Defense Distributed v. Attorney General New Jersey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

Nos. 19-1729 & 19-3182
______________

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
______________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-19-cv-04753)
District Judge: Honorable Anne E. Thompson
______________

Submitted under Third Circuit LAR 34.1(a)
February 28, 2020
______________
 Before: McKEE, SHWARTZ, and PHIPPS, Circuit Judges.

(Filed: August 25, 2020)

Joshua Blackman
1303 San Jacinto Street
Houston, TX 77002

Charles Flores
Daniel N. Nightingale
Hannah Roblyer
Beck Redden
1221 McKinney Street
Suite 4500
Houston, TX 77010

Daniel L. Schmutter
Hartman & Winnicki
74 Passaic Street
Suite 101
Ridgewood, NJ 07650

Counsel for Appellants

Glenn J. Moramarco
Timothy Sheehan
Office of Attorney General of New Jersey
Department of Law & Public Safety
25 Market Street
Richard J. Hughes Complex
Trenton, NJ 08625

Counsel for Appellee

2
 ______________

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 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

1
In addition to Defense Distributed, an organization
that publishes gun production computer files on the Internet,
and SAF, whose members allegedly “seek to republish Defense
Distributed’s files,” App. 10-11, Plaintiffs are the Firearms
Policy Coalition, Inc., Firearms Policy Foundation, The
Calguns Foundation, and California Association of Federal
Firearms Licensees, Inc., which are organizations that maintain
CodeIsFreeSpeech.com, a website that republishes Defense
Distributed’s files, and Brandon Combs, the creator of
CodeIsFreeSpeech.com who serves in leadership positions in
these organizations.

3
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

2
The Court of Appeals for the Fifth Circuit has
determined that personal jurisdiction exists and remanded for
further proceedings. Defense Distributed v. Grewal, No. 19-
50723 (5th Cir. Aug. 19, 2020).

Besides this action and the Texas action, Defense
Distributed and SAF have been involved in three related cases.
First, Defense Distributed and SAF challenged federal
regulations requiring prior authorization to publish their files,

4
 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 Control Act and
Communications Decency Act.

but their motion for a preliminary injunction failed. Defense
Distrib. v. U.S. Dep’t of State (Def. Distrib. I), 121 F. Supp. 3d
680, 696, 701 (W.D. Tex. 2015), aff’d, 838 F.3d 451, 460 (5th
Cir. 2016). Defense Distributed, SAF, and the State
Department settled and agreed that the State Department would
modify the federal regulations (by an immediate, temporary
modification of the regulations and a final rule). Def. Distrib.
II, 364 F. Supp. 3d at 685-86. These regulations, however,
have been preliminarily enjoined, and the temporary
modification was vacated. Washington v. U.S. Dep’t of State
(Washington I), 420 F. Supp. 3d 1130, 1148 (W.D. Wash.
2019), appeal dismissed, No. 20-35064 (9th Cir. July 21,
2020). Just before Washington I reached final judgment, the
State Department published its final rule, and state attorneys
general challenged the rule in Washington v. U.S. Department
of State (Washington II), --- F. Supp. 3d ----, 2:20-cv-00111-
RAJ, 2020 WL 1083720, at *3 (W.D. Wash. Mar. 6, 2020).
The court preliminarily enjoined the State Department from
implementing or enforcing the final rule. Id. at *11. Thus,
federal regulations cannot be used as a basis to disseminate the
files.

5
 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.

6
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.

7
 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’ 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, 138 S. Ct. 2305, 2319 (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 (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 (1981), to
determine whether the stay is a practical denial of an
injunction. See OFC Comm Baseball v. Markell, 579 F.3d

3
The District Court had jurisdiction under 28 U.S.C.
§ 1331. “Our authority to determine the extent of our own
jurisdiction is plenary.” Papotto v. Hartford Life & Accident
Ins. Co., 731 F.3d 265, 269 (3d Cir. 2013).

8
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).

