The Volokh Conspiracy
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Fifth Circuit Judges Clash Over Venue and Judge Shopping
Judges Oldham and Higginson disagree about where a case belongs: NDTX or DDC.
While the Judicial Conference's policy on venue and judge shopping is dead, debates about this issue are not. Today, the New York Times reported on the kerfuffle, which quoted at least one District Court judge from Dallas who was not happy with his Chief Judge's letter to Senator Schumer. I suspect there is some backstory here.
This evening, the Fifth Circuit decided a case on its "emergency" docket. The posture is somewhat complex. A judge in the Northern District of Texas-Fort Worth Division transferred a case brought by the Chamber of Commerce against the CFPB to the District for the District of Columbia. (See, the conservative Judges in the Fifth Circuit are not automatons.) Almost immediately, the Chamber sought an emergency stay, and the Fifth Circuit granted a temporary administrative stay. Now, the Fifth Circuit panel, by a 2-1 vote, mandamused the transfer. Judge Willett wrote the majority, joined by Judge Oldham; Judge Higginson dissented.
Here is a summary of the opinion:
Because the plaintiffs appealed the district court's effective denial of their preliminary-injunction motion before the district court granted the motion to transfer the case, we agree that the district court acted without jurisdiction.
The basis of the panel's ruling is somewhat narrow. The Chamber filed a notice of appeal before the district court judge transferred the case, thereby divesting the district court of jurisdiction to transfer the case. There is a well-established doctrine that only one court can have jurisdiction at a time.
What interests me far more is how this case affects broader discussions of venue, judge-shopping, and transfers. At present the case exists in something of a limbo--not quite in D.C., not quite in Texas. I am very familiar with this limbo, as the Defense Distributed case is stuck somewhere between the Garden State and the Lone Star State. See Defense Distributed v. Bruck (2022). (Our appellant brief was recently filed in the Third Circuit.) There was also a recent case in which SpaceX filed suit against the NLRB in Texas, and the District Court transferred the California. Over Judge Elrod's dissent, the panel (without opinion) denied mandamus. The panel has also asked the NLRB to explain its actions in contacting the California District Court. There may be some chicanery going on. I'm sensing a pattern: one way that District Court judges in Texas can avoid the Fifth Circuit's appellate review is to send cases to more friendly jurisdictions. Judge Willet recognized the Fifth Circuit was "Facing an uptick in intercircuit transfer orders." I don't think this is what happened in the Chamber case, but it may be happening elsewhere. Judge Oldham suggested that a "higher burden should be met in advocating a § 1404(a) transfer from a district court in one circuit to a district court in another circuit more than 1,000 miles away." This could be an issue the en banc Fifth Circuit considers, perhaps in the SpaceX case.
Judge Oldham's concurrence respectfully calls out the District Court judge for improperly transferring the case.
Second, the district court appeared to analyze the motion to transfer with an eye towards discouraging forum and / or judge-shopping. See District Court Op. at 5–7. However well-intentioned this approach may have been, I cannot find support for it in Supreme Court or Fifth Circuit precedent. True, Congress added the qualification "substantial" to § 1391(e)(1)(B). Cf. District Court Op. at 5; see also id. at 6 (recommending that plaintiffs bring cases "in jurisdictions where the impact is uniquely and particularly felt," notwithstanding the fact that those words do not appear in the relevant federal venue statute). But that only highlights that Congress did not require "substantiality" in § 1391(e)(1)(A) and (C). It is not for federal district courts to add additional qualifications on top of statutory law, especially where the Supreme Court has previously declined to impose judicial barriers to forumshopping. [FN2] See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 527–29 (1990).
[FN2] 2 The district court noted that "[v]enue is not a continental breakfast; you cannot pick and choose on a Plaintiffs' whim where and how a lawsuit is filed." District Court Op. at 5. But so long as the plaintiffs complied with federal law, any complaint about the scope of venue statutes is better addressed to Congress.
Judge Oldham is exactly right. And footnote 2 reinforces why the Judicial Conference should have stayed in its lane, and let Congress deal with venue reform. The New York Times buries at the bottom of its article this correct statement of law:
If the Northern District of Texas does not adopt random assignment for consequential cases, the Judicial Conference could try to put forth a binding rule under the Rules Enabling Act. Such a rule would have to survive review by the Supreme Court and Congress, and some judges have questioned whether it would supersede the statutory authority of the district courts.
Judge Oldham also proposes what I think would be a salutary reform: any transfer of venue should be stayed by the district court to seek appellate review:
This case again highlights why a district court should stay a transfer order for a short period so that opposing parties may appeal it. We commended that procedure in Clarke, 94 F.4th at 507 n.1. And that procedure would have avoided the very unfortunate circumstance presented by this motion: we've been forced to consider a mandamus application on a highly truncated timeline and to grant relief that could've otherwise been avoided. I have zero doubt about the conscientiousness of the learned district court judge. The district court's forum-shopping concerns might be wellfounded. And I certainly don't think the district court "defied" anyone or anything. Post, at 3 (Higginson, J., dissenting). But I do think the preexisting transfer rules precluded sending this case to Washington, D.C. That result is dictated by Clarke and the ample authorities underlying that decision—not some "new proposition of law created by [today's] majority." Post, at 5 (Higginson, J., dissenting).
If Justice Barrett and others are troubled by circuit courts granted administrative stays, then Judge Oldham's reform would be quite helpful.
Judge Higginson, who was on the panel in Defense Distributed v. Bruck, dissented here. He expressly cited the Judicial Conference's judge shopping policy:
Gutting in this manner a district judge's discretion to expeditiously transfer a case it has good reason to believe is improperly before it— especially when Petitioners have insisted that time is of the essence—is particularly worrisome not just as our usurpation of district courts' docket control, but also in its implications for the judiciary's ability to prevent forum shopping. Cf. Judicial Conference Committee on Court Administration and Case Management, Guidance for Civil Case Assignment in District Courts (Mar. 2024).
And Judge Higginson's conclusion seems to suggest that D.D.C. may choose to keep the case.
For the foregoing reasons, I believe that the new proposition of law created by the majority is incompatible with district court discretion over docket management and prudent policing of forum shopping. Finally, I am confident the District Court for the District of Columbia will give the suggestion that it should disregard a case docketed by it its closest attention.
The Fifth Circuit's opinion is but a mere "suggestion." This permissiveness would create comedy, rather than comity. Much the same happened in Defense Distributed, where the District Court in New Jersey declined to return the case to Texas, as the Fifth Circuit had asked. Another salutary reform would be to create some mechanism whereby district courts can be mandamused to return cases in the interest of interstate comity.
There is much at play here, and we are seeing some of the fractures form on the Fifth Circuit. The Fifth Judicial Conference should be fun. Hopefully it will not be transferred to San Francisco.
