Executive Branch Forum Shopping

Courts agree that the federal government may not seize a person in the United States and immediately ship them off to a prison in another country without providing any opportunity for judicial review.1But this basic constitutional rule has proven difficult to enforce in court. The challenge comes not only from a defiant Executive Branch, secret orders, and midnight transfers, but also defense-side agency forum shopping.2As soon as the Supreme Court held that challenges to designation and removal under the Alien Enemies Act must be brought in the district of confinement,3the federal government moved detainees away from districts issuing protective orders to districts that have declined to act,4necessitating a dramatic late-night intervention from the Supreme Court.5

This story is an especially vivid example of defense-side Executive Branch forum shopping, a phenomenon that has gone largely unnoticed and unstudied.6Defense-side Executive Branch forum shopping refers to an Executive Branch agency, such as the Department of Homeland Security, changing how it acts for the purpose of manipulating the specific forum in which a litigant can bring a challenge. Although largely ignored in the literature, the phenomenon has caught the attention of the Supreme Court, which recently curtailed the ability of the Environmental Protection Agency to control the venue in which Clean Air Act challenges would lie.7This is a specific example of another, also largely unstudied phenomenon of defense-side forum shopping. Although we typically think of forum shopping as the province of the plaintiff, there are many instances in which defendants can control, to some extent, the forum in which challenges can be brought.

In this essay, I suggest that defense-side forum shopping in general, and Executive Branch forum shopping in particular, warrants greater attention.8I first explain what forum shopping is and the rules of jurisdiction, venue, and procedure that allow it to exist. I then explain how Executive Branch forum shopping comes about, and how courts have responded to it. The Supreme Court in particular has been hostile to interpretations of federal law that allow agencies to manipulate which court will review their actions. Finally, I argue that defense-side Executive Branch forum shopping raises different and potentially more serious concerns than forum shopping by the plaintiff, and I suggest that Congress draft jurisdictional statutes with these concerns in mind.

Forum shopping—a litigant choosing a court not for convenience, but for more favorable judges or precedent—is typically thought of as something that plaintiffs primarily do.9The plaintiff is the author of their complaint, and has latitude to craft their complaint (and, to some extent, choose the parties to the lawsuit) to get it to the forum of their choice.10For example, federal and state courts have overlapping subject matter jurisdiction, and a plaintiff with a viable federal claim can choose to bring their lawsuit in federal or state court. A plaintiff with only state law claims may be injured by multiple defendants, some of whom might defeat the complete diversity required for federal court subject matter jurisdiction, so if the stakes are high enough, the plaintiff can decide whether the suit will be litigated in federal or state court based on which defendants are named.11Indeed, one of the “twin aims of the Erie rule” that incorporates state law into federal litigation is “discouragement of forum-shopping” by minimizing the differences between federal and state courts in diversity lawsuits.12

Even within the federal courts, liberal rules of venue often provide plaintiffs with a range of choices where a lawsuit can be brought.13Unless curtailed by statute in a particular instance (of which there are many),14the default venue rules allow litigation against a federal officer or agency to be brought in any federal district court where any defendant resides or where any plaintiff resides.15Thus, a lawsuit challenging an agency decision can, but need not, be brought in the district where the agency is located, and it can also be brought where any plaintiff lives. In many lawsuits challenging agency decisions, there are many plaintiffs from all over the nation who want to bring suit. A lawyer representing these clients thus has several courts available in which they can file the suit, and can choose the one that best furthers the clients’ goals.

The propriety of forum shopping is subject to some debate,16but it is an inevitable part of our system to some extent.17There are very real costs of forum shopping, but there are significant costs to restricting fora as well. Restricting forum choices could pose substantial barriers to plaintiffs’ access to the courts, potentially forcing them to litigate in a distant courthouse at considerable expense. Consider, for example, if every person challenging the action of the federal government had to hire a lawyer able to practice in the District of Columbia, and travel to DC for whatever court conferences are required.18That would pose a severe burden on individuals seeking redress of grievances in other parts of the country.19To be sure, these concerns of convenience have considerably less force when the plaintiff is a large institutional litigant, such as a national organization or a state.20But the benefits of providing broad access to the courts tolerates, at least to some extent, forum shopping.21

Often, debates around forum shopping focus on the plaintiff.22Indeed, courts routinely give weight to the plaintiff’s choice of forum as presumptively valid.23But that only tells part of the story. Less frequently acknowledged is that defendants also forum shop, although typically less so than plaintiffs. For example, a defendant facing a lawsuit in state court that includes a federal claim (or that otherwise could have been brought in federal court) can usually remove the case to federal court, choosing that forum over the plaintiff’s choice.24A defendant can also contract with customers to include a forum selection clause that forces litigation into a particular court.25Even more drastically, a defendant can move its headquarters or place of incorporation to channel litigation to a particular forum.26For example, a newly invigorated personal jurisdiction doctrine may sometimes require a group of plaintiffs who wish to litigate together to litigate only where there is general personal jurisdiction over a defendant, and the defendant can prescribe the court where general personal jurisdiction exists by deciding where to incorporate.27These and other ways that defendants can influence forum choices should be part of the conversation whenever forum shopping is discussed.

