Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 1 of 27

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

____________________________________
§
UNITED STATES OF AMERICA, §
§
Plaintiff, §
v. §
§ Civil No. 1:21-cv-796
THE STATE OF TEXAS, §
§
Defendant. §

COMPLAINT

The United States of America, by and through its undersigned counsel, brings this civil action

for declaratory and injunctive relief, and alleges as follows:

PRELIMINARY STATEMENT

1. It is settled constitutional law that “a State may not prohibit any woman from making

the ultimate decision to terminate her pregnancy before viability.” Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833, 879 (1992); accord Roe v. Wade, 410 U.S. 113 (1973). But Texas has done just that. It has

enacted a statute banning nearly all abortions in the State after six weeks—months before a pregnancy

is viable. See Senate Bill 8, 87th Leg., Reg. Sess. (Tex. 2021) (S.B. 8) (to be codified at Tex. Health &

Safety Code §§ 171.203(b), 171.204(a)). See also, e.g., Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246,

248 (5th Cir. 2020).

2. Texas enacted S.B. 8 in open defiance of the Constitution. The statute prohibits most

pre-viability abortions, even in cases of rape, sexual abuse, or incest. It also prohibits any effort to

aid—or, indeed, any intent to aid—the doctors who provide pre-viability abortions or the women who

exercise their right to seek one. Because S.B. 8 clearly violates the Constitution, Texas adopted an

unprecedented scheme “to insulate the State from responsibility,” Whole Woman’s Health v. Jackson, No.

21A24, 2021 WL 3910722, at *1 (U.S. Sept. 1, 2021) (Roberts, C.J., dissenting), by making the statute
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harder to challenge in court. Instead of relying on the State’s executive branch to enforce the law, as

is the norm in Texas and elsewhere, the State has deputized ordinary citizens to serve as bounty

hunters who are statutorily authorized to recover at least $10,000 per claim from individuals who

facilitate a woman’s exercise of her constitutional rights. And Texas has mandated that its state judicial

officers enforce this unconstitutional attack by requiring them to dispense remedies that undeniably

burden constitutionally protected rights.

3. It takes little imagination to discern Texas’s goal—to make it too risky for an abortion

clinic to operate in the State, thereby preventing women throughout Texas from exercising their

constitutional rights, while simultaneously thwarting judicial review. Thus far, the law has had its

desired effect. To date, abortion providers have ceased providing services prohibited by S.B. 8, leaving

women in Texas unacceptably and unconstitutionally deprived of abortion services. Yet, despite this

flagrant deprivation of rights, S.B. 8 remains in effect.

4. The United States has the authority and responsibility to ensure that Texas cannot

evade its obligations under the Constitution and deprive individuals of their constitutional rights by

adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial

review. The federal government therefore brings this suit directly against the State of Texas to obtain

a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has

violated.

5. The Government also brings this suit to protect other federal interests that S.B. 8

unconstitutionally impairs. S.B. 8 conflicts with federal law by purporting to prohibit federal agencies

from carrying out their responsibilities under federal law related to abortion services. Because S.B. 8

does not contain an exception for cases of rape or incest, its terms purport to prohibit the federal

government and its employees and agents from performing, funding, reimbursing, or facilitating

abortions in such cases. Moreover, S.B. 8’s unconstitutionally broad terms purport to subject federal

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employees and nongovernmental partners who carry out those responsibilities to civil liability and

penalties.

6. The United States therefore seeks a declaratory judgment that S.B. 8 is invalid under

the Supremacy Clause and the Fourteenth Amendment, is preempted by federal law, and violates the

doctrine of intergovernmental immunity. The United States also seeks an order preliminarily and

permanently enjoining the State of Texas, including its officers, employees, and agents, including

private parties who would bring suit under the law, from implementing or enforcing S.B. 8.

JURISDICTION AND VENUE

7. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1345.

8. This Court has authority to provide the relief requested under the Supremacy Clause,

U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651,

2201, and 2202, and its inherent equitable authority.

9. Venue is proper in this judicial district under 28 U.S.C. § 1391(b) because Defendant

resides within this judicial district and because a substantial part of the acts or omissions giving rise to

this action arose from events occurring within this judicial district.

PARTIES

10. Plaintiff is the United States of America.

11. Defendant, the State of Texas, is a State of the United States. The State of Texas

includes all of its officers, employees, and agents, including private parties who would bring suit under

S.B. 8.

FEDERAL LAW

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I. The Constitutional Right to an Abortion

12. Nearly fifty years ago, the Supreme Court held that the Constitution protects “a

woman’s decision whether or not to terminate her pregnancy.” Roe, 410 U.S. at 153.1 Thirty years

ago, the Court “ reaffirmed ‘the most central principle’” of  Roe— “a woman’s right to terminate her

pregnancy before viability.” June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2135 (2020) (Roberts,

C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Casey confirmed

Roe’s “essential holding” recognizing the “right of a woman to choose to have an abortion before

viability and obtain it without undue interference from the state, whose previability interests are not

strong enough to support an abortion prohibition or the imposition of substantial obstacles to the

woman’s effective right to elect the procedure.” Casey, 505 U.S. at 846. State laws that prohibit

abortion prior to viability or impose an “undue burden” on a woman’s right to obtain an abortion

before viability violate the Due Process Clause of the Fourteenth Amendment. Whole Woman’s Health

v. Hellerstedt, 136 S. Ct. 2292, 2298 (2016) (citation omitted).

II. The Sovereign Interests of the United States

13. Where, as here, a State seeks to strip individuals of their ability to challenge state action

that indisputably violates their federal constitutional rights, the United States has a profound sovereign

interest in ensuring that those constitutional rights remain redeemable in federal court. The United

States may sue to challenge such constitutional violations that “affect the public at large.” In re Debs,

158 U.S. 564, 583-85 (1895) (“Every government, entrusted by the very terms of its being with powers

and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts

for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient

1
The allegations of this complaint encompass any individuals who become pregnant and
seek an abortion, regardless of gender identity.
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answer to its appeal to one of those courts that it has no pecuniary interest in the matter.”); see

Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201-02 (1967).

