Forum Shopping in the First Circuit

Those seeking to file legal challenges against the Trump Administration’s avalanche of executive actions have largely sought friendly fora in which to bring their claims. Increasingly, this appears to mean filing suit in New England, in district courts within the U.S. Court of Appeals for the First Circuit, the only federal appellate court in the nation without a single Republican appointee in active service (though there is one nominee pending).

Nate Raymond of Reuters has an interesting and informative exploration of how the First Circuit has become a forum of choice for anti-Trump Administration litigation, and includes some interesting data on how often such suits are now filed within the circuit.

A Reuters analysis found that at least 72 lawsuits challenging Trump’s policies have been filed in federal courts in those four states by plaintiffs, including Democratic state attorneys general, advocacy groups and institutions targeted by the administration. Trial court judges have made at least an initial decision in 51 of those cases, ruling against Trump in 46 of them, the analysis showed.

These have included challenges to Trump’s policies to restrict birthright citizenship, gut the U.S. Department of Education, revoke the legal status of thousands of migrants and fast-track deportations of migrants to countries other than their own – so-called “third countries” – including politically unstable South Sudan. . . .

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president’s policies, has issued 15 decisions, granting the administration’s request to set aside judicial orders only three times.

The report goes on to explain why the First Circuit would be a popular circuit in which to file these suits.

While nationwide the U.S. judiciary is closely divided among judges appointed by Democratic and Republican presidents, in these four states 17 of the 20 active federal trial judges are Democratic appointees. These states fall under the umbrella of the Boston-based 1st U.S. Circuit Court of Appeals, whose five active judges all were appointed by Democratic presidents while a Trump nominee awaits Senate confirmation. . . .

The regional federal appellate court that has jurisdiction over the most challenges this year to Trump’s policies is the one that covers Washington, D.C., as might be expected considering it is the seat of the U.S. government. But the courts under the 1st Circuit have attracted the second-most such lawsuits, according to data from Just Security, an online publication based at New York University School of Law.

The article also provides a useful explanation of forum shopping, why litigants engage in it, and how it’s not new. Too often this sort of context is missing from news reports and analyses of litigation against the Trump Administration. Among other things, the report notes that the First Circuit is, in many respects, replacing the Ninth Circuit as the preferred circuit of anti-Trump litigants. As the story notes, President Trump made ten appointments to the Ninth Circuit during his first term, “reducing the likelihood that Democratic appointees would dominate its judicial panels that decide appeals.”

President Trump has yet to make a single appointment to the First Circuit (which is also the smallest circuit court, with only six seats). As one might expect given its composition, anti-Trump suits have fared well within the First Circuit.

The 1st Circuit, in handling Justice Department appeals of rulings by these trial judges against the president’s policies, has issued 15 decisions, granting the administration’s request to set aside judicial orders only three times.

The Trump Administration has often sought Supreme Court review of the First Circuit’s failure to stay or reverse district court orders entered against it.

The Supreme Court already this year on seven occasions fully or partially put on hold judicial orders against Trump policies arising out of the 1st Circuit’s jurisdiction in cases concerning the Department of Education, legal status of migrants and third-country deportations.

But, the story also notes, the Trump Administration has not always been quick to appeal adverse judgments from the First Circuit. Rather, as I have highlighted in prior posts, the Administration has been selective, only seeking Supreme Court review of cases in which its complaints about district court overreach are particularly strong.

While the Supreme Court has backed the administration in some important cases this year arising from the 1st Circuit, the Justice Department has not yet asked the justices to review some other adverse rulings from judges in the region.

That means, for example, that decisions by judges in Boston and Providence, Rhode Island, remain in place blocking the administration’s efforts to make changes in federal elections including limits on counting mail-in ballots, cap federal research funding to universities and disfavor arts organizations seeking grant funding because they support “gender ideology.”

Just as anti-Trump litigants are being selective in deciding where to bring which cases, the Trump Administration is being selective about which cases to bring to One First Street. The result is both that a disproportionate share of suits brought against the Trump Administration are successful, and a disproportionate share of Supreme Court orders vindicate the Trump Administration’s position. But if you’ve been following my posts on this subject, you already knew that.