Happy Friday, and welcome to another roundup of the week’s news about the judiciary. Two rules committees for the federal judiciary met this week, and went over a wide array of proposals dealing with everything from litigation funding to attorney admissions. We’re highlighting one major issue that the Committee on Civil Rules discussed, yet again: forum shopping.
As always, please reach out to me at [email protected] with any tips or feedback and follow me on X at @AvalonZoppo.
Forum Shopping Fight
A number of districts have jumped on board with the judiciary’s anti-judge shopping guidance in the past few months, even as a Texas federal court that’s frequently targeted by litigants seeking a conservative judge continues to resist changing its procedures.
The Advisory Committee on Civil Rules, which met on Thursday, gave an update in its agenda on a rule proposal to curb the practice– and which included the districts with one or two-judge divisions that have adopted the guidance. They are:
“We’re really in the early stages, at the six-month mark or so, of kind of seeing how the districts are reacting and responding to that [Judicial Conference] guidance,” said U.S. District Judge Robin Rosenberg of the Southern District of Florida, who chairs the Committee on Civil Rules.
In a July 17 order, Chief Judge Mark Hornak of the Western District of Pennsylvania said any civil cases filed in the district’s two-judge divisions in Erie or Johnstown that seek national relief must be randomly assigned among all the district’s judges, in accordance with the U.S. Judicial Conference’s March recommendation for random assignment in cases seeking national injunctions.
Hornak’s order says the new procedures were adopted “in furtherance of the continued sound management of the Court’s dockets.”
Democratic lawmakers have warned that case assignment procedures in single-judge divisions allow conservative groups challenging the Biden administration’s policies to hand-pick favorable judges to hear their cases.
But the rules committee’s update acknowledged that many districts with single-judge divisions still haven’t changed their procedures.
Of note is the Northern District of Texas, where Donald Trump-appointee Judge Matthew Kacsmaryk sits as the only judge in the district’s Amarillo Division. Conservative groups seeking to challenge President Joe Biden’s policies–-such as the expansion of access to mifepristone–- have frequently filed in the Amarillo Division.
At Thursday’s meeting, Judge A. Marvin Quattlebaum of the U.S. Court of Appeals for the Fourth Circuit said he worries a rule addressing the issue could backfire, and cautioned against moving too quickly.
“Judge shopping sounds very sinister… but lawyers often look for venues and places they think will be favorable,” Quattlebaum said.
“I get the concern about the respect of the judiciary… but I think there’s a little bit of a risk of that backfiring and appearing as if it’s about one type of recent activity, when [judge shopping] has happened across administrations. I know the rule would apply that way, but this issue is a volatile issue and it’s an important issue,” he continued. “I haven’t dug into it, but it causes me to at least want to make sure we’re very careful about what we do.”
The committee is continuing to investigate whether it has authority to implement a rule that dictates how district courts assign cases. Senate Republican leader Mitch McConnell of Kentucky and others pushed back against the Judicial Conference’s policy, arguing that how districts assign cases is up to the districts themselves under the Judiciary Act of 1911 and the judiciary can’t step in.
The committee’s update in the agenda said a federal procedure rule may be able to supersede the statute if it complies with the Rules Enabling Act’s delegation of authority to “prescribe general rules of practice and procedure.”
“One could assert that a rule governing the assignment of cases is one of practice and procedure, as it does not implicate the merits of any claim,” the committee’s agenda update reads. “Such a judgment must be considered in the context of the history of the Congressional delegation of power to divide judicial business to the districts themselves.”
What We’re Reading
>> ‘The Most Peculiar Federal Court in the Country’ Comes to Berkeley Law: “[Judge Raymond] Chen, who practiced early in his career at the firm now known as Knobbe Martens, called the Federal Circuit the ‘most peculiar federal court in the country.'” [Law.com]
>> Focusing an Economic Lens On the Decrease In Federal Civil Jury Trials: “Multiply the reams of documents that get exchanged in discovery in federal cases times the hourly rate of the lawyers who have to mine through all of it, and you have a recipe for high costs, [Judge Carlos Bea] said.” [Law.com]
>> What Judicial Nominations Could Look Like Under a President Harris or Trump: “Some court watchers have suggested that candidates may be vetted more thoroughly for conservative views a second time around.” [Law.com]