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`EXTRAORDINARY WRIT OR ORDINARY
`REMEDY? MANDAMUS AT THE FEDERAL
`CIRCUIT
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`J. JONAS ANDERSON,* PAUL R. GUGLIUZZA** & JASON A.
`RANTANEN***
`
`ABSTRACT
`
`Ordinarily, in federal court, only case-ending judgments can be
`appealed. The writ of mandamus is one exception to that so-called final
`judgment rule. Mandamus permits a litigant who is dissatisfied with a lower
`court ruling to obtain immediate reversal if, among other things, the ruling
`was indisputably wrong and the party seeking mandamus has no other way
`to get relief. This exacting standard stems from mandamus’s origin as one
`of the common law’s “extraordinary” writs. Federal courts of appeals
`typically issue mandamus once or twice per year at most.
`In patent cases, however, mandamus is a remarkably ordinary form of
`appellate relief. As the empirical study presented by this article shows, in
`the past thirteen years, the U.S. Court of Appeals for the Federal Circuit,
`which hears all patent appeals nationwide, has issued mandamus sixty-one
`times, granting 22% of the mandamus petitions it has received in cases
`pending in the federal district courts (61 of 283).
`Crucially, the Federal Circuit’s high grant rate is driven almost entirely
`by mandamus petitions in cases from two judicial districts, the Eastern and
`Western Districts of Texas, on a single legal issue, transfer of venue. On
`transfer-related petitions arising from those courts, the Federal Circuit has
`granted the extraordinary writ of mandamus an astonishing 37.3% of the
`time (in 38 of 102 cases) since 2008. And this after having never granted a
`transfer-related mandamus petition before that year.
`
`Professor of Law, University of Utah S.J. Quinney College of Law.
`*
`Professor of Law, Temple University Beasley School of Law.
`**
`*** David L. Hammer and Willard L. “Sandy” Boyd Professor and Director of the Iowa
`Innovation, Business & Law Center, University of Iowa College of Law. For comments and helpful
`discussions, thanks to Rochelle Dreyfuss, Jeremy Fogel, Tim Holbrook, Lisa Larrimore Ouellette, Mark
`Lemley, Merritt McAlister, Peter Menell, Jonathan Masur, Tejas Narechania, Kathleen O’Malley, Greg
`Reilly, Dave Schwartz, Jay Thomas, and Melissa Wasserman as well as participants at the Intellectual
`Property Scholars Conference at Cardozo School of Law and the Colloquium on Courts and Judicial
`Process at UC Berkeley School of Law. The views expressed in this article, as well as any errors, are
`ours alone. The data used in this article is available at Jason Rantanen, Replication Data for
`Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit, HARVARD DATAVERSE
`(2022),
`https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/AGZNNN
`[https://perma.cc/MWH2-2E56].
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`The Federal Circuit, with its semi-specialized jurisdiction over patent
`cases and a few other areas, is often criticized for taking an
`“exceptionalist” approach to procedural issues in patent litigation. It is
`tempting to lob that critique at the Federal Circuit’s aberrant mandamus
`practice, too. We argue, however, that the court’s high grant rate actually
`stems from systematic flaws in the patent litigation system that the Federal
`Circuit has little power to fix—namely, rules of venue and judicial case
`assignment that encourage plaintiffs to shop not just for favorable district
`courts, but for individual district judges. Addressing the underlying problem
`of judge shopping—as the Western District of Texas has finally begun to
`do—would likely help bring the Federal Circuit’s mandamus practice into
`the mainstream.
