28 USC 137: Division of Business Among District Judges

Under 28 U.S.C. 137, the division of business among district judges is left to each federal district court to work out through its own rules and orders, with the chief judge deciding anything the rules don’t cover and the circuit’s judicial council stepping in only if the judges can’t agree on rules at all. The statute is short by design. It gives every multi-judge district broad discretion to build an assignment system that fits its size, geography, and caseload, which is why practices vary so much from one district to the next.

What the Statute Actually Says

Section 137 fits in a single paragraph. It provides that the business of any court with more than one judge “shall be divided among the judges as provided by the rules and orders of the court.”¹ The chief judge is responsible for making sure those rules are followed, and personally divides the work and assigns cases in any situation the rules don’t reach. If the judges of a district cannot agree on assignment rules, the judicial council of the circuit issues the necessary orders.

That produces a three-tier structure. Court rules come first. The chief judge’s discretion comes second, filling gaps. The circuit judicial council is the tiebreaker. Congress deliberately declined to impose a single national system, which is why the details look so different depending on the district.

The Chief Judge’s Role in Filling Gaps

The chief judge carries significant administrative responsibility beyond hearing cases. Under 28 U.S.C. 136, the chief judge has precedence over other judges in the district and presides at any session they attend.² The title was changed from “senior district judge” because of the growing administrative burden the position carries.

For case assignments, that role is essentially a safety valve. Standing rules handle most matters automatically. When something falls outside those rules, the chief judge decides where a case goes. That includes emergency filings, conflicts of interest, and unexpected vacancies that leave cases without a presiding judge. A chief judge who wants to step down from administrative duties while remaining an active judge may certify that to the Chief Justice of the United States, passing the responsibilities to the next eligible judge.

How Local Rules Build on Section 137

Each district court adopts local rules that flesh out the assignment procedures Section 137 refers to. The rulemaking authority comes from two sources: 28 U.S.C. 2071, which grants federal courts power to prescribe rules for conducting their business, and Federal Rule of Civil Procedure 83, which specifically authorizes district courts to adopt local rules by majority vote of their judges.³⁴

These rules can’t be adopted quietly. Section 2071 requires appropriate public notice and an opportunity for comment before any new rule takes effect. A court can bypass that process in an emergency but must provide notice and comment afterward. Local rules must be consistent with federal statutes and the national rules of procedure, must conform to any uniform numbering system the Judicial Conference prescribes, and copies go to the judicial council and the Administrative Office. A circuit’s judicial council can abrogate a local rule it finds inconsistent with those requirements.

Random Assignment and Case Weighting

Most federal district courts use some form of random assignment to distribute incoming cases. When a new case is filed, a computer system draws from the pool of available judges so no one can predict or manipulate which judge gets a particular matter. Random assignment does two things at once. It prevents litigants from steering cases toward favorable judges, and it keeps any single judge from being buried under a disproportionate share of the docket.

Pure random assignment doesn’t always produce equal workloads, because cases don’t demand equal judicial time. A routine debt-collection suit might resolve in weeks; a complex patent case can consume years. To account for that, the Federal Judicial Center developed a case-weighting system that assigns complexity scores to different categories of cases.⁵ A case type scored at 1.00 represents the average workload; patent, antitrust, and environmental cases score substantially higher, while many criminal case types score lower. Two courts with identical raw filing numbers can carry very different actual workloads depending on their case mix. Many districts use these weights when balancing assignments so a judge who draws a complex antitrust matter isn’t simultaneously assigned the same volume of new cases as colleagues handling simpler disputes.

Some courts use rotational methods instead of or alongside random draws, distributing cases sequentially among available judges. Others designate certain judges for specific case types based on expertise. A court handling heavy patent litigation might channel those cases to judges with technical backgrounds. These targeted assignments happen within the framework of the local rules and coexist with random assignment for the general docket.

Related Cases and Reassignment When a Judge Leaves

One of the more consequential local rules in any district governs related cases. When multiple lawsuits involve overlapping parties, facts, or legal issues, courts typically assign them to the same judge to avoid inconsistent rulings and duplicated effort. The Northern District of California, for example, treats cases as related when they concern substantially the same parties or transactions and duplicative proceedings would result if different judges handled them. When a judge determines that cases are related, the clerk reassigns the higher-numbered case to the judge already handling the lower-numbered one. Most large districts have similar provisions, though the specific criteria for relatedness vary.

Local rules also address what happens when a judge retires, takes senior status, falls ill, or is elevated to a higher court. Some districts have contingency protocols that automatically redirect pending cases based on workload and expertise. Others leave it to the chief judge to redistribute cases as needed. Emergency assignment rules often authorize the chief judge to intervene and reallocate the docket on short notice, which matters most in small districts where one vacancy can significantly affect everyone else’s caseload.

When Judges Can’t Agree

Section 137 anticipates that judges within a district might not always agree on how to divide the work. When they can’t reach consensus on assignment rules, the circuit’s judicial council has statutory authority to impose a solution.¹ That is not just a theoretical backstop. Judicial councils have broad power under 28 U.S.C. 332 to make all necessary and appropriate orders for the effective and expeditious administration of justice within their circuits.⁶

That authority extends beyond breaking ties on case assignment. Judicial councils can hold hearings, take sworn testimony, and issue subpoenas. Any general order they issue relating to practice and procedure must go through public notice and comment, and copies go to the Judicial Conference and the Administrative Office of the United States Courts. In practice, a judicial council stepping in to dictate assignment rules is uncommon, but the possibility gives district judges strong incentive to work things out among themselves.

