New York Attorney General Forum Shops Case Against CFPB to Judge Aiken in Eugene Division of District of Oregon

AG James had a 100% chance of drawing a Democratic appointee, and drew a judge that the Ninth Circuit had to repeatedly reverse.

The New York Attorney General field suit against Russ Vought, asserting that he has effectively shuttered the Consumer Finance Protection Bureau. Did AG James file suit in Albany? Of course not. There are a few Republican appointed judges there. Did she file in the District of Columbia, where she has a 100% chance of success before the en banc D.C. Circuit? No. Injunctive relief is far too important here. Instead, James chose the District of Oregon. And not in Portland. There are two Republican appointees there (one of whom blocked Trump's military deployment).

Instead, James chose the Eugene Division. I've been to Eugene, Oregon to speak at the University of Oregon. As fate would have it, I visited the city the day after the 2016 presidential election. I felt like I was walking through a wake.

In case you were curious, there are three judges assigned to the Eugene division. Judge Mustafa Kasubhai (Biden nominee), Chief Justice Michael McShane (Obama nominee), and Ann Aiken (Clinton nominee).

And which judge got the case? Judge Aiken! If that names sounds familiar, it should. She presided over the long-running Juliana litigation. A group of children argued that they had standing to challenge energy policy because of alleged effects from climate change. Co-blogger Jon Adler has chronicled Judge Aiken's follies over the years. Indeed, Aiken was reversed by the Ninth Circuit several times.

I don't want to ever hear any complaints over forum shopping, ever again. Liberals engage in forum shopping in Eugene. Conservative engage in forum shopping in Lubbock. Get over it. Fittingly, the University of Oregon is about to play Texas Tech in the College Football Playoffs. Wreck 'Em Raiders.

Update: AG James also challenged the new HHS transgender policy in the Eugene Division. Must be a favorite forum. This case drew Judge Kasubhai.

Comments

[JD85]

Or.... and hear me out...all forum shopping is bad and it should be eliminated.

[Drewski]

Blackman is counting on that reaction. It can't really be done. On paper we can propose and try some alternatives but (a) Congress is a broken-down, weak, highly-partisan mess that couldn't successfully order pizza together, and (b) there are a lot of very smart people that want very badly to game whatever system is in place. We could probably mitigate it if we had a little political will, but only for a while until it needs attention again.

We might be able to put a lid on judge-shopping, though, because it only works under very specific conditions and currently benefits only the MAGA wing of the Republicans.

Blackman wants you to think picking Kacsmaryk in Lubbock is the same as ordinary forum-shopping. He posts about it a lot because this is important to him and his club. It lets them get away with things they shouldn't. We should fix that, and separately work on mitigating forum-shopping.

[David Nieporent]

Let's not forget that Blackman expressly defended the Kacsmaryk situation; he said it was a feature, not a bug, that the guy was in a single judge division, so that the GOP could judge shop if it wanted.

[Please, Daivd, Seek Help]

And the reason it's bad is precisely because it's so effective that everyone wants to do it!

[Bored Lawyer]

As I have repeatedly propose here, there should be national courts composed of three judges, appointed at random from across the country, to hear challenges to governmental policies.

[Purple Martin]

Hmmm...

I don't want to ever hear any complaints over forum shopping, ever again.

Why, may I ask? With varying levels of justification, forum shopping occurs all over the country. Egregiously unjustified examples happen, regardless of political leaning, on both sides, all over the country. This case may be one of those examples, but I'm far less interested in Josh's completely predictable judgement than I would be if he had included shortcomings of the relevant "standings" arguments.

I'm also interested a little, but not much (because we already know), why Josh didn't seem to notice the the suit was filed by...

STATE OF NEW YORK; STATE OF OREGON;
STATE OF NEW JERSEY; STATE OF COLORADO;
STATE OF CALIFORNIA; STATE OF ARIZONA;
STATE OF CONNECTICUT; STATE OF DELAWARE;
DISTRICT OF COLUMBIA; STATE OF HAWAI‘I;
STATE OF ILLINOIS; STATE OF MAINE;
STATE OFMARYLAND; COMMONWEALTH OF
MASSACHUSETTS; STATE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF NEVADA;
STATE OF NEW MEXICO; STATE OF NORTH
CAROLINA; STATE OF RHODE ISLAND;
STATE OF VERMONT; and STATE OF WISCONSIN;

Plaintiffs...

Each State's Attorney General is on the signature page.

For accuracy, let me slightly edit Josh's upteenth repetition of his tiresomely repeated whine:

...

I don't want to ever hear any complaints over Republicanforum shopping, ever again.

[neurodoc]

Can't wait to hear Josh's comeback to you

[David Nieporent]

Each State's Attorney General is on the signature page.

