The Mandamus Transfer Battle and W.D. Texas: Why is the Federal Circuit, or Anyone, Hearing the Petitions?

Patent – Patently-O 2022-12-09

By David Hricik, Mercer Law School

I’m speaking at a conference in Palo Alto, and one long topic of conversation was about the disagreement between how Judge Albright views Fifth Circuit precedent on mandamus to review discretionary transfers under Section 1404 and the Federal Circuit views that same precedent.

One thing that struck me is that ordinarily, the only reason mandamus review is available for transfer motions is because it is transferring the case out of the circuit, and so the circuit won’t ever get to review it. So, conversely, an order transferring a case within a circuit is not reviewable until final judgment:

The Southern District of Iowa order transferring the case to another district within this circuit was a non-appealable interlocutory order, not subject to mandamus review, because it did not “in any way impair or defeat the jurisdiction of this Court to review any appealable order or judgment which eventually may be entered in the case.” Carr v. Donohoe, 201 F.2d 426, 428–29 (8th Cir.1953); accord Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383–84, 74 S.Ct. 145, 98 L.Ed. 106 (1953).

Steen v. Murray, 770 F.3d 698, 702 (8th Cir. 2014).

So there are two ways to look at this: one, why is the Federal Circuit hearing these petitions at all, since it will review any decision on transfer on appeal and apply regional circuit law, so mandamus — an extraordinary remedy — should not be available at all. The reason for it doesn’t exist just as it doesn’t exist with an intra-circuit transfer.

Or, you can ask: if the point is to make sure the Fifth Circuit gets its law correct, then any petition should go to the Fifth Circuit, not the Federal Circuit.

Anyhow, there are probably reasons why this is happening the way it is, and perhaps this argument has been made and lost, but the first way of looking at why mandamus is available, only, for out-of-circuit transfers suggests that any review of a transfer order should await final judgment or it erodes that rule.