The Fifth Circuit's lawlessness is now spreading from California to D.C.

Two federal judges in Texas recently granted motions to transfer cases to other courts. Then the Fifth Circuit got involved. Now, it's a nationwide mess.

The U.S. Court of Appeals for the Fifth Circuit is at it again.

And again.

In a pair of cases currently pending … somewhere … in federal court, the Fifth Circuit is aggressively, and without the clearest of legal authority, trying to stop those cases from being transferred to courts outside of the Fifth Circuit and, in one case, questioning lawyers from the agency involved for their actions in connection with the transfer.

Importantly, both underlying cases raise ideological, if not explicitly political, questions and include aligned representation. Both cases appear to have been brought in federal courts in Texas in substantial part to get the benefit of the Fifth Circuit’s far-right extremism, making the Fifth Circuit’s overzealous actions to keep these cases within the Fifth Circuit all the more questionable. Both transfers also happened as the broader federal courts system tries — with pushback — to deal with what it clearly views as a significant concern about forum-shopping.

The first case, brought by Elon Musk’s SpaceX, is challenging the constitutionality of National Labor Relations Board members and administrative law judges in connection with the agency’s proceedings against SpaceX. Morgan Lewis, a firm with what one would kindly call a robust “management-side” labor practice, is representing SpaceX. This is one of a handful of challenges to the NLRB that have been raised in 2024 as part of broader conservative efforts challenging the administrative state.

The other is brought by the U.S. Chamber of Commerce, American Bankers Association, and other aligned groups challenging the Consumer Financial Protection Bureau’s credit card late fee rule.¹ Among their lawyers are the U.S. Chamber Litigation Center; the American Bankers Association’s in-house lawyers; and Paul Hastings, another leading “management-side” law firm.

In the SpaceX case, the appeals court essentially bullied one of its own district court judges to get a case back that had already been transferred to a federal court in California and, in a Friday night order in the Chamber case, a different panel of the appeals court is now trying to do something similar — and, potentially, more far-reaching — in a case that has already been transferred to the D.C. federal court.

The Fifth Circuit’s actions, resting on questionable legal grounds, are making their own district court judges’ jobs more difficult while also pressuring judges outside of the Fifth Circuit — where the Fifth Circuit judges have no authority — to submit to Fifth Circuit orders indirectly targeted at them by way of a case transferred to them.

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The NLRB challenge

In the SpaceX case, U.S. District Judge Rolando Olvera, an Obama appointee to the federal court in the Southern District of Texas, granted the NLRB’s request that SpaceX’s case against it be transferred to the Central District of California. Olvera did so, on Feb. 15, because neither any party lives in the Southern District of Texas nor had a “substantial part” of the reason for the lawsuit happened there.

The next day, however, attorneys for SpaceX from Morgan Lewis filed a petition for mandamus in the Fifth Circuit, asking the appeals court to order the Southern District of Texas to get the case back. This, honestly, should have been the end of it. As the Morgan Lewis lawyers made clear, the case had already been transferred.

Michael Kenneally, the Morgan Lewis lawyer, wrote to the Fifth Circuit that this was about “an erroneously transferred case.”

In the seven weeks since, however, the Fifth Circuit has treated the case otherwise, issuing a flurry of orders, first resulting in the Central District of California, in essence, deferring to a request from the district court on Texas that the case to be sent back to it. On its face, though, that was done so that SpaceX could have its mandamus request considered while the case was back within the Fifth Circuit’s jurisdiction. A three-judge panel of the Fifth Circuit, on a 2-1 vote, properly denied SpaceX’s mandamus request on March 5. Judges Catharina Haynes, a George W. Bush appointee, and Dana Douglas, a Biden appointee, denied the request. Judge Jennifer Walker Elrod, another George W. Bush appointee, dissented.

That should have been the end of it, and Olvera, again, would have transferred the case.

But not in the Fifth Circuit.

Less than three hours later, the court announced that a judge of the Fifth Circuit — we are not told who — withheld the mandate, meaning the Texas district court was not to transfer the case back to California. Two days later, on March 7, Texas asked the full court to reconsider the mandamus request, en banc.

The court has not acted on that request, but, the three-judge panel, on April 1, ordered two NLRB lawyers to answer a series of questions about their actions in the case relating, in particular, to calls to the California court.

