Case: 20-135 Document: 59 Page: 1 Filed: 12/09/2020
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`Misc. No. 2020-135
`United States Court of Appeals
`for the Federal Circuit
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`IN RE APPLE, INC.
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` On Petition for a Writ of Mandamus from the United States District Court
`for the Western District of Texas, Case No. 6:19-CV-00532-ADA,
`Judge Alan Albright
`UNILOC 2017 LLC’S PETITION FOR REHEARING EN BANC
`WILLIAM E. DAVIS, III
`CHRISTIAN JOHN HURT
`DAVIS FIRM PC
`DAVIS FIRM PC
`213 N. Fredonia Street
`213 N. Fredonia Street
`Suite 230
`Suite 230
`Longview, Texas 75601
`Longview, Texas 75601
`(903) 230-9090
`(903) 230-9090
`bdavis@bdavisfirm.com
`churt@bdavisfirm.com
`Counsel for Petitioner
`Counsel for Petitioner
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`DECEMBER 9, 2020
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`Misc. No. 2020-135
`United States Court of Appeals
`for the Federal Circuit
`
`IN RE APPLE, INC.
`
`
` On Petition for a Writ of Mandamus from the United States District Court
`for the Western District of Texas, Case No. 6:19-CV-00532-ADA,
`Judge Alan Albright
`UNILOC 2017 LLC’S PETITION FOR REHEARING EN BANC
`WILLIAM E. DAVIS, III
`CHRISTIAN JOHN HURT
`DAVIS FIRM PC
`DAVIS FIRM PC
`213 N. Fredonia Street
`213 N. Fredonia Street
`Suite 230
`Suite 230
`Longview, Texas 75601
`Longview, Texas 75601
`(903) 230-9090
`(903) 230-9090
`bdavis@bdavisfirm.com
`churt@bdavisfirm.com
`Counsel for Petitioner
`Counsel for Petitioner
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`DECEMBER 9, 2020
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`Case: 20-135 Document: 59 Page: 2 Filed: 12/09/2020
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`FORM 9. Certificate of Interest
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`CERTIFICATE OF INTEREST
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`Form 9 (p. 1)
`July 2020
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`Case Number
`Short Case Caption
`Filing Party/Entity
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`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
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`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
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`Date: _________________
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`Signature:
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`Name:
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`2020-135
`
`In re Apple Inc.
`
`Uniloc 2017 LLC
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`Christian John Hurt
`
`/s/ Christian John Hurt
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`12/09/2020
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`Case: 20-135 Document: 59 Page: 3 Filed: 12/09/2020
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`FORM 9. Certificate of Interest
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`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Form 9 (p. 2)
`July 2020
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`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
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`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
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`☐ None/Not Applicable ☐ None/Not Applicable
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`Additional pages attached
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`4
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`Uniloc 2017 LLC
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`CF Uniloc Holdings, LLC
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`Case: 20-135 Document: 59 Page: 4 Filed: 12/09/2020
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`FORM 9. Certificate of Interest
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`Form 9 (p. 3)
`July 2020
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`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`None/Not Applicable
`Additional pages attached
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`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
`None/Not Applicable
`
`Additional pages attached
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`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`None/Not Applicable
`Additional pages attached
`
`Debra Coleman, Davis Firm, P.C.
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`Edward K. Chin, Davis Firm, P.C.
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`Rudolph Fink, IV, Davis Firm, P.C.
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`Ty Wilson, Davis Firm, P.C.
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`4
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`4
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`Case: 20-135 Document: 59 Page: 5 Filed: 12/09/2020
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`TABLE OF CONTENTS
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`CERTIFICATE OF INTEREST
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`TABLE OF AUTHORITIES ................................................................................... iii
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`STATEMENT OF COUNSEL ................................................................................. vi
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`INTRODUCTION AND BACKGROUND .............................................................. 1
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`ARGUMENT ............................................................................................................ 3
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`I. Mandamus Review is Extremely Deferential ....................................... 3
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`II.
