This is the first 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.
There has been a lot of talk recently about the Federal Circuit and mandamus. Our current research project aims to answer whether the Federal Circuit is an outlier among the circuit courts in its use of mandamus, and if so, what explains the court’s apparent infatuation with mandamus?
Mandamus—literally, “we command”—is an extraordinary event. Federal appeals courts have authority to review “final decisions” of district courts (or of the PTAB, in the Federal Circuit’s case). Mandamus provides a way for litigants to take their appeal before an appeals court while their case continues at the district court below. This can be a great thing for litigants who feel that an issue has been wrongly decided and who don’t want to wait for a final decision to take their case before the appellate court. However, if mandamus is granted too frequently, it risks compromising judicial efficiency by placing the appellate court in the awkward position of arbiter of disputes rather than reviewer of final decisions.
The Supreme Court has said three requirements must be satisfied in order for an appellate court to grant mandamus. First, the party seeking mandamus must have “no other adequate means” to obtain relief. Second, the party must show that its right to mandamus is “clear and indisputable.” Third, the court must be satisfied that mandamus is “appropriate” under the circumstances.
Typically, the federal courts of appeals will reserve their use of mandamus for important issues that are likely to arise again in future cases. For instance, attorney-client privilege is a relatively frequently reviewed issue on mandamus, because it is an issue that district courts frequently encounter. In addition to importance, the issue under mandamus review ought to be one that is not reviewable after a final verdict, or at least one in which such post-verdict review would be inefficient. For instance, the choice of venue in litigation is one such issue that is reviewable post-verdict, but oftentimes would be inefficient for the appealette court to wait for a final verdict before deciding that the wrong court heard the case. Oftentimes the use of mandamus centers on new, undecided issues.
Ideally, mandamus gives lower courts appellate guidance so that mandamus review is not needed on the issue addressed in the future. Sparing use of mandamus allows appellate courts to preserve the extraordinary character of the practice. Ideally, appellate courts avoid excessive supervision of lower court proceedings while at the same time sending a forceful message when granting mandamus. Thus, granting a writ of mandamus is an “extraordinary remedy,” reserved for clear errors in which the moving party has no other adequate means to obtain relief.
Federal Circuit Mandamus
But, this extraordinary remedy is becoming quite common, at least in the Federal Circuit. In beginning our study of the Federal Circuit’s mandamus practices, we wanted to get a sense of how the court compares to other circuit courts in granting mandamus. Using Westlaw, we collected all the decisions on writ of mandamus and hand coded them for whether mandamus was granted and what the issue the grant concerned. We found that the Federal Circuit has granted mandamus over twice as often as any other circuit.
The Federal Circuit has clearly been more activist than any other court when it comes to granting mandamus. Over the past three years, the Federal Circuit has been granting mandamus, the extraordinary remedy, at a rate more than double that of the next most frequently granting circuit (the 5th circuit and the 9th circuit).
And the numbers are even more stark when we consider just one issue on which mandamus may be granted: venue. Patent cases often meet the jurisdictional requirements of personal jurisdiction, subject matter jurisdiction, and venue in a number of different district courts. While the plaintiff typically selects her preferred venue to litigate the case, defendants may bring a motion to transfer the case to another district court that also has venue. Alternatively, the defendant may argue that the court selected by the plaintiff lacks venue. Decisions on these motions are often challenged, if at all, on mandamus.
Looking at the grants of mandamus concerning motions to transfer presents a stark look at the difference between the Federal Circuit and every other circuit court. Below is a graph of grants of mandamus by circuit court that direct a district court to transfer venue in a case.
Clearly, venue is a confounding issue for the Federal Circuit, and no other circuit court. It is odd that the Federal Circuit has issued mandamus on one issue so frequently over the past three years while only one other circuit court has granted mandamus on this issue. And that circuit did so only once.
In the next post we will give come further context and detail about the petitions for writs of mandamus at the Federal Circuit. And specifically look at the issue of venue mandamus in greater detail.