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................ 330
`I. MANDAMUS IN THE FEDERAL COURTS: A PRIMER ON APPELLATE
`JURISDICTION, PROCEDURE, AND PRACTICE ...................................... 335
`A. Interlocutory Appeals ................................................................... 335
`B. Writs of Mandamus ....................................................................... 336
`C. Federal Circuit Appeals: Interlocutory and Otherwise ............... 337
`D. Venue in Patent Infringement Cases ............................................ 339
`E. Mandamus Across the Federal Courts of Appeals ....................... 344
`II. METHODOLOGY ................................................................................... 346
`III. RESULTS ............................................................................................. 351
`A. Interlocutory Proceedings at the Federal Circuit ........................ 351
`B. Interlocutory Proceeding Outcomes ............................................. 355
`1. Outcomes of Petitions for Permission to Appeal ........................ 355
`2. Outcomes of Petitions for Writs of Mandamus ........................... 356
`C. Petitions for Writs of Mandamus at the Federal Circuit .............. 357
`D. Petitions for Writs of Mandamus: Venue and Stay ...................... 360
`E. Petitions for Writs of Mandamus Seeking
` Convenience Transfer .................................................................. 361
`F. Petitions for Writs of Mandamus Seeking Convenience
` Transfer from the Eastern and Western Districts of Texas .......... 364
`IV. FIFTH CIRCUIT COMPARISON ............................................................. 371
`V. IMPLICATIONS ..................................................................................... 374
`A. Rules v. Standards ........................................................................ 374
`1. Two Similar Cases, Two Different Outcomes ............................. 377
`2. Changing the Law of Transfer and Mandamus .......................... 381
`B. Panel Dependence ........................................................................ 383
`C. Court Competition ........................................................................ 384
`CONCLUSION ............................................................................................ 385
`DATA METHODOLOGY ADDENDUM ........................................................ 387
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`INTRODUCTION
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`Mandamus. At first glance, not the most exciting topic in the civil
`procedure canon. The writ is an obscure footnote in the casebook stalwart,
`Burnham v. Superior Court of California, 1 which confirmed the post-
`International Shoe viability of “tag” jurisdiction.2 And it was the remedy
`sought in Marbury v. Madison, 3 arguably the most important Supreme
`Court decision of all time. But if, like us, you read those cases during your
`first year of law school, it wasn’t to learn the standard for obtaining
`mandamus relief. And for good reason. Mandamus, the Supreme Court has
`made clear, “is a ‘drastic and extraordinary’ remedy ‘reserved for really
`extraordinary causes.’” 4 Today, mandamus functions primarily as an
`exception to the usual rule that only final, case-ending lower court
`judgments can be appealed.5 Appellate courts, when they grant the writ,
`usually do so to correct obvious lower court errors on extremely important
`questions.6
`And yet, on a single Monday in November 2021, the U.S. Court of
`Appeals for the Federal Circuit, which hears all appeals in patent cases
`nationwide, 7 granted writs of mandamus in three separate patent
`infringement cases. 8 Each case had originally been filed in the Waco
`Division of the U.S. District Court for the Western District of Texas; under
`the Federal Circuit’s mandamus orders, each case would be transferred to
`the Northern District of California.9
`
`
`495 U.S. 604, 608 (1990).
`1.
`Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), which established “minimum
`2.
`contacts” as the touchstone for in personam jurisdiction, put into question whether in-state service of
`process—the primary mode of establishing personal jurisdiction over non-residents under Pennoyer v.
`Neff, 95 U.S. 714, 727 (1877)—remained an acceptable option.
`3.
`5 U.S. 137, 139 (1803).
`4.
`Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258,
`259–60 (1947)).
`5.
`See generally 28 U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of appeals
`from all final decisions of the district courts . . . .” (emphasis added)).
`6.
`See Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 1977).
`7.
`See Paul R. Gugliuzza, Rethinking Federal Circuit Jurisdiction, 100 GEO. L.J. 1437, 1453–
`64 (2012) (summarizing the Federal Circuit’s jurisdiction).
`8.
`In re Atlassian Corp. PLC, No. 21-177, 2021 WL 5292268 (Fed. Cir. Nov. 15, 2021); In re
`Google LLC, No. 21-178, 2021 WL 5292267 (Fed. Cir. Nov. 15, 2021); In re Apple Inc., No. 21-181,
`2021 WL 5291804 (Fed. Cir. Nov. 15, 2021).
`9.
`The Federal Circuit actually resolved a fourth mandamus petition that day—in yet another
`case arising from the Western District of Texas—determining that a similar request for transfer to the
`Northern District of California did not warrant a decision on the merits because the district court had
`reconsidered the order on which the petition was based. In re Meraki Integrated Cir. (Shenzhen) Tech.,
`Ltd., No. 21-180, 2021 WL 5292271, at *1 (Fed. Cir. Nov. 15, 2021). A concurring opinion, however,
`expressed skepticism about the whether the district court’s ruling denying transfer was correct. See id.