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`A. Mandamus Applies Only in Extraordinary Cases ........................... 3
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`B. Mandamus is Ill-Suited for Discretionary Issues Like Transfer ...... 4
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`The Majority Exercised De Novo Review Instead of the
`Extremely Deferential Mandamus Review ........................................... 5
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`A. The Majority Improperly Collapsed the Mandamus Test ................ 6
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`B. The Majority Granted Mandamus on Issues Never Raised
`Below ............................................................................................... 7
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`C. The Majority Granted Mandamus on New Law .............................. 8
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`D. The Majority Failed to Defer to the District Court’s
`Application of Regional-Circuit Law .............................................. 9
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`E. The Majority Imposed Its Judgment Instead of Deferring to
`the District Court ........................................................................... 10
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`F. The Majority Eroded the District Court’s Discretion to
`Manage Its Docket ......................................................................... 12
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`III. Maintaining Deference is an Issue of Exceptional Importance .......... 14
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`A. Deference Ensures That District Courts Have the Power to Find
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`Case: 20-135 Document: 59 Page: 6 Filed: 12/09/2020
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`Facts and Determine Credibility .................................................... 14
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`B. Destroying Deference Encourages Inefficient Litigation .............. 16
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`CONCLUSION ....................................................................................................... 17
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`ADDENDUM
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`CERTIFICATE OF SERVICE
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`CERTIFICATE OF COMPLIANCE
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`Case: 20-135 Document: 59 Page: 7 Filed: 12/09/2020
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`TABLE OF AUTHORITIES
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`Cases
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`Allied Chem. Corp. v. Daiflon, Inc.
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`449 U.S. 33 (1980) ...................................................................................... 4, 5
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`All States Freight, Inc. v. Modarelli
`196 F.2d 1010 (3d Cir. 1952) ........................................................................ 16
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`Anderson v. Bessemer City
`470 U.S. 564 (1985) ...................................................................................... 11
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`Bankers Life & Cas. Co. v. Holland
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`346 U.S. 379 (1953) .............................................................................. 4, 5, 13
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`Cheney v. U.S. Dist. Court
`542 U.S. 367 (2004) ........................................................................................ 6
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`Fowler v. Butts
`829 F.3d 788 (7th Cir. 2016) ......................................................................... 14
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`Highmark Inc. v. Allcare Health Mgmt Sys., Inc.
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`572 U.S. 559 (2014) ........................................................................................ 6
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`Hilton v. Braunskill
`481 U.S. 770 (1987) ...................................................................................... 13
`
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`In re Adobe
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`823 F. App’x 929 (Fed. Cir. 2020) .............................................................. 7, 8
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`In re Apple, Inc.
`2019 U.S. App. LEXIS 39376 (Fed. Cir. Dec. 20, 2019) ....................... 11, 12
`
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`In re Apple, Inc.
`818 Fed. App’x 1001 (Fed. Cir. 2020) .................................................... 11, 12
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`In re Dropbox, Inc.
`814 F. App’x 598 (Fed. Cir. 2020) .............................................................. 7, 8
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` iii
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`Case: 20-135 Document: 59 Page: 8 Filed: 12/09/2020
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`In re Google Tech. Holdings LLC
`--- F.3d ---, No. 19-1828 (Fed. Cir. 2020) ....................................................... 7
`
`
`In re Innotron Diagnostics
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`800 F.2d 1077 (Fed. Cir. 1986) ....................................................................... 2
`
`In re Lloyd’s Register N. Am., Inc.
`780 F.3d 283 (5th Cir. 2015) ......................................................................... 10
`
`
`In re TS Tech. USA Corp.
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`551 F.3d 1315 (Fed. Cir. 2008) ....................................................................... 2
`
`In re Vistaprint Ltd., 628 F.3d 1342
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`628 F.3d 1342 (Fed. Cir. 2010) ..................................................................... 14
`
`In re Volkswagen of Am., Inc.
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`545 F.3d 304 (5th Cir. 2008) ........................................................................... 9
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`Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.
`342 U.S. 180 (1952) ...................................................................................... 14
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`Landis v. N. Am. Co.
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`299 U.S. 248 (1936) ...................................................................................... 13
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`Mohawk Indus. v. Carpenter
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`558 U.S. 100 (2009) .................................................................................... 3, 4
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`Octane Fitness, LLC v. ICON Health & Fitness, Inc.
`572 U.S. 545 (2014) ........................................................................................ 6
`
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`Panduit Corp. v. All States Plastic Mfg. Co.
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`744 F.2d 1564 (Fed. Cir. 1984) ....................................................................... 9
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`Piper Aircraft Co. v. Reyno
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`454 U.S. 235 (1981) ...................................................................................... 10
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`Richardson-Merrell, Inc. v. Koller
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`472 U.S. 424 (1985) ........................................................................................ 4
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` iv
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`Case: 20-135 Document: 59 Page: 9 Filed: 12/09/2020
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`Stewart Org., Inc. v. Ricoh Corp.
