Opinion · Court of Appeals for the Fifth Circuit
In Re: Kevin Clarke
In Re : Kevin Clarke, 94 F.4th 502 (5th Cir. 2024)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2024-03-01
- Topic
- intellectual-property-and-technology
How later courts describe this case
- critiquing a district court for only considering the “relationship between the venue and the party”
- “Should plaintiffs prevail on their APA challenge, this court must ‘set aside’ [the agency’s action], with nationwide effect.”
- “[A] movant must show (1) that the marginal gain in convenience will be significant, and (2
- first quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc); then quoting In re TikTok, Inc., 85 F.4th 352, 358 (5th Cir. 2023)
- “Transfer under 28 U.S.C. § 1404(a) is properly granted only if the moving party ‘clearly establishes good cause’ by ‘clearly demonstrating that a transfer is for the convenience of parties and witnesses, in the interest of justice.’”
- “[T]o establish ‘good cause,’ a movant must show (1) that the marginal gain in convenience will be significant, and (2) that its evidence makes it plainly obvious—i.e., clearly demonstrated—that those marginal gains will actually materialize in the transferee venue.”
- “After evaluating its own docket efficiency, the district court reasoned that D.D.C. would be able to resolve this case in a more expeditious manner. It was not clearly an abuse of discretion for the court to find that congestion favored transfer.”
- declining to give dispositive weight to this factor
Citator
UpLaw has not yet analyzed In Re: Kevin Clarke. The absence of a flag is not a finding that it is good law.
- Cited by
- 51 opinions
Case: 24-50079 Document: 51-1 Page: 1 Date Filed: 03/01/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 1, 2024
No. 24-50079 Lyle W. Cayce
____________ Clerk
In re Kevin Clarke; Trevor Boeckmann; Harry Crane;
Corwin Smidt; Aristotle International, Incorporated;
Predict It, Incorporated; Michael Beeler;
Mark Borghi; Richard Hanania; James D. Miller;
Josiah Neeley; Grant Schneider; Wes Shepherd,
Petitioners.
______________________________
Petition for Writ of Mandamus to
the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-909
______________________________
Before Smith, Southwick, and Wilson, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Seeking a writ of mandamus, petitioners challenge the district court’s
decision to transfer their suit against the Commodities Futures Trading
Commission (“CFTC”) to the U.S. District Court for the District of Colum-
bia (“D.D.C.”). They contend the district court plainly abused its discretion
in its balancing of the public and private interest factors governing transfer.
Having reviewed the parties’ submissions, as well as the district
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No. 24-50079
court’s thoughtful and courteous supplemental response,1 we agree with
petitioners. In essence, the district court transferred petitioners’ case to
D.D.C. because of court congestion. That is a clear abuse of discretion, for
which petitioners have no other remedy, with sweeping implications for this
circuit’s § 1404(a) transfer standards. Accordingly, we grant the petition and
direct the district court to request that the case be returned to the court à quo.
I.
PredictIt is an online platform run by the Victoria University of Wel-
lington in New Zealand. Conceived as a data-gathering tool for academic
researchers, the platform allows individuals to trade on the predicted out-
comes of political events. Users of PredictIt make small investments based
on predicting political events, such as future elections or the passage of fed-
eral legislation. Data gathered from those transactions is shared with aca-
demic researchers.
PredictIt began operating in 2014, after the CFTC Division of Market
Oversight (“DMO”) issued PredictIt’s operator, Victoria University, a “no-
action” letter. That letter stated that DMO would “not recommend that the
Commission take any enforcement action,” subject to Victoria University’s
representations to abide by certain terms and limitations relating to the oper-
ation of PredictIt.
In August 2022, DMO rescinded the 2014 no-action letter, stating
that Victoria University had failed to operate PredictIt in compliance with
the terms of the 2014 no-action letter. DMO therefore directed that
_____________________
1
We invited the district judge to respond to the mandamus petition. In that re-
sponse, he stated his plan to hold future “order[s] to transfer venue for a short period in
the event a party wishes to challenge the transfer.” That future course of action is especi-
ally deserving of commendation.
