Def. Distributed v. Bruck

• Decision Date: 01 April 2022
• Docket Number: 21-50327
• Citation: 30 F.4th 414
• Parties: DEFENSE DISTRIBUTED; Second Amendment Foundation, Incorporated, Plaintiffs—Appellants, v. Andrew J. BRUCK, Acting Attorney General of New Jersey, in his official and individual capacities, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

30 F.4th 414

DEFENSE DISTRIBUTED; Second Amendment Foundation, Incorporated, Plaintiffs—Appellants,

v.Andrew J. BRUCK, Acting Attorney General of New Jersey, in his official and individual capacities, Defendant—Appellee.

No. 21-50327

United States Court of Appeals, Fifth Circuit.

FILED April 1, 2022

Chad Flores, Esq., Hannah Roblyer, Attorneys, Beck Redden, L.L.P., Houston, TX, for Plaintiffs-Appellants.

Angela Cai, Office of the Attorney General for the State of New Jersey, Trenton, NJ, Alexander Hardiman, Esq., Attorney, Pillsbury Winthrop Shaw Pittman, L.L.P., New York, NY, Ronald Casey Low, Pillsbury Winthrop Shaw Pittman, L.L.P., Austin, TX, for Defendant-Appellee.

Before Jones, Elrod, and Higginson, Circuit Judges.

Edith H. Jones, Circuit Judge:

Since 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. Although Defense Distributed is still prevented from publishing,¹ the CAD files it published remain available to this day on countless other websites internationally. Defense Distributed has yet to secure a court decision condemning what appear to be flagrant prior restraints.²

The instant combined appeal and motion for mandamus relief stems from a district court order severing the case against one defendant, the Attorney General of New Jersey (NJAG),³ and transferring it to a federal court in New Jersey. We conclude that mandamus relief is appropriate in this unusual case. Accordingly, we direct the district court to request retransfer from its counterpart in New Jersey and order other relief in accordance herewith.

BACKGROUND

Two previous opinions of this court describe the litigation history surrounding Defense Distributed's publication of then-novel CAD files for a pistol that can theoretically be "printed" from a computer affixed to the proper equipment. See Defense Distributed v. Grewal , 971 F.3d 485, 488-90 (5th Cir. 2020) ; Defense Distributed v. U.S. Dep't of State , 838 F.3d 451, 454-58 (5th Cir. 2016) ; id. at 461-66 (Jones, J., dissenting). We quote from the more recent opinion:

Plaintiff Defense Distributed is a Texas company operated for the purpose of promoting popular access to firearms. To carry out this purpose, it produces and makes accessible information related to the 3D printing of firearms and publishes and distributes such information to the public. Plaintiff Second Amendment Foundation, Inc. ("SAF") is a nationwide, non-profit membership organization that "promotes the right to keep and bear arms by supporting education, research, publications, and legal efforts about the Constitution's right to privately own and possess firearms and the consequences of gun control." Across the nation, SAF members seek the digital firearms information created by Defense Distributed, circulate their own digital firearms information by utilizing Defense Distributed's facilities, and republish digital firearms information independently.

Defense Distributed began distributing files related to the 3D printing of firearms in December 2012. It did so by publishing files to its defcad.org and defcad.com websites and letting visitors freely download them. It also distributed digital firearms information via mail and at a brick-and-mortar public library in Austin, Texas. Defense Distributed's efforts were initially met with opposition from the United States Department of State.⁴ But, after a period of litigation, the parties reached a settlement agreement that granted Defense Distributed a license to publish its files.

Shortly thereafter, nine Attorneys General, including New Jersey Attorney General Grewal, filed suit on behalf of their respective states in the Western District of Washington to enjoin the State Department from authorizing the release of Defense Distributed's files. They argued that the State Department's license to Defense Distributed constituted an ultra vires about-face that violated the Administrative Procedure Act and jeopardized the states' statutory and regulatory schemes for firearms. The Western District of Washington quickly issued a temporary restraining order, followed closely by a nationwide preliminary injunction.⁵

Just before the Attorneys General sued in Washington, Defense Distributed and SAF brought the instant action in the Western District of Texas challenging select enforcement actions taken by the state Attorneys General. Of relevance to this appeal, Plaintiffs alleged these actions by Grewal: (1) sending a cease-and-desist letter threatening legal action if Defense Distributed published its files; (2) sending letters to third-party internet service providers based in California urging them to terminate their contracts with Defense Distributed; (3) initiating a civil lawsuit against Defense Distributed in New Jersey;⁶ and (4) threatening Defense Distributed with criminal sanctions at a live press conference. Further, these actions, coupled with the injunctive orders issued in the Washington litigation, have caused Defense Distributed to cease publication of its materials. The Plaintiffs asserted, inter alia , that these actions infringed the exercise of their First Amendment freedoms and constituted tortious interference with the State Department's settlement agreement.

