The Judicial Conference's Terrible, Horrible, No Good, Very Bad Week: A Fiasco In Three Acts

On Tuesday, the Judicial Conference of the United States issued a press release announcing a policy which required district-wide random selection process for all civil actions that seek to bar or mandate state or federal actions - but not the policy itself. https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment?. What happened next makes for interesting reading.

In a press conference after the action which gave rise to the policy, Judge Jeffrey Sutton, chair of the Judicial Conference’s executive committee, said at a press briefing that the rule would go into effect immediately, that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse, and that the Judicial Conference would be providing courts with "guidance" on the implementation of the policy. Reporters who asked for a copy of the policy were told that the policy would be released "in a few months", and that the press release contained all that we really needed to know - both of which would be shown be be untrue before the week was out.

By Wednesday the blowback against the as-yet unseen policy was already severe. Multiple Fifth Circuit judges were issuing statements castigating the rule, senators were sending letters to judges back home telling them to follow their existing case assignment practice, and multiple chief judges of district courts were saying that the new requirement was both improper and unworkable. From numerous sources, the Judicial Conference was being referred to 28 USC 137, which leaves the assignment of cases to the chief judges of each court, as Chief Judge Randy Crane of the Southern District of Texas said in a statement.

As Wednesday turned into Thursday, the Judicial Conference's position on its new policy began changing, with reporters on legal beats in both the legal and print media doing yeoman work drawing out the facts of the matter. A March 14 article in the New York Times quoted Judge Sutton to the effect that "while the new policy takes effect immediately, how and when to put it into practice will be left to the district courts". See https://www.nytimes.com/2024/03/12/us/judge-selection-forum-shopping.html?searchResultPosition=1

Finally, on Friday the policy was out as part of a two-page memo from the chair of the Judicial Conference's Committee on Court Administration and Case Management to district judges. John Blackman of The Volokh Conspiracy posted the memo, and called its rollout "one of the most botched governmental rollouts since HealthCare.gov."

The Policy

The policy itself consisted of one sentence in a memo from the chair of the Judicial Conference's Committee on Court Administration and Case Management. It provides:

District courts should apply district-wide assignment to:

a. civil actions seeking to bar or mandate statewide enforcement of a state law, including a rule, regulation, policy, or order of the executive branch or a state agency, whether by declaratory judgment and/or any form of injunctive relief; and

b. civil actions seeking to bar or mandate nationwide enforcement of a federal law, including a rule, regulation, policy, or order of the executive branch or a federal agency, whether by declaratory judgment and/or any form of injunctive relief.

So the policy doesn't "require" a district-wide random selection process in certain cases as the Judicial Conference stated. It's only a recommendation. Why is this a recommendation and "guidance"? It's in the next sentence of the memo.

"These policies and the accompanying guidance inform the district courts’ statutory authority and discretion to divide the business of the court pursuant to 28 U.S.C. § 137. They should not be viewed as impairing a court’s authority or discretion. Instead, they set out various ways for courts to align their case assignment practices with the longstanding Judicial Conference policy of random case assignment." The Judicial Conference's statutory role under 28 U.S.C. 331 is to “submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.”

That's why it's a recommendation, and why the prior statements that this was a "requirement" that would be "effective immediately" were simply wrong. As numerous judges, lawyers, and commentators immediately pointed out. (I really would like to know what this March 15 memo looked like as of March 12. I mean, in case anyone's shopping for my birthday).

The Guidance

Attached to the policy is a Guidance for Civil Case Assignment in District Courts which supposedly "supports implementation of the above policy" but in fact it goes beyond it. It "provides general guidance in civil case assignment practices. . . . predicated on the Judicial Conference’s longstanding policies supporting the random assignment of cases and ensuring that district judges remain generalists."

Again, the Guidance itself is not limited to advising courts on how to implement the new Judicial Conference policy should they choose to do so. Instead, it is a memorandum setting out the Judicial Conference's "longstanding policies supporting the random assignment of cases and ensuring that district judges remain generalists".

Hysterically, the very first paragraph in the guidance states:

Public confidence in the case assignment process requires transparency. Therefore, consider incorporating case assignment practices into rules and orders as opposed to internal plans or policies. To the extent a court currently maintains internal plans or policies, the court should make them accessible to the public on the court’s website.

Memo at p. 3 (Emphasis added).

This admonition that "[p]ublic confidence in the case assignment process requires transparency" is surprising coming from a Judicial Conference that initially stated it would not release the policy for "several months", and presented it - falsely, as cannot be overemphasized - as a requirement to take effect immediately. Had it had its way, courts' case assignment processes would have changed overnight, contrary to the law, with the public not to know for months that it was at the behest of an agency which Congress had not assigned that decision to. Again, we are all indebted to the reporters than dug this out, giving policymakers and judges the information they needed to challenge this action.

Next, the Guidance suggest courts consider various issues, such as "achieving randomness in assignments; ensuring the district judges remain generalists; balancing caseload among judges in the district; avoiding and addressing recusals, conflicts of interest, and appearances of impropriety; considering potentially disqualifying events impacting assignments, such as injury, illness, or incapacitation of a judge; managing related cases; and promoting the efficiency, convenience, and other benefits of parties’ cases being heard by local judges."

