continuing, present adverse effects.” See Missouri, 83 F.4th at 368 

(quoting Lyons, 461 U.S. at 102).

Past wrongs may also be evidence “of the likelihood of a future injury.” 

Missouri, 83 F.4th at 367–68 (quoting Crawford v. Hinds Cnty. Bd. of Supervisors, 1 

F.4th 371, 375 (5th Cir. 2021)). And here, Media Plaintiffs contend that Defendants’

past censorship efforts evidence a strong likelihood that their injuries will reoccur. 

In addition to alleging that Defendants are presently encouraging censorship, as 

noted above, Media Plaintiffs specifically allege that Defendants continue to engage 

with social media companies to discuss censorship strategies, Docket No. 1 ¶¶ 84–86; 

and continue to use GEC’s Silicon Valley Engagement initiative to promote and 

market “tech industry censorship technologies and censorship enterprises” that harm 

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the American press, including Media Plaintiffs, ¶¶ 76–78, 175. 

Missouri is again instructive. There, social media users alleged that the 

federal government engaged in a similar censorship scheme to coerce social media 

companies to censor the users’ opinions about COVID-19. 83 F.4th at 367. The 

plaintiffs identified past censorship by the social media companies and alleged that 

this prior censorship “caused them to self-censor and carefully word social-media 

posts moving forward in hopes of avoiding suspensions, bans, and censorship in the 

future.” Id. at 368. As here, the government in that case argued that the plaintiffs 

“have failed to demonstrate that the harm from these past injuries is ongoing or that 

similar injury is likely to reoccur in the future.” Id. at 367. The Fifth Circuit rejected 

the argument, concluding that “these lingering effects of past censorship must be 

factored into the standing calculus.” Id. at 368 (citing Lyons, 461 U.S. at 102). The 

plaintiffs’ fears of future harm were not merely hypothetical concerns because of “the 

very real censorship injuries they have previously suffered to their speech on social 

media.” Id. The plaintiffs, moreover, demonstrated a substantial risk of reoccurrence 

because the government “continue[s] to be in regular contact with social-media 

platforms concerning content-moderation issues today.” Id. at 369. 

Accordingly, the Court finds that Media Plaintiffs have adequately alleged an 

injury-in-fact. 

b. Traceability

Defendants similarly argue that Media Plaintiffs’ alleged injury is not 

traceable to Defendants because the injuries are “the result of the independent 

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action[s] of . . . third party” companies that are “not before the court.” Docket No. 33 

at 20 (quoting Inclusive Cmtys. Proj., 946 F.3d at 655). 

The Court again rejects the argument. As explained above, Media Plaintiffs 

allege that their First Amendment injuries are the predictable result of Defendants’ 

deliberate efforts to market and promote the censorship tools and technologies to “the 

tech industry, the private sector, and academia.” See supra Section II.A.1.b. The 

complaint identifies those efforts and alleges that the third parties deplatformed and 

demoted Media Plaintiffs as a result. See id. That is sufficient to allege traceability. 

See Missouri, 83 F.4th at 661–62; Dep’t of Com., 139 S. Ct. at 2566. 

c. Redressability

Finally, Media Plaintiffs’ alleged injury is redressable. Media Plaintiffs seek 

an injunction prohibiting Defendants from continuing to market and promote 

censorship tools that are used to demote and deplatform them. Docket No. 1 at 66. 

Defendants argue that such an injunction would not actually cure Media Plaintiffs’ 

harm because the third parties using these censorship tools may decide to demote 

and deplatform Media Plaintiffs anyway. Docket No. 33 at 25. But, as the Court 

explained above, the requested injunction would no doubt “lessen” the injury to Media 

Plaintiffs to a meaningful degree. Inclusive Cmtys. Proj., 946 F.3d at 655; see also 

Missouri, 83 F.4th at 371; Texas v. United States, 40 F.4th at 219. 

d. Factual Attack

Defendants also factually attack Media Plaintiffs’ standing. They argue that 

“the record contradicts Plaintiffs’ version of events” and largely deny the allegations 

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in the complaint. Docket No. 33 at 21. GEC, Defendants contend, never funded, 

promoted, or encouraged the use of censorship technologies targeting Media Plaintiffs 

or other Americans. Id. at 21–25. GEC has also purportedly ended “many of the 

initiatives that Plaintiffs speculate are harming them here.” Id. at 20. As a result, 

Defendants argue, Media Plaintiffs have not suffered any ongoing injury, any alleged 

injury is not traceable to their conduct (which never happened), and any “purported 

injuries are not redressable by the relief [Media Plaintiffs] seek.” Id. at 25. The 

“record” that Defendants repeatedly reference in making this argument consists of 

three declarations from: Mr. Kimmage of GEC; Matthew Skibinski, General Manager 

of NewsGuard Technologies, Inc.; and Dr. Daniel Rogers, Co-founder and Director of 

Disinformation Index, Ltd. Id., Exs. 1–3.

