Defense Distributed v. Bruck

Case: 21-50327 Document: 00516263671 Page: 1 Date Filed: 04/01/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

April 1, 2022

No. 21-50327

Lyle W. Cayce

Clerk

Defense Distributed;

Second Amendment Foundation, Incorporated,

Plaintiffs—Appellants,

versus

Andrew J. Bruck, Acting Attorney General of New

Jersey, in his official and individual capacities

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:18-CV-637

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

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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.

1

To be more precise, Defense Distributed published the CAD files to the Internet

for a few months from December 2012 — May 2013 before the State Department claimed

that to do so violated International Traffic in Arms Regulations (“ITAR”). See Defense

Distributed v. U.S. Dep’t of State, 838 F.3d 451, 455 (5th Cir. 2016); id. at 461-63 (Jones, J.,

dissenting). The company also published to the Internet for five days in 2018 during a

litigation hiatus. Further, it has published the files by hosting them at a public library in

Austin, Texas, and by distributing USB drives and SD cards through the Postal Service.

To date, the CAD files are still not available on the internet free from all prior restraint. As

the Supreme Court declared, a “loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.

347, 373, 96 S. Ct. 2673, 2690 (1976). These Appellants’ First Amendment freedoms have

been restrained for years.

2

The injunction motion pending before the panel is denied as moot. This denial

does not imply that the motion lacks merit. The original preliminary injunction motion

before the district court was denied on the basis of an incorrect finding that the district

court lacked personal jurisdiction over the NJAG. Upon return of this case to the Western

District of Texas, the court should entertain a motion for preliminary injunction

expeditiously.

3

Gurbir Grewal was New Jersey’s Attorney General when this suit was filed. He

is succeeded by Andrew Bruck. For convenience, we refer to this defendant as the NJAG.

2

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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

3

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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

4

See Defense Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. 2016); id. at

462–76 (Jones, J., dissenting).

5

The Attorneys General later filed a motion for summary judgment, which the

district court granted in part. Washington v. U.S. Dep’t of State, 420 F. Supp. 3d 1130 (W.D.

Wash. 2019). On appeal, the Ninth Circuit found that the case was moot and thus

dismissed for lack of jurisdiction. Washington v. Defense Distributed, Nos. 20-35030 & 20-

35064, 2020 WL 4332902 (9th Cir. July 21, 2020).

6

That lawsuit was removed to federal court before being administratively

terminated in light of the nationwide injunction issued in Washington. The Plaintiffs have

4

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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

likewise sued in New Jersey, raising the same claims asserted in the case at bar. See Defense

Distributed v. Grewal, D.N.J. No. 3:19-CV-4753. That case is currently stayed pending

resolution of this one.

7

The other state Attorneys General also moved to dismiss, and the district court

granted their motions. On appeal, the Plaintiffs challenge only the judgment related to

Grewal.

5

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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 appeal 8

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

8

In re Rolls Royce Corp. asserted that our circuit has held that transfer orders do not

fall within the scope of the collateral order doctrine. 775 F.3d 671, 676 (5th Cir. 2014)

(citing Brinar v. Williamson, 245 F.3d 515, 517 (5th Cir. 2001)). However, other cases seem

to apply the doctrine to transfer orders. See In re Sepulvado, 707 F.3d 550, 552 (5th Cir.

2013); In re Bradford, 660 F.3d 226, 229 (5th Cir. 2011). We need not weigh into a potential

intra-circuit split.

6

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Milk Ass’n., 319 U.S. 21, 25, 63 S. Ct. 938, 941 (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

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transfer order. The court’s entire discussion of the writ, and a limitation

where intercircuit friction may occur, would have been unnecessary. Instead,

the court weighed the approaches of other circuits, noting that in particular

cases a circuit court exercised jurisdiction to vacate a completed intercircuit

transfer. See In re Red Barn, 794 F.3d at 484 n.6. This discussion would also

be extraneous had the court simply been uttering dicta rather than explaining

its rationale. And of course, the court noted that several circuits have

authorized mandamus relief in these circumstances. Id. Finally, there is no

“assuming arguendo” language that couches the court’s ruling on mandamus

in hypothetical terms. 9 In short, In re Red Barn’s procedural holding is not

predicated on dicta.

Second, other circuits have adopted the same approach. See, e.g., In

re Howmedica Osteonics Corp., 867 F.3d 390, 399-400, 411 (3d Cir. 2017)

(asserting jurisdiction to vacate intercircuit transfer order); In re Warrick,

70 F.3d 736, 739-40 (2d Cir. 1995) (asserting mandamus jurisdiction and

distinguishing In re Drabik, 246 F.2d 408 (2d Cir. 1957), as not justifying

denial of all relief “in these circumstances”); A.C. Nielsen Co. v. Hoffman,

270 F.2d 693, 695 (7th Cir. 1959) (concluding that the court has mandamus

jurisdiction over intercircuit transfer order). Each of these circuits has

applied mandamus to decide the propriety of intercircuit transfers. Although

the Tenth Circuit held that a completed intercircuit transfer divested it of

appellate jurisdiction, Chrysler Credit Corp. v. Country Chrysler, Inc.,

928 F.2d 1509, 1516-17 (10th Cir. 1991), that court went on to recognize that

“technically,” the district court should have deferred effectuating the

9

The court refers to the “potential availability” of the writ, but then cites the

Supreme Court’s substantive standard for granting or denying mandamus as applicable to

show that the writ sought by petitioners in In re Red Barn was not “appropriate under the

circumstances.” In re Red Barn, 794 F.3d at 484-85, 485 n.7 (quoting Cheney v. U.S. Dist.

Ct. for Dist. of Columbia, 542 U.S. 367, 381, 124 S. Ct. 2576, 2587 (2004)).

8

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transfer so that the parties could seek certification or “file a mandamus

petition.” Id. at 1520 n.9. See also In re Nine Mile Ltd., 673 F.2d 242 (8th Cir.

1982)(mandamus ordered where district court erroneously transferred

papers to consummate Section 1404 case transfer before appeal could be filed

in transferor district). Thus, the balance of circuit court authority, in

addition to the cases cited by In re Red Barn, favors jurisdiction in this case.

Third, the AG questions the diligence of Defense Distributed because

of its failure to seek an immediate stay in the district court or file an

immediate mandamus petition. Nothing in applicable precedent, however,

mandates the particular method by which a party disadvantaged by an out-of-

circuit transfer must bring that issue to the circuit court. Defense Distributed

filed its notice of appeal the day after the district court’s transfer order and

promptly sought relief in this court. The defendants and district court were

immediately placed on notice of Defense Distributed’s intent to challenge

the transfer in this court, and the actual transfer order was not docketed until

the following day. It sought mandamus relief in briefing to this court, filed

thirty-nine days after the court’s order. 10 The Appellants’ diligence

comports with this court’s emphasis on “diligence” in In re Red Barn and

with the timing of filings in In re Howmedica, 867 F.3d at 400.

