Petition for Writ of Certiorari — First Choice Women's Resource Centers, Inc., Petitioner v. Jennifer Davenport, Attorney General of New Jersey

Supreme Court briefJan 21, 2025

Ask Donna

What actually matters in this document.

Text

NO. _______

IN THE

Supreme Court of the United States

FIRST CHOICE WOMEN’S RESOURCE

CENTERS, INC.,

Petitioner,

MATTHEW PLATKIN, in his official capacity as

Attorney General of New Jersey,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES A. CAMPBELL

ERIN M. HAWLEY

ERIK C. BAPTIST

Counsel of Record

GABRIELLA M. MCINTYRE JOHN J. BURSCH

DALTON A. NICHOLS

LINCOLN DAVIS WILSON

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

440 First Street, NW

Lansdowne, VA 20176

Suite 600

Washington, DC 20001

(202) 393-8690

ehawley@adflegal.org

Counsel for Petitioner First Choice Women’s Resource

Centers, Inc.

QUESTION PRESENTED

New Jersey’s Attorney General served an

investigatory subpoena on First Choice Women’s

Resource Centers, Inc., a faith-based pregnancy

center, demanding that it turn over most of its donors’

names. First Choice challenged the Subpoena under

42 U.S.C. 1983 in federal court, and the Attorney

General filed a subsequent suit to enforce it in state

court. The state court granted the Attorney General’s

motion to enforce the Subpoena but expressly did not

decide

First

Choice’s

federal

constitutional

challenges. The Attorney General then moved in state

court to sanction First Choice. Meanwhile, the district

court held that First Choice’s constitutional claims

were not ripe in federal court.

The Third Circuit affirmed in a divided per

curiam decision. Judge Bibas would have held the

action ripe as indistinguishable from Americans for

Prosperity Foundation v. Bonta, 594 U.S. 595, 618–19

(2021). But the majority concluded First Choice’s

claims were not yet ripe because First Choice could

litigate its constitutional claims in state court. In

doing so, the majority followed the rule of the Fifth

Circuit and split from the Ninth Circuit. It did not

address the likely loss of a federal forum once the

state court rules on the federal constitutional issues.

The question presented is:

Where the subject of a state investigatory demand

has established a reasonably objective chill of its First

Amendment rights, is a federal court in a first-filed

action deprived of jurisdiction because those rights

must be adjudicated in state court?

PARTIES TO THE PROCEEDING

The Petitioner is First Choice Women’s Resource

Centers, Inc. and the plaintiff-appellant below.

The Respondent is Matthew Platkin, in his official

capacity as Attorney General for the State of New

Jersey, and the defendant-appellee below.

CORPORATE DISCLOSURE STATEMENT

Petitioner First Choice Women’s Resource

Centers, Inc., incorporated as a 501(c)(3) faith-based

organization under the laws of New Jersey, is neither

a subsidiary nor a parent company of any other

corporation under the laws of the United States, and

no publicly traded corporation owns 10 percent or

more of its stock.

iii

LIST OF RELATED PROCEEDINGS

Supreme Court of the United States, No. 23-941,

In re: First Choice Women’s Resource Centers, Inc.,

order entered May 13, 2024.

U.S. Court of Appeals for the Third Circuit, No.

24-3124, First Choice Women’s Resource Centers, Inc.

v. Platkin, order entered December 12, 2024.

U.S. Court of Appeals for the Third Circuit, No.

24-1111, First Choice Women’s Resource Centers, Inc.

v. Platkin, orders entered February 15, 2024, and July

9, 2024.

U.S. District Court for the District of New Jersey,

No. 3:23-cv-23076-MAS-TJB, First Choice Women’s

Resource Centers, Inc. v. Platkin, orders entered

January 12, 2024, and November 12, 2024.

Superior Court of New Jersey, Appellate Division,

Case No. A-003615-23T4, Platkin et al. v. First Choice

Women’s Resource Centers, Inc., orders entered

November 7, 2024, and January 17, 2025.

Superior Court of New Jersey, Chancery Division,

Essex County, No. ESX-C-22-24, Platkin et al. v. First

Choice Women’s Resource Centers, Inc., orders entered

June 18, 2024, September 20, 2024, and December 2,

2024.

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... ii

LIST OF RELATED PROCEEDINGS ..................... iii

APPENDIX TABLE OF CONTENTS ...................... vi

TABLE OF AUTHORITIES ..................................... ix

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

INTRODUCTION ...................................................... 2

STATEMENT OF THE CASE ................................... 6

I. Factual background .............................................. 6

A. The Attorney General perpetuates a wave

of hostility toward pregnancy centers. ........... 6

B. The Attorney General demands donor

identities and other sensitive information

from First Choice. ............................................ 7

C. The Subpoena chills First Choice’s

association and speech rights. ........................ 9

II. Procedural history .............................................. 10

A. The district court holds this case unripe. ..... 10

B. The state court enforces the Subpoena

without deciding the federal issues. ............. 11

C. The Third Circuit remands. .......................... 12

D. The state court denies the Attorney

General’s motion to enforce litigant’s

rights. ............................................................. 12

E. The district court holds this case unripe—

again. ............................................................. 13

F. The Third Circuit joins the Fifth in

requiring state-court proceedings to ripen

federal constitutional claims challenging a

state subpoena. .............................................. 14

REASONS FOR GRANTING THE PETITION ...... 15

The circuits are split on when litigants can

bring federal challenges to state investigatory

demands. ............................................................ 16

II. The Third Circuit erred in relegating federal

challenges to state investigatory demands to

state court. ......................................................... 21

A. The Third Circuit’s state-litigation

requirement deprives First Choice of its

guaranteed federal forum. ............................ 21

B. The Third Circuit’s state-litigation

requirement violates this Court’s First

Amendment precedents................................. 24

III. The question presented is exceptionally

important. .......................................................... 28

IV. This case presents an ideal vehicle to resolve

this exceptionally important issue. ................... 34

CONCLUSION ......................................................... 36

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Third Circuit

Opinion in Case No. 24-3124

Issued December 12, 2024 ...................................... 1a

United States District Court

for the District of New Jersey

Memorandum Opinion

Case No. 3:23-cv-23076

Issued November 12, 2024 ....................................... 6a

Superior Court of New Jersey

Chancery Division, Essex County

Order to Enforce Litigant’s Rights

Case No. ESX-C-22-24

Issued December 2, 2024 ....................................... 59a

Superior Court of New Jersey, Appellate Division

Order Granting Temporary Remand

Case No. A-003615-23T4

Issued November 7, 2024 ....................................... 67a

Superior Court of New Jersey

Chancery Division, Essex County

Order Granting Order to Show Cause

Case No. C-000022-24

Issued June 18, 2024.............................................. 69a

United States District Court

for the District of New Jersey

Memorandum Opinion

Case No. 3:23-cv-23076

Issued January 12, 2024 ........................................ 71a

vii

Stipulation and Order

Superior Court of New Jersey

Chancery Division, Essex County

Stipulation and Order

Case No. ESX-C-22-24

Entered January 3, 2025 ....................................... 85a

Subpoena from the State of New Jersey

to First Choice Women’s Resource Center, Inc.

Dated November 15, 2023...................................... 89a

Complaint for Declaratory and Injunctive Relief

United States District Court

for the District of New Jersey

Case No. 3:23-cv-23076

Filed December 13, 2023...................................... 111a

Transcript of Decision

Superior Court of New Jersey

Chancery Division, Essex County

Case No. ESX-C-22-24

Dated May 28, 2024 ............................................. 148a

Declaration of Counsel for Donors to First Choice

Women’s Resource Centers, Inc.

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed July 19, 2024 ............................................... 174a

Declaration of Aimee Huber

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed July 19, 2024 ............................................... 179a

Supplemental Declaration of Aimee Huber

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed August 2, 2024 ............................................ 188a

viii

Emails between K. Wojtowicz and S. Iyer

Re: NJ AG crisis pregnancy center alert draft

Dated October 17, 18, & 26, 2022 ........................ 191a

Emails from S. Iyer to R. Sutocky, K. Wojtowicz

Re: Data privacy alert for providers

Dated October 26 & December 6, 2022 ............... 194a

TABLE OF AUTHORITIES

Cases

Americans for Prosperity Foundation v. Bonta,

594 U.S. 595 (2021)....................... i, 3, 6, 9, 24–27

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005).......................... 25

Constantine v. Rectors & Visitors of George

Mason University,

411 F.3d 474 (4th Cir. 2005) ....................... 24–25

Dobbs v. Jackson Women’s Health Organization,

597 U.S. 215 (2022).............................................. 6

Exxon Mobil Corp. v. Healey,

28 F.4th 383 (2d Cir. 2022) ............................... 20

Exxon Mobil Corp. v. Schneiderman,

316 F. Supp. 3d 679 (S.D.N.Y. 2018) .......... 20, 29

Felder v. Casey,

487 U.S. 131 (1988)...................................... 23, 31

First Choice Women’s Resource Centers, Inc. v.

Attorney General New Jersey,

2024 WL 3493288 (3d Cir. July 9, 2024) .......... 12

Google, Inc. v. Hood,

822 F.3d 212 (5th Cir. 2016) ........3, 10, 16–18, 29

Harmon Law Offices, P.C. v. Attorney General,

991 N.E.2d 1098 (Mass. App. Ct. 2013) ............ 32

Heck v. Humphrey,

512 U.S. 477 (1994)........................................ 4, 21

In re Addonizio,

248 A.2d 531 (N.J. 1968) ................................... 32

In re Investigation of KAHEA,

497 P.3d 58 (Haw. 2021).................................... 33

Knick v. Township of Scott,

588 U.S. 180 (2019).................................. 4, 22–24

McNeese v. Board of Education for Community

Unit School District 187,

373 U.S. 668 (1963)............................................ 22

Media Matters for America v. Bailey,

2024 WL 3924573 (D.D.C. Aug. 23, 2024) ........ 19

Media Matters for America v. Paxton,

732 F. Supp. 3d 1 (D.D.C. 2024)........................ 20

Mitchum v. Foster,

407 U.S. 225 (1972)............................................ 31

Monroe v. Pape,

365 U.S. 167 (1961)............................................ 22

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958).................................. 5, 26, 35

Nebraska Press Association v. Stuart,

427 U.S. 539 (1976)............................................ 25

Obria Group, Inc. v. Ferguson,

2025 WL 27691 (W.D. Wash. Jan. 3,

2025) ............................................................. 19, 29

Publius v. Boyer-Vine,

237 F. Supp. 3d 997 (E.D. Cal. 2017) ................ 20

Reisman v. Caplin,

375 U.S. 440 (1964)............................................ 27

Second Amendment Foundation v. Ferguson,

2024 WL 97349 (W.D. Wash. Jan. 9, 2024) ...... 20

Smith & Wesson Brands, Inc. v. Attorney General

of New Jersey,

105 F.4th 67 (3d Cir. 2024) ................... 23, 29, 35

Smith & Wesson Brands, Inc. v. Attorney General

of New Jersey,

27 F.4th 886 (3d Cir. 2022) ......................... 23, 27

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013)........................................ 23, 31

State ex rel. Danforth v. Independent Dodge, Inc.,

494 S.W.2d 362 (Mo. Ct. App. 1973) ................. 32

Twitter, Inc. v. Paxton,

56 F.4th 1170 (9th Cir. 2022) .......3, 17–18, 24, 28

U.S. News & World Report, L.P. v. Chiu,

2024 WL 2031635 (N.D. Cal. May 7, 2024) ...... 20

WinRed, Inc. v. Ellison,

59 F.4th 934 (8th Cir. 2023) .............................. 30

Statutes

28 U.S.C. 1254 ............................................................ 1

42 U.S.C. 1983 ......................................................... i, 2

71 Pa. Stat. and Cons. Stat. § 307-3 ........................ 33

815 Ill. Comp. Stat. Ann. 505/3 ............................... 32

Ala. Code § 8-19-9 .................................................... 32

Alaska Stat. § 45.50.590 .......................................... 32

Ark. Code Ann. § 4-88-111 ....................................... 32

Ga. Code Ann. § 10-1-397 ........................................ 32

Ga. Code Ann. § 10-1-404 ........................................ 32

Haw. Rev. Stat. § 28-2.5(a) ................................ 32, 33

xii

Iowa Code § 714.16 .................................................. 32

Ky. Rev. Stat. Ann. § 367.240 .................................. 33

Mass. Gen. Laws Ann. ch. 93A, § 6(1) ..................... 32

Md. Code Ann., Com. Law § 13-405 ........................ 33

Miss. Code Ann. § 75-24-17 ..................................... 17

Miss. Code Ann. § 75-24-27 ..................................... 33

Mo. Ann. Stat. § 407.040.......................................... 32

Mont. Code Ann. § 30-14-113 .................................. 33

N.C. Gen. Stat. Ann. § 75-10 ................................... 33

N.D. Cent. Code Ann. § 51-15-04............................. 33

N.H. Rev. Stat. Ann. § 358-A:8 ................................ 33

N.J. Stat. Ann. § 45:1-18 .......................................... 31

N.J. Stat. Ann. § 45:1-19 .......................................... 12

N.J. Stat. Ann. § 45:17A-33 ......................... 12, 31, 32

N.J. Stat. Ann. § 56:8-3 ............................................ 31

N.J. Stat. Ann. § 56:8-6 ............................................ 12

N.Y. Gen. Bus. Law § 343 ........................................ 33

N.Y. Gen. Bus. Law § 352 ........................................ 33

Or. Rev. Stat. Ann. § 646.618 .................................. 33

R.I. Gen. Laws § 6-13.1-7 ......................................... 33

Tenn. Code Ann. § 47-18-106 ................................... 33

Tex. Bus. & Com. Code Ann. § 17.61....................... 33

Wash. Rev. Code Ann. § 19.86.110 .......................... 33

Wis. Stat. Ann. § 136.03 .......................................... 33

xiii

Other Authorities

Attorney General Rob Bonta, Open Letter from

Attorneys General Regarding CPC

Misinformation and Harm, State of

California Office of the Attorney General

(Oct. 23, 2023) ................................................ 7, 28

CatholicVote, Pregnancy Centers Attack Tracker.... 6

Consumer Alert, New Jersey Division of

Consumer Affairs (Dec. 1, 2022) ......................... 7

Graham Moomaw, Miyares takes aim at

Democratic fundraising platform ActBlue,

Virginia Mercury (Aug. 5, 2024) ....................... 30

House Letter to AG Schwalb (Oct. 30, 2023) .......... 30

Senate Finance Comm., How State Attorneys

General Target Youth and Adults by

Weaponizing the Medicaid Program and their

Health Oversight Authority (Apr. 16, 2024)...... 30

The Federalist No. 51 (James Madison) ................. 33

Rules

New Jersey Rule of Court 4:67-1(a)......................... 12

DECISIONS BELOW

The November 12, 2024 memorandum opinion of

the United States District Court for the District of

New Jersey dismissing this action for lack of

jurisdiction and denying a TRO and preliminary

injunction is reported at 2024 WL 4756044 and is

reprinted at App.6a. The December 12, 2024 order of

the United States Court of Appeals for the Third

Circuit affirming the district court is reported at 2024

WL 5088105 and is reprinted at App.1a. The June 18,

2024 order of the New Jersey Superior Court,

Chancery Division, Essex County, is unreported and

reprinted at App.69a, and the November 7, 2024 order

of the New Jersey Superior Court, Appellate Division

is unreported and reprinted at App.67a.

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.

1254(1). The judgment of the court of appeals was

entered on December 12, 2024.

INTRODUCTION

This case presents the ideal vehicle in which to

address a recurring question that has divided the

circuits and will ordinarily escape this Court’s review.

That question concerns when the target of a state

investigatory demand—whether a subpoena or a civil

investigative demand—may avail itself of the federal

forum guaranteed by 42 U.S.C. 1983. Under the

decision below, such a target is relegated to state

court to litigate its federal constitutional claims, even

if the subpoena is unlawful, the target has suffered an

objectively reasonable chill of its First Amendment

rights, and the target filed its federal lawsuit before

the state official filed in state court. The Court should

grant the petition and provide clarity to the lower

courts on this important question.

New Jersey Attorney General Matthew Platkin

has made no secret of his hostility towards pregnancy

centers. He issued a consumer alert—drafted with the

help of Planned Parenthood—complaining that such

centers do not provide or refer for abortion. He also

signed an open letter pledging to take legal action

against pregnancy centers. The Attorney General

made good on that pledge by issuing an invasive

Subpoena to First Choice Women’s Resource Centers,

Inc., a collection of five medically-licensed centers

that offer free medical services and material support

to women facing unplanned pregnancies. Though the

Attorney General could not identify a single

complaint, he demanded that First Choice turn over

years of sensitive internal information—including

donor information about nearly 5,000 contributions.

Faced with the far-reaching infringement of its

First Amendment association and speech rights, First

Choice filed this section 1983 action in federal court

seeking emergency relief. First Choice alleged that

the Subpoena had chilled both its associations with

donors and its speech. Yet the district court twice held

First Choice’s claims unripe. The first time, it

followed Google, Inc. v. Hood, 822 F.3d 212, 225 (5th

Cir. 2016), which held that an attorney general’s

investigative demand cannot be challenged in federal

court unless first enforced in state court. Then, on

remand from the Third Circuit (after the parties

stipulated the case was ripe because a New Jersey

trial court held the Subpoena enforceable), the

district court doubled down. It concluded that First

Choice’s section 1983 action would “only” be ripe once

a state court required it to respond under “threat of

contempt.” App.42a.

The Third Circuit affirmed in a 2–1 decision.

Judge Bibas would have held the case ripe, finding it

indistinguishable from Americans for Prosperity

Foundation v. Bonta, 594 U.S. 595, 618–19 (2021).

App.3a. But the majority—joining the Fifth Circuit

and splitting from the Ninth—held that First Choice’s

claims were unripe because “[i]t can continue to

assert its constitutional claims in state court as that

litigation unfolds.” App.4a. In doing so, the panel

majority failed to grapple with the Ninth Circuit’s

conclusion that a constitutional challenge to an

attorney general’s investigative demand is ripe “even

prior to” state litigation if the plaintiff alleges

“objectively reasonable chilling of its speech or

another legally cognizable harm.” Twitter, Inc. v.

Paxton, 56 F.4th 1170, 1178 n.3 (9th Cir. 2022).

