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Attempt to Reverse Transfer Sets Up Potential Dispute Between Circuits


On Friday, April 5, the Fifth Circuit Court of Appeals voided an order by District Court Judge Mark Pittman transferring a case from the Northern District of Texas to a D.C. District Court. But the Fifth Circuit’s ruling runs into at least one potential issue: Judge Pittman’s transfer order was effectuated one week prior, on March 29. As it stands, the docket for the case indicates it has been transferred to, and is now pending before, D.C. District Court Judge Amy Berman Jackson.

The underlying case concerns a challenge by the Chamber of Commerce and other trade groups to the Consumer Financial Protection Bureau’s newly finalized rules concerning late fees for banking. The Fifth Circuit opinion stated that its ruling was narrow and limited to the question of whether Judge Pittman had jurisdiction to enter a transfer order. Although Judge Pittman had not yet entered a final appealable order, he failed to rule on the Chamber’s request for a preliminary injunction within an expedited time frame. Due to Judge Pittman’s failure to act, the Chamber sought an interlocutory appeal, arguing that the failure to rule amounted to a denial. The Fifth Circuit agreed, finding that the Chamber’s appeal was appropriately sought and, as a result, Judge Pittman had no jurisdiction to transfer the case.

While the Fifth Circuit’s basis for voiding Judge Pittman’s order is procedurally and factually complicated, its reasoning is relatively clear. What is not clear is how D.C. District Court Judge Jackson will or should react to being ordered to return the case to Texas. She could choose to follow to the Fifth Circuit’s ruling, or she could attempt to adhere to Judge Pittman’s transfer order and move forward as the presiding court. The latter option would likely lead to a dispute that effectively pits two Federal Circuits against one another at the Supreme Court. Jaszczuk P.C. will continue to monitor this case as it may have significant implications in future disputes concerning venue.

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