Fourth, it is inaccurate to assert, as the NJAG does, that Defense

Distributed has adequate available alternatives for appellate court review of

the district court’s order, which render a mandamus remedy unavailable.

Unlike In re Red Barn, this case encompasses severance as a necessary

10

The NJAG’s contention that Defense Distributed cannot seek mandamus due to

technical noncompliance with FRAP Rule 21 is frivolous. Defense Distributed’s briefing,

procedurally and substantively, stated clearly the relief requested and grounds for seeking

mandamus relief.

9

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condition of the transfer. 11 On appeal, the Third Circuit could not review the

severance order, much less attempt to consolidate the case against the NJAG

with the case still pending in Texas against the State Department. Therefore,

on its face, this tandem order is effectively unreviewable in the transferee

circuit.

Moreover, if the potential Third Circuit appeal were (arbitrarily)

limited to the transfer order alone, a premier procedural treatise notes that

review in the transferee court seems illusory given the application of comity

and law-of-the-case principles. See 15 Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice

and Procedure [hereafter, Wright & Miller] § 3846 (4th ed.

2021); id. at § 3855 (similar). The likelihood of securing a retransfer by the

transferee district court seems equally constrained. But even if these

propositions are arguable, see SongByrd, Inc. v. Estate of Grossman, 206 F.3d

172, 178 n.7 (2d Cir. 2000) (collecting cases), the SongByrd decision, like that

of other courts, acknowledges the availability of mandamus review in the

Fifth Circuit. Id. at 176-77, 176 n.5. 12

11

The Red Barn district court transferred an entire case, with two defendants one

of which objected strenuously, to Indiana. 794 F.3d at 483.

12

See also Hill v. Henderson, 195 F.3d 671, 676-77 (D.C. Cir. 1999) (“Transfer

orders under § 1404 are not final appealable orders, nor, generally speaking, reviewable

collateral orders. Commonly, however, courts of appeal in the circuit of origin entertain

mandamus petitions to review such orders . . . . A possible explanation for finding transfer

orders nonreviewable in the transferee circuit is that such orders are usually effectively

subject to immediate review via mandamus in the circuit of the transferring court.”)

(citations omitted); Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984) (concluding

that “mandamus review is appropriate” over a transfer order after deciding it did not fall

within the collateral order doctrine, and recognizing the general rule that “the Plaintiff

could petition the transferor appellate court for a writ of mandamus blocking the transfer”)

(citation omitted).

10

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Finally, the fact that the district court here granted the transfer, rather

than denying it, makes no difference. In this circuit, neither In re Rolls Royce

nor In re Volkswagen limited writs of mandamus according to whether the

district courts granted or denied transfer. 13 And in Howmedica, the Third

Circuit applied mandamus to vacate the order granting transfer to the Central

District of California. In re Howmedica, 867 F.3d at 411. Whatever the

possibility of review in the transferee circuit, this has not been regarded as

sufficiently effective to preclude writs of mandamus in the transferor court. 14

II. Mandamus

A writ of mandamus is “a drastic and extraordinary remedy reserved

for really extraordinary cases.” In re Depuy Orthopaedics, Inc., 870 F.3d 345,

350 (5th Cir. 2017). This court will grant a petition for a writ of mandamus

only if the petitioner satisfies three conditions. First, the petitioner must

show that there are “no other adequate means to attain the relief he desires.”

Cheney v. U.S. Dist. Court, 542 U.S. 367, 380, 124 S. Ct. 2576, 159 L.Ed.2d

459 (2004). Second, the court “must be satisfied that the writ is appropriate

under the circumstances.” Id. at 381, 124 S. Ct. 2576. And third, the

petitioner must show a “clear and indisputable right to the writ.” Id.

Defense Distributed easily satisfies the first two conditions for

mandamus relief. As we just explained, the Third Circuit transferee court

cannot, under normal appellate standards, exercise appellate review over

13

In In re Volkswagen, the en banc court emphasized that review of a transfer order

following final judgment was not an “adequate remedy,” and observed that “venue

transfer decisions are rarely reviewed.” 545 F.3d at 319.

14

This court’s decision in Persyn v. United States, 935 F.2d 69 (5th Cir. 1991), offers

no help to the NJAG. The court there explicitly stated that seeking retransfer is not an

adequate alternative to appellate review where, as here, both courts have subject-matter

jurisdiction. Id. at 73.

11

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either the severance or transfer orders of this Western District of Texas. E.g.,

In re Red Barn, at 484-85.

Second, granting the writ would be “especially appropriate where the

issues implicated have importance beyond the immediate case.” In re

JPMorgan Chase & Co., 916 F.3d 494, 499 (5th Cir. 2019) (quoting In re

Lloyd's Register N. Am., Inc., 780 F.3d 283, 294 (5th Cir. 2015); and In re

Volkswagen, at 319 (internal quotation marks omitted). Before this court are

“issues that implicate not only the parties' interests but those of the judicial

system itself.” United States v. Bertoli, 994 F.2d 1002, 1014 (3d Cir. 1993).

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.

What the parties most strenuously debate is whether Defense

Distributed has shown a clear and indisputable right to the writ or a clear

abuse of discretion by the district court. See Cheney at 281, 2576; see also In

re Volkswagen, at 308. “A district court by definition abuses its discretion

when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100,

116 S. Ct. 2035, 2047 (1996) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 405, 110 S. Ct. 2447, 2461 (1990) (“a district court would necessarily

abuse its discretion if it based its ruling on an erroneous view of the law”)).

We conclude 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. See, e.g., Chrysler Credit Corp. v. Country Chrysler, 928 F.2d 1509

(10th Cir. 1991); In re Nine Mile Ltd., 673 F.2d at 242 (because transfer order

12

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was procedurally incorrect, mandamus ordered district court to request

return of the case from the transferee court).

A. Joint Severance and Transfer

To explain this conclusion, we remind that the Federal Rules of Civil

Procedure were enacted to ensure “the just, speedy and inexpensive

determination of every action and proceeding.” Fed. R. Civ. P. 1. To be more

precise, Fed. R. Civ. P. 21, which authorizes severance of parties, and 28

USC § 1404(a), governing transfers among federal district courts, “are

[both] designed to facilitate just, convenient, efficient and less expensive

determination.” In re Nintendo of America, Inc., 756 F.3d 1363, 1365 (Fed. Cir.

