Mandamus

I wrote a short article in May 2016 about the Fifth Circuit’s approach to mandamus.

In re Volkswagen,  545 F.3d 304 (5th Cir. 2008) (en banc), is a leading opinion about appellate review of the denial of a motion to transfer venue for convenience reasons.  The development of the law on that issue is detailed in Ashby, Coale & Kratovil,  “The Increasing Use and Importance of Mandamus in the Fifth Circuit,” 43 Tex. Tech. L. Rev. 1049 (2011).

A counterpoint about the availability of mandamus relief in federal courts appears in In re Crystal Power, 641 F.3d 82 (5th Cir. 2011), denying mandamus review of a refusal to remand, and citing case law from the late 19th Century.  A recent law review article thoughtfully reviews Crystal Power — Ryan, Meier, and Counsellor, “Interlocutory Review of Orders Denying Remand Motions,” 63 Baylor L. Rev. 734 (2011).  See generally In re Amy Unknown, 701 F.3d 749, 756-57 (5th Cir. 2012) (en banc) (in criminal restitution context, reviewing mandamus standards generally and stating: “Mandamus traditionally ‘is not to be used as a substitute for an appeal, or to control the decision of the trial court in discretionary  matters.'”) (This case was also later reversed by the Supreme Court on the merits).

In the same spirit, the case of In re Atlantic Marine Construction denied mandamus relief to enforce a forum selection clause, finding no clear abuse of discretion by the district court, although a special concurrence details differences of opinion on the controlling issue in that case.  701 F.3d 736 (5th Cir. 2012).  (The Supreme Court later reversed 9-0 on the forum selection issue, 134 S. Ct. 568 (2013), but did not engage the mandamus posture in which the case arose.)

Two other recent cases of note have declined to grant mandamus relief.  A limited opinion about mandamus review of an expert fee order under the CJA, In re Marcum LLP, reminds that the All Writs Act’s grant of authority to issue a writ of mandamus is not an independent grant of federal jurisdiction.  670 F.3d 636 (5th Cir. 2012).  And in the case of  In re Katrina Canal Breaches Litigation, in the context of affirming several governmental immunity issues, the Court declined to grant a writ of mandamus to stay an upcoming trial because its opinion affirmed the immunity rulings that the district court would use for that trial.   673 F.3d 381 (5th Cir. 2012).  (A later opinion mooted the mandamus issue because it changed the disposition of the merits.)  See also  All Plaintiffs v. Transocean Offshore, No. 12-30237 (Jan. 3, 2013, unpublished) (following Mohawk Industries v. Carpenter, 130 S. Ct. 599 (2009), finding that the collateral order doctrine did not allow appeal of an order requiring a psychiatric exam, and discussing the unavailability of mandamus in a concurrence).

In In re Radmax, Ltd., 720 F.3d 285 (5th Cir. 2013), the Fifth Circuit found a clear abuse of discretion in declining to transfer a case from the Marshall Division of the Eastern District of Texas to the Tyler Division.  It found that the district court incorrectly applied the eight relevant 1404(a) factors, giving undue weight to potential delay and not enough weight to witness inconvenience, and quoting Moore’s Federal Practice for the principle that “‘the traditional deference given to plaintiff’s choice of forum . . . is less’ for intra-district transfers.”  A pointed dissent agreed that the 1404(a) factors favored transfer but saw no clear abuse of discretion, noting that there was no clear Fifth Circuit authority on several of the points at issue in the context of intra-district transfers.  The full court subsequently denied en banc review by a 7-8 vote.  736 F.3d 1012 (5th Cir. 2013).   

The 2-1 decision in  In re: Rolls Royce Corp., 775 F.3d 671 (5th Cir. 2014), built on Atlantic Marine.   After confirming that mandamus relief was available, despite the novel procedural context of a combined transfer and venue motion, the majority reviewed the applicability of Atlantic Marine.  “For cases where all parties signed a forum selection contract, the analysis is easy: except in a truly exceptional case, the contract controls.”  For a situation where only one of several defendants has a clause, however, the analysis is more subtle: “While Atlantic Marine noted that public factors, standing alone, were unlikely to defeat a transfer motion, the Supreme Court has also noted that section 1404 was designed to minimize the waste of judicial resources of parallel litigation of a dispute. The tension between these centrifugal considerations suggests that the need — rooted in the valued public interest in judicial economy — to pursue the same claims in a single action in a single court can trump a forum-selection clause.”  Despite that observation, it granted mandamus to enforce the clause.  A dissent “believe[s] the majority have erroneously and confusingly diminished the scope of Atlantic Marine,” concluding: “Simple two-party disputes are near a vanishing breed of litigation.  It seems highly unlikely that the Supreme Court granted certiorari and awarded the extraordinary relief of mandamus simply to proclaim that a forum selection clause must prevail only when one party sues one other party.  The Court is not naive about the nature of litigation today.”

In In re Lloyd’s Register North America, Inc., 780 F.3d 283 (5th Cir. 2015), the Fifth Circuit granted mandamus on a forum non conveniens issue.  The point of division between the majority and dissent — whether an error is “clear” or not — resembles a similar split between the majority and dissent in In re Radmax.  And most recently, a panel divided on whether a federal court has jurisdiction over a suit brought by an assignee of a receiver, finding no “clear and indisputable” error.  A dissent disagreed.  In re American Lebanese Syrian Associated Charities, No. 15-11188 (March 3, 2016).