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 (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

4
We do not announce today a categorical rule that stays
are never appealable. Rather, we recognize that the stay here
addresses only the conduct of litigation and simply
“postpones . . . resolution of an action seeking injunctive
relief,” so it does not have the practical effect of denying an
injunction on the merits. Cohen, 867 F.2d at 1464.

9
case. See generally Chavez v. Dole Food Co., Inc., 836 F.3d
205, 210 (3d Cir. 2016) (en banc) (instructing that “when
duplicative lawsuits are filed successively in two different
federal courts, the court where the action was filed first has
priority,” so the second-filed court should stay the case).
Indeed, we have held that stay orders were not appealable in
similar procedural postures. For example, in Cotler v. Inter-
County Orthopaedic Ass’n, P.A., we held that a stay of
proceedings (wherein a plaintiff requested an injunction)
pending related, though not identical, state court proceedings
was not a practical denial of an injunction because “we have
held that the stay by the district court of its own action pending
conclusion of a proceeding before” another tribunal is “only a
regulation of the course of the action itself.” 526 F.2d 537,
540-41 (3d Cir. 1975) (collecting cases).5 Thus, pursuant to
the well-established rule that stays are not practical denials of
an injunction, the District Court’s order staying the case
pending the Texas action is not a practical denial of Plaintiffs’
request for a preliminary injunction.

The District Court’s order “dismiss[ing]” the motion for
a preliminary injunction also does not qualify as a denial of an
injunction. App. 4 (capitalization omitted). While the Court
used the word “dismiss,” a fair reading of the order and the
record indicates that the Court was simply removing from its
docket a motion that would not be acted on soon. See Hoots v.
Pennsylvania, 639 F.2d 972, 979 (3d Cir. 1981) (instructing

5
Accord Spring City Corp. v. Am. Bldgs. Co., 193 F.3d
165, 171 (3d Cir. 1999) (“If the stay simply defers or postpones
resolution of an action in federal court, then it is only a
temporary measure not subject to appeal under 28 U.S.C. §
1291.”).

10
that “[w]e must look beyond the text of the order” to determine
its appealability). By dismissing the motion without prejudice,
the Court clearly conveyed that its order was not the final word
on the request. See Weber v. McGrogan, 939 F.3d 232, 242
(3d Cir. 2019) (explaining that a dismissal of a complaint
without prejudice leaves “a live action still pending before the
District Court”); Fed. Home Loan Mortg. Corp. v. Scottsdale
Ins. Co., 316 F.3d 431, 438-40 (3d Cir. 2003) (explaining that
appellate courts generally lack jurisdiction over issues that
have been dismissed without prejudice). Further, an order that
dismisses a motion on procedural grounds does not “pass on
the legal sufficiency of any claims for injunctive relief.”
Shirey v. Bensalem Township, 663 F.2d 472, 477 (3d Cir.
1981) (quoting Gardner v. Westinghouse Broad. Co., 437 U.S.
478, 481 (1978)); Hershey Foods Corp. v. Hershey Creamery
Co., 945 F.2d 1272, 1279 (3d Cir. 1991) (“Orders that . . . do
not grant or deny part of the substantive relief sought by the
claimant are not immediately appealable under section
1292(a)(1).”). Here, the Court removed the motion from its
docket pending the stay, made clear it did so without prejudice,
and thus did not substantively deny the request for an
injunction or dismiss the claims on which it is based. See
Hershey, 945 F.2d at 1279; Shirey, 663 F.2d at 477. Because

11
there has been no ruling, explicitly or effectively, denying the
injunction,6 the appeal must be dismissed.7