Grewal moved to dismiss for lack of personal jurisdiction.⁷ The Plaintiffs, meanwhile, sought a preliminary injunction. After holding a hearing and considering the parties' arguments, the court granted Grewal's motion and dismissed the action without prejudice.

Defense Distributed v. Grewal , 971 F.3d at 488-89 (footnotes in original). Defense Distributed appealed. This court held that the NJAG is amenable to personal jurisdiction in Texas courts. Id. at 488. Accordingly, the court reversed and remanded for further proceedings. Id.

Following our remand to the district court, Defense Distributed amended its complaint to join the State Department as a defendant for its alleged failure to comply with a Settlement Agreement reached with Defense Distributed in 2018. Shortly after, the NJAG moved to sever Defense Distributed's case against him and transfer that portion of the case to a New Jersey federal court. The State Department opposed severance, as did Defense Distributed. Nonetheless, the district court obliged the NJAG by written order both severing and transferring the case against him.

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.

DISCUSSION

I. Appellate jurisdiction

We pretermit Defense Distributed's resort to the collateral order doctrine as a basis for appellate jurisdiction in this interlocutory appeal⁸ because, in this circuit, mandamus is the prescribed vehicle for reviewing rulings on transfers of cases pursuant to 28 U.S.C. § 1404(a). See In re Volkswagen of Am., Inc. , 545 F.3d 304, 309 (5th Cir. 2008) (en banc); In re Rolls Royce Corp. , 775 F.3d 671, 676-77 (5th Cir. 2014).

The twist in this case 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 In re Red Barn Motors, Inc. , 794 F.3d 481 (5th Cir. 2015), explained the path to a cognizable mandamus remedy. Id. at 483-84. The All Writs Act, 28 U.S.C. § 1651, empowers courts to issue writs of mandamus if the courts also have appellate jurisdiction, "although no appeal has been perfected." Roche v. Evaporated Milk Ass'n. , 319 U.S. 21, 25, 63 S. Ct. 938, 941, 87 L.Ed. 1185 (1943). Because of the transfer, the Texas transferor court can no longer enter an appealable order in the case. In re Red Barn , nevertheless, approved that "several circuits, where appropriate, have endorsed the method of directing the transferor district court to request that the transferee district court return the case." Id. at 484 (collecting cases). To be sure, to avoid friction with sister circuits, the court held that "if we even have the power to reverse such a transfer, we should exercise it only if faced with ‘a very extreme case.’ " Id. (citing In re Sw. Mobile Homes, Inc. , 317 F.2d 65, 66-67 (5th Cir. 1963) ). But intercircuit friction was reduced where the transferee court there, as here, stayed proceedings pending our appellate panel's decision. Id. The court concluded by requiring a party seeking relief from a transfer order to exercise diligence. Id. at 485. Because the petitioner had waited three months to file its mandamus petition, the writ was denied. Id.

In this case, of course, the notice of appeal was filed the day after the district court's order and mandamus relief formally sought within thirty-nine days while briefing was underway. Because In re Red Barn sets the standard, we have jurisdiction to consider the mandamus petition.

The NJAG asserts four objections to our jurisdiction. He asserts that In re Red Barn did not hold what we just stated it held; that other circuits would not allow a writ of mandamus where a case is transferred to another circuit; and that Defense Distributed was not diligent. Finally, he contends that because Defense Distributed may eventually challenge the transfer order in courts of the Third Circuit, the availability of appellate review disentitles him to an equitable writ. We find none of these arguments persuasive.

First, In re Red Barn denied the writ only for lack of petitioner's diligence. That conclusion would have been inappropriate had the panel concluded that mandamus is not available to challenge an out-of-circuit transfer order. The court's entire discussion of...