Reuters) – A fight over the proper jurisdiction for a politically charged case involving a “personal gunsmithing” advocacy group’s right to publish instructions for making so-called ghost guns left the 5th U.S. Circuit Court of Appeals sputtering on Thursday.
The appeals court decried a “breakdown in comity” from the refusal of a New Jersey trial judge to transfer Defense Distributed’s First Amendment claims against New Jersey Attorney General Matt Platkin back to Austin, Texas, despite a specific request from the 5th Circuit that she do so.
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But Judges Jerry Smith, Rhesa Barksdale and Catharina Haynes acknowledged that they do not have authority over the New Jersey trial judge, U.S. District Judge Freda Wolfson of Trenton – and moreover held that Defense Distributed’s novel procedural attempts to reclaim Texas jurisdiction were unavailing.
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“Although this court has politely requested that the New Jersey district court return the case, we can do no more,” Smith wrote.
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Thursday’s opinion did include a veiled call for the 3rd Circuit to reverse what the 5th Circuit described as an unprecedented refusal by the New Jersey trial court to honor a transfer request by a sister circuit. By retaining jurisdiction, the 5th Circuit said, Wolfson had essentially nullified a 5th Circuit decision. That outcome, Smith wrote, would be contrary to the “expectation” that circuit courts direct trial judges to respect transfer requests from other circuits to preserve “a culture of mutual respect between the sister circuits.”
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Defense Distributed counsel Chad Flores of Beck Redden told me by email that Thursday’s ruling from the 5th Circuit will not be the last word in the jurisdictional standoff. “The 3rd Circuit will soon be able to do the obviously right thing and order the case sent back to Texas,” Flores said. (Defense Distributed has not yet appealed Wolfson’s decision to retain jurisdiction but still has time to do so.)
If the 3rd Circuit upholds Wolfson’s ruling, Flores said, his clients will ask the U.S. Supreme Court to “end the New Jersey AG’s gamesmanship once and for all.”
The New Jersey AG’s office declined to comment.
You are doubtless wondering how Wolfson ended up with the claims that the 5th Circuit wants back. Defense Distributed has been fighting for years with state and federal officials about whether it can publish instructions for 3D-printed firearms that, in the view of opponents, allow owners to evade gun regulations. In 2018, after New Jersey’s then-AG Gurbir Grewal, announced that he would enforce a state law criminalizing the distribution of ghost gun manufacturing instructions, Defense Distributed filed a suit against him in Austin, seeking to enjoin enforcement of the state law. The group later amended its complaint to add the U.S. State Department as a defendant.
U.S. District Judge Robert Pitman of Austin dismissed claims against the New Jersey AG in 2019, ruling that he did not have jurisdiction. The 5th Circuit reversed that ruling in 2020, as I reported at the time, and remanded the case to Pitman.
On remand, the New Jersey AG argued that claims against him should be severed and sent to New Jersey federal court, where Defense Distributed and several other plaintiffs had filed a similar challenge to New Jersey’s law. Pitman agreed to transfer those claims.
Defense Distributed sought review of Pitman’s ruling but, crucially, as it turned out, did not seek to stay the transfer. In April, a divided 5th Circuit panel granted Defense Distributed’s mandamus petition. The majority ruled that Pitman had abused his discretion in severing and transferring claims against the New Jersey AG.
But because the transfer had been completed, the 5th Circuit majority said, it no longer had the authority to order the claims to be returned to Texas. So the appeals court once again sent the case back to Pitman, directing the Austin trial judge to vacate his transfer order and request that his counterpart in New Jersey send the case back.
Wolfson refused the transfer in a ruling in July. She said that returning only the claims severed from the Texas case would require the New Jersey AG to litigate parallel claims in two different courts. Defense Distributed had alternatively suggested that she transfer everything to Texas – claims from the case it originally filed in Texas along with the case originally filed in New Jersey. Wolfson denied that request, noting that not all of the plaintiffs in the New Jersey case have ties to Texas.
The 5th Circuit responded to Wolfson’s July ruling with an unusual exhortation in September. The court granted an expedited appeal of Pitman’s denial of two Defense Distributed maneuvers to reclaim Texas jurisdiction. But it also specifically asked Wolfson to reconsider her refusal to send the case back, out of respect for “the longstanding tradition of comity, both within and across the circuits, as repeatedly demonstrated by district courts nationwide.”
Wolfson declined to reconsider, which led to Thursday’s ruling from the 5th Circuit. The appeals court dissected two Defense Distributed arguments: that the 5th Circuit mandamus decision vacating Pitman’s transfer order automatically restored its claims against the New Jersey AG; and that Defense Distributed should be allowed to amend its complaint in the Texas case to revive claims against the New Jersey official. Both arguments, the appeals court said, failed because the transfer had already been completed.
“The failure to seek a stay appears fatal to [Defense Distributed’s] novel revival theory,” the appeals court said. “It is unfortunate that these otherwise valid claims cannot currently be heard in the court chosen by plaintiffs.” (The appeals court notably said the group was not to blame for failing to request a stay because it could not have anticipated that New Jersey would refuse to send the case back.)
Jurisdiction could decide the outcome of this case, since the 5th Circuit has already signaled that it regards the New Jersey law as untenable. But somehow, Defense Distributed has to get the case back into the court’s jurisdiction for that to matter.