2
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No. 24-50079
“remaining listed contracts and positions comprising all associated open
interest in such market should be closed out and/or liquidated no later than
11:59 p.m. eastern on February 15, 2023.”
The mandamus petitioners (sometimes referred to as the “plain-
tiffs”) are various third-party users of the PredictIt platform. They consist
of market operators, traders, and academics who allege injury from the
CFTC’s recission of the 2014 no-action letter. Five live and work in Austin,
Texas: (1) Kevin Clarke, the lead plaintiff; (2) Michael Beeler; (3) Mark
Borghi; (4) Josiah Neeley; and (5) Wes Shepherd.
II.
Plaintiffs sued the CFTC, alleging the agency acted arbitrarily and
capriciously, in violation of the Administrative Procedure Act (“APA”),
when it withdrew the 2014 “no-action” letter. They also claimed the revoca-
tion constituted a withdrawal of a license without the necessary procedural
steps.2
In light of the then-looming February 2023 market shutdown, peti-
tioners moved for a preliminary injunction. The district court, by failing to
rule on the preliminary injunction for three months, effectively denied it. A
merits panel of the Fifth Circuit (“2023 merits panel”) granted an injunction
pending appeal in January 2023 and heard arguments a month later. In
March 2023, the CFTC withdrew its August 2022 recission of the no-action
letter. It also issued a new letter that “determined as a preliminary matter”
that the 2014 no-action letter was void and should be withdrawn. CFTC then
moved to dismiss the appeal pending before the 2023 merits panel. That
motion was denied. In July 2023, the Fifth Circuit reversed the district
_____________________
2
Nothing in this opinion should be construed as a comment on any of the claims
at issue.
3
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No. 24-50079
court’s effective denial and granted petitioners’ motion for a preliminary
injunction.
On remand from the Fifth Circuit, the district court entered the pre-
liminary injunction, and the parties submitted a scheduling order. The
CFTC then moved to transfer the case to D.D.C. Without a hearing, the
district court granted that motion. The order was signed on January 16, 2024,
and the case was transferred that same day. Petitioners moved to stay the
transfer three days later, to which the district court initially ordered the
CFTC to respond. Before the CFTC responded, however, the court denied
petitioners’ motion on the ground that it lacked jurisdiction over an already-
transferred case. Later that day, petitioners moved for the district court to
request D.D.C. to return the case. That motion was denied.
Petitioners now seek mandamus relief.
III.
Transfer under 28 U.S.C. § 1404
(a) is properly granted only if the moving party “clearly establishes good cause” by “clearly demonstrating that a transfer is for the convenience of parties and witnesses, in the interest of justice.” Def. Distributed v. Bruck,30 F.4th 414, 433
(quoting In re Volks- wagen of Am., Inc.,545 F.3d 304, 315
(5th Cir. 2008) (en banc) (“Volks- wagen II”)) (cleaned up). It is the movant’s burden—and the movant’s alone—to “adduce evidence and arguments that clearly establish good cause for transfer based on convenience and justice.”Id.
At minimum, showing “good cause” requires the movant “clearly [to] demonstrate” that its chosen venue is “clearly more convenient.”Id.
That standard is not met if the movant merely shows that the transferee venue “is more likely than not to be more convenient.”Id.
Likewise, “the fact that litigating would be more convenient for the defendant elsewhere is not enough to justify transfer.”Id.
4
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Accordingly, to establish “good cause,” a movant must show (1) that
the marginal gain in convenience will be significant, and (2) that its evidence
makes it plainly obvious—i.e., clearly demonstrated—that those marginal
gains will actually materialize in the transferee venue.3
The district court—when assessing whether the movant clearly car-
ried its burden—must consider the following public-interest and private-
interest factors.4
The private-interest factors are “(1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses; and
(4) all other practical problems that make trial of a case easy, expeditious and
inexpensive.” Volkswagen II, 545 F.3d at 315
(cleaned up). The public-
interest factors are “(5) the administrative difficulties flowing from court
congestion; (6) the local interest in having localized interests decided at
home; (7) the familiarity of the forum with the law that will govern the case;
and (8) the avoidance of unnecessary problems of conflict of laws [or in] the
application of foreign law.”5
“No factor is of dispositive weight, and we have cautioned against a
‘raw counting of the factors’ that ‘weigh[s] each the same.’” Id.