The NLRB lawyers, in an April 3 filing, made exceptionally clear why the lawyers took all the steps they took — repeatedly questioning the Fifth Circuit panel’s assumptions about the lawyers’ actions and the panel’s conclusions about the underlying law. And yet, because of all of this, NLRB lawyers have been forced to defend fairly ordinary lawyering that, in large part, resulted from a combination of apparent forum-shopping by the plaintiffs looking to gut the NLRB by way of the Fifth Circuit and the Fifth Circuit’s own questionable-at-best efforts to keep the case in the Fifth Circuit.

And, as of now, the case remains under the Fifth Circuit’s jurisdiction — just as the Morgan Lewis lawyers challenging the NLRB wanted.

[Update, April 17: On Wednesday, the Fifth Circuit denied the request for en banc review on an 8-8 vote, with Judge James Ho not participating. The district court in Texas now can transfer the case, again, to California.]

And that’s just the first case.

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The CFPB fight

In the Chamber of Commerce case against the CFPB’s credit card late fee rule, U.S. District Judge Mark Pittman, a Trump appointee, granted the CFPB’s transfer request in a March 28 ruling that questioned why the plaintiffs’ case why filed there.

At one point, Pittman noted, “The Rule at issue in this case was promulgated in Washington D.C., by government agencies stationed in Washington D.C., and by employees who work in Washington D.C. Most of the Plaintiffs in this case are also based in Washington D.C. and eighty percent of the attorneys in this matter work in Washington D.C.” Ultimately, he concluded, the “case does not belong in the Northern District of Texas and certainly not in the Fort Worth Division.”

The next day, the attorneys for the Chamber and allied organizations filed a petition for mandamus in the Fifth Circuit, asking the appeals court to order the Northern District of Texas to get the case back. This time around, the lawyers made an alternative argument, asking the appeals court to order the district court to reopen the case because the “transfer order was void for lack of jurisdiction.”

Why is that?

On March 25, the plaintiffs went to the Fifth Circuit on other grounds, seeking an injunction from the Fifth Circuit pending their appeal to that court because Pittman, as of their filing, had not yet ruled on their request for an injunction of the CFPB’s rule. As the plaintiffs argued, the injunction had been “effectively denied” because Pittman didn’t “act on it by the date Plaintiffs had respectfully identified” as when they needed a ruling ”to protect their rights” and by “denying Plaintiffs’ request” to rule on their preliminary injunction request “before evaluating venue.” (More on this to come.)

On March 29, though, the case “was transferred in” to the D.C. court as a result of Pittman’s March 28 order, given a docket number, and assigned to U.S. District Judge Amy Berman Jackson, an Obama appointee.

Also on March 29, a panel of the Fifth Circuit — Judges Carl Stewart (Clinton), James Graves (Obama), and Andy Oldham (Trump) — granted what appeared to have been an incorrectly worded order. It stated, “IT IS ORDERED that appellants’ motion for stay of the District Court’s transfer order pending appeal is administratively stayed until 10:00 a.m. on March 30, 2024.“ If the motion is stayed, which is what the order stated, then nothing changed. A little more than 14 hours later, at nearly 1:30 a.m. CT March 30, the same panel issued another order: “IT IS ORDERED that the District Court’s transfer order is administratively stayed until 5:00 PM on Tuesday, April 2, 2024.”

That would have been right, but, by then, the D.C. court already had the case.

On April 2, the Fifth Circuit extended its order staying the district court’s transfer order — regarding a case that had, at that point, been transferred elsewhere several days earlier. This order does not specify the panel, only stating that it was “entered at the direction of the court.”

In the mandamus case, meanwhile, the court, on April 1, asked for a response from CFPB by April 2. In its response, the bureau argued that the Chamber and its allies were “attempt[ing] a feat of alchemy—the conversion of the ordinary into the extraordinary,” stating that plaintiffs’ argument is nothing more than ”an ordinary objection to a district court’s exercise of discretion to transfer a case ‘[f]or the convenience of parties and witnesses, in the interest of justice,’” citing federal law. Mandamus, on the other hand, “is a ‘drastic and extraordinary remedy reserved for really extraordinary causes,’” they continued, citing Supreme Court precedent. “Plaintiffs’ efforts at alchemy fail, as all do,” the CFPB’s lawyers argued.

But not in the Fifth Circuit.

On Friday, Judge Don Willett, a Trump appointee — joined by Andy Oldham, another Trump appointee — declared the alchemy a success.

“Because the plaintiffs appealed the district court’s effective denial of their preliminary-injunction motion before the district court granted the motion to transfer the case, we agree that the district court acted without jurisdiction,” Willett wrote, hanging his hat on the fact that the district court had not yet ruled on the plaintiffs’ request for an injunction when the Chamber brought up their appeal.