6
The two cases on which Plaintiffs rely to argue that the
stay had the practical effect of denying an injunction are
distinguishable. First, Rolo v. General Development Corp.
involves a situation where the plaintiff would sustain an
indisputable irreparable harm without immediate intervention.
There, the district court stayed a class action pending
resolution of bankruptcy and criminal proceedings involving
the defendants. 949 F.2d at 698-99. The plaintiffs produced
evidence that the companies were liquidating and distributing
their assets and sought an injunction to stop this activity. Id. at
703. The district court stayed consideration of the motion. Id.
at 699. On appeal, we observed that by deferring consideration
of the injunction, the court effectively allowed the companies
to dissipate the assets. As a result, any later, renewed motion
could not achieve the relief plaintiffs sought (protecting the
assets) because the assets would be gone. See id. at 703-04.
For these reasons, we held that “the district court’s refusal to
consider the application for a preliminary injunction
effectively denied them the ultimate relief that they seek.” Id.
at 703 n.5.
The stay here does not have the same effect. Plaintiffs
can still achieve the “ultimate relief they seek” (enjoining the
Attorney General’s enforcement efforts) with a renewed
motion. Rolo presented a now-or-never scenario: given the
activities for which the relief was sought, delaying relief meant
no relief would be available. Here, by contrast, the relief
requested by Plaintiffs is available later. While Plaintiffs argue
that the stay allows the Attorney General to violate their rights
“in the meantime” and such rights “can never be untrampled,”
Appellants’ Supp. Br. at 5, as we explain in Part II.B,

12
postponing a decision on Plaintiffs’ injunction does not cause
them any harm.

The second case on which Plaintiffs rely is similarly
unhelpful. In Victaulic Co. v. Tieman, a company filed
contract and tort claims against a former employee and his new
employer for allegedly violating a non-compete agreement.
499 F.3d 227, 231 (3d Cir. 2007). The company moved for a
preliminary injunction while the employee and new employer
moved to dismiss. Id. The district court dismissed the claims
relating to the agreement but left one non-contract claim
pending. Id. The company appealed the dismissal, arguing
that dismissal effectively denied the company’s request for a
preliminary injunction. Id. We explained that “the District
Court has effectively denied the relief that is at the heart of [the
company’s] claims,” Id. at 234, because its dismissal of claims
on the merits on which the injunction was sought left no ground
for any injunctive relief. See Cohen, 867 F.2d at 1464.

Unlike Victaulic where the district court dismissed
claims, with prejudice and on the merits, the District Court here
only postponed consideration of a motion and has not opined
on the merits of any of Plaintiffs’ claims. As a result, its stay
does nothing “to limit the [availability] of injunctive relief . . .
under the facts pled.” Victaulic, 499 F.3d at 234. Thus, the
precedent on which Plaintiffs rely to support departure from
the rule that stays are not practical denials of an injunction is
distinguishable.
7
Our precedent forecloses the argument that a stay here
puts the Plaintiffs that are not plaintiffs in the Texas action “out
of court entirely.” Appellant’s Supp. Br. at 8-9; see Cotler, 526

13
 B

Although the failure to satisfy the first Carson prong
requires dismissal, Victaulic, 499 F.3d at 232, Plaintiffs cannot
satisfy the other two prongs either. On the second, the stay
does not impose “serious, perhaps irreparable
consequence[s].” Carson, 450 U.S. at 84. Orders like those
here based on a district court’s “discretionary power over the
scope of the action” and that “relat[e] primarily to convenience
in litigation” do not carry a serious risk of irreparable harm
because they do not affect the merits of an appellant’s claims.
Gardner, 437 U.S. at 480-81 & n.7 (citation omitted).
Nonetheless, Plaintiffs assert that absent quick action on their
motion for a preliminary injunction, their First Amendment
rights are violated by the Attorney General’s “censorship.”
Appellants’ Supp. Br. at 4. This assertion does not change the
result.

First, we consider how urgently a party has pursued
their claims, Victaulic, 499 F.3d at 232, and the appellant’s
“conduct and litigating positions,” Huminski v. Rutland City

F.2d at 540-41 (applying the usual rule that stays are not a
practical denial of an injunction—even though the parties,
allegations, and causes of action in the related proceeding were
“not identical”). Moreover, since the CodeIsFreeSpeech.com
plaintiffs seek to “receiv[e] and republish[] Defense
Distributed’s files,” App. 49, in the Texas action, any
injunctive relief the Texas court grants to Defense Distributed
may provide the CodeIsFreeSpeech.com plaintiffs the relief
they seek in the District Court here. Accordingly, while they
are not present in the Texas action, their claims effectively are
being pursued, so a stay here does not put them out of court.

