Yesterday, the Fifth Circuit heard oral argument in the so-called Buoys Case. Texas placed these floating structures in a portion of the Rio Grande river. The closest federal court to the buoys was the Del Rio Division of the Western District of Texas. But the United States filed suit more than two-hundred miles away in Austin. Why? I'm sure defenders would argue that the suit was brought in the state capital, the seat of government. But this decision has consequences. At the time, the Del Rio Division had one judge, an appointee of President George W. Bush. (A recent Biden nominee was confirmed to that division, after some controversy.) But in the Austin Division, DOJ had a much more favorable bench.
This issue came up during the en banc oral arguments, as noted by Bloomberg Law. I've transcribed the audio here, but the recording quality is dreadful. (I hope the Fifth Circuit can fix their tech.) Around the 8 minute mark, Judge Ho observed that the "events of this case took place in Del Rio, not Austin." Lanora Pettit, the Texas Deputy SG, acknowledged that the events took place in Eagle's Pass, which is "down river" from Del Rio. Ho continued that this was the United State's choice, and the federal government was the "master of the complaint."
Ho said, and Pettit agreed, that the choice of venue was "not relevant" to resolving the case. She is exactly right. Texas is often in the driver's seat of forum shopping, but here Texas was on the receiving end. This is how things work in the real world. Ignore whatever you read on Twitter.