`at *2 (Hughes, J., concurring) (“The district court now inexplicably changes course to . . . deny
`transfer . . . despite there being no new facts presented . . . .”).
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`Are district court decisions keeping patent infringement lawsuits against
`tech behemoths like Apple and Google in Texas rather than sending them
`to the Bay Area the sorts of egregious errors that warrant an extraordinary
`writ like mandamus?10 Reasonable minds might differ. But three mandamus
`grants in a single day would, indisputably, have been highly unusual in any
`other federal court of appeals. At the Federal Circuit, though, it was just
`another day. From 2019 through 2021, the court granted mandamus twenty
`times—nearly as many times as every other federal court of appeals
`combined (twenty-seven).11
`Odder still is that most of the Federal Circuit’s mandamus grants over
`that time period, including the three mentioned above, were directed at a
`single district court judge—Judge Alan Albright in the Western District of
`Texas—and involved the exact same issue—transfer of venue under 28
`U.S.C. § 1404(a), which gives district courts discretion to transfer a case
`from one district to another “[f]or the convenience of parties and witnesses,
`in the interest of justice.”12 But the Federal Circuit’s enthusiastic use of
`mandamus is not a new phenomenon. As one of us wrote a decade ago,
`using mandamus to, essentially, “supervise” district court decisions on a
`discretionary issue like transfer of venue “is unprecedented in any federal
`court of appeals” and “conforms to no theory of appellate mandamus
`currently recognized by the . . . courts.”13 Yet the practice continues apace.
`Indeed, many parties embroiled in patent infringement litigation in the
`Western District of Texas claim that the Federal Circuit’s grant rate is
`rapidly accelerating.14
`
`
`10.
`See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953) (noting that mandamus
`“is meant to be used only in the exceptional case where there is clear abuse of discretion or ‘usurpation
`of judicial power’” (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 217 (1945)).
`11.
`See infra Figure 1.
`12.
`28 U.S.C. § 1404(a).
`13.
`Paul R. Gugliuzza, The New Federal Circuit Mandamus, 45 IND. L. REV. 343, 347 (2012).
`14.
`For instance, an amicus brief in support of a recent mandamus petition claimed that, in 2020
`and 2021, the Federal Circuit’s “mandamus rate” in cases arising out of the Western District of Texas
`was “twice as high” as it was a decade ago, when the court was frequently overturning transfer of venue
`decisions by the Eastern District of Texas. Brief of Comput. & Commc’ns Indus. Ass’n, High Tech
`Inventors All. & R Street Inst. as Amici Curiae in Support of Petitioner at 5, In re DISH Network L.L.C.,
`2021 WL 4911981 (Fed. Cir. Oct. 21, 2021) (No. 21-148) (per curiam); see also infra Section I.D
`(discussing the shift in patent litigation from the Eastern District of Texas to the Western District).
`Similarly, a party seeking en banc rehearing of a recent Federal Circuit decision granting mandamus
`claimed that “[t]oday, the [Federal Circuit] sees as many convenience petitions in one year as it used to
`see in ten” and that the Federal Circuit’s practice “is out of step with other . . . circuits.” Uniloc 2017
`LLC’s Petition for Rehearing En Banc at 2, In re Apple Inc., 979 F.3d 1332 (Fed. Cir. 2020) (No. 20-
`135). Since 2008, that brief explained, the Federal Circuit “has issued over seventy mandamus decisions;
`the Fifth Circuit by comparison has issued seven.” Id. And the Federal Circuit, the brief claimed, “grants
`the ‘exceptional remedy’ of mandamus in approximately 1-out-of-3 petitions.” Id. Another party seeking
`to overturn a Federal Circuit decision granting mandamus recently contended that its case was “at least
`the twentieth transfer order on which the losing party sought [mandamus] in [the Federal Circuit] just
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`To get a better grasp of mandamus practice at the Federal Circuit—and
`to determine whether the Federal Circuit’s use of the extraordinary writ is,
`well, extraordinary—we conducted what we believe
`is
`the first
`comprehensive empirical study of all Federal Circuit decisions in
`interlocutory appeals—that is, appeals that do not involve a final, case-
`ending judgment by the lower court or agency. The novel datasets we built
`for this study contain all interlocutory proceedings (including mandamus
`petitions as well as several other types of appeals from non-final rulings) at
`the Federal Circuit from 2008 through 2021.
