FAQ

 

What is the difference between district and circuit court? What about courts of appeal?

The short answer is that district courts are the lowest level of the federal court system and appeals from there go to a Circuit Court (which are also known as “Circuit Courts of Appeal.”).  The longer explanation is below.

In the federal court system, there are three general levels of courts: 

 District courts:

  • Most cases (and all those tracked on this site) start at the district court level.  This is the “trial court” level, where the facts are developed and the only level where trials take place. 
  • There are 94 district courts.  Each state has between one and four district courts, and the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands each have one district court.
  • Each district court has at least one judge; the largest district courts have 28 judgeships (Congress decides how many judgeships to authorize in each district, although note that “senior” judges—who often still hear cases, but usually on a reduced workload—are not counted in that number).  The exact number of district court judges varies as vacancies arise and are filled, but nationwide, there are well over 600 district court judges at any given time.
  • Some districts (but not all) are further subdivided into “divisions,” with particular judges assigned to particular divisions.

Circuit Courts of Appeal:

  • The district courts are organized into 12 geographically based “circuits,” each of which has a court of appeals that is referred to as the Circuit Court of Appeals or just the “Circuit Court.”
  • These regional Circuit Courts are numbered the First through the Eleventh, plus one Circuit Court just for the District of Columbia.  (The “Filter by location” feature on our Tracker shows the bounds of each Circuit)
  • The thirteenth and final Circuit Court is the Federal Circuit, which hears appeals from anywhere in the country in specialized cases (like those involving patent law) and from specialized courts (like the U.S. Court of International Trade).
  • Circuit Courts generally hear appeals in 3-judge panels.  Each Circuit has between 6 and 29 authorized judgeships, with a total of 179 judgeships authorized across the Circuit Courts (note that “senior” judges—who often still hear cases, but usually on a reduced workload—are not counted in that number).

Supreme Court: 

there’s only one, and it currently has nine Justices. Unlike district and circuit courts—which generally have to hear whatever cases come before them—the Supreme Court decides for itself which appeals it wants to hear and decide.

Nearly all litigation against the U.S. government or one of its agencies takes place in federal court.  Even when a case is filed elsewhere (like a state court), if the federal government is involved, it will typically “remove” the case to federal court.
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Why are there so many cases in the Fifth Circuit?

Because that is where red states believe they are most likely to win.

When bringing litigation against the Biden Administration, red states often have a lot of choices on where to file suit: under current rules, a group of plaintiff states can typically file a lawsuit in any district court within any one of the plaintiff states (see question 3 for more on this topic).  Thus far, whenever they have the option red states have usually chosen to file immigration-related lawsuits in district courts within the Fifth Circuit (which is comprised of Texas, Louisiana, and Mississippi), which is widely considered the most conservative Circuit Court in the country.  And since the State of Texas is often a plaintiff in these cases, filing in Texas is often an option. 

In addition (and as discussed in more depth in answering the next question), the structure of the federal district courts in Texas also gives the State of Texas significant ability to steer its lawsuits to particular judges believed to be more favorable to the State’s position; that ability makes filing in Texas even more attractive from the red states’ perspective.
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Can plaintiffs pick their judge?

Not usually, no, but because of some peculiarities in the law of where a lawsuit can permissibly be filed (called “venue”), sometimes a state suing the federal government—in particular, Texas—can pick a particular judge to hear its case.

Per the generally applicable law on venue, a plaintiff suing a federal employee (like the President) generally has the option (among others) of filing that lawsuit in the district court in which the plaintiff “resides.”  If there are multiple plaintiffs that reside in different districts, the lawsuit can usually be filed in any district court in which at least one plaintiff resides.  Thus, if three plaintiffs residing in three different states together sue the President, those plaintiffs could file that lawsuit in at least three different district courts—the three in which each plaintiff resides.

But if those three plaintiffs are states, they usually have even more options.  Under the law of venue, a plaintiff who is a human being can only “reside” in one location (wherever they are domiciled), and the same is true of organizations and corporations, even those that have multiple offices across the countries—they only reside in the district where they maintain their principal place of business.  In at least some Circuits, however (including the Fifth), a plaintiff state is considered to “reside” everywhere within its borders—and so can sue the federal government anywhere within its borders.

Texas, for example, has four different district courts, each of which is further divided into “divisions.”  There are 27 different divisions within the federal district courts in Texas, and thus Texas has 27 options for where it wants to file a lawsuit against the federal government.  Specific judges are assigned to each division, and the cases filed in that division are divided up amongst the assigned judges.  Many divisions in Texas have so few judges that the State of Texas knows the identity of the specific judge who would be assigned the case if it were to be filed in that division.

In 7 of Texas’s 27 divisions, the State of Texas suing the federal government has a 100% chance of its case being assigned to a specific, named judge. Thus, if Texas files in those divisions, it knows which judge will be assigned the case (reassignments and transfers do happen, but infrequently).  There’s somewhat less certainty in the other divisions, but in most of Texas’s divisions (18 of the 27), new cases are assigned to just one or two judges.  As a consequence, the State of Texas—and only the State of Texas, since no other plaintiff can “reside” simultaneously in more than one division—has a lot of ability to steer cases to its favored judges.