14
Police Dep’t, 221 F.3d 357, 360 (2d Cir. 2000) (per curiam)
(quoting Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir. 1993)); accord
United States v. Wade, 713 F.2d 49, 53 (3d Cir. 1983). The
Attorney General made clear that he would defend against
Plaintiffs’ claims in New Jersey—but not in two forums. If the
Attorney General’s actions harmed Plaintiffs and they needed
immediate relief, they could have withdrawn their action in
Texas and pursued the New Jersey action. They did not.
Further, they chose to prolong litigation in Texas over personal
jurisdiction, but even if they succeed in their appeal, it will not
result in an injunction.8 Plaintiffs had a path to get the District
Court here to decide the merits of their injunction request but
did not take it. See Huminski, 221 F.2d at 361 (concluding that
the appellant had not shown serious consequences because he
failed to use multiple available procedural mechanisms to
speed along resolution of his case). Plaintiffs’ litigation
strategy thus represents “a strong indication that the status quo
can continue” and belies an assertion of irreparable harm.
Wade, 713 F.2d at 53.

Second, even if we entertained the appeal, directed the
District Court to consider the injunction motion, and the Court
enjoined the Attorney General from “censoring” Plaintiffs, the
federal government and several state attorneys general are still
preventing the dissemination of the files. The temporary
modification of federal regulations permitting Defense

8
Defense Distributed and SAF did not move for an
injunction pending appeal in the Court of Appeals for the Fifth
Circuit, nor did they seek expedited review. A failure to move
for a preliminary injunction or expedite an appeal indicates that
the underlying harm complained of is not serious. Huminski,
221 F.3d at 361.

15
Distributed to disseminate their files is currently vacated,
Washington v. U.S. Dep’t of State (Washington I), 420 F.
Supp. 3d 1130, 1148 (W.D. Wash. 2019), appeal dismissed,
No. 20-35064 (9th Cir. July 21, 2020), and the federal
government is enjoined from enforcing the final rule,
Washington v. U.S. Dep’t of State (Washington II), --- F. Supp.
3d ----, 2:20-cv-00111-RAJ, 2020 WL 1083720, at *11 (W.D.
Wash. Mar. 6, 2020). That means that under federal law,
Defense Distributed cannot disseminate its files. Washington
II, 2020 WL 1083720, at *11 (providing that the injunction
maintains the “status quo” on restrictions on 3D gun files).9
Additionally, in the Texas action, Defense Distributed and
SAF allege that actions from multiple state attorneys general—
not just New Jersey’s—“censor Defense Distributed.” Def.
Distrib. II, 354 F. Supp. 3d at 686 (quoting amended
complaint). Thus, a stay that delays consideration of a request
for injunctive relief is of no consequence because, even if the
District Court considered and granted such an injunction, that
injunction would not alleviate the alleged censorship.

At bottom, we only allow appeals via § 1292(a)(1)
when the injury “outweighs Congress’ stated policy against
piecemeal review.” Ross, 916 F.2d at 902. Because Plaintiffs’
conduct belies any assertion of injury, they cannot show why
we should bring the stay here into the narrow class of orders
appealable under § 1292(a)(1). See N.J. State Nurses Ass’n v.
Treacy, 834 F.2d 67, 70-71 (3d Cir. 1987) (“[W]e must
approach this statute somewhat gingerly lest a floodgate be
opened that brings into the exception many pretrial orders.”

9
Indeed, Plaintiffs’ complaint made plain that Defense
Distributed stopped disseminating its files due to injunctive
orders from the Washington I court.

16
(quoting United States v. RMI, 661 F.2d 279, 281 (3d Cir.
1981))).