`We conclude that mandamus, consistent with its status as an
`extraordinary writ, is, overall, a difficult remedy to obtain at the Federal
`Circuit. Of the 501 mandamus petitions in our dataset, the Federal Circuit
`granted 68, or 13.6%. But not all petitions have an equal chance of being
`granted. For instance, the Federal Circuit granted 22% (61 of 283) of
`mandamus petitions arising from the federal district courts, as compared to
`only 6% of petitions arising from the other tribunals it reviews, such as the
`Court of Federal Claims, Court of Appeals for Veterans Claims, and Merit
`Systems Protection Board. In other words, virtually all (90%) Federal
`Circuit orders granting mandamus involved cases from the district courts,
`which are almost entirely patent infringement cases.
`But even among patent cases, one issue and two district courts stand out:
`venue and the Eastern and Western Districts of Texas. In district court cases
`involving questions of venue, the Federal Circuit granted 31% (53 of 176)
`of mandamus petitions. On all other issues arising from the district courts,
`the court granted only 7% (7 of 106) of petitions. Moreover, not even all
`venue petitions have an equal chance of being granted. Excluding petitions
`coming out of the Eastern and Western Districts of Texas, the Federal
`Circuit granted only 11.5% (3 of 26) of petitions seeking transfer of venue
`for convenience reasons. The grant rate in transfer cases from the Eastern
`and Western Districts of Texas was over three times higher: 37.3% (38 of
`102).
`These empirical findings have at least two implications for procedural
`reform in patent litigation—one of the most important issues facing the
`innovation ecosystem today.15 First, it is tempting to criticize the Federal
`Circuit for using what is supposed to be an extraordinary writ as, essentially,
`
`from the Western District of Texas since 2018.” Respondents’ Petition for Rehearing En Banc at 18, In
`re Samsung Elecs. Co., 2 F.4th 1371 (Fed. Cir. 2021) (No. 21-139). One of our motivations in writing
`this article is to test empirical assertions like these that are increasingly appearing in Federal Circuit
`briefs in mandamus cases.
`15.
`See Mark A. Lemley, The Surprising Resilience of the Patent System, 95 TEX. L. REV. 1, 56
`(2016) (arguing that, because recent changes to patent law seem to have had little effect on patent
`acquisition and enforcement, reformers should instead “look out for opportunities to simplify patent
`litigation, making it quicker and cheaper” (emphasis added)).
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` mechanism for interlocutory error correction.16 However, our data makes
`clear that it is district judges in the Eastern and Western Districts of Texas—
`who, as two of us have argued elsewhere, use questionable denials of
`transfer motions as a mechanism to attract patent cases to their
`courtrooms17—who have forced the Federal Circuit into a position in which
`it has few good options.
`Second, although the Federal Circuit could alter the legal doctrine
`governing transfer motions in an effort to rein in district judges’ most
`egregious decisions,18 changing the standards for transfer will not solve the
`underlying problems that are leading to large numbers of mandamus grants.
`For one thing, the number of legally permissible venues is quite large in
`most patent cases because the relevant venue statute allows patent
`infringement plaintiffs to choose from a wide array of courts, many of which
`have little connection to the underlying suit.19 For another, the mechanisms
`by which district courts assign cases to judges often allow plaintiffs to
`predict, with certainty, the judge who will hear their case.20 This ability to
`select the judge encourages plaintiffs to “judge shop”—that is, select a
`particular judge for their case, a phenomenon that has led to federal district
`judges competing to attract litigation to their courtrooms.21
`In addressing these underlying problems, the Federal Circuit’s hands are
`tied. Changing basic venue rules (which are mostly codified in statutes22) or
`mandating different case assignment procedures (which are, by statute, left
`to district judges themselves 23 ) is largely beyond the purview of an
`intermediate appellate court. In other words, rather than focusing on the
`Federal Circuit’s use of the writ of mandamus—which, as we explain
`below, may or may not be justified on the facts of any individual case—
`policymakers should address the judge shopping/court competition dynamic
`
`
`16.
`The Federal Circuit, with its semi-specialized jurisdiction, is often criticized for taking an
`“exceptionalist” approach to procedural issues in patent law. See, e.g., Peter Lee, The Supreme
`Assimilation of Patent Law, 114 MICH. L. REV. 1413, 1416–17 (2016).