That is an unprecedented level of hackery even for Blackman.

[MarkJawz]

Who gives a shit? That's just a list of states with Democrat governors. They still could have filed in any of the others.

[Purple Martin]

It is not, in fact, "...a list of states with Democrat governors." Someone knowledgeable of American government would have no trouble spotting the Republicans hiding in there. And the one which isn't even a State.

I'll leave the task of researching which is which, as an exercise to the remarkably uninformed student.

[roger]

The complaint lists five different attorneys for the State of Oregon and lists the Oregon Department of Justice in the footer of every page. It’s almost like it was filed by the Oregon Department of Justice. I wonder why the Oregon Department of Justice would file suit in Oregon…

[jb]

Also, guess which division of the Oregon District the capital of Oregon is located in?

[MoreCurious]

That's a pretty big "oops," Josh. When can we expect your apology? Or at least an acknowledgement?

[BrotherMovesOn]

STATE OF NEW YORK; STATE OF OREGON;
STATE OF NEW JERSEY; STATE OF COLORADO;
STATE OF CALIFORNIA; STATE OF ARIZONA;
STATE OF CONNECTICUT; STATE OF DELAWARE;
DISTRICT OF COLUMBIA; STATE OF HAWAI‘I;
STATE OF ILLINOIS; STATE OF MAINE;
STATE OFMARYLAND; COMMONWEALTH OF
MASSACHUSETTS; STATE OF MICHIGAN;
STATE OF MINNESOTA; STATE OF NEVADA;
STATE OF NEW MEXICO; STATE OF NORTH
CAROLINA; STATE OF RHODE ISLAND;
STATE OF VERMONT; and STATE OF WISCONSIN;

What a fine list of states! Between the importance of many to the actual founding of our nation, their commitments to being scientific, educational and artistic engines for our country, and incredible natural geographic beauty, any alternative list would be a tough sell. As it occurs, there are 22 entities. That's a football team. As it is bowl season, I think of a metaphorical/imaginary game between them and say the University of Alabama, or Oklahoma State, or Ole Miss, or Idaho State, or LSU or other squads representing their respective states that have contributed, and are, umm,contributing to our national advancement in the 21st century.
Whistle!

[loki13]

"The 'classic definition' of chutzpah has been described as 'that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.'" Motorola Credit Corp. v. Uzan, 561 F. 3d 123, 129 n.5 (2d Cir. 2009).

Blackman is, quite literally, the same person who waxing eloquent about how forum shopping isn't a problem, doesn't need to be fixed, and is totally awesome when GOP state AGs were weaponizing it to bring cases in front of pre-selected judges in the 5th Circuit against the past administration, decrying any attempt to fix it and loudly trumpeting how awesome and amazing it was.

This ... I mean, we all know that he will reason to a preferred partisan outcome, but this is insane. Yes, people complain about forum shopping because they see it as a problem that needs fixing to prevent the worst abuses. But you can't say the worst issues aren't a problem, and then post this screed when you don't like the results. Law should be about rules and process; not the desired outcomes.

But it's even worse that he misrepresents this action in order to draw a false equivalency. First, by omitting (especially in the title!) that this is an action by the State of Oregon. Next, by not noting that it was brought in the district of Oregon's capitol. Third, by seeming to imply that there was something untoward about the assignment- unlike some places, there isn't a single judge that it will go to.

[CommentMonkey]

I think this critique of Blackman's post misses the mark. Blackman is generally skeptical of the various efforts to control or eliminate forum-shopping. I don't read his post here as contradicting that view. Here he's calling out the perceived hypocrisy of those on the left who've railed against forum shopping in the 5th but have no problem with this case being litigated in Eugene, OR. He isn't demanding this case be moved or dismissed.

As for his characterization of the case as a NY lawsuit when in fact the Orgeon AG signed on, this seems like a pretty trifling distinction. Look at the press coverage and the NY AG press release linked in the Politico piece Blackman references. AG James is clearly the lead plaintiff, and most of the coverage so acknowledges. Again, it would be different if Blackman demanded the case be thrown out for lack of jurisdiction, but he doesn't. He's just making a point that evils of forum-shopping tend to be more apparent when the other side does it.

It isn't obvious to me that tacking on the signature of a blue state AG to justify suing in that state mitigates concerns about forum-shopping anyway. Seems to me this trend of all the red state AG's signing on to this transparently political lawsuit and all the blue state AG's signing on to that one ought to be discouraged.

[loki13]

This completely misses two major points that I already discussed about the misleading nature of the article.

