Scholars traditionally classify the statements in a judicial opinion as “holdings” (the reasons for a court’s decision) or “dicta” (additional discussion not necessary to the result, with varying precedential value depending on its thoroughness). But that distinction comes up short when applied to Fifth Circuit Judge James Ho’s recent concurrence in Defense Distributed v. Platkin.
The concurrence—a courteous (though unenforceable) request to a district court in another circuit—is an unusual jurisprudential addition to the patchworks of holding and dicta that ordinarily fill the Federal Reporter.
The background for the concurrence is a contentious forum dispute in a firearm-regulation case. Defense Distributed provides data files from which a 3D printer can produce a rudimentary firearm. The company has been in litigation for years with federal and state gun regulators.
Earlier this year, a 2-1 Fifth Circuit panel opinion held that a Texas district judge erred by transferring a dispute between Defense Distributed and the New Jersey attorney general to the District of New Jersey. But the Fifth Circuit could not order the New Jersey court to return the case, because New Jersey is not in the Fifth Circuit.
Accordingly, the court ordered that the Texas judge request that the New Jersey judge voluntarily transfer the case back to Texas. (Judge Edith Jones wrote the opinion, joined by Judge Jennifer Elrod, with Judge Stephen Higginson dissenting.)
The District of New Jersey received that request, considered it after further briefing and then declined the request July 27. The Texas judge rejected further submissions on this point by Defense Distributed, leading to further proceedings in the Fifth Circuit.
On Sept. 16, the Fifth Circuit issued a routine order setting the new appeal for the earliest available argument date. The order had an unusual concurring opinion by Judge Ho, asking that the New Jersey court reconsider the return of the case to Texas in the interest of inter-circuit comity:
We can think of no substantive reason—and none has been offered to us—why this case should nevertheless proceed in New Jersey rather than Texas, other than disagreement with our decision in Defense Distributed. The Attorney General of New Jersey confirmed as much during oral argument. So we respectfully ask the District of New Jersey to honor our decision in Defense Distributed and grant the request to return the case back to the Western District of Texas—consistent with the judiciary’s longstanding tradition of comity, both within and across the circuits. …
In explaining how to write an appropriate letter of complaint, Amy Vanderbilt’s Complete Book of Etiquette advises: “If you write politely and make it clear that you expect some adjustment or correction to be made, you will usually get prompt results.” The carefully drafted concurrence certainly follows her counsel for making a courteous request.
But substantively, the concurrence is a jurisprudential unicorn. It is not a holding about the scheduling matter before the court (e.g., “The argument will be expedited”) or dicta about that issue (e.g., “I hope the expedited argument is in New Orleans because the courtroom is nice”). Nor is it holding or dicta about the issue that was previously before the court—the propriety of New Jersey venue—because that proceeding is over.
Does the jurisprudential novelty of the concurrence matter? Most likely, no. It will likely be remembered as another unusual feature of a remarkably hard-fought forum dispute. That said, it does sound some cautionary notes for future disputes.
The Complete Book of Etiquette offers a wide range of form letters that raise polite complaints and, by design, are adaptable to almost every conceivable slight or shortcoming.
In contrast, the Constitution limits federal judicial power to the resolution of a “case or controversy”—a well-developed term of art that constrains who and what may be affected by that power. And the traditional concept of an opinion as a mix of holding and dicta is intertwined with that definition of a justiciable controversy.
While Amy Vanderbilt’s general advice to “write politely” is always well-taken, her specific advice about complaint letters is an uneasy fit with the “case or controversy” limitation, and should be treated with appropriate caution.
David Coale is an appellate partner at Lynn Pinker Hurst & Schwegmann. He publishes 600camp.com, a popular blog about business cases in the U.S. Court of Appeals for the Fifth Circuit, and 600commerce.com, a similar blog about the Dallas Court of Appeals and Texas Supreme Court.