In Re: Rory Walsh , 229 F. App'x 58 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-19-2007
In Re: Rory Walsh
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4792
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"In Re: Rory Walsh " (2007). 2007 Decisions. Paper 1245.
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DLD-75 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4792
IN RE: RORY M. WALSH,
Petitioner
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to Civ. No. 05-cv-00818)
Submitted Under Rule 21, Fed. R. App. P.
December 15, 2006
Before: BARRY, AMBRO AND FISHER, CIRCUIT JUDGES
(Filed: April 19, 2007)
OPINION
PER CURIAM
Rory M. Walsh sued the United States of America, the Department of the Navy,
and eight military officers relating to incidents, including a burglary and his attempted
murder by arsenic poisoning, that allegedly occurred while Walsh was serving in the
Marine Corps. In response to Defendants’ motions to dismiss, the District Court
dismissed all claims against the United States, the Navy, and seven of the military
officers. Claims remain against Defendant Jones, but, on October 31, 2006, on Jones’s
motion, the District Court stayed proceedings against him until February 1, 2007,
pursuant to the Service Members Civil Relief Act. Apparently, General Jones was
stationed out of the country on active duty in the military.
Walsh now petitions for a writ of mandamus. In his petition, he complains that
Jones and the other Defendants “continue to resist discovery” and violate the District
Court’s orders. He also believes that Jones has orchestrated break-ins at his residence.
For these reasons, he contends that he is entitled to relief under the victims’ rights statute
of 18 U.S.C. § 3771. Specifically, ostensibly proceeding under § 3771(a)(1), he asks for
a restraining order against Jones, Defendant Humble, and various other military entities
and officers. Pursuant to § 3771(d)(3), he requests the immediate arrest of Humble on
charges of attempted murder. He also requests that Assistant United States Attorney
Mark Morrison be removed as defense counsel, in part because Morrison has not chosen
to prosecute Humble, and in part because Morrison is allegedly involved in removing
evidence from Walsh’s home during break-ins. Walsh requests restitution under
§ 3771(a)(6) for discovery violations and for District Court discovery rulings that he
deems unsatisfactory. He also argues that the District Court improperly concluded that
sovereign immunity bars his claims against the Navy, and asks that we presently consider
whether the District Court’s ruling on that issue was correct. Walsh also asks that we
“seriously consider immediately reviewing and reversing” the District Court’s order
denying his motion for summary judgment and an order allowing Defendants to withdraw
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what he terms “de facto admissions.”
Soon after filing his petition for writ of mandamus, Walsh filed a motion for
summary action on his mandamus petition. In a separate motion, he requests “expeditious
consideration” of his petition under Local Rule 4.1. He argues that such consideration is
warranted because Jones retired from the Marine Corps on December 8, 2006, and
because Naval Intelligence Agents purportedly broke into Walsh’s residence on October
18, 2006. With his motion to expedite, Walsh requests a temporary restraining order
under Rule 65 of the Federal Rules of Civil Procedure. Specifically, he asks that we order
Jones to “surrender both his diplomatic and domestic passports” and that we freeze
Jones’s assets. In another motion, Walsh seeks a temporary restraining order against
Jones, Humble, and military officers and entities pursuant to 18 U.S.C. § 1514.
We will deny Walsh’s petition and motions. To the extent that Walsh petitions for
a writ of mandamus independently of 18 U.S.C. § 3771, we conclude that he does not
overcome the high hurdle for such relief. Mandamus is an extraordinary remedy. See
Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976). Within the discretion of the issuing
court, mandamus traditionally may be “used ... only ‘to confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when
it is its duty to do so.’” Id. (citations omitted). A petitioner must show ‘“no other
adequate means to attain the desired relief, and ... a right to the writ [that] is clear and
indisputable.’” See In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000) (citation omitted).
For his disagreements with the District Court on issues of discovery, sovereign immunity,
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and summary judgment, Walsh has the ordinary avenue of appeal available to him after
the District Court enters a final order in his case.1 Accordingly, Walsh cannot show that
no other adequate means of relief exists. See Madden v. Myers, 102 F.3d 74, 79 (3d Cir.
1996).
While mandamus relief is available under a different, and less demanding, standard
under 18 U.S.C. § 3771 in the appropriate circumstances, see 18 U.S.C. § 3771(d)(3);
Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006); United States v. Rigas,
409 F.3d 555, 562 (2d Cir. 2005), neither it, nor the other relief Walsh requests under
§ 3771, is available to Walsh here. Even assuming that Walsh is a crime victim for whom
mandamus and other relief is available under§ 3771 (a generous assumption, see 18
U.S.C. § 3771(e) (defining “crime victim”)), Walsh applies for relief in the wrong court.
See id. at § 3771(d)(3). As Walsh is not entitled to a writ of mandamus under § 3771 or
otherwise, he is not entitled to summary action on his mandamus petition.
1
Although Walsh believes that at least some of the District Court’s orders to which he
objects are immediately appealable, we note that none appears to be so. He appears to
confuse the appealability of an order denying a motion to dismiss or a motion for
summary judgment on the basis of immunity with the appealability of an order granting
such a motion on immunity grounds. See Mitchell v. Forsyth, 472 U.S. 511, 525 (1985);
Kulwicki v. Dawson, 969 F.2d 1454, 1459-60 (3d Cir. 1992); Schrob v. Catterson, 948
F.2d 1402, 1407 (3d Cir. 1991). The latter, unlike the former, is not immediately
appealable. Nor are orders relating to discovery disputes or denying summary judgment
ordinarily immediately appealable. See Enprotech Corp. v. Renda, 983 F.2d 17, 20-21
(3d Cir. 1993) (holding that an order denying a discovery motion is not a final decision of
the District Court within the meaning of 28 U.S.C. § 1291); McNasby v. Crown, Cork &
Seal Co., 832 F.2d 47, 49 (3d Cir. 1987) (holding that an order denying a motion for
summary judgment is not an immediately appealable order).
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Walsh’s reliance on 18 U.S.C. § 1514 for relief also is misplaced. Not only does
he apply for a temporary restraining order in the wrong court, but also he is not the person
authorized by statute to apply for such an order to restrain harassment of a crime victim or
witness. See 18 U.S.C. § 1514(a). Accordingly, we deny Walsh’s request for a
temporary restraining order pursuant to 18 U.S.C. § 1514.
We also deny Walsh’s request for a temporary restraining order pursuant to
Federal Rule of Civil Procedure 65. Rule 65 governs the issuance of temporary
restraining orders in the district courts. Furthermore, even if Rule 65 governed in this
case, we would not conclude that Walsh satisfied the standard for a temporary restraining
order against Jones. See Nutrasweet Co. v. Vit-Mar Enters., 176 F.3d 151, 153 (3d Cir.
1999).
We also deny Walsh’s “motion for expeditious consideration” under Local Rule
4.1. First, Local Rule 4.1 provides an avenue for a party to seek an expedited appeal.
The instant case is not an appeal – it is a petition for writ of mandamus. Second,
expedition under Local Rule 4.1 requires an exceptional reason. Walsh does not present
an exceptional reason (and to the extent that he seeks expedition because of alleged
October break-in, he does not timely present a basis to expedite). See Local Rule 4.1 &
Committee Comments (requiring motions for expedited appeals to be made promptly).
In sum, we will deny Walsh’s petition for writ of mandamus, and we deny his
motions.
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