First is that this isn't the "NY AG." This is a lot of states, including Oregon. The reason you hear about the New York AG is because ... there is a lot of media there. What, you don't think the Oregon AG is trumpeting it as well?

https://www.doj.state.or.us/media-home/news-media-releases/ag-rayfield-sues-trump-to-defend-critical-consumer-protection-efforts/

According to Oregon's AG, he "led" the coalition. The other states are joining him. He didn't talk about that at all, used a misleading headline ... and you can tell because you wrote that Oregon was just "tacked on." Based on what, exactly?

Next, he says that they "chose" the Eugene Division, and insinuates that they picked a particular judge. Salem (the capitol) is in the Eugene Division- it was the correct choice, and not some weird one conjured up by the Oregon DOJ.

Blackman also has no reason and provides no basis to insinuate that the assignment of this judge was in any way weird, or strange (out of the three in the Division). If it had been the Portland Division instead, there are seven judges, five of whom Blackman would hate on principle, and the only Trump appointee is ... Immergut (the one who ruled against Trump on the deployment of troops to Portland).

I will reiterate- "forum shopping" takes many forms, and some is worse than others because of way different districts are structured, or the way that different districts draw judges. Extreme forum shopping (and extremism in judicial selections) is reducing the trust of the public in the judiciary, and that has long-term consequences.

But to reiterate my main point- if Blackman really wants to make the point that it's not big deal, then he should do it calmly and rationally, instead of trying to appeal to the worst instincts of people that read here. Instead, it's no big deal when "his side" does it*, and it's OMG LOOK WHAT THEY'RE DOING when the other side does it ... it's so terrible, and shows what hypocrites they are.

See the difference?

*I won't bother going into the actual distinctions that matter and were an issue with the Texas / 5th Cir. - because you either already know them, or you don't and it's not worth explaining.

[David Nieporent]

No, you misunderstand both the facts and the argument.

Conservatives have been criticized by non-conservatives for judge & forum shopping. Blackman is whatabouting. But he's doing so dishonestly, by pretending that it's happening here when it isn't. He falsely claimed that Letitia James filed a suit in a strange location, when actually the Oregon AG filed the suit in the appropriate location, and James and many others signed onto that suit. James is not "clearly the lead plaintiff" at all; Blackman just wanted you to think that. (Actually, he wanted you to think she was the only plaintiff, so that if you later learned there were others you'd still think it was a James suit with other states tagging along.) That Letitia James is by far the most prominent state AG right now for political reasons — as well as geographic ones — means she's going to receive the most coverage. But you can see the header above the case caption: it's Oregon's suit.

Literally the only honest thing in Blackman's piece was "I don't want to ever hear any complaints over forum shopping, ever again."
​

Seems to me this trend of all the red state AG's signing on to this transparently political lawsuit and all the blue state AG's signing on to that one ought to be discouraged.

Lots of red or blue state AGs filing collective suits might be good or bad, but has nothing to do with the shopping issue.

[loki13]

Blackman did an update! Is it a correction or an admission of his deeply dishonest post?

"Update: AG James also challenged the new HHS transgender policy in the Eugene Division. Must be a favorite forum. This case drew Judge Kasubhai."

Of course not.

https://www.doj.state.or.us/media-home/news-media-releases/ag-rayfield-leads-lawsuit-challenging-attack-on-gender-affirming-care/

This is brought by the Oregon AG. In fact, the Complaint actually has one allegation that is Oregon specific (paragraph 70) rather than talk about the states collectively. In the other section that breaks out three states, Oregon is one of the three and is detailed more specifically and first. (58-60).

Is he ignorant, or dishonest? I honestly don't know.

[David Nieporent]

As the meme goes, ¿por qué no los dos?

[Purple Martin]

Well, I did once assume that in his VC postings, Prof. Blackman often intentionally presented as disingenuous:

dis·in·gen·u·ous / disənˈjenyo͞oəs / adjective

Not candid or sincere, typically by claiming to know less about a subject than one really does.

The technique is often used to feign ignorance of a well-understood topic, or to claim support of something actually opposed or opposition to something actually supported.

Josh certainly does often seems to be feigning ignorance of a well-understood topic. After several years of observation, however, I withdrew the accusation of intention in favor of a simpler, Occam’s Razor, explanation: Just knowing less about something proves no barrier to Josh’s publication of an opinion about it.

No, over the years (and as demonstrated particularly well in his long Amy Coney Barrett series), Josh has convinced me he really is as entirely unknowledgeable and incurious about things not supporting his preconceptions, as I thought he was only pretending to be.

[santamonica811]

I'm on about Day Ninety of no longer calling Josh a whore. I'm determined to make it through an entire year, as part of my goal of being a kinder and gentler (and less honest) person.

[ReaderY]

If Professor Blackman had glanced at the complaint, he would notice that the suit is by the Oregon attorney general as lead, with other states’ attorneys general, including Letitia James of New York, joining as secondary parties.