In re Motor Fuel Temperature Sales Practices Litigation

IN RE MOTOR FUEL

TEMPERATURE SALES PRACTICES

LITIGATION

D.C. No. 2:07-md-01840-KHV-JPO

United States Court of Appeals

Ninth Circuit

Filed March 19, 2013

OPINION

KOZINSKI, Chief Judge:

     The administrative matter pending before me concerns three cases that had originally been filed in three separate districts in California:

Lerner v. Costco Wholesale Corp., No. 2:07-cv-01216-GHKFMO (C. D. Cal.)

Rushing v. Alon USA, Inc., No. 4:06-cv-07621-PJH (N.D. Cal.)

Wyatt v. B.P. America Corp., No. 3:07-cv-01754-BTMJMA (S. D. Cal.)

     These cases were referred (along with others) to the District of Kansas by the Judicial Panel on Multidistrict Litigation for consolidated pretrial proceedings pursuant to 28 U.S.C § 1407. These proceedings were conducted before the Honorable Kathryn H. Vratil, Chief Judge of that district. Pretrial proceedings apparently having concluded, Chief Judge Vratil has decided to ask the Multidistrict Panel to remand these cases back to California for trial. So far as I?m aware, that transfer hasn?t yet occurred, but I have no doubt that it will.

     On remand, the cases would normally be returned for trial to the judges before whom they were previously pending. In this case, however, Chief Judge Vratil has graciously indicated her willingness to travel to California to conduct the trial(s). Because Chief Judge Vratil?s duty station is in the Tenth Circuit, she may only preside over a trial in the Ninth Circuit with the approval of the Chief Justice of the United States. 28 U.S.C. § 292(d).

     The Chief Justice has adopted Guidelines for the Inter-circuit  Assignment of Article III Judges (approved by the Chief Justice Feb. 16, 2012). See Appendix A. These procedures operate roughly as follows: A federal court in our circuit identifies a need for a visiting judge for a case or cases pending in that court. The need may be occasioned by a shortage of judges, or by the recusal or disqualification of all of the court?s judges; it may concern a single case or a multitude of cases; it may be for a single trial or hearing, or it may apply to scores of them. If the need can?t be satisfied by judges within the circuit, our Circuit Executive and her trusty staff identifies a judge or judges outside the circuit who are available and willing to serve. In this effort, they?re immensely aided by the Judicial Conference Committee on Inter-circuit  Assignments, whose invaluable and frequent help I gratefully acknowledge.

     Once a willing out-of-circuit judge has been identified, the chief judge of the borrowing circuit signs a Certificate of Necessity, which, not surprisingly, represents that an out-of-circuit judge is needed for a particular case, location or time period. See Appendix B. If the judge being requested is an active judge, the chief judge of the lending circuit must sign a Consent to Assignment, expressing approval of the transfer based on an assessment that the sound administration of justice in the lending circuit won?t be impaired by the temporary departure of the judge in question. See Appendix C.

     In practice, the Committee on Inter-circuit  Assignments and its fine staff at the Administrative Office of the United States Courts, operates more informally--and usefully--as a clearinghouse for judges willing to take out-of-circuit assignments and circuits needing judicial help from visiting judges. The committee regularly sends inquiries to senior judges in the various circuits as to their willingness to serve outside their circuits, should the need for their services arise. Committee members and staff will also contact judges directly and encourage or implore them to accept Inter-circuit  assignment when there?s an unmet need. As a circuit that?s perpetually short of judicial officers, particularly in the district courts, the Ninth Circuit is a frequent beneficiary of the committee?s ceaseless and effective efforts.

     The request for a Certificate of Necessity now pending before me is unusual in that it didn?t originate as a request from one of the courts in our circuit. 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. Doubtless, each of the districts could use judicial help; our hardworking district judges are severely overburdened and could benefit from a substantial reduction in workload. Such routine overburdening 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 overburdening, 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 then, our first recourse is to try to fill the need by bringing in a visiting judge from another court within the circuit. Only if this isn?t possible do we seek the assistance of out-of-circuit judges. This is consistent with first of the Chief Justice?s Guidelines, which states as follows: ?A federal judge has responsibility: first, to the particular court of which he or she is a member; second, to the other courts within his or her own circuit; and third, to courts outside his or her circuit.? Appendix A. I interpret this as reflecting the converse responsibility of seeking out-of-circuit help only if the need can?t be filled by judges from other courts within the circuit.

     The proposed Inter-circuit  assignment that?s now pending before me doesn?t meet the profile for such an assignment. 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.

     Nevertheless, a good case can be made that the assignment of Chief Judge Vratil will serve the interests of judicial efficiency. Indeed, in referring the matter to me, Judge J. Frederick Motz of the District of Maryland, speaking as chairman of the Committee on Inter-circuit  Assignments, strongly endorsed such Inter-circuit  assignments following the conclusion of pretrial proceedings in multidistrict litigation:

I have encouraged MDL judges to take Inter-circuit  assignments to try cases in transferor courts if the MDL cases cannot be resolved pretrial. We think that promotes judicial efficiency (1) by helping to prevent MDL cases from starting over and going to the back of the docket of transferor courts when the MDL Panel remands the cases for trial to the transferor courts, (2) by drawing on the knowledge that the MDL judge has obtained by her/his work on pretrial issues, (3) giving MDL judges control over their proceedings, and (4) maximizing the federal judiciary?s use of excellent and willing judges . . . in the MDL process.

