Defense Distributed v. Platkin

55 F.4th 486

DEFENSE DISTRIBUTED; Second Amendment Foundation, Incorporated, Plaintiffs—Appellants,

v.Matt PLATKIN, Attorney General of New Jersey, in his official capacity, Defendant—Appellee.

No. 22-50669

United States Court of Appeals, Fifth Circuit.

FILED December 15, 2022

Chad Flores, Esq., Owen Joseph McGovern, Beck Redden, L.L.P., Houston, TX, Joshua Michael Blackman, Houston, TX, for Plaintiffs-Appellants.

Angela Cai, Jeremy M. Feigenbaum, Esq., Office of the Attorney General for the State of New Jersey, Trenton, NJ, Alexander Hardiman, Esq., Attorney, Pillsbury Winthrop Shaw Pittman, L.L.P., New York, NY, for Defendant-Appellee.

Before Smith, Barksdale, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:^*

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 in federal courts as violating the First Amendment.

The instant case involves publication restraints that the defendant, first as Acting Attorney General, then as Attorney General, of New Jersey ("NJAG"), has placed on these plaintiffs.

The case has had a long journey through the justice system: This is the plaintiffs' third appeal to the Fifth Circuit. Plaintiffs initially filed in the Western District of Texas and included claims against the U.S. Department of State and NJAG. In the first appeal, we reversed the district court's decision that the NJAG was not subject to the court's personal jurisdiction. Def. Distributed v. Grewal , 971 F.3d 485, 488 (5th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1736, 209 L.Ed.2d 504 (2021).

On remand, the district court severed the claims against the State Department and NJAG and transferred the claims against NJAG to the District of New Jersey per 28 U.S.C. § 1404. On appeal, we held that that decision was a clear abuse of discretion and ordered the district court to vacate its sever-and-transfer order. Because the case against NJAG now resided in New Jersey, we ordered the district court to request that the New Jersey district court transfer the case back to the Western District of Texas. Def. Distributed v. Bruck , 30 F.4th 414, 421 (5th Cir. 2022). The New Jersey district court refused. Def. Distributed v. Platkin ("Platkin-D.N.J. "), Civ. Ac. No. 19-04753 (FLW), 2022 WL 2967304, at *1 (D.N.J. July 27, 2022).¹ In response, plaintiffs moved, in the Western District of Texas, for a preliminary injunction against the publication restraints imposed by NJAG. The district court entered a short order holding that it lacked jurisdiction to consider claims against NJAG and dismissed the preliminary-injunction motion. Plaintiffs appealed. Because this court no longer has the power to hear the case or grant the relief requested, we affirm that dismissal.

I.

Defense Distributed is a company that "produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public." Bruck , 30 F.4th at 422 (quoting Grewal , 971 F.3d at 488 ). The U.S. Government and individual states have not looked kindly upon plaintiffs' distributing that information to the public. Accordingly, they have placed publication restraints on plaintiffs after "Defense Distributed published to the Internet computer assisted design (‘CAD’) files for a single-round plastic pistol." Id. at 421. Since 2013, plaintiffs have been engaged in substantial litigation focused on removing those publication restraints.² We have noted in dictum that the governments' actions "appear to be flagrant prior restraints." Id.

After initial litigation, the State Department "reached a settlement agreement that granted Defense Distributed a license to publish its files." Id. at 422. Next, a case was filed in the Western District of Washington by the attorneys general of nine states "to enjoin the State Department from authorizing the release of Defense Distributed's files" under the settlement agreement. Id. Separately and concurrently, Defense Distributed and associated plaintiffs challenged the enforcement actions of certain states' attorneys general, including NJAG. Id.

In the present case, plaintiffs initially sued in 2018 in the Western District of Texas to enjoin NJAG. They filed an amended complaint joining the U.S. Department of State as a defendant, alleging that the Department breached the settlement agreement. The district court initially dismissed the claims against NJAG, holding that the court did not have personal jurisdiction. See Grewal , 971 F.3d at 488–90.

