On May 2, 2024, the Committee on Judicial Review of the Administrative Conference of the United States (“ACUS”), an independent federal agency tasked with improving government operations, approved a recommendation that judicial review of agency rulemaking be directed to federal appellate courts and that lawsuits challenging agency rules in district courts should be subject to district-wide assignment to avoid forum shopping.  The committee’s recommendation is consistent with a recent policy announced by the Judicial Conference of the United States (“Judicial Conference”) that called for a district-wide random assignment of judges in civil actions that seek declaratory or injunctive relief of state or federal actions.

The proposal includes three recommendations:

• When drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals.
• Congress should amend 28 U.S.C. § 137 [which provides that the business of a district court should be divided among the judges by the rules and order of the court] to provide that district courts apply district-wide assignment to civil actions seeking to bar or mandate universal enforcement of a federal agency rule or policy.
• When drafting a statute that provides for judicial review of agency actions, Congress should state explicitly whether actions taken under the statute are subject to review by a  district court or, instead, subject to direct review by a court of appeals.  If Congress intends to establish separate requirements for review of rules, as distinguished from other agency actions, it should refer explicitly to “rules” and not use the term “orders” to include rules.

In comments submitted to ACUS, the CFPB stated that it also thinks ACUS should address issues around associational standing and related issues that are interacting with venue.  Under the doctrine of associational standing, an association may sue on behalf of its members when (1) those members would have standing to sue, the interests it seeks to protect are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members.  See, e.g., Tex. Bankers Ass’n v. Off. of the Comptroller (enjoining the OCC, FDIC, and Federal Reserve Board from enforcing final rules jointly adopted in October 2023 implementing the Community Reinvestment Act).  The CFPB recently challenged the associational standing of the Fort Worth Chamber of Commerce in its opposition to the motion for a preliminary injunction filed by plaintiffs’ in the credit card late fee case in the Northern District of Texas.  There, the CFPB argued that venue was improper and plaintiffs were forum shopping when they based associational standing on an out-of-state bank that was a member of a trade group on the grounds that it had customers in the judicial district.

The CFPB also encouraged ACUS to expressly endorse the Judicial Conference policy on the grounds that such an endorsement might be more impactful than a legislative recommendation.

We will continue to monitor this proposal as it is taken up by ACUS at its summer plenary session in June.  If adopted by ACUS, the proposal will be published in the Federal Register and recommended to Congress.

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