Posts tagged “Mandamus”
Mandamus is supposedly an extraordinary remedy. But a new paper from Jonas Anderson, Paul Gugliuzza, and Jason Rantanen shows that grants of the writ have become somewhat ordinary in Federal Circuit. And those grants have largely addressed venue issues in patent cases filed in the Eastern and Western Districts of Texas. (I discussed a trio of those grants in a weekly roundup last November, but those three only scratched the surface.)
The paper—titled Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit—is forthcoming in the Washington University Law Review. It presents an excellent study of these developments in Federal Circuit mandamus, and it includes novel and fascinating empirical insights. It’s well worth your time. The abstract is below. And you can download the draft at SSRN.
Kylie G. Calabrese has published a note in the Baylor Law Review titled Mandamus Madness in the Fifth Circuit: The Aftermath of In re JP Morgan. Calabrese chronicles—and criticizes—last year’s Fifth Circuit decision in In re JP Morgan Chase & Co., in which the panel denied mandamus yet purported to issue a binding holding on the underlying legal issues.…
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In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.
In In re Williams-Sonoma, Inc., a district court had ordered a defendant to produce a list of its customers so opposing counsel could identify a lead plaintiff to pursue a class action. A split panel of the Ninth Circuit concluded that this discovery order was clearly erroneous and warranted reversal via mandamus.
The following guest post is by Alan B. Morrison. Mr. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School, where he teaches civil procedure. He is also the co-author, with Howard Eisenberg, of an article dealing with similar appeal issues: Discretionary Appellate Review of Non-Final Orders: It’s Time To Change the Rules, 1 Journal of Appellate Practice & Process 285 (1999) (PDF, 1.3 MB).
On July 10, 2019, the Fourth Circuit unanimously ruled that the State of Maryland and the District of Columbia lack standing to challenge President Donald J. Trump’s alleged failure to comply with the Foreign Emoluments Clause of Article I, section 9, clause 8 of the Constitution, which forbids any officer of the United States from accepting any “present, Emolument, Office or Title . . . from any King, Prince, or foreign State.” I shall not debate the merits of the standing question, which is currently pending in other similar, but different contexts in the Second and D.C. Circuits, nor the meaning of the Emoluments Clause, which is at least within the realm of Congress, should it embark on impeachment or seek to legislate in that area. Instead, being a civil procedure nerd, I want to focus on the Fourth Circuit’s use of mandamus to reach the standing issue and what that spells for the future of appellate jurisdiction in the federal courts.
Update, September 4, 2019: Back before the district court, the court certified its decisions for an immediate appeal under § 1292(b). Trump then petitioned to appeal, and on September 4, 2019, the D.C. Circuit granted the petition.
In the emoluments suit brought by members of Congress, the D.C. Circuit tried to avoid weighing in on whether it can order a district court—via a writ of mandamus—to certify an order for immediate appeal under 28 U.S.C. § 1292(b). But it effectively did so; the court of appeals said that the district court was wrong to deny certification, and it “remand[ed] the matter to the district court for immediate reconsideration.” The panel appears to hope that the district court will certify the decision for an immediate appeal and thus avoid any dispute over the appellate court’s mandamus power. It’s essentially a game of appellate-jurisdiction chicken.
The Fourth Circuit took the extraordinary (and possibly improper) step today of directing a district court—via a writ of mandamus—to certify an issue for immediate appeal under 28 U.S.C. § 1292(b). It did so in one of two interlocutory appeals in Maryland and the District of Columbia’s emoluments-clause suit against Donald Trump. In both, the Fourth Circuit held that Maryland and D.C. lacked standing to bring their claims. And in both, the court had to address its jurisdiction over the appeals.
One appeal (PDF, 39 KB) involved a relatively straightforward collateral-order appeal from the effective denial of absolute immunity. But to hear the other appeal (PDF, 106 KB), the Fourth Circuit had to use mandamus to direct the district court to certify an immediate appeal. This use of mandamus is extremely rare, and it’s not clear that it’s is a proper use of the writ.
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