In re Motor Fuel Temperature Sales Practices Litigation
Court: Court of Appeals for the Ninth Circuit; March 19, 2013; Federal Appellate Court
The administrative matter involves three California cases—Lerner v. Costco Wholesale Corp., Rushing v. Alon USA, Inc., and Wyatt v. B.P. America Corp.—that were transferred to the District of Kansas for consolidated pretrial proceedings under 28 U.S.C. 1407. Chief Judge Kathryn H. Vratil has indicated a desire to remand these cases back to California for trial. Although the transfer has not yet occurred, it is anticipated. Typically, cases would be returned to their original judges; however, Chief Judge Vratil has offered to travel to California to conduct the trials herself, contingent upon approval from the Chief Justice of the United States, due to her duty station being in the Tenth Circuit.
The Chief Justice's Guidelines for the Intercircuit Assignment of judges outline the process for borrowing judges from other circuits when necessary. This need may arise from a shortage of judges or conflicts involving all judges in a particular court. The Circuit Executive identifies available judges outside the circuit, with assistance from the Judicial Conference Committee on Intercircuit Assignments. A Certificate of Necessity is signed by the chief judge of the borrowing circuit, and if the judge is active, a Consent to Assignment must also be signed by the chief judge of the lending circuit, ensuring that justice is not impaired by the judge's temporary absence. The Committee serves as a clearinghouse for inter-circuit assignments, regularly contacting senior judges to gauge their willingness to serve when needed. The Ninth Circuit frequently benefits from these efforts due to its ongoing shortage of judicial officers.
A Certificate of Necessity for an out-of-circuit judge is under consideration, but it is unusual because it was not requested by the courts in the circuit. There has been no communication from the Chief Judges of the Northern, Central, or Southern Districts of California indicating a need for such assistance. Although the district judges are overburdened, this situation alone does not justify the appointment of a visiting judge from another circuit. Only extreme cases, such as a judge's death or a judicial emergency, warrant such measures, and the first preference is to utilize judges from within the same circuit.
The Chief Justice's Guidelines emphasize that federal judges should first address needs within their own courts and circuits before seeking help from outside. The current request does not meet the criteria for an inter-circuit assignment. Despite this, Judge J. Frederick Motz from the District of Maryland has advocated for inter-circuit assignments to enhance judicial efficiency when cases do not resolve pretrial. However, not all committee members agree; Judge Nathaniel M. Gorton argues that statutory requirements dictate that transferred cases must return to their originating district, and that transferee judges should not self-assign MDL cases post-pretrial.
Defendants have objected to Chief Judge Vratil's proposed inter-circuit assignment, primarily citing concerns from the Supreme Court decision in Lexecon Inc. v. Milberg Weiss, which rejected the practice of self-referrals by transferee judges.
The argument presented lacks sufficient convincing force, primarily because Lexecon addresses venue selection rather than judicial case assignment. The Lexecon ruling affirms a plaintiff's right to choose the trial venue, which cannot be compromised by transferring the case for pre-trial proceedings under the MDL process. Venue selection is crucial for practical reasons, including accessibility for plaintiffs and the selection of the jury pool. Although venue influences which judge may preside over the case, it does not guarantee the assignment of a judge from that district, as judges from different districts or circuits may be assigned for administrative reasons.
In this instance, there is no justification for assigning the case to an out-of-circuit judge who oversaw pre-trial proceedings. The circumstances do not indicate a judicial necessity for such an assignment, preventing the signing of a Certificate of Necessity as authorized by the Chief Justice. Additionally, signing the certificate would effectively remove cases from the judges originally assigned to them, which contradicts established procedures where cases revert to their original judges upon transfer back to their districts.
The chief judge's authority does not extend to reassigning cases from other judges or disrupting the random assignment process within the district. A Certificate of Necessity would only be appropriate if the presiding judge is recused or unable to serve, and local procedures cannot accommodate a reassignment. The current guidelines for intercircuit assignments are focused on judicial necessities rather than efficiency or resource preservation, despite these being valid considerations. While there is respect for Chief Judge Vratil's capabilities, any potential changes to the guidelines would need to broaden the definition of necessity to allow for greater flexibility in intercircuit assignments.