14. The prerogative of the United States to seek injunctive and declaratory relief “to

restrain violations of constitutional rights . . . has long been recognized.” United States v. City of Jackson,

318 F.2d 1, 11 (5th Cir. 1963). “The Constitution cannot mean to give individuals standing to attack

state action inconsistent with their constitutional rights but to deny to the United States standing when

States jeopardize the constitutional rights of the Nation.” Id. at 15-16; see also Fla. E. Coast Ry. Co. v.

United States, 348 F.2d 682, 685 (5th Cir. 1965) (finding United States possessed standing under In re

Debs), aff’d, 384 U.S. 238 (1966).

15. The United States therefore may sue a State to vindicate the rights of individuals when

a state infringes on rights protected by the Constitution. And such an effort is particularly warranted

where, as here, private citizens are—by design—substantially burdened in vindicating their own rights.

In light of the attempt by Texas to strip its own citizens of the ability to invoke the power of the

federal courts to vindicate their rights, the United States not only has a “quasi-sovereign interest in

the health and well-being . . . of its residents in general” but also a “quasi-sovereign interest in not

being discriminatorily denied its rightful status within the federal system.” Alfred L. Snapp & Son, Inc.

v. Puerto Rico, ex. Rel. Barez, 458 U.S. 592, 601–02 (1982) (the sovereign maintains an “interest in the

health and well-being—both physical and economic—of its residents”).

III. The Supremacy Clause and Preemption

16. The Supremacy Clause of the U.S. Constitution mandates that “[t]his Constitution,

and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme

Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const., art. VI, cl. 2.

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17. A state law is invalid if, inter alia, it “stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941),

or if it directly regulates “the activities of the Federal Government,” Mayo v. United States, 319 U.S. 441,

445 (1943).

IV. Intergovernmental Immunity

18. The doctrine of intergovernmental immunity arises from the Supremacy Clause of the

U.S. Constitution and reflects the principle that “[s]tates have no power . . . to retard, impede, burden,

or in any manner control the operations of the constitutional laws enacted . . . by Congress to carry

into effect the powers vested in the national government.” M’Culloch v. Maryland, 17 U.S. 316, 317

(1819); see also Mayo, 319 U.S. at 445 (“[T]he activities of the Federal Government are free from

regulation by any state.”); Johnson v. Maryland, 254 U.S. 51, 56–57 (1920) (holding that state laws cannot

“control the conduct of” individuals “acting under and in pursuance of the laws of the United States”);

United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2010) (recognizing that a regulation violates

the doctrine of intergovernmental immunity if it “seek[s] to directly regulate the conduct of agents of

the federal government”).

19. States also may not seek to directly regulate the performance of the federal government

by regulating its contractors. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 181 (1988) (“[A] federally

owned facility performing a federal function is shielded from direct state regulation, even though the

federal function is carried out by a private contractor, unless Congress clearly authorizes such

regulation.”); United States v. California, 921 F.3d 865, 882 n.7 (9th Cir. 2019) (“For purposes of

intergovernmental immunity, federal contractors are treated the same as the federal government

itself.”), cert. denied, 141 S. Ct. 124 (2020); Boeing Co. v. Movassaghi, 768 F.3d 832, 840 (9th Cir. 2014)

(holding unconstitutional a state law that “directly interfere[d] with the functions of the federal

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government” by “mandat[ing] the ways in which [a contractor] renders services that the federal

government hired [it] to perform”).

TEXAS SENATE BILL 8

I. Texas Enacts Senate Bill 8

20. S.B. 8 bans abortions performed by a physician licensed by the State of Texas if cardiac

activity has been detected in the embryo or fetus. Specifically, S.B. 8 provides that “a physician may

not knowingly perform or induce an abortion . . . if the physician detect[s] a fetal heartbeat.” Tex.

Health & Safety Code § 171.204(a). S.B. 8 defines “fetal heartbeat” as “cardiac activity or the steady

and repetitive rhythmic contraction of the fetal heart within the gestation sac.” Id. § 171.201(1).

21. An ultrasound can typically detect cardiac motion beginning at approximately six

weeks of pregnancy, as measured from the first day of a patient’s last menstrual period.2 But an

embryo is not viable at six weeks, and many women do not even know they are pregnant at six weeks.

22. A fetus generally is considered “viable” when “there is a reasonable likelihood of the

fetus’ sustained survival outside the womb, with or without artificial support,” Colautti v. Franklin, 439

U.S. 379, 388 (1979), which is not until about 24 weeks, see, e.g., Isaacson v. Horne, 716 F.3d 1213, 1225

(9th Cir. 2013).

23. S.B. 8 contains no exceptions for pregnancies that result from rape, sexual abuse, or

incest, or for pregnancies involving a fetal defect incompatible with life after birth. The law provides

an exception only for an undefined “medical emergency . . . that prevents compliance” with the law.

Id. § 171.205(a).

24. The prohibitions in S.B. 8 apply to anyone who performs or induces a prohibited

abortion, anyone who “knowingly” “aids or abets” the performance or inducement of a prohibited

2
Throughout this complaint, the duration of pregnancy is measured from the first day of a
person’s last menstrual period.
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abortion, and even anyone who “intends” to perform or aid a prohibited abortion. Id. § 171.208(a)(1)–

(3). Under the statute, aiding and abetting includes “paying or reimbursing the costs of an abortion

through insurance or otherwise.” Id. § 171.208(a)(2).

