Home » New Federal Judiciary Rule Will Limit ‘Forum Shopping’ by Plaintiffs

New Federal Judiciary Rule Will Limit ‘Forum Shopping’ by Plaintiffs

by Marko Florentino
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When anti-abortion activists sued the Food and Drug Administration in 2022 seeking to overturn the approval of the abortion drug mifepristone, they filed their suit in the federal court in Amarillo, Texas, where it was all but assured that the case would be heard by Judge Matthew J. Kacsmaryk, an outspoken opponent of abortion.

Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was “unsafe.” In his ruling, he invalidated the F.D.A.’s 23-year-old approval of the drug and opened a new front in the post-Dobbs reckoning over abortion rights.

The suit — and the role of Judge Kacsmaryk, who handles 95 percent of the Amarillo civil caseload — was one of the most striking recent examples of “forum shopping,” where plaintiffs to try to cherry-pick sympathetic judges.

Now, forum shopping is about to get harder.

The panel of federal judges who set policy for the rest of federal judiciary on Tuesday announced a new rule intended to curb the practice in civil cases with nationwide implications, like the mifepristone suit.

In such cases, where plaintiffs are seeking a sweeping remedy, like a nationwide injunction, the judge will be assigned at random from across the district instead of defaulting to the judge or judges in a particular courthouse.

Forum shopping has been used for years by litigants from across the political spectrum who file suit in districts and appellate circuits where they believe the pool of judges will play to their advantage.

In challenging federal immigration policies, advocates for immigrants have often sought out federal courts in California, reasoning that in a more liberal state, there’s a better chance of the case being assigned to a judge who is sympathetic to arguments against the government.

In some cases filed by conservatives, such as the mifepristone challenge, plaintiffs have sought to take forum shopping even further, aiming to have cases assigned to a specific judge they think will take a favorable view of their arguments.

While some of the country’s 94 federal district courts already assign cases randomly, most sort them into “divisions,” judicial subdistricts that funnel cases down to smaller groups of judges. In at least 90 of those divisions, a single judge handled more than half the caseload, according to a 2018 article in the Columbia Human Rights Law Review.

Eleven of those, according to the article, are in Texas, where conservatives have won nationwide injunctions against immigration programs, transgender rights and labor policies from the Obama era. The rulings have then been mostly upheld by the conservative U.S. Court of Appeals for the Fifth Circuit. Judge Kacsmaryk’s ruling, which was upheld in part by the Fifth Circuit, is on hold while it awaits review by the Supreme Court.

The effort to address forum shopping comes as the federal judiciary faces mounting pressure to reform itself. After revelations that Supreme Court Justice Clarence Thomas had failed to disclose lavish gifts and a forgiven loan on his annual financial disclosures, the Judicial Conference tightened the requirements for reporting free travel and gifts, and the Supreme Court adopted a new code of conduct. Critics have said that these self-imposed measures don’t go far enough to ensure compliance.

Judge Robert J. Conrad Jr., head of the federal courts’ Administrative Office, said the new forum-shopping rollback “promotes the impartiality of proceedings and bolsters public confidence in the federal judiciary.” While the new policy takes effect immediately, how and when to put it into practice will be left to the district courts, said Judge Jeffrey Sutton, who chairs the Judicial Conference’s executive committee.

Critics of forum shopping tend to focus on high-stakes political issues, but the practice has far-reaching implications for more arcane areas of the law as well. In a 2021 letter to Supreme Court Chief Justice John Roberts, two U.S. senators raised concerns about a report that a single judge from the Western District of Texas was hearing 25 percent of patent cases nationwide. The senators claimed the judge, Alan D. Albright, was soliciting cases from potential plaintiffs and called the practice “unseemly and inappropriate.”

In his 2021 year-end report, Justice Roberts wrote that geographic divisions were beneficial insofar as federal judges were “tied to their communities” but that they should also be “generalists capable of handling the full range of legal issues.” Judge Albright did not respond to a request for comment sent to his courtroom aide on Tuesday.

In the days after the Texas mifepristone ruling, two Democrats in Congress introduced a bill that would have mandated random case assignments and restored a practice that was put in place between 1937 and 1976, in which any lawsuit challenging the constitutionality of a state or federal law was heard by a three-judge panel.

Senator Ron Wyden of Oregon, the bill’s Senate sponsor, also called on the Judicial Conference to make that change. “No single judge should have the power to make sweeping decisions that could harm millions of Americans,” he said. “If a decision will have national consequences, it should be heard by a panel of judges.”

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