A Comment On The Judicial Conference's Policy From A Fifth Circuit Practitioner

I pass along this comment I received from a well-known attorney in Texas who clerked on both the federal District Court level and at the Fifth Circuit. I suspect this attorney's views are widely shared:

The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a host of practical concerns about how such a policy should or would work if implemented.  The rollout was extremely problematic—no one actually knew what the policy was (including judges outside those on the Judicial Conference), how the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed authority to force all judicial districts to adopt the policy, and if so, under what authority the Judicial Conference was acting.    Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by how the very branch of government trusted with safeguarding the rule of law and the public's right of access to the courts went about this process, sowing confusion among the bar, litigants, judges, the media, other branches of government, and the broader public.  And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than those it purports to solve (to extent single judge division even pose any problems).

As announced on the federal judiciary's website, the public was informed "[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions 'whether by declaratory judgment and/or any form of injunctive relief.'  In such cases, judges would be assigned through a district-wide random selection process."  https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment (emphasis added).  This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random assignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide injunctions. https://www.politico.com/news/2024/03/12/federal-courts-move-against-judge-shopping-00146594 ("Sutton called the new policy 'an elegant solution' to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country.").  The policy memo to the judiciary however now indicates that the policy applies to "civil actions seeking to bar or mandate statewide enforcement of state law" or "nationwide enforcement of federal law."  If this was always the policy to be announced, then why did the judiciary website not state this in the press release?  Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy.  For example, if an individual litigant is seeking a declaration that certain agency practices are unconstitutional in proceedings they are involved in, which would have an effect of finding say that an agency's ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy?  Or would it not qualify if the litigant doesn't expressly seek a nationwide injunction even if a finding in the plaintiff's favor might carry that effect practically?  After all, the guidance memo says the policy applies "when the remedy sought has implications beyond the parties before the court and the local community," but this could be said of most litigation bringing constitutional claims even if the relief is narrowly targeted to the plaintiff.

Nor does the memo clear up the confusion on whether, when, and how this policy goes into effect and starts impacting cases. Media reported based on Judge Sutton's representations that "[t]he policy is effective immediately," setting off much confusion within the legal community about the Judicial Conference's authority and the policy's sweep due to the lack of the text of the actual policy being publicly released.  https://www.courthousenews.com/judicial-body-acts-to-curb-judge-shopping/; see also https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2O6UQMC000000?bna_news_filter=us-law-week#jcite ("Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse."); ("Sutton didn't rule out the rule applying to past or ongoing matters").  It is hard to square Judge Sutton's statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that "district courts should apply district wide assignments" to cases seeking this relief and stating that the guidance should not be viewed as "impairing a court's authority and guidance" to divide the business of the court under Section 137 at its discretion.  Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported authority to require this policy be implemented nationwide in light of blowback from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.

But Judge Sutton's representation still result in important questions unaddressed by the memo—if a particular judicial district does adopt this policy, could it be potentially retroactive and result in the re-assignment of currently-pending cases?  Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo?  As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or how it could impact currently pending cases.  But assuming any district court feels that it should adopt the Judicial Conference's policy regardless of whether they must, the questions of how practically this all works are legion and the memo does little to address them.

For example, who is going to making the determination about which complaints trigger random assignment under this new policy?  Will administrative staff in the clerk's office—who mostly don't have legal training or degrees—be charged with evaluating a complaint and discerning what relief is sought and whether it triggers random assignment?  Will it be a rotating cast of district court judges within a District charged with making an initial evaluation of all civil complaints and sorting them into a "random assignment across all divisions" category or just random assignment within the division in which the case was filed, thus creating a new significant administrative burden on district court judges and their law clerks?  To the extent the Judicial Conference guidance purports to address this problem it only states that the JS-44 Civil Cover Sheet should state "the remedy sought has implication beyond the parties before the court or that the case seeks to bar or mandate statewide or nationwide enforcement of a state of federal law."  But again who is making this determination—which is incredibly subjective if some non-legally trained clerk office staff (or even judicial chambers) is making a determination that "the remedy sough has implication beyond the parties before the court."  Far from increasing public confidence, this could result in much mischief as to how a case is categorized and give rise to certain like cases not being treated alike depending on who was making the subjective calls that day.  Some cases would be clear cut, but others would not.  This also potentially opens the door to improper ex parte lobbying of clerk's office staff without an Article III judge to referee how a case ought to be categorized.