Choosing the correct forum for suing the Executive Branch is a particularly fraught endeavor. Congress has considerable power to create, condition, and limit the jurisdiction of the lower federal courts, including the power to determine in which court challenges to agency decisions can be brought.28This gives Congress wide latitude to channel challenges to agency actions into the forum that it believes will best effectuate the relevant congressional purpose.29District courts have default federal question jurisdiction to review agency decisions,30but Congress has conditioned and divided jurisdiction to review agency decisions in a myriad of ways, stripping jurisdiction over some, and channeling other cases to a court of appeals, and sometimes directing cases to specific courts.31

Throughout the past several months, the significance of Congress’s jurisdictional choices (or, at least as statutory language is understood by the federal courts) has been outcome determinative more than once. The pattern is that a seemingly (or even blatantly) unlawful Executive Branch action is challenged in court and held to be unlawful, but ultimately the challengers are unable to obtain enduring relief because a higher court determines that the challenge can only be brought elsewhere.32Saying that a case must be brought in a particular court can sometimes have dramatic effects on the outcome: it can change the applicable precedent, which procedural rules apply, the scope of remedies, and more.

There are very real costs to jurisdictional ambiguity. A party can litigate for years only to discover that they were in the wrong court and thus everything is wiped out. Or parties (and judges) can spend enormous energy trying to resolve which court the lawsuit should be brought in. Jurisdictional rules should be clear, and anything that changes the scope of where a case can be brought should be defined as neutrally and simply as possible: bright lines are best.33But those are not always the lines drawn by Congress.

Consider, for example, a constitutional challenge to an agency rule that was initially filed in a district court.34Unfortunately for the plaintiffs, there was a direct review provision that channeled challenges to agency “orders” to the court of appeals, and required that such challenges be brought within 60 days of the order.35The plaintiffs complained that a challenge to a “regulation” was not the same as an order,36but circuit precedent had attached a different meaning to those words.37As a result, the challengers had lost their ability to bring their constitutional challenge to the agency rule.38

Because Congress has established such a complex jurisdictional morass to govern judicial review of agency action, agencies often can act strategically to implicate (or avoid) particular jurisdictional rules. This is most dramatic in the habeas context, as previewed in this essay’s opening paragraph.39After the Supreme Court held that challenges to many recent immigration seizures must be brought in a habeas suitfiled in the district of confinement,40the Department of Homeland Security concentrated detainees in locations far away from their home.

For example, consider the Government’s recent efforts to deny lawful permanent resident, Mahmoud Khalil, his ability to seek habeas relief near his home. Mr. Khalil was seized without warning from the streets of his home state of New York at 8:35 pm one evening, transferred to New Jersey at 2:00 am, and then sent to Louisiana a few hours later.41According to the Government, this meant that the only habeas challenge could be brought in Louisiana.42Remarkably, his attorneys somehow managed to file a habeas petition in the middle of the night within a matter of hours of his seizure, but, according to the Government, he had already been moved across state lines, making the petition improper in that venue.43

The federal government’s attempt to invoke the Alien Enemies Act and remove noncitizens without any opportunity for judicial review is an even more dramatic example of forum-shopping. The Supreme Court had clarified that individuals subject to removal from the United States under the Alien Enemies Act had a right to judicial review.44In response, individuals fearful of removal filed a class habeas petition in various districts, including the Southern District of Texas, which granted a class-wide temporary restraining order to everyone detained in the Southern District of Texas.45The Department of Homeland Security then moved individuals it planned to remove to the Northern District of Texas, which declined to issue a temporary restraining order.46In response, an ACLU attorney alleged that the federal government “was finding Venezuelan men, rounding them up and shipping them to the Northern District of Texas.”47It would not matter how many other districts entered district-wide preliminary injunctive relief; the Department of Homeland Security’s plan appears to be that it can avoid judicial review by housing detainees in the Northern District of Texas. Only an extraordinary late-night emergency injunction from the Supreme Court ensured that individuals would not be removed without appropriate notice.48

These steps were extraordinary, but the Executive Branch’s latitude to prescribe where challenges can be brought often takes a less dramatic form. Congress frequently prescribes particular jurisdictional rules for particular types of agency decisions, which can allow agencies the opportunity to act in a particular way to implicate or avoid a particular court. However, the Supreme Court has been hostile towards the possibility of Executive Branch forum shopping, narrowly interpreting jurisdictional statutes in an effort to limit the ability of agencies to manipulate the forum where litigation will be brought.

