How Long May a Judge Delay in Explaining its Order?

by Dennis Crouch

In re Apple (Fed. Cir. 2020) [Apple Mandamus Petition]

On June 16, Apple petitioned the Federal Circuit for writ of mandamus on forum non-conveniens.  Uniloc has apparently sued Apple in 24 different lawsuits in E.D. Tex. and W.D. Tex. The vast majority of those cases have been transferred to N.D.Cal. (21 of them — transferred by Judges Gilstrap and Yeakel; 2 are stayed but likely to transfer or be dismissed later).  This lawsuit is the last active case.

The particular claims of this lawsuit were originally before Judge Yeakel (W.D.Austin), but Uniloc dismissed that case and refiled it before Judge Albright (W.D.Waco).  Judge Albright then refused to transfer the case.  Note here that Judge Albright is a former patent litigator and is apparently hoping to hear more patent cases, but Waco is not exactly a major industrial-innovation hub. (Aerial view of Waco shown below).

On June 17, the Federal Circuit acted immediately to call up on Uniloc to defend Judge Albright’s “order” (within the next seven days).

After briefing and conducting oral arguments on the transfer motion, Judge Albright immediately denied the motion at the conclusion of telephonic oral arguments on the issue.  At that point, the Court did not explain his reasoning, but indicated that a written order would be released soon.

From the transcript:

The Court would like to thank both sides for, really, one of the best arguments I’ve had in front of me. I’m blessed to have this job because the quality of the lawyers is so exceptional in every case I have. But I continue to find with patent cases, I guess, given the issues that are involved, the quality of lawyering just seems to get better and better as I go along.

The briefing was exceptional. The PowerPoints are very helpful. The Court is going to deny the motion to transfer, and we will get a written order out as soon as we can. The Markman is set for Friday afternoon at 1:30.

See Transcript of the Telephonic Motion Hearing Before the Honorable Alan D Albright, Dkt No. 61, May 12, 2020.

Apple Attempting to Shame the Court?: The oral order was May 12, so we are now about one month later later without an explanatory memorandum coming from the judge.  The mandamus here appears to be primarily an attempt to shame Judge Albright for his delay in providing an explanatory order during this time.  I wonder whether that complaint will fall on deaf ears before the Federal Circuit who regularly take six to nine months to write up their opinions.

17 thoughts on “How Long May a Judge Delay in Explaining its Order?

  1. 5

    Funny that you try to shame Waco for not being a tech hotspot. WD Texas is becoming one of the more popular districts in which to file a lawsuit: link to

    The Western District of Texas is gigantic, going from El Paso to Waco. And, of particular interest, including the tech hotspot of Austin (and San Antonio).

    Because Albright is a popular judge to have patent cases before, everyone with venue somewhere in Western District will file in Waco. Even if the case gets transferred within district to Austin, it stays with Albright.

  2. 4

    Based on my experience with Judge Albright, he is a wonderful judge who is very respectful to the parties and their counsel. Judges issue oral rulings from the bench, to be followed up with a written decision, as a courtesy to the parties.

    When I first heard of this case, I thought the alleged delay must have been many months or a year or more. I was shocked and disappointed when I heard that Apple filed its mandamus petition after only a month.

    Does Apple think its case is the only case on Judge Albright’s docket? Or perhaps Apple thinks its case is just more important that anything else the judge is working on.

    If the Fed. Cir. issues a writ in this case, it will be clear that mandamus is no longer an exceptional remedy (at least for the Fed. Cir.). It will have completely undercut the final judgment rule, permitting an appeal at the whim of an aggrieved party in the district court.

    1. 4.1

      “Apple thinks its case is just more important that anything else the judge is working on. ”


    2. 4.2


      permitting an appeal at the whim of [a]particularly connected aggrieved party in the district court.

    3. 4.3

      I don’t follow this. Judge Albright has denied the motion. The mandamus petition asks the FedCir to order a transfer, not to force Judge Albright to write an opinion faster. You seem to read this as if Apple is asking for the latter thing.

      Rightly or wrongly, mandamus has been available for about the past 12 years for orders denying 1404 transfers, if they orders are clearly wrong. I think it started with In re Volkswagen (CA5 en banc 2008). link to Now there’s a long line of mandamus orders that mostly address Texas district courts’ transfer-denial shenanigans.

