The Fifth Circuit Is Snatching Cases From Other Circuits Now?

When a nationwide injunction isn't power-grabby enough.

The United States Court of Appeals for the Fifth Circuit is, to put it mildly, nuts. A majority of its judges are not just conservatives; they’re Trumpland conspiracy-theory loons who think the Biden Administration is poisoning us with COVID vaccines, killing women with mail-order mifepristone, and secretly colluding with a shadowy cabal of social media overlords to suppress conservative speech. According to the Fifth Circuit, the government is bad, unless that government is paying bounty hunters to track down abortion doctors or putting up razor wire at the border to maim or kill US border patrol agents and refugees.

Even the Supreme Court justices seem to be losing patience with these assholes. Last term, the Roberts Court granted certiorari in eight Fifth Circuit cases, of which it reversed seven. That trend continued this term, with the Court reversing the only two Fifth Circuit cases it has decided so far: Consumer Financial Protection Bureau v. Community Financial Services Association of America (7-2), and Devillier v. Texas (9-0). So perhaps there’s room for optimism that SCOTUS will take action to rein in the worst of the Fifth Circuit’s excesses.

But while we wait for the six horsemen of the apocalypse to decide how much damage to the rule of law is tolerable, one judge in the Northern District of Texas seems to be taking up the challenge.

Local Judges, Nationwide Rulings

In theory, Fifth Circuit rulings are only binding in Texas, Louisiana, and Mississippi. But of late, federal district judges in these three states have taken to issuing nationwide injunctions, binding across the country on hundreds of millions of Americans. As a result, these states have become a Mecca for right-wing activists seeking to enact federal policy without bothering to get elected. Even if they happen to draw a trial judge who cares about precedent and statutes, any appeal will wind up before a three-judge panel where at least two of the jurists are wearing bright red MAGA hats under their robes.

The situation is exacerbated by the Fifth Circuit’s refusal to abide by the recommendation of the Judicial Conference, the federal court system’s policymaking body, which is presided over by Chief Justice Roberts himself. In March, the Judicial Conference announced its policy preference for random case assignment to discourage forum shopping by litigants seeking to get in front of a specific judge. And they weren’t subtle that the goal was to tamp down on these nationwide injunctions issuing from the Fifth Circuit:

The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.

But Mitch McConnell didn’t put up with the humiliation of Donald Trump for nothing. He specifically parked ringers like Judge Matthew J. Kacsmaryk in the Northern District of Texas where litigants have a 95% chance of drawing him if they file in the Amarillo Division. That’s why an astroturf group of “medical professionals” incorporated in Amarillo as soon as Kacsmaryk was confirmed — they wanted to get in front of an anti-abortion zealot so they could tee up a nationwide ban on the abortion drug mifepristone. And it worked!

So when the Judicial Conference made a non-binding recommendation to change the way cases were assigned, the Fifth Circuit said NOPE.

Hanging Out the Wingnut Welcome Mat

On March 7, the US Chamber of Commerce took the Fifth Circuit up on its generous offer and marched into the Northern District of Texas’s Fort Worth Division to file a complaint against Consumer Financial Protection Bureau. Litigants in Fort Worth have a 90 percent chance of being assigned to either Judge Reed O’Connor or Judge Mark Pittman, both highly Trump-y Trump appointees, and the Chamber hoped to block a regulation capping credit card late fees at $8.

The appropriate venue for this case is in DC, where rule was promulgated and both the Chamber and the CFPB are headquartered. But no judge in DC was going to enjoin the rule, which was set to go into effect on May 14, the Chamber simply added the the Fort Worth Chamber of Commerce as a plaintiff and happily spun the wheel, confident that they’d land with an arch-conservative kindred spirit, willing to wink at the fig leaf of bringing this case in Texas.

Hilariously, the Chamber drew retired Judge Terry R. Means, a 76-year-old George H.W. Bush appointee from Roswell, New Mexico, which basically makes him a socialist compared to his colleagues in Fort Worth. But Means, who’s playing a lot of golf these days, reassigned the case to Judge O’Connor, who in turn recused himself a week later, leaving Judge Mark Pittman holding the hot potato.

Pittman is a Federalist Society weirdo who was appointed to the Texas bench in 2015 by Rick Perry, elevated to a Texas appeals court in 2017 by Greg Abbott, and finally named to the federal judiciary in 2019 by Donald Trump. He’s also the judge who struck down the Biden Administration’s student loan forgiveness program — so he’s definitely not squeamish about nationwide injunctions.

But here’s the thing: When you keep your thumb on the scale long enough, your hand starts to cramp. And it seems that Judge Pittman is getting pretty tired of being a destination docket for right-wing judge-shopping.

Pittman received the case on the afternoon of Thursday, March 14, and on Monday morning he ordered expedited briefing as to what the hell this case was doing in his courtroom.

“The Court is weary that there appears to be an attenuated nexus to the Fort Worth Division,” Judge Pittman wrote, noting that “only one plaintiff of the six in this matter has even a remote tie to the Fort Worth Division.”

But the Chamber didn’t come halfway across the country for nothing, so it declined to brief the question of venue, instead responding with a motion to expedite briefing on their request for an injunction, demanding that the court block the credit card rule first, and then get to the issue of venue later — an inversion of the general order of operations in every other case.

Judge Pittman was incensed and denied the Chamber’s motion two days later.

“The Court does not have the luxury to give increased attention to certain cases just because a party to the case thinks their case is more important than the rest,” he wrote. “There are simply too many cases that demand the Court’s full attention.”

