Deep in the 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 house, has not attracted practically as a lot consideration. The Galveston Division of the Southern District of Texas is about 50 miles from downtown Houston. And the lone choose 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 beneath longstanding precedent, plaintiffs have that discretion to decide on their venue, as long as they adjust to the principles of process, federal statutes, and judicial precedent. Their criticism offered this assertion with regard to venue:
Venue is correct beneath 28 U.S.C. § 1391(e)(1)(B) as a result of america, a number of of its businesses, 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 beneath 28 U.S.C. § 1391(e)(1)(C) as a result of america, a number of of its businesses, 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.
Just a few 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 towards Biden’s vaccine mandate for federal staff. 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 legal professionals to hunt nationwide aid specifically courts. There may be nothing unethical about this apply. So far as I do know, misconduct complaints haven’t been filed towards legal professionals in non-public apply and in authorities, who file such fits. But, this apply has come beneath vigorous assault over the previous few years. Critics assail these legal professionals, and certainly, the judges themselves, for collaborating in “choose procuring.” Congress may, in fact, change the principles for venue. Certainly, Majority Chief Schumer can 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. It is usually doable {that a} specific district as a complete may undertake sure guidelines concerning case assignments. I don’t assume a Chief Decide could make this choice unilaterally.
This background brings me to the principles of apply that Decide Brown adopted in February 2023. Rule 16 offers:
Rule 16: Instances With No Factual Nexus to the Galveston Division
Sometimes, plaintiffs file issues within the Galveston Division with no factual nexus to the division. The courtroom will display for such conditions on the preliminary scheduling convention. In any case with no apparent factual nexus to the Galveston Division, the courtroom will order the plaintiff, inside 14 days, to elucidate the case’s connection to the division and the way the courtroom ought to weigh the In re Volkswagen private- and public-interest elements. See 545 F.3d 304, 315–18 (fifth Cir. 2008) (en banc). The defendant can have 7 days to reply. The courtroom 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 beneath 28 U.S.C. § 1404. The courtroom will even entertain events’ motions to switch such circumstances beneath § 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 choose procuring. I do not assume this adoration is warranted. First, beneath longstanding precedent, Judges can elevate venue sua sponte. Venue will not be jurisdictional, however judges are allowed to lift this subject on their very own. There may be nothing improper a couple of choose screening circumstances at a scheduling convention for venue points. And for individuals who preserve observe, 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 apparent, a district courtroom in Texas is certain to observe Fifth Circuit precedent. Third, all federal courts should take into account the 1404 elements, whether or not by itself movement, or a movement to switch. That is it! I feel the textual content of this order is way ado about nothing.
This order has additionally attracted some ire from the suitable. Some conservative have contended that Decide Brown is shying away from strategic litigation, and even worse, signaling that he doesn’t need these circumstances. On some reflection, I don’t assume this criticism is warranted right here, however a Decide who adopted such a path can be within the mistaken. Past congressional motion, or district extensive guidelines, a person district courtroom choose has little management over what circumstances he receives. It will be improper for a federal choose in lively service to state “I’ll switch any case that requests nationwide aid,” or “I don’t want any case introduced beneath the APA.” (Federal judges with senior standing can decide and select which circumstances they obtain.) Are you able to think about if a federal choose mechanically 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 choose can solely switch a case to a different division, or one other district, if the federal guidelines and circuit precedent assist that consequence. Said in another way, a federal choose can not super-add new necessities to maintain a case in his specific venue.
If Rule 16 merely restates the prevailing precedent, why would Decide Brown subject such a coverage? I’m deeply uncertain he was making an attempt to curry favor with the true legislation professors of Twitter. I additionally do not assume he was making an attempt to show away strategic litigation. Nor do I feel this rule even accomplishes that aim, since he’s solely restating current legislation. Furthermore, beneath 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 no less than 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 can be inappropriate. Judges can not hold “don’t enter” indicators on the courthouse doorways. The tenure protections of Article III are designed to guard judges who should determine circumstances of public import, even within the face of inside and exterior stress. My inclination is there’s a mundane clarification for this rule.
