When legal activists want to challenge the federal government’s reach, they frequently head to Texas. By filing cases in the state’s smaller divisions, they can be guaranteed a Republican-appointed district judge and an appeals court widely regarded as the most conservative federal court in the country. The state is often the launchpad from which aggressively unorthodox arguments reach the Supreme Court.
But in one recent case, a Trump-appointed judge in Fort Worth has sided with a party he rarely favors — the federal government — to challenge an effort to use Texas as the arena for a fight with nationwide ramifications.
The case centers on the Consumer Financial Protection Bureau, which in March issued a new rule capping most credit card late fees at $8 a month. Days later, trade groups representing big banks sued to block the regulation, which the bureau estimates would save households — and cost lenders — around $10 billion a year.
To sue in a specific court, parties need to establish venue by showing a geographic connection between the issue and the chosen court. To tie their credit card fee lawsuit to Texas, the national trade groups arguing on behalf of banks — the American Bankers Association, the U.S. Chamber of Commerce and the Consumer Bankers Association — teamed up with three state and local business associations.
That’s where Judge Mark Pittman, one of only two active federal judges in the Northern District of Texas’s Fort Worth division, balked.
He believes the case belongs in Washington, where the consumer bureau and the three national associations are based. The nation’s capital is “the epicenter for these types of rules and challenges thereto,” he wrote in a ruling, adding: “Venue is not a continental breakfast; you cannot pick and choose on a plaintiffs’ whim.”
Judge Pittman tried, twice, to transfer the case. So far, he’s failed. Both times, in highly unusual moves, panels of judges from the U.S. Court of Appeals for the Fifth Circuit in New Orleans overturned his orders. The appeals court’s second ruling said Judge Pittman’s court “clearly abused its discretion” in determining that the case should be tried in Washington because the credit card rule was enacted there.
Judge Pittman is now weighing whether to try yet again to move the case — and he’s using his deliberations to take aim at “judge shopping,” a tactic often used by litigants in high-stakes cases to steer their claims into courtrooms they expect to be friendly.
He’s not alone in his opposition to the strategy. Earlier this year, the Judicial Conference of the United States, the administrative body for the federal courts, released a new policy intended to curtail forum shopping and Senate leaders pushed legislation to limit the power individual judges can wield over issues with nationwide scope.
The issue is especially potent in the Fifth Circuit, since that court often supports extreme legal theories. Two years ago, a panel of Fifth Circuit judges ruled that the Consumer Financial Protection Bureau was unconstitutionally funded and that its actions should therefore be vacated. The Supreme Court overturned that decision in May, one of eight times last term the court struck down Fifth Circuit decisions. (It upheld three of its rulings.)
In late August, Judge Pittman summoned the credit card case’s participants to his wood-paneled courtroom, adorned with New Deal-era murals of scenes from Texas history. After herding most of the trade groups’ lawyers into his courtroom’s jury box, the judge delivered a half-hour soliloquy about the corrosiveness of trying to cherry-pick ideologically aligned judges.
“This stuff goes back a long way,” he said. “When there were only two judges in London, they used to say that folks would know when one of the judges went up to York to handle cases, because they knew it was time to run over to the courthouse and file your case to get that particular judge that was in London.”
Judge Pittman is, to many legal observers, an unexpected crusader on the issue. Appointed by former President Donald J. Trump, the 49-year-old native Texan is a founding member of Fort Worth’s chapter of the Federalist Society who often sides with litigants challenging the federal government’s reach.
And the Northern District of Texas’s judges overall have shown little interest in relinquishing their area’s role as a testing ground for heterodox arguments. The district made waves in legal circles when its chief judge released a letter that said the district would not follow the Judicial Conference’s guidance on randomizing assignments.
But in the battle over where the credit card lawsuit should be heard, Judge Pittman dug in to defend what he described as an foundational principle: the notion that all courtrooms are level playing fields.
“There is no such thing as Republican or Democrat judges,” he said at the August hearing, quoting a line he attributed to a judge he once clerked for — Eldon B. Mahon, the namesake of the federal courthouse Judge Pittman now works in. “I don’t think that’s an unusual sentiment. But if we truly believe that judges wear blue robes or red robes, we might as well just give this whole thing up and exchange our robes for blue and gray uniforms.”
Elliott Stein, a lawyer and analyst for Bloomberg Intelligence who attended the hearing, found the judge’s diatribe striking.
“I tell people all the time, this is one of the quirkiest procedural cases I’ve ever seen,” he said. “You have this judge who is doing all he can to try to get rid of it, and then keeps getting smacked down by the appeals court.”
Judge Pittman’s resistance “came out of left field,” said Alan Kaplinsky, a lawyer with Ballard Spahr who is not involved in the case. “Everybody looked at his credentials; he seemed to be a very conservative, business-oriented judge. But he’s stuck on this procedural point — is there standing for these plaintiffs to bring the case, and is there venue?”
Through a court representative, Judge Pittman declined to comment for this article.
The new cap on late fees applies only to large card issuers with more than one million accounts. The consumer bureau estimates that it will affect around 30 lenders, none based in Texas. But several of those banks — including Bank of America, JPMorgan Chase, Synchrony Bank and Wells Fargo — have branches that are members of the Fort Worth Chamber of Commerce, one of the case’s plaintiffs.
That group has no genuine stake in the case, the consumer bureau argued.
“We don’t want associations to act as law firms with standing, essentially being hired by clients to sue on behalf of issues,” Stephanie Garlock, a lawyer for the bureau, said at the hearing.
The Fort Worth Chamber of Commerce countered that its mission includes “trying to support a growing financial services industry,” said Michael Murray, a Washington-based partner at Paul Hastings who is representing the plaintiffs.
Judge Pittman will rule in the coming weeks on whether to try — for a third time — to transfer the case to Washington. He seems leery of being reversed yet again: “I’m not sure it would last very long at the Fifth Circuit,” he said at the hearing.
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