But absent expedited review, the credit card fee cap would go into effect on May 14 before the parties had finished briefing on the merits. So the Chamber filed an immediate interlocutory appeal to the Fifth Circuit, arguing that Judge Pittman had “effectively denied” their motion for an injunction by refusing to expedite briefing. Which he had … although, a complainant who is not entitled to venue is definitionally not entitled to relief.

That Escalated Quickly

And that’s when Judge Pittman’s beef with the Fifth Circuit started heating up, because an interlocutory appeal does not deprive the lower court of jurisdiction on the remaining issues, so while the Chamber of Commerce was busy briefing the Fifth Circuit on the merits, Judge Pittman ordered the case transferred to DC.

This should have mooted said appeal, since the Fifth Circuit doesn’t get to tell the United States District Court for the District of Columbia what to do. But the Fifth Circuit struck back, staying Judge Pittman’s transfer order and ordering him to rule within ten days on the Chamber’s request for an injunction blocking the CFPB’s credit card regulation.

On May 10, Judge Pittman obliged, in an order devoted as much to airing his legitimate grievances about how the Fifth Circuit was unfairly micromanaging his docket as to the actual injunction:

While the Court has the utmost deference for its colleagues on the appellate court, it respectfully notes that this seems to be a usurpation of the Court’s docket-management authority, especially considering precedents in the Fifth Circuit’s order. … If a party in a civil case can manipulate the system in order to have a district court be forced by an appellate court to act in a specific number of days, problems will arise. District courts are entrusted to manage their own dockets. The Court is concerned that this case opens the door for “mischief” wherein plaintiffs can come up with creative reasons for demanding prompt preliminary-injunction rulings under a dictated timeline.

He also said the quiet part out loud, noting that the Fifth Circuit was clearly trying to keep the case in Texas, from which one may infer that the appellate judges intended a particular outcome and were afraid of how the DC court would rule:

During this five-week period, the Court is confident that the District Court for the District of Columbia could have held a preliminary-injunction hearing (if they so chose) and ruled on the merits of Plaintiffs’ request. The Court possessed and still possesses full faith in the District Court for the District Court of Columbia to make a just and fair ruling on Plaintiffs’ motion. If parties cannot have faith that the legal system operates with integrity and full credence in the law, then the system is already broken. We must trust the system.  

In the end, Judge Pittman granted the Chamber the injunction it so desperately wanted, citing the then-pending Consumer Financial Protection Bureau v. Community Financial Services Association of America, in which the Supreme Court had been asked to affirm a Fifth Circuit decision invalidating the entire CFPB, which would have been determinative in the Chamber’s case.

But the Supreme Court did not affirm the Fifth Circuit. Instead, six days later, the Court, issued a 7-2 decision upholding the CFPB’s funding structure. Meanwhile, the Fifth Circuit dismissed the Chamber’s interlocutory appeal, since it had already gotten its injunction, and sent the case back to the trial judge.

That mandate came down on May 28, 2024, and within minutes the CFPB had filed a motion to transfer the case to the District of Columbia (where it belongs). A few hours later, Judge Pittman granted the motion in a 12-page order that one may infer just might have been written in advance. That order reiterated the judge’s irritation with the Fifth Circuit, immediately transferred the case to DC, and ordered the parties “to file future documents in the District of Columbia.”

Once again the Chamber did not “file future documents in the District of Columbia.” Instead, after the case had been transferred, the Chamber moved the Fifth Circuit for a stay and a writ of mandamus blocking Judge Pittman’s transfer. Unlike two months earlier, however, there was no pending appeal before the Fifth Circuit that could have given it plausible jurisdiction over the case. Nor could the Chamber file such an appeal after the Court closed its file and transferred the case to DC; at that point, the district court has no jurisdiction over the case, and the Fifth Circuit can’t hear an appeal from a court that can’t hear the case in the first place.

And yet on May 29, the Fifth Circuit entered an order purporting to stay Judge Pittman’s transfer order for three weeks.

Tellingly, this wasn’t the first time the Fifth Circuit tried to claw back a case after a trial judge determined that it belonged elsewhere. In January, Elon Musk’s SpaceX sued the National Labor Relations Board in an effort to invalidate all of American labor law. The case involved a labor dispute in California, where SpaceX is headquartered, and so Judge Jose Rolando Olvera, Jr. transferred the case out of his courtroom in Texas to the Central District of California, specifying that the transfer was to take place “within 21 days” of the entry of the order. Taking advantage of that delay, the Fifth Circuit immediately ordered the district court to invalidate its transfer order and take back the case from the California Court, on the grounds that it did so “prior to the case being docketed in the Central District of California,” i.e., before a case number was issued. The California court complied with the Fifth Circuit’s request.

Perhaps the Fifth Circuit will argue that, like in SpaceX, the transfer had not yet been “docketed” via the issuance of a case number in DC. But unlike SpaceX, Judge Pittman immediately transferred the case prior to the filing of any relief in the Fifth Circuit, rather than waiting 21 days. And also unlike SpaceX, this time the Fifth Circuit didn’t bother to ask Judge Pittman if he still had jurisdiction before issuing its ruling.

This is truly uncharted territory. The DC court may choose not to effectuate a transfer back to the Northern District of Texas. Judge Pittman may choose not to issue a request to DC to return the case. The CFPB may petition for its own writ of mandamus in the DC Circuit invalidating the Fifth Circuit’s purported “administrative stay” for want of jurisdiction. We just don’t know, because we’ve never had an appellate court try to issue relief for a case it no longer has any jurisdiction over. But whatever happens, the war against the Fifth Circuit is on, and now there are some unlikely allies in the fray.