(quoting
Radmax, 720 F.3d at 290 n.8). Moreover, “[w]here there is no demonstra-
tion by the movant, let alone a clear one, the [district] court cannot weigh a
factor against the non-movant and in favor of transfer.” Def. Distributed,
_____________________
3
As Defense Distributed explains, a mere preponderance of the evidence is
insufficient. See id. (“[T]he standard is not met by showing one forum is more likely than
not to be more convenient.”).
4
See In re TikTok, Inc., 85 F.4th 352
, 358 (5th Cir. 2023).
5
TikTok, 85 F.4th at 358 (quoting In re Radmax, Ltd., 720 F.3d 285, 288
(5th Cir.
2013)) (internal quotation marks omitted).
5
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30 F.4th at 434
.
IV.
The district court granted CFTC’s motion to transfer6 primarily on
the grounds of two public interest factors—(A) court congestion and
(B) local interests. The court stated that the remaining public-interest
factors—familiarity with applicable law and avoidance of unnecessary prob-
lems of conflict of laws—were neutral. Lastly, the court found that the four
private-interest factors were all neutral because the “case will be decided on
the administrative record, and likely by cross-motions for summary
judgment.”
A. Court Congestion
The district court found that court congestion weighed in favor of
transfer. First, it noted that it had earlier failed to rule timely on plaintiffs’
motion for preliminary injunction, thereby necessitating an interlocutory
appeal to this court. Second, the court observed that it took approximately
four months for it to rule on CFTC’s present motion to transfer. It therefore
reasoned that D.D.C. would be able to resolve this case in a more expeditious
manner.
Petitioners disagree with the finding on court congestion. They claim
that D.D.C. is more congested, citing a statistic showing that “cases in the
Western District of Texas get to trial in approximately 26 months on average,
compared to approximately 53 months on average in the District of
Columbia.”
In response, CFTC avers that time to trial is irrelevant for deter-
_____________________
6
That order was issued January 16, 2024. On February 2, 2024, the district court
denied petitioners’ motion requesting it to request return of the case.
6
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No. 24-50079
mining court congestion because APA cases are “highly unlikely to go to
trial.” CFTC contends that “other metrics favoring transfer are preferable
in this case”—presumably alluding to the statistic it cited in district court
that showed that “there are 801 weighted cases pending in the Western Dis-
trict versus 276 in the D.C. District Court.”
Neither statistic is particularly relevant. In TikTok, we rejected peti-
tioner’s statistics on “time to trial,” explaining that contentions relying on
such statistics were “foreclosed by Planned Parenthood’s recognition that, as
a general matter, ‘the district court is better placed’ to evaluate its ‘docket
efficiency.’” TikTok, 85 F.4th at 363 n.12 (quoting In re Planned Parenthood
Fed’n of Am., Inc., 52 F.4th 625, 631
(5th Cir. 2022)). Accordingly, peti-
tioners’ and CFTC’s statistics carry little weight.
After evaluating its own docket efficiency, the district court reasoned
that D.D.C. would be able to resolve this case in a more expeditious manner. 7
It was not clearly an abuse of discretion for the court to find that congestion
favored transfer.
B. Local Interests
The district court stated in its order that the lack of local interest in
the Austin Division of the Western District of Texas favored transfer. It so
found for two reasons: First, it explained that “the two entity plaintiffs—
Aristotle and PredictIt—are both based in D.C.” Second, the court specu-
lated that those two entities “possibly would suffer the greatest economic
harm in this case”—“more so than the individual plaintiffs who reside in
Austin.”