Instead, the Third Circuit affirmed the district court’s

dismissal for lack of subject matter jurisdiction,

deepening the acknowledged circuit split between the

Fifth and Ninth Circuits, and nearly guaranteeing

that First Choice will lose its choice of federal forum.

The conclusion that a section 1983 claim is unripe

because it can be litigated in state court is plainly

wrong. Section 1983 was enacted to guarantee “a

federal forum for claims of unconstitutional

treatment at the hands of state officials.” Heck v.

Humphrey, 512 U.S. 477, 480 (1994). It would defeat

that purpose to dismiss a federal case because the

recipient of a government investigative demand can

“assert its constitutional claims in state court.”

App.4a. The Third Circuit’s rule is also contrary to

“the settled rule” that state litigation is “not a

prerequisite” to a federal section 1983 action. Knick v.

Twp. of Scott, 588 U.S. 180, 184–85 (2019) (cleaned

up). There is no subpoena exception to section 1983.

It gets worse. Just like this Court in Williamson

County, the Third Circuit contemplated future federal

litigation of those constitutional claims. Yet res

judicata will almost certainly bar First Choice from

having its federal claims decided by a federal court.

The target of a subpoena thus “finds himself in a

Catch-22.” Knick, 588 U.S. at 184–85. “He cannot go

to federal court without going to state court first; but

if he goes to state court and loses, his [constitutional]

claim will be barred in federal court.” Ibid. In other

words, the Third Circuit’s requirement that a state

court first assess First Choice’s constitutional claims

means that a federal court will never get to do so. If

this result sounds like one that this Court would

reject, that is because the Court did just that—in

Knick.

Certiorari

warranted

because

state

investigative demands are the very sort of thing that

section 1983 is supposed to police. E.g., NAACP v. Ala.

ex rel. Patterson, 357 U.S. 449, 461–66 (1958). And the

civil investigatory powers of state attorneys general

are expansive. State law authorizes attorneys general

to issue investigative demands based on a subjective

suspicion of wrongdoing or a subjective determination

that the demand is in the public interest. In recent

years, state attorneys general have made increasing

use of these broad investigative powers—sometimes

employing them to target political opponents.

Indeed, the targets of these investigatory

demands extend far beyond pregnancy centers. They

run the gamut of ideological and business interests,

including large tech companies, professional sports

leagues, energy companies, firearms groups, and

immigrant and LGBTQ advocacy groups.

This case provides an ideal vehicle to review the

question presented. In the usual case, review will

prove elusive. A case involving the federal ripeness

determination is unlikely to arise out of the Third or

Fifth Circuits because those courts have relegated

such litigation to the state courts. And by the time the

issue reaches this Court from another circuit, it is

likely to be moot or precluded by parallel state-court

proceedings.

This case presents a unique scenario where,

despite parallel state proceedings, the question of

federal jurisdiction remains live. That is because the

state court’s order enforcing the Subpoena expressly

did not resolve First Choice’s constitutional

objections. Plus, the Attorney General has now agreed

to stay proceedings pending disposition of this

petition and any merits review, ensuring that

subsequent developments will not moot the case.

The Attorney General’s Subpoena causes First

Choice, its donors, and all those it associates with to

think twice before speaking and associating with the

faith-based nonprofit. That injury satisfies Article III.

See Ams. for Prosperity, 594 U.S. at 618–19. The

Third Circuit erred in holding that federal

jurisdiction over a challenge to a non-self-executing

subpoena depends upon prior state litigation. This

Court should grant certiorari and reverse.

STATEMENT OF THE CASE

Factual background

A. The Attorney General perpetuates a

wave of hostility toward pregnancy

centers.

Since Dobbs v. Jackson Women’s Health

Organization, 597 U.S. 215 (2022), pro-life pregnancy

centers have met with increased hostility. In that

time, pregnancy centers have faced nearly 100

criminal acts—including arson, graffiti, assault, and

threats of assassination and violence. App.182a;

Tracking Attacks on Pregnancy Centers & Pro-Life

Groups, CatholicVote, https://perma.cc/YXE6-QCRP

(Nov. 12, 2024) (documenting 95 attacks).

After Dobbs, the Attorney General established a

“Strike Force” to pursue enforcement actions and

“strategic initiatives” to promote abortion access. 1

The Strike Force prepared a statewide “consumer

1 See Press Release, New Jersey Office of the Attorney General,

Acting AG Platkin Establishes “Reproductive Rights Strike

Force” to Protect Access to Abortion Care for New Jerseyans and

Residents

Other

States

(July

11,

2022),

https://perma.cc/WZ6B-KLT6.

alert” to warn New Jerseyans about the obvious—that

pro-life pregnancy centers “do NOT provide

abortion[s].” Consumer Alert, New Jersey Division of

Consumer Affairs, https://perma.cc/5J8A-D4LB (Dec.

1, 2022). His alert cautions that pregnancy centers

“[o]ffer free services (including pregnancy tests,

ultrasounds, and adoption information) or supplies

(including diapers and baby clothes) to individuals

seeking … reproductive health care services.” Ibid.

The consumer alert redirects women from

pregnancy centers to Planned Parenthood. Ibid.

That’s predictable because the Attorney General

enlisted the abortion provider’s help to write the alert.

He forwarded a draft to Planned Parenthood for

feedback and incorporated the group’s input.

App.191a–96a.

The Attorney General also co-authored an open

letter falsely accusing pregnancy centers of

misleading consumers. Attorney General Rob Bonta,

Open Letter from Attorneys General Regarding CPC

Misinformation and Harm, State of California Office

of the Attorney General (Oct. 23, 2023),

https://perma.cc/DL74-3K6L. His chief grievance:

that pregnancy centers “do not provide abortions or

abortion services.” Id. at 1. The letter pledged

“numerous actions” against them. Id. at 8.

B. The Attorney General demands donor

identities and other sensitive information from First Choice.

As promised, the Attorney General took action

against pregnancy centers. He served two with

investigatory subpoenas. One is First Choice—a

pregnancy center that has been serving New Jersey

women with free, licensed medical services and

material support since 1985. App.116a. Like other

pregnancy centers, First Choice is a faith-based

nonprofit that advocates pro-life views. App.117a. It

does not provide or refer for abortions, and it states so

plainly on every page of its client website. App.116a.

First Choice is funded exclusively by private donors

and provides its services for free. App.180a.

The Attorney General cited three statutory bases

for his Subpoena: the New Jersey Consumer Fraud

Act (NJCFA), the Charitable Registration and

Investigation Act (CRIA), and his investigative

authority over Professions and Occupations (P&O).

App.90a. He made 28 demands for documents and

information from First Choice, including the identity

of every one of its donors who gave through any means

other than one specific donor website. App.100a–10a.

The Attorney General’s professed concern was that a

donor might have given based on the mistaken belief

that First Choice was a pro-abortion organization. Br.

of Def-Appellee at 6–8, First Choice Women’s Res.

Ctrs., Inc. v. Att’y Gen. N.J., 2024 WL 5088105 (3d

Cir. Dec. 12, 2024) (No. 24-3124), Doc.43.

The breadth of the Attorney General’s demand is

staggering. It requires First Choice to disclose donor

information for some 5,000 individual contributions.

App.110a. It would include everyone who gave at

First Choice’s benefit dinners and through church

baby-bottle campaigns—even though such donors

could not possibly be confused about First Choice’s

pro-life mission. And the Attorney General made his

broad demand for donor identities without identifying

a single donor complaint.

C. The Subpoena chills First

association and speech rights.

Choice’s

The Subpoena harms First Choice even without a

court order enforcing it. Because of the “pattern of

violence and intimidation” against pregnancy centers,

First Choice is “concerned that if its donors’ identities

[become] public, they may be subjected to similar

threats.” App.182a. And since “[m]any donors desire

for their donations and communications with First

Choice to remain confidential,” disclosing such

information would compromise its “ability to recruit

new donors, personnel, and affiliates,” as well as

hinder its ability to “retain current donors, personnel,

and affiliates.” App.182a–83a. “Failure to protect

their identities would cause them to cease donating to

First Choice.” App.182a. As this Court made clear in

Americans for Prosperity, even the threat of disclosure

is likely to scare away donors. 595 U.S. at 618–19.

Several donors whose identities would be

disclosed under the Subpoena jointly submitted an

anonymous declaration describing the present chill on

their First Amendment protected association. They

testified that “[t]he possibility that our identities will

be disclosed to a law enforcement official who is

openly hostile to pro-life organizations threatens both

First Choice’s protected associational rights and our

rights as well.” App.177a. They also explained that

“[e]ach of us would have been less likely to donate to

First Choice if we had known information about the

donation might be disclosed to an official hostile to

pro-life

organizations.”

App.177a.

It’s

thus

unsurprising that the donors regard the Attorney

General’s investigation as an imminent threat to

their association with First Choice. App.178a.

The Subpoena has also chilled First Choice’s

speech. The Attorney General demanded the

identities of First Choice’s staff, App.107a–08a, and

First Choice became concerned those staff members

would be subject “to harassment such as First Choice

was experiencing.” App.181a. First Choice thus

censored its speech by removing several videos of its

staff sharing client stories from its public YouTube

channel. Ibid. This “leav[es] the public with only

videos that do not identify staff, even though those

videos are less impactful than those containing firstperson testimony.” Ibid.

II. Procedural history

A. The district court holds this case unripe.

Given the imminent threat to its First

Amendment rights, First Choice filed this action in

federal court and requested emergency relief before

the Subpoena’s compliance date. App.111a–47a. First

Choice raised various First Amendment claims,

including claims of First Amendment retaliation.

Though the Attorney General did not contest

jurisdiction, the district court dismissed the action

sua sponte. Relying on the Fifth Circuit’s decision in

Google, Inc. v. Hood, 822 F.3d 212, the lower court

held that First Choice’s section 1983 claims were

unripe until “the state court enforces the Subpoena.”

App.80a. The district court acknowledged the

preclusion trap its holding created: a federal

challenge to an investigatory demand would “seldom

if ever be ripe” because “res judicata principles will

likely bar … a claim in federal court” after state-court

adjudication. App.82a n.7.

After the district court dismissed this lawsuit, the

Attorney General filed an enforcement action in state

court.

First Choice promptly appealed the district court

decision. And given that the state court action

threatened to preclude First Choice’s federal claims,

it sought both an expedited appeal and an injunction

pending appeal from the Third Circuit. Both were

denied. Order Denying Emergency Motion, First

Choice, 2024 WL 3493288 (No. 24-1111), Doc.20;

Order denying Motion to Expedite Appeal, First

Choice, 2024 WL 3493288 (No. 24-1111), Doc.29. First

Choice then petitioned this Court for mandamus or

certiorari before judgment, which the Court denied.

In re First Choice Women’s Resource Centers, Inc., No.

23-941 (U.S. May 13, 2024).

B. The state court enforces the Subpoena

without deciding the federal issues.

The state trial court then held the Subpoena

enforceable. It granted the Attorney General’s

request to direct First Choice to respond to the

Subpoena “in full.” App.158a. Yet the state court

declined to reach First Choice’s constitutional

objections, finding them “premature.” App.156a. The

court held “that there are no ripe constitutional

arguments” and that those issues were “preserved.”

App.157a; App.162a. The state court also reserved a

decision on the scope of the Subpoena under state law,

directing the parties to confer. App.155a–56a.

First Choice appealed. It also began conferring

about the scope of the Subpoena, served timely

written responses and objections—including an

objection to providing donor identities—and started

producing documents. To date, First Choice has

produced more than 2,300 pages of documents but has

not disclosed any protected donor information.

C. The Third Circuit remands.

After the state court enforced the Subpoena, both

parties acknowledged that First Choice’s federal suit

was ripe. First Choice Women’s Res. Ctrs., Inc. v. Att’y

Gen. N.J., No. 24-1111, 2024 WL 3493288, at *1 (3d

Cir. July 9, 2024). They disagreed only on what relief

was warranted—First Choice argued that the Third

Circuit should grant an injunction pending appeal

and summarily reverse the district court, while the

Attorney General asked the Third Circuit to dismiss

the appeal as moot and remand to the district court.

Ibid. The Third Circuit granted the Attorney

General’s motion to remand the appeal “as moot” and

noted that “[b]ased on subsequent developments in

state court, it is now undisputed that [First Choice’s]

claims are ripe.” Ibid.

The Third Circuit said the district court could

consider an injunction “in the first instance.” Ibid. On

remand, First Choice thus renewed its emergency

request for an injunction.

D. The state court denies the Attorney

General’s motion to enforce litigant’s

rights.

Back in state court, the Attorney General filed a

motion “to enforce litigant’s rights” under N.J. Stat.

Ann. §§ 45:17A-33, 45:1-19, 56:8-6, and New Jersey

Rule of Court 4:67-1(a). See App.59a. He insisted that

First Choice hand over everything demanded by his

Subpoena—including

donor

identities—and

requested sanctions. See App.59a–66a.

The state court declined to rule while First

Choice’s state-court appeal was pending. App.62a. So

the Attorney General moved for—and the Appellate

Division granted—his motion to temporarily remand

to the trial court to consider his motion to enforce

litigant’s rights and for sanctions. App.67a–68a.

E. The district court

unripe—again.

holds

this

case

The federal district court then ruled on First

Choice’s emergency motion for an injunction, which

had been pending nearly four months. Despite the

state court’s enforcement of the Subpoena and the

Attorney General’s motion for sanctions, the district

court held the case still not ripe. App.26a. This time,

it said First Choice’s claims would not be ripe until

the state court “require[s] the subpoena recipient to

respond to the subpoena under threat of contempt.”

App.42a; App.26a. First Choice immediately appealed

and moved to expedite. Judge Bibas granted that

motion. Order Granting Mot. to Expedite, First

Choice, 2024 WL 5088105 (No. 24-3124), Doc.12.

Meanwhile, the state trial court denied the

Attorney General’s motion to enforce litigant’s rights

and for sanctions because First Choice had complied

with the court’s order to respond “in full” to the

Subpoena. App.64a–65a. The state court also

reiterated that it had never ruled on the merits of

First Choice’s constitutional claims. App.64a. 2

2 On January 17, 2025, the state appellate division dismissed

First Choice’s pending appeal of the state court’s enforcement

order finding it not final. Order on Mot., Att’y Gen. N.J. v. First

Choice Women’s Res. Ctrs., Inc., No. A-003615-23T4 (N.J. Sup.

Ct. App. Div. dismissed Jan. 17, 2025).

F. The Third Circuit joins the Fifth in

requiring state-court proceedings to

ripen federal constitutional claims

challenging

state

investigative

demand.

The Third Circuit joined the Fifth Circuit in

requiring state-court litigation as a precursor to a

federal section 1983 challenge to a state investigative

demand. App.4a. Judge Bibas would have held “First

Choice’s

constitutional

claims

ripe”

“indistinguishable from Americans for Prosperity

Foundation.” App.3a. But the majority held that First

Choice’s claims were not yet ripe because “[i]t can

continue to assert its constitutional claims in state

court as that litigation unfolds.” App.4a. The majority

emphasized its confidence that “the state court will

adequately adjudicate First Choice’s constitutional

claims.” App.4a–5a.

The Third Circuit failed to recognize the

preclusive effect of such an adjudication—wrongly

assuming that subsequent federal review could occur.

App.5a. It then stated that “First Choice’s current

affidavits do not yet show enough of an injury,”

without addressing what those affidavits alleged or

explaining how a First Amendment injury could exist

while not being “enough” to establish jurisdiction.

App.4a.

The Attorney General agreed that he would not

pursue any further enforcement of the Subpoena in

state court while First Choice seeks review from this

Court. App.87a–88a. This petition follows.

REASONS FOR GRANTING THE PETITION

For a century and a half, Congress has provided

the targets of a state official’s malfeasance with a

federal forum in which to raise their constitutional

claims. Yet the Third and Fifth Circuits have

eliminated that forum for the targets of state

investigative demands. Section 1983 does not carve

out subpoenas from its guarantee of a federal forum.

This Court’s review is necessary to instruct the lower

federal courts on whether a section 1983 challenge to

an investigative demand is unripe until litigated in

state court. This Court should grant review for four

reasons.

First, the courts of appeal are divided over

whether a recipient of an investigatory demand must

first go to state court before challenging the demand

in federal court. The Third and Fifth Circuits impose

this state-court litigation requirement, but the Ninth

Circuit holds that a concrete injury caused by the

challenged subpoena satisfies Article III.

Second, the decision below is irreconcilable with

two different lines of this Court’s precedent. This

Court has recognized that section 1983 does not

impose a state-court litigation requirement and that

First Amendment chill satisfies Article III’s injury

requirement. Despite those rulings, and regardless of

whether the target of an investigative demand has

already suffered an Article III injury, the Third and

Fifth Circuits hold that federal jurisdiction over a

section 1983 challenge to a state investigative

demand depends upon a prior state-court proceeding.

Third, this issue is exceptionally important. State

attorneys general have jaw-dropping authority to

issue these demands, whether framed as subpoenas

or civil investigatory demands. They often have the

power to investigate based on a mere suspicion of

wrongdoing. And in today’s charged political climate,

suspicions abound. Yet the Third and Fifth Circuits

relegate section 1983 challenges to these demands to

state court—eliminating one of the most effective

checks on unconstitutional state action.

And fourth, this Court may never see a better

vehicle in which to provide clarity on the question

presented. Parallel state proceedings will almost

always moot or preclude the jurisdictional question

presented here. This case is unusual precisely

because the state court has not decided First Choice’s

federal claims. And the Attorney General has agreed

to stay further state-court enforcement pending

disposition of this petition. This Court should seize

this rare opportunity and grant review.

The circuits are split on when litigants can

bring

federal

challenges

state

investigatory demands.

The Third Circuit’s decision exacerbates a conflict

over an important jurisdictional question: whether

the target of a state investigatory demand may file

suit in federal court under section 1983 upon

suffering an Article III injury or whether it must first

undergo state-court proceedings. Two circuits—the

Fifth Circuit and the divided Third Circuit panel

below—hold that a non-self-enforcing demand (which

requires a state-court order for the imposition of

sanctions) may be challenged in federal court only

after state-court litigation has ripened the challenge.

Google, 822 F.3d at 224–25; App.4a–5a. The Ninth

Circuit, in contrast, has expressly disagreed with the

Fifth Circuit’s decision in Google. Consistent with this

Court’s state-court exhaustion caselaw, the Ninth

Circuit has held that, even where a demand is not

“self-enforcing,” a section 1983 plaintiff may

challenge it in federal court upon suffering cognizable

harm. Twitter, 56 F.4th at 1175–76.

