United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2022
No. 22-50669 Lyle W. Cayce
Clerk
Defense Distributed; Second Amendment Foundation,
Incorporated,
Plaintiffs—Appellants,
versus
Matt Platkin, Attorney General of New Jersey, in his official capacity,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-637
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam:
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.
IT IS FURTHER ORDERED that all pending motions are
CARRIED WITH THE CASE.
No. 22-50669
James C. Ho, Circuit Judge, joined by Elrod, Circuit Judge, concurring:
In Defense Distributed v. Bruck, 30 F.4th 414 (5th Cir. 2022), we held
that the Western District of Texas was wrong to sever the case against the
Attorney General of New Jersey and transfer it to the District of New Jersey.
Our decision was accompanied by a well-reasoned dissent from a
distinguished colleague. But it is now the law of the circuit as well as 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.
Federal courts across America have repeatedly granted requests to
return cases back to the original transferring court, whether the request
comes from a fellow Article III court or even from a litigant. Examples of
such judicial courtesy include, but are far from limited to, federal courts
governing New Jersey and Texas. See, e.g., In re United States, 273 F.3d 380,
382 n.1 (3rd Cir. 2001) (“We are most appreciative of Judge Campbell’s
accommodation, which enabled this court to consider the matter and
prevented an unseemly tension between federal jurisdictions.”); CCA Glob.
Partners, Inc. v. Yates Carpet, Inc.,
2005 WL 8159381, *2 (N.D. Tex. 2005)
(“This Court will not stand in the way of another district court attempting to
correct what it believes to have been an error made while the case was under
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No. 22-50669
its jurisdiction. Thus, this Court finds that in the interest of justice, the case
should be transferred back to the Eastern District of Missouri.”). 1
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.” In re United
States, 273 F.3d at 382 n.1.
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.
…
We respectfully ask the District of New Jersey to return the case to
the Western District of Texas as requested, and thereby join its sister district
courts nationwide in this act of inter-district comity, mutual respect, and
courtesy.
1
See also, e.g., In re Nine Mile Ltd., 692 F.2d 56, 57–58 (8th Cir. 1982) (request
granted returning case from the District of South Carolina to the Northern District of
Iowa), overruled on other grounds by Mo. Housing Development Comm’n v. Brice,
919 F.2d
1306, 1311 (8th Cir. 1990); Fine v. McGuire,
433 F.2d 499, 500 & n.1 (D.C. Cir. 1970)
(request granted returning case from the District of Maryland to the District of Columbia);
United States v. Petty,
2022 WL 1590609, *3 (W.D.N.Y. 2022) (granting request to return
case to the Western District of Pennsylvania); Tlapanco v. Elges,
2017 WL 4329789, *3
(S.D.N.Y. 2017) (case stayed in the Eastern District of Michigan pending reconsideration
of transfer); Herman v. Cataphora Inc.,
2013 WL 275960, *2 (N.D. Cal. 2013) (transferring
case back to the Eastern District of Louisiana).
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