C

Finally, assuming the first two Carson prongs were met,
Plaintiffs must still demonstrate that an “immediate appeal [is]
the only means of effective[ly] challeng[ing]” the orders.
Victaulic, 499 F.3d at 232. “The ‘effective challenge’ prong
deals with whether the appellant can get substantially similar
relief without an immediate appeal.” Id. Put differently, we
ask whether an immediate appeal is necessary for the appellant
to obtain effective review of the order and have its appellate
rights vindicated. See Carson, 450 U.S. at 88 n.14 (prong
satisfied where review of the order would be compromised if
review delayed until final judgment); Victaulic, 499 F.3d at
233 (prong satisfied because the district court’s dismissal of
claims “left [the appellant] with no means of receiving
preliminary relief” as the court resolved all the issues relating
to such relief); Metex Corp. v. ACS Indus., Inc., 748 F.2d 150,
154 (3d Cir. 1984) (prong not satisfied because “dismissal of
this appeal would not preclude an effective appeal if one is
considered necessary at a later date: the issues regarding
appellant’s . . . claim will not be obscured, and perhaps will be
better illuminated, by the passage of time”); RMI, 661 F.2d at
282 (same).

Here, even if we held that the District Court’s order
constituted the denial of an injunction, an immediate appeal is
not necessary to challenge the Court’s ruling. An appeal is not
the “only means of effective[ly] challeng[ing]” the orders,
Victaulic, 499 F.3d at 232, because Plaintiffs could receive a
ruling on their preliminary injunction motion if they

17
discontinue the Texas action. Compare Rolo, 949 F.2d at 698-
99 (action stayed pending resolution of related bankruptcy and
criminal proceedings). As a result, the stay is not indefinite
because by discontinuing the Texas action, Plaintiffs “can get
substantially similar relief,” Victaulic, 499 F.3d at 232, to what
they seek here, namely directing the District Court to rule on
the preliminary injunction motion, as the Court has made clear
that it would consider the motion under that circumstance.
Thus, they can obtain the relief that they seek “without an
immediate appeal.” Id. Furthermore, an immediate appeal is
not the only means of obtaining the relief Plaintiffs seek
(enjoining the Attorney General’s enforcement efforts)
because Defense Distributed and SAF are pursuing that same
relief in Texas. The effective-challenge prong serves an
important purpose in ensuring that only appeals that are
necessary are allowed. See Gardner, 437 U.S. at 480. Because
appellate review here and now is not the only remedy available
to Plaintiffs, they cannot satisfy this prong.

III

For the foregoing reasons, we will dismiss the appeal.

18
PHIPPS, Circuit Judge, dissenting.

In dismissing these appeals for lack of jurisdiction, the
Majority Opinion misapplies well-established standards for
appellate jurisdiction under 28 U.S.C. § 1292(a)(1). This
consolidated case involves appeals of two orders – one that had
the practical effect of refusing a motion for a preliminary
injunction, the other that expressly dismissed that motion.
Precedent permits appellate review of orders with the practical
effect of denying a motion for a preliminary injunction. And
the text of § 1292(a)(1) allows interlocutory appeals of orders
refusing such motions. Yet the Majority Opinion rejects
appellate jurisdiction over appeals from both orders. By so
doing, District Court’s underlying basis for those orders – its
application of the first-filed rule – will never be subject to
meaningful appellate review. I see it differently, and I
respectfully dissent.

I.

Under § 1292(a)(1), appellate jurisdiction extends to
interlocutory orders that grant or deny injunctive relief:

The courts of appeals shall have jurisdiction of
appeals from interlocutory orders of the district
courts of the United States . . . granting . . . [or]
refusing . . . injunctions.

28 U.S.C. § 1292(a)(1) (alterations omitted).

Beyond orders that expressly grant or refuse injunctive
relief are those orders that have the practical effect of refusing
an injunction. See 16 Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. § 3924.1 (3d ed. Apr. 2020 update)
(“Refusal of an explicit request for a preliminary injunction
need not be express[;] [a] variety of actions or even inaction
may have the same effect as an express refusal, supporting
appeal.”). Under the test announced in Carson v. American
Brands, Inc., 450 U.S. 79 (1981), orders with the practical
effect of denying preliminary injunctive relief may be appealed
under § 1292(a)(1) when three conditions are met:

1. The order has the practical effect of
refusing an injunction;

2. The denial of immediate appellate review
exposes a party to the risk of serious or
irreparable harm; and

3. The denial of immediate appellate review
causes a party to lose its opportunity to
effectually challenge the interlocutory
order.