25. S.B. 8 limits the defenses available to defendants and subjects them to a fee-shifting

regime skewed in favor of claimants. In particular, S.B. 8 includes an “affirmative defense” that is

available to a limited class of defendants if they can demonstrate that an award of relief would impose

an undue burden on a particular woman or group of women seeking abortion. That limited defense

is inconsistent with an “unbroken line” of Supreme Court cases, Jackson Women’s Health Org. v. Dobbs,

945 F.3d 265, 269 (5th Cir. 2019), cert. granted in part, No. 19-1392, 2021 WL 1951792 (U.S. May 17,

2021), that prevent states from prohibiting abortion prior to viability without regard to the undue-

burden test. And even if the undue-burden test were the appropriate framework, S.B. 8’s affirmative

defense fundamentally distorts the test, by, inter alia, limiting the scope of evidence on which a

defendant may rely, S.B. 8 § 171.209(c), (d), and attempting to create new rules of construction and

severability solely for state abortion laws and regulations. S.B. 8 §§ 171.206, 171.212.

26. Additionally, defendants in S.B. 8 enforcement actions are prohibited from raising

other defenses enumerated under S.B. 8, including that they believed the law was unconstitutional;

that they relied on a court decision, later overruled, that was in place at the time of the acts underlying

the suit; or that the patient consented to the abortion. Id. § 171.208(e)(2), (3). S.B. 8 also states that

defendants may not rely on non-mutual issue or claim preclusion or rely as a defense on any other

“state or federal court decision that is not binding on the court in which the action” was

brought. Id. § 171.208(e)(4), (5).

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II. S.B. 8 Deputizes Private Parties to Act as State Actors in a Public Enforcement
Scheme and Uses the Judicial System to Deprive Women of Their Constitutional
Rights

27. In a transparent effort to evade constitutional scrutiny, Texas has outsourced the

authority to enforce S.B. 8 to ordinary citizens. S.B. 8 prohibits state and local governmental entities

and their employees from enforcing the statute. In their place, S.B. 8 empowers any person to file suit

against anyone who performs a prohibited abortion, aids or abets such an abortion, or “intends” to

do either of those things. § 171.208(a). A successful claimant can obtain an injunction that prevents

a defendant from engaging in these activities, and is entitled to at least $10,000 (S.B. 8 does not set a

maximum) in “statutory damages” for each abortion the defendant has performed, aided, or abetted,

as well as costs and attorney’s fees.

28. The statute assigns enforcement authority to private individuals through civil litigation

in state court as a means of evading lawsuits challenging S.B. 8’s constitutionality. Cf. Whole Woman’s

Health, 2021 WL 3910722, at *1 (Roberts, C.J., dissenting) (“The desired consequence appears to be

to insulate the State from responsibility for implementing and enforcing the regulatory regime.”).

Indeed, S.B. 8 was specifically designed to evade ordinary constitutional review. Specifically, the law

bars its own enforcement by public agencies but creates a private cause of action that requires state

courts to grant injunctive relief and statutory damages for constitutionally protected activity.

§§ 171.207, 171.208(b).

29. This intent has been unmistakably revealed in public statements by the law’s architects

and champions. For example, the legislative director of Texas Right to Life stated that one of the

“main motivations” for S.B. 8’s design is to stymie judicial review. See Emma Green, What Texas

Abortion Foes Want Next, The Atlantic (Sept. 2, 2021), https://www.theatlantic.com/

politics/archive/2021/09/texas-abortion-ban-supreme-court/619953/ (asserting that S.B. 8 was

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crafted out of “frustrat[ion]” with courts that “block[] pro-life laws because they think they violate the

Constitution or pose undue burdens”) (last visited Sept. 9, 2021).

30. Moreover, one of the attorneys principally involved in advising the State on S.B. 8

recently offered a similar observation about laws bearing S.B. 8’s private enforcement characteristic:

“It is practically impossible to bring a pre-enforcement challenge to statutes that establish private

rights of action, because the litigants who will enforce the statute are hard to identify until they actually

bring suit.” Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 1001 n.270 (2018),

https://www.virginialawreview.org/wp-content/uploads/2020/12/Mitchell_Online.pdf (last visited

Sept. 9, 2021).

31. And Senator Bryan Hughes, one of the principal architects of S.B. 8 in the Texas

Legislature, removed all doubt about this purpose when he informed reporters that S.B. 8’s structure

was intended to avoid the fate of other “heartbeat” bills that have been struck down as

unconstitutional. See Jacob Gershman, Behind Texas Abortion Law, an Attorney’s Unusual Enforcement Idea,

The Wall Street Journal (Sept. 4, 2021, 9:38 A.M.), https://www.wsj.com/articles/behind-texas-

abortion-law-an-attorneys-unusual-enforcement-idea-11630762683 (last visited Sept. 9, 2021). Sen.

Hughes was quoted succinctly stating the point: “We were going to find a way to pass a heartbeat bill

that was going to be upheld.” Id. Sen. Hughes elsewhere deemed the statute a “very elegant use of

the judicial system.” Jenna Greene, Column: Crafty lawyering on Texas abortion bill withstood SCOTUS

challenge, Reuters (Sept. 5, 2021, 1:52 P.M.), https://reuters.com/legal/government/crafty-lawyering-

texas-abortion-bill-withstood-scotus-challenge-greene-2021-09-05/(last visited Sept. 9, 2021).

32. While prior state efforts to unduly burden access to abortion services relied primarily

upon executive enforcement of state law, “[i]t is doubtless true that a State may act through different

agencies,” including “its legislative, its executive, or its judicial authorities; and the prohibitions of the

amendment extend to all actions of the State denying equal protection of the laws, whether it be action

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by one of these agencies or by another.” Virginia v. Rives, 100 U.S. 313, 318 (1879). Awarding the

monetary relief that S.B. 8 authorizes—to plaintiffs who need not demonstrate any injury or other

connection to the underlying abortion procedure—constitutes state activity designed to violate the

Fourteenth Amendment rights of women in Texas. “That the action of state courts and of judicial

officers in their official capacities is to be regarded as action of the State within the meaning of the

Fourteenth Amendment, is a proposition which has long been established by decisions of th[e]

[Supreme] Court.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948). Thus, while Texas has gone to

unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally

private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role.

“State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to

exertions of state power in all forms.” Id. at 20.

