I obtained a copy of the minutes approved by the Judicial Conference.
First, why couldn’t this note have been issued at the same time as the press release? This may be one of the most bungled government implementations since HealthCare.gov. The Executive Committee should carefully re-evaluate its procedures in this case.
Secondthe policy is quite broad in scope, well beyond national injunctions, but is preceded by “should.”
District Courts Should apply the district-level assignment to:
A. civil actions seeking to prevent or enforce statewide enforcement of a state law, including rules, regulations, policies or orders of the executive branch or a state agency, through declaratory judgment and/or any form of injunctive relief; AND
B. civil actions seeking to prevent or enforce nationwide enforcement of a federal law, including rules, regulations, policies, or orders of the executive branch or a federal agency, whether by declaratory judgment and/or any form of relief injunctive.
This policy does not apply exclusively to single judge divisions, but applies to all courts.
Third, the policy is decidedly uninclusive: it does nothing to address the problem of “judge shopping” in patent cases, which was the impetus for this policy. Third, the document states that the guidance “applies” to patent cases, but only when some sort of injunctive relief is sought against the government. Do most or many patent cases involve such relief? What about bankruptcy cases? “Case assignment in the bankruptcy context remains under study.”
Fourththe policy is quite clear guide. Use the word “should.”
These policies and the accompanying guidance inform the statutory authority and discretion of district courts in dividing court business under 28 USC § 137. They should not be viewed as undermining a court’s authority or discretion. Instead, they establish various ways that courts can align their case assignment practices with the Judicial Conference’s long-standing policy of random case assignment. Simply put, these policies should serve the purpose of ensuring a “fair, prompt and economical determination of every action and proceeding.” Powered. R. Civ. P.1.
As I explained last night, 28 USC § 137(a) gives this power to district courts. The Committee does not even cite the power of the Judicial Conference under 28 USC § 331, which is good.
Fifth, I would like to go back to the botched launch. Several media outlets said this policy was obligatory and already in force. Courthouse News reported that, based on Judge Sutton’s statements, “[t]The policy will take effect immediately, but it is unclear when courts will begin implementing these procedures or how that process will work.” And Bloomberg Law reported: “Judge Jeffrey Sutton, chair of the Executive Committee of the Judicial Conference, said in a press conference that the policy overrides any local ordinance that currently allows a judge to hear all cases filed in their court.” Bloomberg added: “Sutton did not rule out that the rule would apply to past or ongoing matters.” They are been a fan of Judge Sutton for many years, but this private press conference was not his finest hour. Although the policy has been endorsed by many justices I respect, Sutton’s remarks have been woefully misconstrued by reporters. Part of that blame can be placed on the press, perhaps, but much of it belongs to the messenger.
Sixththe policy proposes a comparative test to determine how to assign a case:
The policy is applicable in cases where the relief sought has implications beyond the parties before the court and the local community, and the importance of having a case heard by a judge with ties to the local community is not a compelling factor.
Did Justice Breyer write this? Are we really going to have untrained legal staff in the clerk’s office deciding what “the implications are beyond the parties before the court and the local community” and whether “links to the local community” are a “persuasive factor”? These are difficult substantive questions that people can reasonably disagree about. Should law clerks or individual judges be burdened with making these decisions in house? grievance stage? The issue will be discussed: Does the complaint now explain why a case should not be reassigned? Would the defendant be able to file a response explaining why the case should be reassigned? Candies Friends participate? Is it possible to appeal the reassignment order? Amused? And, by the way, this policy is triggered if a complaint or amended motion is filed. This policy has now added unspeakable layers upon unspeakable cases seeking Anyone injunctive relief against state governments.
I regret that many of the judges who approved this policy followed groupthink. They read about an issue, they don’t like nationwide injunctions, they think certain Texas judges whose initials are M and K make the judiciary look bad, so they put together what appears to be a seemingly neutral policy that will cause far more harm than expected. they are not. Well. You may think my answer is harsh. Wait until you see what True lawyers think, both on the right and on the left. The burdens of practicing law are substantial. Nobody will like this policy. I would not be surprised if most district courts read these guidelines and included them in the circular docket.
[This post is under development, and has been updated.]