2014). Although a district court has broad discretion to sever parties that

were otherwise properly joined by a Plaintiff, 15 “[u]nder the Rules, the

impulse is toward entertaining the broadest possible scope of action

consistent with fairness to the parties; joinder of claims, parties and remedies

is strongly encouraged.” United Mine Workers v Gibbs, 383 U.S. 715, 724,

86 S. Ct. 1130, 1138 (1966).

On two occasions, this court has discussed standards for joint

severance and transfer motions brought by a defendant or defendants, the

effect of which would require a Plaintiff to split its case into two different

federal courts. In a well-known opinion, this court noted that “our

jurisprudence suggests that the severance inquiry is different—and more

focused on judicial efficiency—when it is combined with a section 1404

motion to transfer than when the severed case would remain in the original

judicial district.” In re Rolls Royce, 775 F.3d at 680. 16 The court quoted at

15

Brunet v. United Gas Pipeline Co., 15 F.3d 500, 505 (5th Cir. 1994).

16

Judge Higginbotham’s opinion in Rolls Royce has been cited frequently for its

application of sever/transfer considerations when one of the parties has a forum selection

13

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length Judge Alvin Rubin’s opinion explaining the problems that can arise in

a case involving multiple defendants when claims against one or some

defendants are severed and transferred while claims against the remaining

defendant are retained in the original court. Id., (quoting Liaw Su Teng v.

Skaarup Shipping Corp., 743 F.2d 1140, 1148-49 (5th Cir. 1984)). Judge

Rubin’s list of parameters that should inform this type of proposed transfer

bears repeating:

But before thus putting asunder what the Plaintiff has joined,

the court must weigh carefully whether the inconvenience of

splitting the suit outweighs the advantages to be gained from

the partial transfer. It should not sever if the defendant over

whom jurisdiction is retained is so involved in the controversy

to be transferred that partial transfer would require the same

issues to be litigated in two places. [See Korbel, The Law of

Federal Venue and Choice of the Most Convenient Forum,

15 Rutgers L.Rev. 607 (1961); Masington, Venue in the Federal

Courts—The Problem of the Inconvenient Forum, 15 U.Miami

L.Rev. 237 (1961); Note, 46 Cornell L.Q. 318 (1961)]. That

being the situation here, the district court should not have

severed the claims if there were any alternative. Manifestly,

the Plaintiffs will suffer some inconvenience if they are forced

to litigate their claims in two courts, half the world apart from

each other, with not only the consequent added expense and

inconvenience but also the possible detriment of inconsistent

results. A single forum is also most suitable for determining

possible counter- and cross-claims. The public also has an

interest in facilitating a speedy and less-expensive

determination in one forum of all of the issues arising out of one

episode.

clause. However, the court’s discussion about severance and transfer orders in

multidefendant cases draws from Liaw Su Teng and other non-forum selection clause cases

and is thus more broadly applicable here.

14

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Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148–49 (5th Cir.

1984), overruled on other grounds, In re Air Crash Disaster Near New Orleans,

La., on July 9, 1982, 821 F.2d 1147 (5th Cir. 1987).

Several points made in Judge Rubin’s opinion are common to this

species of joint severance and transfer motions. A court must “weigh

carefully” the comparative inconvenience of splitting the suit versus the

advantages to be gained from a partial transfer. It should not sever if the

defendant not transferred is “so involved” in the controversy transferred to

another court that partial transfer would require the same issues to be

litigated in two places. “Manifestly,” Plaintiffs are disadvantaged by the

expense and inconvenience of having to litigate in two disparate fora and by

the possibility of inconsistent results. And the public has an interest in the

comparative speediness and cost-savings from utilizing a single forum for the

issues arising out of one episode. See also 15 Wright & Miller, § 3845,

at 86 (echoing these factors).

Other courts have agreed with Liaw Su Teng, and specified that in

analyzing severance and transfer motions, “[b]efore effecting such a

severance, a judge should weigh the convenience to the parties requesting

transfer against the potential inefficiency of litigating the same facts in two

separate forums.” White v. ABCO Eng'g Corp., 199 F.3d 140, 144 (3d Cir.

1999). Previously, the Third Circuit, explicitly endorsing Judge Rubin’s

view, denied severance and transfer where the defendant not transferred was

more than “indirectly connected” to the Plaintiff’s dispute with the

defendant seeking transfer. Sunbelt Corp. v. Noble, Denton and Assoc., Inc.,

5 F.3d 28, 34 (3d Cir. 1993). The Second Circuit, which pioneered using

severance and transfer as a permissible strategy of case management,

nonetheless held it appropriate only “where the administration of justice

would be materially advanced….” and where a defendant in one district is

15

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only “indirectly connected” to the claims that will be transferred to the other

district. Wyndham Assoc. v. Bintliff, 398 F.2d 614, 618-19 (2d Cir. 1968). 17

The district court here quoted Rolls Royce, but it misperceived and

thus misapplied this court’s explanation about “judicial efficiency.” In the

above cases, courts were not deciding ordinary Rule 21 severance motions, in

which parties or claims may be split while the disputes are maintained before

the same court. 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 rule emanating from Rolls Royce and Liaw

Su Teng is that in most multidefendant 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. 18 Consequently, the district court

erred legally in finding that the State Department is only indirectly connected

17

Wright & Miller explains that severance and transfer of claims or parties

enabled courts to avoid the rule that “[i]n suits against multiple defendants, transfer is

proper only to a district in which all of them are subject to personal jurisdiction and in which

venue is proper for an action against all of them.” Wright & Miller § 3845, at 85.

The treatise also endorses the cautious use of such orders. Id. at 86-87.

18

See also Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26, 80 S. Ct. 1470,

1474 (1960)(“To permit a situation in which two cases involving precisely the same issues

are simultaneously pending in different District Courts leads to the wastefulness of time,

energy and money that Sec. 1404(a) was designed to prevent. Moreover, such a situation

is conducive to a race of diligence among litigants for a trial in the District Court each

prefers”).

16

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No. 21-50327

to claims pled against the NJAG 19 and in failing to find that the administration

of justice would not be materially advanced by transfer.

The direct connection between the Plaintiffs’ claims against these two

defendants contradicts the district court’s artful dissection of Defense

Distributed’s Second Amended Complaint. The 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. 20 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.

According to the district court, not all of Plaintiffs’ claims involve the First

Amendment. The court overlooked Plaintiffs’ claims that directly involve

both Defendants in the settlement agreement breach and in censorship under

the Second Amendment and Due Process clause. 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.