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`487 U.S. 22 (1988) .......................................................................................... 4
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`TC Heartland LLC v. Kraft Foods Grp. Brands LLC
`137 S. Ct. 1514 (2017) .................................................................................. 16
`
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`Teva Pharms. USA v. Sandoz, Inc.
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`135 S. Ct. 831 (2015) ...................................................................................... 6
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`United States v. Alaniz
`726 F.3d 586 (5th Cir. 2013) ......................................................................... 11
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`VanDesande v. United States
`673 F.3d 1342 (Fed. Cir. 2012) ....................................................................... 8
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`Will v. Calvert Fire Ins. Co.
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`437 U.S. 655 (1978) ...................................................................................... 13
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`Statutes & Rules
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`28 U.S.C. § 1400 ..................................................................................................... 16
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`28 U.S.C. § 1404 ........................................................................................... 2, 4, 5, 9
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`28 U.S.C. § 1406 ....................................................................................................... 5
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`Case: 20-135 Document: 59 Page: 10 Filed: 12/09/2020
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`STATEMENT OF COUNSEL
`Based on my professional judgment, I believe the panel decision is contrary
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`to the following decision(s) of the Supreme Court of the United States or the
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`precedent(s) of this court:
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`•
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`•
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`•
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`•
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`•
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`•
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`•
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`Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009)
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`Cheney v. U.S. Dist. Court, 542 U.S. 367 (2004)
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`Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22 (1988)
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`Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)
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`Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980)
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`Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953)
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`Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564 (Fed.
`Cir. 1984)
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`Based on my professional judgment, I believe this appeal requires an answer
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`to one or more precedent-setting questions of exceptional importance:
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`1. What level of deference should this Court afford on mandamus
`review of discretionary transfer decisions?
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`2.
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`Can this Court find a clear abuse of discretion, amounting to a
`usurpation of judicial power, based on (1) arguments and law never
`presented to the district court; (2) creating new law instead of
`following applicable regional circuit law; (3) substituting its
`weighing of discretionary factors for the district court’s; or (4)
`impinging on the district court’s discretion to control its docket?
`
`/s/ Christian John Hurt
`Christian John Hurt
`Counsel for Petitioner
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`Case: 20-135 Document: 59 Page: 11 Filed: 12/09/2020
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`INTRODUCTION AND BACKGROUND
`The Court should sit en banc to correct a split-panel decision that conflicts
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`with Supreme Court decisions and this Court’s precedent. The decision is the latest
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`in a line of cases eroding trial courts’ discretion to weigh facts, decide issues within
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`their power, and manage their dockets, effectively converting them into special
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`masters of this Court. With this decision, the Court drifts well beyond its authority
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`to conduct limited review of discretionary matters and substitutes its own judgment
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`on the application of law to facts for that of the trial court, something prohibited
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`under a discretionary standard of review.
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`This petition concerns motions to transfer venue for convenience. This issue
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`may not sound important, but it is. Distr ict courts decide between 170–440
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`convenience motions annually.1 Many transfer denials come before this Court on
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`mandamus. Convenience is now litigated on a level and at an expense that rivals
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`summary judgment (e.g., declarations, discovery, and evidentiary hearings).
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`But it was not always this way. For 26 years, this Court reviewed transfer
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`decisions post-judgment, as its jurisdictional statute foreclosed the “authority to
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`inject itself into the business-like elements of the administration of justice within the
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`1 For context, this Court receives 300–600 total district-court appeals annually.
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`1
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`Case: 20-135 Document: 59 Page: 12 Filed: 12/09/2020
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`regional circuits,” like transfer.2 It deferred to the discretion that Congress provides
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`district judges in Section 1404(a): “For the convenience of parties and witnesses, in
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`the interest of justice, a district court may transfer any civil action....”3
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`In December 2008, a shift occurred and this Court began routinely granting
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`convenience-mandamus petitions.4 Today, t he Court sees as many convenience
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`petitions in one year as it used to see in ten. This is out of step with other regional
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`circuits. Since 2008, this Court has issued over seventy mandamus decisions; the
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`Fifth Circuit by comparison has issued seven. And this Court grants the “exceptional
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`remedy” of mandamus in approximately 1-out-of-3 petitions.
