Discussion continues on the issue of venue and judge shopping despite the Judicial Conference’s policy being no longer in effect. The New York Times recently reported on a situation involving a District Court judge from Dallas who expressed discontent with a letter from his Chief Judge to Senator Schumer. It seems there may be more to this story.
On the same day, the Fifth Circuit made a decision on an “emergency” case. A case involving the Chamber of Commerce and the CFPB was transferred from the Northern District of Texas to the District of Columbia by a judge in the Fort Worth Division, surprising some due to the conservative judges in the Fifth Circuit not always aligning. The Chamber promptly sought an emergency stay, which was granted temporarily by the Fifth Circuit. The panel, with a 2-1 vote, issued a mandamus to reverse the transfer. Judge Willett wrote the majority opinion, joined by Judge Oldham, while Judge Higginson dissented.
The panel’s decision was based on the timing of the appeal filed by the plaintiffs before the transfer was finalized, indicating that the district court lacked jurisdiction to transfer the case while an appeal was pending.
What intrigues me more is how this case impacts broader discussions on venue, judge-shopping, and transfers. The case is currently in a state of uncertainty, not fully in D.C. or Texas. This situation is reminiscent of the Defense Distributed case, which is stuck between New Jersey and Texas. Another recent case involved SpaceX suing the NLRB in Texas, only for the case to be transferred to California. The Fifth Circuit panel questioned the NLRB’s actions in this transfer, suggesting potential manipulation. It appears that some Texas District Court judges may be sending cases to more favorable jurisdictions to avoid appellate review by the Fifth Circuit.
Judge Oldham’s dissent criticizes the District Court judge for the improper handling of the transfer.
He suggests that a district court should temporarily stay a transfer order to allow for appellate review, a reform that could prevent rushed decisions like the one in this case.
Judge Higginson, who dissented in a previous case involving Defense Distributed, also dissented in this case.
He explicitly referenced the judge shopping policy of the Judicial Conference:
Stripping a district judge of the discretion to swiftly transfer a case that appears to be improperly before it—especially when Petitioners have stressed the urgency of time—is concerning not only for encroaching on the docket control of district courts but also for the judiciary’s ability to combat forum shopping. See Judicial Conference Committee on Court Administration and Case Management, Guidance for Civil Case Assignment in District Courts (Mar. 2024).
Judge Higginson’s final remarks imply that the District Court for the District of Columbia may decide to retain the case.
Based on the reasons mentioned above, I argue that the new legal principle established by the majority undermines district court discretion in managing dockets and effectively addressing forum shopping. I trust that the District Court for the District of Columbia will carefully consider the suggestion to disregard a case that it has accepted.
The opinion of the Fifth Circuit is merely a “suggestion,” which could lead to confusion rather than cooperation. Similar circumstances arose in the Defense Distributed case, where the District Court in New Jersey refused to transfer the case back to Texas as requested by the Fifth Circuit. It would be beneficial to establish a mechanism for mandamus to compel district courts to transfer cases in the spirit of interstate cooperation.
There are significant dynamics at play here, with rifts emerging within the Fifth Circuit. The Fifth Judicial Conference promises to be interesting. Let’s hope it doesn’t get relocated to San Francisco.