     I note, however, that Judge Motz?s position is not unanimously endorsed by all members of the committee. Judge Nathaniel M. Gorton of the District of Massachusetts has expressed a contrary view:

I believe that I come at the question from a slightly different angle . . . . 28 U.S.C. § 1407 seems pretty clear to me to require that each action transferred pursuant to its provisions ?shall be remanded . . . to the district from which it was transferred.? That, together with my reading of . . . Supreme Court [precedent] leaves the impression that [no] transferee judge can ?self-assign? MDL cases to herself/himself. It seems to follow therefrom that transferee judges also should not seek (or accept), without unanimous consent, Inter-circuit  assignments to try cases the pretrials of which they have just supervised.

     Defendants in these cases have objected to Chief Judge Vratil?s Inter-circuit  assignment on a number of grounds. Their most forceful argument is based on Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). They argue that allowing the MDL judge to follow the cases after the conclusion of pretrial proceedings resuscitates the self-referral practice that the Supreme Court unanimously repudiated in Lexecon. See 523 U.S. at 40.

     While this argument has some force, I don?t ultimately find it convincing. Lexecon dealt with venue, not judicial case assignment. The Lexecon Court held that a plaintiff is entitled to select the venue where the case will be tried, and this right can?t be undermined by having the case transferred for pretrial proceedings under the MDL process. Lexecon, 523 U.S. at 40?41. Venue is important for a number of practical reasons, such as ease of access to the forum by plaintiffs and their lawyers and, perhaps most important, selection of the jury pool. Venue does bear on which judge will be assigned to the case, as one of the judges of that district will normally preside, but there?s no guarantee of that. As explained, judges from other districts, even other circuits, may be assigned for a variety of administrative reasons.

     I therefore don?t see Lexecon as an impediment to assigning a case to the out-of-circuit judge who presided over pretrial proceedings, if the transfer is otherwise justified. But, I am unable to find such a justification. As noted, the circumstances here don?t disclose a judicial necessity for an out-of-circuit assignment, so I don?t believe that I can sign such a certificate under the authority delegated to me by the Chief Justice.

     Also troubling is the fact that, by signing the certificate, I?d be divesting Ninth Circuit district judges of cases that would, in the normal course, be assigned to them. Each of the cases was assigned to a local district judge prior to the MDL transfer. It?s my understanding that, when cases are transferred back to the originating districts, they?re automatically restored to the dockets of the judges to whom they had been assigned prior to the transfer. Or, if the judge isn?t available, the case is assigned to another district judge in that district, in accordance with local procedures--generally calling for random assignment.

     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. I?m aware of no authority empowering the chief judge of the circuit to reassign 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.

     More generally, it seems to me that the process of transferring judges between circuits, as delimited by the Chief Justice?s Guidelines, is directed strictly toward meeting judicial necessities, whereas the transfer in this case would serve a different purpose. As Judge Motz explains in the passage quoted above, having the district judge who conducted MDL pretrial proceedings also preside over the trial of the case can improve judicial efficiency, preserve scarce judicial resources and enhance MDL judges? control over their proceedings. These are worthy goals, to be sure, but not ones in any way reflected in the Guidelines for the Inter-circuit  Assignment of Article III Judges, as currently in force. Perhaps the Guidelines could be amended to define the concept of ?necessity? broadly and thereby give chief circuit judges latitude to seek Inter-circuit  assignment in these circumstances, but I don?t see any way of construing the current Guidelines to give me such authority.

     In so concluding, I don?t mean to suggest that Chief Judge Vratil would be incapable or ill-suited to handling the cases in our circuit. Chief Judge Mary Beck Briscoe of the Tenth Circuit has assured me that Chief Judge Vratil is a well-respected, experienced and effective district judge. I very much appreciate Chief Judge Vratil?s willingness to help with our workload, and I hope that she?ll consider doing so in the many other cases where we have a well-documented necessity for judicial help from outside the circuit. I acknowledge the contrary views of Judge Motz and a majority of the Committee on Inter-circuit  Assignments, which I have carefully considered; it pains me to disagree with the well-considered views of my distinguished colleagues.

     In disagreeing, however, I think it useful to set forth and publish my reasons. 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. 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.

     For the reasons expressed, I deny the request for a Certificate of Necessity in these cases.

COUNSEL

Thomas V. Bender, Walters Bender Strohbehn & Vaughan, P.C., Kansas City, MO, for plaintiffs.

Tristan L. Duncan, Shook, Hardy & Bacon, LLP, Kansas City, MO; Laurence H. Tribe, Cambridge, MA; Jonathan S. Massey, Massey & Gail, LLP, Chicago, IL; and Stephen R. McAllister, Thompson Ramsdell & Qualseth, P.A., Lawrence, KS, for defendants Circle K. Stores, Inc., 7-Eleven, Inc., Flying J., Inc. and Pilot Travel Centers LLC.

Thomas J. Heiden, Latham & Watkins LLP, Chicago, IL, for defendant Chevron U.S.A., Inc.

Jane E. Willis, Ropes & Gray LLP, Boston, MA, for defendants Petro Stopping Centers, L.P. and TravelCenters of America LLC.

Earsa R. Jackson, Strasburger & Price LLP, Dallas, TX, for defendant The Kroger Co.

Michael G. Romey, Latham & Watkins LLP, Los Angeles, CA, for defendant World Oil Corp.

Mark B. Gilmartin, Law Offices of Mark B. Gilmartin, Santa Monica, CA, for defendant United El Segundo, Inc.

Kenneth A. Ehrlich, Jeffer Mangels Butler & Mitchell LLP, Los Angeles, CA, for defendants G & M Oil Company, Inc. and G & M Oil Co., LLC.