The Court is unconvinced that a defendant can “factually attack” jurisdiction 

in a Rule 12(b)(1) motion with self-serving declarations simply denying the 

allegations. See supra Section II.A.1.d. In any event, the Court declines to consider 

the argument at this stage in the proceeding. As noted above, a court cannot resolve 

disputed facts on a Rule 12(b)(1) motion “where issues of fact are central both to 

subject matter jurisdiction and the claim on the merits.” Pickett, 37 F.4th at 1030 

(quoting Montez, 392 F.3d at 150). And here, the facts disputed by Defendants in 

their motion are the very facts underlying Media Plaintiffs’ merits claims. See

Worldwide Parking, 123 F. App’x at 608–09; see also Docket No. 45 at 3(Defendants 

conceding that “some of the same facts are relevant to standing and to the merits.”).

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The Court thus accepts Media Plaintiffs’ allegations as true and determines 

that they sufficiently establish standing at this stage in the proceeding. Pickett, 37 

F.4th at 1031. And, as noted above, Defendants can resubmit their proof and re-raise

their argument at summary judgment or trial. See Mayorkas, 2023 WL 5616184, 

at *2. 

B. Final Agency Action

Defendants seek to dismiss Count Four, which alleges “unlawful final agency 

action in violation of the Administrative Procedure Act.” Docket No. 1 

at 63. Defendants argue that the only “final agency action” identified in the 

complaint is “Defendants’ [alleged] secretive scheme to suppress, defame, defund, 

discredit, and reduce the circulation of a segment of the press.” Docket No. 33 at 26 

(quoting Docket No. 1 ¶ 260). And, Defendants contend, this is not the kind of 

“specific and discrete final agency action” that the Supreme Court and Fifth Circuit 

require under the APA. Id. The Court agrees.

The APA provides for judicial review of “final agency action for which there is 

no other adequate remedy in a court.” 5 U.S.C. § 704. “Final agency actions are 

actions which (1) ‘mark the consummation of the agency’s decisionmaking process,’ 

and (2) ‘by which rights or obligations have been determined, or from which legal 

consequences will flow.’” Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) 

(quoting Bennett, 520 U.S. at 178). “[W]hether an agency action is final is a 

jurisdictional issue, not a merits question.” Texas v. EEOC, 933 F.3d 433, 440 n.8

(5th Cir. 2019). When reviewing finality, the Court must take a “pragmatic” 

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approach. U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016) 

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). 

Applying this law, courts have found that an agency “program” is typically not 

“final agency action” under the APA because it does not “mark the ‘consummation’ of 

the agency’s decisionmaking process,” or constitute “an identifiable action or 

event.” See Sierra Club, 228 F.3d at 566 (first citing Bennett, 520 U.S. at 178; and 

then citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990)). In Lujan v. Nat’l 

Wildlife Fed’n, for example, the Supreme Court held that the plaintiff had not 

challenged a particular final agency action when it challenged the Secretary of the 

Interior’s entire “land withdrawal review program.” 497 U.S. at 877–79. Rather than 

limit its claim to a “single [agency] order or regulation, or even to a completed 

universe of particular [agency] orders and regulations,” the plaintiff had challenged 

“the continuing (and thus constantly changing) operations of the [agency]” in 

implementing federal law. Id.; see also id. at 890 n.2 (requiring the identification of 

a final “specific order or regulation, applying some particular measure across the 

board to all individual [agency decisions], for a challenge under the APA that could 

affect the operation of a program”); Alabama-Coushatta Tribe of Tex. v. United 

States, 757 F.3d 484, 490–91 (5th Cir. 2014) (affirming dismissal of an APA claim 

challenging various federal agencies’ management of natural resources in national 

parks in Texas because the plaintiff failed to allege agency action, let alone final 

agency action).