19

The district court found the factual overlap between the claims pled against each

defendant is “minuscule;” and that the claims have no “logical connection” because the

defendants’ actions occurred “in different places and at different times.”

20

The First Amendment claims, moreover, are complex factually and legally, as

they involve questions about compelling interest, narrow tailoring, and numerous types of

digital firearms information that Defense Distributed has created.

17

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No. 21-50327

The other 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. A

paraphrase of the facts alleged in the Second Amended Complaint is

demonstrative. Just when the Plaintiffs, after several years of litigation,

thought they had obtained relief from a signed settlement agreement with the

State Department, the NJAG loudly led a bevy of states in opposition.

Within a span of about six months, he filed suit in Washington state, even

more remote from New Jersey than Texas, and forced the joinder of Defense

Distributed as a defendant there. He evidently thought the parties’ fates

were legally and factually connected when he sought and obtained an

injunction expressly to prevent the State Department from completing the

settlement with Plaintiffs. The NJAG kept up public pressure against the

settlement with threats of civil and criminal punishment against Plaintiffs’

president Cody Wilson personally. At this time, the State Department opted

not to complete the settlement. Accordingly, the State Department did not

modify relevant federal regulations, disavowed the license and exemption

from regulations it had promised Defense Distributed, and refused to appeal

adverse decisions by the Washington federal court. The extent to which the

NJAG’s campaign influenced the State Department’s alleged breaches is

relevant to the claims against both defendants. At the same time, the NJAG’s

seminal place in the litigation is a major, though far from the only facet of his

conduct that was designed to derail the settlement and independently to

restrain Plaintiffs’ exercise of free speech. Plaintiffs’ essential claims for

First Amendment violations, breach of the settlement agreement, and the

NJAG’s interferences cannot be understood by a factfinder without

18

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No. 21-50327

investigating and telling the whole story. Similarly, having to tell the same

story in two courts would abuse Plaintiffs and the judicial process. 21

Also plain from the complaint is that the subsidiary claims are

dependent upon the primary claims identified above. To cite one instance,

Defense Distributed pleads that the State Department violated the

Administrative Procedure Act in various aspects of its settlement agreement

breach. The Washington State litigation was also based on alleged violations

of the Administrative Procedure Act. The State Department’s

noncompliance may have been caused by the mere fact of the Washington

State litigation or by the imperative of complying with that court’s injunctive

decrees or by the NJAG’s public campaign against the settlement. Sorting

out cause and effect for these claims demands a single factfinder and judicial

resolution.

The district court also erred legally by failing to conclude that the

administration of justice would not be materially advanced by transfer of the

case against the NJAG to New Jersey. See Rolls Royce, 775 F.3d at 680. The

burden rests on the NJAG as the movant to demonstrate that proposition,

and he did not succeed. First, the public interest in achieving a single court’s

ruling on Plaintiffs’ First Amendment claims cannot be overstated.

Government instigated censorship of constitutionally protected speech is

abhorrent to self-government; courts have a duty to prevent illegal

censorship. But severance and transfer enhances the risk of conflicting

rulings, which would seriously injure the Plaintiffs and throw the law in this

important constitutional area into national disarray for several years.

21

The NJAG interjects that a sovereign immunity defense precludes any tortious

interference claim asserted by Plaintiffs. Plaintiffs dispute the assertion. This merits

defense has no place in our analysis.

19

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No. 21-50327

Second, because of the complex factual interactions among Plaintiffs

and these Defendants, discovery and trial for the principal claims will require

many of the same witnesses. No efficiency exists from conducting two fact-

based litigations half a continent apart. On the other hand, no efficiency is

gained by having two courts decide the separate subsidiary claims against

each Defendant. Such claims are largely legal in nature, overlapping in

several instances, and best resolved on briefing to a single court that has

gained familiarity with the intricacies of Plaintiffs’ dozens of digital firearms

files and background materials that could be published to the internet and in

New Jersey. There is no obvious efficiency advantage, much less materially

enhanced judicial economy from forcing Defense Distributed’s case into two

separate cases.

The necessity of denying severance conjoined with transfer is

confirmed by proper application of Rolls Royce and Liaw Su Teng. In addition,

the district court’s separate and independent Rule 21 severance and Section

1404 transfer analyses are plagued with error and therefore alone justify the

rebuke of mandamus. We turn first to severance.

B. Severance

In the Fifth Circuit, the accepted basis for Rule 21 severance analysis

considers five factors: (1) whether claims arise out of the same transaction,

occurrence, or series of transactions or occurrence; (2) whether the claims

present common questions of law or fact; (3) whether settlement of the

claims or judicial economy would be facilitated; (4) whether prejudice would

be avoided if severance were granted; and (5) whether different witnesses

and documentary proof are required for the separate claims.” See Rolls Royce,

775 F.3d at 680; Paragon Office Servs., LLC v. UnitedHealthcare Ins. Co.,

2012 WL 4442368, (N.D. Tex. Sept. 26, 2012); Parker v. Louisiana Dep't of

Pub. Safety & Corr., 2019 WL 5103811 (M.D. La. Oct. 11, 2019); Calhoun v.

20

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No. 21-50327

WA DHS Child Support Div., 2018 WL 2865315 (N.D. Tex. June 11, 2018);

Pouncie v. Dlorah, Inc., 2015 WL 5178401 (N.D. Tex. Sept. 4, 2015); Cty. of

Travis v. Purdue Pharma, LP, 2018 WL 1518848 (W.D. Tex. Mar. 28, 2018).

First, as has been explained, the district court misconstrued the

Second Amended Complaint. Relevant to the severance factors, it

erroneously found that there was no common transaction or occurrence or

series of transactions or occurrences giving rise to the Plaintiffs’ claims

against the Defendants. The district court compounded its error by stating

that “the parties all acknowledge that the Washington Suit” had nothing to

do with the settlement agreement between Defense Distributed and the State

Department. This assertion is contradicted by the record. As the NJAG put

it in his complaint in the Washington lawsuit, “in sum, the Government’s

covert agreement to deregulate the CAD files by way of the Settlement

Agreement—which culminated in the enactment of the “temporary

modification” on July 27, 2018—are final agency decisions that not only

failed to comply with procedural requirements, but that have far-reaching

implications for national security and the safety and security of the State and

people of Washington.” The district court for the Western District of

Washington also stated that at the heart of its decision to grant a TRO, as

requested by the NJAG, was the manner in which the State Department

entered into and followed through on its settlement agreement with Defense

Distributed. State v. United States Dep't of State, 315 F. Supp. 3d 1202, 1205

(W.D. Wash. 2018). Defense Distributed’s claims against both Defendants

fundamentally concern the State Department’s settlement agreement and

the NJAG’s efforts after it was signed to prevent its meaningful

implementation. The interference claims against the NJAG cannot be

proven without initial proof that the settlement agreement was breached.

