By Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
The Federal Circuit decides lots of mandamus petitions on transfer of venue under 28 U.S.C. § 1404(a). Most federal courts of appeals decide one or two per year, at most. The Federal Circuit, in 2021 alone, decided 30.
Yet the Federal Circuit rarely designates those decisions as precedent. Over 85% of the court’s venue mandamus decisions since 2008 have been nonprecedential. And, it’s worth noting, the Federal Circuit’s few precedential decisions are wildly unrepresentative: nearly 80% of them grant mandamus, even though, overall, petitioners succeed less than a third of the time.
In an order issued earlier this month, District Judge Alan Albright—who, despite recent changes in how cases are assigned to judges in his district, still has twice as many patent cases on his docket as any judge in the country—picked up this thread about the proliferation of nonprecedential Federal Circuit transfer decisions.
In Motion Offense v. Google, the patentee, who opposed transfer, argued that Judge Albright should follow Fifth Circuit case law on transfer of venue—and ignore the nonprecedential Federal Circuit decisions Google cited in its transfer motion. Judge Albright rejected the patentee’s argument, noting that he “cannot and does not overrule the reasoning of the Federal Circuit in a patent case.” (Motion Offense slip op. at 7.)
He continued: “Although the Federal Circuit issues unpublished, nonprecedential transfer opinions, the Federal Circuit frequently cites these opinions as though they precedentially interpret Fifth Circuit law.” (Id. (emphasis mine).)
Given how important transfer disputes are to patent litigation—and how often they occur—it’s worth asking whether Judge Albright is correct about how the Federal Circuit treats its nonprecedential transfer decisions.
Since 2008, the Federal Circuit has issued well over 100 nonprecedential transfer decisions, most of them coming out of two district courts in the Fifth Circuit: the Eastern and Western Districts of Texas. Those nonprecedential Federal Circuit decisions technically aren’t binding in future cases. Indeed, under the Federal Circuit’s unusual choice-of-law regime, the venue analysis is ostensibly governed by Fifth Circuit precedent, so even Federal Circuit decisions designated as precedential are binding only to the extent they’re interpreting Fifth Circuit law.
Yet the Federal Circuit does, in fact, often cite its own nonprecedential transfer decisions as if they were binding interpretations of Fifth Circuit law.
* * *
Drawing on a dataset that Jason Rantanen, Jonas Anderson, and I developed for a soon-to-be published article on the Federal Circuit’s mandamus practice, I looked at every Federal Circuit ruling on a mandamus petition challenging a decision by Judge Albright to deny transfer under § 1404(a)—38 rulings in total, all issued since June 2020. I then examined the citations in those rulings to prior Federal Circuit and Fifth Circuit decisions.
The bottom line: nearly a quarter of the citations were to nonprecedential Federal Circuit opinions.
Figure 1: Citations to Federal Circuit and Fifth Circuit Opinions in Federal Circuit Mandamus Decisions Reviewing § 1404(a) Transfer Denials by Judge Albright
This result holds across both (1) the precedential status of the citing decision and (2) whether the citing decision granted or denied mandamus. The only possible exception is Federal Circuit decisions denying mandamus, which tend to be quite short and light on citations as whole, including citations to nonprecedential Federal Circuit decisions.
Table 1: Citations in Federal Circuit Mandamus Decisions That Are Designated as Precedential (n=4)
Table 2: Citations in Federal Circuit Mandamus Decisions That Are Designated as Nonprecedential (n=34)
Table 3: Citations in Federal Circuit Decisions That Grant Mandamus (n=20)
Table 4: Citations in Federal Circuit Decisions That Deny Mandamus (n=18)
* * *
It’s not just the numbers but also the substance of the rulings that reflect the Federal Circuit’s heavy reliance on prior nonprecedential decisions.
For instance, in granting a mandamus petition filed by Apple, the Federal Circuit chided Judge Albright for “erroneously discount[ing]” the location of third-party witnesses in the transfer analysis. The Federal Circuit quoted from its prior nonprecedential opinion in In re HP for the proposition that “there [is] ‘no basis to discount’ third-party entities . . . ‘just because individual employees [i.e., witnesses] were not identified’” in the transfer motion. (Apple slip op. at 6.) The Federal Circuit’s opinion in Apple also relied on and quoted from two prior, nonprecedential decisions involving Google to reject Judge Albright’s treatment of the location of party witnesses in the transfer analysis. (Id. at 7, 10.)