Judge Shopping and the 2024 Policy

Random assignment is supposed to prevent litigants from picking their judge. For years, a workaround existed. A party could file in a division of a district where only one judge sat, and because assignment rules typically drew from the pool of judges in that division, filing there guaranteed a specific judge. Litigants bringing high-profile challenges to federal regulations used this strategy, particularly in districts with single-judge divisions known for receptive judges.

The Judicial Conference of the United States addressed the issue in March 2024, approving a policy requiring district-wide random assignment for two categories of cases: civil actions seeking to block or mandate statewide enforcement of a state law, and civil actions seeking to block or mandate nationwide enforcement of a federal law.⁷ Under the policy, a case seeking a nationwide injunction filed in a single-judge division would be randomly assigned among all judges in the entire district rather than the one who happens to sit in that division. The Conference also directed its Committee on Court Administration and Case Management to send guidance to all district judges discouraging perceived or actual judge shopping.

The policy doesn’t carry the force of a statute or binding rule. Compliance depends on individual courts revising their local assignment plans. It represents the strongest institutional signal yet from the federal judiciary that single-judge-division filing strategies threaten public confidence in impartial case assignment.

Assignments Outside the Standard Pool

Not every case is distributed by pulling from the active district judges of the local court. Several statutes route work through separate channels that coexist with Section 137’s framework.

Senior and Visiting Judges

Federal judges don’t disappear from the caseload when they take senior status. Under 28 U.S.C. 294, a judge who has retired from regular active service may continue performing judicial duties as a senior judge if designated and assigned by the chief judge or judicial council of the circuit.⁸ Senior judges typically carry a reduced docket compared to active judges, and how many cases they take depends on what they are willing and able to handle.

Courts can also bring in judges from outside the district. Under 28 U.S.C. 292, the chief judge of a circuit can temporarily assign any district judge within the circuit to sit in another district in the same circuit.⁹ For cross-circuit assignments, the Chief Justice of the United States can designate a district judge from one circuit to serve in another upon receiving a certificate of necessity from the receiving circuit’s chief judge or circuit justice. These visiting-judge arrangements help courts manage temporary surges in caseload, extended vacancies, or mass recusals.

Magistrate Judge Referrals

A significant share of federal case work never reaches a district judge at all. Under 28 U.S.C. 636, district judges can refer a wide range of pretrial matters to magistrate judges.¹⁰ A magistrate judge can hear and decide most pretrial motions, with the district judge retaining power to reconsider any order that is clearly erroneous or contrary to law. For more consequential motions such as summary judgment, class certification, and motions to dismiss for failure to state a claim, the magistrate judge conducts hearings and submits proposed findings and recommendations, and the district judge makes the final decision after fresh review of any portions a party objects to. In civil cases, when all parties consent, a magistrate judge can preside over the entire case through trial and enter final judgment. Which matters go automatically to magistrate judges, and which require a specific order, is set by each court’s local rules.

Multidistrict Litigation and Bankruptcy

When similar lawsuits are pending in multiple federal districts, the Judicial Panel on Multidistrict Litigation can consolidate them before a single judge for pretrial proceedings under 28 U.S.C. 1407.¹¹ The panel transfers cases sharing common questions of fact when consolidation would serve the convenience of parties and witnesses, and selects the transferee judge based on experience and docket capacity. Cases that don’t settle are remanded to their original districts for trial.

Bankruptcy cases follow a distinct path. Under 28 U.S.C. 157, each district court may refer all bankruptcy cases and related proceedings to the bankruptcy judges for the district.¹² Nearly every district has a standing order automatically referring all bankruptcy matters. A district court can withdraw the reference for cause, and must withdraw it when resolving a proceeding requires interpreting federal laws beyond the Bankruptcy Code that regulate organizations or activities affecting interstate commerce.

What Section 137 Doesn’t Cover

Section 137 governs how cases are divided among judges. It doesn’t govern how to remove a judge from a case already assigned. Once a case has landed, the paths to a different judge run through 28 U.S.C. 144, which allows a party to file a bias affidavit meeting strict timing and specificity requirements, and 28 U.S.C. 455, which requires a judge to disqualify whenever impartiality might reasonably be questioned or specific conflicts exist. Those are separate mechanisms with their own standards and shouldn’t be confused with the assignment rules that put the judge on the case in the first place.

Why Practices Vary So Much

The flexibility Congress built into Section 137 means no two districts handle assignments identically. Large districts with multiple courthouses often assign cases based on where they originate, keeping litigants and witnesses close to the courthouse where proceedings will take place. Districts with heavy concentrations of particular case types sometimes develop specialized assignment tracks; patent-heavy districts, for example, may route those cases to judges with relevant technical experience.

The variation isn’t arbitrary. It reflects real differences in caseload composition, judicial resources, geography, and local legal culture. A rural district with three judges and one courthouse faces different assignment challenges than a metropolitan district with dozens of judges across multiple locations. Both operate under the same statute, and the local rules they build on top of it look nothing alike. Whatever system a court adopts, it must be established through proper rulemaking, remain consistent with federal law, and serve the goal Section 137 sets: distributing the court’s business fairly and efficiently among the judges available to do the work.