Venue Diversion

Abstract

Venue is having a moment. Despite its frequent relegation to the third tier of threshold procedural issues that control a litigant’s ability to seek relief in the courts, ongoing litigation highlights venue’s importance to the availability and substance of relief. During its October 2024 term, the Supreme Court will resolve at least two distinct questions about venue, including three cases about the proper interpretation of the Clean Air Act’s venue-channeling provision and a fourth case dealing with the bifurcation of standing and venue requirements. In the courts of appeals, disputes about proper venue have predominated in administrative challenges to the NLRB’s power to enforce labor standards and to the CFPB’s authority to protect consumers from predatory lending. Meanwhile, the proliferation of nationwide injunctions has focused scholarly attention on venue reform as a potential solution for hyper-partisan forum-shopping.

Venue’s recent salience destabilizes the perception that it is a strictly procedural issue pertaining to the location of adjudication. And, as this Article uncovers, Congress has repeatedly recognized and deployed venue’s substantive potential to achieve legislative objectives and reinforce desired normative values. But as venue questions have come to the fore in recent administrative litigation, some courts have developed doctrinal tests and deployed extraordinary procedures to decide venue disputes in a way that aggrandizes their adjudicatory power at the expense of other courts. These interpretive choices and procedures enable courts to exercise authority over cases for which they are improper forums, in violation of statutory text and structure and separation-of-powers principles.

This Article offers the first account and critical assessment of this emerging phenomenon, which I call “venue diversion.” My critique builds on an original statutory analysis of how Congress uses venue provisions to shape Article III adjudication, including through the general venue statute and through specialized “venue diffusing” and “venue channeling” provisions. The Article constructs a theory of venue diversion and evaluates its practical significance through two case studies of recent venue litigation. My investigation reveals that venue diversion is both inherently and consequentially deregulatory, and contributes to an accountability gap in which the policies of a democratically accountable administration are encumbered by the exercise of unaccountable judicial power. Moreover, because it enables courts to selectively decide substantive questions through an ostensibly neutral procedural mechanism, venue diversion represents a particularly problematic form of deregulation. In this way, venue diversion implicates many of the same normative issues as other emerging structural phenomena that blur the substance-procedure distinction, like nationwide injunctions and the shadow docket.

Keywords: environmental law, civil procedure, federal courts, administrative law, Clean Air Act