Distributed v. Def. Attorney Gen. of N.J., Nos. 19-1729 & 19-3182

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: SHWARTZ, Circuit Judge.
• Citation: 972 F.3d 193
• Parties: DEFENSE DISTRIBUTED ; Second Amendment Foundation Inc ; Firearms Policy Coalition Inc ; Firearms Policy Foundation; Calguns Foundation ; California Association of Federal Firearms Licensees Inc; Brandon Combs, Appellants v. ATTORNEY GENERAL State OF NEW JERSEY
• Docket Number: Nos. 19-1729 & 19-3182
• Decision Date: 25 August 2020

972 F.3d 193

DEFENSE DISTRIBUTED ; Second Amendment Foundation Inc ; Firearms Policy Coalition Inc ; Firearms Policy Foundation; Calguns Foundation ; California Association of Federal Firearms Licensees Inc; Brandon Combs, Appellants
v.
ATTORNEY GENERAL State OF NEW JERSEY

Nos. 19-1729 & 19-3182

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1a February 28, 2020
Filed: August 25, 2020

OPINION

SHWARTZ, Circuit Judge.

Defense Distributed, the Second Amendment Foundation ("SAF"), and other firearm interest organizations, together with one of their members ("Plaintiffs"), challenge the New Jersey Attorney General's efforts to prevent unregistered and unlicensed persons from distributing computer programs that can be used to make firearms with a three-dimensional ("3D") printer.¹ When Plaintiffs sued in the United

972 F.3d 196

States District Court for the District of New Jersey, the same claims by some of the same plaintiffs were already pending in the United States District Court for the Western District of Texas ("the Texas action"). Plaintiffs moved for a preliminary injunction in New Jersey, but the District Court stayed the proceedings until the Texas action was resolved and dismissed the injunction motion. Plaintiffs appeal the District Court's orders, asking us to direct that Court to decide the motion for a preliminary injunction. Because the District Court's stay and dismissal orders are not appealable, we will dismiss for lack of appellate jurisdiction.

I

Attorneys general from several states, including New Jersey, have initiated civil and criminal enforcement actions to prevent Defense Distributed from publishing computer files on the Internet that can make guns using a 3D printer. Def. Distrib. v. Grewal (Def. Distrib. II ), 364 F. Supp. 3d 681, 686 (W.D. Tex. 2019) (explaining history), argued, No. 19-50723 (5th Cir. May 4, 2020). In response, in July 2018, Defense Distributed and SAF filed a complaint, alleging that actions by state attorneys general were a "coordinated and politically-fueled campaign to censor Defense Distributed" that violated various constitutional rights. Id. at 686. The Texas plaintiffs moved for a preliminary injunction, and the state attorneys general moved to dismiss for lack of personal jurisdiction. Id. at 685. On January 30, 2019, the Texas court granted the motions to dismiss and accordingly denied the motion for a preliminary injunction. Id. at 693.²

Six days later, Plaintiffs here filed this lawsuit. Like in the Texas action, Plaintiffs alleged that "[w]ith a torrent of civil and criminal enforcement actions, [the Attorney General] is conducting a censorship campaign." App. 8. Proceeding under 42 U.S.C. § 1983, Plaintiffs allege that the Attorney General's actions violate their rights under the First and Second Amendments, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and the dormant Commerce Clause, and that the Attorney General's actions are preempted by the federal Arms Export

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Control Act and Communications Decency Act.

Two weeks later, Plaintiffs moved for a preliminary injunction on all claims except their Second Amendment and Equal Protection claims. Meanwhile in the Texas action, Defense Distributed and SAF moved to amend the district court's judgment, arguing that (1) the court erred in its jurisdictional analysis and should "withdraw[ ] the decision to dismiss the Plaintiffs’ action as to all defendants," and (2) they should be allowed to amend their complaint to include allegations that would support personal jurisdiction over the Attorney General specifically. Pls.’ Mot. to Alter or Amend the J., Def. Distrib. II, No. 1:18-CV-637 (W.D. Tex. Feb. 27, 2019), ECF No. 102. Because Defense Distributed and SAF continued the litigation in the Texas action, the Attorney General requested a stay of the New Jersey proceedings.

At a March 7, 2019 conference on the stay request, the Attorney General explained that he was prepared to defend this action in the District of New Jersey, but that because Defense Distributed and SAF are pursuing the Texas action, the Attorney General is required to only defend in the first-filed Texas action. In response, Plaintiffs argued that a stay was not proper because the New Jersey action had five additional plaintiffs, so the Texas action should not delay their right to relief. The Court explained that the requested stay "require[s] us to exercise patience until Judge Pitman [the presiding judge in the Texas action] has ruled on [Defense Distributed and SAF's] motion. That's all." App. 999.

