Take the Fifth

Designated for publication

• Defense Distributed v. Bruck, 21-50327, appeal from W.D. Tex.
  • Jones, J. (Jones, Elrod, Higginson), Higginson, J., dissenting; mandamus, First Amendment, venue transfer, severance
  • Granting mandamus ordering the district court to request retransfer back to it of a claim against the New Jersey Attorney General (“NJAG”) that it has severed from a larger case and transferred to federal district court in New Jersey. The case was brought by defendants who seek to publish on the Internet digital schematics for 3-D printing of handguns, to halt the prior restraint on that speech by various defendants, including the NJAG.
  • The Court held that it had jurisdiction to issue mandamus from the 1404(a) transfer order, even though the transferee court was in a different Circuit, where its order consisted of an order to the transferor court to request retransfer.
  • The Court held that mandamus was appropriate. It held that the first two elements for mandamus relief were easily satisfied–“[f]irst, the petitioner must show that there are no other adequate means to attain the relief he desires[;] [s]econd, the court must be satisfied that the writ is appropriate under the circumstances.” (Internal quotation marks and citations omitted). The Court noted that there was no real opportunity for appellate review of the severance and transfer in the Third Circuit. The Court also held that the importance of the issues rendered mandamus relief appropriate: “Preeminent are questions about the abridgement of the Plaintiffs’ first amendment rights to publish their materials. Also critical, however, are tactics suggesting the abusive manipulation of federal court procedures in order to delay or altogether avoid meaningful merits consideration of Plaintiffs’ claims.”
  • The Court then turned to the third element for mandamus relief, whether the plaintiff can show “a clear and indisputable right to the writ or a clear abuse of discretion by the district court.” The Court held that a combined severance and transfer requires greater scrutiny that just a transfer: “Severance and transfer requires two courts to engage in the work of one, prompting serious concerns about duplication of judicial resources, the consistency of rulings, and litigation costs. The circuit courts that discussed severance and transfer motions in this context have uniformly indicated an aversion to granting such motions at the expense of needless duplication of judicial effort.” The Court held that the district court “ignored the major components of the lawsuit and the overarching connection alleged between the State Department and the NJAG. Both government entities have suppressed legal speech by prohibiting the publication of the company’s digital firearms files on the internet and into New Jersey. That the First Amendment protects all of the Plaintiffs’ publications underlies all of their other claims. The Plaintiffs’ assertion of seventeen separate claims reflects the consequences of that suppression and the tortuous path they have been forced to pursue for redress. Yet, contrary to common sense and heedless of a potential for disparate constitutional rulings if the case against the NJAG remains transferred, the court belittled the First Amendment issues. … And the larger point is that none of Plaintiffs’ claims would exist if they had been allowed to publish the various digital firearms files continuously since 2013. The First Amendment is the sine qua non of this case.”
  • The Court held, as to severance, that the district court erred in finding that the claims against the various defendants did not arise from a common series of transactions or occurrences, and did not involve common issues of fact and law.
  • As to transfer, the Court held that the finding that the severance was a clear abuse of discretion rendered the transfer an abuse of discretion. But, even aside from the severance, the Court held that transfer was improper. “When a defendant is haled into court, some inconvenience is expected and acceptable. Assuming that jurisdiction exists and venue is proper, the fact that litigating would be more convenient for the defendant elsewhere is not enough to justify transfer.”
  • Judge Higginson dissented. Emphasizing the extraordinary nature of mandamus relief, he opined, “Today, the majority uses that extraordinary remedy to reverse a district court’s discretionary transfer order, ruling that it was a clear abuse of discretion. This district court’s interest-of-justice grant of transfer is not extraordinary cause, and compelling it to be undone is our indisputable error, for many reasons. … [A]s [the plaintiff] acknowledged in oral argument, they could not point to any reviewing court that has ever, before today, deployed mandamus authority to compel a trial court to undo a Section 1404(a) discretionary, interest-of-justice, joint severance and transfer grant.” He concluded, “Mandamus rulings announce law inflexibly. Here, without precedent, our court, seemingly impatient for the last half decade, to force a difficult First (Second?) Amendment clash over government regulation of 3D printable ‘ghost’ weapons, supplants district courts’ long-standing, fact-specific case management discretion to transfer litigation for consolidation with an existing case in another circuit, in derogation of state sovereignty, comity and constitutional avoidance principles, contrary to instruction given to us by the Supreme Court just last year.”

Unpublished

• Boyd v. Gower, 20-60323, appeal from S.D. Miss.
  • per curiam (Smith, Stewart, Graves), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 claim for failure to exhaust administrative remedies.