This conflict merits this Court’s review.

1. The Fifth Circuit imposes a categorical rule

that a challenge to a non-self-enforcing investigatory

demand is not ripe until the demand has been

litigated in state court. In Google, the Fifth Circuit

considered a First and Fourth Amendment challenge

to a subpoena served by the Mississippi Attorney

General. 822 F.3d at 219. The Fifth Circuit held that

the case was unripe, applying its “cases considering

federal administrative subpoenas that … were nonself-executing.” Id. at 224. The Fifth Circuit explained

that Mississippi law, like federal administrative law,

gave the Attorney General “no authority to enforce”

the subpoena, but rather required him to “request an

order” to compel from the state courts, which would

be enforceable through contempt. Id. at 225 (citing

Miss. Code Ann. § 75-24-17). The Fifth Circuit held

that “comity should make [the court] less willing to

intervene when there is no current consequence,”

especially because “the same challenges raised in the

federal suit could be litigated in state court.” Id. at

225–26. It therefore concluded that “neither the

issuance of the non-self-executing administrative

subpoena nor the possibility of some future

enforcement action created an imminent threat of

irreparable injury ripe for adjudication.” Id. at 228.

The court did not explain how a litigant could obtain

a federal-court ruling on a constitutional issue after a

state court has already resolved it.

2. The Ninth Circuit expressly split with the Fifth

Circuit and held that the target of a state

investigation’s challenge is ripe where the demand

has caused injury. In Twitter, Inc. v. Paxton, the

Ninth Circuit considered the social media company’s

challenge to a demand issued by the Texas Attorney

General. 56 F.4th at 1172. Even though Texas law

required the Attorney General to resort to state court

to enforce the demand, which means it was “not selfexecuting,” the Ninth Circuit expressly rejected the

Fifth Circuit’s categorical holding that the recipient

may never establish standing “prior to the [demand’s]

enforcement” in state court. Id. at 1176, 1178 n.3

(citing Google, 822 F.3d at 225). Rather, the

recipient’s “objectively reasonable chilling of its

speech or another legally cognizable harm” satisfied

Article III, allowing a federal court to rule and redress

that harm immediately. Ibid.

3. Here, a divided Third Circuit panel took the

same approach as Google and held that First Choice’s

first-filed section 1983 action was not ripe because the

group could “assert its constitutional claims in state

court.” App.4a. The majority began by characterizing

the case as seeking to prevent the Attorney General

“from enforcing a non-self-enforcing investigatory

subpoena.” App.3a. It then determined that the case

was unripe because First Choice “can continue to

assert its constitutional claims in state court,” and

added that “the parties have been ordered by the state

court to negotiate to narrow the subpoena’s scope.”

App.4a. The majority was unconcerned about

rejecting First Choice’s first choice of a federal forum,

saying it “believe[d] that the state court will

adequately adjudicate First Choice’s constitutional

claims.” App.4a–5a. The lower court also wrongly

assumed that future federal litigation would

“adequately adjudicate” First Choice’s constitutional

claims, App.5a, failing to explain how a federal case

following the state court’s ruling would not be res

judicata.

Judge Bibas dissented. He concluded that the

case was ripe and “indistinguishable from Americans

for Prosperity Foundation.” App.3a.

4. The district courts are also hopelessly split on

this issue.

a. Just last month, a federal district court

dismissed as unripe a section 1983 challenge to the

Washington State Attorney General’s investigation of

a pregnancy center. Obria Grp., Inc. v. Ferguson, No.

3:23-cv-06093, 2025 WL 27691, at *1 (W.D. Wash.

Jan. 3, 2025). The court held that the action would not

ripen—regardless of allegations of chill and economic

harm—until first litigated in state court. Id. at *10.

b. In a pair of cases that Media Matters filed in

the District of Columbia—one against the Missouri

Attorney General and one against the Texas Attorney

General—the courts reached the opposite conclusion.

In the Missouri case, the district court rejected

the state’s Google-based argument that, where the

target of a state investigative demand “‘can raise its

First Amendment defense’ in state court, then a

federal challenge is not ripe.” Media Matters for Am.

v. Bailey, No. 24-cv-147 (APM), 2024 WL 3924573, at

*9 (D.D.C. Aug. 23, 2024) (cleaned up). Instead, the

court held that “Plaintiffs’ retaliation claim is plainly

ripe as they have come forward with evidence of

harm: Defendant’s actions chilled their protected

expression.” Ibid.

Similarly, in the Texas case, the district court

held that the plaintiffs had amply “demonstrate[d]

some likelihood of a chilling effect on their rights” to

justify preliminary injunctive relief. Media Matters

for Am. v. Paxton, 732 F. Supp. 3d 1, 29 (D.D.C. 2024)

(cleaned up). Texas’s ripeness arguments failed to

recognize that “Plaintiffs are already suffering First

Amendment harm in the form of chilled protected

activities.” Ibid. (emphasis in original). This case has

been fully briefed and argued before the D.C. Circuit.

c. In Exxon Mobil Corp. v. Schneiderman, the

Southern District of New York followed Google and

agreed that there was “no reason why a state’s nonself-executing subpoena should be ripe for review”

before litigation in state court. 316 F. Supp. 3d 679,

695 (S.D.N.Y. 2018), aff’d in part, appeal dismissed in

part sub nom. Exxon Mobil Corp. v. Healey, 28 F.4th

383 (2d Cir. 2022) (cleaned up). The court found the

case ripe because the state courts had compelled

Exxon to comply with the New York Attorney

General’s investigative demands. Id. at 696. But

because Exxon could have litigated its federal claims

in state court, the district court held they were barred

by claim preclusion. Id. at 699–704.

d. And in U.S. News & World Report, L.P. v. Chiu,

the district court relied on Google and dismissed as

unripe a challenge to a subpoena issued by a city

attorney because it was not self-executing and did not

“require immediate compliance.” No. 24-cv-00395WHO, 2024 WL 2031635, at *14 (N.D. Cal. May 7,

2024); see also Second Amend. Found. v. Ferguson,

No. C23-1554 MJP, 2024 WL 97349, at *4 (W.D.

Wash. Jan. 9, 2024) (appeal pending) (dismissing

challenge to subpoena as unripe); cf. Publius v. BoyerVine, 237 F. Supp. 3d 997, 1027–28 (E.D. Cal. 2017)

(applying the Google framework to a First

Amendment challenge to a state demand letter

requesting that WordPress take down certain

content).

These cases collectively demonstrate that the

lower courts desperately need guidance on the

question presented here.

II. The Third Circuit erred in relegating

federal challenges to state investigatory

demands to state court.

A. The Third Circuit’s state-litigation

requirement deprives First Choice of its

guaranteed federal forum.

The Third Circuit erred in joining the Fifth

Circuit and holding that federal jurisdiction over a

section 1983 challenge to a state investigative

demand is predicated on prior state litigation.

According to the Third Circuit, First Choice’s First

Amendment claims are not yet ripe because it “can

continue to assert its constitutional claims in state

court as that litigation unfolds.” App.4a; see also

App.4a–5a (“believ[ing] that the state court will

adequately adjudicate First Choice’s constitutional

claims”). That ripeness ruling rests on a mistaken

understanding of section 1983 and First Amendment

standing.

Section 1983 guarantees “a federal forum for

claims of unconstitutional treatment at the hands of

state officials.” Heck, 512 U.S. at 480. The “general

rule” is that plaintiffs may bring constitutional claims

under section 1983 “without first bringing any sort of

state lawsuit, even when state court actions

addressing the underlying behavior are available.”

Knick, 588 U.S. at 194 (emphasis added, quotation

omitted).

Yet under the Third Circuit’s mistaken view, “the

guarantee of a federal forum rings hollow” for

subpoena recipients “who are forced to litigate their

claims in state court.” Id. at 185. No matter how

unlawful a subpoena—the target of an investigatory

demand may not avail herself of federal court unless

and until a state court adjudicates her constitutional

claims.

This is particularly troublesome given that

section 1983’s very purpose is to secure a federal

forum for violations of federal law by state officials.

As this Court has observed, it would defeat this

purpose to hold that a litigant’s right to assert “a

federal claim in a federal court must await an attempt

to vindicate the same claim in a state court.” McNeese

v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, 373 U.S.

668, 672 (1963). Indeed, this Court has long held that

the “federal remedy is supplementary to the state

remedy, and the latter need not be first sought …

before the federal one is invoked.” Monroe v. Pape, 365

U.S. 167, 183 (1961) (emphasis added). This is as true

for constitutional challenges to a state investigative

demand as for any other federal claim.

Worse still, the state-court adjudication that the

Third Circuit demands will simultaneously ripen and

bar First Choice’s constitutional claim, as the district

court acknowledged here. App.82a. Under the Third

Circuit’s logic, the target of a state subpoena “finds

himself in a Catch-22.” Knick, 588 U.S. at 184–85. “He

cannot go to federal court without going to state court

first; but if he goes to state court and loses, his claim

will be barred in federal court.” Ibid. As in Knick, this

“preclusion trap should tip us off that the statelitigation requirement rests on a mistaken view” of

the Constitution. Ibid.

A prior Third Circuit case illustrates how this

preclusion trap works. The court there concluded that

a district court had erred in dismissing a

constitutional challenge to a subpoena under Younger

abstention. Smith & Wesson Brands, Inc. v. Att’y Gen.

of N.J., 27 F.4th 886, 892–93 (3d Cir. 2022). But by

the time that jurisdictional question reached the

Third Circuit, the state court had already “summarily

rejected” the constitutional objections in parallel

proceedings. Id. at 890. So, on remand, the district

court dismissed the first-filed constitutional claims as

barred by res judicata. Smith & Wesson Brands, Inc.

v. Att’y Gen. of N.J., 105 F.4th 67, 70 (3d Cir. 2024).

The Third Circuit then affirmed. Ibid.; accord Exxon

Mobil, 316 F. Supp. 3d at 699–704. That ruling

handed to state courts the authority over

constitutional challenges to state investigations—and

given preclusion, it did so permanently. Knick, 588

U.S. at 188–89.

Here, the Third Circuit expressed confidence

“that the state court will adequately adjudicate First

Choice’s constitutional claims.” App.4a–5a. But in

enacting section 1983, Congress was much less sure

that state courts would be free from the influence of

state politics. See Felder v. Casey, 487 U.S. 131, 141

(1988). Regardless, the mere possibility that a state

court might get it right does not excuse the federal

courts from exercising their “virtually unflagging”

jurisdiction to decide a federal question, Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)

(cleaned up), any more than did the possibility that a

state court might find an uncompensated taking to be

unconstitutional in Knick. Constitutional claims

against state investigative demands “should be

handled the same as other claims under the Bill of

Rights.” Knick, 588 U.S. at 202. The Third Circuit

erred in holding otherwise.

B. The Third Circuit’s state-litigation

requirement violates this Court’s First

Amendment precedents.

The Third Circuit’s ripeness rule also conflicts

with this Court’s First Amendment precedents. A

First Amendment plaintiff under section 1983—

including the recipient of a state investigatory

demand—may bring a claim in federal court if its

right to associate or speak has been chilled. Ams. for

Prosperity, 594 U.S. at 618–19. “When it comes to the

freedom of association, the protections of the First

Amendment are triggered not only by actual

restrictions on an individual’s ability to join with

others to further shared goals” but also by the “risk of

a chilling effect on association.” Ibid. That risk of chill

“is enough, because First Amendment freedoms need

breathing space to survive.” Ibid. (cleaned up).

A plaintiff asserting First Amendment retaliation

claims against an attorney general’s investigative

demand—as First Choice does here—satisfies

ripeness “even prior to” state litigation if the plaintiff

alleges “objectively reasonable chilling of its speech or

another legally cognizable harm.” Twitter, 56 F.4th at

1178 n.3. The plaintiff need not show that retaliatory

conduct “caused her to cease First Amendment

activity altogether.” Constantine v. Rectors & Visitors

of George Mason Univ., 411 F.3d 474, 500–01 (4th Cir.

2005). Rather, “[t]he cause of action targets conduct

that tends to chill such activity, not just conduct that

freezes it completely.” Ibid. (emphasis omitted). Thus,

“for purposes of a First Amendment retaliation claim

under § 1983, a plaintiff suffers adverse action if the

defendant’s allegedly retaliatory conduct would likely

deter ‘a person of ordinary firmness’ from the exercise

of First Amendment rights.” Ibid. (cleaned up);

Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir.

2005) (same).

First Choice’s First Amendment retaliation claims

are ripe because the Attorney General’s investigative

demand would not only deter “a person of ordinary

firmness” from exercising her First Amendment

rights but also because First Choice has come forward

with evidence that such harm has occurred. It is well

settled that “a threat of criminal or civil sanctions

after publication ‘chills’ speech.” Neb. Press Ass’n v.

Stuart, 427 U.S. 539, 559 (1976). Here, the Attorney

General has already obtained a state-court order

enforcing his Subpoena, and he has moved the state

court to award sanctions and attorneys’ fees for

noncompliance. App.69a; see also App.59a. Those

threats reasonably chill First Choice’s association and

speech rights.

The chill on First Choice’s associational rights is

particularly clear. Judge Bibas dissented below

because he found this case “indistinguishable from

Americans for Prosperity Foundation.” App.3a. As

this Court held there, for “freedom of association”

claims, the “risk of a chilling effect … is enough.” Ams.

for Prosperity, 594 U.S. at 618. Applying this

standard, the Court was “unpersuaded” by the

California Attorney General’s attempt to “downplay

the burden [of a disclosure requirement] on donors.”

Id. at 615–16. The Court emphasized that “[e]xacting

scrutiny is triggered by ‘state action which may have

the effect of curtailing the freedom to associate,’ and

by the ‘possible deterrent effect’ of disclosure.” Ibid.

(quoting NAACP, 357 U.S. at 460–61).

Here, First Choice’s declarations show not just a

possible chill on its associational freedoms, but an

actual one. App.181a–83a. The Attorney General’s

sweeping Subpoena demands that First Choice

disclose the identities behind nearly half of its

donations by number and almost 70% of its donations

by amount. App.189a. Because pregnancy centers

have been subject to a “pattern of violence and

intimidation” since Dobbs, First Choice is “concerned

that if its donors’ identities became public, they may

be subjected to similar threats.” App.182a. And since

“[m]any donors desire for their donations and

communications with First Choice to remain

confidential,” the Subpoena’s threatened disclosure of

such wide-ranging information compromises First

Choice’s “ability to recruit new donors, personnel, and

affiliates,” as well as its ability to “retain current

donors, personnel, and affiliates.” App.182a–83a.

First Choice has substantiated all these harms. In

an anonymous sworn declaration, multiple First

Choice donors testified that they viewed the Attorney

General’s Subpoena as an imminent threat to their

association with First Choice. App.177a–78a. In their

words, “[t]he possibility that our identities will be

disclosed to a law enforcement official who is openly

hostile to pro-life organizations threatens both First

Choice’s protected associational rights and our rights

as well.” App.177a. Each of them affirmed that they

“would have been less likely to donate to First Choice

if [they] had known information about the donation

might be disclosed to an official hostile to pro-life

organizations.” App.177a. Yet the Third Circuit

dismissed all this as “not yet ... enough of an injury,”

without a word of explanation—other than to cite the

possibility of relief in state proceedings. App.4a.

The Attorney General’s demand has also

reasonably and actually chilled First Choice’s speech.

Faced with the Subpoena’s demand for staff

identities, App.107a–08a, First Choice removed from

its YouTube channel several videos sharing client

success stories, despite their positive impact on its

ministry. App.181a. First Choice censored this speech

because it contained information identifying the

center’s staff and because it was concerned about

their safety. Ibid. First Choice worried that, given the

Attorney General’s public investigation, identifying

staff would subject them “to harassment such as First

Choice was experiencing.” Ibid.

As to First Amendment harm, it is no answer to

say that injury has not occurred because the state

court has yet to compel First Choice to disclose

protected donor information. The chill on association

or speech is itself the injury. “When it comes to a

person’s beliefs and associations, broad and sweeping

state inquiries into these protected areas discourage

citizens from exercising rights protected by the

Constitution.” Ams. for Prosperity, 594 U.S. at 610

(cleaned up). Such chill is exactly the effect one would

expect from serving these onerous investigative

demands. Smith & Wesson, 27 F.4th at 896–97

(Matey, J., concurring). “One might suspect that is the

whole point” of issuing the subpoena. Ibid.

The Attorney General’s reliance below on

Reisman v. Caplin, 375 U.S. 440 (1964), and the other

federal administrative subpoena cases, is misplaced.

Those cases do not involve section 1983 claims or

situations where plaintiffs suffered a chilling injury

from the subpoena itself. This case, in contrast,

“involves the First Amendment, under which a

chilling effect on speech can itself be the harm.”

Twitter, 56 F.4th at 1178. Where, as here, a plaintiff

suffers a concrete injury that has already occurred,

the subsequent review provided by Reisman cannot

right that wrong. And while litigating an

administrative subpoena before a federal agency does

not preclude subsequent litigation in federal court,

the opposite is true for a state-court ruling on a

federal challenge to a state subpoena.

Forcing First Choice into state court despite

direct evidence of a chill on First Amendment rights

cannot be squared with this Court’s caselaw. This

Court should grant review and reverse.

III. The question presented is exceptionally

important.

The question presented is profoundly important

on multiple levels. First, it is important to protect the

constitutional rights of pregnancy centers amid state

hostility and private violence. Since the leak of the

Dobbs draft opinion in 2022, these centers have been

subject to a shocking level of violence and

intimidation. And many state attorneys general have

pledged to use every tool in their arsenal to crack

down on them, precisely because pregnancy centers

“do not provide abortions.” See Bonta, Open Letter,

supra, at 1. Those state officials have made good on

those threats by subjecting resource-strapped centers

to overbearing investigatory demands, often without

identifying a single complaint. See, e.g., Obria, 2025

WL 27691, at *1–2 (demanding donor information

based on “possible” deceptive marketing).

Second, the importance of this issue spans broad

ideological divides, threatening the rights of

businesses,

nonprofits,

and

political

action

committees of all stripes. Beginning with the business

community, a vast array of companies—including

large tech giants, gun sellers, and petroleum

companies—have faced state investigatory demands,

and some have already been denied their choice of a

federal forum. E.g., Google, 822 F.3d at 219; Smith &

Wesson, 105 F.4th at 84; Exxon Mobil, 316 F. Supp.