Indeed, one of those Google opinions itself relied on the Federal Circuit’s prior nonprecedential decision in In re TracFone in granting transfer, writing that “[t]his case fits squarely within that line of precedent”—the “line of precedent” consisting of two cases: the Federal Circuit’s precedential opinion in another dispute involving Apple, In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020), and the nonprecedential decision in TracFone. (Google slip op. at 10.)
Similarly, in granting mandamus in In re Juniper Networks—a precedential decision—the Federal Circuit cited its prior nonprecedential opinion in In re Hulu five times, concluding that “this case is a very close cousin of our recent decisions in Samsung [precedential] and Hulu [nonprecedential], and the disposition of this case is largely dictated by the disposition of those cases.” (Juniper slip op. at 14 (emphasis mine).)
Perhaps the most stunning treatment of nonprecedential mandamus decisions by the Federal Circuit is In re Pandora Media, which actually contains more citations to nonprecedential Federal Circuit rulings than to precedential Federal Circuit rulings. The Federal Circuit’s determination that Judge Albright erred by disregarding the subpoena power of the proposed transferee court was based entirely on three nonprecedential opinions: a 2014 case involving Apple, the Hulu case mentioned above, and a 2018 case involving HP. (Pandora slip op. at 6.)
The Federal Circuit in Pandora also leaned on the nonprecedential opinions in TracFone and Google (both discussed above) in criticizing how Judge Albright analyzed considerations about convenience for potential witnesses, noting that “we held in TracFone and Google that the litigation should be conducted where more witnesses could testify without leaving their homes or their regular places of business.” (Pandora slip op. at 12 (emphasis mine).)
* * *
It’s tempting to brush off the Federal Circuit’s use of nonprecedential decisions to justify its venue mandamus rulings. Venue mandamus is a niche issue, brought to prominence by a semi-specialized appellate court that is fighting a problem of court competition somewhat unique to patent litigation. And sometimes the Federal Circuit discusses nonprecedential decisions because it was the parties who cited them in the first place, creating a bit of a chicken-or-egg dynamic.
Yet the court’s own rules are clear about how it’s supposed to treat nonprecedential decisions. Federal Circuit Rule 32.1(d) states, in relevant part:
The court may refer to a nonprecedential or unpublished disposition in an opinion or order and may look to a nonprecedential or unpublished disposition for guidance or persuasive reasoning but will not give one of its own nonprecedential dispositions the effect of binding precedent.
This rule makes plain that nonprecedential venue mandamus rulings are not binding law. But the Federal Circuit arguably treated them as such in cases like Google, Pandora, and many others.
Viewed in that light, Judge Albright’s frustration is understandable: how can he make transfer decisions that are consistent with Federal Circuit law when it’s impossible to tell precisely what that law is?
* * *
We live in a time of declining public trust in government institutions and skepticism of the rule of law. Though transfer disputes in patent litigation might not capture the public’s attention like Supreme Court cases about guns, abortion, or voting rights, the Federal Circuit’s unprincipled use of nonprecedential opinions is precisely the sort of everyday lawlessness that, over the long term, can strain trust in the courts.
* * *
A few methodological notes and caveats:
- In calculating the numbers reported above, I counted only citations within the analytical portion of the Federal Circuit’s ruling, and only in the portion of the court’s analysis addressing the § 1404(a) issue specifically.
- I ignored citations in “citing” or “quoting” parentheticals.
- I hand counted the citations, so it’s possible I missed or misclassified a small number of them. But the numbers are sufficiently large (545 relevant citations across 38 decisions) that a few errors, if they exist, wouldn’t affect the overall results much.