`17.
`See J. Jonas Anderson & Paul R. Gugliuzza, Federal Judge Seeks Patent Cases, 71 DUKE
`L.J. 419, 461–65 (2021).
`18.
` See infra Section V.A.
`19.
`For instance, because the patent venue statute requires only that the defendant have presence
`in the district, 28 U.S.C. § 1400(b), defendants can be sued in Waco based on activities in Austin, which
`is 100 miles away but also in the Western District of Texas. See Anderson & Gugliuzza, supra note 17,
`at 445, 482.
`20.
`See Jonas Anderson, Judge Shopping in the Eastern District of Texas, 48 LOY. U. CHI. L.J.
`539, 547 (2016).
`21. On the phenomenon of judges actively courting litigants to file in their courtrooms, see J.
`Jonas Anderson, Court Competition for Patent Cases, 163 U. PA. L. REV. 631, 635 (2015).
`22.
`See, e.g., 28 U.S.C. §§ 1391, 1400(b).
`23.
`Id. § 137(a).
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`that is causing patent infringement cases to amass in unusual places like
`Waco, in Texas’s Western District, and Marshall, in the Eastern District.24
`Fortunately—and perhaps surprisingly—policymakers seem interested
`in tackling the issue of forum selection in patent litigation. In November
`2021, the chair and ranking member of the Senate Judiciary Committee’s
`intellectual property subcommittee asked the Judicial Conference to review
`the judge-assignment practices of the federal district courts in patent cases.25
`And, in December 2021, Chief Justice Roberts, in his annual report on the
`federal judiciary, flagged the “arcane but important matter” of “judicial
`assignment and venue for patent cases” as a topic that “will receive focused
`attention” from the Judicial Conference (of which he is the chair) in 2022.26
`As this article was going to press, the chief judge of the Western District
`of Texas entered an order dramatically changing how certain patent cases
`are assigned to judges in the district.27 As we explain below, that order will,
`at least for now, prevent litigants in that court from choosing the judge who
`will hear their case and stop the flood of patent cases into Waco.28 Yet, until
`random case assignment is mandated by statute or in the Federal Rules of
`Civil Procedure, courts can still use the promise of judge shopping to lure
`patent cases. This article on the Federal Circuit’s mandamus practice, which
`we show is largely driven by judge shopping at the district court level, is
`highly relevant to ongoing policy conversations about how judges are
`assigned to cases—both in patent law and beyond.29
`The remainder of the article proceeds as follows. Part I provides an
`essential primer on appellate jurisdiction, procedure, and practice, including
`a discussion of the law governing the writ of mandamus. Part II describes
`
`
`24. On the uneven distribution of patent cases in the federal judicial system and the problems it
`causes, see Jeanne C. Fromer, Patentography, 85 N.Y.U. L. REV. 1444, 1462–68 (2010).
`25.
`Letter from Sens. Patrick Leahy & Thom Tillis to C.J. John Roberts at 1 (Nov. 2, 2021),
`https://www.patentprogress.org/wp-content/uploads/2021/11/11.2-TT-PL-Ltr-to-Judicial-Conference-
`re-Patent-Forum-Shopping-Final.pdf [https://perma.cc/V5JC-PMSG] (noting that practices that allow
`litigants to “effectively select the judge who will hear their case” “create[] an appearance of impropriety
`which damages the federal judiciary’s reputation for the fair and equal administration of the law”).
`26. CHIEF JUST. JOHN G. ROBERTS, JR., 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY
`3–5
`(2021),
`https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf
`[https://perma.cc/7YUX-5JXG].
`27. CHIEF DIST. JUDGE ORLAND L. GARCIA, ORDER ASSIGNING THE BUSINESS OF THE COURT
`IT
`RELATES
`PATENT
`CASES
`(2022),
`https://www.txwd.uscourts.gov/wp-
`TO
`AS
`content/uploads/Standing%20Orders/District/Order%20Assigning%20the%20Business%20of%20the
`%20Court%20as%20it%20Relates%20to%20Patent%20Cases%20072522.pdf [https://perma.cc/9JVB-
`6WLF].
`See infra Section V.C.
`28.
`For critiques of judge shopping outside of patent law, see Alex Botoman, Divisional Judge-
`29.