See id. at 83-84; see also Rolo v. Gen. Dev. Corp., 949 F.2d
695, 702-03 (3d Cir. 1991); 11A Wright & Miller § 2962 (3d
ed. Apr. 2020 updated) (“[A] district court may not avoid
immediate review of its determination simply by failing to
characterize or label its decision as one denying . . . injunctive
relief.” (emphasis added)).

I believe that both bases for interlocutory appeal –
practical effect and express refusal – are available here. The
District Court’s first order, which stayed the case pending
resolution of a suit in Texas (brought by only two of the seven
appellants here), had the practical effect of refusing the

2
appellants’ motion for a preliminary injunction. And the
second order, which dismissed appellants’ motion for
preliminary injunction without prejudice, had the actual effect
of refusing their request for emergency relief.

II.

Unlike the Majority, I believe that the first order
appealed – the March 7 stay order (Stay Order) – satisfies the
Carson requirements.

A

Under the first Carson element, the Stay Order had the
“practical effect of refusing an injunction.” Carson, 450 U.S.
at 84; see also Rolo, 949 F.2d at 702. As explained by the
Supreme Court, “[t]h[e] ‘practical effect’ rule serves a valuable
purpose[:] If an interlocutory injunction is improperly granted
or denied, much harm can occur before the final decision in the
district court.” Abbott v. Perez, 138 S. Ct. 2305, 2319 (2018).
And before today, Circuit precedent recognized that a stay for
an indeterminate period with a motion for injunctive relief
pending sufficed as a basis for appellate jurisdiction because
that stay “effectively denied [the movants] the ultimate relief
that they seek.” Rolo, 949 F.2d at 703 & n.5; see also Vitaulic
Co. v. Tieman, 499 F.3d 227, 232 (3d Cir. 2007) (“[T]his is an
appeal from the (implicit) denial of the preliminary injunction,
which, we have held, is the primary purpose of § 1292(a)(1).”).
That is precisely the situation here. The District Court stayed

3
a case with a pending motion for a preliminary injunction. That
has the practical effect of denying that motion.

In avoiding that outcome, the Majority Opinion
overextends dictum from Cohen v. Bd. of Trs., 867 F.2d 1455
(3d Cir. 1989) (en banc). See Maj. Op. at 9-12. That decision
announced that “an order staying or refusing to stay an action
for equitable relief does not fall under § 1292(a)(1), even
though it postpones or accelerates resolution of an action
seeking injunctive relief.” Cohen, 867 F.2d at 1464 (emphasis
added). But “an action for equitable relief” is not equivalent to
‘a motion for a preliminary injunction,’ as is present here.
Indeed, this Court later clarified that staying such motions has
the practical effect of denying preliminary injunctive relief
under § 1292(a)(1): a “district court’s refusal to entertain [a]
motion [for injunctive relief by imposing an indeterminate
stay] had precisely the same effect on the [movants] as would
an order expressly denying that motion.” Rolo, 949 F.2d at 703
n.5.

Nor does the Stay Order relate “only to the conduct or
progress of litigation before that court.” Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988)
(emphasis added). It is not, for example, an order setting a
briefing or a discovery schedule. See, e.g., Fed. R. Civ. P.
16(b) (scheduling orders); id. 37 (discovery orders). Rather, it
is an indefinite stay that postpones the resolution of a pending
motion for a preliminary injunction.

B

The second Carson requirement is also satisfied here
because the Stay Order imposes a “serious, perhaps

4
irreparable, consequence.” Carson, 450 U.S. at 84. The seven
appellants moved for a preliminary injunction, in part, to enjoin
the deprivation of their First Amendment right to free speech.
App. 94-143. And a deprivation of a First Amendment right
creates a presumption of irreparable injury. See Neb. Press
Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975) (“[A]ny First
Amendment infringement that occurs with each passing day is
irreparable.”).1 I do not believe that presumption has been
rebutted.