33. Under the state-action doctrine, private actors also may be found to function as agents

or arms of the state itself and thus are bound by the Constitution. See, e.g., Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (“state action may be found if . . . seemingly

private behavior ‘may be fairly treated as that of the State itself’”); Smith v. Allwright, 321 U.S. 649, 663

(1944) (private actor was acting as “agency of the state”).

34. The Supreme Court has deemed individuals to be state actors where they exercise

“powers traditionally exclusively reserved to the State.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.

Ct. 1921, 1928-29 (2019). S.B. 8 vests individuals with law-enforcement authority—a power

traditionally reserved exclusively to a sovereign—in a manner that appears to be “unprecedented,”

Whole Woman’s Health v. Jackson, 2021 WL 3910722, at *2 (Roberts, C.J., dissenting). Among other

things, S.B. 8 does so by providing individuals with unsupervised authority to police violations of the

law, and by enabling them to obtain civil penalties against anyone in the state without any showing of

personal injury.

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35. These individuals are also state actors to the extent they are significantly involved in

conduct that would be unconstitutional if engaged in by the State itself or Texas has sanctioned their

conduct. See, e.g., Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (finding state action where law

“authorize[d] . . . racial discrimination in the housing market”); Smith, 321 U.S. at 663-64 (state’s

establishment of primary system made the private party that set up an all-white primary “an agency of

the state”); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (similar). S.B. 8 implicates this doctrine by

expressly authorizing—indeed, empowering—individuals to engage in conduct that violates the

constitutional rights of women throughout Texas, in a manner in which the State itself would not be

able to engage.

III. S.B. 8 Affects Interstate Commerce

36. By stripping women of their constitutional rights to certain abortion services in Texas

as well as outlawing many of the commercial services that provide abortion services and aid women

seeking these services, S.B. 8 forces women who wish to obtain these services to travel out of Texas

to other states in order to exercise their constitutional rights and it hinders businesses and non-profits

engaged in this commercial activity.

37. Indeed, the law has already had this effect, as “clinics in Oklahoma, Louisiana, New

Mexico, Colorado, and Kansas are being inundated with a surge of pregnant people.” Melissa Jeltsen,

Texas Is Already Creating Abortion Refugees, N.Y. Mag. (Sept. 3, 2021) (last visited Sept. 9, 2021)

https://nymag.com/intelligencer/2021/09/texas-is-already-creating-abortion-refugees.html. One

clinic in Oklahoma reported that, after S.B. 8 went into effect, the numbers of calls it received from

Texans increased from approximately three to five calls per day to between fifty and fifty-five. See

Tahera Rahman, Oklahoma Clinic Already Seeing A Surge In Texas Patients As Abortion Law Takes Effect,

WKRN (Sept. 3, 2021) (last visited Sept. 9, 2021) https://www.wkrn.com/news/oklahoma-clinic-

already-seeing-a-surge-in-texas-patients-as-abortion-law-takes-effect/. The same article makes clear

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that the proponents of S.B. 8 are “aware of women crossing state lines.” Id. Before S.B. 8 took effect,

most Texas women had access to a clinic within 24 miles round trip from their home; now, they will

have to travel 496 miles round trip on average to obtain an out-of-state abortion. See Elisabeth

Buchwald, Texas Abortion Law: Women Will have to Travel 496 Miles On Average Round Trip to Get an

Abortion Out-Of-State, MarketWatch (Sept. 5, 2021), https://www.marketwatch.com/story/texas-

abortion-law-women-will-have-to-travel-496-miles-on-average-round-trip-to-get-an-abortion-out-of-

state-11630609618.

38. Where the United States is obligated to provide the constitutional abortion services

that S.B. 8 outlaws, S.B. 8 purports to require the United States to refrain from providing those services

or to relocate women and possibly service providers out of Texas.

39. Similarly, S.B. 8 purports to require the United States to terminate existing monetary

contracts and agreements that involve the insurance of or reimbursement of the abortion services S.B.

8 bans.

40. S.B. 8 further prohibits (and thus discourages) certain interstate commercial

transactions involving Texas. For example, S.B. 8 appears to apply to monetary transfers into the

State of Texas if those funds may, in any manner, facilitate an abortion. Thus, S.B. 8 may apply to

insurance companies throughout the United States that cover abortion services provided in violation

of the statute, as well as banks facilitating transfers of funds to reimburse women receiving restricted

abortions. And S.B. 8 may also apply to medical device transactions involving out-of-state sellers,

including, for example, the sale of medical equipment that could be used to perform abortions

outlawed under S.B. 8.

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S.B. 8 IRREPARABLY INJURES THE UNITED STATES

I. S.B. 8 Injures the United States by Depriving Women in Texas of their Constitutional
Rights While Seeking To Prevent Them from Vindicating Those Rights in Federal
Court

41. On September 1, 2021, S.B. 8 went into effect, prohibiting nearly all abortions after

six weeks of pregnancy. The law prohibits at least 85% of abortions that were previously lawful in the

State.

42. S.B. 8 unlawfully prohibits women from exercising the constitutional right to a pre-

viability abortion—including for women in agencies’ care and custody. S.B. 8 violates the

constitutional right to a pre-viability abortion by prohibiting health care providers from performing

such abortions after six weeks. To the extent that S.B. 8 could be viewed as only regulating pre-

viability abortions, such that the undue burden standard would apply, the law also substantially

burdens that right by imposing liability on individuals who aid or abet the provision of a prohibited

abortion, thereby imposing substantial obstacles to a woman’s right to elect the procedure.

43. Under settled precedent, a ban on nearly all abortions after six weeks cannot survive

constitutional review. Jackson Women’s Health Org. v. Dobbs, 951 F.3d 246, 248 (5th Cir. 2020) (striking

six-week ban because “cardiac activity can be detected well before the fetus is viable [and] [t]hat dooms

the law”). S.B. 8 attempts to circumvent this rule by imposing a distorted version of the “undue

burden” test, requiring state courts to weigh the undue burden in every case as part of an “affirmative

defense” in enforcement actions. Tex. Health & Safety Code § 171.209(c), (d). S.B. 8 requires persons

who are sued to prove that the imposition of an injunction and monetary penalties against them will

impose a substantial obstacle on patient access to care, and to do so without relying on the effect of

“an award of relief against other defendants or other potential defendants,” id. § 171.209(d)(2), even

though the practical effect on abortion access across the state is a relevant consideration in evaluating

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undue burden claims. Accordingly, S.B. 8’s “undue burden” defense does not remedy the law’s

unconstitutional abortion ban.

