The U.S. Court of Appeals has extended until 5 p.m. CT tomorrow its administrative stay of the district court’s order transferring the case to the U.S. District Court for the District of Columbia.  This is the Fifth Circuit’s second extension of its stay order, with the first extension having expired at 5 p.m. on April 2.  The Fifth Circuit’s order staying the transfer order until April 2 also provided that “this appeal and all pending motions are expedited to the next oral argument panel.”  Despite the Fifth Circuit’s stay of the transfer order, the case was docketed in the D.C. federal district court on March 29 and assigned to Judge Amy Jackson Berman.

On April 2, the CFPB filed its opposition to the plaintiffs’ Emergency Petition for Writ of Mandamus (Opposition).  In their petition, the plaintiffs argue that, although the case has been docketed in the D.C. federal court, the Fifth Circuit continues to have jurisdiction over the case and should order the Texas district court to reopen the case and/or request that the D.C. federal court return the case to Texas. 

In its Opposition, the CFPB does not dispute that the Fifth Circuit continues to have jurisdiction over the case and instead argues that the plaintiffs cannot show, as required by Fifth Circuit precedent, that they have a “clear and indisputable right” to issuance of the writ and that issuance of the writ is appropriate under the circumstances.  The plaintiffs assert that they have a clear and indisputable right to the writ because the district court (1) did not have jurisdiction to transfer the case due to the pendency of the plaintiffs’ appeal from the district court’s effective denial of their motion for a preliminary injunction, and (2) clearly abused its discretion in applying the private- and public-interest factors set forth in In re Volkswagen that the Fifth Circuit has directed district courts to apply in determining whether a transfer of venue is justified.

The CFPB contends that the district court retained jurisdiction because the plaintiffs’ appeal is invalid.  On the same day that the district court denied their motion for expedited consideration of their preliminary injunction motion, the plaintiffs filed a Notice of Appeal in which they asserted that the district court had effectively denied their request for preliminary injunctive relief.  According to the CFPB, the plaintiffs have not validly appealed an “effective denial” of their preliminary injunction motion because the district court did not effectively deny their motion by rejecting the plaintiffs “demand to rule within 15 days [of the date they filed their preliminary injunction motion].”  The CFPB cites cases allowing appeals from “effective denials” that involved significantly longer delays.

It also argues in its Opposition that there is nothing “special about this case that makes the need for relief so urgent that the court’s failure to act immediately amounts to an effective denial.”  The CFPB dismisses the plaintiffs’ concern about the need to begin printing new disclosures before the Rule’s May 14 effective date, asserting that “those compliance costs are negligible in light of the enormous resources that affected card issuers have” and that the Fifth Circuit “would be overrun if plaintiffs could short-circuit district court review any time they faced compliance costs.”

Alternatively, the CFPB argues that even a valid preliminary injunction appeal would not divest the district court of jurisdiction to rule on the transfer motion.  The CFPB asserts that an appeal only divests the district court of jurisdiction over the aspects of the case on appeal.  Accordingly, since the plaintiffs’ appeal concerned their motion for a preliminary injunction, the district court could proceed with other matters not involving the preliminary injunction, including the motion to transfer venue.

The CFPB also challenges the plaintiffs’ contention that the district court abused its discretion in transferring the case to D.C.  According to the CFPB, “[t]he district court appropriately concluded that multiple factors [set forth in In re Volkswagen] favored transfer—including court congestion, D.C.’s stronger local interest, and the practical expense of bringing a Washington-based case in Texas.  And it concluded that none favor the Northern District of Texas—a finding that Plaintiffs do not dispute. This is sufficient to establish good cause [for the transfer].”

With regard to the requirement for the plaintiffs to show that issuance of a writ of mandamus is appropriate under the circumstances, the CFPB points to Fifth Circuit precedent stating that writs of mandamus are particularly appropriate when the issues have an importance beyond the immediate case.  According to the CFPB, the plaintiffs have not shown that the issues raised by their petition have importance beyond their case because “[t]heir petition is simply an effort to reverse a case-specific (and discretionary) transfer decision with which they disagree.” (citations omitted).  The CFPB further asserts that issuing a writ here “based on [the plaintiffs’] run-of-the-mill objections to the experienced district court’s exercise of discretion—would transform the ‘drastic and extraordinary remedy reserved for really extraordinary causes’ into the de rigueur remedy for everyday complaints about a judge’s transfer decision.” (citations omitted).