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`But this panel’s split-decision goes beyond prior cases. The majority found
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`the judge, in a 34-page opinion following a 90-minute hearing, clearly abused his
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`discretion, not because the judge failed to apply the law—but because the majority
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`faulted how the judge applied the law and weighed the facts. More problematic, the
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`majority found errors on factual issues not raised before the judge and on law issuing
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`after his opinion. And the majority invaded district-court docket-management
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`powers. It criticized the judge for allowing substantive pre-trial work to continue
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`2 In re Innotron Diagnostics, 800 F.2d 1077, 1083 (Fed. Cir. 1986) (“More
`troublesome are petitions seeking to overturn district court orders that would not
`necessarily frustrate this court’s appellate jurisdiction[….], [such as] transfer of case
`to another district[.]”).
`3 All emphases supplied unless otherwise noted.
`4 In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008).
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`2
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`Case: 20-135 Document: 59 Page: 13 Filed: 12/09/2020
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`during the pendency of the transfer motion, suggesting that convenience motions
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`must take “top priority” and all other merits work must halt.
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`The majority exceeded its authority to review transfer denials with deference.
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`It vitiated the judge’s discretion to find that the transferee venue was not clearly
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`more convenient than the present, proper venue—where the defendant maintains its
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`second-largest headquarters, has 8,000-plus employees, has relevant witnesses and
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`documents, is building its own hotel, and has a third-party make an accused product.
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`District courts are a vital part of the judiciary. Congress, the Supreme Court,
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`and this Court recognize that district-court discretion is a boundary worth protecting.
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`With all respect, the majority did not review the district court with deference but
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`engaged in de novo review. This requires en banc review to preserve the authority
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`that Congress and the Supreme Court vest in district courts.
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`ARGUMENT
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`I. Mandamus Review is Extremely Deferential
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`A. Mandamus Applies Only in Extraordinary Cases
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`Mandamus is the last-stop exception to “the general rule that a party is entitled
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`to a single appeal, to be deferred until final judgment has been entered.” Mohawk,
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`558 U.S. at 106 (citations omitted). Congress gave district courts the “primary
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`responsibility to police the prejudgment tactics of litigants, and that the district judge
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`can better exercise that responsibility if the appellate courts do not repeatedly
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`3
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`Case: 20-135 Document: 59 Page: 14 Filed: 12/09/2020
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`intervene to second-guess prejudgment rulings.” Richardson-Merrell, Inc. v. Koller,
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`472 U.S. 424, 436 (1985). Thus, “[p]ermitting piecemeal, prejudgment appeals [...]
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`undermines ‘efficient judicial administration’ and encroaches upon the prerogatives
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`of district court judges, who play a ‘special role’ in managing ongoing litigation.”
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`Mohawk, 558 U.S. at 106 (citations omitted). Mandamus is limited to “extraordinary
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`circumstances—i.e., when a[n]…order ‘amount[s] to a judicial usurpation of power
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`or a clear abuse of discretion[.]’” Id. at 111 (citation omitted). “There is no more
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`deferential standard of review[.]” Dissent, at 2.
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`B. Mandamus is Ill-Suited for Discretionary Issues Like Transfer
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`“Section 1404(a) is intended to place discretion in the district court to
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`adjudicate motions for transfer according to an ‘individualized, case-by-case
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`consideration of convenience and fairness.’” Stewart, 487 U.S. at 29 (citation
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`omitted). “ Where a matter is committed to discretion, it cannot be said that a
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`litigant’s right to a particular result is ‘clear and indisputable,’” a predicate to issue
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`mandamus. Allied, 449 U.S. at 36 (citation omitted).
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`Historically, mandamus was inappropriate for transfer orders. In Bankers
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`Life, the Supreme Court held mandamus was unavailable to review a discretionary
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`transfer order and reaffirmed that the remedy does not reach orders that “involve[]
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`4
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`Case: 20-135 Document: 59 Page: 15 Filed: 12/09/2020
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`no abuse of judicial power.” 346 U.S. at 382.5 The petitioner argued that mandamus
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`should be used to correct an order that was wrong on the merits. Id.
