Austin Judges Shop For Cases With "Mutual Consent"

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.

Judge Ho also pointed out that the cases in Austin are not randomly assigned. This point is not well known nationally, but is well-known to members of the bar. Consider the current assignment order for the Western District of Texas, Austin Division. Judge Robert Pitman receives 50% of the civil docket, and has “Oversight and management of the remaining fifty percent (50%) of the civil” docket. In other words, Judge Pitman personally can decide half of the civil cases, and can decide who receives the other half of the civil cases. And how are those other cases assigned? Not randomly. Rather, three senior judges who sit in Austin are assigned cases by “mutual consent.”

Senior U.S. District Judge James R. Nowlin: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

Senior U.S. District Judge Sam Sparks: Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

Senior U.S. District Judge David A. Ezra:  Any civil case, criminal case, court related matter, or administrative duty assigned or transferred to him by another judge by mutual consent.

None of these assignments are random. These senior judges can pick and choose which cases they receive. Judge shopping is often used to deride plaintiffs who chose their judge. But that term also applies to judges who choose their plaintiffs.

It is well known in Texas that Judge Ezra fancies the high-profile cases, and consistently receives them. By my count, in the past year, he has presided over the buoys case, the S.B. 4 case, and the porn age verification case. All three of these cases have already been on, or will soon be, on the Supreme Court’s docket. Most federal district court judges can go their entire careers without having a single case make it to the Supreme Court. But Ezra has three in a year. Is this a coincidence? No. Ezra could only have received these cases by his “mutual consent.” Judge Pitman offered these cases to him, and he accepted them.

Mind you that Judge Ezra is actually a visiting judge from the District of Hawaii, or what Attorney General Sessions called a “judge sitting on an island in the Pacific.” To the extent that Ezra was approved to sit in the Western District of Texas, it was to help with some dockets that are backlogged, such as immigration cases or criminal sentencing. He was not sent to Austin to sit as a Council of Revision for the Texas legislature.

Do you think that Judge Ezra would support the Judicial Conference’s ill-fated randomization policy? Absolutely not. With randomization he would be stuck with the mine-run of boring civil cases, instead of these high profile matters. It would be a fun thought experiment to randomize assignments within a division. Let’s see if that could get buy-in from the Western District of Texas.

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