These transactions and occurrences both perpetuated the violation of

Plaintiffs’ First Amendment rights. The occurrences and transactions

21

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No. 21-50327

involved in Plaintiffs’ principal claims are thus logically, factually, and

temporally inextricable. 22

The district court also misapplied the second factor of the severance

analysis in determining that Plaintiffs’ claims do not involve common issues

of law or fact. The court put the matter exactly backward, as it stated that

although “many of Plaintiff’s claims” arise from alleged First Amendment

violations, “this is not the case for all of Plaintiffs’ claims….” To the

contrary, a court is required to determine whether “there is at least one

common question of law,” not whether all of the claims in a case involve the

same question of law. Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d

516, 521 (5th Cir. 2010). Further, the district court incorrectly analyzed

“judicial economy” as applied to joint severance and transfer motions:

according to Rolls Royce and Liaw Su Teng, severance is inappropriate where

two parties are as inextricably entwined in the litigation as these defendants.

The NJAG’s and district court’s other assertions about the efficiency

benefits from severance ring particularly hollow in light of the course of the

litigation. For example, bifurcation and transfer of the case, the district court

states, would be an economical act since there is already a case in New Jersey

dealing with separate claims against the NJAG by Defense Distributed. But

Defense Distributed brought that case as a self-protective measure only after

22

The district court asserted that the claims against the NJAG largely stem from

the 2018 cease-and-desist letter, public comments by the NJAG directed at dissemination

of Plaintiffs’ materials in New Jersey, and the law that criminalizes such dissemination.

This is correct only to the extent that it highlights the similarity in Plaintiffs’ First

Amendment claims against both Defendants, which, though based on different facts, center

on the same publishable materials and demand uniform resolution.

Further, although we need not consider whether the NJAG is a necessary party to

the litigation in the court below, see Fed. R. Civ. P. 19, he and his officials are plainly

material witnesses to the Washington litigation, and the State Department’s assertions that

its settlement may have been motivated by actions of the NJAG cannot be discounted.

22

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No. 21-50327

the district court below had (erroneously) dismissed the NJAG from suit in

the Western District of Texas. The district court cannot claim judicial

efficiency is furthered when its decision directly caused the inefficient filing

of that second suit. Nor is the timing of the district court’s

severance/transfer order persuasive, as it followed directly on the heels of

this court’s decision upholding jurisdiction in the Western District of Texas.

Judicial economy is also less than credibly asserted by the NJAG, who chose

to travel to the West Coast to pursue its campaign against Defense

Distributed while simultaneously defending this case and pursuing litigation

and other measures in New Jersey. The multiplication of venues has

disserved judicial economy. At this point, after essentially seven years of

litigation in Texas and at least two other venues over Defense Distributed’s

publications, to split this case into two parallel litigation tracks before two

courts is beyond inefficient. 23

The above discussion also shows why the court erred in regard to the

final relevant factor involved in its severance analysis: finding no prejudice

to Defense Distributed by splitting its case. 24 See Acevedo, 600 F.3d at 521.

23

The final factor in severance analysis, whether the claims require different

witnesses and sources of proof, is neutral. Plaintiffs will have to make the same proof in

two proceedings about the protected nature of its information, while there is only some

overlap between the witnesses for defendants.

24

The district court embroiders its reasoning on prejudice by implying that

Plaintiffs’ challenge to NJ Stat. Sec 2C:39-9(l)(2), a claim explicitly pled in their Second

Amended Complaint, would fail for lack of personal jurisdiction over the NJAG. We do

not agree. Plaintiffs’ original allegations included threats by the NJAG to prosecute

Defense Distributed and Cody Wilson to the maximum extent allowed by state law. That

the legislature added a particular device to enhance such prosecution, in the form of a

criminal statute passed during the pendency of this case, is comprehended in the scope of

the original complaint and the briefing in the district court and this court. And finally, as

we noted in the previous opinion, the NJAG waived personal jurisdiction by not asserting

that defense. Def. Distributed v. Grewal, 971 F.3d at 496.

23

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No. 21-50327

The court’s legal and factual errors so permeate its severance order as to

render it a clear abuse of discretion.

C. Transfer Order

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.”

Chrysler Credit Corp., 928 F.2d at 1519; In re Nine Mile Ltd., 673 F.2d at 244.

But even setting aside severance as impermissible, any transfer of this case,

in whole or in part, constitutes an abuse of the district court’s discretion.

A party seeking a transfer under Section 1404(a) “must show good

cause” by “clearly demonstrat[ing] that a transfer is ‘[f]or the convenience

of parties and witnesses, in the interest of justice.’” In re Volkswagen of Am.,

Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quoting 28 U.S.C. § 1404(a))

(emphasis added). “When the transferee venue is not clearly more

convenient than the venue chosen by the Plaintiff, the Plaintiff's choice

should be respected.” Id. 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. In other words, the

standard is not met by showing one forum is more likely than not to be more

convenient, but instead the party must adduce evidence and arguments that

clearly establish good cause for transfer based on convenience and justice.

See e.g. id. 314-315.

Courts are required to assess four private interest factors and four

public interest factors pertinent to a transfer motion. See In re Volkswagen,

545 F.3d at 315. The private interest factors are: “(1) the relative ease of

access to sources of proof; (2) the availability of compulsory process to

secure the attendance of witnesses; (3) the cost of attendance for willing

24

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No. 21-50327

witnesses; and (4) all other practical problems that make trial of a case easy,

expeditious and inexpensive.” Id. The public interest factors are discussed

below. As with its discussion of Rule 21 severance, the district court abused

its discretion factually and legally in weighing the transfer factors against the

standard.

Regarding the first private interest factor, the movant has the burden

to establish good cause, which requires an actual showing of the existence of

relevant sources of proof, not merely an expression that some sources likely

exist in the prospective forum. In re Volkswagen, 545 F.3d at 315. Here,

however, the district court erred by uncritically accepting the NJAG’s

conclusory assertions that “the sources of proof relevant to these issues

(including any non-party witnesses) are all in New Jersey.” Defense

Distributed, 1:18-cv-00637, Dkt. 121, at 15–16 (W.D. Tex.); See e.g. Hammers

v. Mayea-Chang, 2019 WL 6728446, at *7 (E.D. Tex. Dec. 11, 2019). The

NJAG’s conclusory assertions lack that necessary proof, while the Plaintiffs

identified proof, documents, and witnesses that are located in Texas and

support maintaining Texas as the forum. 25 Weighing the first factor as

“neutral” in the face of the NJAG’s lack of proof and Plaintiffs’ proffer

abused both logic and the court’s discretion. Additionally, the district court

legally erred by introducing a “prejudice” consideration into the first factor.