Plaintiffs then sued in New Jersey, raising similar claims against NJAG and adding five plaintiffs³ to the action against NJAG. Platkin-D.N.J. , 2022 WL 2967304, at *3. On appeal, our circuit held that the district court had improperly dismissed NJAG for want of personal jurisdiction grounds. Grewal , 971 F.3d at 496.

On remand, the district court granted NJAG's motion to sever the claims against him and transferred that portion of the case to the District of New Jersey. Plaintiffs did not attempt to stay that transfer, see Bruck , 30 F.4th at 425, and, as a result, the case was consolidated with the other lawsuit filed by plaintiffs in New Jersey. Platkin-D.N.J. , 2022 WL 2967304, at *4.

Plaintiffs appealed again, and we held that the sever-and-transfer order was a clear abuse of discretion. Bruck , 30 F.4th at 433. Nevertheless, because the transfer had already occurred to a court outside the jurisdiction of the Fifth Circuit, we could not order its return. Id. at 423–24. Instead, relying on In re Red Barn Motors, Inc. , 794 F.3d 481 (5th Cir. 2015) (per curiam), we issued a writ of mandamus to vacate the joint sever-and-transfer order and directed the district court to request that the transferee district court return the case. Bruck , 30 F.4th at 423–24, 436–37. We then stated that the district court, post-return, should "reconsolidate Defense Distributed's case against the NJAG back into the case still pending against the State Department" and should decide the merits of a preliminary injunction expeditiously. Id. at 437.

Despite principles of comity and the desire to prevent "unseemly tension between federal jurisdictions," In re United States , 273 F.3d 380, 382 n.1 (3d Cir. 2001), the New Jersey district court refused to transfer the case back, relying heavily on the dissenting opinion in Bruck. Platkin-D.N.J. , 2022 WL 2967304, at *10–12, *16 (repeatedly citing Bruck , 30 F.4th at 437–40 (Higginson, J., dissenting)).

So plaintiffs have sought relief against NJAG in our circuit again, moving for a preliminary injunction in the remaining case against the State Department. The district court found it lacked jurisdiction because NJAG had been terminated from the case against the State Department in this circuit. Because NJAG was not a party to the suit, the district court found it had no power to adjudicate.

Plaintiffs appealed. In the meantime, two judges on the motions panel in this case requested that the New Jersey district court return the case that our court has held to be erroneously transferred. Def. Distributed v. Platkin , 48 F.4th 607, 607 (5th Cir. 2022) (per curiam) (Ho, J., joined by Elrod, J., concurring). On October 25, 2022, the New Jersey district court responded to a motion for reconsideration and a second motion to transfer filed by plaintiffs, denying the requests. Platkin , 2022 WL 14558237, at *6.

II.

The key question centers on "[n]ot favoritism, nor even corruption, but power. " Patchak v. Zinke , ––– U.S. ––––, 138 S. Ct. 897, 910, 200 L.Ed.2d 92 (2018) (plurality opinion) (citation omitted) (quoting Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ). Specifically, the question is whether the district court has the power to adjudicate plaintiffs' request for a preliminary injunction, regardless of the transfer. We have jurisdiction to review denials of preliminary injunctions under 28 U.S.C. § 1292(a)(1). "We review questions of law as to jurisdiction de novo." Ramirez-Molina v. Ziglar , 436 F.3d 508, 513 (5th Cir. 2006) (citations omitted).

"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." Bruck , 30 F.4th at 423. Because of the transfer, the Western District of Texas "can no longer enter an appealable order in the case." Id. at 424. In Bruck , we attempted to resolve the issue by ordering the district court to vacate its ruling and to request the transferee court to return the case. Id. at 423–24, 436. Nevertheless, the New Jersey transferee court has refused,⁴ so plaintiffs remain in a bind.

As a result, plaintiffs have advanced two procedural theories to establish that the district court now has jurisdiction over their new request for a preliminary injunction against NJAG. One is that our court's order to vacate the district court's sever-and-transfer order automatically "revived" plaintiffs' claims against NJAG by operation of law. The second is that Federal Rule of Civil Procedure 15 allows plaintiffs to "refile" their claims against NJAG, and they did so when they requested leave to amend to add NJAG to the existing case against the State Department in the Western District of Texas.

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.

Still, we cannot declare that claims in the New Jersey...