_____________________
7
Petitioners do not allege that CFTC inexcusably delayed filing its motion to trans-
fer. Nor do they assert that the district court inexcusably delayed ruling on that motion.
Contra TikTok, 85 F.4th at 363.
7
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Petitioners raise two challenges to the district court’s finding that
local interests favored transfer:
First, they fault the district court for “‘disregard[ing]’ a plaintiff’s
interests—just because they are similar to those of other victims of govern-
ment action in many or all other districts.” They make much of the district
court’s statement that “local interests that ‘could apply virtually to any judi-
cial district or division in the United States’ are disregarded in favor of par-
ticularized local interests” (quoting Volkswagen II, 545 F.3d at 318
).
Responding to petitioners’ accusation, CFTC avers that the district
court “did not simply ignore the allegations of injury to traders and data users
located in the Western District of Texas.” In CFTC’s view, the court merely
“reasoned that any such injury did not single out the impact of the alleged
wrongful regulatory action on the Western District of Texas from its impact
on traders and data users in all of the other districts where PredictIt provides
services and data.”
CFTC’s understanding of the district court’s reasoning is more
accurate. At bottom, the transfer factors are relative.8 For each factor, the
defendant’s proffered venue is measured against the plaintiff’s chosen
venue.9 A completely diffuse interest—that is, an interest that “could apply
to virtually any judicial district or division in the United States”—cannot
affect the local-interest determination. That’s because the interest is the
same in both the transferor and transferee venue. These completely diffuse
_____________________
8
That conclusion follows from the ultimate inquiry that the eight factors seek to
answer—whether “the transferee venue is clearly more convenient.” Volkswagen II,
545 F.3d at 315
.
9
Relative to the transferor venue: Is it easier or harder to get evidence and subpoena
witnesses? Is it cheaper or more costly for witnesses to attend? Will congestion make resolu-
tion easier or more difficult? And so on.
8
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local interests net out to zero—neither favoring nor disfavoring transfer.10
Accordingly, it was not error for the district court to say that local interests
applicable to all judicial districts can be disregarded.
Second, petitioners contend the district court clearly abused its discre-
tion by reasoning that the two D.C.-based entity plaintiffs “were more impor-
tant and would suffer more monetary damages than others.” They point to
the district court’s order, which explicitly compares the projected magnitude
of the entity plaintiffs’ injuries to those of the individual plaintiffs: “Aristotle
and PredictIt . . . possibly would suffer the greatest economic harm in this
case more so than the individual plaintiffs who reside in Austin.”
CFTC defends the district court’s decision by asserting that the two
entity plaintiffs, as operators of the exchange, “are most directly affected by
the alleged wrongful regulatory action.” Citing Defense Distributed v. Bruck,
30 F.4th 414
, 435–36 (5th Cir. 2022), CFTC notes that a key consideration
in the local interest determination is “the location of the company . . . directly
regulated by the government.” Additionally, CFTC asserts that “lesser
weight should be given to interests common to many or all judicial districts.”
The district court’s and CFTC’s reasoning is error. To identify local-
ized interests properly, “[w]e look not to ‘the parties’ significant connec-
tions to each forum . . . but rather the significant connections between a par-
ticular venue and the events that gave rise to a suit.’” TikTok, 85 F.4th at 364
(quoting Def. Distributed, 30 F.4th at 435
). That point bears repeating: We
focus on the events—not the parties.
We do not consider the parties’ connections to the venue because the
_____________________
10
An example of a completely diffuse interest is knowing whether a nationally dis-
tributed defective product is available in Marshall, Texas. See Volkswagen II, 545 F.3d at 318
.
9
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No. 24-50079
local interest analysis is a public interest factor. Accordingly, the local-
interest inquiry is concerned with the interest of non-party citizens in adjudi-
cating the case.11 Considerations such as “the location of the injury, wit-
nesses, and the [p]laintiff’s residence,” Def. Distributed, 30 F.4th at 435
, are
useful proxies for determining what local interests exist in each venue. But
proxies, no matter how useful in certain cases, can never subsume the ulti-
mate inquiry.