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Here, Plaintiffs have alleged that the “final agency action” is a censorship 

“scheme” consisting of a series of decisions, mostly by GEC, to fund, develop, market, 

and promote censorship tools and technologies in a variety of ways. See, e.g., Docket 

No. 41 at 7 (“Defendants’ secretive scheme to suppress, defame, defund, discredit, and 

reduce the circulation of a segment of the press by, among other things, funding, 

marketing, and/or promoting censorship tools, technology and censorship enterprises 

operating in the United States—specifically the censorship-by-risk-rating technology 

and entities—constitutes final agency action under the APA.”). The complaint, 

however, does not describe these decisions in a way that “marks the consummation 

of the agency’s decisionmaking process,” but rather as “continuing (and thus 

constantly changing) operation[al]” choices. See Sierra Club, 228 F.3d at 566; see also 

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. at 877–79. Such “day-to-day operations” are 

typically not “final agency action” subject to review under the APA. See Sierra 

Club, 228 F.3d at 566. The scope of Plaintiffs’ claim, moreover, demonstrates that 

Plaintiffs broadly challenge Defendants’ censorship scheme instead of a specific final 

agency action. See Docket No. 1 ¶ 3 (“The full breadth of Defendant GEC’s censorship 

scheme is currently unknown.”); see also Sierra Club, 228 F.3d at 567.

Accordingly, the Court grants the motion to dismiss Plaintiffs’ APA claim 

(Count Four) for lack of jurisdiction.

C. Claims Against Official Capacity Defendants

Finally, Defendants ask the Court to dismiss Plaintiffs’ claims “against the 

official capacity Defendants” because “an official capacity claim is essentially a claim 

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against the agency.” Docket No. 33 at 27. The Court denies the request.

Plaintiffs named the Department of State and the Global Engagement Center 

as Defendants, along with six individuals in their official capacities as officials of 

those agencies: Antony Blinken, Secretary of State; Leah Bray, Deputy Coordinator 

of GEC; James P. Rubin, Coordinator of GEC; Daniel Kimmage, Principal Deputy 

Coordinator of GEC; Alexis Frisbie, Senior Technical Advisor of the Technology 

Engagement Team at GEC; and Patricia Watts, Director of the Technology 

Engagement Team at GEC. Plaintiffs argue that, although GEC and the Technology 

Engagement Team currently reside in the State Department, these entities “could be 

shifted to another federal agency” and thus including the GEC and TET officials as 

defendants is necessary “to ensure the injunctive relief binds both the GEC and the 

TET.” Docket No. 41 at 30. But Plaintiffs named GEC as a Defendant, so any 

injunction would bind the agency even if it is later “shifted to another agency.” 

Nevertheless, the Court is not persuaded that Defendants are entitled to 

dismissal of the officers in their official capacities. They cite no authority requiring 

dismissal. And courts routinely enjoin both agencies and individuals acting in their 

official capacities. See, e.g., Missouri v. Biden, 680 F. Supp. 3d 630, 729 (W.D. 

La. 2023), aff’d in part, 83 F.4th 350 (5th Cir. 2023); Louisiana v. Biden, 575 F. 

Supp. 3d 680, 685 (W.D. La. 2021), aff’d, 55 F.4th 1017 (5th Cir. 2022); Texas v. 

EEOC, 2018 U.S. Dist. LEXIS 30558, at *7 (N.D. Tex. Feb. 1, 2018), aff’d in part, 933 

F.3d 433 (5th Cir. 2019); Texas v. EPA, 829 F.3d 405 (5th Cir. 2016); Kentucky v.

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Biden, 571 F. Supp. 3d 715, 735 (E.D. Ky. 2021), aff’d in part, 57 F.4th 545 (6th 

Cir. 2023). 

III. Motion to Transfer

Defendants also move to transfer the case. Docket No. 14. They contend that 

“[t]his case lays venue in the wrong district and should be transferred to the most 

appropriate venue: the United States District Court for the District of Columbia.” 

Id. at 4. The Court denies the motion.

Venue here is governed by 28 U.S.C. § 1391(e)(1), which states: 

A civil action in which a defendant is an officer or employee of the United 

States or any agency thereof acting in his official capacity . . . or an 

agency of the United States, or the United States . . . may . . . be brought 

in any judicial district in which (A) a defendant in the action resides, (B) 

a substantial part of the events or omissions giving rise to the claim 

occurred, or a substantial part of property that is the subject of the 

action is situated, or (C) the plaintiff resides if no real property is 

involved in the action.

If a case is filed in an improper venue, the court “shall dismiss, or if it be in the 

interest of justice, transfer such case to any district or division in which it could have 

been brought.” Id. § 1406(a).

Venue is proper in the Eastern District of Texas because (1) this is a civil action 

in which Defendants are officers and agencies of the United States and (2) a plaintiff, 

the State of Texas, resides here. See 28 U.S.C. § 1391(e)(1)(C); Texas v. Garland, 2023 

WL 4851893 (N.D. Tex. July 28, 2023).

