United States of America v. Keith Richard Faherty

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH RICHARD FAHERTY,
Defendant-Appellant.
No. 12-30340
D.C. No.
4:04-cr-00002-
SEH-1
ORDER
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
April 7, 2014—Seattle, Washington
Filed April 18, 2014
Before: Michael Daly Hawkins, Johnnie B. Rawlinson,
and Carlos T. Bea, Circuit Judges.

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UNITED STATES V. FAHERTY 2
SUMMARY*
Habeas Corpus/Mandamus
The panel construed a request for coram nobis relief as a
petition for a writ of mandamus to the district court and
granted it, vacating the district court’s order denying relief
from travel restriction and ordering the district court to grant
Keith Faherty permission to apply for a new or replacement
passport.
The panel explained that the district court’s assumption of
jurisdiction over Faherty’s passport application was clearly
erroneous. Faherty had completed his sentence and term of
supervised release, and no case involving him was pending
before the district court.
COUNSEL
Helge Naber, Great Falls, Montana, for Defendant-Appellant.
Paulette L. Stewart (argued) and J. Bishop Grewell, Assistant
United States Attorneys, Michael W. Cotter, United States
Attorney, Helena, Montana, for Plaintiff-Appellee.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. FAHERTY 3
ORDER
We construe Keith R. Faherty’s request for coram nobis
relief as a petition for issuance of a writ of mandamus to the
district court. See, e.g., United States v. Span, 75 F.3d 1383,
1386 (9th Cir. 1996) (converting a coram nobis petition into
a habeas petition). So construed, the petition is granted.
In Bauman v. United States District Court, 557 F.2d 650
(9th Cir. 1977), we held that the remedy of mandamus is
justified in “exceptional circumstances amounting to a
judicial usurpation of power . . . ” Id. at 654 (citation and
internal quotation marks omitted). We identified “five
specific guidelines” for consideration:
(1) The party seeking the writ has no other
adequate means, such as a direct appeal, to
attain the relief he or she desires. (2) The
petitioner will be damaged or prejudiced in a
way not correctable on appeal. (This guideline
is closely related to the first.). (3) The district
court’s order is clearly erroneous as a matter
of law. (4) The district court’s order is an
oft-repeated error, or manifests a persistent
disregard of the federal rules. (5) The district
court’s order raises new and important
problems, or issues of law of first impression.
Id. at 654–55 (citations omitted). At oral argument, the
government conceded that the only guideline not met is the
fourth — an “oft-repeated error” or “persistent disregard of
the federal rules.”

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UNITED STATES V. FAHERTY 4
“Although these guidelines are helpful,” they by no
means dictate a particular outcome. Id. at 655 (describing the
issuance of a writ of mandamus where “[t]he district judge’s
assumption of jurisdiction . . . was clearly erroneous and
amounted to judicial usurpation of power”) (citing Hartland
v. Alaska Airlines, 544 F.2d 992 (9th Cir. 1976)). In this
case, the district court’s assumption of jurisdiction over
Faherty’s passport application was also clearly erroneous.
See id. Faherty had completed his sentence and his term of
supervised release. No case involving Faherty was pending
before the district court. In this circumstance, by continuing
to deny Faherty the opportunity to pursue his right to travel,
the district court judge engaged in the “judicial usurpation of
power,” thereby warranting the extraordinary remedy of
mandamus. Id.
Accordingly, the order of the district court denying
Defendant’s Petition for Relief From Travel Restriction and
Permission, filed on October 29, 2012, is VACATED. The
district court is hereby ORDERED to forthwith, and without
limitation or restriction, grant Faherty permission to apply for
a new or replacement passport. The United States
Department of State can then determine whether a passport
should be issued to Faherty.1
PETITION GRANTED; WRIT OF MANDAMUS
ISSUED TO THE DISTRICT COURT.
1 Our writ of mandamus is directed only to the district court. Whether,
once it receives Faherty’s application, the Department of State issues the
passport is a matter for that agency to address in the first instance, and we
leave that matter to the normal administrative process.

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