Deep within the Coronary heart of Galveston

In Texas, there are a number of single-judge divisions. Over the previous few years, I’ve written about these courts in locations like Amarillo, Victoria, Wichita Falls, and Lubbock. However one single-judge division, which is closest to residence, has not attracted almost as a lot consideration. The Galveston Division of the Southern District of Texas is about 50 miles from downtown Houston. And the lone decide there may be Decide Jeff Brown, who beforehand served on the Texas Supreme Court docket. Brown’s most high-profile case was Feds for Medical Freedom v. Biden. 

The lead plaintiff, Feds for Medical Freedom, has “greater than 6,000 members unfold throughout each state.” However the plaintiffs selected to file within the Galveston Division of the Southern District of Texas–not Houston, not Corpus Christi, not Brownsville. And underneath longstanding precedent, plaintiffs have that discretion to decide on their venue, as long as they adjust to the foundations of process, federal statutes, and judicial precedent. Their criticism supplied this assertion with regard to venue:

Venue is correct underneath 28 U.S.C. § 1391(e)(1)(B) as a result of the USA, a number of of its companies, and a number of of its officers in his or her official capability are Defendants; and a considerable a part of the occasions giving rise to Plaintiffs’ claims occurred on this District. Venue can be correct underneath 28 U.S.C. § 1391(e)(1)(C) as a result of the USA, a number of of its companies, and one in every of its officers in his official capability are Defendants, and Plaintiffs Joshua Roberts, Deborah Lawson, Laura Brunstetter, Julia Badger, Patrick Mendoza York, Patrick Wright, and Jana Spruce reside on this District, and no actual property is concerned.

A number of of the plaintiffs resided in Galveston. The Division of Justice didn’t contest whether or not venue was correct within the Galveston division. In January 2022, Decide Brown issued a nationwide injunction in opposition to Biden’s vaccine mandate for federal workers. In March 2023, the en banc Fifth Circuit affirmed Brown’s ruling. (As greatest as I can inform, the SG has not filed a cert petition but.)

This case is typical of so-called strategic litigation. It’s all too frequent for attorneys to hunt nationwide reduction particularly courts. There’s nothing unethical about this apply. So far as I do know, misconduct complaints haven’t been filed in opposition to attorneys in non-public apply and in authorities, who file such fits. But, this apply has come underneath vigorous assault over the previous few years. Critics assail these attorneys, and certainly, the judges themselves, for taking part in “decide buying.” Congress may, after all, change the foundations for venue. Certainly, Majority Chief Schumer could be a lot better off writing a letter to his colleagues within the Senate, than to the Chief Decide of the Northern District of Texas. Additionally it is doable {that a} explicit district as a complete may undertake sure guidelines concerning case assignments. I don’t assume a Chief Decide could make this determination unilaterally. 

This background brings me to the foundations of apply that Decide Brown adopted in February 2023. Rule 16 offers:

Rule 16: Instances With No Factual Nexus to the Galveston Division

Often, plaintiffs file issues within the Galveston Division with no factual nexus to the division. The court docket will display for such conditions on the preliminary scheduling convention. In any case with no apparent factual nexus to the Galveston Division, the court docket will order the plaintiff, inside 14 days, to elucidate the case’s connection to the division and the way the court docket ought to weigh the In re Volkswagen private- and public-interest components. See 545 F.3d 304, 315–18 (fifth Cir. 2008) (en banc). The defendant could have 7 days to reply. The court docket will then decide whether or not, for the comfort of the events and witnesses and within the curiosity of justice, it ought to switch the case to a extra applicable division underneath 28 U.S.C. § 1404. The court docket may also entertain events’ motions to switch such instances underneath § 1404, whether or not filed earlier than or after the preliminary scheduling convention.

Longtime critics of single-judge divisions have heaped reward on Decide Brown for taking proactive steps to scale back so-called decide buying. I do not assume this adoration is warranted. First, underneath longstanding precedent, Judges can increase venue sua sponte. Venue shouldn’t be jurisdictional, however judges are allowed to boost this subject on their very own. There’s nothing improper a couple of decide screening instances at a scheduling convention for venue points. And for individuals who maintain monitor, scheduling conferences happen after motions for preliminary injunctions are resolved. Second, Decide Brown’s order cites Fifth Circuit precedent regarding venue and district. To state the plain, a district court docket in Texas is certain to observe Fifth Circuit precedent. Third, all federal courts should contemplate the 1404 components, whether or not by itself movement, or a movement to switch. That is it! I believe the textual content of this order is way ado about nothing.

This order has additionally attracted some ire from the fitting. Some conservative have contended that Decide Brown is shying away from strategic litigation, and even worse, signaling that he doesn’t need these instances. On some reflection, I don’t assume this criticism is warranted right here, however a Decide who adopted such a path could be within the incorrect. Past congressional motion, or district vast guidelines, a person district court docket decide has little management over what instances he receives. It might be improper for a federal decide in energetic service to state “I’ll switch any case that requests nationwide reduction,” or “I don’t want any case introduced underneath the APA.” (Federal judges with senior standing can choose and select which instances they obtain.) Are you able to think about if a federal decide routinely recused from any case involving a high-profile subject like abortion or homosexual rights? (Although one elected justice on the Texas Supreme Court docket recused from a pre-Obergefell same-sex divorce case, with none apparent trigger.)  A federal decide can solely switch a case to a different division, or one other district, if the federal guidelines and circuit precedent help that outcome. Said in another way, a federal decide can not super-add new necessities to maintain a case in his explicit venue.

If Rule 16 merely restates the present precedent, why would Decide Brown subject such a coverage? I’m deeply uncertain he was making an attempt to curry favor with the actual regulation professors of Twitter. I additionally do not assume he was making an attempt to show away strategic litigation. Nor do I believe this rule even accomplishes that aim, since he’s solely restating present regulation. Furthermore, underneath longstanding precedent, the state of Texas is known to have an curiosity over each inch of Texas–together with the sands of Galveston seashore. And at the least in Feds for Medical Freedom, Decide Brown thought venue was correct. Was Decide Brown making an attempt to sign that litigants ought to file elsewhere–principally an in terrorem nudge to remain away? I hope not, as a result of such a rule could be inappropriate. Judges can not dangle “don’t enter” indicators on the courthouse doorways. The tenure protections of Article III are designed to guard judges who should resolve instances of public import, even within the face of inner and exterior strain. My inclination is there’s a mundane rationalization for this rule.