Defendants’ principal argument against venue in the Eastern District of Texas 

is that Texas lacks standing and thus no plaintiff resides here. Docket No. 14 at 5–9. 

But, as explained above, Texas has standing. See supra Section II.A.1. 

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Defendants also argue that, even if Texas has standing, the State does not 

“reside[]” in the Eastern District. Docket No. 14 at 10–11. They cite the residency 

provision of § 1391(c)(2) and contend that Texas resides only where it “maintains its 

principal place of business where it performs its official duties—that is, its capital, 

Austin, located in the Austin Division of the Western District of Texas.” Id. at 10. 

But the text of § 1391(c)(2) does not support that position. The provision states:

For all venue purposes, (2) an entity with the capacity to sue and be sued 

in its common name under applicable law, whether or not incorporated, 

shall be deemed to reside, if a defendant, in any judicial district in which 

such defendant is subject to the court’s personal jurisdiction with respect 

to the civil action in question and, if a plaintiff, only in the judicial 

district in which it maintains its principal place of business.

The term “entity” is undefined in the statute but commonly means “[a]n organization 

(such as a business or a governmental unit) that has a legal identity apart from its 

members,” not a state. Entity, BLACK’S LAW DICTIONARY (11th ed. 2019). The 

provision, moreover, refers to “entity” as one with “the capacity to sue and be sued . . . 

whether or not incorporated,” which makes little sense if the term includes states. 

See California v. Azar, 911 F.3d 558, 569–70 (9th Cir. 2018) (noting that § 1391(c)(2) 

“explicitly refers to the incorporation status of the ‘entity,’ indicating that the term 

refers to some organization, not a state.”); Garland, 2023 WL 4851893, at *4 (“Texas 

is not an ‘entity’ within the meaning of Section 1391(c)(2), given its plain reference to 

unincorporated associations.”); Pennsylvania v. Trump, 351 F. Supp. 3d 791, 809 

(E.D. Pa. 2019), rev’d on other grounds sub. nom. Little Sisters of the Poor Saints Peter 

and Paul Home v. Pennsylvania, 591 U.S. 657 (2020). Likewise, the fact that “states, 

unlike corporations, do not have a principal place of business” is another indication 

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35

that § 1391(c)(2) does not apply states. Garland, 2023 WL 4851893, at *4. And, 

finally, “limiting [a state’s] residency to a single district in the state would defy 

common sense.” California v. Azar, 911 F.3d at 570; see also Garland, 2023 

WL 4851893, at *3 (“[C]ommon sense . . . make clear[s] clear that a state resides in 

every district and division within its borders.”); Pennsylvania, 351 F. Supp. 3d at 809 

(“[R]eading Section 1391 as Defendants suggest [to include states] would yield an 

absurd result.”).3 

Because § 1392(c)(2) does not apply to states, the State of Texas is deemed to 

“reside[] at every point within the boundaries of the state,” including the Eastern 

District of Texas. E.g., Atlanta & F.R. Co. v. Western Ry. Co. of Ala., 50 F. 790, 791 

(5th Cir. 1892). Venue is thus proper here, and Defendants’ motion to transfer is 

DENIED. 

IV. Conclusion

Plaintiffs have satisfied their burden to demonstrate standing at this stage of 

the case, and venue is proper in the Eastern District of Texas. Plaintiffs, however,

have not identified a final agency action for the Court to review under the APA.

Accordingly, the Court GRANTS IN PART Defendants’ Motion to Dismiss (Docket 

No. 33) and DISMISSES Count Four. The Court DENIES Defendants’ Motion to 

3 In addition to those cited above, other courts have held that § 1391(c)(2) does not apply to states. 

See, e.g., Florida v. United States, 2022 WL 2431443, at *2 (N.D. Fla. Jan. 18, 2022); Alabama v. 

U.S. Army Corp of Eng’rs, 382 F. Supp. 2d 1301, 1329 (N.D. Ala. 2005). See also Wright & 

Miller, 14D FED. PRAC. & PROC. JURIS. § 3815 (4th ed. 2023) (“A state is held to reside in any district 

within it.”).

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Dismiss in all other respects. The Court also DENIES Defendants’ Motion to 

Transfer Venue (Docket No. 14).

So ORDERED and SIGNED this day of

___________________________________

JEREMY D. KERNODLE

UNITED STATES DISTRICT JUDGE 7th May, 2024.

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