Faculty Q&A: Toby Heytens on the Practice of Judicial 'Reassignment'

Toby Heytens
March 19, 2014

University of Virginia law professor Toby Heytens has conducted the first scholarly examination of the practice of "reassignment," or when a federal appeals court sends a case back down to a lower court, but also directs that the case be handled by a different judge.

As part of the study — which was published in a recent issue of the Stanford Law Review — Heytens examined 668 decisions in which reassignment was ordered over the past 50 years in an attempt to better understand how and why reassignment occurs.

What led you to study this topic?

Like every article I've written, it was a long and meandering road. The initial inspiration was a moot court I did for a colleague in the Solicitor General's office for a Supreme Court case where the question presented was whether the standard of review changes in situations where a court has previously reversed a plan administrator under an abuse of discretion standard. The Supreme Court said no, but it got me interested in whether courts ever change standards of review based on what happened earlier in the litigation. After much research, I concluded the answer seemed to be no, which got me thinking about whether there might be something else courts were doing instead. And that, in turn, led me to reassignment.

The practice of reassignment seems to be pretty rare. Under what circumstances does it usually occur?

It's rare in an absolute sense but also a lot more common than people might think. The cases are all over the map, but there are some broad patterns. Reassignment is most common in the [U.S. Court of Appeals for the] 7th Circuit, but it's also used fairly often by the First and Second Circuits as well. Outside the Seventh Circuit, reassignment is more common in criminal cases than in civil cases. In a significant number of cases in which reassignment is ordered, there has been at least one previous appellate reversal in the same case.

Have there been any high-profile cases of reassignment in recent years?

Yes! (with caveats). Last fall, the Second Circuit created a storm of controversy when it removed Judge Shira Scheindlin from litigation involving New York City's controversial stop-and-frisk policy. My article was almost finalized when that happened, though I was able to add a footnote discussing the case. It's a bit unclear that what happened there actually fits my definition of reassignment as opposed to appellate-court ordered recusal, which is an important but sometimes slippery distinction.

In reviewing these cases, local rules and informal court practices involving reassignment, what were your key conclusions?

First, that this sort of thing happens a fair amount and has been happening for a long time. Second, that reassignment underscores that appellate courts have lots of different ways to try to control trial court judges and of trying to ensure their impartiality. Third, that if appellate courts are going to continue ordering reassignment (which seems likely) they should seek to normalize the practice by adopting a local rule and/or announcing more definitive standards for when reassignment will or will not be ordered.

Were you surprised by anything you discovered?

The degree to which the number of reassignments varies by circuit and by trial judge, and the vehemence with which many trial judges object to reassignment as it is often currently practiced.

What will you be working on next?

Given my track record, the only thing I'm fairly certain about is that the final version of my next article will look almost nothing like any of the articles I'm currently thinking of writing. That said, I'm currently thinking about writing something about the qualified immunity doctrine in civil rights litigation or the Solicitor General's cert stage amicus practice before the Supreme Court. I'm also hoping to extend the reassignment project to the administrative law context, because I've also found cases in which courts order that a matter be reassigned to a different agency adjudicator.

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