Short title

This Act may be cited as the

Blocking Overt Attempts at Shopping By Enforcing Randomization Guidelines Act

or the

BOASBERG Act

Purpose

The purpose of this Act is to promote confidence in the impartiality of the judiciary and prevent undue influence in the assignment of cases in the Federal courts by mandating the courts implement processes to randomly assign cases amongst judges and reassign cases in limited circumstances following intervention by the Supreme Court of the United States.

Randomized case assignments in district courts; reassignment following supreme court intervention

Section 137 of title 28, United States Code, is amended by adding at the end the following:

(c)

Random assignment of civil proceedings

(1)

In general

Notwithstanding subsection (a), all district courts shall adopt and observe a rule mandating the random assignment of all civil cases. The rule shall ensure that no party, attorney, or judge (including a chief judge) may select, direct, or influence the assignment of any case to a particular judge.(2)

Exceptions

A case may be reassigned from its randomly assigned judge only under the following circumstances:(A)If the assigned judge is required to recuse or is otherwise disqualified under Federal law or judicial ethics rules.(B)If a case is substantially related to a currently pending case before another judge in the same district, the assigned judge may, at the discretion of that judge, consolidate or reassign the case for judicial efficiency if the court issues a memorandum required under paragraph (5)(B).(C)If the chief judge of the district, publicly and with the consent of a majority of active judges in the district, certifies that for good cause and in the interest of docket efficiency a case needs to be reassigned from the randomly assigned judge, provided that the reassignment is not based on the identity of the parties or attorneys involved or the nature or subject matter of the case.(D)In a circumstance described in subsection (d)(2).(3)

Declining a case assignment

A judge may not decline a case after the case has been randomly assigned to that judge. A judge designated as the emergency on-call judge for a period may not decline a case assigned during that period.(4)

Rules for chief judges

A chief judge of a district court shall not self-assign cases outside the randomized process. The chief judge of a district court shall not use the position of chief judge to influence the assignment of any case.(5)

Transparency

(A)

In general

All district courts shall publicly post and disclose any rules, orders, policies, or plans regarding the assignment of civil cases.(B)

Memorandum

In any civil case where a judge cannot be randomly assigned, or a case is reassigned, the district court shall publicly issue a memorandum indicating that fact and explaining why the case could not be randomly assigned or was reassigned.(C)

No posting of rules

(i)

In general

To prevent circumvention of random case assignment, district courts shall not publicly post or disclose any rules, orders, policies, or plans regarding the identity of the judge on-call for emergencies.(ii)

Rule of construction

Nothing in this subparagraph shall be interpreted to limit the requirements of subparagraphs (B) or (D).(D)

Statistical report

The clerk of the court shall annually publish a statistical report summarizing case assignments, including reassignment rates and reasons for reassignments.(6)

Protecting random assignment

Any attempt to manipulate or evade the randomized case assignment system shall be subject to—(A)in the case of offending conduct by a lawyer, sanctions, including potential case dismissal or disciplinary action;(B)in the case of offending conduct by a judge, the judicial misconduct process; or(C)in the case of offending conduct by a court employee, disciplinary action, including potential termination of employment.(7)

Senior judges

Case assignments for senior judges shall be random to the greatest extent possible. Nothing in this section shall be construed to impede the assignment of cases to senior judges.(8)

Rules of construction

Nothing in this subsection shall be construed—(A)to prevent district courts from assigning cases filed within a division to 1 or more judges; or(B)to affect the ability of a senior judge to take on a reduced caseload.(d)

Reassignment after erroneous rulings

(1)

In general

Notwithstanding any other requirement, in any circumstance described in paragraph (2), a case or controversy shall be reassigned, through a random assignment process, from the assigned district judge to another district judge within the district. If no such judge is available in the same district, the case or controversy shall be reassigned, through a random assignment process, to another available district judge within the circuit, to the extent practicable and consistent with applicable law.(2)

Circumstances described

The circumstances described in this paragraph are circumstances in which the Supreme Court of the United States—(A)vacates or reverses, in whole or in part, the judgment of the district court;(B)vacates or reverses, in whole or in part, an injunction granted by the district court;(C)vacates or reverses, in whole or in part, the judgment of the court of appeals that affirmed the district court in relevant part;(D)issues an extraordinary writ authorized by section 1651 in the case;(E)issues a stay (other than an administrative stay) of an order of the district court;(F)issues an injunction where the district court had declined to issue such an injunction;(G)issues a writ of prohibition or mandamus involving the assigned district judge related to the case;(H)issues a writ of habeas corpus where the district court declined to issue such a writ and the prisoner is a Federal officer described in section 1442.

