Kozinski Denies Judge’s Intercircuit Transfer Offer

(CN) - After punting gas station litigation out of Kansas, the head of that court cannot still preside over the trials, 9th Circuit Chief Judge Alex Kozinski said.

The Judicial Panel on Multidistrict Litigation originally scheduled pretrial hearings in the U.S. District Court for the District of Kansas for a trio of 9th Circuit cases over point-of-sale fuel temperature practices at gas stations. Title 28 of the U.S.C. allows civil actions pending in different districts, involving one or more questions of common fact, to be transferred to any district for coordinated and consolidated pretrial proceedings.

After concluding the pretrial work, Chief U.S. District Judge Judge Kathryn Vratil sent the cases back to California for trial. Normally the cases go back to their original courts, but the Kansas City-based Vratil apparently indicated that she would be willing to leave the 10th Circuit, travel to California and conduct the trials there.

Vratil may only preside over a trial in the 9th Circuit with the approval of the chief justice of the United States. Typically, those assignments come out of need - a shortage of judges, the recusal of all of a court's judges - and the circuit's chief judge then signs a certificate of necessity indicating that need.

While 9th Circuit Chief Judge Alex Kozinski acknowledged that his court is "perpetually short of judicial officers, particularly in the district courts," he refused Vratil's offer on Tuesday because it did not stem from the request of a shorthanded district.

"Neither I nor our circuit executive has been contacted by the chief judges of the Northern, Central or Southern Districts of California representing that there's a need for an out-of-circuit judge to handle these cases upon remand to their respective districts," Kozinski wrote. "Doubtless, each of the districts could use judicial help; our hard-working district judges are severely overburdened and could benefit from a substantial reduction in workload. Such routine over-burdening does not, however, generally give rise to the necessity for a visiting judge, much less a visiting judge from another circuit.

"Only severe or unexpected over-burdening, as happens when a judge dies or retires, when the district is experiencing a judicial emergency or when all the judges are recused because of a conflict, will warrant bringing in a visiting judge."

Even in those instances, the circuit first tries to fulfill its need by bringing in a judge from another court within the circuit, Kozinski said. It resorts to going outside the circuit when there are no other options.

"The proposed inter-circuit assignment that's now pending before me doesn't meet the profile for such an assignment," Kozinski wrote. "In order to fulfill my role in effecting this assignment, therefore, I'd have to sign a form certifying that there's a necessity for it, even though I'm aware of no such necessity."

But the chief judge conceded that assigning Vratil to the trials makes sense from a judicial efficiency standpoint, a point made to him by Maryland-based U.S. District Judge J. Frederick Motz of Maryland, the referring judge and the chairman of the Committee on Intercircuit Assignments.

Motz believes sending the judges along to the transferring court to conduct the trials prevents the cases from going back to square one and draws on the knowledge obtained by the judge during pretrial proceedings, Kozinski explained.

He added, however, that others on the committee do not share Motz's enthusiasm for the practices. Boston-based U.S. District Judge Nathaniel Gordon wrote that "my reading of ... Supreme Court [precedent] leaves the impression that [no] transferee judge can 'self-assign' MDL [multi-district litigation] cases to herself/himself. It seems to follow therefrom that transferee judges also should not seek (or accept), without unanimous consent, intercircuit assignments to try cases the pretrials of which they have just supervised."

Kozinski said that the gas station defendants also object to allowing Vratil to continue hearing their trials.

"Their most forceful argument is based on Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach," Kozinski wrote. "They argue that allowing the MDL judge to follow the cases after the conclusion of pre-trial proceedings resuscitates the self-referral practice that the Supreme Court unanimously repudiated in Lexecon."

While the Lexecon argument does not necessarily impede Vratil's continued assignment, Kozinski said he did not want to take the cases out of the hands of California's federal judges either.

"By signing a Certificate of Necessity for the cases in question, I would, in effect, be removing the judges to whom the cases were originally assigned and transferring them to an out-of-circuit judge," Kozinski wrote. "I'm aware of no authority empowering the chief judge of the circuit to re-assign cases pending before other judges, or to remove cases from the district's assignment wheel. Only if the presiding judge is recused or unable to serve, and the local district is unable to reassign the case according to its local procedures, will the chief judge of the circuit be called upon to bring in a judge from outside the district. For me to sign a Certificate of Necessity in the absence of such circumstances would constitute a serious encroachment on the autonomy of the district courts and also interfere with the random assignment of cases."

Even in his denial of Vratil's appointment, Kozinski called on the Committee on Intercircuit Assignments to clarify or amend its own rules in the future.

"Too often, such administrative matters, which have enormous consequences for litigants, are decided without a clear expression of reasons, and often without the knowledge of the parties and lawyers affected," Kozinski wrote. "If my reasons are persuasive, I hope others will follow them. If they aren't persuasive, I hope other judges in my position will state their own reasons and persuade me. Or, perhaps, the applicable statutes, rules and regulations may need to be amended. I hope that this opinion will be the beginning of a productive discussion as to the proper way to handle situations such as that described above."

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