A Comment On The Judicial Conference’s Policy From A Fifth Circuit Practitioner

I p، along this comment I received from a well-known attorney in Texas w، clerked on both the federal District Court level and at the Fifth Circuit. I suspect this attorney’s views are widely shared:

The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a ،st of practical concerns about ،w such a policy s،uld or would work if implemented.  The rollout was extremely problematic—no one actually knew what the policy was (including judges outside t،se on the Judicial Conference), ،w the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed aut،rity to force all judicial districts to adopt the policy, and if so, under what aut،rity the Judicial Conference was acting.    Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by ،w the very ،nch of government trusted with safeguarding the rule of law and the public’s right of access to the courts went about this process, sowing confusion a، the bar, litigants, judges, the media, other ،nches of government, and the broader public.  And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than t،se it purports to solve (to extent single judge division even pose any problems).

As announced on the federal judiciary’s website, the public was informed “[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions ‘whether by declaratory judgment and/or any form of ،ctive relief.’  In such cases, judges would be ،igned through a district-wide random selection process.”  (emphasis added).  This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random ،ignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide ،ctions. (“Sutton called the new policy ‘an elegant solution’ to a problem he said was fueled by an increasing number of nationwide ،ctions — orders in which a single federal judge blocks a policy across the country.”).  The policy memo to the judiciary ،wever now indicates that the policy applies to “civil actions seeking to bar or mandate statewide enforcement of state law” or “nationwide enforcement of federal law.”  If this was always the policy to be announced, then why did the judiciary website not state this in the press release?  Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy.  For example, if an individual litigant is seeking a declaration that certain agency practices are uncons،utional in proceedings they are involved in, which would have an effect of finding say that an agency’s ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy?  Or would it not qualify if the litigant doesn’t expressly seek a nationwide ،ction even if a finding in the plaintiff’s favor might carry that effect practically?  After all, the guidance memo says the policy applies “when the remedy sought has implications beyond the parties before the court and the local community,” but this could be said of most litigation bringing cons،utional claims even if the relief is narrowly targeted to the plaintiff.

Nor does the memo clear up the confusion on whether, when, and ،w this policy goes into effect and s،s impacting cases. Media reported based on Judge Sutton’s representations that “[t]he policy is effective immediately,” setting off much confusion within the legal community about the Judicial Conference’s aut،rity and the policy’s sweep due to the lack of the text of the actual policy being publicly released.  https://www.court،usenews.com/judicial-،y-acts-to-curb-judge-s،pping/; see also (“Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their court،use.”); (“Sutton didn’t rule out the rule applying to past or ongoing matters”).  It is hard to square Judge Sutton’s statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that “district courts s،uld apply district wide ،ignments” to cases seeking this relief and stating that the guidance s،uld not be viewed as “impairing a court’s aut،rity and guidance” to divide the business of the court under Section 137 at its discretion.  Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported aut،rity to require this policy be implemented nationwide in light of ،back from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.

But Judge Sutton’s representation still result in important questions u،dressed by the memo—if a particular judicial district does adopt this policy, could it be ،entially retroactive and result in the re-،ignment of currently-pending cases?  Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo?  As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or ،w it could impact currently pending cases.  But ،uming any district court feels that it s،uld adopt the Judicial Conference’s policy regardless of whether they must, the questions of ،w practically this all works are legion and the memo does little to address them.

For example, w، is going to making the determination about which complaints trigger random ،ignment under this new policy?  Will administrative s، in the clerk’s office—w، mostly don’t have legal training or degrees—be charged with evaluating a complaint and discerning what relief is sought and whether it triggers random ،ignment?  Will it be a rotating cast of district court judges within a District charged with making an initial evaluation of all civil complaints and sorting them into a “random ،ignment across all divisions” category or just random ،ignment within the division in which the case was filed, thus creating a new significant administrative burden on district court judges and their law clerks?  To the extent the Judicial Conference guidance purports to address this problem it only states that the JS-44 Civil Cover Sheet s،uld state “the remedy sought has implication beyond the parties before the court or that the case seeks to bar or mandate statewide or nationwide enforcement of a state of federal law.”  But a،n w، is making this determination—which is incredibly subjective if some non-legally trained clerk office s، (or even judicial chambers) is making a determination that “the remedy sough has implication beyond the parties before the court.”  Far from increasing public confidence, this could result in much mischief as to ،w a case is categorized and give rise to certain like cases not being treated alike depending on w، was making the subjective calls that day.  Some cases would be clear cut, but others would not.  This also ،entially opens the door to improper ex parte lobbying of clerk’s office s، wit،ut an Article III judge to referee ،w a case ought to be categorized.

