Coastal Judges Play Keep-Away From The Fifth Circuit
Fights over forums are not new. Long before national injunctions flew from Amarillo and San Francisco, the executive branch sought to control were legal challenges could be filed. Perhaps the most prominent such recent example was Guantanamo Bay. The Bush Administration detained enemy combatants on the military base to avoid federal habeas jurisdiction. That plan, however, did not work out. In a series of cases leading to Boumedienne v. Bush (2008), the federal courts in the District of Columbia asserted jurisdiction over Guantanamo Bay.
However, the Bush Administration did secure a venue victory in another case: Rumsfeld v. Padilla (2004). At the time, the Fourth Circuit was considered the most conservative circuit in the country. And in that case, the Bush Administration detained Jose Padilla, a declared “enemy combatant,” in a South Carolina military prison. A habeas suit was brought in the Southern District of New York. The Supreme Court held that the suit was not proper in New York. Rather, “for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.”
That past brings us to the present. In two prominent cases, the Trump Administration has taken actions to keep legal challenges within the Fifth Circuit. And in both cases, judges on the East Coast have played keep-away from the Fifth Circuit.
The first case is Trump v. J.G.G. In this case, aliens were held at a facility in Texas. They were then loaded on a plane bound for El Salvador. Around the same time, Judge Boasberg in the District of Columbia ordered this operation to be halted immediately. Yet, there was a threshold issue: was the federal court in the District of Columbia the proper court to even bring this suit? Last time I checked, the federal courts in Texas remain operational–true, they are far less busy now then they were before the inauguration. The obvious response is that the ACLU did not want this case anywhere near the conservative Fifth Circuit. But sometimes a strategic choice can backfire.
The Solicitor General’s emergency application in J.G.G. explains that Texas, and not D.C., was the only forum where a habeas claim could have been brought. The SG further argues that a claim under the Administrative Procedure Act (APA) is not proper under the Alien Enemies Act (AEA). (That was too many acronyms in one sentence.)
Habeas claims, however, must be brought only in the district of detention— and that is not where respondents sued. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). Respondents should have brought habeas claims in the Southern District of Texas. Yet they filed in the District of Columbia. Respondents may not leverage the APA to attack the President’s exercise of authority under the Alien Enemies Act in a forum of their choosing. See Ludecke, 335 U.S. at 164. The APA is a particularly poor fit given that APA review extends only to “agency action” and not to action “of the President” like the Proclamation. Franklin v. Massachusetts, 505 U.S. 788, 796 (1992); see App., infra, 80a (Walker, J., dissenting).
Somewhat perplexingly, Judge Henderson’s controlling opinion declined to resolve the venue/habeas/APA question:
The decisions below disregarded the problem. Indeed, no majority of D.C. Circuit panel rejected the habeas argument. Only Judge Millett concluded that respondents’ “claims are not habeas claims and do not sound in habeas.” App., infra, 63a. By contrast, Judge Walker, in dissent, opined that respondents’ claims sound in habeas a
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