Randomized panel and case assignments in the circuit courts

Section 46(b) of title 28, United States Code, is amended—(1)by striking (b) In and inserting the following:

(b)(1)In

; and

(2)by striking the third sentence and all that follows through the end and inserting the following:

(2)In each circuit, the court shall adopt and observe a rule providing for the random assignment of judges to such panels. The rule shall ensure that no party, attorney, or judge (including a chief judge) may select, direct, or influence the assignment of any judge to a particular panel.(3)In each circuit, the court shall adopt and observe a rule providing for the random assignment of such panels to cases and controversies. The rule shall ensure that no party, attorney, or judge may select, direct, or influence the assignment of any panel to a particular case or controversy.(4)A judge may be reassigned from a randomly assigned panel, and a panel may be reassigned from a randomly assigned case or controversy, only under the following circumstances:(A)If an assigned judge is required to recuse or is otherwise disqualified under Federal law or judicial ethics rules.(B)If a case or controversy is substantially related to a currently pending case or controversy before another panel in the circuit, that panel may, at its discretion, consolidate or reassign the case for judicial efficiency.(C)If the chief judge of the circuit, publicly and with the consent of a majority of active judges in the circuit, certifies that for good cause and in the interest of docket efficiency a case needs to be reassigned from the randomly assigned panel, provided that such reassignment is not based on the identity of the parties or attorneys involved or the nature or subject matter of the case.(5)Notwithstanding anything in this subsection to the contrary, the United States Court of Appeals for the Federal Circuit shall determine by rule a procedure for the rotation of judges from panel to panel to ensure that all of the judges sit on a representative cross section of the cases heard and, notwithstanding the first sentence of this subsection, may determine by rule the number of judges, not fewer than three, who constitute a panel.(6)A judge may not decline an assignment to a panel, and a panel may not decline an assignment to a case or controversy, after the relevant random assignment process. A judge assigned as an emergency on-call judge or to an emergency on-call panel for a period shall not decline a case during that period. A panel assigned to be on-call for emergencies for a period shall not decline a case during that period. Nothing in this paragraph shall be construed to affect the ability of a senior judge to take on a reduced caseload.(7)A chief judge of a circuit shall not self-assign to a panel, or self-assign a panel on which he or she sits to a case or controversy, outside the randomized process. The chief judge of a circuit shall not use the position of chief judge to influence the assignment of any judge to a panel or any panel to any case or controversy.(8)(A)All circuit courts shall publicly post and disclose any rules, orders, policies, or plans regarding the assignment of civil cases.(B)In any civil case where a judge cannot be randomly assigned to a panel or a panel cannot be randomly assigned to a case or controversy, or where a judge is reassigned from a panel or a panel is reassigned from a case or controversy, the circuit court shall publicly issue a memorandum indicating that fact and explaining why the judge, panel, or case could not be randomly assigned or was reassigned.(C)(i)To prevent circumvention of random panel and case assignment, circuit courts shall not publicly post or disclose any rules, orders, policies, or plans regarding the identity of the judges or panel on-call for emergencies.(ii)This subparagraph shall not be interpreted to limit the requirements of subparagraphs (B) or (D).(D)The clerk of the court shall annually publish a statistical report summarizing case assignments, including reassignment rates and reasons for reassignments.(9)Any attempt to manipulate or evade the randomized case assignment system shall be subject to—(A)in the case of offending conduct by a lawyer, sanctions, including potential case dismissal or disciplinary action;(B)in the case of offending conduct by a judge, the judicial misconduct process; or(C)in the case of offending conduct by a court employee, disciplinary action, including potential termination of employment.(10)Panel assignments for senior judges shall be random to the greatest extent possible. Nothing in this section shall be construed to impede the assignment of senior judges to panels.