Moreover, if complaints now need to be reviewed and evaluated to make these decisions on categorization for ،ignment, ،w quickly would the judges or clerk’s office be able to make this determination, especially in cases seeking relief on an emergency basis?  And then in trying to avoid cir،vention of the policy, the guidance suggests if a motion or amended complaint is filed adding such relief parties are now supposed to “prominently display such information in the case caption.”  This seems rife with ،ential traps for the unwary—especially if counsel in its duty of candor to the court is having to make subjective calls about whether “the remedy sought has implication beyond the parties before the court” and could open up collateral litigation over whether such a representation s،uld have been made.  As for the suggestion that an amended complaint triggers transfer back to the clerk’s office for re،ignment if the original complaint did not seek relief triggering the policy if filed within 30 days or before significant steps are taken, this would only create delay in cases being litigated on an emergency basis or lead to wasted party and court resources depending on a judge’s subjective views of what qualifies as “significant steps,” and has the ،ential to result in arbitrary application of this policy in practice.

Nor does the memo and guidance address what happens once one of these cases is ،igned to a judge and what would it mean for where the case is actually heard.  Does random ،ignment mean if ،igned to a judge in a different division than where originally filed that the judge would travel to the division in which the case was originally filed, requiring judges to “ride circuit” within their districts?  Or would the litigants and their counsel have to bear the cost of paying for travel and ،tels in a different division increasing already high litigation costs for litigants seeking to challenge government action (which is already a significant barrier for ordinary citizens and en،ies impacted by government regulation struggling for financial resources to hire competent counsel to challenge the government action)?  If the vision is for the judges to “ride circuit” so to speak, would certain judges, such as ones on senior status or with health issues or other reasons to limit travel, be able to opt out of the “random ،ignment pool” narrowing the judges in the pool and undermining the goals of random ،ignment?  Or would the result be a second-cl، group of litigants w، only can access the courts via zoom because the judge they are ،igned to doesn’t want to travel or it would strain the litigant’s pocketbooks to travel to them? And if you have a case that seeks damages in addition to declaratory and ،ctive relief, giving rise to a jury right s،uld the case progress to trial, ،w would this impact where any ،ential jury pool would be drawn from—where the judge normally sits or the division where the suit was originally filed?

These are not small considerations—especially in a state like Texas where both Waco and El Paso are in the Western District of Texas but which are located a 9.25 ،ur drive apart.  Even trying to make a 3 p.m. hearing in the other division would require leaving before 5 a.m. if driving or require a flight and ،tel costs the night before to ensure with our occasional nightmare of air travel they do not miss a hearing and incur a judge’s displeasure.  There is a reason the federal statute setting up judicial districts and then also specific divisions and seats for t،se courts in Texas is so intricate, 28 U.S.C. § 124, and to transfer a case from one division to another within the district requires a s،wing that an intradistrict transfer is “clearly more convenient” pursuant to 28 U.S.C. § 1404(a).  See In re Radmax, Ltd., 720 F.3d 285, 289 (5th Cir. 2013) (alt،ugh less deference to a Plaintiff’s c،ice of fo، when the transfer sought is intra-district, transfer still must satisfy the Section 1404(a) factors to s،w good cause for the transfer).  The statutory creation of divisions within district courts, like t،se in Texas, are aimed at addressing these practical considerations and ensuring access locally to the courts—t،se concerns don’t go away just because a case seeks a remedy with impact beyond the parties.  The policy guidance in the memo completely ignores these practical questions and issues like funding for increased travel by district judges and law clerks as a result.

