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`CORRECTED: OCTOBER 1, 2021
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`NOTE: This order is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`In re: APPLE INC.,
`Petitioner
`______________________
`
`2021-187
`______________________
`
`On Petition for Writ of Mandamus to the United States
`District Court for the Western District of Texas in No. 6:21-
`cv-00926-ADA, Judge Alan D. Albright.
`______________________
`
`ON PETITION AND MOTION
`______________________
`
`Before DYK, PROST, and HUGHES, Circuit Judges.
`PER CURIAM.
`
`O R D E R
`Apple Inc. petitions for a writ of mandamus directing
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`the United States District Court for the Western District of
`Texas to vacate its order transferring this case from the
`Austin Division of the Western District of Texas to the
`Waco Division and to stay that order pending disposition of
`the petition. Because the district court cites no statutory
`authority for its re-transfer and because Austin remains
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`2
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`IN RE: APPLE INC.
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`the more convenient forum, we grant the petition and di-
`rect the district court to vacate its order.
`I
` Fintiv, Inc. filed the underlying patent-infringement
`suit against Apple in the Waco Division of the Western Dis-
`trict of Texas in December 2018. In September 2019, the
`district court judge granted-in-part Apple’s motion to
`transfer venue of the action to the Austin Division of the
`Western District of Texas, where the same judge continued
`to preside over the case. Although the district court denied
`transfer to Apple’s preferred destination in Northern Cali-
`fornia, the district court agreed with Apple that the Austin
`Division of the Western District of Texas was, at the time,
`clearly more convenient for trial.
`The district court scheduled the trial to begin in Austin
`on October 4, 2021. But on September 8, 2021, one month
`before trial, the district court ordered the case re-trans-
`ferred back to Waco. In its order, the district court ex-
`plained only that “[j]ury trials in the Austin courthouse
`ha[ve] largely been suspended” due to the COVID-19 pan-
`demic, that “it remains uncertain whether the Austin
`courthouse will be open for jury trial in the foreseeable fu-
`ture,” and that such intervening events “frustrated the
`original purpose of transferring this action to the Austin
`Division.” Order at 1–2, Fintiv, Inc. v. Apple Inc., 6:21-cv-
`00926-ADA (W.D. Tex. Sept. 8, 2021), ECF No. 386 (“Re-
`Transfer Order”).
`Apple now petitions this court for a writ of mandamus
`directing the district court to vacate the re-transfer order
`and to stay that order pending disposition of the petition.
`Fintiv opposes both requests. We have jurisdiction under
`28 U.S.C. §§ 1651 and 1295.
`II
`Our review here is governed by Fifth Circuit law. See
`In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir.
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`IN RE: APPLE INC.
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`2008). When a writ of mandamus is sought, we review a
`decision to transfer for a clear abuse of discretion. See In re
`Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008)
`(en banc).
`In In re Intel Corp., we explained that the only author-
`ity for an intra-district re-transfer without full consent of
`the parties is 28 U.S.C. § 1404(a). 841 F. App’x 192, 193–95
`(Fed. Cir. 2020). Under § 1404(a), a district court “should
`not re-transfer except under the most impelling and unu-
`sual circumstances,” such as unanticipated “post-transfer
`events [that] frustrate the original purpose for transfer.” In
`re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983)
`(cleaned up). Further, a re-transfer analysis should be
`“based on the traditional factors bearing on a § 1404(a)
`analysis” and “should take into account the reasons of con-
`venience that caused the earlier transfer.” Intel, 841 F.
`App’x at 195.
`Here, the district court inexplicably failed to perform
`that analysis, giving “the parties and reviewing courts no
`way of understanding how the court reached its conclusion
`and providing no assurance that it was the result of consci-
`entious legal analysis.” In re Lloyd’s Reg. N. Am., Inc.,
`780 F.3d 283, 291 (5th Cir. 2015). The district court artic-
`ulated no authority in its order to re-transfer, explaining
`only that “it remains uncertain whether the Austin court-
`house will be open for jury trial in the foreseeable future.”
