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).