Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit
65 Pages Posted: 8 Mar 2022 Last revised: 9 May 2022
Date Written: March 3, 2022
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. Accordingly, most federal courts of appeals 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 61 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.
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 courts, but for individual judges. To bring Federal Circuit mandamus practice into the mainstream, we argue that Congress or the Supreme Court must intervene to fix the underlying problems that have left the Federal Circuit with little choice but to use an extraordinary writ as an ordinary mechanism of appellate review.
Keywords: patent law, civil procedure, jurisdiction, mandamus
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