IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

BLAKE J. WATTERSON;

Plaintiff,

v.

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS AND EXPLOSIVES; 

STEVEN DETTELBACH, in his 

official capacity as Director of the 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives; 

UNITED STATES DEPARTMENT 

OF JUSTICE; 

MERRICK GARLAND, in his official 

capacity as Attorney General of the 

United States; 

UNITED STATES OF AMERICA, 

Defendants.

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Civil Action No. 4:23-cv-00080

NOTICE OF APPEAL

Pursuant to Federal Rules of Appellate Procedure 3(a)(1) and 4(a)(1)(B), 

Plaintiff Blake Watterson hereby files this notice of appeal to the United States Court 

of Appeals for the Fifth Circuit from this Court’s effective denial of his Motion for 

Relief Under 5 U.S.C. § 705 or, Alternatively, for a Preliminary Injunction, ECF No. 

7 (Feb. 2, 2023), and his Motion to Reconsider and Modify the Court’s June 7, 2023 

Order, ECF No. 42 (Aug. 9, 2023), including its orders that terminated the temporary 

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injunction on September 25, 2023, when the Fifth Circuit issued the mandate in Mock 

v. Garland. See ECF Nos. 37, 44.

Under 28 U.S.C. § 1292(a)(1), the Fifth Circuit “may review a district court’s 

order that, while not explicitly denying a preliminary injunction, ‘nonetheless ha[s] 

the practical effect of doing so’ and might cause irreparable harm absent immediate 

appeal.” Clarke v. CFTC, 74 F.4th 627, 635 (5th Cir. 2023) (quoting Carson v. Am. 

Brands, Inc., 450 U.S. 79, 83 (1981)); see Thomas v. Sch. Bd. St. Martin Par., 756 F.3d 

380, 384 (5th Cir. 2014) (explaining 28 U.S.C. § 1292(a)(1) “applies to orders that 

explicitly grant, continue, modify, refuse, or dissolve injunctions or that refuse to 

dissolve or modify injunctions, as well as to those that have the practical effect of 

doing so”). Similarly, a court of appeals may review a district court’s refusal to grant 

or modify an injunction even when there is not a formal order. See 11A Wright & 

Miller, FEDERAL PRACTICE AND PROCEDURE § 2962 (3d ed.) (“[W]hen a court declines 

to make a formal ruling on a motion for a preliminary injunction, but its action has 

the effect of denying the requested relief, its refusal to issue a specific order will be 

treated as equivalent to the denial of a preliminary injunction and will be 

appealable.”); United States v. Lynd, 301 F.2d 818, 822 (5th Cir. 1962) (concluding 

that, even though “the trial judge did not enter a formal order ‘refusing’ a temporary 

injunction,” his failure “to grant the temporary injunction constituted an 

‘interlocutory order of the district court . . . refusing . . . an injunction’” and was 

“appealable” (quoting 28 U.S.C. § 1292)).

On February 2, 2023, Watterson filed a motion for a stay under § 705 or a 

preliminary injunction. See ECF No. 7. That motion was fully briefed as of March 3, 

2023, see ECF Nos. 7, 23, 25, 27, and the Court stated it would issue a decision “on or 

before March 24, 2023,” ECF No. 18 at 2. The Court, however, did not do so. 75 days 

after its own self-imposed deadline, the Court had still not acted. It then issued a 

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temporary injunction on June 7, 2023, which was set to elapse once the Fifth Circuit 

issued its opinion in Mock v. Garland. See ECF No. 37. 

Watterson subsequently filed a motion to modify the June 7th injunction, 

urging the Court to modify its order. See ECF No. 42. The Court has not done so, even 

though (1) the Court clarified that the injunction would terminate when “the Fifth 

Circuit’s mandate issues in Mock v. Garland,” see ECF No. 44 at 2, (2) the Mock 

mandate has issued, see ECF No. 49-1, and (3) Watterson has informed the Court of 

the issuance of the Mock mandate, see ECF No. 49. Because there is no injunction or 

other relief in effect since the Mock mandate issued, the Court has effectively denied 

Watterson’s motion for a preliminary injunction and has refused to modify the 

temporary injunction. As a result, Watterson suffers serious, irreparable harm that 

necessitates and justifies an interlocutory appeal under Fifth Circuit precedent. 

Watterson accordingly now notices this appeal.

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Date: September 26, 2023 Respectfully submitted, 

/s/Autumn Hamit Patterson 

ROBERT HENNEKE

Texas Bar No. 24046058

rhenneke@texaspolicy.com 

CHANCE WELDON

Texas Bar No. 24076767

cweldon@texaspolicy.com 

AUTUMN HAMIT PATTERSON

Texas Bar No. 24092947

apatterson@texaspolicy.com

CLAYTON WAY CALVIN

Texas Bar No. 24132780

ccalvin@texaspolicy.com 

TEXAS PUBLIC POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

Counsel for Plaintiff

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CERTIFICATE OF SERVICE

I certify that on September 26, 2023, I electronically filed the foregoing 

document with the Clerk of the Court using this Court’s CM/EMF system, which will 

notify all counsel of record of such filing.

 /s/Autumn Hamit Patterson 

AUTUMN HAMIT PATTERSON

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