Hodgkins v. Mukasey , 271 F. App'x 412 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2008
No. 07-10981 Charles R. Fulbruge III
Summary Calendar Clerk
MAXWELL HODGKINS; SECOND AMENDMENT FOUNDATION INC
Plaintiffs-Appellants
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CV-2114
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Maxwell Hodgkins is a natural-born citizen of the United States
who resides in the United Kingdom. Appellant Second Amendment Foundation
is a non-profit organization, which is incorporated in and has its principal place
of business in the state of Washington. Hodgkins seeks “to access [his] firearms,
as well as acquire new ones, for lawful sporting purposes as well as for self-
defense, collecting, and civic purposes, while visiting his friends and family in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10981
Texas” at some point in the future. However, in order to purchase a firearm, a
prospective buyer without a federal firearms license must complete Form 4473,
which asks: “What is your state of residence (if any)?” See 27 C.F.R. § 478.124.
If the applicant does not answer this question, he may not purchase a firearm
except for lawful sporting purposes. See 18 U.S.C. § 922(a)(9), (b)(3). Although
Hodgkins did not attempt to complete Form 4473, he acknowledges that he
would be unable to do so because he lacks a state of residence.
Appellants filed suit in the Northern District of Texas against the U.S.
Attorney General to challenge the constitutionality of and enjoin the
enforcement of 18 U.S.C. § 922, which prohibits non-residents of the United
States from receiving or selling firearms for non-sporting purposes. Appellants
argued that venue was proper in the Northern District of Texas under 28 U.S.C.
§ 1391(e)(2) because “a substantial part of the events or omissions giving rise to
the claim occurred” there. Specifically, Appellants noted that the Northern
District of Texas is where Hodgkins would like to access his firearms and acquire
new ones, and–were he to do so–he would be arrested and prosecuted there. In
response, the Attorney General filed a “Motion to Dismiss or, in the Alternative,
Transfer,” asking the district court to dismiss the case under 28 U.S.C. § 1406(a)
for improper venue or to transfer the case to the District of Columbia under
either § 1406(a) or § 1404(a).
On August 15, 2007, the district court found that the Northern District of
Texas was an improper venue because “[t]here are no allegations supporting that
a substantial part of the events or omissions giving rise to the claim have
occurred in this district, but only of events or omissions that may occur at some
future point in time.” Noting that “Plaintiffs request dismissal rather than
transfer,” the district court concluded that the Attorney General’s “Motion to
Dismiss is GRANTED and this matter is DISMISSED without prejudice for
refiling in an appropriate venue.”
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No. 07-10981
Concurrent with the filing of this suit in the Northern District of Texas,
the Second Amendment Foundation filed a companion case in the Southern
District of Ohio with plaintiff Stephen Dearth, a natural-born citizen of the
United States who resides in Canada (the “Ohio suit”). Like this case, the Ohio
suit sought to challenge the constitutionality of 18 U.S.C. § 922 and enjoin its
enforcement. The Second Amendment Foundation and Dearth also requested
that their suit be dismissed without prejudice rather than transferred. On
February 13, 2008, the Court of Appeals for the Sixth Circuit issued an opinion
in the Ohio suit. Dearth v. Mukasey, No. 07-3594, 2008 WL 373454 (6th Cir.
Feb. 13, 2008). The Sixth Circuit held that: “Because the plaintiffs requested the
dismissal-without-prejudice as an alternative to transfer, however, the district
court’s order is an unappealable voluntary dismissal.” Id. at *1. Thus, the Sixth
Circuit dismissed the appeal.
We agree with the Sixth Circuit and adopt its reasoning.1 If Appellants
had not requested a dismissal without prejudice, the district court would have
transferred this case. We would not have jurisdiction to review that decision
because “[a]n order transferring a case under 28 U.S.C. § 1406(a) is
interlocutory.” Stelly v. Employers Nat’l Ins. Co., 431 F.2d 1251, 1253 (5th Cir.
1970). The grant of Appellants’ request for a dismissal without prejudice does
not alter our jurisdictional analysis. Appellants “‘cannot use voluntary dismissal
without prejudice as an end-run around the final judgment rule to convert an
otherwise non-final-and thus non-appealable-ruling into a final decision
appealable under § 1291.’” Id. at *3 (quoting Marshall v. Kansas City S. Ry. Co.,
1
In Dearth, the district court did not specify whether it “was inclined to dismiss or
transfer the case for lack of venue pursuant to § 1406(a) or to transfer the case
notwithstanding proper venue ‘in the interest of justice’ pursuant to § 1404.” Id. at *2.
Because the Sixth Circuit concluded that either section produced the same result, it did not
determine which provision governed the district court’s order. Id. at *3. In this case, the
district court explicitly stated that its order was rendered pursuant to § 1406(a). Thus, we are
adopting that part of the Sixth Circuit’s opinion that pertains to § 1406(a).
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No. 07-10981
378 F.3d 495, 500 (5th Cir. 2004)). The judgment here–dismissal without
prejudice–was at the request of Appellants. It is not a final order, i.e., an order
that leaves nothing left save its execution, and we thereby lack jurisdiction
under 28 U.S.C. § 1291.
Therefore, we DISMISS this appeal.
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