- David Hricik wrote for this blog about how, in an earlier version of the Motion Offense order, Judge Albright claimed he’d have denied transfer under Fifth Circuit venue law but was compelled to grant transfer under Federal Circuit law. That claim remains in the amended order mentioned above, though Judge Albright altered the text slightly, writing: “The Court’s decision turns on whether it should apply traditional Fifth Circuit transfer law or apply the Federal Circuit’s interpretations of Fifth Circuit transfer law. This Court cannot ignore or overrule cases from the Federal Circuit. Only because of those Federal Circuit cases, this Court GRANTS Defendant’s Motion to Transfer.” (Motion Offense slip op. at 1. (first emphasis mine))
“unprincipled use of nonprecedential opinions is precisely the sort of everyday lawlessness that, over the long term, can strain trust in the courts.”
Yet, how can that which was lost since Alice . . . be strained?
Have you forgotten? “Rules for thee, not me.”
“ We live in a time of declining public trust in government institutions and skepticism of the rule of law.”
LOL — and that’s because the CAFC doesn’t list enough of its patent venue decisions as precedential.
Surely it has nothing to do with morally bankrupt legal “pundits” and spineless law professors lining up to defend corrupt Federal judges and bending over backwards to pretend that the rightwing political party in this country isn’t completely over-run by socio p a t hs.
Heckuva job.
^^^ the irony of Malcolm’s Sprint Left views is stultifying.
Surely it has nothing to do with… spineless law professors… bending over backwards to pretend that the rightwing political party in this country isn’t completely over-run by socio p a t hs.
I grant that the 6 Jan coup attempt was a much more serious derogation from the rule of law than is the CAFC’s confused approach to its own non-prec decisions. That said, the CAFC’s non-prec decisions are a much more obvious subject for a blog post on a patent law blog than is the 6 Jan coup attempt. If you think that the 6 Jan coup attempt is a more urgent matter to discuss (and I would agree with you on that point), then you will—no doubt—be glad to know that there are plenty of other blogs where you can find such discussions.
The coup attempt was just a predictable event in the present timeline. The problem is not the lack of DISCUSSION here (as if there’s so much to “discuss”!) but the lack of not only any acknowledgement over what’s going on (and what’s been going on) with the dominionist authoritarian party on the right in this country but the wholesale pretending by attorneys and professor’s here that nothing noteworthy is going on OR actively cheering for the end of democracy and promoting the grossest Q nonsense out there.
That’s what’s disgusting and wrong. But hey it’s not like the problematic infestation of patent law (and patent blogs) with glibertarian and fash types wasnt noted many years ago …
Fixed:
“the lack of not only any acknowledgement over what’s going on (and what’s been going on) with the dominionist authoritarian party on the Left.”
So, who issued mandates for vaccines? Masks? Seems pretty authoritarian.
Which side’s press secretary called on social media to suppress speech in front of everyone?
Whose DOJ labeled parents domestic terrorists for challenging school boards?
Which side actually prosecuted someone for contempt of Congress?
Who exchanged emails with social media platforms asking them to suppress speech? (Calling it disinformation does not work. ALL speech is protected save speech that are calls to violence.)
Which side had crazies shoot Congressmen, almost killing one, and plot to assassinate a Supreme Court Justice?
I don’t know Malcolm. It seems like there is a lot you are overlooking.
Dr. James Lindsay has identified this as the Iron Rule of Woke Projection.
Aside from that, I have been pointing out Malcolm’s false projections for more than a decade now.
[W]ho issued mandates for vaccines? Masks? Seems pretty authoritarian.
Yes, I gather that public health mandates (recently) seem authoritarian to a certain segment of the U.S. population. Because this view is so recent a development on our political landscape, I have hope that it proves temporary. The power of the civic authorities to impose public health mandates in time of epidemic is a longstanding feature of U.S. law, which has never previously been regarded as “authoritarian.” See, e.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905).
I keep waiting for the “fever to break” (as Pres. Obama memorably put it), and it has not happened yet. Nevertheless, I remain hopeful that this mania will eventually pass from the civic landscape and sanity will re-emerge. In the meantime, I gather that the sane among us will have to learn to co-exist with those who can regard vaccine mandates and mask mandates in time of epidemic as “authoritarian” measures.
“Whose DOJ labeled parents domestic terrorists for challenging school boards?”
Karen the domestic terrorist lolol.
But see, you have to understand, the oppressed populations see Karen as their almighty overlord oppressor, so of course her pushing back against their agenda to overthrow her is “muh terrorism”.
