When delay equals “effective denial” of a preliminary injunction

A couple of weeks ago, the U.S. Fifth Circuit issued an interesting judgment granting mandamus: In re Fort Worth Chamber of Commerce, No. 24-10266 (5th Cir. Apr. 5, 2024). For appellate lawyers and anyone else practicing in the federal system, it’s worthwhile reading. The case raised issues of both the Fifth Circuit’s jurisdiction over a purported appeal and the district court’s jurisdiction after the puported appeal.

Here’s the skinny version of what happened: The Chamber sued for a preliminary and permanent injunction against a rule promulgated by Consumer Protection Financial Bureau. Claiming that time was of the essence, the Chamber filed several pleadings seeking an expedited hearing of its request for a preliminary injunction, citing the short time before the new rule would take effect. Rather than rule on the merits of the preliminary injunction, the district court invited the Bureau to file a motion to transfer the case to D.C., which the Bureau did. Before the district court ruled on the motion to transfer, the Chamber appealed the “effective denial” of the preliminary injunction. Three days later, the district court granted the Bureau's motion to transfer.

The Chamber petitioned the Fifth Circuit for a writ of mandamus vacating the transfer. A 2–1 majority (Judges Willett and Oldham) granted the writ. Judge Higginson dissented.

The case raised two issues of appellate procedure. First, without an explicit ruling on the preliminary injunction, did the district court “effectively deny” the preliminary injunction, giving the Chamber the right to appeal? (See 28 U.S.C. §1292(a)(1), allowing appeal of an interlocutory order granting or denying a preliminary injunction.) This issue split the panel. The majority held that, under the case’s particular facts, the district court’s failure to hold an expedited hearing of the motion for preliminary injunction constituted an effective denial of a preliminary injunction. The majority accepted the Chamber’s argument that, because of the case’s urgency (the imminent effective date of the new rule and cost of compliance with it), the district court’s failure to grant the Chamber’s request for an expedited hearing of the preliminary injunction constituted an effective denial.  Judge Higginson dissented on that issue, arguing that the urgency for a ruling on the preliminary injunction was “a fiction.” Slip Op. at 25.

Once the majority concluded that the Chamber had the right to appeal, the rest was easy. Once the Chamber took a valid appeal, the district court had no jurisdiction to “alter the status of the case as it rests before the Court of Appeals.” Slip Op. at 10. The majority reasoned that the transfer most certainly altered the status “because a transfer would frustrate our ability to provide meaningful relief because we would have no case to review.” Id.

There was still the question of whether the Chamber met the high threshold for mandamus. That part of the majority’s opinion was relatively short. Here’s the money quote:

Facing an uptick in inter-circuit transfer orders, we take this opportunity to clarify that once an appealable order is lodged before our court, district courts lack jurisdiction to transfer a case because it stymies our ability to review. [Slip Op. at 12–13.]

Just one editorial comment: Is the right to a writ of mandamus “clear and indisputable” when the court of appeals splits 2–1 on whether mandamus is appropriate?