The district court erred because its analysis focuses exclusively on the
harms alleged by each of the petitioners. Its reasoning fails to consider any
of the “events that gave rise to the suit.” TikTok, 85 F.4th at 364 (cleaned
up). Indeed, its reasoning considers only the relationship between the venue
and the party.12
CFTC’s first assertion is error, as it mischaracterizes the holding in
Defense Distributed. That case did not hold that local interests favored a
Texas judicial venue merely because the regulation directly targeted a Texas-
based company. Rather, Defense Distributed reasoned that, relative to their
neighbors in Texas, New Jersey’s citizens had little interest in a dispute that
_____________________
11
See, e.g., In re Volkswagen AG, 371 F.3d 201, 206
(5th Cir. 2004) (per curiam) (“Volkswagen I”) (“how the citizens of the Eastern District of Texas . . . have more of a localized interest in adjudicating this proceeding than the citizens of the Western District of Texas”); Volkswagen II,545 F.3d at 318
(“the residents of the Dallas Division have extensive connections with the events that gave rise to this suit”); Def. Distributed,30 F.4th at 435
(considering interests “of Texas citizens”).
12
That’s because the district court assessed local interests by comparing the harms
allegedly suffered by each of the plaintiffs. Then, to localize the harm, the court relied on
each plaintiff’s pre-existing geographical connections. So, the district court’s local-interest
determination is based solely on a party’s connection to the venue.
The district court’s supplemental response only compounds that error. There, the
court suggested that plaintiffs’ attorneys were not “solely seeking vindication of the rights
and interests of local Austin, Texas residents” because they came from “Washington, D.C.
and Chicago” and were “not small-town attorneys.”
10
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No. 24-50079
would not affect them:
• Even if Defense Distributed won on the merits, “the [New Jersey Attor-
ney General] would not necessarily be prevented from enforcing the law
in New Jersey.”13 Def. Distributed, 30 F.4th at 435
. • Moreover, the events giving rise to that suit occurred in Texas. Defense Distributed “distributed digital firearms information via mail and at a brick-and-mortar public library in Austin.” Seeid.
at 434 n.25. Its “re- search, design, development, manufacturing, and publishing, occurred in and around Austin.”Id.
It used Texas-based servers to host files visitors could download from its website.Id.
• Further still, Texas courts, as non-litigants, had a “significant interest in assessing the constitutionality and extraterritorial impact of New Jersey’s criminal law, especially a law that criminalizes speech.”Id.
at 435–36.
So, it is hard to blame New Jersey citizens for their relative lack of
interest in a case that arose from out-of-state events; concerns an out-of-state
plaintiff; and, regardless of outcome, had no effect on the legality of their own
conduct. Contrary to CFTC’s assertion, Defense Distributed does not suggest
“that it would be an abuse of discretion not to transfer this case to the location
of the businesses that operate the PredictIt exchange.”
CFTC’s second assertion is irrelevant. Why does it matter if a local
interest is shared amongst many judicial districts? The transfer analysis is
relative. That an interest is highly diffuse (but not completely diffuse) only
increases the chance it is regarded as equally important by citizens in both the
transferor and transferee districts (thereby netting out to zero).
Here, events giving rise to the suit can be separated into two cate-
_____________________
13
Because an as-applied challenge would not enjoin the New Jersey Attorney Gen-
eral from enforcing the law against parties other than Defense Distributed.
11
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gories: The first concerns individual traders who purchased contracts on the
marketplace. Five of them are based in Austin, bought their contracts from
Austin, and have been harmed in Austin. The second category deals with
marketplace service providers—Aristotle and PredictIt. Based in D.C., they
“expended significant resources to assist Victoria University in developing
and operating the PredictIt Market” and “will be forced to incur massive
administrative, labor, time, and other costs if forced to liquidate pending con-
tracts prematurely.”