Judge Stephen Higginson, an Obama appointee, dissented, writing, “[T]he district court’s prompt transfer of the case, after explaining in detail why the case was improperly before it, dutifully heeds our admonishments to district courts to prioritize ruling on motions to transfer.”

In other words, the argument that the plaintiffs made ran directly counter to what the Fifth Circuit had told judges to do in past cases.

Now, to understand just how ridiculous this request — and the Fifth Circuit’s mandamus ruling — is, understand that the case was only filed on March 7, and Pittman was the third judge to be assigned the case in the 18 days between the filing and the plaintiffs’ notice of appeal. Six of those days were weekends.

The initially assigned judge, U.S. District Judge Terry Means, is a senior status judge and asked to have the case reassigned the day it was filed. The next day, Judge Reed O’Connor filed his first order in the case. In the days that followed, O’Connor ruled on several pro forma motions for admissions of counsel and for filing of amicus curiae briefs before recusing himself from the case on Thursday, March 14. Only then was the case reassigned to Pittman. Four days later, after apparently familiarizing himself with the case over the weekend, on Monday, March 18, Pittman raised his venue concerns to the parties, explicitly laying out a schedule for how he wanted to deal with these concerns. The next day, rather than address Pittman’s venue concerns, plaintiffs instead asked him to rule first on their preliminary injunction motion. Pittman denied their request the very next day, March 20, making clear that venue — and all parties’ view of it — was his first concern. The next day, March 21, the government filed its motion for transfer of venue and supporting brief. The next filings came on Monday, March 25. First, the plaintiffs filed their opposition to the venue transfer request. Then, hours later, they filed their notice that they were appealing Pittman’s “effective denial” of their motion for preliminary injunction.

In sum, Pittman had the case for 11 days — or 7 business days — before the Chamber went to the Fifth Circuit arguing “effective denial” of their preliminary injunction request because they didn’t like that he sought to look at venue first, as the Fifth Circuit has directed judges to do previously.

Despite that, Willett never mentioned the multiple judges to have the case or the quick and transparent responsiveness of Pittman during his time on the case, instead portraying the admittedly confusing timeline as something of Pittman’s doing rather than a result, primarily, of O’Connor’s failure to recuse for a full week.

This case is important on its own regarding the CFPB and the credit card late fee rule, but Higginson also noted the potential broader impact in his dissent.

“[T]he majority’s grant of mandamus also threatens to impossibly hamstring district courts by effectively declaring that our district judges cannot manage their dockets to sequence threshold questions before difficult merits questions and cannot transfer cases if there are motions pending,” he wrote. In order to avoid immediate appellate review, Higginson explained, district court judges will now simply have to “accede to a plaintiff’s insistence for a ruling in less than two weeks from assignment of the case” to avoid the fate of this Willett-Oldham precedent.

Finally, there’s still the question of what is happening with the case challenging the CFPB rule.

Willett ended the Fifth Circuit’s opinion by stating, “The [Texas] district court is ORDERED to reopen the case and to give notice to [the D.C. district court] that its transfer was without jurisdiction and should be disregarded.”

Higginson ended his dissent by stating, “I am confident the District Court for the District of Columbia will give the suggestion that it should disregard a case docketed by it its closest attention.”

As of early Sunday morning, Jackson — the D.C. judge — still has the case.

[Update, 2:00 p.m. April 10: On Wednesday, Judge Amy Berman Jackson closed the Chamber’s CFPB case in her D.C. court in a brief order that she wrote “should not be read to express any view on the transfer question, which has not been presented to this Court to decide.”

Although the Fifth Circuit, ultimately, got what it wanted — the case back — Jackson did indirectly respond to the Fifth Circuit’s ruling from Willett:

The Fifth Circuit found that the district court lacked jurisdiction to transfer the case while an appeal was pending before the Court of Appeals, and it ordered the district court to "reopen the case and to give notice to D.D.C. that its transfer was without jurisdiction and should be disregarded." While the Court is not inclined to "disregard" a case on its docket, and it has considerable discretion to supervise its own cases, a review of the Notice and Order, as well as the docket in the Northern District of Texas, reflects that the case is now proceeding there under the supervision of another district court.

As such, she wrote, the case is “terminated on this court's docket at this time without prejudice.” In other words, if it comes back to her, she’s ready for it.]

1. The issue being addressed by this rule is raised in a concise and biting way in Julio Torres’s first feature film, Problemista, currently in theaters. I saw the film in the middle of writing this report on Saturday, so, yes, you’re getting this as a footnote. See this movie!