3d at 695.

The nonprofit world—as illustrated by the

experiences of groups on both the left and the right—

has also been targeted by invasive state investigative

demands. Consider the Obria Group, a network of

pro-life pregnancy centers and medical clinics. The

Washington Attorney General subpoenaed over a

decade’s worth of the group’s information based on

what he called “possible” deceptive marketing and

“possible” unfair collection and use of consumer data.

Obria, 2025 WL 27691, at *1–2. And on the other side

of the political spectrum, Media Matters—a nonprofit

“progressive research and information center”—has

been served with investigative demands by several

states. See supra at 19–20. In addition, immigrant

and LGBTQ advocacy groups in the Fifth Circuit have

already been forced to litigate their federal challenges

to state investigative demands in state court. See

Annunciation

House

Inc.

Paxton,

No.

2024DCV0616, slip op. (Tex. Dist. Ct., El Paso Cnty.

July 2, 2024) (challenging investigative demand in

state court); PFLAG, Inc. v. Tex. Att’y Gen., No. D-1-

GN-24-001276, slip op. (Tex. Dist. Ct., Travis Cnty.

Mar. 1, 2024) (same).

Some state attorneys general have also

investigated the political action committees of

opposing political parties. WinRed, Inc.—a political

action committee that “centralize[d] donations to

Republican-affiliated candidates and committees”—is

being investigated over allegations that consumers

were being “charged for regular contributions that

they did not intend.” WinRed, Inc. v. Ellison, 59 F.4th

934, 936–37 (8th Cir. 2023) (cleaned up). Meanwhile,

ActBlue—an

online

Democratic

fundraising

platform—is being investigated based on allegations

of campaign finance fraud. Graham Moomaw,

Miyares takes aim at Democratic fundraising

platform ActBlue, Virginia Mercury (Aug. 5, 2024),

https://perma.cc/4KTA-WWE9.

Federal legislators have already highlighted the

seeming politicization of many state investigations.

Republican lawmakers have expressed concerns over

an investigation into certain conservative nonprofits

and their leaders. House Letter to AG Schwalb (Oct.

30, 2023), https://perma.cc/2H6S-9WRF. They

question the “apparent political motivations” and

raise “concern[s] about potential infringement on free

association and donor privacy.” Ibid. And Democrat

senators have accused some states of trying “to obtain

private medical records from the health care

providers of transgender children and adults” to

“further ideological and political goals.” Senate

Finance Comm., How State Attorneys General Target

Youth and Adults by Weaponizing the Medicaid

Program and their Health Oversight Authority (Apr.

16, 2024), https://perma.cc/QAU4-W5KU.

Third, federal courts have a compelling interest

in whether they may entertain a first-filed federal

challenge to a state investigatory demand. As noted

above, the “central purpose” of section 1983 is to

provide relief “to those deprived of their federal rights

by state actors.” Felder, 487 U.S. at 141. The “state

courts’ failure to secure federal rights” during the

Reconstruction Era led Congress to pass section 1983

“to interpose the federal courts between the States

and the people, as guardians of the people’s federal

rights.” Mitchum v. Foster, 407 U.S. 225, 241–42

(1972). Given that history, it is passing strange to

exempt state investigations from the federal forum

guaranteed by section 1983.

The Third and Fifth Circuits relegate the

recipients of state investigative demands to secondclass constitutional status by depriving them of their

federal forum. This result is out of step with this

Court’s direction that the federal courts must assume

jurisdiction where it exists. Indeed, this Court has

narrowed the various abstention doctrines precisely

because they conflict with the federal courts’

“virtually unflagging” obligation to exercise their

jurisdiction. Sprint, 571 U.S. at 77.

Fourth, this case is critically important to ensure

that the targets of state investigative demands have

the federal backstop that section 1983 provides. The

Attorney General here, for example, has the power to

investigate entities and individuals civilly based upon

a mere suspicion of wrongdoing. N.J. Stat. Ann.

§ 56:8-3; accord N.J. Stat. Ann. § 45:1-18; N.J. Stat.

Ann. § 45:17A-33(c). Those broad investigative

powers may also be employed whenever he

subjectively believes an investigation to be in the

“public interest.” N.J. Stat. Ann. § 56:8-3; accord N.J.

Stat. Ann. § 45:17A-33(c). The New Jersey Supreme

Court has aptly characterized this authority as the

“power of inquisition” because it allows the Attorney

General to “investigate merely on the suspicion that

the law is being violated, or even just because [he]

wants assurance that it is not.” In re Addonizio, 248

A.2d 531, 539 (N.J. 1968). But it’s not just a Jersey

thing.

Many other states confer the same expansive

powers on their attorneys general. E.g., Haw. Rev.

Stat. § 28-2.5(a); Iowa Code § 714.16(3); Mass. Gen.

Laws Ann. ch. 93A, § 6(1); Mo. Ann. Stat. § 407.040.

For instance, Missouri’s investigative “procedure is

entirely unilateral, and is intended solely for the

benefit of the attorney general.” State ex rel. Danforth

v. Indep. Dodge, Inc., 494 S.W.2d 362, 366–67 (Mo. Ct.

App. 1973). In Iowa, failing to comply with an

investigative demand invites the same crippling

sanctions as in New Jersey. Indeed, the Iowa attorney

general can seek a court order that grants injunctive

relief to restrain the recipient’s commercial activity,

dissolves its corporation, revokes its license, or

provides other relief until the recipient “obeys.” Iowa

Code § 714.16(6)(c). Massachusetts even purports to

excuse its attorney general from “the burden of

showing the validity of a demand.” Harmon L. Offs.,

P.C. v. Attorney General, 991 N.E.2d 1098, 1104

(Mass. App. Ct. 2013). Other states grant similarly

sweeping investigative powers. 3

See, e.g., Ala. Code § 8-19-9 (“in aid of any investigation”);

Alaska Stat. § 45.50.590 (if the AG “determines”); Ark. Code

Ann. § 4-88-111 (when the AG “determines”); Ga. Code Ann.

§§ 10-1-397, -404 (“[w]henever it may appear”); 815 Ill. Comp.

Stat. Ann. 505/3 (“[w]hen it appears”); Ky. Rev. Stat. Ann. §

Some states even confer investigative power on

their attorneys general that the other branches of

state government cannot check. Hawaii’s attorney

general may conduct investigations whenever he

“determines that an investigation would be in the

public interest.” Haw. Rev. Stat. § 28-2.5(a). That

determination “rests squarely with the Attorney

General,” and not even state courts can “second-guess

the Attorney General’s discretion.” In re Investigation

of KAHEA, 497 P.3d 58, 66 (Haw. 2021).

It’s no surprise that government authority to

investigate based on a mere suspicion of wrongdoing

or a discretionary view of what serves the public

interest may lead to abuse. “If angels were to govern

men, neither external nor internal controls on

government would be necessary.” The Federalist No.

51 (James Madison). State attorneys general on both

sides of the political aisle have been accused of

misusing this authority to issue demands against

their ideological and political opponents. Even if these

accusations turn out to be false, it is important that a

367.240 (“public interest”); Md. Code Ann., Com. Law § 13-405

(“[i]n the course of any examination” or “investigation”); Miss.

Code Ann. § 75-24-27 ([t]o accomplish the objectives and to carry

out the duties prescribed in this chapter”); Mont. Code Ann. § 3014-113 (“[w]hen it appears”); N.H. Rev. Stat. Ann. § 358-A:8

(whenever the AG “believes”); N.Y. Gen. Bus. Law §§ 343, 352

(“[w]henever it shall appear”); N.D. Cent. Code Ann. § 51-15-04

(“[w]hen it appears”); N.C. Gen. Stat. Ann. § 75-10 (“shall have

power, at any and all times”); Or. Rev. Stat. Ann. § 646.618

(“when it appears”); 71 Pa. Stat. and Cons. Stat. § 307-3 (“shall

be authorized”); R.I. Gen. Laws § 6-13.1-7 (“when it appears”);

Tenn. Code Ann. § 47-18-106 (“public interest”); Tex. Bus. &

Com. Code Ann. § 17.61 (“[w]henever ... believes”); Wis. Stat.

Ann. § 136.03 (“to facilitate its investigations”); Wash. Rev. Code

Ann. § 19.86.110 (whenever the AG “believes”).

federal forum exists for suits challenging those

investigative demands.

Whether federal courts remain open for the

targets of these state investigative demands is a

critical question that this Court should resolve.

IV. This case presents an ideal vehicle to

resolve this exceptionally important issue.

This case may be the unicorn that allows this

Court to review an important issue that would

otherwise escape review. The preclusion trap imposed

by the Third and Fifth Circuits’ state-litigation

requirement will deprive this Court of the ability to

review the jurisdictional issue in most cases.

The ripeness question is unlikely to arise from the

Fifth Circuit (or the Third Circuit in a subsequent

case) because challenges to future investigative

demands must be litigated in state court. See supra

at 29–30 (citing Annunciation House and PFLAG).

Many district courts across the country are imposing

that same requirement. See supra at 19–21. While

subsequent state proceedings may ripen the federal

dispute, it will also moot the question presented here:

whether section 1983 litigants may be forced to

litigate first in state court. And because the federal

ripeness question will not be part of any state court

litigation, this Court will not be able review the

question coming up from the state courts.

The only possible scenario for this Court’s review

of the question presented would involve a case like

this where a lower federal court holds a case

challenging an investigative demand unripe. But

given the pace of litigation, the Catch-22 preclusion

trap brought about by parallel state proceedings will

almost certainly have sprung by the time the issue

reaches this Court. Once the state court rules on the

merits of the constitutional claims, the jurisdictional

question will be moot, and further federal litigation

will be barred by res judicata.

This case is the rare situation where the question

presented has survived parallel state proceedings.

This is because—despite the Attorney General’s best

efforts—First Choice’s constitutional claims have yet

to be addressed in the parallel state-court action. The

state court “specifically did not rule” on First Choice’s

constitutional claims. App.63a.

Nor is there any danger that the state court will

do so prior to this Court’s review. The Attorney

General has agreed to stay state court proceedings

during the pendency of this petition, and should the

Court grant review, until after the Court issues its

mandate. App.87a–88a. This stay provides this Court

an unusual and ideal opportunity to review the lower

court’s conclusion that a first-filed federal action

challenging a state investigatory demand is not ripe

until litigated in state court.

This Court’s review of the question presented is

also

warranted,

because

without

it,

the

constitutionality of investigative demands for donor

information will largely evade federal court review.

As noted above, preclusion will attach upon the state

court’s ruling on those federal claims, thus preventing

federal courts from resolving them. E.g., Smith &

Wesson, 105 F.4th at 84 (demonstrating this

preclusion concern). While a stalwart few might defy

a state court contempt order through the state court

system and seek this Court’s review, see NAACP, 357

U.S. at 451–54, the price is high and the outcome

uncertain. The risks of resisting a contempt order—

loss of business license, crippling financial penalties,

nonprofit dissolvement, attorneys’ fees, and even jail

time—are daunting. Few will endure those risks,

especially given the small chance of obtaining this

Court’s review. Granting the petition will thus help

preserve federal court review of important First

Amendment questions concerning the disclosure of

donor information.

In sum, this case provides a truly unique

opportunity for this Court to reach the question

whether a section 1983 challenge to an investigatory

subpoena is not ripe in federal court until litigated in

state court. The answer to that question is clearly no.

This Court should grant review.

CONCLUSION

The Court should grant a writ of certiorari.

Respectfully submitted,

JAMES A. CAMPBELL

ERIK C. BAPTIST

GABRIELLA M. MCINTYRE

DALTON A. NICHOLS

ALLIANCE DEFENDING

FREEDOM

44180 Riverside Pkwy

Lansdowne, VA 20176

JANUARY 21, 2025

ERIN M. HAWLEY

Counsel of Record

JOHN J. BURSCH

LINCOLN DAVIS WILSON

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(202) 393-8690

ehawley@adflegal.org

APPENDIX

APPENDIX TABLE OF CONTENTS

United States Court of Appeals

for the Third Circuit

Opinion in Case No. 24-3124

Issued December 12, 2024 ...................................... 1a

United States District Court

for the District of New Jersey

Memorandum Opinion

Case No. 3:23-cv-23076

Issued November 12, 2024 ....................................... 6a

Superior Court of New Jersey

Chancery Division, Essex County

Order to Enforce Litigant’s Rights

Case No. ESX-C-22-24

Issued December 2, 2024 ....................................... 59a

Superior Court of New Jersey, Appellate Division

Order Granting Temporary Remand

Case No. A-003615-23T4

Issued November 7, 2024 ....................................... 67a

Superior Court of New Jersey

Chancery Division, Essex County

Order Granting Order to Show Cause

Case No. C-000022-24

Issued June 18, 2024.............................................. 69a

United States District Court

for the District of New Jersey

Memorandum Opinion

Case No. 3:23-cv-23076

Issued January 12, 2024 ........................................ 71a

iia

Stipulation and Order

Superior Court of New Jersey

Chancery Division, Essex County

Stipulation and Order

Case No. ESX-C-22-24

Entered January 3, 2025 ....................................... 85a

Subpoena from the State of New Jersey

to First Choice Women’s Resource Center, Inc.

Dated November 15, 2023...................................... 89a

Complaint for Declaratory and Injunctive Relief

United States District Court

for the District of New Jersey

Case No. 3:23-cv-23076

Filed December 13, 2023...................................... 111a

Transcript of Decision

Superior Court of New Jersey

Chancery Division, Essex County

Case No. ESX-C-22-24

Dated May 28, 2024 ............................................. 148a

Declaration of Counsel for Donors to First Choice

Women’s Resource Centers, Inc.

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed July 19, 2024 ............................................... 174a

Declaration of Aimee Huber

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed July 19, 2024 ............................................... 179a

Supplemental Declaration of Aimee Huber

U.S. District Court for the District of New Jersey

Case No. 3:23-cv-23076

Filed August 2, 2024 ............................................ 188a

iiia

Emails between K. Wojtowicz and S. Iyer

Re: NJ AG crisis pregnancy center alert draft

Dated October 17, 18, & 26, 2022 ........................ 191a

Emails from S. Iyer to R. Sutocky, K. Wojtowicz

Re: Data privacy alert for providers

Dated October 26 & December 6, 2022 ............... 194a

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 24-3124

_______________

FIRST CHOICE WOMEN’S RESOURCE CENTERS,

INC.,

Appellant

ATTORNEY GENERAL OF NEW JERSEY

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3:23-cv-23076)

District Judge: Honorable Michael A. Shipp

_______________

Argued: December 10, 2024

Before: BIBAS, CHUNG, and ROTH, Circuit Judges

(Filed: December 12, 2024)

_______________

OPINION *

_______________

Erin M. Hawley

Lincoln D. Wilson

[ARGUED]

* This disposition is not an opinion of the full Court and pursuant

to I.O.P. 5.7 does not constitute binding precedent.

ALLIANCE DEFENDING FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

Erik Baptist

Dalton A. Nichols

ALLIANCE DEFENDING FREEDOM

44180 Riverside Parkway

Lansdowne, VA 20176

Counsel for Appellant

Jeremy Feigenbaum [ARGUED]

OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY

25 Market Street

Richard J. Hughes Justice Complex

P.O. Box 112

Trenton, NJ 08625

Meghan Musso

OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY

124 Halsey Street

Newark, NJ 07101

Counsel for Appellee

Olivia F. Summers

REGENT UNIVERSITY

1000 Regent University Drive

Virginia Beach, VA 23464

Counsel for Amici Pennsylvania Pregnancy

Wellness Collaborative, New Jersey Right to Life,

and National Institute of Family & Life Advocates

in Support of Appellant

Preston Carter

Marcus Waterman

GIVENS PURSLEY

P.O. Box 2720

Boise, ID 83701

Ilya Shapiro

MANHATTAN INSTITUTE

52 Vanderbilt Avenue

New York, NY 10017

Counsel for Amicus Manhattan Institute in

Support of Appellant

Preston Carter

Marcus Waterman

GIVENS PURSLEY

P.O. Box 2720

Boise, ID 83701

Counsel for Amici Institute for Free Speech and

Religious Freedom Institute in Support of

Appellant

PER CURIAM †

First Choice sued the Attorney General of New

Jersey to prevent him from enforcing a non-selfenforcing investigatory subpoena that requested,

among other things, First Choice’s donor records and

identities. The case has proceeded in concurrent

litigation in both state and federal court, and it has

Judge Bibas dissents and would find First Choice’s

constitutional claims ripe because he believes that this case is

indistinguishable from Americans for Prosperity Foundation v.

Bonta, 594 U.S. 595 (2021).

†

traveled up and down both court systems. It is now

before us on the question of whether First Choice’s

constitutional claims are ripe.

We review the District Court’s dismissal for lack

of subject matter jurisdiction de novo. Metro. Life Ins.

Co. v. Price, 501 F.3d 271, 275 (3d Cir. 2007). At the

pleadings stage, we “accept as true all well-pled

factual allegations in the complaint and all

reasonable inferences that can be drawn from them.”

Huertas v. Galaxy Asset Mgmt., 641 F.3d 28, 32 (3d

Cir. 2011) (internal quotation marks omitted).

“A foundational principle of Article III is that an

actual controversy must exist not only at the time the

complaint is filed, but through all stages of the

litigation.” Trump v. New York, 592 U.S. 125, 131

(2020) (internal quotation marks omitted). Plaintiffs

must demonstrate standing, including “an injury that

is concrete, particularized, and imminent rather than

conjectural or hypothetical.” Id. (internal quotation

marks omitted). Claims must also be ripe, both to be

encompassed within Article III and as a matter of

prudence. Susan B. Anthony List v. Driehaus, 573

U.S. 149, 157 n.5, 167 (2014).