At the end of the conference, the District Court announced that it would stay the case. The Court explained that "it's just a rule of the courts that you don't proceed in two courts at the same time, same parties, same issue." App. 1005. The Court then issued an order providing that "all proceedings in this action are STAYED until the action in the Western District of Texas ... is resolved and no other motions for relief and/or appeals are viable." App. 4. Plaintiffs appealed that order.

Activity in New Jersey then paused, but activity in Texas continued. The Texas court denied Defense Distributed and SAF's motion to amend the judgment, Order, Def. Distrib.II, No. 1:18-CV-637 (W.D. Tex. July 1, 2019), ECF No. 109, and they appealed the order dismissing their complaint for lack of jurisdiction, Notice of Appeal, Def. Distrib. II, No. 1:18-CV-637 (W.D. Tex. July 31, 2019), ECF No. 110; Brief of Appellants, Def. Distrib. v. Grewal, No. 19-50723 (5th Cir. Nov. 22, 2019), but did not request an injunction pending appeal from the Court of Appeals.

With the Texas action continuing, the District Court issued an order that provided:

IT APPEARING that on March 7, 2019, the Court ordered that all proceedings in this action are stayed until the related action in the Western District of Texas ... is resolved and no other motions for relief and/or appeals are viable ..., ORDERED that Plaintiffs’ Amended Motion for Preliminary Injunction ... is DISMISSED without prejudice. Plaintiffs may refile this Motion once the stay has been lifted in this action.

App. 1018. Plaintiffs appealed that order.

In their consolidated appeal, Plaintiffs ask us to (1) hold that the District Court erred in staying the case and (2) direct the Court to decide their motion for a preliminary injunction.

II

We must determine whether we have appellate jurisdiction over Plaintiffs’

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appeal.³ Since Congress first organized the federal judiciary in 1789, only final decisions of district courts have been appealable, subject to limited exceptions. Abbott v. Perez, ––– U.S. ––––, 138 S. Ct. 2305, 2319, 201 L.Ed.2d 714 (2018). Plaintiffs rely on the exception in 28 U.S.C. § 1292(a)(1), which grants appellate courts jurisdiction over "[i]nterlocutory orders of the district courts of the United States ... refusing ... injunctions." Our jurisdiction under § 1292(a)(1) extends to the review of orders expressly denying injunctions and "orders that have the practical effect of ... denying injunctions." Rolo v. Gen. Dev. Corp., 949 F.2d 695, 702 (3d Cir. 1991) (emphasis omitted) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988) ). Section 1292(a)(1) ’s exception to the final-decision rule is limited, so we construe § 1292(a)(1) narrowly. Ross v. Zavarella, 916 F.2d 898, 902 (3d Cir. 1990).

The District Court did not expressly deny Plaintiffs’ motion for a preliminary injunction, so we apply the test from Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), to determine whether the stay is a practical denial of an injunction. See OFC Comm Baseball v. Markell, 579 F.3d 293, 298 (3d Cir. 2009). If we conclude that the order has the "practical effect of refusing an injunction," then we determine whether the appellants have shown that the order has "serious, perhaps irreparable, consequence[s]" and "can be effectually challenged only by immediate appeal." Gillette v. Prosper, 858 F.3d 833, 840 (3d Cir. 2017) (quoting Carson, 450 U.S. at 84, 101 S.Ct. 993 ).

A

The orders here do not have the "practical effect of refusing an injunction." Gillette, 858 F.3d at 840. "[A]n order staying ... an action for equitable relief does not fall under section 1292(a)(1), even though it postpones ... resolution of an action seeking injunctive relief." Cohen v. Bd. of Trs., 867 F.2d 1455, 1464 (3d Cir. 1989) (en banc); see also Gulfstream, 485 U.S. at 279, 108 S.Ct. 1133 (explaining that an "order by a federal court that relates only to the conduct or progress of litigation before that court ordinarily ... is not appealable under § 1292(a)(1)"). The stay order here fits squarely into what our Court described in Cohen as a non-appealable stay order: the District Court simply "postpone[d] ... resolution of an action seeking injunctive relief," 867 F.2d at 1464, until Plaintiffs finished their litigation in Texas.⁴

Moreover, the District Court explained that it stayed consideration of Plaintiffs’ motion because of an earlier filed case. See generally Chavez v. Dole Food Co., Inc., 836 F.3d 205, 210 (3d Cir. 2016) (en banc) (instructing that "when duplicative...