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Federal Courts Aim to Curb Judge Shopping With New Policy (3)

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The federal judiciary’s administrative arm said it’s approved a new policy aimed at curbing litigants who seek to file lawsuits before specific judges.

The issue of “judge shopping” has repeatedly come up in Texas in recent years, where Republican attorneys general and conservative litigants have filed challenges to Biden administration actions in divisions where one judge is automatically assigned all cases, with an eye toward getting a favorable decision in their favor.

In a release on Tuesday, the judiciary said that civil actions that seek to bar or implement state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief,” would instead be randomly assigned to judges throughout that district.

Judge Jeffrey Sutton, chair of the Judicial Conference’s executive committee, 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 courthouse.

Sutton said that he thinks the policy is more related to the rise of national injunctions, which have been scrutinized as district judges have blocked nationwide administration actions by Presidents Barack Obama, Donald Trump and now Joe Biden.

“It makes sense that some advocates are going to do the best by their clients and you can understand how some of those pressures work, depending on who’s running the administration,” Sutton said.

It’s unclear exactly how the policy will be implemented. Sutton didn’t rule out the rule applying to past or ongoing matters, but said it may be difficult to impose it retroactively, if a judge is several months into presiding over a case.

Favorite Judges

US District Judge Matthew Kacsmaryk, who hears all civil matters filed at his Amarillo, Texas, courthouse, has gotten particular attention for presiding over conservative cases there including his ruling against the Food and Drug Administration’s (FDA) authorization of the abortion pill mifepristone. That pill remains available as the Supreme Court considers the case.

US District Judge Alan Albright of the Western District of Texas also came under scrutiny after he encouraged patent cases to be filed in his court. The district’s chief judge in 2022 changed the local rules to randomly distribute patent cases filed at the Waco courthouse where Albright sits, after they were earlier automatically assigned to him.

“It’s a significant development and a step in the right direction,” said Jeremy Fogel, who served as a federal judge for the Northern District of California and also directed the Federal Judicial Center, the US judiciary’s education and research arm.

But even with the new, policy judge shopping could still happen in cases that don’t impact state and federal law like patent and bankruptcy cases, he said.

Judge Terry Doughty, chief judge of the US District Court for the Western District of Louisiana, who was sought after by Republican attorneys general challenging Biden policies via multistate litigation, called random case assignments for certain cases a “good idea.”

Judge shopping “has been a problem for both sides of the aisle,” he said. “When President Trump was president everything was being filed in California and Hawaii and now with President Biden president, they’re being filed in Texas and Louisiana.”

At one point before he became chief judge of the Western District in December 2022, Doughty got 100% of the cases filed in Monroe where he’s based. Under the court’s current case assignment order, he now gets 70% of the civil cases and 90% of the criminal cases filed in the rural farming parish.

“I have no problem with something fairly allocating the cases,” he said, adding that the policy is a good way for the judiciary to avoid looking political.

“Judge shopping’s not illegal, it just looks bad,” Doughty said.

Strategic Blow

The full written policy hasn’t yet been released by the federal judiciary. Having not seen it, “it’s difficult to know exactly what the new rule is / how it will work,” Stephen Vladeck, a professor at the University of Texas at Austin School of Law, said in an email.

“That said, it seems like any effort to make it harder for litigants to hand-pick the specific federal judge to hear challenges that can be filed anywhere in a state or anywhere in the country is likely going to be a positive development,” said Vladeck, who studies forum shopping.

Bruce Green, a professor at Fordham Law School who writes about legal ethics, said that he’s unsure of how a litigant could shape a challenge to a federal statute without triggering the random assignment rules.

But even without automatic assignment, plaintiffs can still choose districts featuring judges who might be more inclined to rule in their favor. And many of the challenges to the Biden administration have been filed within the US Court of Appeals for the Fifth Circuit’s jurisdiction, meaning the conservative-controlled federal appeals court will still be able to hear those cases.

Even in cases governed by this particular policy, people will still choose the venue by the particular circuit they’re in and the composition of a particular court as long as they can meet the jurisdictional requirements, Fogel said.

For now, Green said the new policy takes away “one tiny little advantage” for litigants.

“There will be plenty of strategic decisions to make beyond this,” he said.

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