I pass along this comment I received from a well-known attorney in Texas who clerked on both the federal District Court level and at the Fifth Circuit. I suspect this attorney's views are widely shared:
The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a host of practical concerns about how such a policy should or would work if implemented. The rollout was extremely problematic—no one actually knew what the policy was (including judges outside those on the Judicial Conference), how the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed authority to force all judicial districts to adopt the policy, and if so, under what authority the Judicial Conference was acting. Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by how the very branch of government trusted with safeguarding the rule of law and the public's right of access to the courts went about this process, sowing confusion among the bar, litigants, judges, the media, other branches of government, and the broader public. And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than those it purports to solve (to extent single judge division even pose any problems).
As announced on the federal judiciary's website, the public was informed "[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions 'whether by declaratory judgment and/or any form of injunctive relief.' In such cases, judges would be assigned through a district-wide random selection process." https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment (emphasis added). This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random assignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide injunctions. https://www.politico.com/news/2024/03/12/federal-courts-move-against-judge-shopping-00146594 ("Sutton called the new policy 'an elegant solution' to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country."). The policy memo to the judiciary however now indicates that the policy applies to "civil actions seeking to bar or mandate statewide enforcement of state law" or "nationwide enforcement of federal law." If this was always the policy to be announced, then why did the judiciary website not state this in the press release? Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy. For example, if an individual litigant is seeking a declaration that certain agency practices are unconstitutional in proceedings they are involved in, which would have an effect of finding say that an agency's ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy? Or would it not qualify if the litigant doesn't expressly seek a nationwide injunction even if a finding in the plaintiff's favor might carry that effect practically? After all, the guidance memo says the policy applies "when the remedy sought has implications beyond the parties before the court and the local community," but this could be said of most litigation bringing constitutional claims even if the relief is narrowly targeted to the plaintiff.
Nor does the memo clear up the confusion on whether, when, and how this policy goes into effect and starts impacting cases. Media reported based on Judge Sutton's representations that "[t]he policy is effective immediately," setting off much confusion within the legal community about the Judicial Conference's authority and the policy's sweep due to the lack of the text of the actual policy being publicly released. https://www.courthousenews.com/judicial-body-acts-to-curb-judge-shopping/; see also https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2O6UQMC000000?bna_news_filter=us-law-week#jcite ("Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse."); ("Sutton didn't rule out the rule applying to past or ongoing matters"). It is hard to square Judge Sutton's statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that "district courts should apply district wide assignments" to cases seeking this relief and stating that the guidance should not be viewed as "impairing a court's authority and guidance" to divide the business of the court under Section 137 at its discretion. Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported authority to require this policy be implemented nationwide in light of blowback from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.
But Judge Sutton's representation still result in important questions unaddressed by the memo—if a particular judicial district does adopt this policy, could it be potentially retroactive and result in the re-assignment of currently-pending cases? Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo? As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or how it could impact currently pending cases. But assuming any district court feels that it should adopt the Judicial Conference's policy regardless of whether they must, the questions of how practically this all works are legion and the memo does little to address them.