The first private interest factor does not ask whether a transfer would

25

For example, Defense Distributed provided details on how its activities,

including research, design, development, manufacturing, and publishing, occurred in and

around Austin, and how it also published the same computer files with digital firearms

information at a brick-and-mortar public library in Austin, Texas by hosting the computer

files in formats that patrons could access via computer workstations. The computer servers

on which Defense Distributed hosts these files for publication to the internet are also

located in Texas.

25

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No. 21-50327

“prejudice” the non-moving party, but which forum provides easier access

to sources of proof. Volkswagen, 545 F.3d at 315.

Access to compulsory process for non-party witnesses is the gravamen

of the second private interest factor. See e.g. Garrett v. Hanson, 429 F. Supp.

3d 311, 318 (E.D. Tex. 2019). Neither the NJAG nor the district court

identified any witness who is subject to compulsory process in New Jersey

but not in Texas. Yet the court inexplicably weighed this factor not as neutral

but in favor of transfer. “To show good cause[, however] means that a

moving party . . . clearly demonstrates” the appropriateness of transfer.

Where there is no demonstration by the movant, let alone a clear one, the

court cannot weigh a factor against the non-movant and in favor of transfer.

Besides lacking support in the record, the district court’s weighing of this

factor in favor of New Jersey does not “reflect[] the appropriate deference to

which the Plaintiff’s choice of venue is entitled,” In re Volkswagen, 545 F.3d

at 315. 26

The fourth private interest factor addresses “all other practical

problems that make trial of a case easy, expeditious and inexpensive.” In re

Volkswagen, at 315. The district court weighed this factor in favor of the

NJAG because absent transfer, it would have to decide whether it has

personal jurisdiction over the NJAG to adjudicate Defense Distributed’s

allegedly newly raised claim challenging the constitutionality of NJ Stat.

§ 2C:39-9(l)(2). But as we discussed above that issue is not so novel as to

require a separate analysis of personal jurisdiction. The district court itself

previously recognized that “the instant action concern[ed]” The NJAG’s

26

The third private interest factor, concerning the cost for willing witnesses, is

agreed to be neutral, as the district court found.

26

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No. 21-50327

“criminal enforcement actions,” such as “threatening to enforce a criminal

law against Defense Distributed.” 364 F.Supp. 3d, at 686. 27

The public interest factors bearing on transfer are: “(1) the

administrative difficulties flowing from court congestion; (2) the local

interest in having localized interests decided at home; (3) the familiarity of

the forum with the law that will govern the case; and (4) the avoidance of

unnecessary problems of conflict of laws [or in] the application of foreign

law.” See In re Volkswagen, at 315. No party disputes that the first factor is

neutral.

As an initial matter, the district court erroneously treated the second

and the third factors together. The district court reasoned that because some

of Plaintiffs’ claims against the NJAG implicate New Jersey’s criminal law,

§ 2C:39-9(l)(2), the District of New Jersey has a greater interest in testing

the constitutionality of that statute and is better equipped than Texas courts

to evaluate it. The two factors, however, are distinct in the law for good

reason.

The second public interest factor, which focuses on the local interest

in having localized interests decided at home, “most notably regards not

merely the parties’ significant connections to each forum writ large, but

rather the significant connections between a particular venue and the events

that gave rise to a suit.” In re Apple Inc., 979 F.3d 1332, 1345 (Fed. Cir. 2020).

Important considerations include the location of the injury, witnesses, and

the Plaintiff’s residence. See Volkswagen, 545 F.3d at 317–18; Zurich Am. Ins.

Co. v. Tejas Concrete & Materials Inc., 982 F. Supp. 2d 714, 727 (W.D. Tex.

27

And this court noted that Plaintiffs’ claims encompass the “criminal actions”

that the NJAG threatened “at a live press conference.” Defense Distributed, 971 F.3d at

489. Appellants’ brief to this court confirms that Section 2C:39- 9(l)(2) was the sole legal

basis for the threats.

27

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No. 21-50327

2013). Indeed, “[t]he place of the alleged wrong is one of the most important

factors in venue determinations.” Watson v. Fieldwood Energy Offshore, LLC,

181 F. Supp. 3d 402, 412 (S.D. Tex. 2016).

Texas’s “local interest in having [the] localized interests” this case

implicates “decided at home” cannot be overstated. Volkswagen, 545 F.3d at

315. The controversy over New Jersey’s statute is not “localized” to New

Jersey. The AG has “projected himself across state lines and asserted a

pseudo-national executive authority” in Texas by seeking “to bar Defense

Distributed from publishing its materials anywhere,” chilling its speech, and

reducing “Texans’ access to [its] materials.” Grewal, 971 F.3d at 492-95. In

these circumstances, the aggressor state’s interest is considerably diminished

because the Texas court’s ruling will have no direct effect on New Jersey’s

citizens. If § 2C:39-9(l)(2) were declared unconstitutional in this litigation,

that ruling would preclude the NJAG’s enforcing the statute against these

Plaintiffs. At least the NJAG would not necessarily be prevented from

enforcing the law in New Jersey. Thus, the strength of New Jersey’s interest

in having this case decided at home is considerably less than that of Texas

citizens whose primary recourse, as targets of this litigation in Texas, is a suit

in Texas. And Texas courts have a significant interest in assessing the

constitutionality and extraterritorial impact of New Jersey’s criminal law 28,

especially a law that criminalizes speech.

The familiarity of the forum with the law that will govern the case was

also improperly weighed in favor of New Jersey. “Federal judges routinely

apply the law of a State other than the State in which they sit….” This court

is “not aware of any exceptionally arcane features of Texas, [New Jersey, or

28

The New Jersey statute applies extraterritorially because it criminalizes

“distribution” of speech into the state, and “distribute” is defined to include any act of

“mak[ing] available via the internet or by any other means.” N.J. Stat. 2C:39-9(l)(2).