Having considered the parties’ arguments, we do

not think First Choice’s claims are ripe. It can

continue to assert its constitutional claims in state

court as that litigation unfolds; the parties have been

ordered by the state court to negotiate to narrow the

subpoena’s scope; they have agreed to so negotiate;

the Attorney General has conceded that he seeks

donor information from only two websites; and First

Choice’s current affidavits do not yet show enough of

an injury. We believe that the state court will

adequately adjudicate First Choice’s constitutional

claims, and we expect that any future federal

litigation between these parties would likewise

adequately adjudicate them. See Tafflin v. Levitt, 493

U.S. 455, 458 (1990); Bonta, 594 U.S. 595. Therefore,

we affirm the judgment of the District Court

dismissing the case for lack of subject matter

jurisdiction.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FIRST CHOICE

WOMEN’S RESOURCE

CENTERS, INC.,

Plaintiff,

MATTHEW J. PLATKIN,

in his official capacity as

Attorney General for the

State of New Jersey,

Civil Action No. 2323076 (MAS) (TJB)

MEMORANDUM

OPINION

Defendant.

SHIPP, District Judge

This matter comes before the Court upon Plaintiff

First Choice Women’s Resource Centers, Inc.’s

(“Plaintiff” or “First Choice”) motion for a temporary

restraining order (“TRO”) and preliminary injunction

(“PI”). (ECF No. 41.) Defendant Matthew J. Platkin,

in his official capacity as Attorney General for the

State of New Jersey (“Defendant” or the “State”),

opposed (ECF No. 44), and Plaintiff replied (ECF No.

45). On October 15, 2024, the Court held oral

argument on Plaintiff’s motion. (ECF No. 61.) After

consideration of the parties’ arguments and

submissions, Plaintiff’s motion is denied.

BACKGROUND

For purposes of considering the instant motion,

the Court summarizes its previous decision,

subsequent developments in this case, and relevant

guiding precedent. For all other factual and

procedural background, the parties are directed to

this Court’s previous Memorandum Opinion

dismissing Plaintiff’s Complaint (the “Previous

Opinion”). (Previous Op. 11, ECF No. 28.)

A. The Previous Opinion

On January 12, 2024, this Court found that

Plaintiff’s constitutional claims relating to a non-selfexecuting

state

administrative

investigatory

subpoena (the “Subpoena”) served upon it by the State

were not yet ripe for this Court’s review. (Id. at 8.) The

more nuanced reason for this finding, as expressed in

the Previous Opinion, was because the statutes from

which the Subpoena derived its power (the

“Authorizing Statutes”) required a state court to first

enforce the Subpoena before Plaintiff could be

required by law to comply with it. (See id. at 7-9); N.J.

STAT. ANN. § 56:8-6 (the Consumer Fraud Act (the

“CFA”)) (allowing the State to move before the New

Jersey Superior Court for relief should a plaintiff not

comply with an investigatory subpoena served on it

by the State); N.J. STAT. ANN. § 45:17A-33(g) (the

Charities Registration & Investigation Act (the

“CRIA”)) (same). In other words, the Court found that

it lacked subject-matter jurisdiction over Plaintiff’s

claims because there was no ripe controversy where

Plaintiff simply could decline to comply with the

Subpoena with no legal consequence. Instead, the

Court found, “Plaintiff’s claims related to the

Subpoena’s enforceability in this matter would ripen

only after the contingent future event that forms the

basis of its alleged injury occurs, i.e., if and when the

state court enforces the Subpoena in its current form.”

(Previous Op. 8.) Accordingly, Plaintiff’s Complaint

was dismissed without prejudice until such time, if

ever, that its claims ripened.

B. Appellate Efforts

Proceedings

State

Court

On January 22, 2024, Plaintiff filed its appeal of

this Court’s subject-matter jurisdiction findings in the

Third Circuit Court of Appeals (the “Third Circuit”).

(ECF No. 32.) While Plaintiff’s appeal to the Third

Circuit was pending, the State initiated enforcement

proceedings in the New Jersey Superior Court,

Chancery Division, Essex County (the “Superior

Court”) citing Plaintiff’s failure to comply with the

Subpoena. (May 20, 2024 Hearing Tr. 8, ECF No. 4111; Def.’s Superior Court Order to Show Cause Mem.

19, ECF No. 44-9 (requesting that the State-initiated

proceedings proceed “in a summary manner pursuant

to [N.J. STAT. ANN.] § 45:17A-33(e), § 56:8-8, [N.J. Ct.

R.] 4:67-1(a), and [N.J. Ct. R.] 1:9-6” and that First

Choice be directed to “fully comply with the Subpoena

within thirty days”).) Plaintiff responded by filing a

motion to quash the Subpoena, as permitted by New

Jersey law, and the Honorable Lisa Adubato, J.S.C.,

presided over the enforcement proceeding. (May 20,

2024 Hearing Tr. 4, 8); N.J. Ct. R. 1:9-2 (“The court on

motion made promptly may quash or modify [a]

subpoena [in a civil action] . . . if compliance would be

unreasonable or oppressive.”). Judge Adubato held

oral argument on May 20, 2024, and on May 28, 2024,

Judge Adubato issued a bench decision allowing the

matter to commence by order to show cause as a

summary proceeding and denying Plaintiff’s motion

to quash. (May 20, 2024 Hearing Tr. 66; May 28, 2024

Bench Decision 17, ECF No. 41-4; June 18, 2024

Order (the “Initial Compliance Order”), ECF No. 413.) Judge Adubato’s Order memorializing her bench

decision required First Choice to fully respond to the

Subpoena within thirty days of the Order, but did not

threaten contempt should First Choice fail to do so.

(Initial Compliance Order *3 1.)

In denying Plaintiff’s motion to quash, Judge

Adubato expressly stated that she considered

Plaintiff’s constitutional arguments. (May 28, 2024

Bench Decision 23 (“I did consider all of, you know,

those types of arguments when looking at what were

made—constitutional arguments that were made

. . . .”).) Judge Adubato ultimately found, however,

that those issues were not ripe or formidable enough

to merit quashing the Subpoena. (May 28, 2024 Bench

Decision 16 (“This [c]ourt finds that the [State] has

not, at this very preliminary juncture of this matter,

violated any statutory or constitutional tenets which

would lead to a quashing of the [S]ubpoena . . . .”); id.

at 22 (“My determination, as pointed out by the

[State] here, is that there are not ripe constitutional

arguments.”); id. at 29 (“You’re asking me to get into

the idea of the association and how that’s going to, on

its face, be a constitutional violation of your client’s

rights[,] and I’ve already decided that it isn’t, based

on the reasons that I’ve given.”).) Judge Adubato also

instructed First Choice that her decision with respect

to the motion to quash was final, but that she

anticipated further discussion on the constitutional

issues. (Id. at 32 (“In large part, the constitutional

arguments, number one, as I already indicated, are

1 All page numbers preceded by an asterisk correspond with the

page number in the document’s ECF header.

10a

premature, and number two, not as a way of weighing

this in recalcitrance, I think was the word - - not

looking at that, I’m looking at the fact that there is,

built into my order, the belief that the parties will

confer going forward, and it’s possible that the

concerns of [Plaintiff] could be addressed in an

agreement between the parties. So I don’t find that

the irreparable harm has been established.”); id. at

13-15 (crediting language from the New Jersey

Appellate Division where it found that a subpoena

recipient subject to subpoena enforcement proceeding

would suffer “no hardship” where a court declined “to

address [the subpoena recipient’s] constitutional

arguments” because the subpoena recipient

“preserved its claims” and “the parties, in conjunction

with the trial court . . . can take steps to protect any

proprietary materials identified during discovery”).)

Shortly after Judge Adubato’s May 28, 2024

bench decision, the State filed a motion to dismiss

First Choice’s appeal to the Third Circuit

representing that Plaintiff’s appeal before it was moot

because, given the May 28, 2024 bench decision and

accompanying Initial Compliance Order, Plaintiff’s

constitutional claims were ripe. (See Certified Order,

ECF No. 38.) First Choice did not oppose that its

claims were ripe for a federal court’s review. (See id.

(providing the language of the Third Circuit in

remanding this matter where the Third Circuit

indicated that “it is now undisputed that [Plaintiff’s]

claims are ripe”) (emphasis added).) Accordingly, with

nothing left disputed between the parties, the Third

Circuit found that Plaintiff’s appeal was moot and

remanded the matter to this Court for consideration.

(Id.) On subsequent remand, Plaintiff filed a renewed

11a

TRO. (ECF No. 41.) The State opposed (ECF No. 44),

and Plaintiff replied (ECF No. 45).

On September 20, 2024, while Plaintiff’s renewed

motion was pending before this Court, Judge Adubato

held another hearing to assess new motions filed by

the parties after her Initial Compliance Order. (See

Sept. 20, 2024 Hearing Tr., ECF No. 56-1.)

Specifically, Judge Adubato heard from the parties as

to: (1) Plaintiff’s motion for a protective order; 2 (2) the

State’s motion to enforce litigant’s rights; 3 and (3)

Plaintiff’s motion to stay the Initial Compliance Order

“in light of the pending federal proceedings.” 4 (Id. at

8, 11-12.) Ultimately, however, Judge Adubato

declined to decide the parties’ new motions. (Id. at 16.)

In denying the State’s motion to enforce litigant’s

rights, Judge Adubato noted that she was “not

necessarily declining the motion [or] making any

substantive ruling” as to compliance. (Id. at 16.)

Instead, Judge Adubato decided to hold the State’s

motion to enforce her previous order “in abeyance”

pending a decision by the Appellate Division on

whether the Superior Court correctly refused to

2 Judge Adubato considered Plaintiff’s motion “a reconsideration

motion [of her motion to quash ruling] based on [this Court]

having jurisdiction.” (Sept. 20, 2024 Hearing Tr. 8.)

3 To this end, Judge Adubato further characterized the State’s

motion as asking the Court to compel Plaintiff to comply with

her previous order, which ordered Plaintiff to produce all

documents requested in the Subpoena. (See Sept. 20 Hearing Tr.

8, 11.)

4 Plaintiff understood the Superior Court’s previous ruling as

deciding not to rule on Plaintiff’s constitutional claims, and

asked for a stay presumedly so that this Court could. (See Sept.

20 Hearing Tr. 11-12.)

12a

quash the Subpoena. (Id. at 19.) In so finding, Judge

Adubato noted that the parties still disputed the

scope of the Subpoena, and that she made no finding

as to whether Plaintiff appropriately complied with

the Subpoena at the time of the hearing. (Id. at 20.)

This Court is now left with the question of

whether it can grant Plaintiff the relief it seeks, i.e.,

a TRO or PI enjoining or modifying the Subpoena, in

light of the above state court developments. 5

C. The Smith & Wesson Litigation

In assessing this question, this Court is not

entirely without guidance. Instead, in a prior

factually-adjacent litigation, a procedural labyrinth

sprouted from six different decisions made by four

different courts across the federal and state systems

with respect to a similar investigatory subpoena

served by the State on the gun manufacturer Smith &

Wesson (the “Smith & Wesson Litigation”). (See

Smith & Wesson Brands, Inc., No. 20-19047, Hon.

Jodi Lee Alper, J.S.C. State Court Order & Op., ECF

No. 41-13 (“Smith & Wesson (I)”)); Smith & Wesson

Brands, Inc. v. Grewal, No. 20-19047, 2021 WL

3287072 (D.N.J. Aug. 2, 2021); (“Smith & Wesson

(II)”); Smith & Wesson Brands, Inc. v. Att’y Gen. of

N.J., 27 F.4th 886 (3d Cir. 2022) (“Smith & Wesson

(III)”); Smith & Wesson, No. 20-19047, 2022 WL

17959579 (D.N.J. Dec. 27, 2022) (“Smith & Wesson

On November 7, 2024, the Appellate Division “temporarily

remanded” First Choice’s appeal to the Superior Court so that

the Superior Court could “consider enforcement” which would

require First Choice to “comply with a subpoena.” (The State’s

Nov. 7, 2024 Correspondence, ECF No. 65.) This Memorandum

Opinion is conscious of this development.

13a

(IV)”); Platkin v. Smith & Wesson Sales Co., Inc., 289

A.3d 481 (N.J. Super. Ct. App. Div. 2023) (“Smith &

Wesson (V)”); Smith & Wesson Brands, Inc. v. Att’y

Gen. of N.J., 105 F.4th 67 (3d Cir. 2024) (“Smith &

Wesson (VI)”). An abbreviated recitation of the

decisions in the Smith & Wesson Litigation is

essential for contextualizing the Court’s findings, as

the decisions that comprise the Smith & Wesson

Litigation offer a traceable framework for the narrow

and novel questions in this case.

1. Smith & Wesson (I): Subpoena

Enforcement Proceedings in Superior

Court

The basic facts underlying the Smith & Wesson

Litigation were first set out in written form by the

Superior Court in subpoena enforcement proceedings

brought before it by the State. (See generally Smith &

Wesson (I).) Similar to this matter, the Smith &

Wesson Litigation began in earnest when the State

served an investigatory subpoena on Smith & Wesson

pursuant to the CFA. (Id. at 1.) Like here, instead of

producing the required documents, Smith & Wesson

filed a lawsuit in federal court asserting its

constitutional objections to the State’s subpoena prior

to enforcement proceedings beginning. (Id. at 7.)

Thus, as soon as the enforcement proceedings began

in Smith & Wesson (I), parallel proceedings ensued.

While parallel proceedings were ongoing, 6 the

6 The Smith & Wesson Litigation posture differed subtly from

the proceedings before this Court only in that in the Smith &

Wesson Litigation, the Superior Court was the first court to

address constitutional arguments. (See generally Smith &

Wesson (I).) Here, this Court, in the Previous Opinion, was the

14a

State sought an order to show cause to enforce its

subpoena against Smith & Wesson in the Superior

Court, like the State did here. (Id. at 1.) Similarly, as

here, Smith & Wesson moved to quash the subpoena

as unconstitutional, citing several different theories

of constitutional violation. (Id. at 3-4.) 7

When rendering its decision, the Superior Court

expressed disapproval of Smith & Wesson’s race to

federal court finding that: (1) the “expected action” in

subpoena enforcement proceedings is for a subpoenarecipient to wait until enforcement proceedings are

initiated in state court and file “a cross-motion . . . to

dismiss, quash, or stay the subpoena;” and (2) the

subpoena enforcement proceedings before it “involve[]

state interest[s] that overcome considerations of

comity” and deference to federal court proceedings,

even if filed first. (See id. at 7-8.) Moreover, the

Superior Court, at least partially, reached the

substance of Smith & Wesson’s constitutional claims,

making an effort to set forth Smith & Wesson’s

constitutional arguments with specificity and

engaging in a brief discussion about NAACP v.

Alabama, 357 U.S. 449 (1958), and Second

Amendment concerns before rejecting the concerns.

(Id. at 3-4 (setting forth Smith & Wesson’s

constitutional contentions); id. at 8-9 (containing one

paragraph of substantive constitutional discussion by

first court to write an Opinion responsive to Plaintiff’s TRO

request before enforcement proceedings had even begun.

7 These

constitutional violations are similar to those at issue

here. (See generally Compl. ECF No. 1; Smith & Wesson (I).)

Notably, however, Smith & Wesson did not allege that its right

to freedom of association was violated. (See generally Smith &

Wesson (I).)

15a

the Court regarding NAACP); id. at 12-13 (containing

two paragraphs about Smith & Wesson’s contention

that the State had an improper motive in serving the

investigatory subpoena upon it, namely, that the

State sought “to undermine the constitutional right to

bear arms”).) 8 Ultimately, despite Smith & Wesson’s

constitutional protestations, the Superior Court

found the subpoena before it was “valid on its face.”

(Id. at 13.) Accordingly, like here, the State’s request

for an order to show cause to enforce the subpoena

was granted, and Smith & Wesson’s motion to

dismiss, stay, or quash the subpoena was “denied in

its entirety.” (Id.)

In totality, for purposes of considering Plaintiff’s instant

motion, the only pertinent difference between Smith & Wesson

(I) and the Superior Court’s May 28, 2024 Bench Decision is that

Smith & Wesson (I) dealt in some express way with Plaintiff’s

constitutional claims, whereas here, the Superior Court did not

adjudicate Plaintiff’s constitutional claims based on facial

deficiencies and state ripeness considerations. (See, e.g., May 28,

2024 Bench Decision 16 (“This [c]ourt finds that the [State] has

not, at this very preliminary juncture of this matter, violated any

statutory or constitutional tenets which would lead to a

quashing of the subpoena.”); id. at 22 (“My determination, as

pointed out by the [State] here, is that there are no ripe

constitutional arguments.”); id. at 23 (“I did consider all of, you

know, those types of arguments when looking at what were

made—constitutional arguments that were made and I—as I

said, I ruled that they’re not ripe yet.”); id. at 29 (“You’re asking

me to get into the idea of the association and how that’s going to,

on its face, be a constitutional violation of your client’s rights,

and I’ve already decided that it isn’t, based on the reasons that

I’ve given.”); Smith & Wesson (I) at 3-4, 12-13 (discussing

substantively the failings of Smith & Wesson’s constitutional

arguments, albeit briefly).)

16a

2. Smith & Wesson (II): This Court

Abstains Under Younger

About a month after the Superior Court’s

enforcement decision, this Court entered the fray

with an opinion on a TRO and PI application that

Smith & Wesson filed relating to the constitutionality

of the same subpoena considered by the Superior

Court. Smith & Wesson (II) at *1. After setting forth

largely the same facts outlined by the Superior Court

in Smith & Wesson (I), this Court noted that Smith &

Wesson sought in federal court, as Plaintiff seems to

do here, that “[t]his Court stay enforcement of the . . .

administrative subpoena until the threshold

questions of its constitutionality [were] resolved by

this Court.” Id. at *2; (see also Sept. 20, 2024 Hearing

Tr. 11-12 (insinuating that the progression of federal

court proceedings might justify a stay of any formal

enforcement so that this Court can again consider

Plaintiff’s constitutional claims, but this time on the

merits).)

After considering the parties’ contentions, this

Court opted to abstain under Younger v. Harris, 401

U.S. 37 (1971). Id. at *3-4. Specifically, this Court

found Younger abstention appropriate after

considering the Supreme Court’s decision in Sprint

Communications, Inc. v. Jacobs, 571 U.S. 69 (2013),

and concluded that the State’s enforcement of the

administrative subpoena constituted a “civil

proceeding[] involving certain orders uniquely in

furtherance of the state court’s ability to perform

their judicial functions (“Sprint Category Three”).” Id.

17a

at *3-4 (quoting Sprint, 571 U.S. at 78). 9

3. Smith & Wesson (III): The Third

Circuit’s

Rejection

Younger

Abstention

In Smith & Wesson (III), the Third Circuit

summarily rejected this Court’s abstention finding.

