Shopping for the Judge You Want Honed to Perfection in Texas

Four blocks from the federal courthouse in Amarillo, Texas, a receptionist on the 21st floor of a high rise building answers the phone on behalf of multiple clients–one being the Freedom Coalition of Doctors for Choice.

The group says it has 91 members. But in Amarillo, what matters is its claim that six of them practice in the Northern District of Texas. That, and its claim of being based in that virtual office, allowed the group to get its lawsuit seeking information about reported side effects of the Covid-19 vaccine before US District Judge Matthew Kacsmaryk.

He’s ruled against the Biden administration on LGBTQ rights, immigration, and distribution of the abortion drug mifepristone—and he’s the only federal judge who handles civil cases in Amarillo.

Not only did Kacsmaryk deny the Justice Department’s contention that the suit was improperly filed before him, he ordered that the doctors’ group be given thousands of text entries made by people reporting effects of the vaccine.

“When the production by the government is done, that organization will dissolve,” said Christopher Wiest, an attorney for the coalition.

It’s among 18 lawsuits that show how conservative groups have tactically ensured that their legal challenges to Biden administration policies get in front of Kacsmaryk, or Mark Pittman or Reed O’Connor, Republican appointees who between them hear 90% of civil cases in Fort Worth.

Bloomberg Law verified and supplemented research on potential instances of judge shopping done by the left-leaning watchdog Accountable.US.

Those judge-shopping strategies include claiming an address in Fort Worth or Amarillo, recruiting plaintiffs who live or work in those judicial districts, and collaborating with the state of Texas on lawsuits.

For example, one of the board members for the group in the Covid vaccine case, a physician named Richard Bartlett, said in court papers that he works in Amarillo but lists the West Texas city of Odessa, more than 300 miles away, in state medical license records. Bartlett, who briefly ran for Congress in 2019, was the subject of local media coverage in the early days of the pandemic for backing an unproven treatment for Covid-19. In 2021 he was reportedly issued a criminal trespass warning for going through a hospital’s trash. He didn’t respond to questions sent through his attorney.

Each federal district court sets its own rules for assigning cases, and many randomly distribute them among a pool of judges. But that’s not always the case in the US District Court for the Northern District of Texas. Small or single-judge divisions are more common in rural areas of the vast state, where there aren’t enough cases to justify having more judges all assigned to the same courthouse.

Still, that doesn’t explain why the court in Fort Worth — a little over 30 miles from the federal courthouse in downtown Dallas which houses eight active judges — largely splits its civil cases between only two judges. The district has a total of 11 active judges and five senior judges across seven divisions.

The federal judiciary’s policy making body has urged courts to act against judge shopping. But the unenforceable guidance hasn’t been acted on by the Northern District of Texas, and a federal appeals judge recently defended the district and criticized the proposed guardrails at a conference featuring many of the court’s members.

“It’s a go-to tactic that conservative groups have been using more and more frequently now and I think we’re seeing the implications of that just become more real ever so much in the past few months and years,” said Tony Carrk, executive director of Accountable.US.

Chief Judge David Godbey of the Northern District of Texas declined to comment. O’Connor, Pittman, and Kacsmaryk didn’t respond to requests for comment.

Gene Hamilton, vice president and general counsel for the America First Legal Foundation, a group staffed with associates of former President Donald Trump, that has filed numerous challenges in Texas courts, called the noise around judge shopping “completely overblown.”

“People have realized, I guess on the other side so to speak, that there are judges in this country who are fair and who are not biased and who are not afraid to issue a decision based on the law and the facts before them. And they don’t like that,” he said.

To be sure, forum shopping isn’t new. Republicans accused Democrats of the tactic as they repeatedly challenged Trump administration policies in liberal-leaning courts in Washington, DC, or within the US Court of Appeals for the Ninth Circuit, where Democratic appointees dominated at the start of Trump’s term.

The difference, according to Steve Vladeck, a law professor at the University of Texas at Austin who has tracked judge shopping issues, is that court rules in Texas allow conservative groups to effectively choose their judges, not merely a court that collectively may lean a certain direction politically.

And the tactic isn’t withering away under scrutiny: Texas filed two new lawsuits in Amarillo last week alone.