But nowhere does the Guidance even mention the additional burdens encountered by multiple judges traveling to multiple divisions in large districts just to stroke the Judicial Conference's pet cat. There is a friendly rivalry between the Western and Northern Districts of Texas over which is larger (both are over 93,000 square miles) but Chief U.S. District Judge Alia Moses of the Western District of Texas told a reporter this week that if this were enacted judges would need to take time out of their day to travel to new venues to hear cases, time that could be spent tackling their full dockets. “I am in the Del Rio Division," she noted. "We do not have airline service. If I am assigned a matter in any one of our divisions, I must travel by vehicle,” Moses said. “The closest other courthouse to me is in San Antonio, which is about 150 miles away. Traveling to any other division would be at least a 2 to 3 day trip. This incredibly impacts my current Del Rio docket, which has over 3000 criminal cases on the docket.” https://www.washingtonpost.com/national-security/2024/03/14/judges-gop/ .

She added a few days later that it was hard to imagine how a random-case-assignment policy would work in her far-flung district, where the next courthouse can be a multiday drive away.The desire to avoid targeting a specific lawsuit to a particular judge “is understandable,” she said, “but difficult to apply in the real world in a district that is 93,000 square miles in size.” https://www.washingtonpost.com/politics/2024/03/16/judge-shopping-guidance-abortion-patent-courts/

The Guidance proposes districts "avoid case assignment practices that result in the likelihood that a case will be assigned to a particular judge, absent a determination that proceeding in a particular geographic location is appropriate." Even if tethered to the new Judicial Conference policy for bar/mandate cases, this is a venue statute masquerading as case assignment, and would impose a completely unworkable test. Congress eliminated divisional venue last century. And Congress has determined that proceeding in a particular geographic location in appropriate by establishing a courthouse, providing judges for the district, enacting jurisdictional and venue statutes, and assigning the district's case assignment to those judges' discretion. Adding an additional requirement for a separate determination that a venue is appropriate is wholly inconsistent with Congress' enacted venue scheme.

At bottom, the Guidance reflects the Judicial Conference's understandable policy favoring random case assignment. But there are competing considerations, as Judge Moses notes. And there are worse things than knowing who is likely to draw a case, as is the practice in countless state and federal courts. Such as challenging the integrity of an assigned judge based on dislike of their rulings. Or sabotaging the efficient operation of the courts for the same reason. That would be worse, don't you think?

A little history is worth recounting here. From 1845 to 1857 Texas had one judicial district and judge. No one complained. Except maybe the judge. Possibly as a result, the Western and Eastern Districts were created in 1857, with the existing district judge assigned to the Eastern District. In 1879, both districts donated territory to create a new Northern District. In 1902, the Southern District was split out of the Eastern District. (Unfortunately, it took Galveston - the birthplace of both DTX and EDTX - with it). Not until 1954, 97 years after the founding of the Eastern District and 106 years after its first judge took office, was there a second judge to share the docket. The judge covered the entire district, riding circuit to the various courthouses. The third didn't come until 1970, and not until the 1990s did the district have enough judges to cover the principal divisions without travel (Lufkin excepted, and no one ever cared about Paris anyway). When I clerked for him in 1992-1993 Judge Hall had to cover Marshall and Texarkana, and had just gotten rid of the need to cover part of Beaumont as well.

The point is that Congress gave us judgeships so judges could handle dockets - not waste time passing each other riding circuit to avoid a concern over knowing what judge will hear the cases filed in a one-courtroom courthouse. Perhaps the policy on bar/mandate cases reflects some wisdom. But Congress has delegated that determination to individual courts and/or the legislative process.

Patent Cases?

Does the Guidance apply to patent cases? It claims that it does - but there's a contradictory footnote. It turns out that the CACM Committee already presented its “Report on the Patent Case Assignment Study in the District Courts” (Patent Report) to the Judicial Conference at its September 2023 session. The Patent Report concluded that "the most effective tools in achieving the shared goal of both Congress and the Judicial Conference of promoting random case assignment are the divisional and judicial case assignment practices and policies employed in dividing the business of a district court as contemplated by 28 U.S.C. § 137, which allows each district court to divide the business of the court in a way that best serves the district." (Emphasis added). In other words, attaboy WDTX. So the train for patent cases left the station last fall, without recommending any policies regarding patent case assignment on the part of the Judicial Conference, or providing guidance for patent cases. While patent cases aren't excluded from the Guidance - if fact some eager beaver apparently insisted that they be specifically included - they were the subject of a prior report that did not result in a policy or Guidance.

Finally, after four paragraphs untethered to implementing the new Judicial Conference policy, the Guidance gets around tho providing actual guidance on how a district could go about implementing the new policy if it chooses to do so.

What do judges think now that they've actually seen the policy and the Guidance? SDTX Chief Judge Randy Crane told the Washington Post that the guidance was helpful. “It made it clear that the policy adopted by the Committee and the Conference was not a mandate. As such, it does not conflict with each court’s statutory authority to manage its docket. The guidance reflects that it is only an encouragement to the courts.” Not precisely praise of either the policy or the guidance, but a ringing endorsement for staying in one's lane.

So it's been a fun week, but I'd really appreciate the Judicial Conference not sitting on its policies and guidelines in the future. Press releases aren't sufficient.