(11)(A)Nothing in this subsection shall be construed to prohibit a court of appeals from maintaining separate randomized procedures for merits panels, motions panels, emergency panels, screening panels, or other categories of appellate business.(B)The procedures described in subparagraph (A) shall prohibit any party, attorney, or judge from selecting, directing, or influencing the assignment of a particular judge or panel to a particular case or controversy.

Random assignment to three-judge district courts

(a)

In general

Chapter 155, of title 28, United States Code, is amended—(1)in section 2284(b)(1), in the first sentence, by striking designate two other judges, at least one of whom shall be a circuit judge and inserting cause two other judges, at least one of whom shall be a circuit judge, to be designated through the random assignment or designation process required under section 2285; and(2)by adding at the end the following:

2285.

Random assignment and designation for three-judge district courts

(a)

In general

In each circuit, the court shall adopt and observe a rule providing for the random assignment or designation of judges from the relevant pools of district and circuit judges to three-judge district courts in any action required to be heard and determined by a district court of three judges. The rule shall ensure that no party, attorney, or judge (including a chief judge) may select, direct, or influence the assignment of any judge to a particular three-judge court.(b)

Exceptions

A judge may be reassigned or redesignated from a randomly assigned or designated three-judge district court only under the following circumstances:(1)If an assigned or designated judge is required to recuse or is otherwise disqualified under Federal law or judicial ethics rules.(2)If a case or controversy is substantially related to a currently pending case or controversy before another three-judge court in the circuit, that three-judge court may, at its discretion, consolidate or reassign the case for judicial efficiency.(3)If the chief judge of the circuit, publicly and with the consent of a majority of active judges in the circuit, certifies that for good cause and in the interest of docket efficiency a judge needs to be reassigned or redesignated from the randomly assigned or designated court, provided that such reassignment or redesignation is not based on the identity of the parties or attorneys involved or the nature or subject matter of the case.(c)

Declining panel or case assignments

A judge may not decline an assignment or designation to a three-judge district court after the random assignment or designation process. Nothing in this subsection shall be construed to affect the ability of a senior judge to take on a reduced caseload.(d)

Rules for chief judges

A chief judge shall not self-assign or self-designate to a three-judge district court outside the randomized process. A chief judge shall not use the position of chief judge to influence the assignment or designation of any judge to a three-judge district court.(e)

Transparency

(1)

In general

All circuit courts shall publicly post and disclose any rules, orders, policies, or plans regarding the random assignment or designation of judges to three-judge district courts.(2)

Memorandum

In any civil case where judges cannot be randomly assigned or designated to a three-judge district court, or where a judge is reassigned or redesignated from a three-judge district court or a three-judge district court is reassigned or redesignated from a case or controversy, the circuit court shall publicly issue a memorandum indicating that fact and explaining why the judge, three-judge district court, or case could not be randomly assigned or designated, or was reassigned or redesignated.(3)

Report

The clerk of the court shall annually publish a statistical report summarizing three-judge district court assignments and designations, including reassignment or redesignation rates and reasons for reassignments or redesignations.(f)

Protecting random assignment

Any attempt to manipulate or evade the randomized assignment or designation system shall be subject to—(1)in the case of offending conduct by a lawyer, sanctions, including potential case dismissal or disciplinary action;(2)in the case of offending conduct by a judge, the judicial misconduct process; or(3)in the case of offending conduct by a court employee, disciplinary action, including potential termination of employment.(g)

Senior judges

Three-judge district court assignments or designations for senior judges shall be random to the greatest extent possible. Nothing in this section shall be construed to impede the assignment or designation of senior judges to three-judge district courts.

(b)

Technical and conforming amendment

The table of sections for chapter 155 is amended by adding at the end the following:

2285. Random assignment and designation for three-judge district courts.

Implementation

Not later than 120 days after the date of enactment of this Act, the district courts of the United States and the courts of appeals of the United States shall promulgate the rules required by the amendments made by this Act.

Severability

If any provision of this Act, an amendment made by this Act, or the application of such a provision or amendment to any particular person or circumstance is held invalid, the remaining provisions of this Act and amendments made by this Act, and the application of such provisions and amendments to any other person or circumstance, shall not be affected thereby.