`Shopping, 49 COLUM. HUM. RTS. L. REV. 297, 305-07 (2018); Steve Vladeck, Opinion, Texas Judge’s
`COVID Mandate Ruling Exposes Federal ‘Judge-Shopping’ Problem, MSNBC (Jan. 11, 2022, 11:33
`PM),
`https://www.msnbc.com/opinion/texas-judge-s-covid-mandate-ruling-exposes-federal-judge-
`shopping-n1287324 [https://perma.cc/2WZR-5Y6L].
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`the methodology of the article’s empirical study of interlocutory appeals at
`the Federal Circuit. Part III presents the results of that study and conducts a
`deep dive into the area where Federal Circuit’s decision-making is most
`noteworthy and controversial: mandamus petitions seeking transfer of
`venue in district court patent infringement litigation. Part IV compares the
`Federal Circuit’s practice of granting transfer-related mandamus petitions
`to the Fifth Circuit’s practice. This comparison is salient because the Federal
`Circuit purports to use the mandamus and venue precedent of the regional
`circuit in which the district court sits; because so many mandamus petitions
`to the Federal Circuit originate in Texas, the Federal Circuit claims to use
`the Fifth Circuit’s precedent in those cases. Finally, Part V discusses the
`implications of our empirical analysis and sketches how both the law and
`process of transfer, venue, mandamus, and judicial case assignment could
`be reformed to reduce the pressure on the Federal Circuit to use the
`extraordinary writ of mandamus as an ordinary means of appellate error
`correction.
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`I. MANDAMUS IN THE FEDERAL COURTS: A PRIMER ON APPELLATE
`JURISDICTION, PROCEDURE, AND PRACTICE
`
`Under the final judgment rule, litigants in federal court must typically
`wait to appeal until the district court case is completely resolved.30 But the
`final judgment rule has many exceptions. The two most relevant for the
`purpose of this article are (1) permissive interlocutory appeals under 28
`U.S.C. § 129231 and, of far more importance in the Federal Circuit, (2) the
`writ of mandamus.32
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`A. Interlocutory Appeals
`
`28 U.S.C. § 1292 grants the federal courts of appeals jurisdiction over
`two types of interlocutory (that is, non-final) orders: (1) “[i]nterlocutory
`orders . . . granting, continuing, modifying, refusing or dissolving
`injunctions, or refusing to dissolve or modify injunctions” and (2) orders the
`district judge determines “involve[] a controlling question of law as to
`which there is substantial ground for difference of opinion and . . . an
`immediate appeal . . . may materially advance the ultimate termination of
`the litigation.”33 While the statute provides an appeal as of right for orders
`relating to injunctions, for the latter category of orders—those involving a
`
`See 28 U.S.C. §§ 1291, 1295(a)(1) (granting the courts of appeals jurisdiction to review “final
`30.
`decisions” of the district courts).
`31.
`See infra Section I.A.
`32.
`See infra Section I.B.
`33.
`28 U.S.C. §§ 1292(a)–(b).
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`controlling question of law—the statute specifies that the court of appeals
`“in its discretion” may permit an immediate appeal.34 Courts of appeals tend
`to use this discretion parsimoniously;35 it is not uncommon for an appellate
`opinion to refuse to review a district court order certifying an interlocutory
`appeal by noting that “[r]eview under § 1292(b) is granted sparingly and
`only in exceptional cases.”36
`
`VOL. 100:327
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`B. Writs of Mandamus
`
`A second important exception to the final judgment rule is the writ of
`mandamus. Mandamus, which means “we command,” 37 is a writ that
`requires a person (usually a public official or lower court) to take a specified
`action.38 The All Writs Act grants federal courts the power to issue writs of
`mandamus.39 Thus, the federal courts of appeals can issue writs instructing
`lower courts to rule on a particular issue in a certain way. This review of
`district courts by appellate courts is known as “appellate mandamus.”40
`Appellate mandamus is deployed on all sorts of legal issues: discovery (in
`particular, the attorney-client privilege), 41 consolidation or severance of
`cases for trial, 42 temporary restraining orders, 43 trial procedure, 44 and
`judicial and attorney disqualification orders,45 among many others.46
`Nevertheless, the Supreme Court has made clear that appellate
`mandamus is an “extraordinary” event, meant for “only . . . extreme
`cases.” 47 The extraordinary nature of mandamus relief stems from its
`tension with the policies underlying the final judgment rule. If writs of
`mandamus issue too frequently, judicial efficiency is compromised by
`placing the appellate court in the awkward position of being an arbiter of
`interlocutory disputes rather than a reviewer of final decisions.48
`
`Id.