“Which side had crazies shoot Congressmen, almost killing one, and plot to assassinate a Supreme Court Justice?”
Yeah that shooting was a real sad thing, happened like 15 miles from me when in alexandria.
Figures that Greg would provide a link to a (worthless) site that Malcolm already visits…
From that site’s “About” page: “Lawyers, Guns and Money is a politics and culture blog written primarily by a group of eight academics. ”
Go figure that, huh.
Coup…?
Who exactly was going to “hold power?” Chewbacca man?
Always fun to throw Greg’s (Dozen’s) own (sanctimonious) words back at him:
“If you are merely amusing yourself with a cheap debating point, however, then chacun à son goût…“
I am shocked when people call January 6th a coup attempt, when it was Trump supporters, and Trump was still in office until the 20th.
I still want to hear Nancy testify about what she knew, why she had a film crew documenting her day that day (including her statement that she hoped Trump went there so she could punch him, totally non-violent), why national guard were turned down, and why thousands of hours of video from that day still aren’t released. I mean, what could she possible have to hide?
The Mueller Investigation and the impeachment over something much more innocuous than Biden threatening the Saudis unless they release more oil before the mid-terms, were coup attempts.
Yup – the politicization of FBI and DOJ (related to Deep State) are FAR more pernicious than the mob activity of January 6th.
I am shocked when people call January 6th a coup attempt, when it was Trump supporters, and Trump was still in office until the 20th.
Please forgive me and allow me to re-phrase. The 6 Jan autocoup attempt was a much more serious derogation from the rule of law than is the CAFC’s confused approach to its own non-prec decisions.
Is that better?
Not a single item in your auto-coup has been shown to exist.
Was Chewbacca man an agent of Trump?
Greg being his usual lemming and offering mere snippets that he would challenge for lack of facts were the tables turned.
“Is that better?”
It would be except for the facts. Trump himself was wanting to down to quell the mob, you know, in real life n sheet. Because he himself did not attempt any coup for himself “muh autocoup” style. Don’t worry, we all know you don’t know those facts, and you wouldn’t accept them as facts even if rachel maddow told you.
“I am shocked when people call January 6th a coup attempt, when it was Trump supporters, and Trump was still in office until the 20th.”
It’s because they’re tarded. They don’t understand what an “muh insurrection” is either.
Muh coup.
Lol, who were they couping for?
Given how important transfer disputes are to patent litigation…
O.k., I’ll bite. How important are they?
Venue mandamus is a niche issue…
Er, o.k. I thought that the importance of this issue was the reason why it is “worth asking whether Judge Albright is correct about how the Federal Circuit treats its nonprecedential transfer decisions.” Whatever…
Indeed,… the “line of precedent” consist[s] of two cases: the Federal Circuit’s precedential opinion in another dispute involving Apple, In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020), and the nonprecedential decision in TracFone. (Google slip op. at 10.)… Viewed in that light, Judge Albright’s frustration is understandable: how can he make transfer decisions that are consistent with Federal Circuit law when it’s impossible to tell precisely what that law is?
Good point. Excellent point, really, which brings me to my point of strong agreement with the author’s thesis.
Though transfer disputes in patent litigation might not capture the public’s attention like Supreme Court cases about guns, abortion, or voting rights, the Federal Circuit’s unprincipled use of nonprecedential opinions is precisely the sort of everyday lawlessness that, over the long term, can strain trust in the courts.
Current CAFC practice makes an opinion non-prec by default, unless the court decides to make it precedential. That is backwards. Precedential should be the default status. Whatever rule you apply to A ought presumptively be the rule applied when B comes around later presenting an analogous situation. Similarly, the way that the rule is analyzed and applied should pertain to B as well by default.
The CAFC’s mistake is not in looking to its past non-prec decisions when deciding current cases, but rather in designating most of those past cases as non-prec. It is not too late to bring greater clarity to the law by redesignating most of the last five years’ cases as precedential. Failing that, at least revise the rules to make “precedential” the default status going forward.
Your “point of strong agreement” is not.
You belittle the position (twice), and then offer a different point.
Less off
Comments are closed.