How has Texas used its unique ability to judge-shop?  In the eight suits it has filed against the Biden Administration that we are tracking, Texas chose to file four of them in the Victoria Division of the Southern District of Texas, where it has a 100% chance of its case being assigned to Judge Drew Tipton; and three of them in the Amarillo Division of the Northern District of Texas, where Texas has a 95% chance of drawing Judge Matthew Kacsmaryk.  Both judges were appointed by President Trump and are considered very conservative.
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Why are there so many cases brought by Arizona, Florida, and Texas?

Politics.  Texas, Florida, and Arizona are each led by an ambitious governor and/or attorney general who have sued the Biden Administration over immigration policies as a way to demonstrate their conservative bona fides, particularly to those who remain loyal to former President Trump and his anti-immigrant agenda.

Additionally, Texas and Florida are in more conservative circuits (the Fifth Circuit and the Eleventh Circuit, respectively), which makes it easier for those states to bring and win lawsuits against the Biden Administration. ​​​​​​

How come there are so many similar cases being brought by  different states?

One part strategy, one part politics. 

The strategic aspect is that by filing multiple lawsuits in different courts, red states (collectively) get multiple bites at the apple.  Even if the first district judge to consider their arguments is not convinced, the second or third one might be. An early loss in one district court does not preclude a win in a different district court, because district court decisions are not binding precedent.  Even a loss at the Circuit (appeals) level does not bind any other Circuit (or district courts therein).  So multiple, parallel lawsuits—filed in different district courts by different states—increases the odds of success.   And often at not that much more work: after the first lawsuit is filed, the later-filed ones on the same issue frequently just copy and paste from the first.

Temporary restraining order

akin to a preliminary injunction, a “TRO” is a judge's short-term order forbidding certain actions until a full hearing can be conducted.  Unlike preliminary injunctions, TROs are limited by rule to 14 days (although they can be extended in certain circumstances).

Stay

a temporary pause to a judicial proceeding or a part thereof.  In civil litigation, “stay” is most commonly used in reference to a court order (e.g., “stay of the injunction pending appeal”), a motion (“briefing on the appeal is stayed”), or to a case in its entirety (“the case was stayed”).
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Prosecutorial Discretion

the traditional and customary authority of any law enforcement agency to decide where to focus its resources and whether or how to enforce (or not) the law against individuals. 

The politics part is that the decision to file these lawsuits is usually made by an ambitious state politician (governor or attorney general) who sees the litigation—and the accompanying press releases—as a way to raise their own profiles within conservative and anti-immigrant political circles.  There are thus political incentives for filing even duplicative lawsuits.​​​​​​
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Is the amount of litigation being brought by states against immigrant-inclusive policies unusual? How does this compare to previous administrations?

The number of these lawsuits (and of the number of states participating in them) has increased, but the trend goes back at least a couple of decades. 

States have of course been suing the federal government for a long time, but Texas arguably kickstarted the current trend when it aggressively filed lawsuit after lawsuit against the Obama Administration—nearly fifty in total.  Only two of those concerned immigration, though.  One was a failed attempt to prevent Syrian refugees from being resettled in Texas, but the other had an enormous impact: after judge shopping, Texas was able to block DAPA, which would have expanded upon the successful Deferred Action for Childhood Arrivals (DACA) program. 

 After President Trump was inaugurated, progressive states followed Texas’s playbook and repeatedly sued the Trump Administration over its signature policies.  The State Litigation and Attorney General Activity Database, which keeps a database of multistate litigation against the federal government, reports that there were 132 such cases filed against the Trump Administration (compared to 60 against the Obama Administration).   Since being anti-immigrant was of central concern of the Trump Administration, much of that state-led litigation—18 of the 132 cases—concerned immigration.

Since President Biden has taken office, red states (Texas in particular) have resumed suing the federal government on wide array of subjects, but at a higher rate than before: the database mentioned above (which does not include every case we track) currently says that in his first 15 months in office, states have sued President Biden more than 40 times, with a sizeable chunk of those cases relating to immigration.​​​​​​

When/how can a Supreme Court case be challenged?

It depends on the basis for the opinion. If it's the Constitution, then overturning the opinion would require a constitutional amendment (or convincing the court to overrule itself).  If the basis is a federal statute, it would require changing the statute. Decisions can be based on lots of other things (like the common law, or a regulation, or a rule of procedure, etc.)​​​​​​

What happens to cases that the Supreme Court declines to hear? Is the circuit level decision adopted as pretty much final? Can the Supreme Court be asked to review them in a different term?

Yes, the Circuit decision is final in that case. A party gets only one chance to request that the Supreme Court review the Circuit decision, and can’t request again barring something really extraordinary.

 

 

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