Moreover, if complaints now need to be reviewed and evaluated to make these decisions on categorization for assignment, how quickly would the judges or clerk's office be able to make this determination, especially in cases seeking relief on an emergency basis?  And then in trying to avoid circumvention of the policy, the guidance suggests if a motion or amended complaint is filed adding such relief parties are now supposed to "prominently display such information in the case caption."  This seems rife with potential traps for the unwary—especially if counsel in its duty of candor to the court is having to make subjective calls about whether "the remedy sought has implication beyond the parties before the court" and could open up collateral litigation over whether such a representation should have been made.  As for the suggestion that an amended complaint triggers transfer back to the clerk's office for reassignment if the original complaint did not seek relief triggering the policy if filed within 30 days or before significant steps are taken, this would only create delay in cases being litigated on an emergency basis or lead to wasted party and court resources depending on a judge's subjective views of what qualifies as "significant steps," and has the potential to result in arbitrary application of this policy in practice.

Nor does the memo and guidance address what happens once one of these cases is assigned to a judge and what would it mean for where the case is actually heard.  Does random assignment mean if assigned to a judge in a different division than where originally filed that the judge would travel to the division in which the case was originally filed, requiring judges to "ride circuit" within their districts?  Or would the litigants and their counsel have to bear the cost of paying for travel and hotels in a different division increasing already high litigation costs for litigants seeking to challenge government action (which is already a significant barrier for ordinary citizens and entities impacted by government regulation struggling for financial resources to hire competent counsel to challenge the government action)?  If the vision is for the judges to "ride circuit" so to speak, would certain judges, such as ones on senior status or with health issues or other reasons to limit travel, be able to opt out of the "random assignment pool" narrowing the judges in the pool and undermining the goals of random assignment?  Or would the result be a second-class group of litigants who only can access the courts via zoom because the judge they are assigned to doesn't want to travel or it would strain the litigant's pocketbooks to travel to them? And if you have a case that seeks damages in addition to declaratory and injunctive relief, giving rise to a jury right should the case progress to trial, how would this impact where any potential jury pool would be drawn from—where the judge normally sits or the division where the suit was originally filed?

These are not small considerations—especially in a state like Texas where both Waco and El Paso are in the Western District of Texas but which are located a 9.25 hour drive apart.  Even trying to make a 3 p.m. hearing in the other division would require leaving before 5 a.m. if driving or require a flight and hotel costs the night before to ensure with our occasional nightmare of air travel they do not miss a hearing and incur a judge's displeasure.  There is a reason the federal statute setting up judicial districts and then also specific divisions and seats for those courts in Texas is so intricate, 28 U.S.C. § 124, and to transfer a case from one division to another within the district requires a showing that an intradistrict transfer is "clearly more convenient" pursuant to 28 U.S.C. § 1404(a).  See In re Radmax, Ltd., 720 F.3d 285, 289 (5th Cir. 2013) (although less deference to a Plaintiff's choice of forum when the transfer sought is intra-district, transfer still must satisfy the Section 1404(a) factors to show good cause for the transfer).  The statutory creation of divisions within district courts, like those in Texas, are aimed at addressing these practical considerations and ensuring access locally to the courts—those concerns don't go away just because a case seeks a remedy with impact beyond the parties.  The policy guidance in the memo completely ignores these practical questions and issues like funding for increased travel by district judges and law clerks as a result.