28

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No. 21-50327

constitutional law,] that are likely to defy comprehension by a federal judge

sitting in [Texas].” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of

Texas, 571 U.S. 49, 67–68, 134 S. Ct. 568, 584 (2013). Moreover, New Jersey

courts’ familiarity with New Jersey law produces no meaningful efficiency

rendering New Jersey a more convenient forum. Defense Distributed

pursues no claims arising under New Jersey law. Plaintiffs’ challenge to

Section 2C:39-9(l)(2) is founded in the First Amendment and the extreme

breadth of this criminal law, which purports to render illegal any speech that

reaches the state from other states. Plaintiffs lodge other claims against the

NJAG predicated on other federal constitutional provisions. Thus, the

Texas court’s superior familiarity with Defense Distributed’s Texas law

claims, and the fact that the New Jersey court would be bound to Texas law

concerning such claims, see Country Chrysler, 928 F.2d at 1516, more than

offsets any efficiencies that might be gained from New Jersey courts’

familiarity with New Jersey law.

The last public interest factor seeks to avoid “unnecessary problems

of conflict of laws [or in] the application of foreign law.” Volkswagen,

545 F.3d at 315. There are no risks of such a conflict here. Defense

Distributed brought primarily federal law claims; and the state law claims

involve Texas law, not New Jersey law.

The district court repeatedly weighed the transfer factors against

Plaintiffs by asserting that they could not be disadvantaged by transfer

because they had “voluntarily” instituted additional litigation in New Jersey

covering similar issues against the NJAG. This is incredible. Plaintiffs filed

suit in New Jersey only because this district court had erroneously closed the

door to their suit in Western District of Texas. The currently stayed

litigation in New Jersey has no legitimate bearing against Plaintiffs’ original

choice of forum.

29

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No. 21-50327

Correctly 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.

Conclusion

For the foregoing reasons, we conclude that the district court’s order

severing and transferring of the claims against the NJAG to the District of

New Jersey was a clear abuse of discretion giving rise to an appropriate

exercise of the court’s mandamus power.

A writ of mandamus shall issue herein directing the district court to:

(1) Vacate its order dated April 19, 2021 that severed Defense

Distributed’s claims against the NJAG and transferred them to the United

States District Court for the District of New Jersey;

(2) Request the District of New Jersey to return the transferred case

to the Western District of Texas, Austin Division; and,

(3) After return, to reconsolidate Defense Distributed’s case against

the NJAG back into the case still pending against the State Department.

The petition for writ of mandamus is hereby GRANTED.

30

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No. 21-50327

Stephen A. Higginson, Circuit Judge, dissenting:

“Countless expressions can be found in the jurisprudence to support

the black-letter proposition that mandamus is an extraordinary remedy for

extraordinary causes.” United States v. Denson, 603 F.2d 1143, 1146 (5th Cir.

1979) (Rubin, J.). The Supreme Court cautioned long ago that

“[m]andamus, prohibition and injunction against judges are drastic and

extraordinary remedies . . . reserved for really extraordinary causes.” Ex

parte Fahey, 332 U.S. 258, 259-60 (1947). As we have said,

In recognition of the extraordinary nature of the writ, we

require more than showing that the court misinterpreted the

law, misapplied it to the facts, or otherwise engaged in an abuse

of discretion. And even reversible error by itself is not enough

to obtain mandamus. Rather, we limit mandamus to only

“clear abuses of discretion that produce patently erroneous

results.”

In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 290 (5th Cir. 2015) (quoting

In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)).

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. 1 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.

First, Plaintiffs-Appellants Defense Distributed, the Second

Amendment Foundation and Conn Williamson (hereafter DDSA) never

properly requested the mandamus relief the majority has issued. Compare

FED. R. APP. P. 21(a), with Notice of Appeal, Defense Distributed, No. 21-

1

If it takes us more than half a year to explain what the district court did wrong, it

is doubtful the court’s error was a clear abuse of discretion. See Volkswagen, 545 F.3d at 311.

31

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No. 21-50327

50327 (5th Cir. Apr. 23, 2021), and Brief of Appellants, Defense Distributed,

No. 21-50327 (5th Cir. June 17, 2021). And as DDSA 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. Oral Argument at 4:48, Defense Distributed, No. 21-50327 (5th

Cir. Aug. 3, 2021). 2

A second obstacle is that our court has no authority to compel a federal

district court in New Jersey to return a case it received and docketed on April

20, 2021, above all when, over seven weeks later, unopposed by DDSA, that

district court took the additional step of consolidating the case it received

with its pre-existing, parallel litigation, which DDSA itself filed in 2019. See

In re Red Barn Motors, Inc., 794 F.3d 481, 484-85 (5th Cir. 2015). Here is the

pertinent chronology: After the district court granted the motion to transfer,

DDSA did not, in district court, seek a stay or reconsideration. Nor did

DDSA immediately seek mandamus of the district court’s transfer order, see

2

The majority cites four cases from three of our sister circuits in which a § 1404(a)

transfer was reversed on mandamus. None reversed a grant of joint severance and transfer,

and each is further distinguishable. In In re Warrick, the reversal was based on the fact that

the district court completely failed to consider one of the § 1404(a) factors and transfer

would have unavoidably brought about dismissal of the claim. 70 F.3d 736, 740-41 (2d Cir.

1995). In In re Nine Mile Ltd., the Eighth Circuit reversed the transfer grant only so that

the district court could rule on the pending motion to reconsider transfer and the petitioner

could seek review of that decision prior to actual transfer of the case. 673 F.2d 242, 243-44

(8th Cir. 1982). In Sunbelt Corp. v. Noble, Denton & Assocs., Inc., there were two defendants,

one of which was not subject to personal jurisdiction in the transferee court. 5 F.3d 28, 29,

33 (3d Cir. 1993). The Third Circuit denied the request of the defendant who was subject

to personal jurisdiction in the transferee court to sever the case and transfer only as to it. Id.

at 33-34. In In re Howmedica Osteonics Corp., reversal of transfer as to some defendants was

based on a forum selection clause, and the court severed the parties and affirmed the

transfer only as to those defendants not subject to the forum selection clause. 867 F.3d 390,

397-98, 411 (3d Cir. 2017).

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Notice of Appeal, Defense Distributed v. Grewal, No. 21-50327 (5th Cir. Apr.

23, 2021), and, in its initial filings in this court, DDSA explicitly disclaimed

intention to “enjoin anything about the interlocutory transfer or severance

rulings below,” Appellants’ Reply in Support of Appellants’ Motion for a

Preliminary Injunction, Defense Distributed, No. 21-50327 (5th Cir. June 21,

2021). 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.