The Majority Opinion finds no irreparable injury here,
however. It relies on the fact that appellants “could have
withdrawn their action in Texas and pursued the New Jersey
action.” Maj. Op. at 15. But that explanation is at best
incomplete as only two of the seven appellants sued in Texas.
And even for those two common parties, the Majority Opinion
places undue weight on the absence of a motion for a
preliminary injunction in Texas – after all, that court
determined that it lacked personal jurisdiction over the
Attorney General of New Jersey. See Maj. Op. at 15
(“Plaintiffs’ litigation strategy . . . belies an assertion of
irreparable harm.”). It is quite something to conclude that a
party’s First Amendment injury is not serious because that
party – although moving for a preliminary injunction – did not

1
See also Elrod v. Burns, 427 U.S. 347, 373 (1976)
(Brennan, J., plurality) (“The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”); 11A Wright & Miller
§ 2948.1 (3d ed. Apr. 2020 update) (“When an alleged
deprivation of a constitutional right is involved, such as the
right to free speech or freedom of religion, most courts hold
that no further showing of irreparable injury is necessary.”).

5
move for a preliminary injunction in a separate case that was
dismissed on personal jurisdiction grounds. See Victaulic,
499 F.3d at 232 (“[W]hether the appellant[s] moved for a
preliminary injunction is evidence of the case’s urgency.”).

The Majority Opinion also dismisses the possibility of
irreparable injury by reference to a nationwide injunction
issued by a District Judge in the Western District of
Washington. See Maj. Op. at 15-16 (citing Washington v. U.S.
Dep’t of State, -- F. Supp. 3d --, 2020 WL 1083720, at *11
(W.D. Wash. Mar. 6, 2020)). That injunction – issued by a
court with territorial jurisdiction over six counties2 – enjoins a
final rule that would provide authorization under a statute,
22 U.S.C. § 2778(h), for some of the speech that the seven
appellants seek to engage in. But here appellants seek to
vindicate constitutional rights. Thus, even supposing both
statutory and regulatory prohibitions on appellants’ proposed
speech, those alone do not extinguish appellants’ First
Amendment rights.

For these reasons, I believe that the presumption of
serious, perhaps irreparable injury remains unrebutted here.

2
The Seattle Division of the United States Court for Western
District of Washington has jurisdiction over the following six
counties: Island, King, San Juan, Skagit, Snohomish, and
Whatcom. See United States District Court Western District
of Washington, About the Court,
https://www.wawd.uscourts.gov/about (last visited Aug. 10,
2020).

6
 C

The third Carson element is likewise satisfied because
the Stay Order can be “effectually challenged” only by
immediate appeal. Carson, 450 U.S. at 84. This third
consideration focuses on “whether the appellant[s] can get
substantially similar relief without an immediate appeal.”
Victaulic, 499 F.3d at 232. But no such possibility exists for
the Stay Order.

It is not an answer that by the terms of the Stay Order
appellants can choose for themselves to proceed in New Jersey
by dropping the Texas litigation. See Maj. Op. at 17-18 (“An
appeal is not the only means of effectively challenging the
orders, because Plaintiffs could receive a ruling on their
preliminary injunction motion if they discontinue the Texas
action.” (internal quotation marks, alterations, and citation
omitted)). Five appellants are not parties to the Texas case, and
they have no such choice. But even if the remaining two
appellants dismissed the Texas suit, that would not allow for a
challenge to the Stay Order – by its own terms, the order would
have expired then. In the meantime, the damage from the delay
would have already been done without a meaningful
opportunity for appellate review. See Goldberg v. 401 N.
Wabash Venture LLC, 755 F.3d 456, 464 (7th Cir. 2014) (“The
past cannot be recreated. Time runs in only one direction – and
it’s forward, not backward.”). Thus, regardless of the choice
available to two of the seven appellants, under today’s ruling,
the possibility of meaningful appellate review of the Stay
Order is not merely postponed; it is eliminated.