Smith & Wesson (III) at 888. In rendering its decision,

the Third Circuit disposed of the notion that subpoena

enforcement proceedings constitute a valid basis for

Younger abstention under any of the three

exceptional categories enumerated by the Supreme

Court in Sprint. Id. at 891-93 (making findings as to

the applicability of Sprint Categories Two and Three

as to state subpoena-enforcement proceedings like

those before this Court). In doing so, the Third Circuit

noted the importance of access to federal courts where

a federal court has a jurisdictional basis to hear a

claim, writing that federal courts have a “virtually

unflagging obligation . . . to exercise the jurisdiction

given.” Id. at 888 (quoting Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817

(1976)) (alteration in original).

The Third Circuit, in making its findings,

identified that after this Court abstained, Smith &

In Sprint, the Supreme Court made clear that Younger

abstention is a narrow doctrine, and abstention is only

appropriate in “three exceptional categories”: (1) criminal

prosecutions; (2) certain civil enforcement proceedings (“Sprint

Category Two”); and (3) “civil proceedings involving certain

orders uniquely in furtherance of the state courts’ ability to

perform their judicial function.” Sprint, 571 U.S. at 78 (quoting

New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.

350, 368 (1989)).

18a

Wesson “eventually produced the subpoenaed

documents under a protective order” that demanded

the State “return the documents if the subpoena is

later held unlawful.” Id. at 890. In so deciding, the

Third Circuit found that in this post-protective-order

factual posture, much was still unknown about the

subpoena enforcement process playing out against

Smith & Wesson. See id. at 894. For example, in

discussing what qualifies as a state order under

Sprint Category Three, the Third Circuit wrote that:

[W]hen Smith & Wesson went to federal court

there was much more for the state court to do

than merely implement a predetermined

outcome. New Jersey courts still had to

adjudicate Smith & Wesson’s constitutional

arguments; and even if those arguments were

resolved against Smith & Wesson, the state

courts still had to give the company an

opportunity to produce the required

documents before holding it in contempt.

Id. Of particular note in this language is that the

Third Circuit contemplates contempt, a moment of

tangible injury, as the end of a process wherein “there

[is] much more for the state court to do,” including

“adjudicate [the subpoena-recipient’s] constitutional

arguments.” Id. What Smith & Wesson (III)

affirmatively established, however, is that while that

process plays out in state court, abstention is not an

appropriate action for this Court to take.

4. Smith & Wesson (IV): This Court’s

Application of Res Judicata

By the time the Third Circuit rendered its

decision in Smith & Wesson (III) and remanded the

19a

matter to this Court, the state court enforcement

proceedings had progressed separately. See Smith &

Wesson (IV) at *3. Specifically, the Superior Court had

heard argument on a motion to stay enforcement of

the subpoena pending a decision by the Appellate

Division as to the correctness of the state court’s

previous decision to enforce the subpoena against

Smith & Wesson. Id. It was in this context that Smith

& Wesson (III) was decided by the Third Circuit and

this Court looked anew at Smith & Wesson’s TRO and

PI request. See generally Smith & Wesson IV.

This time, however, this Court found that

Plaintiff’s claims were barred on res judicata grounds

because the Superior Court’s initial enforcement

decision constituted: (1) a final decision on the merits;

(2) between identical parties; and (3) despite some

disagreement, the claims in the federal action grew

out of the state action. Id. at *4-5, *9. This Court’s res

judicata findings concluded the concurrent state and

federal litigations, pending a final assessment of this

Court’s res judicata findings on appeal.

5. Smith & Wesson (V): The New Jersey

Appellate Division’s Findings

The jurisdictional seesaw continued when the

New Jersey Appellate Division rendered a decision on

Smith & Wesson’s appeal of the Superior Court’s

enforcement decision, while federally, the parties

awaited a Third Circuit decision on the applicability

of res judicata. See generally Smith & Wesson (V). In

affirming Smith & Wesson (I), the Appellate Division

credited the lower court with addressing “defendant’s

constitutional arguments.” Id. at 486 (referring

necessarily to the lower court’s brief discussion of

20a

NAACP and Second Amendment discussion because

those were the only federal-constitution-related

discussions in Smith & Wesson (I)).

Of note, when considering the Superior Court’s

NAACP discussion, the Appellate Division found that

“[e]ven if [it] were persuaded that NAACP” operated

outside the context of the freedom of association,

which the Appellate Division was not persuaded it

did, it “would find [Smith & Wesson’s] constitutional

claims not ripe for” adjudication. Id. at 493. In so

finding, it decided that under New Jersey state law, a

claim is only ripe if there “is an actual controversy,

meaning the facts present ‘concrete contested issues

conclusively affecting’ the parties’ adverse interests.”

Id. (quoting Matter of N.J. Firemen’s Ass’n Oblig. v.

Doe, 166 A.3d 1125, 1134-35 (N.J. 2017) (finding that

the New Jersey courts are forbidden from “declar[ing

the] rights or status of parties upon a state of facts

which are future, contingent, and uncertain”)

(alteration in original). In this context, the Appellate

Division found that the lower court did not err in

failing to consider Smith & Wesson’s constitutional

claims where there were “few actual facts,” Smith &

Wesson “preserved its claims, 10 and the parties, in

10 This preservation language is what Judge Adubato expressly

relied on in finding Plaintiff’s constitutional claims not ripe for

review in this litigation. (May 28, 2024 Bench Decision 14-15

(crediting language from the New Jersey Appellate Division

where it found that a subpoena recipient subject to subpoena

enforcement proceedings would suffer “no hardship” where a

court declined “to address [the subpoena recipient’s]

constitutional arguments” because the subpoena recipient

“preserved its claims[] and the parties, in conjunction with the

trial court . . . can take steps to protect any proprietary materials

21a

conjunction with the trial court, can take steps to

protect any proprietary materials identified during

discovery.” Id. at 494 (noting further that the

Appellate Division ended its analysis because to not

do so would risk “premature adjudication” and

entanglement in “abstract disagreements”).

6. Smith & Wesson (VI): Res Judicata

Affirmed

Finally, the oscillation from federal to state courts

came to a close earlier this year when the Third

Circuit made its findings in Smith & Wesson (VI).

While walking a fine line around the ripeness issue

that lurked when considering whether Smith &

Wesson (I) was determined on the merits, the Third

Circuit ultimately did find that the Superior Court’s

holdings in Smith & Wesson (I) were final, on the

merits, between the same parties, and grew from the

same transaction or occurrence. See generally Smith

& Wesson (VI). Notably, the Third Circuit agreed that

in summary state proceedings, like the subpoena

enforcement proceedings here, the Superior Court’s

findings can constitute a final decision on the merits

with preclusive effect. Id. at 79-80. As such, if the

Superior Court makes substantive constitutional

findings on a motion to quash in enforcement

proceedings, so long as the movant had a full and fair

opportunity to litigate its claims in state court, the

Superior Court judgment may be preclusive in federal

court. 11 Id.

identified during discovery” (quoting Smith & Wesson (V) at

486)).)

As a final note, the Third Circuit limited its ruling to the

subpoena at issue. Smith & Wesson (VI) at 84 (“We note that the

22a

II. LEGAL STANDARD

“Preliminary injunctive relief is an extraordinary

remedy and should be granted only in limited

circumstances.” 12 Kos Pharms., Inc. v. Andrx Corp.,

369 F.3d 700, 708 (3d Cir. 2004) (internal quotation

marks and citation omitted). This remedy should be

granted only if plaintiffs establish that: (1) “they are

likely to succeed on the merits of their claims”; (2)

“they are likely to suffer irreparable harm without

relief”; (3) “the balance of harms favors them”; and (4)

“relief is in the public interest.” Issa v. Sch. Dist. of

Lancaster, 847 F.3d 121, 131 (3d Cir. 2017) (citation

omitted). “A plaintiff’s failure to establish any

element in its favor renders a preliminary injunction

inappropriate.” NutraSweet Co. v. Vit-Mars Enters.,

Inc., 176 F.3d 151, 153 (3d Cir. 1999) (citation

omitted). With respect to the first factor, “on an

application for injunctive relief, the movant need only

make a showing of reasonable probability, not the

certainty, of success on the merits.” Atl. City Coin &

Slot Serv. Co. v. IGT, 14 F. Supp. 2d 644, 657 (D.N.J.

1998) (internal quotation marks and citations

omitted). In the end, however, “[t]he burden is on the

moving party ‘to convince the district court that all

operation of claim preclusion is quite modest in this case . . . [t]he

preclusive effect of the state court judgment only concerns the

subpoena at issue— not any nascent and further investigative

step or future enforcement action.”). The same is true of the

Court’s current Memorandum Opinion: Plaintiff only seeks an

injunction of the State’s investigation through the Subpoena, as

the Subpoena is all that exists of the State’s investigation at this

early juncture.

12 TROs and PIs require the same elements be met. Koons v.

Reynolds, 649 F. Supp. 3d 14, 22 (D.N.J. 2023).

23a

four factors favor preliminary relief.’” Peter v. Att’y

Gen. of N.J., No. 23-3337, 2023 WL 4627866, at *1

(D.N.J. July 19, 2023) (quoting AT&T v. Winback &

Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir.

1994)).

III. DISCUSSION

For the reasons set forth below, the Court finds

that Plaintiff has again failed to show that its claims

are ripe for review given the nature of the New Jersey

subpoena enforcement proceedings, the Superior

Court’s findings, and this Court’s previous findings.

The Court also finds that to the extent Plaintiff can

narrowly state a ripe constitutional injury, the harm

alleged does not constitute irreparable harm

justifying a TRO or PI. Simply put, all roads lead to a

denial of Plaintiff’s TRO and PI, and for the reasons

set forth below, that is this Court’s decision.

A. Plaintiff’s Claims Are Not Ripe for a

Federal Court’s Review

Plaintiff’s constitutional claims are not ripe for

review by this Court. The Court begins where it left

off in the Previous Opinion.

Article III of the Constitution limits the federal

judiciary’s authority to exercise its “judicial Power” to

“Cases” and “Controversies” over which the federal

judiciary is empowered to decide. Plains All Am.

Pipeline L.P. v. Cook, 866 F.3d 534, 538 (3d Cir. 2017)

(quoting U.S. CONST. art. III, § 2). “This case-orcontroversy limitation, in turn, is crucial in ‘ensuring

that the Federal Judiciary respects the proper—and

properly limited—role of the courts in a democratic

society.’” Id. at 539 (quoting DaimlerChrysler Corp. v.

24a

Cuno, 547 U.S. 332, 341 (2006)). The existence of a

case or controversy, therefore, is a necessary

“prerequisite to all federal actions[.]” Phila. Fed’n of

Tchrs. v. Bureau of Workers’ Comp., 150 F.3d 319, 322

(3d Cir. 1998) (quoting Presbytery of N.J. of Orthodox

Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d

Cir. 1994)).

Federal courts ensure that they are properly

enforcing the case-or-controversy limitation through

“several justiciability doctrines that cluster about

Article III . . . including ‘standing, ripeness, mootness,

the political-question doctrine, and the prohibition on

advisory opinions.’” Plains, 866 F.3d at 539 (quoting

Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131,

137 (3d Cir. 2009)). 13 “[R]ipeness concerns whether

13 “Federal Courts are courts of limited jurisdiction and have an

obligation to establish subject matter jurisdiction, even if they

must decide the issue sua sponte.” Cepulevicius v. Arbella Mut.

Ins., No. 21-20332, 2022 WL 17131579, at *1 (emphasis omitted)

(D.N.J. Nov. 22, 2022) (citing Liberty Mut. Ins. Co. v. Ward

Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995)); see also Council

Tree Commc’ns, Inc. v. F.C.C., 503 F.3d 284, 292 (3d Cir. 2007)

(finding that federal courts have an unflagging responsibility to

reach the correct judgment of law, especially when considering

subject-matter jurisdiction “which call[s] into question the very

legitimacy of a court’s adjudicatory authority” (citation

omitted)); Gov’t Emps. Ret. Sys. of Gov’t of U.S. V.I. v. Turnbull,

134 F. App’x 498, 500 (3d Cir. 2005) (“Considerations of ripeness

are sufficiently important that [federal courts] are required to

raise the issue sua sponte, even when the parties do not question

[the court’s] jurisdiction.” (emphasis omitted) (citing Felmeister

v. Off. of Att’y Ethics, 856 F.2d 529, 535 (3d Cir. 1988));

Suburban Trails, Inc. v. N.J. Transit Corp., 800 F.2d 361, 365

(3d Cir. 1986) (“[R]ipeness of issues for adjudication is a matter

[the court] must raise and examine independently of the parties’

wishes.”).

25a

the legal issue at the time presented in a court is

sufficiently concrete for decision.” United States ex rel.

Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3d Cir.

1977). “Courts will not decide abstract legal issues

posed by two parties; the issue in controversy must

have a practical impact on the litigants.” Id.

(emphasis added) (citing Abbott Laby’s v. Gardner,

387 U.S. 136, 148-54 (1967)). In its most basic form,

an unripe claim is evident if upon inspection it is

necessarily hypothetical, speculative, or contingent

on some other yet-to-happen event. Trump v. New

York, 592 U.S. 125, 131 (2020) (defining “ripe” as, in

part, an issue that is “not dependent on ‘contingent

future events that may not occur as anticipated, or

indeed may not occur at all.’” (quoting Texas v. United

States, 523 U.S. 296, 300 (1998)).

Where a federal court finds that a claim is not

ripe, the court lacks subject-matter jurisdiction to

adjudicate the unripe claim. Renne v. Geary, 501 U.S.

312, 316 (1991) (“Concerns of justiciability go to the

power of the federal courts to entertain disputes, and

to the wisdom of their doing so.”). Importantly, federal

courts are to “presume” they “lack jurisdiction ‘unless

“the contrary appears affirmatively from the record.”’”

Id. (quoting Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 546 (1986)). Ultimately, “[i]t is the

responsibility of the complainant [to clearly] allege

facts demonstrating that [it] is a proper party to

invoke judicial resolution of the dispute and the

exercise of the court’s remedial powers.” Id. (quoting

Bender, 475 U.S. at 546 n.8).

For the reasons set forth in detail below, Plaintiff,

the complainant, has again failed to demonstrate

facts to suggest it is a proper party to invoke this

26a

Court’s remedial powers. In explaining how, this

Court sets forth: (1) how the State’s contentions

against this Court imposing a TRO are inapplicable

here; (2) why, procedurally, constitutional ripeness

remains firmly before the Court as a concern despite

the parties’ agreement to the contrary; (3) how New

Jersey subpoena enforcement proceedings, by their

nature, render Plaintiff’s claims unripe until

contempt is threatened; (4) why the September 20,

2024 Superior Court Hearing affirmatively

established that Plaintiff’s claims are not ripe for this

Court’s review; and (5) why no matter how Plaintiff

attempts to contort its claims to sound in ripeness,

Plaintiff cannot demonstrate ripeness because the

Subpoena, the sole act of investigation by the State,

has not ripened.

1. The Failure of the State’s Primary

Contentions

As an initial matter, the State brings two primary

contentions in opposing Plaintiff’s motion: one

sounding in full faith and credit to state proceedings,

i.e., res judicata, and the other sounding in prudential

ripeness, i.e., Younger abstention. (See generally

Def.’s Opp’n Br.) The Court briefly addresses each

before turning to constitutional ripeness.

a. Res Judicata

First, res judicata does not appear to be applicable

here because it is not clear whether the Superior

Court made a final decision on the merits as to

Plaintiff’s constitutional claims. “Under federal law,

‘[t]he . . . judicial proceedings of any court of any . . .

State . . . shall have the same full faith and credit in

every court within the United States . . . as they have

27a

by law or usage in the courts of such State[.]’” Davis

v. U.S. Steel Supply, Div. of U.S. Steel Corp., 688 F.2d

166, 170 (3d Cir. 1982) (first, second, third, and fourth

alterations in original) (quoting 28 U.S.C. § 1738). As

such, Section 1738 “requires federal courts to give res

judicata effect to a state judgment to the extent the

state would give its own prior judgment such effect.”

Id.

Here, the State contends that the Superior

Court’s denial of Plaintiff’s motion to quash

constituted an adjudication of its constitutional

claims with preclusive effect. (See Def.’s Moving Br.

19-21.) As such, the Court applies the law of New

Jersey in considering res judicata as that is the state

where the alleged judgment occurred. 28 U.S.C. §

1738.

Under New Jersey law, for res judicata to apply:

(1) the judgment in the prior action must be

valid, final, and on the merits; (2) the parties

in the later action must be identical to or in

privity with those in the prior action; and (3)

the claim in the later action must grow out of

the same transaction or occurrence as the

claim in the earlier one.

Delacruz v. Alfieri, 145 A.3d 695, 707 (N.J. Super. Ct.

L. Div. 2015) (citing Watkins v. Resorts Int’l Hotel &

Casino, 591 A.2d 592, 599 (N.J. 1991)). Ultimately,

because res judicata is an affirmative defense, the

party asserting it, here the State, bears the burden of

showing that it applies. Davis, 688 F.2d at 170.

The State fails to show that res judicata applies

here where under New Jersey Law, judgments on

28a

jurisdictional grounds are not “valid and final.”

Velasquez v. Franz, 589 A.2d 143, 147 (N.J. 1991). In

New Jersey courts, like in this Court, “[s]ubjectmatter

jurisdiction

involves

‘a

threshold

determination as to whether the [c]ourt is legally

authorized to decide the question presented.’” In re

Registrant J.R., 310 A.3d 11, 15 (N.J. Super. Ct. App.

Div. 2024) (quoting N.J. Citizen Action v. Riviera

Motel Corp., 686 A.2d 1265, 1270 (N.J. Super. Ct.

App. Div. 1997)); see also State v. Osborn, 160 A.2d 42,

45 (N.J. 1960) (“Jurisdiction over the subject matter

is the power of a court to hear and determine cases of

the class to which the proceeding in question

belongs.”). Ripeness is one such justiciability doctrine

which, under New Jersey state law, absolves a court

of jurisdiction. In re Registrant J.R., 310 A.3d at 15

(“Standing, ripeness[,] and mootness . . . are

justiciability doctrines, and they refer [] to whether a

matter is appropriate for judicial review.”). Crucially,

a dismissal for lack of jurisdiction does not constitute

a valid final judgment for res judicata purposes.

Velasquez, 589 A.2d at 147.

