Trump appointee blasts Fifth Circuit over "landmines" in its recent decisions

"Parties should not be allowed to manipulate the court system to order trial judges 'how', 'what', and 'when' to rule," Judge Mark Pittman wrote.

In a case that has already ping-ponged around the federal court system, U.S. District Judge Mark Pittman on Friday granted the U.S. Chamber of Commerce’s request to block the Consumer Financial Protection Bureau’s new credit card late fee rule from going into effect.

In doing so, a trial court judge in the federal system issued a ruling that adhered to the law and precedent within his circuit, as he is obligated to do.

At the same time, however, Friday’s decision from Pittman — a Trump appointee to the Northern District of Texas — was a remarkable attack on the actions of the U.S. Court of Appeals for the Fifth Circuit, the court to which all of his cases are appealed.

More than half of Pittman’s 12-page opinion is devoted to making as clear as possible his extreme dissatisfaction with the behavior of the Fifth Circuit in this case.

Pittman — referencing the Fifth Circuit’s earlier ruling that sent the case back to him — wrote that he “rejects the notion that [his court] did not act ‘promptly’ with respect to the Plaintiffs’ preliminary-injunction motion.”

As to the specifics of what he did with the Chamber’s challenge — and how the Fifth Circuit responded — Pittman later added, “[A] district court has broad discretion and inherent authority to manage its docket. … That’s what it did here, much to the apparent dismay of the Fifth Circuit.”

Pittman — a conservative judge — made a very public case Friday that the Fifth Circuit’s actions in the case encourage party manipulation of the court process.

We should listen.

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First, the news

Under a “limited remand” from the Fifth Circuit, Pittman was given 10 days to rule on the Chamber’s motion for a preliminary injunction halting the new rule — after the Fifth Circuit had previously also ruled that Pittman had “effectively denied” the motion because “the district court did not act promptly with regard to the Chamber’s motion for a preliminary injunction.”

Nonetheless, on Friday, Pittman granted the Chamber’s request.

The ruling is a setback for consumers nationwide, as Friday’s ruling — despite being brought in the Northern District of Texas — stays the new rule for the whole country.

Of course, that’s why the Chamber got the Fort Worth Chamber of Commerce to join them as a plaintiff in the case, along with a handful of other Texas-based entities. And that’s, in part, what sent the case to D.C. and to the Fifth Circuit: Pittman believed this case should be heard in D.C. — and transferred it there. The Chamber complained to the Fifth Circuit, though, and the Fifth Circuit agreed with the Chamber, ordering Pittman to get the case back and to rule quickly on the Chamber’s preliminary injunction request.

That, he did.

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A note on the substance

Before we get into Pittman’s criticism of the Fifth Circuit, however a comment about the substance of Pittman’s ruling.

Despite being a very conservative judge, it is notable that Pittman based his opinion not just on a thin reed but on a thin reed that could be cut down by the U.S. Supreme Court by the end of June.

In explaining his decision, Pittman noted, “While Plaintiffs make compelling arguments under the CARD Act, TILA, and APA, the Court need not address them because the Fifth Circuit has held that the CFPB’s funding structure is unconstitutional. Based on that precedent, and as further explained below, a preliminary injunction is warranted here.”

In short, because the Fifth Circuit previously held that the CFPB’s funding structure is unconstitutional, Pittman wrote, “any regulations promulgated under that regime are likely unconstitutional as well.” But, there’s a catch: The Supreme Court granted review of that earlier Fifth Circuit decision (involving a payday lending rule), heard arguments in October 2023, and is yet to rule. As such, the Fifth Circuit’s ruling on the funding structure could be reversed or altered (or affirmed) any week now.

And yet, that is the sole basis on which Pittman based his ruling — meaning that the basis for his stay of the credit card late fee rule could disappear at any moment.

It was the simplest way to resolve the request. And, to be sure, it got the Chamber what it wanted: a block to the CFPB rule in which any appeal goes through the Fifth Circuit. But, lower-court judges often provide multiple rationales where available for any decision to protect the decision from being reversed if one rationale is overturned on appeal.

I’m not saying that Pittman did this because he is pissed at the Fifth Circuit, but I do think that the limited time the Fifth Circuit gave him to address the case prevented him from delving into those other bases — or, perhaps, discouraged him from doing so.

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The backlash

Beyond the substance, though, was Pittman’s not-at-all hidden anger at the Fifth Circuit.

After describing the twisted timeline of the case, this is what Pittman did.

Honestly, I don’t think I’ve ever seen a trial judge call out their appeals court with a condescending timeline visual before.

Then, in the “analysis” section of Pittman’s ruling, section A is the “preliminary injunction” section — the entirety of what he was asked to do. However, Sections B and C remained:

Yeah, he’s not happy.

Pittman opened section B by noting that “the Court must address concerns laid out in the Fifth Circuit’s recent opinions,” adding, “The Court must respectfully disagree with its appellate court colleagues that it did not act ‘promptly’ or was otherwise dilatory or sluggish in its resolution of the preliminary injunction.”

This is important because that delay — the “effective denial” of the preliminary injunction request — was the decision, ultimately, that the appeals court used to justify its order that Pittman ask for the case back from D.C. (As laid out here.)

Describing the fact that the case was given to him a week after its filing because two other judges were assigned to it before he was, Pittman continued:

Review of the docket shows the case was officially docketed with the undersigned at 3:29 p.m. (CDT) on March 14. After reviewing the pending preliminary injunction briefing—which totaled in excess of eighty pages—the Court ordered expedited briefing to address venue issues the Court identified in its review. See ECF No. 45. That order was docketed at 4:59 p.m. (CDT) on Monday, March 18, only two business days after the case was received.

The Fifth Circuit’s failure to recognize this was highlighted in Law Dork’s earlier coverage.

Soon thereafter, as noted above, Pittman ordered the case transferred to D.C. In section B of Friday’s opinion, Pittman then wrote that the Fifth Circuit “suggested the Court should have stayed the transfer while the appeal was pending.” As to that, Pittman wrote:

The Court considered this action. But insofar as time was of the essence, the Court found transfer more appropriate. However, the Court welcomes further guidance from the Court of Appeals as to whether a district court must first rule on an injunction motion before it can transfer a case.

That section, however, was the warmup for section C, in which Pittman questions the Fifth Circuit’s order that his court take back and rule on the Chamber’s preliminary injunction request in 10 days.

“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,” Pittman wrote, adding, “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.”

Pittman is not joking around.

While he wrote that he “welcomes further guidance” in section B, he is more direct and abrupt in section C: “[T]he Court would appreciate additional clarity and instruction from the Fifth Circuit regarding the circumstances in which a party can instruct a trial court to rule and dictate the Court’s terms and timeline.”

Pittman also made it clear that his annoyance is not limited to the Fifth Circuit, but also to the plaintiffs, who did not seek a temporary restraining order in the case — the fastest way to get relief. In a footnote, Pittman wrote:

After detailing all that happened in the case, the Chamber’s actions, and the Fifth Circuit’s rulings, Pittman concluded by telling the parties, the public, and the appeals court what he thought of the appeals court’s handling of the case and its potential consequences.

Noting that he “accepts the rulings of Fifth Circuit in this case without passion or prejudice and will apply its guidance to the utmost of its ability,” Pittman nonetheless added:

[T]his Court would be remiss it did not point out the potential landmines the court's ruling could pose for a trial judge's day-to-day docket-management discretion, especially in a busy division. Parties should not be allowed to manipulate the court system to order trial judges "how", "what", and "when" to rule.

That is what the Chamber did here, and what the Fifth Circuit encouraged.