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).
Money. The rest is secondary.
Fifth circuit law is that denial of transfer is reviewable by mandamus. In re Volkswagen of America, Inc./I>, 545 F.3d 304 (5th Cir. 2008) (en banc). To say this issue should be left for review after final judgment is to say—effectively—that the issue should be reviewed under some abstract “general circuit law,” rather than CA5 law.
Maybe the issue should be reviewed under something other than local circuit law, come to that. At least at present, however, CAFC precedent is that non-patent law issues are decided by local circuit law, and local circuit law for WD Tex is that this issue is reviewable by mandamus.
Interesting, thank you. Volkswagen dealt with denial of transfer within the Fifth Circuit and even then that court held that mandamus was proper but only for “patently erroneous results.” It did not seem to address the difference between inter- and intra-circuit transfers, which would have cut against granting mandamus in that circumstance. Indeed, just glancing at it, it cited some cases that deal with inter-circuit transfer and failed to recognize the difference between them.
It did not seem to address the difference between inter- and intra-circuit transfers, which would have cut against granting mandamus in that circumstance. Indeed, just glancing at it, it cited some cases that deal with inter-circuit transfer and failed to recognize the difference between them.
Right, which implies that CA5 law is that this is not an important distinction. The CAFC has to do its best to discern what CA5 law is on this point, based on the case law that exists. It is not clear to me that the CAFC is getting it wrong. I have not yet seen a CAFC case where they have reversed the district court on a set of facts less compelling than those of Volkswagen.
The en banc CA5 in Volkswagen overturned a three-judge panel that had held that mandamus was never available for §1404 transfer requests because the “may” of §1404 makes the transfer decision a matter for the district court’s discretion.
The panel’s reasoning makes sense to me, but the CA5 said en banc that such reasoning is wrong. If the CAFC is to apply CA5 law, then the CAFC must do its best to make the en banc decision’s muddy reasoning work.
Which may well be why Judge Albright was particularly (snarky?) poignant in the “trap” that he set FOR the CAFC.
Let’s not be lulled into thinking that the CAFC has been acting on the up and up rather than chasing what it WANTS the CA5 law to be to match its own desired Ends.
No one should be that PollyAnna.
As to “Right, which implies that CA5 law is that this is not an important distinction.”
No such implication exists, as such was simply not before the court for the decision in the one context.
Further (think ‘advisory opinion’), were the Court to have launched into a discussion comparing the apples and oranges, that orange discussion would have been — at best — non-controlling dicta.
One should be more diligent about letting what one Wants a result to be to sneak in as such a (n unwarranted) implication.
I think I agree — if the lawyers in the case didn’t say “hey, those cases involve a fact pattern not raised here” — the court isn’t going to address it on its own…
[I]f the lawyers in [Volkswagen] didn’t say “hey, those cases involve a fact pattern not raised here” — the court isn’t going to address it on its own…
Fine, but none of that matters for the CAFC’s purposes. Their job is to try to discern—as best as they are able—what is the CA5’s law on this point.
You wish to imply one rule for transfers within a circuit and and another rule for transfers among circuits. The problem for the CAFC, however, is that there is no suggestion in the limited CA5 case law to imply such a distinction. Quite the contrary—the most important case in the CA5 corpus addressing the question of mandamus review for §1404 transfer requests addresses an instance of transfer within a circuit, but draws its rule from Humble Oil (an intra-circuit case) and Action Indus. (an inter-circuit case). The CA5 does not make anything of the distinction between these two cases when articulating its rule.
How is the CAFC supposed to discern from this that the CA5 has one rule for inter-circuit and another for intra-circuit? It may well be—as you say—that the CA5 would have articulated different rules if the lawyers in Volkswagen had made more of the distinction. Who can say? If my grandmother had wheels, then she would have rolled. She did not, however, and neither did the lawyers in Volkswagen.
The CAFC can only act on that which the CA5 gives them. The CA5 has not given the CAFC any reason to believe that there are different rules for inter– and intra-circuit transfer requests. Why should the CAFC invent a distinction for CA5 law that the CA5 nowhere implies?
“Fine, but none of that matters for the CAFC’s purposes.”
IF the CAFC’s purpose is to violate the Constitution and give advisory opinions, THEN your point might hold sway, Greg.
As it is, such (of course) would be improper and your point is banal.
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