Here, Judge Adubato found that Plaintiff’s

constitutional claims were not ripe. (May 28, 2024

Bench Decision 22 (“My determination, as pointed out

by the [State] here, is that there are no ripe

constitutional arguments.”); id. at 32 (“In large part,

the constitutional arguments, number one, as I

already indicated, are premature[.]”).) Importantly,

unlike in the Smith & Wesson Litigation, this was the

only clear reason Judge Adubato gave for denying

Plaintiff’s motion to quash and allowing enforcement

proceedings to move forward. See generally Smith &

Wesson (VI) (finding it critical in finding that res

29a

judicata could attach to the Superior Court’s decision

in Smith & Wesson (I) that the Appellate Division in

Smith & Wesson (V) discussed the substance of Smith

& Wesson’s constitutional claims, as opposed to

basing its decision solely on ripeness grounds); (May

28, 2024 Bench Decision.) As such, the State fails to

show that there was a final decision on the merits

where Judge Adubato’s sole articulated reason for

denying Plaintiff’s motion to quash and to allow

enforcement proceedings was that Plaintiff’s

constitutional claims were not ripe.

b. Younger Abstention

Second, the Court recognizes that the State’s

primary contention in opposing Plaintiff’s motion is

that abstention, a prudential ripeness doctrine, is

appropriate here. (Def.’s Opp’n Br. 11-18.)

Specifically, the State contends that under Smith &

Wesson (III), this litigation has progressed to a point

where Plaintiff is in actual violation of a state court

order, and thus, the threat of contempt is imminent.

(See id. at 13, 15-16.) The State, however, reads too

much into Smith & Wesson (III). Contempt needs to

be certain, or a violation of a court order needs to be

certain, to access abstention under either Sprint

Category Two or Sprint Category Three. See Smith &

Wesson (III) at 894. Not only is there no indication in

the record that Plaintiff faces an immediate contempt

threat, but the Superior Court has expressly stated

that Plaintiff’s motion to enforce the Initial

Compliance Order is “in abeyance.” (Sept. 20, 2024

Hearing Tr. 19.) As such, abstention is not available

on the facts before the Court under Smith & Wesson

(III), as will become clear below.

30a

2. The

Continued

Ripeness Concern

Constitutional

Having disposed of the State’s contentions, the

Court turns to Plaintiff’s claims. Before it can do so,

however, it has to satisfy itself that it can consider

Plaintiff’s TRO and the claims that underlie it.

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999) (holding that “Article III generally requires a

federal court to satisfy itself of its jurisdiction over the

subject matter before it considers the merits of a case.

‘For a court to pronounce upon [the merits] when it

has no jurisdiction to do so . . . is . . . for a court to act

ultra vires.’” (quoting Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101-02 (1998)). Here, while the

parties seemingly agree that Plaintiff’s constitutional

claims are ripe for a federal court’s review, as

evidenced by the Third Circuit’s Certified Order, the

parties’ agreement cannot establish subject-matter

jurisdiction and, importantly, this Court finds that

the parties have come to the incorrect jurisdictional

conclusion. (Certified Order 2 (finding that “it is now

undisputed” between the parties that Plaintiff’s

“claims are ripe”)); Arbaugh v. Y&H Corp., 546 U.S.

500, 514 (2006) (“[S]ubject-matter jurisdiction,

because it involves a court’s power to hear a case, can

never be forfeited or waived.” (quoting United States

v. Cotton, 535 U.S. 625, 630 (2002)). To be sure, by the

language of the Previous Opinion, the threshold to

ripeness has not been crossed, and the Previous

Opinion remains in full force.

First, the State concluded after the May 28, 2024

Bench Decision was issued that Plaintiff’s

constitutional claims were now ripe for a federal

court’s review. (Def.’s Opp’n Br. 10-11.) (Id.) This

31a

conclusion was premature. This Court in the Previous

Opinion found that when the Subpoena was enforced

in its “then current form,” Plaintiff’s claims would

ripen. (Previous Op. 8 (“Plaintiff’s claims related to

the Subpoena’s enforceability in this matter would

ripen only after the contingent future event that

forms the basis of its alleged injury occurs, i.e., if and

when the state court enforces the Subpoena in its

current form.”).) Critically, this Court in finding the

Subpoena must be enforced in its “then current form,”

importantly and necessarily, found that the Subpoena

must be enforced in an unconstitutional form before

this

Court

can

consider

the

Subpoena’s

constitutionality. (Id. (“New Jersey state law’s

allowance for a state court to modify or quash a

subpoena if an enforcement proceeding is brought and

‘compliance would be unreasonable or oppressive’

supports a finding that a constitutionally-sufficient

injury can only occur here if the state court tasked

with enforcing the subpoena refuses to quash or

modify the constitutionally-infirm subpoena.” (citing

N.J. STAT. ANN. § 1:9-2) (emphasis added)).)

To date, Plaintiff has not been compelled to

disclose the alleged constitutionally-protected

information it covets because its claims as to those

documents are “preserved.” (May 28, 2024 Bench

Decision 14-15.) As such, it remains an open question

as to whether Plaintiff will be ordered to disclose

materials that it believes are constitutionally

protected, as discussed more fully below. (See May 28,

2024 Bench Decision 11-12 (contemplating that both

parties should have “an opportunity to confer and to

address possible narrowing or adjustments of the

[S]ubpoena” that might obviate the need for a ruling

32a

on the constitutional claims) (emphasis added)); Sept.

20, 2024 Hearing Tr. 19 (holding the Initial

Compliance Order “in abeyance” such that First

Choice is under no legal obligation to disclose

allegedly constitutionally protected materials).) In

this way, under the Previous Opinion, Plaintiff’s

claims are not ripe because the Superior Court did not

enforce a “constitutionally-infirm” subpoena against

Plaintiff. (Previous Op. 8.) As such, the State’s

presumption that Plaintiff’s claims are now ripe is not

in lockstep with the Previous Opinion and the express

findings of the Superior Court. Accordingly, it is

rejected.

Second, after the State moved to dismiss

Plaintiff’s appeal of this Court’s ripeness findings as

moot, the Third Circuit did so. (Certified Order 2 (“We

therefore dismiss the appeal as moot and remand this

action to the District Court for further proceedings.”).)

Plaintiff, on remand, concluded that the Third

Circuit’s Certified Order was something more than

just a remand based on a mooted appeal; Plaintiff

concluded that the Third Circuit necessarily found

that Plaintiff’s claims are constitutionally ripe for

review, decisively establishing subject-matter

jurisdiction moving forward. (Pl.’s Moving Br. 10

(characterizing the Certified Order as the Third

Circuit affirmatively ruling that Plaintiff’s claims are

ripe); Sept. 20, 2024 Hearing Tr. 12 (representing to

the Superior Court that the Third Circuit “agreed”

that Plaintiff’s claims were ripe for adjudication by a

federal court).) This is also objectively not so.

To be clear, the Third Circuit’s Certified Order

neither expressed “agreement” nor included any

language indicating an affirmative finding on

33a

ripeness. (See Certified Order.) Instead, the Third

Circuit wrote the following with respect to: (1)

Plaintiff’s motion for Injunction Pending Appeal or,

Alternatively, for Summary Vacatur and Remand;

and (2) the State’s motion to “Dismiss Appeal as

Moot”:

The foregoing motions are denied as

presented. In this appeal, [Plaintiff] seeks

review of [the Previous Order] dismissing its

complaint for lack of subject matter

jurisdiction. Because the District Court

concluded that [Plaintiff’s] claims were not

ripe, it did not reach the merits of the claims

or the request for injunctive relief. Based on

subsequent developments in state court, it is

now undisputed that [Plaintiff’s] claims are

ripe. We therefore dismiss this appeal as moot

and remand this action to the District Court

for further proceedings. We leave it to the

District Court to address any requests for

injunctive relief in the first instance.

(Id.)

Importantly, the only legally viable conclusions

that can be drawn from the Third Circuit’s Certified

Order are that: (1) both Plaintiff’s and Defendant’s

motions before the Third Circuit were denied (id.

(“The foregoing motions are denied as presented.”));

(2) the Third Circuit found that ripeness, the issue on

appeal before it, was “undisputed” by the parties, a

fact that notably cannot establish ripeness itself

because parties cannot agree to subject-matter

jurisdiction (id. (“[I]t is now undisputed that

[Plaintiff’s] claims are ripe.”)); In re Resorts Int’l, Inc.,

34a

372 F.3d 154, 161 (3d Cir. 2004) (“[P]arties can[not]

write their own jurisdictional ticket. Subject matter

jurisdiction ‘cannot be conferred by consent’ of the

parties.” (quoting Coffin v. Malvern Fed. Sav. Bank,

90 F.3d 851, 854 (3d Cir. 1996))) 14; (3) based on the

parties’ ripeness representations, Plaintiff’s appeal

was dismissed as moot (Certified Order (denying the

State’s motion to dismiss the appeal as moot but

ultimately dismissing the appeal as moot suggesting

that the Third Circuit did not reach the substance of

the motions and mooted the appeal as a procedural

matter)); and (4) the case should be sent back to this

Court for further consideration because no issue for

appeal remains (id. (“We leave it to the District Court

to address any requests for injunctive relief in the

first instance.”).)

Notably, the Third Circuit’s Certified Order did

not find that: (1) Plaintiff’s claims are in fact ripe for

consideration; (2) this Court’s Previous Opinion is in

any way vacated, reversed, or inaccurate; or (3) the

Third Circuit has any opinion on the previous

ripeness determinations of this Court. (See generally

id.) Plaintiff also provides no basis for its belief that

the Third Circuit satiated itself, or for that matter,

had reason to consider constitutional ripeness before

remanding this matter. (Pl.’s Oct. 18 Correspondence

2, ECF No. 62 (maintaining, without support, that

Moreover, commonsensically, the language “undisputed”

cannot be construed to implicate the Third Circuit in the

“dispute” or suggest its stance on the issue. The Third Circuit is

not in a dispute with the parties or itself. Any suggestion that

this language may have constituted an affirmative finding by the

Third Circuit that Plaintiff’s claims are, in fact, ripe, is

untenable.

35a

“the Third Circuit held [its claims] ripe when it

remanded First Choice’s appeal as moot”).) Instead, it

appears that the Third Circuit simply identified that

the parties agreed that Plaintiff’s appeal was moot

and dismissed the matter as such. The Court,

therefore, squarely rejects Plaintiff’s declaration that

the Third Circuit found this matter ripe.

As a final note on this point, there is also no

reason to believe that the Article III ripeness issue

was ever squarely before this Court or the Third

Circuit in this case, other than in the Previous

Opinion, or in the Smith & Wesson Litigation. As this

litigation and the Smith & Wesson Litigation

illuminate, the Article III ripeness 15 concern hides in

the cross-section between parallel proceedings and

other prudential concerns like comity, abstention, and

full faith and credit. In this amorphous, seldom

clearly defined landscape, if the Article III concern is

not introduced, it can easily be left unconsidered.

That is what the Court believes happened here.

There is a critical distinction between prudential ripeness

concerns, which do not absolve this Court of jurisdiction, and

constitutional ripeness concerns, which do. Nat’l Park Hosp.

Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003) (“The

ripeness doctrine is ‘drawn both from Article III limitations on

judicial power and from prudential reasons for refusing to

exercise jurisdiction.’” (quoting Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43, 57 n.18 (1993))); Susan B. Anthony List v. Driehaus,

573 U.S. 149, 167 (2014) (finding that it may not be appropriate

for federal courts to find claims nonjusticiable on prudential

grounds alone rather than on constitutional grounds because “a

federal court’s obligation to hear and decide cases within its

jurisdiction is virtually unflagging” (internal quotation marks

and citations omitted)).

36a

3. Ripeness in the Context of New Jersey

Subpoena Enforcement Proceedings

Based on the above confusion, this Court finds it

prudent to engage in a more elaborative discussion of

New Jersey subpoena enforcement proceedings to

fully illuminate what it perceives as the moment of

ripeness for Plaintiff’s claims. 16 In short, New Jersey

state enforcement proceedings progress through five

stages: (1) subpoena issuance; (2) party response,

after which enforcement proceedings typically begin;

(3) motion practice; (4) appeal; and (5) forced

compliance. 17 The Court takes each in turn.

First, under the CFA, the State’s broad

investigatory powers include the power to subpoena

documents. N.J. STAT. ANN. § 56:8-3(c). This power

permits the State to conduct investigations 18 based

16 For square consideration, this is the ultimate question in this

litigation: Can Plaintiff, which is subject to a state non-selfexecuting administrative investigatory subpoena, which the

state legislature specifically authorized state courts to enforce

under threat of contempt if enforceable, maintain a suit in

federal court on constitutional grounds before the state court has

enforced the subpoena against it under threat of contempt or

before the state court has otherwise committed to any position

on whether the subpoena should be quashed or modified such

that it need only simply decline to abide by the subpoena under

no threat of legal consequence?

17 The Court will focus its state enforcement proceeding analysis

on the CFA, for conceptual ease.

For purposes of this Memorandum Opinion, the Court

considers the State’s investigation of First Choice as

synonymous with the Subpoena because the Subpoena is the

only manifestation of the State’s investigation to date. As such,

any cognizable irreparable harm alleged to have been caused by

the investigation more generally would necessarily only occur

37a

“merely on suspicion that the law is being violated, or

even just because [the State] wants assurance that it

is not.” In re Addonizio, 248 A.2d 531, 539 (N.J. 1968).

Thus, subpoena issuance is a low bar and of no

practical consequence in and of itself where the

subpoena is non-self-executing, as here, because the

Subpoena itself does not yet carry the power of law; a

recipient can simply decline to respond at step two

with no legal consequence. N.J. STAT. ANN. § 56:8-6;

U.S. ex rel. Ricketts, 567 F.2d at 1232 (“Courts will not

decide abstract legal issues posed by two parties; the

issue in controversy must have a practical impact on

the litigants.” (emphasis added)). Instead, where a

subpoena recipient does not respond to the subpoena,

to compel compliance, the onus is on the State to seek

the state court’s involvement. 19

Second, the party responds to the subpoena. This

traditionally goes one of three ways: (1) a party

responds to the subpoena without court involvement;

(2) a party fails to obey the subpoena, prompting the

State to file a lawsuit seeking the Superior Court to

issue an order compelling compliance and at which

time the subpoena recipient can move to quash the

through the Subpoena at this early stage. All of Plaintiff’s

claims, therefore, relate to the Subpoena for purposes of this

Memorandum Opinion. (See, e.g., Compl. ¶¶ 89-104 (detailing

Plaintiff’s selective enforcement claim and alleging that the

State, in issuing the Subpoena, engaged in unconstitutional

viewpoint discrimination and that it was being “investigated” for

engaging in constitutionally protected speech).)

19 The Court notes that the last time it considered Plaintiff’s

claims, it was asked to intervene at this stage of enforcement

proceedings, i.e., prior to the state court’s involvement, but after

issuance of the Subpoena. (See Previous Op. 2.)

38a

subpoena, (Smith & Wesson (I) at 7-8 (describing this

outcome as the “expected action” and expressing

disapproval for Smith & Wesson’s decision to run to

federal court prior to enforcement proceedings being

initiated)); or (3) the subpoena recipient can go

directly to the state court seeking relief from the

subpoena, Slumped Kitchen, LLC v. Div. of Consumer

Affs., No. 21-2096, 2023 WL 4113367, at *2-*3 (N.J.

Super. Ct. App. Div. June 22, 2023) (detailing an

instance where the subpoena recipient was the first

to file an action in state court, after which the State

cross-moved to enforce the subpoena).

Here, this tradition was, of course, broken when

Plaintiff filed in this Court for review of the Subpoena

and avoided the state court altogether. Putting aside

this extraordinary and novel maneuver, this litigation

ultimately worked itself into the second, more

traditional bucket: Plaintiff failed to obey the

Subpoena, citing constitutional concerns, and the

State initiated enforcement proceedings. (See

generally Smith & Wesson (I).) Once again at stage

two, however, Plaintiff has not yet suffered any

cognizable injury; 20 rather, Plaintiff only risks a

As the Court noted in the Previous Opinion,“[t]he

constitutional component of ripeness overlaps with the “injury

in fact” analysis for Article III standing.” Wolfson v. Brammer,

616 F.3d 1045, 1058 (9th Cir. 2010) (citations omitted); see also

13B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 3532.1 (3d Ed. 2023) (“‘[T]o say a

plaintiff’s claim is constitutionally unripe is to say the plaintiff’s

claimed injury, if any, is not “actual or imminent,” but instead

“conjectural or hypothetical.”’” Logically, it makes no difference

that a claim not ripe today might in the future ripen into an

injury that establishes standing.” (alteration in original)

(emphasis added) (quoting Nat’l Org. for Marriage, Inc. v. Walsh,

39a

potential injury if the Superior Court does not quash

the Subpoena and the Superior Court threatens

Plaintiff with contempt. Smith & Wesson (III) at 894

(noting that even subsequent to stage two, “there [is]

much more for the state court to do than merely

implement a predetermined outcome. New Jersey

courts still [have] to adjudicate [a subpoena

recipient’s] constitutional arguments; and even if

those arguments [are] resolved against [the

recipient], the state courts still [have] to give the

company an opportunity to produce the required

documents” before the recipient feels the practical

consequence of noncompliance: contempt).

Third, where applicable, the proceeding advances

to motion practice. At this stage, the State typically

has initiated a summary proceeding and presented its

complaint to the Superior Court. N.J. STAT. ANN. §

56:8-8; N.J. Ct. R. 4:67-1(a); N.J. Ct. R. 1:9-6; (see also

Def.’s Superior Court Order to Show Cause Mem. 19.)

If the Superior Court is satisfied with the sufficiency

of the State’s application, it orders the subpoena

714 F.3d 682, 688-89 & nn.6-7 (2d Cir. 2013)); Presbytery of N.J.

of Orthodox Presbyterian Church, 40 F.3d at 1462, 1470 n.14 (3d

Cir. 1994) (acknowledging that standing and ripeness are

related and often “confused or conflated,” and finding that a

plaintiff had Article III standing for the same reasons his claims

were ripe). In a posture like the one before the Court, it is

appropriate to view ripeness as akin to an “injury-in-fact” in a

standing analysis, i.e., where the Court finds there is no ripeness

it also finds there is no constitutionally-sufficient injury for it to

adjudicate Plaintiff’s claims. This is because Plaintiff’s claims,

as presented, are not ripe because they are hypothetical, which

also means they are not actual or imminent because at least one

condition precedent stands between the claims and an actual

constitutional injury.