Third, even if all we order of our district court is a request to transfer

the case back to Texas—so that we can resolve a constitutional showdown

between New Jersey law and 3D-printed weaponry—and assuming our court

can sua sponte reconfigure an appellant’s notice of appeal into a non-

conforming mandamus petition, still, here, the district judge painstakingly

applied the Volkswagen transfer factors, which we set forth with the (short-

lived) promise (“we stress”) that “in no case will we replace a district

court’s discretion with our own.” 545 F.3d at 312. The district court’s

Volkswagen analysis is so comprehensive and well-reasoned as to show that

had transfer been refused, a writ for mandamus to compel transfer would be

well supported by the settled precedent of this court, see Lloyds, 780 F.3d 283,

In re Rolls Royce Corp., 775 F.3d 671 (5th Cir. 2014); In re Radmax, Ltd., 729

F.3d 285 (5th Cir. 2013); Volkswagen, 545 F.3d 304, which other courts follow

and scholars credit, see In re McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d

48, 57 (3d Cir. 2018) (citing Lloyds); In re Hudson, 710 F.3d 716, 717-18 (7th

Cir. 2013) (Posner, J.) (citing Volkswagen); In re Apple, Inc., 602 F.3d 909,

911-12 (8th Cir. 2010) (citing Volkswagen); In re: Apple, No. 2021-181, 2021

WL 5291804, at *2 (Fed. Cir. Nov. 15, 2021); In re: Hulu, LLC, No. 2021-

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142, 2021 WL 3278194, at *2 (Fed. Cir. Aug. 2, 2021); 55 JOHN BOURDEAU

ET AL., C.J.S. MANDAMUS § 97 (2021).

Notably, severance is not only discretionary and tied to case

management prerogatives, but it is not itself subject to review through a writ

of mandamus. At all. See In re Rolls Royce, 775 F.3d at 676. And though Rolls

Royce held that a district court’s ruling on a joint transfer and severance

motion may be reviewed through mandamus, neither DDSA nor the majority

opinion cites any mandamus case, ever, reversing a grant of a joint severance

and transfer motion. Constructed for DDSA, the novel argument – opposite

to indisputable – appears to be that New Jersey is a necessary party because

the United States Department of State somehow was its pull-toy, allegedly

breaching a settlement agreement whose provisions plaintiffs could not

specify at oral argument as having been breached, much less that New Jersey

caused the federal government to breach. Manifestly, New Jersey has no role

in United States weapons export regulations.

Several additional points highlight our usurpation.

First, the district court here transferred to a court whose intercession

these same plaintiffs had already sought, had argued on appeal in the Third

Circuit to maintain, and thereafter had kept pending for over two years. In

other words, the transfer was to a receiving court which had pre-existing

jurisdiction over these plaintiffs’ claims, at their initiation and insistence.

Second, that transfer was back to a court within the only federal circuit

authorized to certify questions of interpretation of New Jersey law to the

Supreme Court of New Jersey, which could interpret that law to avoid, not

force, a novel and difficult constitutional showdown. See N.J. COURT RULES

2:12A-1. Notably, the Supreme Court recently reversed our court when we

tried to force resolution of a different First Amendment collision without

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deferring first to one of our states’ highest court’s prerogative to interpret its

own law. McKesson v. Doe, 141 S. Ct. 48 (2020). 3

A third related, especially serious point is that removing discretion to

grant transfer undermines our court’s mandamus transfer precedent, which,

hitherto, we have used to require comity, not defy it. And it does so

imprudently, forcing a constitutional collision that may well be avoidable

through certification of questions of state law, which we cannot do but the

receiving circuit can. Hereafter, as to other transfer grants, our mandamus,

discordantly, will reduce or remove trial judge discretion to avoid

adjudicating the constitutionality of other states’ laws.

Finally, we commit not just an error we told our district courts in

Volkswagen would not occur, but another one we took pains earlier in this

litigation to cabin against. See Defense Distributed v. Grewal, 971 F.3d 485,

496 (5th Cir. 2020). Hereafter, state attorneys general, including those

within our own circuit, may not only be hailed into federal courts across the

country to defend their state laws, but then, if a trial judge assesses interests

of justice to favor transfer—say for consolidation with related claims already

3

The intimation is made that transfer should be undone, in part, because New

Jersey has intentionally delayed this litigation. As noted, we have not acted promptly

ourselves, on a case docketed in another circuit nearly a year ago and as to a point of law

the majority now, with no precedent, says is so obvious as to be indisputable. Regardless,

sufficient answer to innuendo is that this litigation, over whether governments have

authority to regulate 3D printable weaponry, commonly known as “ghost guns,” has

spanned three circuits for over a decade, without any court of original jurisdiction—courts

with actual fact-finding authority over lawyers before them—even hinting of bad faith,

much less making findings to support our ire. In fact, to my knowledge, the defendants

have prevailed in every district court so far, not to mention twice in this court, Defense

Distributed v. U.S. Dep’t of State, 947 F.3d 870 (5th Cir. 2020); Defense Distributed v. U.S.

Dep’t of State, 838 F.3d 451 (5th Cir. 2016), and before the Third and Ninth Circuits, see

Defense Distributed v. Att’y Gen of N.J., 972 F.3d 193 (3d Cir. 2020); State v. U.S. Dep’t of

State, 996 F.3d 552 (9th Cir. 2021).

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pending in a co-equal court whose circuit has certification authority—that is

indisputable error. 4

Consistent with the New Jersey Attorney General’s express and

emphatic denials, twice to our panel, that it seeks to enforce New Jersey law

in Texas, the record is devoid of enforcement measures, such as a takedown

order or criminal prosecution, against DDSA. Indeed, the parties point to no

prosecution even in New Jersey using New Jersey’s new law, yet the majority

rules today that mandamus lies to force New Jersey to defend its new law for

the first time in Texas. Because this precedent, now binding as indisputable,

does injury to state sovereignty and comity, not to mention district court case

management discretion, it is small comfort that there is a pending dismissal

motion filed by the Department of State which, if granted, may lead to re-

transfer, albeit after further, up-down delay protracted by us.

Also specific to this case, it is small comfort that the most we compel

is a request, which the New Jersey federal district court no doubt will seriously

consider, informed by comity and state law priorities set forth by the

Supreme Court, as well as by its own assessment of whether litigation

resolving New Jersey law should be decided in Texas as well as delayed and

encumbered by the national security interests implicated in the federal

government’s overseas export munitions restrictions, which are at the heart

of the litigation in the Western District of Texas.

Mandamus rulings announce law inflexibly. Here, without precedent,

our court, seemingly impatient for the last half decade, to force a difficult

4

Cf. Response Brief of Defendant-Appellee Ken Paxton in His Official Capacity as

Attorney General of Texas at 10-11, Twitter v. Paxton, 26 F.4th 1119 (9th Cir. 2022) (No.

21-15869) (“Where, as here, the Attorney General of a sovereign State is sued for actions

to enforce that State’s law in that State, there is ‘only one obvious locus’ for any

constitutional challenge: in that State.”).

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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.

37