“I think that the behavior’s even more targeted than it used to be. And the ability to judge shop means you can be even more precise,” Vladeck said.

One instance of attorneys flocking to Texas is a conservative Wisconsin group trying to build up its national profile. Founded in 2011 as the state became a national conservative incubator during Republican Gov. Scott Walker’s administration, the Wisconsin Institute for Law & Liberty says it was “founded to ride to the sound of the guns — to go into battle to protect the freedom of Wisconsinites.”

Most of its federal court fights have played out in the group’s home state. Dan Lennington, who leads the group’s Equality Under the Law Project, said the institute began filing lawsuits out of state after President Joe Biden took office in 2021. He estimated that 80% of his project’s cases are now outside Wisconsin.

In 2023, the group backed three lawsuits in the Northern District of Texas, all in the Amarillo and Fort Worth divisions.

In Amarillo, the Wisconsin attorneys challenged a rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives on the use of stabilizing braces on handguns. One of the three lead plaintiffs is Darren Britto, a US Marine Corps veteran, firearms instructor, and writer about Second Amendment issues from Amarillo. Adding Britto gave the institute the jurisdiction it needed to get into Kacsmaryk’s court.

In a March 2023 post on the website Guns.com, titled “‘Brace’ Yourselves! How to Sue the ATF,” Britto said he served in a military counterdrug joint task force more than 20 years ago with WILL’s director of external affairs.

“Less than two weeks before the ATF registered its new rule on stabilizing braces, we were talking on the phone. My former teammate asked me if I was willing to put my money where my mouth was regarding my stance — and here we are,” Britto wrote.

Britto declined to comment, referring Bloomberg Law to WILL. Lennington said he couldn’t talk about how Britto joined the litigation, citing attorney-client privilege.

“If a lawyer has the option to file a case in two different places and if it’s the lawyer’s belief or judgment that his client will get a fair shake from one judge and believes that another judge will be less fair, I think that attorney has an obligation to make a judgment call about where to use the rules to file a case,” Lennington said.

Kacsmaryk granted an injunction against the ATF. A month earlier, O’Connor in Fort Worth had enjoined the same rule in a separate lawsuit also brought by WILL attorneys.

There, they represented the National Association for Gun Rights, based out of Colorado, and a group called Texas Gun Rights, Inc.

State records show that Texas Gun Rights, Inc. incorporated in a county outside of Fort Worth nearly four months before the lawsuit was filed. A related group, Texas Gun Rights, LLC, still has an Austin address, which is located within the US District Court for the Western District of Texas. The Austin courthouse currently only has one active, full-time district judge, an Obama appointee who’s issued rulings against Texas policies.

Chris McNutt, president of Texas Gun Rights, in email responses sent by Lennington, said that the group recently split from the National Association for Gun Rights, which is why it hadn’t been involved in litigation before then. He said that the Austin address was established by NAGR and kept by his group to process contributions. Lennington denied that the case is an instance of judge shopping.

The ATF challenges are now pending before the US Court of Appeals for the Fifth Circuit.

In July 2022, WILL sued in Florida’s Middle District over a provision in the Biden administration’s infrastructure law that set aside 10% of surface transportation projects for small businesses owned by women or minorities.

Judge Kathryn Mizelle, a Trump appointee in the court’s Tampa division chosen at random to hear the case, dismissed the lawsuit in March 2023, finding that plaintiff Christian Bruckner’s harm was speculative. But 11 days before that ruling came in, Bruckner and WILL pursued another case challenging a different pool of federal funds — this time in Fort Worth.

In the new lawsuit, presided over by Trump appointee Pittman, three business owners challenged race-based assistance from the Minority Business Development Agency. One was from Wisconsin, the second was Bruckner,and the third was the lead plaintiff: Jeffrey Nuziard, a Tarrant County resident and owner of the Sexual Wellness Centers of Texas. Nuziard declined a request for an interview.

Bruckner said that he had reached out to WILL because of his interest in making sure that disabled people like himself can have access to federal funds. “These lawsuits are not meant to take away anything from anybody,” he said.

On March 25 this year, Pittman entered a permanent injunction against the agency from “further implementation” of its “unconstitutional statutory presumption.”

