In Texas, there are several single-judge divisions. Over the past few years I have written about these courts in places like Amarillo, Victoria, Wichita Falls and Lubbock. But a single-judge chamber, the closest to our house, hasn’t attracted as much attention. The Galveston Division of the Southern District of Texas is approximately 50 miles from downtown Houston. And the sole judge is Judge Jeff Brown, who once served on the Supreme Court of Texas. Brown’s most publicized case was Feds for Medical Freedom v. Biden.
The main applicant, Feds for Medical Freedom, has “more than 6,000 members spread across all states”. But the plaintiffs chose to file a complaint with the Galveston Division of the Southern District of Texas, not Houston, Corpus Christi, or Brownsville. And under long-standing precedent, plaintiffs have discretion in choosing their venue, as long as they follow procedural rules, federal laws and court precedents. Their complaint has provided this statement regarding the location:
Venue is appropriate under 28 USC § 1391(e)(1)(B) because the United States, one or more of its agencies, and one or more of its officers in its official capacity are defendants; and a substantial part of the events giving rise to the plaintiffs’ claims occurred in that district. Venue is also appropriate under 28 USC § 1391(e)(1)(C) because the United States, one or more of its agencies, and one of its officers in its official capacity are the defendants, and plaintiffs Joshua Roberts, Deborah Lawson, Laura Brunstetter, Julia Badger, Patrick Mendoza York, Patrick Wright and Jana Spruce reside in this district and no real estate is involved.
A few of the plaintiffs resided in Galveston. The Justice Department did not dispute whether the location was appropriate in the Galveston division. In January 2022, Judge Brown issued a nationwide injunction against Biden’s vaccination mandate for federal employees. In March 2023, the fifth en banc circuit affirmed Brown’s decision. (As far as I know, the SG has not applied for certification yet.)
This case is typical of so-called strategic litigation. It is all too common for lawyers to seek national relief from particular courts. There is nothing unethical about this practice. To the best of my knowledge, no misconduct complaints have been filed against lawyers in private practice and government who bring such lawsuits. Yet this practice has come under vigorous attack in recent years. Critics attack these lawyers, and even the judges themselves, for participating in “judge shopping.” Congress could, of course, change the venue rules. Indeed, Majority Leader Schumer would be much better off writing a letter to his colleagues in the Senate than to the Chief Judge of the Northern District of Texas. It is also possible that a particular district as a whole may adopt certain rules regarding case assignments. I don’t think a chief justice can make that decision unilaterally.
This context brings me to the rules of practice that Judge Brown adopted in February 2023. Rule 16 provides:
Rule 16: Cases Not Factually Connected to Galveston Division
Sometimes plaintiffs file cases in the Galveston division with no factual connection to the division. The court will consider such situations at the initial planning conference. In all cases without an obvious factual connection to the Galveston Division, the court will order the plaintiff, within 14 days, to explain the case’s connection to the Division and how the court should weigh private interest factors and public In re Volkswagen. See 545 F.3d 304, 315–18 (5th Cir. 2008) (en banc). The defendant will have 7 days to respond. The court will then determine whether, for the convenience of the parties and witnesses and in the interests of justice, it should transfer the case to a more appropriate division under 28 USC § 1404. The court will also consider the motions of the parties to transfer these cases. under § 1404, whether filed before or after the initial scheduling conference.
Longtime critics of single-judge divisions have praised Judge Brown for taking proactive steps to reduce so-called judge shopping. I don’t think this worship is justified. First, under long-standing precedent, judges can raise the location spontaneously. The venue is non-jurisdictional, but judges are permitted to raise this issue on their own. There is nothing improper about a judge reviewing cases at a planning conference for reasons of venue. And for those who keep track, planning conferences happen After the preliminary injunction motions are resolved. Second, Judge Brown’s order cites Fifth Circuit precedent regarding venue and district. To state the obvious, a Texas district court is bound to follow Fifth Circuit precedent. Third, all federal courts must consider the 1404 factors, whether on their own initiative or on a motion for transfer. That’s it! I think the text of this ordinance is making a lot of noise for nothing.
This ordinance also attracted some wrath from the right. Some conservatives have argued that Judge Brown is avoiding strategic litigation, or worse, signaling that he doesn’t want those cases. On reflection, I don’t think that criticism is justified here, but a judge who would go down such a path would be wrong. Beyond congressional action or district-wide rules, an individual district court judge has little control over the cases they receive. It would be inappropriate for an active-duty federal judge to state “I will transfer any case that seeks relief nationwide” or “I do not want any case brought under the APA.” (Federal judges with higher status can choose which cases they receive.) Can you imagine if a federal judge automatically recused himself from any case involving a high-profile issue like abortion or gay rights? (Although a judge elected to the Supreme Court of Texas challenged of a pre-Oberefell same-sex divorce case, without obvious cause.) A federal judge may only transfer a case to another division or district if federal rules and circuit precedent support that result. In other words, a federal judge cannot super-add new requirements to keep a case in its particular place.
If Rule 16 simply reaffirms existing precedent, why would Judge Brown issue such a policy? I deeply doubt he was trying to curry favor with real law professors on Twitter. I also don’t think he was trying to deflect strategic litigation. I also don’t think this rule achieves that goal, since it merely reaffirms existing law. Moreover, according to long-standing precedent, the state of Texas is supposed to have an interest in every square inch of Texas, including the beach sands of Galveston. And at least in Feds for Medical Freedom, Judge Brown thought the venue was appropriate. Was Judge Brown trying to signal that litigants should testify elsewhere – essentially a in terror a nudge to stay away? I hope not, because such a rule would be inappropriate. Judges may not hang “do not enter” signs on courthouse doors. The tenure protections of Article III are designed to protect judges who must decide cases of public importance, even in the face of internal and external pressures. My penchant is that there is a banal explanation for this rule.