The Volokh Conspiracy
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Coastal Judges Play Keep-Away From The Fifth Circuit
The Trump administration detains individuals in Texas and Louisiana, yet federal courts on the Amtrak Corridor continue to exercise jurisdiction.
Fights over forums are not new. Long before national injunctions flew from Amarillo and San Francisco, the executive branch sought to control where legal challenges could be filed. Perhaps the most prominent such recent example was Guantanamo Bay. The Bush Administration detained enemy combatants on the military base to avoid federal habeas jurisdiction. That plan, however, did not work out. In a series of cases leading to Boumedienne v. Bush (2008), the federal courts in the District of Columbia asserted jurisdiction over Guantanamo Bay.
However, the Bush Administration did secure a venue victory in another case: Rumsfeld v. Padilla (2004). At the time, the Fourth Circuit was considered the most conservative circuit in the country. And in that case, the Bush Administration detained Jose Padilla, a declared "enemy combatant," in a South Carolina military prison. A habeas suit was brought in the Southern District of New York. The Supreme Court held that the suit was not proper in New York. Rather, "for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement."
That past brings us to the present. In two prominent cases, the Trump Administration has taken actions to keep legal challenges within the Fifth Circuit. And in both cases, judges on the East Coast have played keep-away from the Fifth Circuit.
The first case is Trump v. J.G.G. In this case, aliens were held at a facility in Texas. They were then loaded on a plane bound for El Salvador. Around the same time, Judge Boasberg in the District of Columbia ordered this operation to be halted immediately. Yet, there was a threshold issue: was the federal court in the District of Columbia the proper court to even bring this suit? Last time I checked, the federal courts in Texas remain operational--true, they are far less busy now then they were before the inauguration. The obvious response is that the ACLU did not want this case anywhere near the conservative Fifth Circuit. But sometimes a strategic choice can backfire.
The Solicitor General's emergency application in J.G.G. explains that Texas, and not D.C., was the only forum where a habeas claim could have been brought. The SG further argues that a claim under the Administrative Procedure Act (APA) is not proper under the Alien Enemies Act (AEA). (That was too many acronyms in one sentence.)
Habeas claims, however, must be brought only in the district of detention— and that is not where respondents sued. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). Respondents should have brought habeas claims in the Southern District of Texas. Yet they filed in the District of Columbia. Respondents may not leverage the APA to attack the President's exercise of authority under the Alien Enemies Act in a forum of their choosing. See Ludecke, 335 U.S. at 164. The APA is a particularly poor fit given that APA review extends only to "agency action" and not to action "of the President" like the Proclamation. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992); see App., infra, 80a (Walker, J., dissenting).
Somewhat perplexingly, Judge Henderson's controlling opinion declined to resolve the venue/habeas/APA question:
The decisions below disregarded the problem. Indeed, no majority of D.C. Circuit panel rejected the habeas argument. Only Judge Millett concluded that respondents' "claims are not habeas claims and do not sound in habeas." App., infra, 63a. By contrast, Judge Walker, in dissent, opined that respondents' claims sound in habeas and must be brought in Texas. Id. at 78a. But Judge Henderson—the deciding vote—merely "[a]ssum[ed] habeas relief is no longer sought," then "assume[d]" that respondents' APA claims "constitute claims they can assert thereunder." Id. at 10a. That assumes away the decisive issue: the AEA does not let respondents refashion habeas claims into APA claims.
There is an even deeper problem here. The plaintiffs originally brought a habeas claim, but the judge nudged them to shift to an APA claim. Consider the government's recitation of the posture:
Hours after respondents filed their complaint, and without waiting to hear from the government, the district court granted respondents' motion for a TRO and ordered applicants not to "remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court." App., infra, 147a (3/15/25 Second Minute Order). The government moved to stay the order and filed an appeal. Later that day, and without waiting for a brief from the government, the district court held a hearing on respondents' motion for class certification. App., infra, 147a (3/15/25 Third Minute Order). At that hearing, the government's counsel explained that certification of a nationwide class was not appropriate because (among other reasons) respondents' claims sound in habeas and accordingly must be brought in the district (in Texas) in which they are confined. Id. at 165a; see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). In response, the district court inquired whether respondents might want to dismiss their habeas claims. App., infra, 169a. Respondents' counsel explained that "if the Court felt like it needed us to dismiss the habeas [claim] in order to issue a classwide TRO, then we are prepared to do that." Ibid. The court granted respondents' "motion to dismiss their habeas count" without prejudice. Ibid. The court then stated without elaboration that "class certification is warranted under Federal Rule of Civil Procedure 23(a) and 23(b)(2)." Ibid.
Here is the relevant exchange on 169a:
THE COURT: Do you want to dismiss your habeas claim, Mr. Gelernt? I don't know. It's certainly not your primary claim. You may have other reasons for including it.
MR. GELERNT: Your Honor, I think if the Court felt like it needed us to dismiss the habeas in order to issue a class-wide TRO, then we are prepared to do that. We certainly don't feel like we need it. On the other hand, I think the Court could just hold it in abeyance. I mean, I think that it's very clear that if you don't need to bring it in habeas, you don't have to and you can bring it -- in other words, I think Your Honor could not have been clearer in IRLR. There are a number of cases that say that. Otherwise, virtually every case would be brought in habeas.