• Muminov v. Garland, 20-60527, petition for review of BIA order
  • per curiam (Owen, Higginbotham, Elrod), immigration
  • Denying Uzbekistani citizen’s petition for review of BIA order rejecting his claims for asylum, withholding of removal, and relief under the Convention Against Torture.

• Estate of Brown v. George County, 20-60693, appeal from S.D. Miss.
  • per curiam (Higginbotham, Higginson, Duncan), prisoner suit
  • Affirming dismissal of deceased prisoner’s § 1983 claim.

• Gaines v. Lumpkin, 21-10301, appeal from N.D. Tex.
  • per curiam (Stewart, Haynes, Ho), habeas corpus
  • Denying COA from district court’s denial of 60(b) motion following dismissal of § 2254 petition.

• U.S. v. Fairley, 21-10752, appeal from N.D. Tex.
  • per curiam (King, Costa, Ho), criminal, sentencing
  • Affirming 23-month sentence and imposition of supervised release terms on conviction of using or possessing a fraudulent immigration document, namely a passport card.

• U.S. v. Camargo-Garcia, 21-10952, appeal from N.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Talarico v. Ultra Petroleum Corp., 21-20049, appeal from S.D. Tex.
  • Higginson, J. (Higginson, Willett, Ho), bankruptcy
  • Affirming the district court’s dismissal of shareholder’s challenge to the bankruptcy court’s confirmation of debtor’s plan of reorganization.

• Logue v. Wells Fargo Bank, N.A., 21-20217, appeal from S.D. Tex.
  • Willett, J. (Higginson, Willett, Ho), foreclosure
  • Affirming district court’s judgment that foreclosure can proceed.

• Herridge v. Montgomery County, 21-20264, appeal from S.D. Tex.
  • per curiam (Wiener, Graves, Ho), Graves, J., concurring; Ho, J., concurring; First Amendment
  • Affirming in part, vacating in part, and remanding for further proceedings on plaintiff’s First Amendment claims arising from leafleting and sign-holding at particular events.
  • Judge Graves concurred, though fully joining the per curiam opinion.
  • Judge Ho concurred, also joining fully the per curiam opinion, to emphasize his view on the First Amendment stakes.

• Brown v. City of Houston, 21-20302, appeal from S.D. Tex.
  • per curiam (Wiener, Graves, Duncan), § 1983
  • Certifying question to Texas Supreme Court on plaintiff’s § 1983 claims arising from wrongful prosecution and conviction for murder he did not commit. The certified question is: “Does Section 103.153(b) of the Tim Cole Act bar maintenance of a lawsuit involving the same subject matter against any governmental units or employees that was filed before the claimant received compensation under that statute?”

• Vesoulis v. ReShape LifeSciences, Inc., 21-30367, appeal from E.D. La.
  • per curiam (Higginson, Willett, Ho), medical malpractice, negligence
  • Affirming partial summary judgment on some claims and judgment in favor of defendant on jury verdict regarding remaining claims arising from removal of medical device from plaintiff’s stomach.

• Romano v. Jazz Casino Co., 21-30554, appeal from E.D. La.
  • per curiam (Southwick, Oldham, Wilson), personal tort
  • Affirming summary judgment in favor of defendant in slip-and-fall case.

• U.S. v. Fryman, 21-40529, appeal from S.D. Tex.
  • per curiam (King, Costa, Ho), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Sauseda, 21-50210, appeal from W.D. Tex.
  • per curiam (Dennis, Elrod, Duncan), criminal, compassionate release
  • Vacating order denying motion for compassionate release and remanding for entry of reasons explaining how the district court exercised its discretion.

• Lumsden v. Lumpkin, 21-50272, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Graves), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 suit.

• U.S. v. Bonnett, 21-50323, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Nichols v. U.S., 21-50368, appeal from W.D. Tex.
  • per curiam (Barksdale, Stewart, Dennis), Federal Tort Claims Act
  • Affirming summary judgment dismissal of former inmate’s FTCA claims under discretionary-function doctrine, independent-contractor exception; and lack of necessary expert evidence.

• U.S. v. Forge, 21-50891, appeal from W.D. Tex.
  • per curiam (Wiener, Dennis, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Davis v. Dollar General Corp., 21-60640, appeal from S.D. Miss.
  • per curiam (Higginbotham, Higginson, Duncan), personal tort
  • Affirming summary judgment in favor of defendant in personal injury claim.

• Denby v. FNU Armstrong, 22-50001, appeal from W.D. Tex.
  • per curiam (Southwick, Graves, Costa), prisoner suit
  • Dismissing as frivolous appeal from dismissal of prisoner’s § 1983 claim.