In a gun-rights case that’s generated a succession of Fifth Circuit decisions (see blog entries of August 20, 2020, April 2, 2022, and September 19, 2022), the Fifth Circuit finally throws in the towel with a decision holding that it lacks jurisdiction, owing to the failure of a transferee court to return a case to Texas. Defense Distributed Foundation, Inc. v. Platkin, No. 22-50669 (5th Cir. Dec. 15, 2022).
“Plaintiffs Defense Distributed and the Second Amendment Foundation produce, and make accessible, information related to the 3D printing of firearms. The U.S. Government and various states have imposed restraints on the publication of that information. Since 2013, plaintiffs have challenged those restraints.”
This case was originally filed in the Western District of Texas, but part of the case – involving the New Jersey Attorney General (NJAG) – was severed and transferred to the District of New Jersey. That transfer order triggered, directly or indirectly, the three appellate orders that followed.
On April 1, 2022, a Fifth Circuit panel (2-1) granted mandamus directing the Texas federal judge to vacate the transfer order as an abuse of discretion, and to request that the New Jersey court return the case to Texas (see April 2, 2002 blog entry). Significantly, the New Jersey judge did not respond to the suggestion that the court retransfer the case (on grounds of comity).
Plaintiffs then noticed an appeal under 28 U.S.C § 1292(a), filed on July 28, 2022, challenging the district court’s refusal to grant a preliminary injunction on jurisdictional grounds. In a per curiam order (see September 19, 2022 blog entry), the panel granted the plaintiffs-appellants’ motion for expedited appeal of the denial of an injunctions. “IT IS ORDERED that Appellants’ motion to expedite the instant appeal is GRANTED. The Clerk is directed to schedule this appeal for oral argument before the next available randomly designated regular merits panel.”
Two panelists used the occasion of the scheduling order to implore the District of New Jersey judge to return the case to the Fifth Circuit. “So we respectfully ask the District of New Jersey to honor our decision in Defense Distributed and grant the request to return the case back to the Western District of Texas—consistent with the judiciary’s longstanding tradition of comity, both within and across the circuits, as repeatedly demonstrated by district courts nationwide.” Once again, the D.N.J. did not so act.
Yesterday, the panel – with some grumbling – holds that it cannot keep the case any longer. “[T]he question is whether the district court has the power to adjudicate plaintiffs’ request for a preliminary injunction, regardless of the transfer” to New Jersey. “The twist in this case is the transfer to a district court outside the Fifth Circuit, a court over which this court exercises no control. This court lacks power to order a return of the case to our circuit.”
“We face a jurisdictional thicket. On the one hand, claims that we have found were wrongly severed from an existing case in this circuit are now being adjudicated improperly in New Jersey. That creates an erroneous absence of claims in the Western District of Texas and, concurrently, an errant presence of claims against NJAG in New Jersey. The breakdown in comity across courts only adds more thorns to this tangle.”
Plaintiffs argued that April 2, 2022 mandamus order vacating the transfer rendered the order a nullity and reinstated the NJAG to the Texas case. But the panel responds that “the issuance of the mandamus merely ordered that the district court request the return of the case from New Jersey—nothing more.” Because the New Jersey court expressly denied that request, there was nothing more to be done. “Although this court has politely requested that the New Jersey district court return the case, we can do no more. That case exists in New Jersey, and the retained case against the U.S. Department of State, sans claims against NJAG, remains in the Western District of Texas.” (The panel also rejects a backup argument that the NJAG could have been readded to the Texas case via Fed. R. Civ. P. 15(a)(2),citing the first-to-file rule that gives priority to the senior-most case.)
The panel observes that the plaintiffs could have avoided the problem by “mov[ing] for a stay of the district court’s transfer order before the case was transferred. Now, that is not necessarily fair to plaintiffs, who had little reason to believe that in the worst-case scenario, an outside transferee court would refuse a request to return an improperly transferred case,” although that scenario came to pass.
The panel finally aims a few choice words at the recalcitrant New Jersey judge, who refused to recognize the “comity” in the Texas court’s error. “The New Jersey court contends that the initial fault was in our decision to grant mandamus . . . . Still, regardless of the merits of [mandamus], it took an error for the New Jersey court even to hear the case in the first place . . . . [T]he effect of that decision permits a New Jersey district court functionally to nullify a Fifth Circuit decision.”