THE COURT: Again, I think this is a reasonably close question, but I've got to rule on it with essentially 40 minutes' notice given that this was first raised by the government in our hearing. And I'm not blaming the government at all because they haven't had an opportunity to brief it. And so as brief as my research has been at this period of time, I don't think that venue bars certification. I will, for clarity, I will grant the plaintiffs' -- first grant the plaintiffs' motion to dismiss their habeas count. So that count is dismissed without prejudice at this point.
But I do find that class certification is warranted under Federal Rule of Civil Procedure 23(a) and 23(b)(2). So I will certify a class, and the class will be -- let's talk about the definition. The plaintiffs ask for all noncitizens who were, are, or will be subject to the AEA proclamation and its implementation.
The transcript also references venue with regard to certification at 165a of the appendix.
To be clear, the District Court invited the plaintiffs to drop their habeas claim to focus on the APA claim. I'll put my cynical hat on for a moment. Judge Boasberg may have recognized the venue problems with the habeas claims, or saw problems with certifying a class with habeas. The judge urged the Plaintiffs to restyle their case, and the consequence of that order was that the case could remain in the District of Columbia, and that a nationwide class could be certified to bring an APA claim.
I've seen this sort of move before. In the Foreign Emoluments Clause litigation, the plaintiffs only brought an official capacity claim against President Trump. Seth Barrett Tillman and I argued in an amicus brief that an official capacity claim was not proper, as the suit challenged alleged personal actions taken by Trump. Judge Peter Messitte acknowledged our brief during oral argument, and basically asked the parties to also bring an individual capacity claim. Unsurprisingly, the plaintiffs dutifully amended their complaint. Here, a reasonable observer could see the judge as the plaintiffs' co-counsel. The transcript in the Emoluments Clauses case closely resembled Judge Boasberg's colloquy.
Litigants, and not judges, should be litigating the case. When a judge tells parties how to litigate their case, the judge becomes a party, not a neutral magistrate. It's true the case was fast-moving. And if the judge did not move quickly, the aliens may have been transported out of the country. But if the Plaintiffs did not bring their claim properly, the remedy is to dismiss the case and ask the plaintiffs to restyle their case. The Supreme Court has recognized that aliens who were deported in error could be returned. Judges have a duty to maintain their own jurisdiction, but only in a claim that is properly filed. I think Judge Boasberg's attempt to "help" the plaintiffs reformulate their suit, and keep it in his courtroom, was a clear abuse of discretion, if not an abuse of the judicial power.
Moreover, on the merits, I remain unconvinced that judges can certify a class action on the fly during a TRO hearing. I criticized this practice during the early days of the travel ban litigation.
There is a second case where a coastal judge has played keep-away from the Fifth Circuit. Mahmoud Khalil, a resident of New York, was briefly detained at an immigration facility in New Jersey before he was transferred to Louisiana. Counsel for Khalil brought suit in the Southern District of New York. Judge Jesse Furman ordered that Khalil could not be removed, transferred the case to New Jersey, rather than Louisiana. Again, Khalil was never detained in New York, and it is not clear why a New York judge even had jurisdiction to issue any ruling. Worse still, there was no basis to transfer the case to New Jersey, other than the fact that the defendant was briefly detained there.
I'll put my cynical hat on for another moment. Everyone realizes that the Fifth Circuit is a more favorable forum than the Second or Third Circuits. So Judge Furman made a judgment that Khalil's rights would be "better" protected by federal judges in New Jersey than Louisiana. I've read Judge Furman's order, and there is nothing about the Fifth Circuit, but I strongly suspect this fear was lurking in the background.
For those who may not remember, here is how Justice Thomas described Judge Furman's ruling in the census case:
The District Court's lengthy opinion pointed to other facts that, in its view, supported a finding of pretext. 351 F. Supp. 3d, at 567–572, 660–664 (discussing the statements, e-mails, acts, and omissions of numerous people involved in the process). I do not deny that a judge pre-disposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web. Cf. id., at 662 (inferring "from the various ways in which [the Secretary] and his aides acted like people with something to hide that they did have something to hide").
Thomas faulted Judge Furman for not affording the executive branch the "presumption of regularity." And I think Judge Furman likewise did not afford the Fifth Circuit a "presumption of judicial regularity."
On Friday, the judge in New Jersey held a hearing. I've not yet seen a transcript, but the Times offered this account:
On Friday in Newark, Baher Azmy, a lawyer for Mr. Khalil and legal director of the Center for Constitutional Rights, argued in court that transferring the case to Louisiana would set a precedent for other activists to be moved without legal justification, which he called "Kafkaesque."
The government's case against Mr. Khalil was undertaken "in order to retaliate against constitutionally protected speech," Mr. Azmy said.
But a lawyer for the government, August E. Flentje, said it "made no good sense" for the case to be heard in New Jersey when Mr. Khalil had been arrested in New York, asserting that "the case belongs in Louisiana."
Let's be very clear here what is going on: federal judges in Louisiana cannot be trusted to protect Khalil from "Kafkaesque" hearings. Here, Khalil is not being transferred to Guantanamo Bay; he is being transferred to the Gulf of America. But within the Amtrak Corridor, Louisiana may as well be a "black site."