Consider just a few examples. The Clean Air Act provides that challenges to “nationally applicable” EPA decisions must be brought in the D.C. Circuit, while regional decisions may be brought in the “appropriate” circuit.49The Clean Air Act further provides that the D.C. Circuit is the sole court to hear challenges to any “action [that] is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”50Resolving a circuit split, the Supreme Court was troubled by the idea that the agency could have “unfettered control over venue,” speculating about the fear of agency “gamesmanship.”51In response, the Court announced a new test for determining jurisdiction to review EPA decisions, which limited the power of the agency, and increased the power of courts, to decide where challenges could be brought.52

Other judicial review provisions change forum based on whether an agency decision was based on particular statutory grants of authority, and agencies may have multiple authorities that might sustain an action.53Can an agency choose its court by citing (or not citing) a statutory provision that implicates a narrow review provision? The D.C. Circuit thought the answer was yes: “the statutory authority claimed by an agency will determine which courts have jurisdiction to review its actions.”54Although “[a]rguably, the FDA could have promulgated the regulation” under a statutory provision that would trigger direct review, there was no jurisdiction because the agency did not cite that statute.55In contrast, the Second Circuit thought that “although [the agency] failed to cite to the [specific statute] as the basis for its rulemaking authority, we believe the power to do so derives, if at all, from Congress’s general grant of authority” to the agency under that statute, thus triggering a direct review provision.56The Supreme Court eventually rejected the argument that an agency’s “passing invocation” of a statute “control[led] our interpretive inquiry” into the applicability of a direct review statute, at least when the statute did not purport to give the agency the power to act as it did.57Thus, the Court seemed to recognize the potential perils of agency forum shopping and declined to give weight to let the agency control jurisdiction in that particular case.

Despite the Supreme Court’s efforts to limit the Executive Branch’s latitude to select a forum, it is likely impossible to eliminate it completely, at least as long as Congress insists on providing specific jurisdictional rules for particular types of agency action. For example, Congress sometimes provides that challenges to regulations go directly to a court of appeals, but adjudications can be challenged in the district court, or vice versa.58The Administrative Conference of the United States recently encouraged Congress to channel challenges to agency rules directly to a court of appeals only when they are “promulgated using notice-and-comment procedures.”59Yet agencies often have wide discretion in whether they proceed by rulemaking, adjudication, or something else,60and are not necessarily required to proceed through notice-and-comment rulemaking.61Thus, when jurisdictional rules depend on the nature of the agency action, the agency has the discretion of choosing its judicial forum by choosing the way in which it acts. Unless Congress prescribes one universal jurisdictional rule that applies to everything the Executive Branch does, there will be some potential for agencies to pick their reviewing court.

The stakes of judicial review of the Executive Branch can be enormous. As demonstrated by the federal government’s use of midnight transfers to try to avoid judicial enforcement of constitutional rights, the Executive Branch’s manipulation of forum options can have tremendous consequences for the rights of those in the United States. Most other circumstances are of a more benign valence, but the consequences to litigants and the judiciary can be substantial.

There are several reasons to be more skeptical of defense-side forum shopping, at least when conducted by the federal government. Plaintiff-side forum shopping in the federal courts typically involves exploiting rules of venue, and courts have discretion to transfer cases to a different venue if convenience, consolidation, or other interests favor it.62Defense-side forum shopping, in contrast, often forces the plaintiff to litigate in a particular court by using jurisdictional rules to limit the range of courts in which a challenge could be brought.

Jurisdictional constraints often come with greater consequences than venue. For one, jurisdictional constraints remove judicial discretion to transfer the case to a more convenient forum. While venue constraints can be forfeited,63jurisdiction can be raised late into the litigation—even on appeal. A litigant who is unsure of which court to bring a suit in, or who guesses wrongly, could very well find themselves foreclosed by statutes of limitations.64Given these consequences, courts typically prefer clear jurisdictional lines.65Allowing an agency to influence the court’s jurisdiction muddies what should be clear rules.

Jurisdictional rules often have tremendous implications beyond which forum a case must be litigated in. Many statutes restricting or channeling challenges to specified agency decisions come with tight time limits—perhaps 30 or 60 days66—while unchanneled agency challenges can take advantage of the relatively leisurely 6-year statute of limitations default rule.67Choosing the court can also mean choosing the statute of limitations that governs, which may foreclose late litigation altogether. Moreover, jurisdictional constraints can limit the scope of relief available to a litigant. Forcing a litigant to litigate in the Court of Claims, for instance, limits the type of relief available.68If an agency can manipulate where a case can be brought, it also can sometimes dictate substantive features of the litigation.

There are structural consequences for the judiciary as well. By limiting the range of courts that can weigh in on an issue—including, potentially, to just one court—the stakes of the first litigation become much more pronounced. If a litigant has a choice of several courts to challenge an agency policy, chooses poorly, and loses, that would generally not foreclose another similarly situated litigant from challenging the same policy in another court. The Supreme Court has praised the possibility of conflicting decisions as a virtue, allowing percolation of legal issues and generating circuit splits to highlight what issues warrant the Court’s attention.69Allowing the agency to channel litigation into fewer courts poses a threat to both litigants’ rights and to the decision-making structure of the judiciary.

Debates over the propriety of forum shopping—on either side of the “v”—will continue, but there is little doubt that forum shopping can have outcome-determinative consequences. No debate over forum shopping is complete if it only focuses on the plaintiff. Defense-side forum shopping by the Executive Branch can distort judicial review even more than similar selection tactics engaged in by challengers, and even foreclose effective judicial review altoge