Acknowledgment is made of differing opinions from Judge Motz and the Committee on Intercircuit Assignments, which were thoroughly considered before reaching a disagreement. The author expresses the importance of clearly articulating reasons for decisions in administrative matters that significantly impact litigants. A call for open dialogue about the decision-making process is made, emphasizing the potential need for statutory or regulatory amendments. The request for a Certificate of Necessity in the cases at hand is denied.
The excerpt outlines the authority of the Chief Justice to assign judges to other circuits as per Title 28, Chapter 13 of the U.S. Code, and details the guidelines established by the Judicial Conference for such assignments. Key guidelines include:
1. A federal judge's primary responsibility is to their home court, followed by their circuit, and then to other circuits.
2. The borrowing circuit's chief judge must certify the necessity for an intercircuit assignment.
3. Circuits should forecast their needs and communicate them to the Committee.
4. Senior judges are the primary source for assignments; active judges may only be assigned if their absence won't burden their home court.
5. Judges with less than five years of experience are only assigned in limited circumstances.
6. Active judges cannot be both lent and borrowed during the same assignment period.
7. The lender/borrower rule can be relaxed with appropriate consultation.
8. The rule is waived in cases of disqualification of all judges in the borrowing circuit or in emergencies.
In cases where all judges of a circuit disqualify themselves, the chief judge will inform the Chair of the Committee on Intercircuit Assignments, who, in consultation with the Chief Justice, will appoint a judge or panel to handle the case. Judges from the borrowing circuit who have recused themselves must not be involved in this selection to prevent conflicts of interest. Courts of appeals are encouraged to have visiting judges serve for regular sessions, though short assignments of two to three days may occur to fulfill specific needs. One-day assignments are only permitted under extraordinary circumstances. A judge assigned to a district court's general calendar should serve a minimum of two weeks, while assignments for specific cases do not have date restrictions. Long-term assignments, lasting up to six months, may be granted for judges from neighboring courts or senior judges who have relocated; other long-term requests will be evaluated based on emergencies. All inter-circuit assignments must be officially approved by the Chief Justice and documented in the borrowing court, and judges should not engage in any official actions without such approval. Participation in settlement efforts does not require an inter-circuit assignment. Assignments are not allowed for non-case-specific activities like weddings or naturalization ceremonies. A visiting judge may bring up to two staff members, with the borrowing court responsible for additional personnel support. Travel by judges and their staff for inter-circuit assignments must comply with Judiciary Staff Travel Regulations. Required forms include a Certificate of Necessity and a Consent Form for Senior Judges, certifying the need for inter-circuit assignments.
Senior judges are permitted to consent to their own intercircuit assignments but must first consult with their chief circuit judges and, if applicable, chief district judges to ensure that their courts' needs are met and that there are no objections to the proposed assignments. For active judges, consent is required from their chief circuit judge or, for those in the Court of International Trade, from the chief judge of that court.
The process for initiating a formal request for an intercircuit assignment begins with a circuit chief judge submitting a Certificate of Necessity to the Committee Chair once arrangements are confirmed. If timing is critical, this Certificate can be sent via email or through the Intercircuit Assignments Database System (TCADS). Ideally, this should be done at least one month prior to the assignment. Upon receiving the Certificate, Committee staff will send a Consent to Assignment form to the relevant judge for signature, with copies sent to the respective chief judges and circuit executives.
After both the Certificate of Necessity and Consent to Assignment forms are received, the Chair will make a recommendation to the Director of the Administrative Office, who will prepare a designation order for the Chief Justice's approval. Once approved, the order will be distributed to the clerks of both the lending and borrowing courts, as well as to the circuit executives, and copies will be available to relevant chief judges and the visiting judge upon request. Permanent records of these assignments are maintained by the Administrative Office of the United States Courts.
