The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Deep in the Heart of Galveston


In Texas, there are several single-judge divisions. Over the past few years, I've written about those courts in places like Amarillo, Victoria, Wichita Falls, and Lubbock. But one single-judge division, which is closest to home, has not attracted nearly as much attention. The Galveston Division of the Southern District of Texas is about 50 miles from downtown Houston. And the lone judge there is Judge Jeff Brown, who previously served on the Texas Supreme Court. Brown's most high-profile case was Feds for Medical Freedom v. Biden

The lead plaintiff, Feds for Medical Freedom, has "more than 6,000 members spread across every state." But the plaintiffs chose to file in the Galveston Division of the Southern District of Texas–not Houston, not Corpus Christi, not Brownsville. And under longstanding precedent, plaintiffs have that discretion to choose their venue, so long as they comply with the rules of procedure, federal statutes, and judicial precedent. Their complaint provided this statement with regard to venue:

Venue is proper under 28 U.S.C. § 1391(e)(1)(B) because the United States, one or more of its agencies, and one or more of its officers in his or her official capacity are Defendants; and a substantial part of the events giving rise to Plaintiffs' claims occurred in this District. Venue is also proper under 28 U.S.C. § 1391(e)(1)(C) because the United States, one or more of its agencies, and one of its officers in his official capacity are Defendants, and Plaintiffs Joshua Roberts, Deborah Lawson, Laura Brunstetter, Julia Badger, Patrick Mendoza York, Patrick Wright, and Jana Spruce reside in this District, and no real property is involved.

A few of the plaintiffs resided in Galveston. The Department of Justice did not contest whether venue was proper in the Galveston division. In January 2022, Judge Brown issued a nationwide injunction against Biden's vaccine mandate for federal employees. In March 2023, the en banc Fifth Circuit affirmed Brown's ruling. (As best as I can tell, the SG has not filed a cert petition yet.)

This case is typical of so-called strategic litigation. It is all too common for lawyers to seek nationwide relief in particular courts. There is nothing unethical about this practice. As far as I know, misconduct complaints have not been filed against lawyers in private practice and in government, who file such suits. Yet, this practice has come under vigorous attack over the past few years. Critics assail these lawyers, and indeed, the judges themselves, for participating in "judge shopping." Congress could, of course, change the rules for venue. Indeed, Majority Leader Schumer would be much better off writing a letter to his colleagues in the Senate, than to the Chief Judge of the Northern District of Texas. It is also possible that a particular district as a whole could adopt certain rules regarding case assignments. I do not think a Chief Judge can make this decision unilaterally

This background brings me to the rules of practice that Judge Brown adopted in February 2023. Rule 16 provides:

Rule 16: Cases With No Factual Nexus to the Galveston Division

Occasionally, plaintiffs file matters in the Galveston Division with no factual nexus to the division. The court will screen for such situations at the initial scheduling conference. In any case with no obvious factual nexus to the Galveston Division, the court will order the plaintiff, within 14 days, to explain the case's connection to the division and how the court should weigh the In re Volkswagen private- and public-interest factors. See 545 F.3d 304, 315–18 (5th Cir. 2008) (en banc). The defendant will have 7 days to respond. The court will then determine whether, for the convenience of the parties and witnesses and in the interest of justice, it should transfer the case to a more appropriate division under 28 U.S.C. § 1404. The court will also entertain parties' motions to transfer such cases under § 1404, whether filed before or after the initial scheduling conference.

Longtime critics of single-judge divisions have heaped praise on Judge Brown for taking proactive steps to reduce so-called judge shopping. I don't think this adoration is warranted. First, under longstanding precedent, Judges can raise venue sua sponte. Venue is not jurisdictional, but judges are allowed to raise this issue on their own. There is nothing improper about a judge screening cases at a scheduling conference for venue issues. And for those who keep track, scheduling conferences occur after motions for preliminary injunctions are resolved. Second, Judge Brown's order cites Fifth Circuit precedent concerning venue and district. To state the obvious, a district court in Texas is bound to follow Fifth Circuit precedent. Third, all federal courts must consider the 1404 factors, whether on its own motion, or a motion to transfer. That's it! I think the text of this order is much ado about nothing.

This order has also attracted some ire from the right. Some conservative have contended that Judge Brown is shying away from strategic litigation, or even worse, signaling that he does not want these cases. On some reflection, I do not think this criticism is warranted here, but a Judge who followed such a path would be in the wrong. Beyond congressional action, or district wide rules, an individual district court judge has little control over what cases he receives. It would be improper for a federal judge in active service to state "I will transfer any case that requests nationwide relief," or "I do not want any case brought under the APA." (Federal judges with senior status can pick and choose which cases they receive.) Can you imagine if a federal judge automatically recused from any case involving a high-profile issue like abortion or gay rights? (Though one elected justice on the Texas Supreme Court recused from a pre-Obergefell same-sex divorce case, without any obvious cause.)  A federal judge can only transfer a case to another division, or another district, if the federal rules and circuit precedent support that result. Stated differently, a federal judge cannot super-add new requirements to keep a case in his particular venue.

If Rule 16 merely restates the existing precedent, why would Judge Brown issue such a policy? I am deeply doubtful he was trying to curry favor with the real law professors of Twitter. I also don't think he was trying to turn away strategic litigation. Nor do I think this rule even accomplishes that goal, since he is only restating existing law. Moreover, under longstanding precedent, the state of Texas is understood to have an interest over every inch of Texas–including the sands of Galveston beach. And at least in Feds for Medical Freedom, Judge Brown thought venue was proper. Was Judge Brown trying to signal that litigants should file elsewhere–basically an in terrorem nudge to stay away? I hope not, because such a rule would be inappropriate. Judges cannot hang "do not enter" signs on the courthouse doors. The tenure protections of Article III are designed to protect judges who must decide cases of public import, even in the face of internal and external pressure. My inclination is there is a mundane explanation for this rule.