`Re-Transfer Order at 1. Not only is this explanation mini-
`mal, but it is also not supported by any analysis of the tra-
`ditional § 1404(a) factors. Nor is there any indication that
`the Austin courthouse is currently closed for trial. The dis-
`trict court even acknowledged that some civil trials are pro-
`ceeding in Austin and that there is a possibility of “being
`able to use a courtroom in Austin” and “mov[ing] forward
`with [the trial] in Austin.” Appx175–77.
`Fintiv suggests that its position statement before the
`district court sufficiently explains the district court’s
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`IN RE: APPLE INC.
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`ruling. But “[a]n explanation must be generated by the
`court, not inferred by the appellate court from the submis-
`sions of the parties,” and a “[c]ontrary rule would require
`us to guess the basis for the decision without guidance, es-
`sentially reducing us to the role of replacing the district
`court’s discretion with our own.” Lloyd’s Reg., 780 F.3d at
`290–91.
`To be sure, the district court gestures to our decision in
`Intel by stating that “the intervening COVID-19 pandemic
`has frustrated the original purpose of transferring this ac-
`tion to the Austin Division.” Re-Transfer Order at 1–2. But
`the purpose of transfer under § 1404(a) is “for the conven-
`ience of parties and witnesses” and the “interest of justice.”
`28 U.S.C. § 1404(a). In originally granting Apple’s motion
`to transfer venue to the Austin Division, the district court
`performed the required analysis and found that Austin was
`clearly the more convenient venue. Order Denying Defend-
`ant Apple’s Motion to Transfer Venue at 4–17, Fintiv, Inc.
`v. Apple Inc., 6:21-cv-00926-ADA (W.D. Tex. Sept. 10,
`2019), ECF No. 73. It relied in large part on the fact that
`there are no sources of proof in the Waco Division and that
`the parties and a relevant third party have a significant
`presence in Austin, but not in Waco. Id. at 17. We approved
`this reasoning in our order denying Apple’s previous peti-
`tion for mandamus seeking transfer to the Northern Dis-
`trict of California. See In re Apple Inc., No. 2020-104 (Fed.
`Cir. Dec. 20, 2019).
`On the record before us, it is far from clear that the
`intervening COVID-19 pandemic has frustrated any of the
`original purposes for transferring this case from Waco to
`Austin under § 1404(a). Relevant witnesses and evidence
`remain in Austin, and the parties continue to maintain
`their presences there. Pet. Opening Br. at 20. Furthermore,
`the parties have prepared for trial in Austin. And Apple’s
`employee witnesses will all be traveling from California,
`from which there are no direct flights to Waco. Pet. Reply
`at 9. So far as the briefing before this court reflects, the
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`IN RE: APPLE INC.
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`only factor that may have changed as a result of the
`COVID-19 pandemic is the public interest “court-conges-
`tion” factor—which seems, at most, to slightly weigh in fa-
`vor of re-transfer. But as we have said previously, this
`factor is the “most speculative” of the factors bearing on
`transfer and “should not alone outweigh all . . . other fac-
`tors.” In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir.
`2009). This is particularly so here, given the district court’s
`acknowledgement that there is a possibility of “mov[ing]
`forward with [the trial] in Austin.” Also, court congestion
`was not a factor relied on by the district court as a basis for
`transferring the case to Austin.
`Under these circumstances, where the district court
`has failed to perform the requisite § 1404(a) analysis and
`where Austin remains the more convenient forum, the dis-
`trict court’s decision to re-transfer this case back to the
`Waco Division amounts to a clear abuse of discretion.
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`Accordingly,
`
`IT IS ORDERED THAT:
`(1) The petition for a writ of mandamus is granted. The
`district court’s September 8, 2021 order re-transferring the
`trial from Austin to Waco is vacated and we remand with
`instructions that this action shall proceed in the Austin Di-
`vision of the United States District Court for the Western
`District of Texas.
`(2) The motion to stay is denied as moot.
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`FOR THE COURT
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`October 1, 2021
`/s/ Peter R. Marksteiner
`Date
`Peter R. Marksteiner
`Clerk of Court
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