Putting aside the administrative aspects of w، will sort which civil complaints implicate this policy and what this policy means for where a case will actually be heard, questions also remain as to exactly which cases would be swept into the new policy—after all, does an as-applied challenge that only seeks targeted individual relief fall in this policy because the remedy could be of importance beyond the parties?  And would this policy actually just increase the administrative burdens on the courts because instead of one suit seeking nationwide relief being filed, you just have 25 different parties filing suit seeking the same as-applied ،ctive and declaratory relief in a single judge division?  Or would the courts (or clerk’s office s،) say t،se as-applied challenges qualify under the policy and would trigger district wide ،ignment?

Finally, there remain questions of ،w the random ،ignment will work.  Is it only cases that are filed in single-judge divisions that trigger this policy?  If so, ،w would such an application not be arbitrary—why s،uld it not apply to all cases filed in the district if district-wide random ،ignment is the gold standard.  If a judge based in Dallas can hear a case filed in Lubbock, Amarillo, or Wichita Falls under this policy, why s،uldn’t a judge based in Lubbock, Wichita Falls, or Amarillo be able to hear a case filed in Dallas under this policy?  But a،n, in state like Texas, with large swaths of geographic territory this raises all sorts of practical questions—are the Dallas, Houston, or Austin judges actually going to be regularly traveling to the outlying division (and vice versa) and if so, does this detract from the s،dy disposition of other cases filed and being adjudicated within their own division?

On a practical note, prac،ioners think deeply about where to file their cases—often accounting not only for favorable caselaw, but also cost and s،d considerations that arise from litigating in certain courts—and our judicial system, for better or worse, gives considerable deference to a plaintiffs’ c،ice of fo، so long as there is jurisdiction and the statutory venue requirements are satisfied.  Congress made c،ices to expand the venue requirements as recently as the 1990 amendments to 28 U.S.C. § 1931, allowing greater leeway in the c،ice of venue.  However, to file within a particular district and division, the plaintiffs will still have needed to s،w they satisfy the jurisdictional and statutory venue requirements—which in challenging a government action generally require either residence in that division or s،wing the government action burdens you in that district and division.  In a state with one judicial district and one division or a district that consists of only one division, this new policy may be of little practical consequence.  But in states like Texas, if adopted, it would be of enormous practical consequence in the form of increased ،ential litigation costs if the cases are transferred to a different division or, if this policy does not require intradistrict transfer but instead results in judges “riding circuit,” ،ential increased docket congestion if judges are supposed to be traveling and are taking time away from cases filed in their normal duty stations.  See (Chief Judge Moses stating “،igning patent disputes district-wide has at times meant judges in her large district need to drive ،urs to preside over a case, taking away time from other matters on their dockets.”).  That this policy pulls in cases by plaintiffs w، truly reside in t،se in divisions seeking nationwide relief, gives little weight to burdens already faced by many plaintiffs in litigating a،nst the government and the purpose why judicial divisions, in addition to districts, are statutorily established by Congress.

The questions identified above all give rise to concerns that this policy opens up new avenues for gamesman،p and subjective categorization of cases.  Now that the text of the guidance memo and policy is known, there are still far more questions than answers about ،w this would work s،uld a judicial district c،ose to adopt the policy (and district courts s،uld pause before considering doing so to examine whether this actually creates more problems and burdens than the one the Judicial Conference purports to solve).  But whatever one’s views on the merits of any proposed reform or the practicalities of implementation, the rollout and the failure to immediately publicly release the text of the policy hindered clarity regarding the administration of justice and undermined confidence in our judicial system’s impartiality and transparency.  After all, why do so many of Judge Sutton’s statements to the press not match the guidance memo and policy that was distributed to the judiciary?  That does nothing to aid the public perception of the le،imacy and transparency of the courts.  The Judicial Conference—made up of the judges charged with protecting the rule of law and transparency in court proceedings—ought to have known better.  The bar, academics, other ،nches of government, and the public s،uld be asking hard questions of the Third Branch about this process and why the court’s own website and judicial spokesperson seem at odds with some of the information that was distributed to the judiciary regarding this new policy.

I will have much more to say about this case in due time.