Forum Shoppers Beware: New “Judge Shopping” Policy Announced

At Sidebar column from the Summer 2024 issue of The Federal Lawyer

The March 2024 Judicial Conference announced a new policy (the “Policy”) to promote random case assignment and combat a forum shopping derivative, “judge shopping.”[1] For federal court practitioners who may experience the Policy firsthand, this Sidebar provides some background, a practical breakdown, and related recommendations.

First as background, judge shopping occurs when a plaintiff seeks to bring a case before a specific judge, rather than just a particular court as in conventional forum shopping. Plaintiffs most often pursue judges they believe are sympathetic to a social or political cause underlying their suit. The most effective and notable judge shopping “involves strategic filing in courts with few available judges.”[2] Within certain federal districts, plaintiffs may file in a geographic division with “only one or two active judges, so a plaintiff who sues in those divisions has a high likelihood of being able to proceed before her judge of choice.” [3]

Sometimes judge shopping for varying political inclinations creates constitutional law appearing “unprincipled, even schizoid.”[4] Put more simply, determining constitutionality may at times depend on the judge being asked. The resulting dissonance is most often exhibited via conflicting national injunctions issued by separate federal courts.[5] Yet forum shopping generally has at least some basis in legal principle, recognizing the historical basis for a “general rule of deference to the plaintiff’s chosen forum.”[6] By contrast, judge shopping has no such basis and contradicts the goal that judges should avoid “even the appearance of partiality.”[7] At a minimum, judge shopping is problematic in a federal judicial system that promises impartiality across courts.

While the Judicial Conference can’t eliminate all partiality from the bench, it has attempted to limit plaintiffs’ ability to exploit it. First, the Policy clearly targets cases that may result in nationwide injunctions. It applies to “all civil actions that seek to bar or mandate state or federal actions, whether by declaratory judgement and/or any form of injunction.”[8] Second, the Policy targets geographic division cherry-picking. It mandates that in the civil cases described above, “judges would be assigned through a district-wide random selection process.”[9] Thus, a plaintiff seeking to enjoin a federal policy may face any district judge in a federal district, rather than a handful in a particular geographic division.

The Policy seems especially aimed at single-judge divisions like Amarillo, Texas, where the single-judge “courthouse has become a favored venue for conservative legal activists and Republican state attorneys general.” [10] Under the Policy, plaintiffs could not guarantee that their case would go before the Amarillo district court judge if they filed an applicable civil case in Amarillo. Instead, it would be randomly assigned to one of the sixteen federal judges in the Northern District of Texas. Thus, the chance of drawing a judge in a single-judge division of the district is reduced from a near certainty to 6.25 percent.[11] In addition, plaintiffs in the Northern District of Texas may risk ending up in Dallas, which changes the calculus involved with forum shopping in that judicial district.

But as appellate courts often remind their readers, trial courts have “vast discretion,” including whether to adopt the Policy. Soon after the Policy was announced, Republican senators criticized it as unfairly partisan and sent letters to chief district court judges that emphasized local discretion regarding case assignment.[12] In response, District Judge Gregory Van Tatenhove, chair of the Judicial Conference committee that developed the Policy, acknowledged in a nationwide memo that it “should not be viewed as impairing a court’s authority or discretion.”[13]

So if the Policy isn’t mandatory, what’s the point? While the corresponding press release cites Chief Justice Robert’s concerns about judicial assignment, it does not mention that the American Bar Association also firmly recommended that judges should be randomly assigned cases or that the Democratic senators sent a letter to the rule-making committee urging them to combat judge shopping.[14] Clearly the Judicial Conference faced significant pressure to create the Policy and likely knew doing so would create backlash. Thus, the Policy tries to walk a fine line: discourage judge shopping without overstepping local authority.

But attempting to walk this line has created significant uncertainty. For example, the clerk of the court for the Northern District of Texas expressed understandable concern regarding how to determine to which civil cases the Policy would apply.[15] What level of analysis is needed to determine if a case qualifies under the Policy, before even receiving judicial assignment? There is also uncertainty whether districts will adopt the Policy, with the Southern District of Texas only announcing that the Policy “is under advisement by the court.”[16] Having reviewed major district courts’ local rules and press releases, it is not clear that any district court has yet affirmatively adopted the Policy. Moreoer, even if the Judicial Conference puts forth the Policy as a binding rule under the Rules Enabling Act, and it is successfully reviewed by the Supreme Court and Congress, “some judges have questioned whether it would supersede the statutory authority of the district courts.”[17]

So, what are federal practitioners to do given such ambiguity?

