The New Federal Circuit Mandamus

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the U.S. District Court for the Eastern District of Texas. This use of mandamus to repeatedly overturn discretionary, non-appealable rulings of one district court is unprecedented in any federal court of appeals. What makes the Federal Circuit’s cases particularly notable is that the court, not long ago, would grant mandamus only on issues governed by Federal Circuit patent law. Because transfer of venue is a non-patent issue controlled by regional circuit law, the recent cases plainly would not warrant mandamus under the court’s prior, narrower standard. The court’s focus on the Eastern District of Texas is also interesting because of the popular view that the Eastern District is biased in favor of patent holders and denies transfer motions with impunity. This is the first article to analyze the Federal Circuit’s retreat from its original, restrained view of mandamus. It begins by considering why the Federal Circuit initially believed it could grant mandamus on patent issues only, a question previously ignored by the literature. The Article then explores why, in its recent cases, the court has abandoned the view that Federal Circuit mandamus should be limited to issues of patent law. Surprisingly, the Federal Circuit has never explained its reasoning. The Article fills this analytical void and develops a doctrinal, theoretical, and pragmatic rationale for Federal Circuit mandamus on non-patent issues. The Article also offers possible explanations for the Federal Circuit’s fixation on the Eastern District of Texas and proposes a new analytical framework for Federal Circuit mandamus — a framework that might emerge if the court were to critically examine its mandamus power