44. S.B. 8 harms the United States by seeking to foreclose judicial review of a state law

that flagrantly infringes the constitutional rights of the public at large and seeks to block the injured

members of the public from challenging that law in court. The United States may sue to vindicate its

interest in preventing Texas from effecting such a constitutional violation. The President also has the

duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, a duty that is carried

out in part by the Attorney General of the United States. See, e.g., Ponzi v. Fessenden, 258 U.S. 254, 262

(1922).

II. S.B. 8 Unconstitutionally Restricts the Operations of the Federal Government and
Conflicts with Federal Law

46. By prohibiting nearly all abortions in Texas after six weeks of pregnancy, without

exceptions for rape, sexual abuse, or incest, S.B. 8 unconstitutionally conflicts with the statutory and

constitutional responsibilities of the federal government. Specifically, S.B. 8 exposes federal personnel

and grantees to liability for carrying out their federal obligations to provide access to abortion-related

services to persons in the care and custody of federal agencies and interferes with federal contracts

and grants with third-party providers who are obligated under their agreements to provide abortion-

related services but refuse to do so to avoid liability under S.B. 8. S.B. 8 also increases the costs to

federal agencies of carrying out their obligations under federal law to the extent that civil penalties and

awards to claimants under S.B. 8 are allowable. In addition, it will increase reimbursable costs under

federal contracts with third-party providers. Finally, it will increase costs to the extent that agencies

must incur increased transportation and other costs to provide individuals in their care with abortion

services outside the State of Texas that are required under federal law but prohibited by S.B. 8. Such

impacts likely will be felt by numerous federal agencies and their personnel, including the Department

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of Labor, the Office of Refugee Resettlement, the Bureau of Prisons, the Centers for Medicare and

Medicaid Services, the Office of Personnel Management, and the Department of Defense.

1. Department Of Labor: Job Corps

47. S.B. 8 will likely interfere with the operations of and increase the costs of the

Department of Labor’s Job Corps Program, a program funded by Congress and administered by DOL

that assists eligible young people ages 16 through 24 with completing their high school education,

preparing for meaningful careers, and obtaining gainful employment. See 29 U.S.C. § 3191(1). This

assistance is provided through Job Corps Centers.

48. Job Corps Centers are primarily operated by private contractors that have contractual

relationships with DOL, though some are operated by the U.S Department of Agriculture Forest

Service. See 29 U.S.C. § 3197(a), (d). There are four Job Corps Centers located in the state of Texas,

all operated by private contractors. These are the David Carrasco Job Corps center, operated by the

Odle Management Group; the Gary Job Corps center, operated by Adams and Associates; the Laredo

Job Corps Center, operated by Strategix Management; and the North Texas Job Corps center,

operated by Serrato Corporation (collectively, the “Texas Job Corps Centers” and the “Texas Job

Corps Contractors”). S.B. 8 will interfere with these contractual relationships to the extent DOL’s

contracts require the Texas Job Corps Contractors and their personnel to provide abortion-related

services prohibited by S.B. 8.

49. Job Corps provides program participants with room and board for up to three years,

basic health care, a living allowance, certain transportation benefits, and career transition assistance.

50. Job Corps regulations specifically require the Texas Job Corps Contractors to provide

“medical services, through provision or coordination of a wellness program which includes access to

basic medical, dental and mental health services, as described in the Policy and Requirements

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Handbook, for all students from the date of enrollment until separation from the Job Corps program.”

20 C.F.R. § 686.530(d).

51. All Job Corps center contracts incorporate by reference the Job Corps Policy and

Requirements Handbook, which “was developed to provide all mandatory program operation and

reporting requirements for contractors operating Job Corps centers and providing enrollment and

placement services.” U.S. Dep’t of Labor Office of Job Corps, Policy and Requirements Handbook (June

15, 2021) (hereinafter “PRH”), available at https://prh.jobcorps.gov/Pages/Home.aspx (last visited

Sept. 9, 2021). Therefore, the Texas Job Corps Contractors are contractually required to comply with

the requirements of the PRH.

52. The PRH provides detailed requirements with respect to mandatory medical services,

including those that relate to reproductive health and planning. Specifically, the PRH requires

contractors to ensure that enrollees have access to pregnancy-related services, including information

and services related to abortion. See PRH § 2.3(R7)(a)-(d). S.B. 8 thus interferes with DOL’s

contractual relations by purporting to prohibit the provision of such contracted services and to impose

liability on the contractors and their personnel providing those services. S.B. 8 thereby directs the

conduct of such providers and constitutes a direct regulation of the federal government and its

contractors.

53. The Texas Job Corps Centers also must identify “available community health/social

resources and services” and make arrangements for transportation so that the students in the program

may access those resources and obtain such services; this includes, among other family-planning and

reproductive-health services, transportation to allow an enrollee to obtain an abortion permitted by

federal law but prohibited by S.B. 8. See PRH § 2.3(R7)(c)(1), (3). S.B. 8 potentially exposes to liability

those personnel who identify such resources and provide such transportation to an enrollee who wants

or obtains an abortion prohibited by S.B. 8.

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54. To the extent S.B. 8 directs the conduct of federal contractors and their employees,

the law is an unlawful direct regulation of the federal government and its contractors, and it unlawfully

punishes federal contractors for carrying out the duties assigned to them by the federal government.