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`The Court rejected the argument, holding mandamus is not a substitute for an
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`appeal; it does “not run the gauntlet of reversible errors”; and it does not allow “every
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`interlocutory order which is wrong [to] be reviewed.” Bankers Life, 346 U.S. at
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`382–83. The Court recognized deference had a cost: it “assume[d] that… the order
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`of transfer…will give rise to a myriad of legal and practical problems as well as
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`inconvenience…but [held] Congress must have contemplated those conditions in
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`providing that only final judgments are reviewable.” Id. at 383; see also Allied, 449
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`U.S. at 35 (“Although a simple showing of error may suffice to obtain a reversal on
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`direct appeal, to issue a writ of mandamus under such circumstances ‘would
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`undermine the settled limitations upon the power of an appellate court to review
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`interlocutory orders.’”) (citation omitted).
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`II. The Majority Exercised De Novo Review Instead of the Extremely
`Deferential Mandamus Review
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`The majority did not follow precedent safeguarding district-court discretion.
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`The judge’s 34-page order addressed each convenience factor, found facts, and
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`weighed those facts against the convenience factors. It concluded, for example, that
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`the presence of relevant witnesses and documents in the Western District of Texas
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`5 Bankers Life involved Section 1406(a), which, like Section 1404(a), allows transfer
`“if it be in the interest of justice.” 28 U.S.C. § 1406(a).
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`5
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`Case: 20-135 Document: 59 Page: 16 Filed: 12/09/2020
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`(“WDTX”) weighed against transfer. The majority disregarded those findings and
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`substituted its own belief that the Northern District of California (“NDCA”) would
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`be more convenient, thereby disregarding the deference owed to the district court.
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`The dissent and commentators have rightly characterized this analysis as de
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`novo review. Dissent, at 1.6 This error requires en banc correction. See, e.g.,
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`Highmark Inc. v. Allcare Health Mgmt Sys., Inc., 572 U.S. 559 (2014) (reversing
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`application of de novo review); Teva Pharms. USA v. Sandoz, Inc., 135 S. Ct. 831
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`(2015) (same); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,
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`553 (2014) (reversing for “encumber[ing] the statutory grant of discretion”). The
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`majority’s lack of deference manifested itself in each error below.
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`A. The Majority Improperly Collapsed the Mandamus Test
`The majority committed a foundational error when it “reduc[ed]” the three-
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`part mandamus test to only one factor—a clear-and-indisputable right to relief. Maj.
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`at 3–4. The test is three parts: first, petitioner must demonstrate a clear-and-
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`indisputable right to issuance of the writ; second, that the petitioner has no other
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`adequate means to attain the relief; and third, that the writ is appropriate under the
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`circumstances. Cheney, 542 U.S. at 380–381.
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`6 See, e.g., Federal Circuit Usurps Judge Albright’s Judicial Power, available at.
`https://patentlyo.com/patent/2020/11/federal-albrights-judicial.html (“The majority
`[...] goes beyond even typical de novo review [...] on an issue that is traditionally
`fully within the district court’s discretion.”) (PatentlyO).
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`6
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`Case: 20-135 Document: 59 Page: 17 Filed: 12/09/2020
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`Ignoring the second and third parts eroded the district court’s power.
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`Considering the “no adequate means” factor would have allowed the judge to
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`address arguments first raised on appeal and law issuing after his decision, viz., In
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`re Adobe, 823 F. App’x 929 (Fed. Cir. 2020)—as the same panel did in another case.
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`In re Dropbox, Inc., 814 F. App’x 598, 599 (Fed. Cir. 2020) (finding “no other
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`adequate means” requirement unmet “[i]n light of this court’s intervening decision
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`in Adobe”). An “appropriateness” analysis would have considered Apple’s
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`conduct—petitioning before a written order issued, raising new issues in Reply, and
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`never moving for reconsideration below based on its new issues.
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`B.
`The Majority Granted Mandamus on Issues Never Raised Below
`The majority removed even the possibility of deferential review. It found
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`error on grounds never raised below that the district court never had a chance to
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`address. “The very word ‘review’ presupposes that a litigant’s arguments have been
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`raised and considered in the tribunal of first instance.” In re Google Tech. Holdings
`
`LLC, --- F.3d ---, No. 19-1828, at 10 (Fed. Cir. 2020) (citation omitted).
`
`For example, the majority held “[t]he district court misapplied the law to the
`
`facts of this case by too rigidly applying the 100-mile rule”7 to three witnesses. Maj.
`
`Op. at 12. But Apple never addressed those witnesses below or in its petition, much
`
`7 Infra, p. 9.