`34.
`See 16 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3929
`35.
`(collecting statistics).
`36.
`E.g., In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002).
`37. Mandamus, BLACK’S LAW DICTIONARY (11th ed. 2019).
`38.
`See Gugliuzza, supra note 13, at 351–56.
`39.
`28 U.S.C. § 1651(a).
`40.
`See 16 WRIGHT ET AL., supra note 35, § 3935 (discussing the use of mandamus in civil
`litigation).
`See, e.g., In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 641 (8th Cir. 2001).
`41.
`See, e.g., Garber v. Randell, 477 F.2d 711, 715 n.2 (2d Cir. 1973).
`42.
`See, e.g., In re Vuitton et Fils S.A., 606 F.2d 1, 3 (2d Cir. 1979).
`43.
`See, e.g., Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511 (1959).
`44.
`See, e.g., In re Aetna Cas. & Sur. Co., 919 F.2d 1136, 1143 (6th Cir. 1990) (en banc).
`45.
`See 16 WRIGHT ET AL., supra note 35, § 3935.7 (collecting cases).
`46.
`La Buy v. Howes Leather Co., 352 U.S. 249, 256, 258 (1957).
`47.
`See J. Jonas Anderson, Specialized Standards of Review, 18 STAN. TECH. L. REV. 151, 163
`48.
`(2015) (stating that appellate courts “have been highly variable” in the standards of review they apply
`
`
`

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`Case 6:22-cv-00031-ADA Document 90-1 Filed 01/20/23 Page 12 of 66
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`EXTRAORDINARY WRIT OR ORDINARY REMEDY?
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`337
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`
`
`
`
`2022
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`
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`To ensure that mandamus remains an extraordinary remedy, the Supreme
`Court has stated that three requirements must be satisfied for an appellate
`court to grant the writ. First, the party seeking mandamus must have “no
`other adequate means” to obtain relief.49 Second, the party must show that
`its right to mandamus is “clear and indisputable.”50 Third, the court must be
`satisfied that mandamus is “appropriate” under the circumstances.51 Circuit
`courts have developed more detailed frameworks. 52 Though these
`frameworks vary somewhat from one court to another, they generally look
`at the severity of the district court’s error, the importance of the question
`presented, and the likelihood that the error will recur.53
`
`C. Federal Circuit Appeals: Interlocutory and Otherwise
`
`The U.S. Court of Appeals for the Federal Circuit hears appeals from
`numerous sources, ostensibly to keep it from becoming too specialized.54
`The court is best known for its exclusive, nationwide jurisdiction over all
`appeals in patent cases. A less well-known yet substantial portion of the
`court’s docket involves claims against the federal government arising from
`the Court of Federal Claims, veterans benefits proceedings from the Court
`of Appeals for Veterans Claims, international trade disputes from the
`International Trade Commission and the Court of International Trade, and
`employment disputes involving federal employees from the Merit Systems
`Protection Board, among others.55 The court also hears appeals in trademark
`
`
`to discretionary decisions). Cf. Adam N. Steinman, Reinventing Appellate Jurisdiction, 48 B.C. L. REV.
`1237, 1241–42 (2007) (arguing that, in practice, the federal appellate courts exercise jurisdiction over a
`broad range of interlocutory orders).
`49. United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 544 (1937). Accordingly,
`the question typically must be one that is not effectively reviewable after a final judgment (such as
`questions of attorney-client privilege, see, e.g., In re Kellogg Brown & Root, Inc. 756 F.3d 754 (D.C.
`Cir. 2014)), or, at a minimum, be one in which such post-judgment review would be highly inefficient
`(such as venue, see, e.g., In re HTC Corp., 889 F.3d 1349, 1352 n.5 (Fed. Cir. 2018)).
`50. Kerr v. U.S. Dist. Ct., 426 U.S. 394, 403 (1976).
`51.
`Id.
`52.
`