In the opinion, Pittman conceded that the Wisconsin plaintiff lacked standing to bring the case but ruled in Nuziard and Bruckner’s favor, blocking the agency from using applicants’ race or ethnicity in determining eligibility for assistance. “While the Agency’s work may help alleviate opportunity gaps faced by [minority business enterprises], two wrongs do not make a right,” the judge wrote. “And the MBDA’s racial presumption is a wrong.”

In May, Pittman awarded the Wisconsin institute more than $360,000 in attorneys’ fees and costs.

The American First Legal Foundation, led by former Trump White House aide Stephen Miller, has backed roughly a dozen lawsuits in the Northern District of Texas, most challenging Biden policies. All but one were filed in Fort Worth or Amarillo.

Three of the lawsuits, challenging preferences for federal funds on the basis of sex or race, were dropped by the plaintiffs. In one case, the group did that a day after O’Connor granted a temporary restraining order against preferences being used in restaurant relief funds. In another, the plaintiffs agreed to drop a challenge to aid for non-white farmers after the law was repealed.

AFL’s attorneys were also behind two other complaints in which they notched wins from O’Connor. In one, the judge found that Affordable Care Act provisions on preventive care are unconstitutional, a ruling now before the Fifth Circuit.

In the other, O’Connor partly ruled against the Equal Employment Opportunity Commission for not making religious accommodations for employers who discriminate on the basis of sexual orientation or gender identity, which was largely affirmed by the New Orleans-based appeals court.

Hamilton, the general counsel for AFL and a former Trump administration official, disputed that judge shopping is at play in his group’s litigation. “You take your clients as you find them and where they are,” he said. “And we’ve had a number of clients who live in the Northern District of Texas, and so we’ve been happy to provide legal services to them, again, because that’s where they live.”

He’s also been listed as a counsel for Texas in at least six lawsuits since 2021, work he said he’s done for free. The Texas attorney general’s office didn’t respond to a request for comment.

One of those, a multistate lawsuit filed in Amarillo, challenged a program that allows undocumented migrants to petition to bring their minor children into the US. It was transferred to the Dallas division by the court’s then-chief judge, Barbara Lynn. She pointed to a lack of ties to Amarillo and an existing similar case in her court. No other case brought by Texas in the Northern District has been transferred to another court, according to Bloomberg Law’s review.

The other Trump affiliated group, the America First Policy Institute, in 2021 listed on tax forms its headquarters as being in Arlington, Virginia, but by 2022 said it was based out of Fort Worth. That has allowed it to file at least three lawsuits seeking public records in the nearby court, including requests for contacts between Biden administration officials and social media companies about misinformation related to the Covid pandemic and the 2020 election. Texas state records show that the group incorporated there in 2020, but lists a Washington mailing address, and lawyers who have signed complaints filed by the group have also listed that address.

Marc Lotter, a spokesperson for AFPI, said the group has been incorporated in Texas since its creation while also maintaining offices in Washington and Virginia. “It should also be noted that despite multiple cases being filed and resolved, not once has the government challenged the venue of the case,” Lotter said.

The Judicial Conference, the federal courts’ policy making arm, in March passed non-binding guidance meant to guard against judge shopping tactics. It urged that cases involving statewide and national policies be randomly assigned among the judges of that court.

But those guidelines are non binding. A federal judiciary rules committee is considering whether to draft a binding rule but is weighing whether it has that authority.

Judge James Ho, speaking at a conference for judges and lawyers of the Northern District of Texas in April, echoed an earlier speech in which he criticized the Judicial Conference for its guidance.

“This isn’t about forum shopping. It’s about forum shaming,” he said. “It’s about shaming judges who won’t distort the rulings to do their bidding, while rewarding those judges who do.”

One point on which attorneys from both political perspectives agree: there’s nothing wrong with litigants trying to get lawsuits before judges and courts that would give them the best possible outcome, as long as they follow the rules.

“So really it’s up to the courts,’’ said Jennifer Ahearn, senior counsel for the Brennan Center for Justice at NYU Law who has argued for a rule against judge shopping tactics. “And the question is, when does this cross a line over into something that is patently unfair?”

---