`
`
`
`7
`
`
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`Case: 20-135 Document: 59 Page: 18 Filed: 12/09/2020
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`less how the 100-mile rule applied. See Appx96–99 (Mot.); Appx187–194 (Uniloc
`
`Opp.); Appx204–207 (Reply); Appx235–295 (Hearing); Pet. at 18–24.
`
`Additionally, the majority found error on other grounds not raised below, such
`
`as case progress, the trial date, and civil caseload statistics. Compare, e.g., Maj. at
`
`14–15 with Appx99–101 (failing to address those issues), Appx207 (same); see also
`
`Maj. at 8 (finding “[t]he district court legally erred in considering witnesses as
`
`‘sources of proof[,]’” even though Apple argued the opposite); Pet. at 30 (pointing
`
`to “several managers and a software engineer” as “sources of proof”); Appx93
`
`(same); Maj. at 17–18 (finding error in the judge’s finding the local-interest factor
`
`“neutral,” even though “Apple’s petition did not argue that it would be a clear abuse
`
`of discretion to find this factor neutral,” Dissent, at 10).
`
`C. The Majority Granted Mandamus on New Law
`The majority also faulted the judge for not following In re Adobe, 823 F.
`
`App’x 929 (Fed. Cir. 2020). Maj. at 16. Adobe issued after the judge’s written order,
`
`and furthermore concerned scheduling issues never raised. Appx99–101, Appx207.
`
`But the majority did not deny the petition to allow the district court to consider
`
`Adobe, as deference requires—especially since Adobe is non-precedential and would
`
`not bind the judge. In re Dropbox, Inc., 814 F. App’x 598, 599–600 (Fed. Cir. 2020)
`
`(remanding “[i]n light of this court’s intervening decision in Adobe”); VanDesande
`
`v. United States, 673 F.3d 1342, 1348 (Fed. Cir. 2012) (“As the trial court correctly
`
`8
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`
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`Case: 20-135 Document: 59 Page: 19 Filed: 12/09/2020
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`observed...[the case] was a nonprecedential opinion of this court, and therefore is
`
`not binding on subsequent decisions.”).
`
`D. The Majority Failed to Defer to the District Court’s Application of
`Regional-Circuit Law
`The majority failed to follow Fifth-Circuit law (its regional circuit) on the
`
`100-mile rule. Maj. at 3. Because this Court has specialized jurisdiction, it must
`
`“apply the law as stated” by the regional circuit. Panduit, 744 F.2d at 1574–75. And
`
`“[w]here the regional circuit court has not spoken,” the Court must “predict how that
`
`regional circuit would have decided the issue in light of the decisions of that circuit’s
`
`various district courts, public policy, etc.” Id.
`
`The judge undisputedly applied the Fifth Circuit’s 100-mile rule: “When the
`
`distance between an existing venue for trial of a matter and a proposed venue under
`
`§ 1404(a) is more than 100 miles, the factor of inconvenience to witnesses increases
`
`in direct relationship to the additional distance to be traveled.” In re Volkswagen of
`
`Am., Inc., 545 F.3d 304, 317 (5th Cir. 2008) (en banc). But the majority
`
`impermissibly held that the 100-mile rule does not apply as stated when a witness is
`
`traveling by airplane. Maj. at 12 (finding that the judge applied the rule “too
`
`rigidly.”) Given the plain strictness of the Fifth Circuit’s rule, the majority erred.
`
`The majority likewise improperly found error solely based on non-Fifth-
`
`Circuit authority: cases from this Court or other circuits. See, e.g., Maj. at 12
`
`(witness convenience); id at 15–18 (judicial economy, court congestion, and local
`
`9
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`
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`Case: 20-135 Document: 59 Page: 20 Filed: 12/09/2020
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`interest). The majority did not predict how the Fifth Circuit would rule on these
`
`questions. Nor did it defer to how courts within the Fifth Circuit have addressed
`
`those issues. Rather, it created its own law.
`
`Last, the majority failed to follow strict Fifth-Circuit law holding mandamus
`
`inappropriate on even reversable error. In re Lloyd’s Register N. Am., Inc., 780 F.3d
`
`283, 290 (5th Cir. 2015) (“In recognition of the extraordinary nature of the writ, we
`
`require more than showing that the court misinterpreted the law, misapplied it to the
`
`facts[….] even reversible error by itself is not enough”).
`
`E.
