While the Judicial Conference’s policy on venue and judge shopping is dead, debates on this issue are not. Today, the New York Times reported the chaos, which cited at least one Dallas District Court judge who was unhappy with his chief judge’s decision. I suspect there’s some backstory here.
This evening, the Fifth Circuit decided a case on its “emergency” docket. The posture is quite complex. A Northern District of Texas-Fort Worth division judge has transferred a lawsuit brought by the Chamber of Commerce against the CFPB to the District of Columbia. (You see, the conservative judges on the Fifth Circuit are not automatons.) Almost immediately, the House called for an emergency stay, and the Fifth Circuit granted a temporary administrative stay. Now, the Fifth Circuit panel, by a vote of 2-1, has authorized the move. Justice Willett wrote the majority, joined by Justice Oldham; Judge Higginson dissented.
Here is a summary of the opinion:
Because plaintiffs appealed the district court’s effective denial of their motion for preliminary injunction 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 rather narrow. The Chamber appealed before the district court judge transferred the case, thus depriving the district court of jurisdiction to transfer the case. There is an established doctrine that only one court can have jurisdiction at a time.
What interests me much more is how this case impacts broader discussions about venue, judging, and transfers. The case currently exists in a sort of limbo: not quite in Washington, not quite in Texas. I know this limbo very well, as the Defense Distributed case is stuck somewhere between the Garden State and the Lone Star State. See Distributed defense against Bruck (2022). (Our appellant brief was recently filed in the Third Circuit.) There was also a recent case in which SpaceX filed a lawsuit against the NLRB in Texas and the district court moved to California. Because of Judge Elrod’s dissent, the panel (without opinion) denied mandamus. The commission also asked the NLRB to explain its actions in contacting the District Court of California. There may be some quibbles going on. I’m sensing a pattern: One way Texas District Court judges can avoid appellate review from the Fifth Circuit is to send cases to friendlier jurisdictions. I don’t think this is what happened in the House, but it could happen elsewhere as well.
Judge Oldham’s dissent respectfully calls out the District Court judge for improperly transferring the case.
Second, the district court appears to have analyzed the motion to transfer with the goal of discouraging forum and/or judge-shopping. See District Court op. at 5–7. As well-intentioned as this approach may have been, I can find no support in Supreme Court or Fifth Circuit precedents. True, Congress added the “substantial” qualification to § 1391(e)(1)(B). See District Court op. at 5; see also id. at 6 (recommending that plaintiffs bring suits “in jurisdictions where the impact is unique and particularly felt,” despite the fact that such words do not appear in the statute of the relevant federal venue). But this only highlights that Congress did not require “substantiality” in § 1391(e)(1)(A) and (C). It is not up to federal district courts to add additional qualifications beyond statutory law, especially where the Supreme Court has previously refused to impose judicial barriers to forumshopping. [FN2] See, for example, Ferens v. John Deere Co., 494 US 516, 527–29 (1990).
[FN2] 2 The district court noted that “[v]enue is not a continental breakfast; you cannot pick and choose at the whim of the plaintiff where and how a lawsuit is filed.” District Court Op. at 5. But as long as plaintiffs comply with federal law, any complaints about the scope of venue statutes are best addressed to Congress.
Judge Oldham is exactly right. And footnote 2 reinforces why the Judicial Conference should have stayed its course and let Congress handle venue reform. THE New York Times he buries this correct statement of law at the bottom of his article:
If the Northern District of Texas does not adopt random assignment for consequential cases, the Judicial Conference could attempt to issue a binding rule under the Rules Enabling Act. That rule would survive review by the Supreme Court and Congress, and some judges they questioned whether it would replace the statutory authority of 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 highlights once again why a district court should suspend a transfer order for a short period so that opposing parties can challenge it. We commended this procedure in Clarke, 94 F.4th at 507 n.1. And that procedure would have avoided the unfortunate circumstance presented by this motion: We were forced to consider a mandamus petition on a severely truncated timetable and grant relief that might otherwise have been avoided. I have no doubt about the conscientiousness of the learned District Court Judge. The district court’s concerns about forum shopping may be valid. And I certainly don’t think the district court “challenged” anyone or anything. Post, paragraph 3 (Higginson, J., dissenting). But I think pre-existing transfer rules precluded sending this case to Washington, DC. This outcome is dictated by Clarke and the broad authorities behind that decision, not by some “new bill created by [today’s] majority.” Post, paragraph 5 (Higginson, J., dissenting).
If Judge Barrett and others were concerned that circuit courts have granted administrative relief, then Judge Oldham’s reform would be very helpful.
Judge Higginson, who was on the judging panel Distributed defense against Bruck, disagreed here. He specifically cited the Judicial Conference’s judge shopping policy:
Gutting in this way a district judge’s discretion to quickly transfer a case that he has good reason to believe was improperly submitted to him – especially when the appellants have insisted that time is of the essence – is particularly troubling not only because we usurp control of district court records, but also its implications for the judiciary’s ability to prevent forum shopping. See Judicial Conference Committee on Judicial Administration and Case Management, Guidance for Adjudicating Civil Cases in District Courts (March 2024).
And Judge Higginson’s conclusion appears to suggest that the DDC may choose to keep the case.
For the reasons stated above, I believe that the new bill created by the majority is inconsistent with the district court’s discretion over records management and prudent oversight of forum shopping. Ultimately, I am confident that the District Court of the District of Columbia will pass judgment suggestion to ignore a case that brought him the most attention.
The Fifth Circuit’s opinion is merely a “suggestion.” This permissiveness would create comedy, rather than courtesy. More or less the same thing happened in Distributed defense, where the New Jersey District Court refused to remand the case to Texas, as the Fifth Circuit had requested. Another salutary reform would be to create a mechanism whereby district courts could be directed to refer cases in the interest of interstate comity.
There’s a lot at stake here, and we’re seeing some fractures forming on the Fifth Circuit. The Fifth Judicial Conference should be fun. Let’s hope he doesn’t get moved to San Francisco.