Forum Shopping

Those challenging major rules often try to do so in courts that they perceive will be friendly to their side. In recent years, many court watchers have noticed and lamented an increase in “forum shopping” in litigation over federal agency actions. Of course, many federal statutes require that certain challenges to agency actions be filed in a specific court. Absent such statute-specific venue provisions, however, litigants often have a wide range of options.

While around half of all challenges to major rules were filed in the U.S. District Court for the District of Columbia or the U.S. Court of Appeals for the D.C. Circuit, these courts’ preeminence declined over time. The D.C. Circuit’s decline was starkest, dropping from 53.2% for challenges to the Clinton Administration’s major rules to 38.1% for W. Bush, 27.7% for Obama, and 11.7% for Trump. 

Rather than filing in D.C., challengers are increasingly taking their cases to other circuits that saw far fewer challenges to major rules in earlier administrations. When targeting rules issued by Democratic administrations, challengers are more likely to file in the more conservative-leaning Fifth Circuit; whereas challengers targeting rules issued by Republican administrations are more likely to file in the relatively liberal Second and Ninth Circuits. When taken together, our data supports the common perception that forum shopping has increased and occurs under administrations of both parties.