55. To the extent that any of the Texas Job Corps Contractors is held liable for statutory

damages under S.B. 8, DOL may have to reimburse them for such penalties, thereby increasing the

costs of the Job Corps program. Federal contractors are entitled to reimbursement of costs necessary

to contract performance that are “reasonable,” “allocable,” and “allowable.” See 48 C.F.R. § 31.201-

2(a). The costs of fines and penalties resulting from the failure of the contractor to comply with S.B.

8 are likely allowable and thus recoverable from DOL where the fines and penalties are “incurred as

a result of compliance with specific terms and conditions of the contract.” 48 C.F.R. § 31.205-15(a).

56. Since DOL’s contracts with the Texas Job Corps Contractors require the provision of

abortion-related counseling and transportation services, the damages imposed under S.B. 8 on

contractors and their staff acting within the scope of their employment are allowable and allocable

contract costs and must be reimbursed by DOL, subject to procedural and other requirements for

payment under the contracts.3 Thus, in addition to having its programmatic priorities frustrated, DOL

anticipates bearing the costs of the fines, costs, and attorney’s fees that S.B. 8 authorizes claimants to

recover in an action under S.B. 8.

57. Additionally, if Texas Job Corps Contractors, in an effort to avoid liability under S.B.

8 or to ensure that students can exercise their constitutionally protected right to abortion, attempt to

3
Under well-established principles of federal contracts law, contractors operating under cost
reimbursement contracts (the Carrasco Job Corps Center, the Gary Job Corps Center) will be entitled
to reimbursement of the reasonable additional costs the contractors will incur as a result of complying
with the contractual terms set forth in the PRH. In cases where the operators work under fixed price
contracts (the Laredo Job Corps Center, the North Texas Job Corps Center), they can obtain equitable
(upward) adjustments to the contract price, citing an unforeseen change in circumstances beyond their
control and not the result of their negligence or fault, and provided notification and other
requirements for such adjustments are followed, which would include costs attributable to S.B. 8.
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meet their contractual obligations by offering transportation outside of Texas to students who elect

to terminate their pregnancies after a fetal heartbeat is detected, these new and additional costs that

are reasonably necessary for contract performance may ultimately be passed through to DOL and

payable by DOL under its contracts.

2. Office of Refugee Resettlement (ORR)

58. S.B. 8 likely will interfere with the operations of and increase the costs of the Office

of Refugee Resettlement’s transport of unaccompanied children in their care who request abortion-

related services constitutionally protected by federal law but prohibited by S.B. 8. See 6 U.S.C. § 279(a),

(b). Unaccompanied children (UC) are defined by statute as individuals without lawful immigration

status under the age of 18 without an available parent or legal guardian in the United States available

to provide care and physical custody; they are in the legal custody of the United States. See 6 U.S.C.

§ 279(b)(1), (g)(2); see also 8 U.S.C. § 1232(b)(1) (“[T]he care and custody of all unaccompanied alien

children, including responsibility for their detention, where appropriate, shall be the responsibility of

the Secretary of Health and Human Services.”).

59. Consistent with its obligations to provide care for the UC in its custody in Texas, ORR

provides access to abortion services when requested and permitted by law, including in cases of rape

or incest, following judicial bypass procedures or parental consent and subject to appropriations

restrictions on paying for certain abortions under the Hyde Amendment. S.B. 8 erects a manifestly

unconstitutional restriction on access to pre-viability abortion and, therefore, unlawfully interferes

with ORR’s operations by obligating it to transport UC outside the state to obtain those abortion-

related services guaranteed by the Constitution. Indeed, courts have already found that minors in

ORR custody cannot be obstructed in exercising their constitutional right to access abortion and

abortion-related services. See J.D. v. Azar, 925 F.3d 1291 (D.C. Cir. 2019).

3. Bureau of Prisons (BOP)

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60. Likewise, S.B. 8 will likely interfere with BOP’s obligations to provide access to

inmates in its care in Texas who elect to have an abortion that the Constitution guarantees them. See,

e.g., Victoria W. v. Larpenter, 369 F.3d 475, 483 (5th Cir. 2004). BOP houses female inmates at three

institutions in Texas: Federal Prison Camp Bryan, Federal Medical Center Carswell, and Federal

Detention Center Houston. The Federal Medical Center at Carswell, Texas, is the primary medical

center for all females in BOP custody across the country.

61. When a pregnant inmate in BOP custody elects to have such an abortion, BOP is

required to facilitate that choice. Specifically, BOP regulations require a prison warden to “provide

each pregnant inmate with medical, religious, and social counseling to aid her in making the decision

whether to carry the pregnancy to full term or to have an elective abortion.” 28 C.F.R. § 551.23(b).

If the inmate thereafter signs a statement indicating that she elects to have an abortion, the prison’s

Clinical Director “shall arrange for an abortion to take place.” Id. § 551.23(c) (emphasis added).

62. BOP also bears certain costs when it facilitates an inmate’s decision to have an

abortion. For example, BOP “assumes all costs” associated with the abortion procedure “when the

life of the mother would be endangered if the fetus is carried to term, or in the case of rape or incest.”

See BOP, Program Statement, Female Offender Manual May 12, 2021, at 17

https://www.bop.gov/policy/progstat/5200.07b.pdf (last visited Sept. 9, 2021). And “[i]n all cases[,]

. . . whether the Bureau pays for the abortion or not, the Bureau may expend funds to escort the

inmate to a facility outside the institution to receive” an abortion procedure. Id.

63. By its terms, S.B. 8 purports to prohibit and create liability for carrying out BOP’s

regulatory obligation to facilitate or fund abortions for incarcerated women in Texas. See S.B. 8 §

171.208(a)(2) (establishing civil liability for “knowingly engag[ing] in conduct that aids or abets the

performance or inducement of an abortion . . . . if the abortion is performed or induced in violation

of’ the statute”).

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64. S.B. 8 further interferes with BOP operations because it imposes civil liability on those

who “pay[] for or reimburse[e] the costs of an abortion[.]” S.B. 8 § 171.208(a)(2). Because S.B. 8

includes no carve out for abortions in cases of rape or incest, it purports to impose civil liability on

BOP officials who are required to “assume all costs” for such abortions under federal law. See BOP,

Program Statement, Female Offender Manual, May 12, 2021 at 17, (last visited Sept. 9, 2021). S.B. 8

therefore directly burdens and frustrates BOP’s functions in cases of rape or incest for inmates located

within Texas.