      1. 4.3.1

        At the Federal Circuit, the trend really started with In re TS Tech, 551 F.3d 1315 (Fed. Cir. 2008), which was issued several months after the Fifth Circuit decision in Volkswagen.


          I agree. The CA5 In re VW case opened the door, though. In the CA5 Volkswagen case, the AIPLA filed an amicus brief arguing that the Eastern District of Texas was especially bad about denying 1404 transfer motions, and the 5th needed to step in. The en banc 5th Circuit did step in and issue a writ of mandamus ordering the transfer. That became the template for the Federal Circuit cases that immediately followed. TS Tech cites In re VW, and the mandamus petition in TS Tech was filed shortly after In re VW was decided.
          There are now a few FedCir cases dealing with other circuits, but they’re mostly from the 5th, and I think that the 5th Circuit VW case was the catalyst for all of it at the Federal Circuit.

    4. 4.4

      Did you read the brief? Albright has issued multiple orders in the case since denying this motion. Albright is a good judge, but he has also made no bones about wanting to attract plaintiffs to his court. It surely hasn’t escaped anyone’s notice that refusing transfers, even when clearly warranted, was a big part of what made the Eastern District the Eastern District. Apple surely couldn’t wait any longer to bring this petition.

      1. 4.4.1

        ID – I pulled-up the docket and found that Apple appears to be shading the truth somewhat on issuing-multiple-orders during the 1-month interlude. While that is true, none of the orders that I found included any substantive memo-writing. Rather, they were agreed-to orders from the parties, or other 1-page orders.

  3. 3

    It is not that unusual for a D.C. judge to render an oral decision in a civil case from the bench and not complete preparation of a written opinion until some time later. Especially if the judge has a busy criminal case docket, which has higher priority, as most do. Does the mandamus request show a significant burden from the denied venue transfer? Was a stay of discovery denied? [I do not understand how attorneys who file things bound to p— off their judge that are not really vital think that is helping their clients case?]

    1. 3.1

      The petition mentions that Judge Albright has issued another written order during the month interim. However, I looked it up and it was a claim construction ruling. However, that 1-page order followed the same approach of giving the result (construing the claims) and indicating that a written explanation will come later.

  4. 2

    Coincidentally, the CAFC issued an order yesterday denying another Apple mandamus petition in a different Waco case. In that case, Judge Albright transferred the case to Austin, but denied transfer to ND Cal.

  5. 1

    I don’t entirely follow the shaming logic. At some point while you’re waiting for a district court’s opinion explaining an order it’s already announced (and I’m not sure when), a risk arises that the court’s delay will be held against the party who decided to wait for the court.

    A 2012 FedCir order (perhaps not-coincidentally titled “In re Apple”) suggests that if a defendant has waited too long for a ruling, it should file a mandamus petition, or the delay will be held against it. (456 F. App’x 907 (FedCir 2012), also here:
    link to ). That case involved waiting for an actual ruling–as opposed to an opinion explaining a ruling that had already been announced–but seems like the same idea.

    In the 2012 FedCir case, defendant moved for transfer. District court waited 15 months before denying the motion. Defendant then waited another 3.5 months before petitioning for mandamus. FedCir denied mandamus, holding both delays against the defendant: “Apple failed to employ any strategy to pressure the district court to act, such as seeking mandamus to direct the district court to rule on the motion.” And “[m]oreover and more importantly,” “Apple waited three and a half months after the ruling was handed down before filing this petition so close to trial.”

    1. 1.2

      Yeah, agreed, dcl. The “shaming” rationale is speculation from people who don’t understand the process. Federal Circuit precedent is very clear that a delay in filing mandamus after receiving a transfer denial order can weigh sharply against granting relief. The unofficial rule of thumb among many practitioners is that you need to file your mandamus petition no more than one month after the transfer denial order to have a shot at obtaining relief.

      The difficulty here is that a transfer denial order is reviewed under abuse of discretion, so with just a one-line denial that did not provide the judge’s reasoning, the Federal Circuit cannot perform meaningful review or determine how the judge exercised his discretion. Apple was probably worried that Judge Albright would pocket veto his reasoning until the eve of trial (an old trick that other courts have employed), to thwart mandamus. There’s no evidence that was the judge’s intent here, and in any event, Apple didn’t really have good grounds for overturning the denial of transfer.

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