Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit – Part 2

By Jonas Anderson, Paul Gugliuzza, and Jason Rantanen

This is the second post in a series about our new research project on mandamus practice in the federal courts of appeals generally and the Federal Circuit’s peculiar use of mandamus in patent cases specifically.

Yesterday’s post described the high number of petitions for a writ of mandamus that the Federal Circuit has granted relative to other federal appellate courts over the last few years.  In this post I’ll give further context and detail about the petitions for writs of mandamus at the Federal Circuit.

While Westlaw is a terrific resource, one of its big limitations for empirical research is that it doesn’t necessarily contain all dispositions.   We confirmed that almost all of the granted petitions from recent years are on Westlaw, but a portion of the other terminations are not.

In order to make sure that we had a complete set of all petitions for a writ of mandamus, we started by creating a set of all petitions docketed at the Federal Circuit.  Full details on how we did this will be in the paper, but essentially we began with a set of all dockets at the Federal Circuit from 2000 to the present from PACER, narrowed them to just those with a miscellaneous docket number, then reviewed that those dockets to determine which involved a petition for a writ of mandamus. This gave us a complete set of all petitions for a writ of mandamus filed at the Federal Circuit.  Using this set, we collected any dispositive orders from PACER that we didn’t already have.

Figure 1 shows the number of petitions for a writ of mandamus docketed at the Federal Circuit by year.  It breaks out petitions (1) arising from the Eastern District of Texas (red), (2) arising from the Western District of Texas (blue), and all other origins (which includes all other district courts plus origins such as the PTO, CAVC, etc.).

Figure 1: Petitions for a Writ of Mandamus filed at the Federal Circuit, 2008-September 30, 2021

How many petitions for a writ of mandamus arose from the Eastern District of Texas?  The answer is “a lot,” especially in 2010, 2014 and 2015.  More significant, however, is the enormous increase in petitions arising from the Western District of Texas over the past year.  For 2021, in particular, petitions arising from the Western District of Texas make up almost double the other origins combined.  Overall, the Federal Circuit has already received more petitions for a writ of mandamus this year than it has ever received in any year prior…and there are still three months to go.

Grant Rates of Petitions

The next thing we looked at were outcomes. For this, we switched to looking at the data on a per-document level rather than a per-docket level.  By “document,” we just mean the opinion or order deciding the appeal or petition. For petitions for writs of mandamus, the results are essentially the same when examined at the per-docket level because very few orders decided multiple petitions.

Overall, the Federal Circuit’s grant rate in merits determinations (those that granted, denied or granted in part a petition) was 15% over the period from 2008-2021—that is, the Federal Circuit granted the petition in whole or in part in 58 of the 384 total decisions on the merits.  For an “extraordinary” form of relief, we were surprised at how high this was.

To investigate grant rates further, we started by comparing the grant rates of petitions for a writ of mandamus when the petition originated from a district court to the grant rate for other origins.  Figure 2 shows the outcomes on a per-document basis for 2008 – September 2021.  The top pie charts show the outcomes of merits determinations, while the bottom bar graphs show the other types of dispositions of these petitions.  Most other dispositions consist of voluntary dismissals, but there are also dismissals for lack of appellate jurisdiction and other reasons.

Figure 2: Outcomes in Federal Circuit decisions on petitions for writs of mandamus, 2008-Sept. 30, 2021

There are clear differences in the grant rates for petitions for writs of mandamus between the district courts and other origins.  Whereas the Federal Circuit granted the petition in whole or part in 19% (51 out of 268) of its merits decisions when the petition arose from the district courts, it granted them only 6% (7 out 116) of the time for other origins.

To examine what was going on, we conducted preliminary issue coding to identify those decisions involving some issue relating to venue (all of which originated from a district court).  Figure 3 shows the outcomes for merits decisions when venue was and was not at issue in the decision.

Figure 3: Outcomes in Federal Circuit decisions on petitions for writs of mandamus arising from district courts, 2008-Sept. 30, 2021

The difference is stark: When venue was at issue, the Federal Circuit decision granted the petition in whole or in part 27% of the time.  When venue was not at issue, the grant rate was 7%.

Put another way, for petitions for a writ of mandamus involving an issue other than venue, the grant of a writ of mandamus is a rare event.  But when venue is at issue, the court has granted petitions at a much higher rate.  But is this historically the case or is it a recent event?  In our third post we’ll conclude with additional detail on what’s going on with mandamus on transfer of venue issues at the Federal Circuit.

6 thoughts on “Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit – Part 2

  1. 2

    My takeaway from Fig. 1 above is that—after an extended tussle—Judge Gilstrap has basically acceded to the CAFC’s policy preferences. Judge Albright is the scrappy new kid on the block, but I expect that the CAFC will wear him down in the end just as they did with Judge Gilstrap.

    If nothing else, many plaintiffs will come to realize that there really is no advantage to be had from filing in WD Tex because the expense of the (doomed to ultimate failure) venue fight adds cost for no ultimate benefit. Once those folks decide just to cut to the chase and file in FL or CA or wherever else the suit really should have been filed, Judge Albright will have few cases left for which venue mandamuses will be sought.

    1. 2.1

      Dozens, to partially disagree with three of your propositions: First, as the above statistics show, a Waco D.C. venue fight is definitely not “doomed to ultimate failure” for the patent owner. These statistics suggest that the majority of all WDTX venue decisions are still favorable to patent owners [presumably many of those that do not directly flaunt prior Fed. Cir. guidance on statutory interpretation and/or proper fact finding or balancing.] Nor is a venue transfer dispute normally all that expensive as compared to other aspects of patent litigation. Also, there are other reasons for PAEs to not want to transfer out of WDTX and thus to fight to stay there. For examples, the views of that same judge re preventing defendants an IPR defense, his early Markman’s [if that is wanted], his early proposed trial dates [if that is realistic with his big backlog?], his discovery decisions, etc.

      1. 2.1.1

        Yeah, I think that you have the better of this one, Paul. I still think that WD Tex will eventually follow ED Tex’s trajectory. My second paragraph above, however, should be ignored.

        1. 2.1.1.1

          Thanks, yes, it was only about your second paragraph.
          But I wonder how the Fed. Cir. will find his final decisions when those are appealed? I.e., is this just an abnormality in venue decisions, or not?

  2. 1

    “we began with a set of all dockets at the Federal Circuit from 2000 to the present from PACER, narrowed them to just those with a miscellaneous docket number, then reviewed that those dockets to determine which involved a petition for a writ of mandamus.”

    This methodology has a problem, especially if its very purpose is to capture all instance of requests in the Federal Circuit for mandamus relief. It is not rare for appeals to be filed without a miscellaneous docket number in which the appellant also asks in the alternative for mandamus relief. A recent case in point is, of course, Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375 (Fed. Cir. 2021) (No. 21-1071, slip op., Mar. 12, 2021), pet. for cert. filed, No. 21-202 (Aug. 9, 2021), which construed an appeal to alternatively request mandamus relief; found jurisdiction over that request; and ultimately denied mandamus relief, holding that “it is difficult to imagine a mandamus petition that challenges a denial of institution” for which mandamus would be available. Surely the authors of this paper would want to include all such decisions, that are styled as appeals but also deny mandamus relief, in their data.

    1. 1.1

      This is a good observation. We specifically focused on items that were docketed as a petition for a writ of mandamus, rather than those that were both appeals and petitions, or which were appeals that the court treated as asking for a writ. Both of those are relatively rare, though – in addition to the Mylan instance, I’ve only found 11 other appeals on the “regular” docket over the last ten years that involve a similar type of issue. We’ll make sure to point these out in the paper.

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