`
`The Majority Imposed Its Judgment Instead of Deferring to the
`District Court
`With the deference safeguards removed, the majority improperly “substituted
`
`its own judgment for that of the District Court.” Piper, 454 U.S. at 267 (reversing
`
`appellate court). The majority did not find that the judge failed to analyze the factors
`
`or that his analysis was unreasonable. That should have ended the inquiry: “where
`
`the court has considered all relevant public and private interest factors, and where
`
`its balancing of these factors is reasonable, its decision deserves substantial
`
`deference.” Id. at 257. The majority instead found that the judge’s errors were
`
`“misapplication[s] of law to fact” that he had “no discretion to make.” Maj. at 20.
`
`But a discretionary review necessarily means that a judge has discretion to apply the
`
`facts to the law, even if the reviewing court disagrees with those findings. See
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`Lloyd’s, 780 F.3d at 290.
`
`10
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`
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`Case: 20-135 Document: 59 Page: 21 Filed: 12/09/2020
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`Lack of deference pervades the majority opinion. For example, the majority
`
`found:
`
`As to the CDN servers in Dallas, Texas, it is unclear why these servers
`are entitled to any weight, particularly given that the district court
`neither mentioned nor gave weight to these CDN servers in its
`analysis….
`Maj., at 19. But, as the dissent observed:
`
`This is untrue. The district court referenced Apple’s CDN servers, CDN
`engineers and Apple’s financial accounting activities throughout its
`opinion….
`Dissent, at 8. That is not deferential review. Anderson v. Bessemer City, 470 U.S.
`
`564, 574 (1985) (“Where there are two permissible views of the evidence, the
`
`factfinder’s choice…cannot be clearly erroneous.”).
`
`The majority also neither contested nor addressed evidence that supported the
`
`judge’s findings. See, e.g., Dissent at 2–3 (discussing evidence). Deference requires
`
`considering the whole record. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir.
`
`2013) (“A factual finding is not clearly erroneous if it is plausible in light of the
`
`record as a whole.”) (citation omitted).
`
`This Court’s recent denials of Apple mandamus petitions in Fintiv and
`
`STC.UNM highlight the lack of deference here. In re Apple, Inc., 2019 U.S. App.
`
`LEXIS 39376 (Fed. Cir. Dec. 20, 2019) (Fintiv); In re Apple, Inc., 818 Fed. App’x
`
`1001 (Fed. Cir. 2020) (STC.UNM). Both petitions originated from this same judge,
`
`contained a similar record and findings, and raised similar attacks. Both were
`
`11
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`Case: 20-135 Document: 59 Page: 22 Filed: 12/09/2020
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`denied. The difference? Deference. STC.UNM, 818 F. App’x at 1004 (reviewing
`
`if the court “meaningfully considered” the factors and “reasonabl[y]” balanced
`
`them) (citation omitted); Fintiv, 2019 U.S. App. LEXIS 39376, at *6 (determining
`
`“there was at least a plausible basis” for the findings). En banc consideration is
`
`necessary to secure the uniformity of the court’s application of deferential review.
`
`F.
`
`The Majority Eroded the District Court’s Discretion to Manage Its
`Docket
`The majority also did not defer to the judge’s caseload management. It
`
`imposed its view that district courts should stay proceedings while a convenience-
`
`transfer motion is pending. It faulted the court for “barrel[ing] ahead on the merits”
`
`while drafting a written order. Maj. at 5. It held that “once a party files a transfer
`
`motion, disposing of that motion should unquestionably take top priority.” Id.
`
`Apple and others have subsequently characterized that holding as requiring a stay.
`
`Uniloc 2017 LLC v. Apple, No. 6:19-CV-532 (W.D. Tex.), Dkt. 106, at 2 (Apple’s
`
`Motion to Stay) (characterizing holding as “the court should not move forward with
`
`other substantive activity before addressing transfer”); 10 Tales, Inc. v. TikTok, Inc.,
`
`No. 6:20-CV-810 (W.D. Tex.), Dkt. 27, at 2–3 (“Defendant requests…staying all
`
`other substantive deadlines…until the Court rules on…motion to transfer….”).
`
`This holding was in error. How a court manages its cases is unrelated to the
`
`convenience factors. The majority’s precedent impinges on a court’s core power to
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`“control the disposition of the causes on its docket with economy of time and
`
`12
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`Case: 20-135 Document: 59 Page: 23 Filed: 12/0
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