First and most simply, stay appraised of any updates to local rules. Most district courts will announce changes in local rules well before they are enacted, even inviting public comment.[18] Practitioners who feel strongly regarding the utility or futility of the Policy should make their opinion known to their respective court if given the opportunity.

Second, plaintiffs’ counsel should assess whether the Policy will impact their venue filing strategy in a particular federal district. Even though the Policy is carefully targeted, the demographics within geographic divisions of some federal districts can vary widely.

Lastly, if you have a strong opinion regarding the Policy, consider contacting or volunteering to assist the Federal Bar Association’s (FBA) Government Relations Committee. While there are certainly partisan disputes associated with the Policy, the FBA can assist in providing a nonpartisan analysis to lawmakers who may eventually consider the Policy’s application through legislation.

In summary, the Policy appears to target select civil cases in unique federal districts, but it may only amount to optional guidance created to abate political pressure. However, chief district judges and affected litigants will ultimately determine how the Policy plays out.

 

William J. Baker is on the Editorial Board of The Federal Lawyer and is currently an Articles Editor. 

 

[1] Jud. Conf. of the U.S., Conference Acts to Promote Random Case Assignment (Mar. 12, 2024), https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment.

[2] Cong. Res. Serv., Legal Sidebar: Where a Suit Can Proceed: Court Selection and Forum Shopping (Version 3) (updated Mar. 21, 2024), https://crsreports.congress.gov/product/pdf/LSB/LSB10856.

[3] Id.

[4] Mark Moller, The Checks and Balances of Forum Shopping, 1 Stan. J. of Complex Litig. 171, 172 (2012), https://law.stanford.edu/wp-content/uploads/2018/05/moller.pdf.

[5] See Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L.R. 2 418, 462 (2017), https://harvardlawreview.org/print/vol-131/multiple-chancellors-reforming-the-national-injunction/.

[6] Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 50 (1st Cir. 2009).

[7] See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 888 (2009).

[8] Supra Note 1.

[9] Id.

[10] Nate Raymond, Texas Judge in Abortion Pill Lawsuit Often Rules for Conservatives, Reuters (Apr. 10, 2023), https://www.reuters.com/world/us/texas-judge-abortion-pill-lawsuit-often-rules-conservatives-2023-04-08/.

[11] Judge Matthew Kacsmaryk is the only district judge assigned to Amarillo’s geographic division of the Northern District of Texas. However, the district’s chief judge has discretion to transfer cases as necessary. Thus, Judge Kacsmaryk’s assignment to a federal civil case filed there is a “near” certainty, rather than absolute.

[12] Nate Raymond, US Judiciary Says Courts Have Discretion to Adopt ‘Judge Shopping’ Policy, Reuters (Mar. 15, 2024), https://www.reuters.com/legal/us-judiciary-says-courts-have-discretion-adopt-judge-shopping-policy-2024-03-15/.

[13] Id.

[14] Julianne Hill, ‘Judge Shopping’ in Federal Courts Should End, House Urges, Am. Bar Ass’n J. (Aug. 8, 2023), https://www.abajournal.com/web/article/resolution-521; Paige Anderholm, Senate Democrats Send Letter to Federal Judge in Latest Effort to Curb Judge Shopping, Democracy Docket (July 11, 2023), https://www.democracydocket.com/news-alerts/senate-democrats-send-letter-to-federal-judge-in-latest-effort-to-curb-judge-shopping/.

[15] Mattahias Schwartz, An Effort to End ‘Judge-Shopping’ Turns Into a ‘Political Firestorm’, N.Y. Times (Apr. 5, 2024), https://www.nytimes.com/2024/04/05/us/judge-shopping-federal-courts-politics.html.

[16] Id.

[17] Id.

[18] See W.D. Wash. L.R. and General Orders, https://www.wawd.uscourts.gov/local-rules-and-orders  (last visited May 27, 2024) (“The Court invites you to review and comment on proposed amendments to the Local Civil Rules.”).