Fifth Circuit Judges Clash in Gun “Free Speech” Case About Whether Mandamus Was Appropriate Relief to Vacate Joint Severance and Transfer Order

In Defense Distributed v. Bruck, No. 21-50327 (5th Cir. Apr. 1, 2022), a 2-1 panel of the Fifth Circuit issues a writ of mandamus directing a federal judge in the Western District of Texas to vacate an order severing and transferring part of a case to the District of New Jersey, and to request that the New Jersey court return the case to Texas.

The case involves a company that “produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public.” As the panel majority summarizes, “[s]ince 2013, Appellants (collectively, ‘Defense Distributed’) have been challenging publication restraints imposed by the U.S. State Department, federal courts, and the State of New Jersey after Defense Distributed published to the Internet computer assisted design (‘CAD’) files for a single-round plastic pistol.” Defense Distributed challenges state and federal restraints on First Amendment grounds, among other arguments.

Competing actions cases were filed by (1) nine states’ Attorneys General in the Western District of Washington “to enjoin the State Department from authorizing the release of Defense Distributed’s files”; and (2) Defense Distributed and associated plaintiffs in the Western District of Texas challenging “select enforcement actions taken by the state Attorneys General.” One of the defendants in the Texas case was the New Jersey Attorney General (NJAG). Although the Texas district court dismissed the NJAG on personal-jurisdiction grounds, the Fifth Circuit reversed that decision (Defense Distributed v. Grewal, 971 F.3d 485, 488-90 (5th Cir. 2020)).

On remand, the district court severed Defense Distributed’s case against the NJAG under Fed. R. Civ. P. 21 and transferred that portion of the case to New Jersey federal court under 28 U.S.C. § 1404(a). “Defense Distributed immediately noticed an appeal from the severance-and-transfer order and followed with an alternate request for mandamus relief against the district judge. This court imposed a temporary stay of the case pending appeal. The New Jersey district court also stayed all proceedings pending this appeal.”

The panel majority (signed by Judge Edith Jones, joined by Judge Elrod) grants mandamus to vacate the joint severance and transfer order. It first addresses appellate jurisdiction. Skipping over the possible applicability of the collateral-order doctrine (on which it notes a potential intra-circuit split), it accepts the alternative request for relief by mandamus.

“The twist in this [mandamus action] is the transfer to a district court outside the Fifth Circuit, a court over which this court exercises no control. This court lacks power to order a return of the case to our circuit.” But the panel holds, citing In re Red Barn Motors, Inc., 794 F.3d 481 (5th Cir. 2015), and cases from four other circuits, that there is a workaround: “directing the transferor district court to request that the transferee district court return the case.” It finds mandamus a fitting vehicle for relief here, concluding that this was a “very extreme case,” plaintiff diligently sought the relief (filing its appeal just one day after the order), and the New Jersey court voluntarily stayed the action.

The panel majority holds that the conditions for mandamus were met. It holds that there are no other means to attain the relief (the case now being transferred beyond the Fifth Circuit’s authority), that the issues implicated have importance beyond the immediate case (citing the First Amendment concerns), and that plaintiffs had “shown a clear and indisputable right to the writ or a clear abuse of discretion by the district court.” On the last point, the panel majority “conclude[s] that the district court clearly abused its discretion by applying the wrong legal standard for evaluating the NJAG’s conjoined severance and transfer motions and by egregiously misinterpreting Defense Distributed’s claims. Moreover, even if the motions are evaluated wholly independently, the transfer motion cannot stand if the severance motion was wholly unjustified.”

On the merits, the panel majority finds the joint severance and transfer order to be an abuse of discretion. Fifth Circuit authority disfavors such orders because of the “expense and inconvenience of having to litigate in two disparate for a[,] . . . the possibility of inconsistent results” and the public “interest in the comparative speediness and cost-savings from utilizing a single forum for the issues arising out of one episode.” The panel majority summarizes that “in most multi-defendant cases—other than those involving forum selection clauses—severance and transfer makes sense only where the administration of justice would be materially advanced and a defendant in one district is not ‘so involved’ in the transferred controversy that the same issues would have to be litigated twice.”

Here, the panel majority finds 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 First Amendment is the sine qua non of this case.” Moreover, the “larger point ignored by the district court is that the principal claims against both defendants are temporally and factually intertwined to the extent that litigation in separate courts would largely overlap.”

Even taking the district court’s Rule 21 severance and Section 1404 transfer analyses separately, the panel majority finds the district court’s finding on both “plagued with error [that] therefore alone justify the rebuke of mandamus.” The panel majority holds that each of the five factors considered under Rule 21 weighed decisively against severance. And “[b] Because the severance order was a clear abuse of discretion, the district court likewise ‘lacked authority . . . to transfer a portion of the single action . . . for one purpose while retaining jurisdiction over the remainder.’”

Thus, “[c]orrectly assessed, the NJAG did not carry its burden to clearly demonstrate that transfer is clearly more appropriate than the Plaintiffs’ choice of forum. The district court erred legally and factually in virtually every aspect of this issue, and its decision, which has unnecessarily lengthened this litigation even more, represents a clear abuse of discretion for which mandamus is an appropriate remedy.”

The panel majority throughout the opinion barely masks its scorn for the judge’s handling of the proceedings below, or (indeed) its views on the ultimate merits of the case. The majority opinion complains in the opening pages of the opinion that “Defense Distributed has yet to secure a court decision condemning what appear to be flagrant prior restraints,” and directs that “[u]pon return of this case to the Western District of Texas, the court should entertain a motion for preliminary injunction expeditiously.” It also flatly criticizes what it sees as “abusive manipulation of federal court procedures” by the Attorneys General “in order to delay or altogether avoid meaningful merits consideration of Plaintiffs’ claims.”

Dissenting Judge Higginson criticizes what he sees as the majority’s “usurpation” to steer this case, contrary to the party-presentment rule, to its ultimate outcome. The dissent notes that plaintiffs did not seek the mandamus relief ordered by the panel and even “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.” In particular, plaintiffs “DDSA did not ask the New Jersey district court to return the case to the Western District of Texas, nor did they oppose consolidation with the pre-existing New Jersey case. Hearing no opposition from DDSA, the New Jersey district court then consolidated the cases in that court. That was over half a year ago.”

The dissent concludes: “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,” citing McKesson v. Doe, 141 S. Ct. 48 (2020).

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