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Fifth Circuit Panel Issues Scheduling Order with Concurrence Imploring Transferee District Court in New Jersey to Return a Case to Texas


In Defense Distributed v. Platkin, No. 22-50669 (5th Cir. Sept. 16, 2022), two concurring judges in a per curiam scheduling order issue an unusual plea to district court judge in another circuit to return a case to Texas as an “act of inter-district comity, mutual respect, and courtesy.”

The case involves a company that “produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public.” As the panel majority summarizes, “[s]ince 2013, Appellants (collectively, ‘Defense Distributed’) have been challenging publication restraints imposed by the U.S. State Department, federal courts, and the State of New Jersey after Defense Distributed published to the Internet computer assisted design (‘CAD’) files for a single-round plastic pistol.”

On April 1, 2022, a Fifth Circuit panel (2-1) granted mandamus directing the federal judge in the Western District of Texas to vacate an order severing and transferring part of a case to the District of New Jersey, and to request that the New Jersey court return the case to Texas (see April 2, 2002 blog entry). Plaintiffs then noticed this 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, the panel granted the plaintiffs-appellants’ motion for expedited appeal. “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.”

In a concurrence signed by Judges Ho and Elrod, the panel addressed the transferee New Jersey district court, which had yet to return the case. “We can think of no substantive reason—and none has been offered to us—why this case should nevertheless proceed in New Jersey rather than Texas, other than disagreement with our decision in Defense Distributed. The Attorney General of New Jersey confirmed as much during oral argument.”

“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.”

The concurrence noted the numerous instances where district courts, in the interest of justice, returned cases that were held to be erroneously transferred. “This tradition of inter-circuit courtesy should surprise no one. After all, it’s an easy tradition to respect. These cases originated elsewhere, and only ended up in the transferee court as a result of mistake. So the act of courtesy costs the transferee court nothing. In sum, there’s every reason in the world for district courts across the country to avoid, as the Third Circuit has put it, ‘unseemly tension between federal jurisdictions.’”

“So we’re unsurprised that such courtesy appears to be routine practice in district courts nationwide. In fact, we’re unaware of any district court anywhere in the nation to have ever denied such a request. The parties admit they have not found any. We see no reason why this case should be the first.”



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