On March 12, 2024, the Judicial Conference of the United States (“Judicial Conference”) announced that, in an effort to limit the ability of litigants to select judges in certain cases based on where they file lawsuits, it has strengthened its policy regarding random civil case assignments. The policy, which would assign judges through a district-wide random selection process, is aimed at civil actions that seek to bar or mandate state or federal actions through declaratory actions or injunctive relief.

In most of the nation’s 94 federal district courts, judges are randomly assigned. Some district courts, however, assign cases to a judge in the division of the district court where the case is filed. According to the Judicial Conference, in divisions where there is only one sitting judge, this approach has allowed litigants to essentially pre-select the judge who will preside over their case. This practice caught the attention of key Senators and the Chief Justice in the context of patent cases, with Senator Thom Tillis (R-NC) and former Senator Patrick Leahy (D-VT) expressing concern about the concentration of patent cases that were being filed in single-judge divisions and Chief Justice Roberts calling for a study of judicial assignment practices in his 2021 Year-End Report on the Federal Judiciary.

The Judicial Conference, which includes the Chief Justice of the Supreme Court as its presiding officer, sets policy for the federal court system. The other members of the Judicial Conference are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade.

“The random case-assignment policy deters judge-shopping and the assignment of cases based on the perceived merits or abilities of a particular judge. It promotes the impartiality of proceedings and bolsters public confidence in the federal Judiciary,” said Judge Robert J. Conrad, Jr., secretary of the Judicial Conference.

The issue appears to be particularly acute in the Norther District of Texas. In an April 2023 letter to Chief Judge David Godbey, Senator Schumer argued that even though the district has twelve active judges and four senior judges who hear cases, all cases filed in the Amarillo and Wichita Falls divisions are assigned to the single judge that sits in those divisions, and cases filed in Abeline, Lubbock, and San Angelo divisions are split between just two judges. Judge Matthew Kacsmaryk who sits in the Amarillo district, for example, has presided over cases against Biden Administration actions related to abortion, immigration, and LGBTQ rights.

However, while Senator Tillis requested that the Judicial Conference conduct a study, implement appropriate reforms, and make legislative recommendations to address this situation in the context of patent cases in 2021, he has now joined Senate Minority Leader Mitch McConnell (R-KY) and Senator John Cornyn (R-TX) as opponents of the Judicial Conference’s new policy. In a March 14, 2024 letter to the chief judges of each federal district court, the Republican Senators argue that the assignment of cases within district courts is governed by federal statute (28 U.S.C. § 137(a)) and is delegated to the district courts to decide, not the Judicial Conference. Painting the Judicial Conference policy as a reaction to a partisan request from Senator Chuck Schumer (D-NY), the Republican Senators asked the chief judges to ignore the new policy and manage their caseloads as they see fit.

Beyond single judge divisions, various district courts have become the go-to forums for litigants with regulatory challenges. For example, as we very recently discussed, trade groups seeking to enjoin and invalidate the CFPB’s final credit card late fee rule filed their suit in the Northern District of Texas, which is in the Fifth Circuit. The Fifth Circuit ruled in CFSA v. CFPB that the CFPB’s funding mechanism is unconstitutional and that case is currently pending before the U.S. Supreme Court. The CFPB has argued that the plaintiff trade groups have a tenuous connection to the division it was filed in, and the judge assigned to the case has stated that there “appears to be an attenuated nexus” in an order setting an expedited briefing schedule on the issue.

We will continue to monitor how the federal district courts react to the new Judicial Conference policy.