40a

recipient to show cause why final judgment should

not be rendered for the relief sought in the State’s

application. N.J. Ct. R. 4:67-2. Where applicable, as

here, the subpoena recipient can then move to quash

the subpoena, on, for example, constitutional

grounds. (See generally Pl.’s Superior Court Mot. to

Quash *29, ECF No. 44-6.) Again, at this preliminary

stage, a plaintiff is not legally obligated to produce

what it believes to be constitutionally protected

documents. As such, there is no constitutional injury,

actual or imminent, after a subpoena-recipient has

moved to quash a subpoena in Superior Court.

Several contingencies remain.

Still at the third stage is also, of course, the

Superior Court’s decision on the parties’ motions. In

the case before the Court, it was Judge Adubato’s

decision, at this third stage posture, that led the State

to believe Plaintiff’s claims were now ripe for a federal

court’s review. (Pl.’s Moving Br. 9-10; see also May 28,

2024 Bench Decision 16-17.) This belief, as described

above, however, was misguided; while Judge Adubato

denied Plaintiff’s motion to quash, the Superior

Court’s enforcement of the Subpoena was not an

enforcement of the Subpoena in an unconstitutional

form because the Superior Court “preserved”

Plaintiff’s constitutional claims and encouraged the

parties to discuss whether they could narrow the

Subpoena to avoid Plaintiff’s constitutional concerns.

(See May 28, 2024 Bench Decision 11, 14-15.) All told

then, again, at the third stage of subpoena

enforcement proceedings Plaintiff was under no legal

obligation to comply with the Subpoena. As such,

Plaintiff, after the motions were decided, still did not

risk actual or imminent constitutional injury based on

41a

the Superior Court’s findings. Plaintiff still could

simply decline to disclose the materials it believed

were constitutionally protected without legal or

practical consequence as proceedings continued.

That brings the Court to the fourth stage of the

subpoena enforcement process: appeal. This is the

current posture of the state enforcement proceedings.

Plaintiff appealed Judge Adubato’s decision denying

its motion to quash, and the matter is pending review

by the Appellate Division. (See generally Sept. 20,

2024 Hearing Tr.) Plaintiff’s constitutional challenges

remain very much alive in state court, and neither the

Superior Court nor the Appellate Division has

practically required First Choice to comply with the

Subpoena with respect to allegedly constitutionally

protected materials or otherwise summarily rejected

Plaintiff’s constitutional challenges. (See generally

id.) As such, even at this fourth stage, Plaintiff’s

constitutional injury remains strictly hypothetical

and not actual or imminent. In fact, the pending

appeal has proven to be somewhat of an insulation for

Plaintiff, because the pending appeal is precisely why

Judge Adubato decided to hold the Compliance Order

in abeyance. (See id. at 19.)

That leaves the Court at the fifth and final stage

of New Jersey subpoena enforcement proceedings:

enforcement through sanction-threatened compliance

42a

(“Enforcement” 21). 22 Once appeals have been filed in

the proceedings, if not earlier, the Superior Court may

require the subpoena recipient to respond to the

subpoena under threat of contempt. See, e.g., N.J.

STAT. ANN. § 56:8-6. It is then, and only then, that this

Court can cognize that Plaintiff’s constitutional injury

would become imminent and sufficiently nonspeculative for this Court’s review of the

constitutionally challenged subpoena.

The Third Circuit’s discussion in Smith & Wesson

(III) regarding the uncertainty of state subpoena

enforcement proceedings in the non-self-executing

administrative investigatory subpoena context

appears to support this Court’s findings that, prior to

Enforcement, much is uncertain and therefore any

alleged injury contemplating compliance is

speculative in nature. Smith & Wesson (III) at 893.

Specifically, the Third Circuit recognized that “[i]f an

entity violates a subpoena issued by the [State] in a

consumer fraud investigation, it may be subject to

contempt, as well as a complete prohibition on ‘the

sale or advertisement of any merchandise’ and

suspension of its corporate character” and that

21 The Court’s definition of Enforcement as set forth herein is its

intended meaning of the term under the Previous Opinion. As

such, the Court stands by the Previous Opinion, and this

Memorandum Opinion is merely intended to supplement and

illuminate the Court’s findings therein.

22 The Court notes that it is possible for the Superior Court to

threaten contempt at any point during the proceedings and not

each stage in the New Jersey subpoena enforcement proceedings

necessarily occurs. Each case is different, but this Court finds

that constitutional injury can only occur here if there is an actual

or imminent threat of forced compliance by the state court,

which, to date, there has not been.

43a

“[t]hese statutory ‘[p]enalties are, by their very

nature, retributive: a sanction for wrongful conduct.’”

Id. (emphasis added) (citations omitted). The Third

Circuit, however, found that given the non-selfexecuting nature of a CFA subpoena, “a court will

impose [the penalties] only after the subpoenaed party

violates a court order.” Id. (emphasis added). Here,

like in the Smith & Wesson Litigation, albeit under

slightly different factual circumstances, there has

been no state court finding of a violation of a court

order. Id. (finding that Smith & Wesson never

violated a court order where it complied fully with the

Subpoena at stage five above); (Sept. 20, 2024

Hearing 19 (declining to find Plaintiff in violation of

the Initial Compliance Order although it had not fully

complied with the Subpoena as required by the Initial

Compliance Order).) Instead, the Superior Court held

its Initial Compliance Order requiring Plaintiff to

disclose constitutionally protected documents “in

abeyance,” meaning Plaintiff is at no imminent risk of

facing Enforcement for simply refusing to provide the

State with documents it believes are constitutionally

protected. (See Sept. 20, 2024 Hearing 19.)

The certainty discussion in Smith & Wesson (III),

while in the context of Younger abstention, is also

particularly illuminating as to the hypothetical

nature of Plaintiff’s alleged injuries under the

Subpoena here. Smith & Wesson (III) at 894. In

rejecting the State’s contention that subpoena

enforcement proceedings fell within Younger

Category Three, i.e., an action that “involves orders in

the furtherance of state court judicial function,” the

Third Circuit found, as set forth earlier:

[W]hen Smith & Wesson went to federal court

44a

there was much more for the state court to do

than merely implement a predetermined

outcome. New Jersey courts still had to

adjudicate Smith & Wesson’s constitutional

arguments; and even if those arguments were

resolved against Smith & Wesson, the state

courts still had to give the company an

opportunity to produce the required

documents before holding it in contempt.

Id. at 893-94. (citation omitted). The Third Circuit, in

so finding, lays bare the lack of concrete injury

Plaintiff faces as a result of the remaining

contingencies and hypothetical outcomes that remain

in state court. While the Third Circuit in Smith &

Wesson (III) did not consider ripeness, its reasoning

certainly helps identify why federal judicial review

may be inappropriate altogether prior to

Enforcement.

In total, unless and until the New Jersey

subpoena enforcement process reaches Enforcement

as described above, Plaintiff’s constitutional claims

are not ripe where it faces no practical consequence

for simply refusing to provide documents it deems

protected. As such, this Court need only look to the

Superior Court proceedings to assess whether there

has been an Enforcement as defined above in order to

appropriately consider whether Plaintiff’s claims

stemming from the Subpoena are, in fact, ripe. For the

reasons outlined in the next section, the Court finds

that Enforcement has not occurred.

45a

4. The Superior Court’s Findings

Establish There Has Been No

Enforcement of the Subpoena

Upon consideration of both the Superior Court’s

May 28, 2024 Bench Decision and the September 20,

2024 Hearing, the Court concludes that no

Enforcement occurred in Superior Court, and as such,

Plaintiff’s claims are not ripe. To begin, Judge

Adubato’s May 28, 2024 Bench Decision appears to

have been predicated on a belief that the

constitutional issues First Choice presented may

never ripen. (See May 28, 2024 Bench Decision 11-12

(observing that First Choice’s motion to quash “really

lies in the scope of the [S]ubpoena and its claims that

the demands of the State go well beyond the

investigative powers conferred by the statutes . . .

and, therefore, [the Subpoena is] unenforceable” but

then noting that “both parties agree that th[e

Superior Court] should not delve into a review of the

specifics of the [S]ubpoena in detail prior to the

parties having an opportunity to confer and to address

possible narrowing or adjustments of the [S]ubpoena”

that might obviate the need for a ruling on the

constitutional claims) (emphasis added)).) This is

presumedly why Judge Adubato followed the

Appellate Division in Smith & Wesson (V) in finding

that Plaintiff’s constitutional claims were not ripe,

and instead, were “preserved.” (Id. at 12, 22-23, 32

(recognizing in part that “built into” the Superior

Court’s order that First Choice must comply with the

Subpoena is the “fact that there is . . . [a] belief that

the parties will confer going forward, and it’s possible

that the [constitutional] concerns of the defense could

be addressed in an agreement between the parties”

46a

that would not require disclosure of allegedly

constitutionally-protected documents)); see also

Smith & Wesson (V) at 494. As such, while Judge

Adubato ordered compliance with the Subpoena in

the Initial Compliance Order, it is not apparent from

the record that Judge Adubato intended for the

constitutionally-protected documents to be disclosed

prior to the parties narrowing the scope of the

Subpoena or issuance of a further court order.

Instead, Judge Adubato appears to have expected the

parties to rectify the constitutional concerns before

Enforcement. (See generally May 28, 2024 Bench

Decision; Sept. 20, 2024 Hearing Tr. 19 (lamenting

after the parties were unable to restrict the scope of

the Subpoena that the Superior Court will “know

better than to leave it to the parties to try to come to

some decision” in the future).)

The Superior Court’s September 20, 2024 findings

reaffirm, if not outright verify, that it did not intend

to mandate Plaintiff to disclose constitutionallyprotected documents. First, at the September 20,

2024 Hearing, the Superior Court expressly declined

its “right” to “enforce” the Subpoena. (Sept. 20, 2024

Hearing Tr. 8 (characterizing the State’s motion to

enforce litigant’s rights as seeking an Enforcement,

which implies there was no Enforcement of the

Subpoena in May and that the parties and the

Superior Court understand forced compliance as the

moment of enforcement, consistent with this Court’s

findings above); id. at 16 (“What I will say is that

while I do believe I have jurisdiction to hear the

enforcement, in light of everything, I am going to

decline to exercise that right today.”); id. at 19

(answering in response to the State’s contention that

47a

the Superior Court has jurisdiction “to entertain [its]

motion to enforce the [Initial Compliance Order]” that

the Superior Court is “not going to enforce it”); id. at

20 (expressly declining to grant the State’s motion to

enforce litigant’s rights pending appeal to the

Appellate Division 23).) Second, the Superior Court

characterizes its May 28, 2024 Bench Decision as

“permitt[ing] the enforcement” of the Subpoena. (Id.

at 7.) This language is consistent with the third stage

of subpoena enforcement proceedings, which as

described above, is a stage at which constitutional

claims related to the Subpoena are not yet ripe but

where state enforcement proceedings are initiated

and ongoing. This is not Enforcement as set forth

above.

What is more, the parties’ own interpretations of

the Superior Court’s findings seem to support this

Court’s interpretation of the same. Most notably, the

State, as recently as October 11, 2024, presented its

view of the current subpoena enforcement

proceedings to the Appellate Division in seeking a

limited remand. (Mot. Limited Remand 1, ECF No.

60-1.) The State wrote that it perceived the Initial

Compliance Order requiring Plaintiff to provide

documents as being “in limbo.” (Id. at 5.) It continued

that the Order “has not been stayed, yet the trial court

has declined to enforce it” and argued that

23 A motion to enforce litigant’s rights, if granted, would certainly

render Plaintiff’s constitutional claims ripe because, at that

time, Plaintiff would be subject to penalties for failing to comply

with the Initial Compliance Order. See N.J. Ct. R. Appendix XIM (detailing the legal consequences if the motion to enforce

litigant’s rights is granted and the subpoena recipient fails to

comply with an information subpoena).

48a

“enforcement of the [Initial Enforcement] Order is

critical to the State’s ongoing investigation.” (Id. at 56 (“Without a limited remand, the State lacks

recourse to enforce the [Initial Compliance Order] and

ensure compliance with the Subpoena”).) Moreover,

Plaintiff does not dispute that it has not yet fully

complied with the Subpoena, suggesting that there

has been no Enforcement of the Subpoena against it,

and contingencies remain before Plaintiff faces a

cognizable constitutional injury. (Pl.’s Moving Br. 9

(“The [Superior Court] noted that [Plaintiff] ‘has

preserved its [federal constitutional] claims’ to raise

at some other stage.” (quoting May 28, 2024 Bench

Decision 14)); see Pl.’s Reply Br. 3, 5, ECF No. 45; Pl.’s

Oct. 18, 2024 Correspondence 1-2 (conceding that

Plaintiff, for example, has not produced the donor

lists it believes are constitutionally protected); Pl.’s

Moving Br. 32 (arguing that “[i]f this Court fails to

protect donor and other information before the

constitutionality of the underlying subpoena has been

adjudicated, [Plaintiff] could face contempt citations

for failing to produce constitutionally protected

information” but inherently recognizing that it does

not face any such threat at this time) (emphasis

added); Pl.’s Oct. 18, 2024 Correspondence 2

(recognizing that “the [Superior Court’s] order that

the [Subpoena] is immediately enforceable represents

an emergent threat,” and thus necessarily agreeing

that the Subpoena has not been enforced in its

unconstitutional form, and there is still only a threat

that it might be) (emphasis added).)

At this time, the record does not support a finding

that the Subpoena has been Enforced, and Plaintiff

can simply refuse to comply with the Subpoena

49a

without consequence. To this end, the Court finds that

Plaintiff’s claims relating to the Subpoena are not

ripe, and therefore, this Court lacks subject-matter

jurisdiction to adjudicate Plaintiff’s constitutional

claims related to the Subpoena’s enforceability.

B. Plaintiff’s Alleged Injuries Sounding in

Ripeness

Having found that it does not have subject-matter

jurisdiction to adjudicate Plaintiff’s claims related to

the enforceability of the Subpoena, constitutional or

otherwise, the Court briefly turns to Plaintiff’s

Complaint to see if it alleges any other ongoing injury

outside the Subpoena enforcement context that might

warrant injunctive relief. To be clear, Plaintiff’s

request for a TRO and/or PI seeks to enjoin

“enforcement of [the State’s] Subpoena in its entirety

or, in the alternative, modify[] that Subpoena to

eliminate those provisions that infringe on the

constitutional protections of [Plaintiff].” (Compl. 33,

ECF No. 1.) Facially, and as previously noted, this

request is solely directed at the Subpoena, which is

the only manifestation of the State’s investigation. As

Plaintiff’s claims all relate to the Subpoena, this

Court does not have the power to give Plaintiff the

relief it seeks.

With that said, the Court would like to address

Plaintiff’s contentions, while not necessarily plead,

that sound in the Subpoena itself actively causing

harm by virtue of being issued and served, even if it

has yet to be Enforced. (Pl.’s Oct. 18, 2024

Correspondence 2 (“[E]very day the Subpoena

remains in force, First Choice experiences irreparable

harm from the chilling of its First Amendment

50a

rights.”); see Pl.’s Moving Br. 20).) Said differently, a

narrow path to a PI or TRO may be available to

Plaintiff if it can support a finding that it is suffering

a practical ongoing harm, not a speculative future

disclosure harm, as a result of the Subpoena’s service

and the Superior Court’s refusal to quash it, i.e., a

chilling of Plaintiff’s First Amendment rights where

it has had to take practical steps responsive to the

Subpoena’s issuance. U.S. ex rel. Ricketts, 567 F.2d at

1232 (“Ripeness concerns whether the legal issue at

the time presented in a court is sufficiently concrete

for decision. Courts will not decide abstract legal

issues posed by two parties; the issue in controversy

must have a practical impact on the litigants.”)

(emphasis added). The Court addresses this narrowly

construed and isolated contention under the

preliminary injunction standard elucidated at the

beginning of this Memorandum Opinion. Issa, 847

F.3d at 131 (citation omitted) (finding that the

extraordinary remedy of preliminary injunctive relief

should only be granted if a party can show: (1) it is

“likely to succeed on the merits of their claims”; (2) it

is “likely to suffer irreparable harm without relief”; (3)

“the balance of harms favors [it]”; and (4) “relief is in

the public interest” (citation omitted)).

Plaintiff appears to contend that it is suffering

active ongoing harm as a result of the Subpoena’s

issuance as opposed to the investigation more

generally where: (1) it is unable to get insurance until

the state investigation is resolved; (2) Plaintiff had to

edit certain YouTube videos to protect Plaintiff’s

clients’ identities; and (3) the cost of electronic

discovery inherent in having to answer the Subpoena

is high. (See generally Huber Decl., ECF No. 41-5.)

51a

With respect to the insurance injury, Plaintiff alleges

it had to acquire a new insurance policy after its

previous underwriter refused to offer a new policy as

a result of the State’s investigation. (Id. at 2-3.) “As a

result, First Choice had to seek similar coverage from

a different provider,” and “First Choice’s insurance

premiums increased from $1,100 to over $6,000 per

year, and First Choice’s deductible increased from

$500 per claim to $50,000 per claim.” (Id. at 3.)

Plaintiff’s alleged damages to this end are strictly

monetary. As such, Plaintiff’s insurance injury does

not constitute irreparable harm sufficient for

preliminary injunctive relief. Acierno v. New Castle

Cnty., 40 F.3d 645, 653 (3d Cir. 1994) (“[I]n order to

warrant a preliminary injunction, the injury created

by a failure to issue the requested injunction must be

of a peculiar nature, so that compensation in money

cannot atone for it.” (internal citations and quotation

marks omitted)). The same goes for the cost of

electronic discovery, which itself is also strictly

economic in nature. (Huber Decl. 6-8 (setting forth the

burdensome cost of discovery in order to comply with

the Subpoena).) That leaves Plaintiff’s contention

regarding the “impact on First Choice’s Speech”

caused by the Subpoena as the lone contention

remaining that can be considered for a PI or TRO. (Id.

at 3; see also id. at 4-5 (discussing generally an impact

on First Choice’s donors were their names to have to

be disclosed, which goes to the enforceability of the

Subpoena and is not ripe for review for the reasons

outlined in this Memorandum Opinion).)

Plaintiff’s final contentio

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.