Putting aside the administrative aspects of who will sort which civil complaints implicate this policy and what this policy means for where a case will actually be heard, questions also remain as to exactly which cases would be swept into the new policy—after all, does an as-applied challenge that only seeks targeted individual relief fall in this policy because the remedy could be of importance beyond the parties?  And would this policy actually just increase the administrative burdens on the courts because instead of one suit seeking nationwide relief being filed, you just have 25 different parties filing suit seeking the same as-applied injunctive and declaratory relief in a single judge division?  Or would the courts (or clerk's office staff) say those as-applied challenges qualify under the policy and would trigger district wide assignment?

Finally, there remain questions of how the random assignment will work.  Is it only cases that are filed in single-judge divisions that trigger this policy?  If so, how would such an application not be arbitrary—why should it not apply to all cases filed in the district if district-wide random assignment is the gold standard.  If a judge based in Dallas can hear a case filed in Lubbock, Amarillo, or Wichita Falls under this policy, why shouldn't a judge based in Lubbock, Wichita Falls, or Amarillo be able to hear a case filed in Dallas under this policy?  But again, in state like Texas, with large swaths of geographic territory this raises all sorts of practical questions—are the Dallas, Houston, or Austin judges actually going to be regularly traveling to the outlying division (and vice versa) and if so, does this detract from the speedy disposition of other cases filed and being adjudicated within their own division?

On a practical note, practitioners think deeply about where to file their cases—often accounting not only for favorable caselaw, but also cost and speed considerations that arise from litigating in certain courts—and our judicial system, for better or worse, gives considerable deference to a plaintiffs' choice of forum so long as there is jurisdiction and the statutory venue requirements are satisfied.  Congress made choices to expand the venue requirements as recently as the 1990 amendments to 28 U.S.C. § 1931, allowing greater leeway in the choice of venue.  However, to file within a particular district and division, the plaintiffs will still have needed to show they satisfy the jurisdictional and statutory venue requirements—which in challenging a government action generally require either residence in that division or showing the government action burdens you in that district and division.  In a state with one judicial district and one division or a district that consists of only one division, this new policy may be of little practical consequence.  But in states like Texas, if adopted, it would be of enormous practical consequence in the form of increased potential litigation costs if the cases are transferred to a different division or, if this policy does not require intradistrict transfer but instead results in judges "riding circuit," potential increased docket congestion if judges are supposed to be traveling and are taking time away from cases filed in their normal duty stations.  See https://www.reuters.com/legal/government/conservative-us-judges-criticize-new-rule-curbing-judge-shopping-2024-03-13/ (Chief Judge Moses stating "assigning patent disputes district-wide has at times meant judges in her large district need to drive hours to preside over a case, taking away time from other matters on their dockets.").  That this policy pulls in cases by plaintiffs who truly reside in those in divisions seeking nationwide relief, gives little weight to burdens already faced by many plaintiffs in litigating against the government and the purpose why judicial divisions, in addition to districts, are statutorily established by Congress.

The questions identified above all give rise to concerns that this policy opens up new avenues for gamesmanship and subjective categorization of cases.  Now that the text of the guidance memo and policy is known, there are still far more questions than answers about how this would work should a judicial district choose to adopt the policy (and district courts should pause before considering doing so to examine whether this actually creates more problems and burdens than the one the Judicial Conference purports to solve).  But whatever one's views on the merits of any proposed reform or the practicalities of implementation, the rollout and the failure to immediately publicly release the text of the policy hindered clarity regarding the administration of justice and undermined confidence in our judicial system's impartiality and transparency.  After all, why do so many of Judge Sutton's statements to the press not match the guidance memo and policy that was distributed to the judiciary?  That does nothing to aid the public perception of the legitimacy and transparency of the courts.  The Judicial Conference—made up of the judges charged with protecting the rule of law and transparency in court proceedings—ought to have known better.  The bar, academics, other branches of government, and the public should be asking hard questions of the Third Branch about this process and why the court's own website and judicial spokesperson seem at odds with some of the information that was distributed to the judiciary regarding this new policy.

I will have much more to say about this case in due time.