Non-Random Assignment of Federal Cases and Bank of America

As anyone knows who tracks the judiciary, the particular judge assigned to a case (or the panel of judges in the case of an appeal) can be outcome determinative.  Sometimes its because of personality and sometimes because of ideology.  The integrity of the system is maintained not by ensuring uniformity among judges but by ensuring that cases are assigned to decison makers in a neutral manner.  In other words, the particular judge, for all of his or her biases, is assigned to a case randomly.  For a discussion of the assignment process at the US court of appeals (and how it is not guaranteed to be neutral), see The Neutral Assignment of Judges at the Court of Appeals. 

Yet this principle is nowhere written into federal law.  Most federal district courts (unlike the US court of appeals) have a system for ensuring random assignment of cases.  This prevents parties in most cases from judge shopping, although there have been occasional efforts to game the system.  This might occur, for example, where multiple actions are filed in a case arising out of the same facts and then consolidated in a courtroom of a judge viewed as the most favorable.  See United States v. Pearson, 203 F.3d 1243, 1264 (10th Cir. 2000)("Fourth, the practice, if undertaken on a broad scale, arguably threatens the independence of the judiciary. If a judge receives case assignments not through some neutral system, but rather because of prosecutors' opinion that he or she is more favorably disposed to the government's arguments than another judge in the same district, then a judge's caseload might be based in part on prosecutors' evaluations of judicial performance.").  

There have been some high profile instances of alleged non-random assignment of cases.  For example, back in 2000, Judge Norma Holloway Johnson, then the Chief Federal Judge of the U.S. District Court (U.S.D.C.) in Washington, D.C., and a Carter appointee, was accused of going ''off the wheel'' to assign a politically senstive case involving Webster Hubbell in a non-random fashion.  As the NYT described:

• The issue stems from complaints by Republican members of Congress that Judge Johnson bypassed the usual computer-operated system that randomly assigns cases to trial judges under her for a handful of cases. Those cases involved Webster L. Hubbell, an Arkansas friend of the Clintons and former senior Justice Department official and Charlie Yah Lin Trie, a fund-raiser for the president. Judge Johnson assigned those and some other criminal cases involving associates of Mr. Clinton to four judges he named to the bench.

All of this brings us back to the Bank of America.  According to the WSJ, counsel for BofA sent a letter, dated April 22, to Judge Chin at the US District Court for the Southern District about the disposition of 15 shareholder actions against the Bank on his docket, with at least one apparently involving the acquisition of Merrill Lynch.  Judge Chin is moving to the Second Circuit so the cases will be reassigned to someone else in the Southern District. 

The Bank apparently sought to prevent automatic assignment of the cases to Judge Rakoff, who handled the case brought against BofA by the SEC.  It did so by addressing a letter to Judge Chin.  As the Journal described:

• the bank asked for the cases to be reassigned "by lot," or "such other process determined by the Assignment Committee."  It would be "incongruous" for the matter to transferred "outside the random assignment process" to Judge Rakoff given his work on the SEC case, said the letter.  

The concern likely arose out of the practice in some courts of assigning cases to judges with prior experience in the matter.  It is a form of judicial efficiency.

So what happened?  The case was not assigned to Judge Rakoff and not assigned randomly.  Again, according to the WSJ:

• In the end, random assignment wasn't used. Rather, Loretta Preska, chief judge of the U.S. district court, decided to give the cases to U.S. District Judge Kevin Castel, she said in an interview. The decision was hers to make, versus random assignment, because the matter involves several cases transferred from different districts, she said.

There is no reason to believe that the case was assigned on anything but a neutral basis.  Moreover, the letter sent by BofA apparently had no role in the decision.  According to the WSJ:  "The April 22 letter to Judge Chin, she added, didn't influence her decision. "I don't recall seeing it; I don't recall hearing of it," she said."

Nonetheless, the result is unfortunate.  The case deserved to be assigned in the usual fashion for cases in the Southern District.  If it meant sending it to Judge Rakoff because of his prior experience, so be it.  If it meant random assignment (with Judge Rakoff having an equal likelihood of receiving the case), that also would have been appropriate.  Cases ought to be assigned on an objective and standard basis, even where the chief judge has the authority to do otherwise.