It is true, as the Majority observes, that the Stay Order
does not necessarily preclude forever the injunctive relief that

7
appellants seek. But in my view such cold consolation –
especially for the five appellants who are not parties to the
Texas litigation and whose remedy, in the words of the District
Court, is “to be patient,” App. 1006 – does not suffice to satisfy
the third Carson element. Instead of hinging on the continued
availability of ultimate relief, that third consideration depends
on the ability to meaningfully challenge the order that currently
denies preliminary injunctive relief. See Carson, 450 U.S. at
86 (“In the instant case, unless the District Court order denying
the motion to enter the consent decree is immediately
appealable, petitioners will lose their opportunity to
‘effectually challenge’ an interlocutory order that denies them
injunctive relief.”); see also Neb. Press, 423 U.S. at 1329
(“[E]ach passing day may constitute a separate and cognizable
infringement of the First Amendment.”). Appellants here lack
such an ability absent interlocutory appeal.

III.

The appeal of the District Court’s second order
(Dismissal Order) provides a separate and independent basis
for appellate review under § 1292(a)(1). That order from
August 29, 2019, “dismissed without prejudice” appellant’s
preliminary injunction motion and administratively closed the
case. By doing so, the Dismissal Order unequivocally refused
to grant appellants’ request for interim injunctive relief. Due
to that actual and express refusal to grant the preliminary
injunction, there is no need to conduct the Carson ‘practical
effect’ inquiry – the Dismissal Order constitutes an express

8
refusal to grant an injunction, and it therefore qualifies for
appellate review under the plain text of § 1292(a)(1).

The Majority Opinion attempts to minimize that reality
by noting that the dismissal was ‘without prejudice.’ See Maj.
Op. at 10-12. But for a denial of a preliminary injunction, such
a qualifier is immaterial for purposes of appellate review under
§ 1292(a)(1). Whether the dismissal of the motion is with or
without prejudice, appellants have most certainly not received
the preliminary injunctive relief they requested. See Hoots v.
Pennsylvania, 639 F.2d 972, 979 (3d Cir. 1981) (“Although the
trial court denied the motion for an injunction ‘without
prejudice,’ the effect of the denial was to preclude any
possibility of granting the relief sought by appellants.”
(emphasis added)).3

The Majority Opinion also looks beyond the text of the
Dismissal Order to discredit the dismissal. See Maj. Op. at 10
(“The District Court’s order ‘dismissing’ the motion for a
preliminary injunction also does not qualify as a denial of an
injunction[,] [because] [w]hile the Court used the word
‘dismiss,’ a fair reading of the order and the record indicates
that the Court was simply removing from its docket a motion
that would not be acted upon soon.” (alteration and citation

3
See also Gen. Elec. Co. v. Marvel Rare Metals Co., 287 U.S.
430, 432 (1932) (order dismissing counterclaim seeking
permanent and preliminary injunctive relief was considered an
appealable interlocutory order); Valenti v. Mitchell, 962 F.2d
288, 295 (3d Cir. 1992) (“When a claim seeking injunctive
relief is dismissed on jurisdictional grounds, it has the effect of
denying the ultimate equitable relief sought by the claimant,
and the order is appealable under § 1292(a)(1).”).

9
omitted)). But there is no reason to look beyond the text of an
unambiguous court order. Put differently, when the plain
language of a court order expressly denies injunctive relief, the
text controls, and Carson imposes no additional requirements.
See Commodity Futures Trading Comm’n v. Walsh, 618 F.3d
218, 224 (2d Cir. 2010) (“Carson does not impose additional
. . . requirement[s] for appellate jurisdiction over orders that
explicitly . . . refuse . . . injunctions and thereby meet the plain
terms of the statute.”).

***

For these reasons, I disagree with the Majority
Opinion’s assessment that “there has been no ruling, explicitly
or effectively, denying the injunction.” Maj. Op. at 12. Both
orders did so. Accordingly, I would find that we have appellate
jurisdiction to evaluate both orders under § 1292(a)(1).

10