65. S.B. 8 further imposes costs on BOP to the extent that the agency to meet its

requirement to “arrange for [such] abortion[s] to take place,” must now transport and escort the

inmate to a facility outside of Texas in order to arrange that abortion. To the extent that S.B. 8 directs

the conduct of BOP personnel, it constitutes an unlawful direct regulation of the federal government.

4. Centers for Medicare and Medicaid Services (CMS)

66. States that participate in the Medicaid program must cover various medically necessary

procedures that fall within certain service categories, such as physicians’ services and inpatient and

outpatient hospital services. 42 U.S.C. § 1396a(a)(10)(A). Abortion is furnished as a service under one

of these mandatory Medicaid service categories.

67. In accord with that requirement, States may not categorically prohibit the coverage of

medically necessary abortion procedures for which federal funds are permitted to be expended,

including medically necessary abortions of pregnancies arising from rape or incest. See Hope Medical

Grp. for Women v. Edwards, 63 F.3d 418, 428 (5th Cir. 1995) (holding Louisiana statute that “categorically

prohibits funding for abortions in cases of rape or incest without regard to whether the procedures

might be medically necessary” violated Title XIX of the Social Security Act).

68. Although States are permitted to specify the amount, duration, and scope of each

covered service, they may not “arbitrarily deny or reduce the amount, duration, or scope of a required

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service . . . solely because of the diagnosis, type of illness, or condition” and each service must be

covered so as to “reasonably achieve its purpose.” 42 C.F.R. §§ 440.230(a), (b), (c).

69. S.B. 8 conflicts with federal law by purporting to prohibit the administration of and

payment for all abortions in Texas arising from rape or incest after a fetal heartbeat is detected. The

statute arbitrarily denies Medicaid beneficiaries coverage of a procedure for which Medicaid coverage

is mandatory, and the limits imposed by the statute restrict coverage under the mandatory physicians’

services and inpatient and outpatient hospital services benefits to the extent that the state’s coverage

of these services is not sufficient to reasonably achieve the service’s purpose.

5. Office of Personnel Management (OPM)

70. S.B. 8 will likely interfere with the operations of the U.S. Office of Personnel

Management.

71. OPM is responsible for negotiating and approving the health benefits plans made

available to federal employees, annuitants, and certain other statutorily eligible persons. Each year,

OPM negotiates with qualifying carriers to establish a slate of health benefits plan options from which

federal employees and annuitants may select. See 5 U.S.C § 8902. These negotiations encompass both

the covered services each plan will offer and the cost of each plan. Once OPM and a private carrier

reach an agreement on the terms of a health benefits plan, they enter into a contract that must be

executed by each party.

72. Although under federal law, “health plan[s] under the Federal employees health

benefits program” generally may not “provide[] any benefits or coverage for abortions” except “where

the life of the mother would be endangered if the fetus were carried to term, or the pregnancy is the

result of an act of rape or incest” (hereinafter, “permitted circumstances”), OPM has entered into

contracts with qualifying carriers that cover abortion procedures in permitted circumstances.

Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, §§ 613-14, 134 Stat. 1182. S.B. 8 is

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 Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 23 of 27

inconsistent with those agreements and the procedures they cover to the extent S.B. 8 prohibits

abortions-relates services authorized by federal law.

73. Further, S.B. 8 imposes liability for aiding and abetting the performance of an abortion

disallowed under S.B. 8, or even forming an intent to engage in this type of conduct. Thus, a party

could endeavor to pursue a civil action, under S.B. 8, with respect to a health plan that “pa[id]” for an

abortion that is prohibited under S.B. 8 (e.g., an abortion of a pregnancy caused by rape or incest). To

the extent this exposure to liability causes federal contractors to breach their agreements with the

federal government to avoid such liability, S.B. 8 unlawfully directs their conduct—thereby directly

regulating the federal government and its contractors.

6. Department of Defense (DOD)

74. S.B. 8 purports to interfere with and frustrate the Department of Defense’s ability to

provide abortions procedures permitted by federal law to eligible recipients.

75. Federal law permits the provision of abortion procedures at DOD facilities in Texas

“where the life of the mother would be endangered if the fetus were carried to term or in a case in

which the pregnancy is the result of an act of rape or incest.” 10 U.S.C. § 1093(a). DOD provides

these services directly at military medical treatment facilities (MTFs).

76. Separately, DOD’s TRICARE health care program also covers abortion procedures

provided by private doctors in cases of rape or incest. See TRICARE, Covered Services – Abortions,

https://tricare.mil/CoveredServices/IsItCovered/Abortion; see also TRICARE Policy Manual

6010.60-M, ch. 4 § 4.1.1 (Rev. C-1, March 10, 2017) (“TRICARE Policy Manual”),

https://manuals.health.mil/pages/DisplayManualHtmlFile/2021-04-20/AsOf/tp15/C4S18_3.html

(explaining cost of abortions may be cost-shared where “the pregnancy is the result of an act of rape

or incest”)

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77. “TRICARE also covers medical and/or mental health services related to the covered

abortion.” Id. The TRICARE Policy Manual provides that “[a]ll medically and psychologically

necessary services and supplies related to a covered abortion are covered. This may include ultrasound

performed prior to the abortion, pathology services, pregnancy tests, office visits, and any applicable

requirements mandated by state and/or local laws. It also may include otherwise covered follow-up

care, such as psychotherapy.” TRICARE Policy Manual 6010.60-M, ch. 4 § 4.3. “Drugs such as

Mifeprex and misoprostol and all associated services and supplies may [also] be cost-shared when the

pregnancy is the result of an act of rape or incest.” Id. § 4.4.

III. The Harms S.B. 8 Inflicts Are Imminent and Traceable to the State

78. The United States has an “actual and well-founded fear that” the arms of the state that

Texas has enlisted will enforce the law directly against it and its agencies, as well as against the public

at large, whom the State has endeavored to keep from challenging the statute. Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). There is a self-evident risk that at least one of the many

state actors capable of enforcing the law would sue in the case of a violation, and that the state’s

judicial apparatus would adjudicate that claim.

79. In fact, some individuals and organizations have already threatened to enforce the law.

And individuals throughout Texas have already been chilled from exercising their constitutional rights

or from providing abortion services based on their reasonable fear of enforcement.

CLAIMS FOR RELIEF

Count One: Supremacy Clause—Fourteenth Amendment

80. Plaintiff hereby incorporates paragraphs 1 through 79 as if fully set forth herein

81. The Supremacy Clause provides that “[t]his Constitution, and the Laws of the United

States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land . . . any

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 Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 25 of 27

Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art.

VI, cl. 2.

82. S.B. 8 violates the Fourteenth Amendment of the U.S. Constitution, as elucidated by

the Supreme Court in Roe and Casey, by depriving women of the ability to obtain a pre-viability

abortion in most cases. S.B. 8 therefore is invalid under the Fourteenth Amendment and the

Supremacy Clause.

83. The Take Care Clause mandates that the President of the United States “shall take

Care that the Laws be faithfully executed.” U.S. Const., art. II, § 3. With respect to legal proceedings,

the Attorney General carries out that duty. See Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (The

Attorney General is “the hand of the president in taking care that the laws of the United States in

protection of the interests of the United States in legal proceedings … be faithfully executed.”).

84. Texas has deliberately impeded the ability of women and providers to raise a challenge

in federal court for a violation of their constitutionally protected rights. In so doing, Texas has

foreclosed the ability of these individuals to seek relief in their own name. The United States therefore

brings this suit to vindicate its interest in ensuring that Texas respects its obligations under the

Constitution.

Count Two: Preemption

85. Plaintiff hereby incorporates paragraphs 1 through 79 as if fully set forth herein.

86. S.B. 8 violates the Supremacy Clause and is preempted because it is contrary to the

Fourteenth Amendment to the U.S. Constitution.

87. Moreover, S.B. 8 is preempted by federal law—including the statutes and regulations

outlined above—to the extent it prohibits certain pre-viability abortions that federal agencies are

charged with facilitating, funding, or reimbursing.

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 Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 26 of 27

88. S.B. 8 conflicts and otherwise impedes the accomplishment and execution of the full

purposes and objectives of federal law.

89. S.B. 8 therefore violates the Supremacy Clause because it is preempted under federal

law.

Count Three: Violation of Intergovernmental Immunity

90. Plaintiff hereby incorporates paragraphs 1 through 79 as if fully set forth herein.

91. S.B. 8 directly regulates the activities of the federal government and its contractors,

grantees, and nongovernmental partners. S.B. 8 therefore violates the federal government’s

intergovernmental immunity and is invalid in such applications.

PRAYER FOR RELIEF

WHEREFORE, the United States respectfully requests the following relief:

a. A declaratory judgment stating that S.B. 8 is invalid, null, and void;

b. A preliminary and permanent injunction against the State of Texas—including all of

its officers, employees, and agents, including private parties who would bring suit under S.B. 8—

prohibiting any and all enforcement of S.B. 8;

c. Any and all other relief necessary to fully effectuate the injunction against S.B. 8’s

enforcement;

d. That this Court award the United States its costs in this action; and

e. That this Court award any other relief that it deems just and proper.

Dated: September 9, 2021 Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

BRIAN D. NETTER
Deputy Assistant Attorney General

MICHAEL H. BAER

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Case 1:21-cv-00796 Document 1 Filed 09/09/21 Page 27 of 27

Counsel to the Acting Assistant Attorney

General, Civil Division

ALEXANDER K. HAAS
Director, Federal Programs Branch

JACQUELINE COLEMAN SNEAD

Assistant Branch Director

DANIEL SCHWEI
Special Counsel

/s/ Lisa Newman

Lisa Newman (TX Bar No. 24107878)
Kuntal Cholera
Christopher D. Dodge
Cody T. Knapp
James R. Powers
Joshua M. Kolsky
Olivia Hussey Scott
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
Tel: (202) 514-5578
[email protected]

Counsel for Plaintiff

27
JS 44 (Rev. 04/21) Case 1:21-cv-00796 Document
CIVIL COVER 1-1 SHEET
Filed 09/09/21 Page 1 of 3
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
United States of America The State of Texas
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant Travis
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

See attachment

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. §§ 1651, 2201, and 2202; U.S. Const. art. VI, cl. 2; U.S. Const., amend. XIV
VI. CAUSE OF ACTION Brief description of cause:
Supremacy clause; Preemption; Intergovernmental immunity;
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE Hon. Robert Pitman DOCKET NUMBER 1:21-cv-00616-RP
DATE SIGNATURE OF ATTORNEY OF RECORD
09/09/2021 /s/ Lisa Newman
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 04/21) Case 1:21-cv-00796 Document 1-1 Filed 09/09/21 Page 2 of 3
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statute.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
 Case 1:21-cv-00796 Document 1-1 Filed 09/09/21 Page 3 of 3

Attorneys for Plaintiff United States of America:

BRIAN M. BOYNTON
Acting Assistant Attorney General

BRIAN D. NETTER
Deputy Assistant Attorney General

MICHAEL H. BAER
Counsel to the Acting Assistant Attorney
General, Civil Division

ALEXANDER K. HAAS
Director, Federal Programs Branch

JACQUELINE COLEMAN SNEAD

Assistant Branch Director

DANIEL SCHWEI
Special Counsel

/s/ Lisa Newman

Lisa Newman (TX Bar No. 24107878)
Kuntal Cholera
Christopher D. Dodge
Cody T. Knapp
James R. Powers
Olivia Hussey Scott

Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, D.C. 20005
Tel: (202) 514-5578
[email protected]