Given those events, there is an obvious connection between the facts
giving rise to this case and the Western District of Texas. And, if we assume
that Aristotle’s and PredictIt’s development and operations activities oc-
curred in D.C., there is also a factual connection with D.D.C.
Additionally, the effect of this suit is completely diffuse. Should plain-
tiffs prevail on their APA challenge, this court must “set aside” CFTC’s
ultra vires recission action, with nationwide effect.14 That affects persons in
all judicial districts equally.
In sum, the local interest is, at most, neutral between the Western Dis-
trict of Texas and D.D.C. By finding that local interests “weighed heavily in
favor of” transfer to D.D.C., the district court clearly abused its discretion.
C. Private Interest Factors
The district court found that “the private interest factors in this case
are neutral.” But little reasoning supports that finding. Indeed, the order’s
discussion of the private-interest factors spans all of two sentences: In the
_____________________
14
See 5 U.S.C. § 706
(2); see also Jonathan F. Mitchell, The Writ of Erasure Fallacy,104 Va. L. Rev. 933
, 950–51 (2018) (explaining that the APA “establishes a unique form
of judicial review” that “empowers courts to . . . formally nullify and revoke . . . unlawful
agency action”).
12
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No. 24-50079
first sentence, the court unquestioningly assumed “that this case will be
decided on the administrative record, and likely by cross-motions for sum-
mary judgment.” Then, in the second sentence, the court listed the four pri-
vate interest factors and declared they were “neutral.”
On appeal, petitioners contend the district court “clearly abused its
discretion by punting on the so-called ‘private interest factors’ and claiming
that everyone agreed they were ‘neutral.’” Though petitioners agree that
APA challenges are evaluated purely on the administrative record, they con-
tend that this case is more complicated. Specifically, petitioners point to the
various “threshold issues” CFTC has pressed—and contemplates pressing
in the future.15 Resolving those threshold issues, petitioners aver, may
require evidentiary hearings and testimony from Austin-based plaintiffs.
In response, CFTC asserts that there is little chance that evidentiary
hearings will be needed to resolve issues of standing because “courts in
[APA] cases routinely resolve standing issues based on declarations” (citing
Sec. Indus. & Fin. Mkts. Ass’n v. U.S. Commodity Futures Trading Comm’n,
67 F. Supp. 3d 373
, 401–12 (D.D.C. 2014)). So, based on its reading of the
tea leaves, CFTC predicts that this case will be resolved without any future
evidentiary hearings.
Petitioners are correct. The district court clearly abused its discretion
by finding that all four private interest factors were “neutral.” Sec-
tion 1404(a)’s good-cause requirement prohibits a district court from relying
_____________________
15
For example, petitioners point to the parties’ proposed scheduling order,
wherein CFTC contemplates filing dispositive motions other than motions for summary
judgment. Additionally, petitioners observe that they have had to submit declarations in
response to CFTC’s attempts to challenge individual plaintiffs’ standing.
13
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No. 24-50079
on “conclusory assertions” in considering the transfer factors. 16 But specu-
lation is all the district court used to consider the private interest factors:
First, the court assumed that the case “w[ould] be decided on the
administrative record.” For starters, that assumption had already been dis-
proven by the time the court issued its transfer order.17 Moreover, its reason
for accepting that assumption relies on a mischaracterization of the plaintiffs’
contentions.
According to the court, plaintiffs did “no[t] serious[ly] dispute” that
the case would be “decided on the administrative record.” Plaintiffs made
no such concession. Instead, they flagged issues of “[s]tanding and injury”
in their memorandum opposing transfer, expressly alerting the court to the
existence of non-APA issues.
Second, the district court erred by uncritically accepting CFTC’s
claim that the case will not require evidentiary hearings. CFTC buttresses
that assertion on appeal with nothing but a mere “see, e.g.,” citation to one
D.D.C. case.18 So, at most, the district court could have reasoned that evi-
_____________________
16
See Def. Distributed, 30 F.4th at 434
(“[G]ood cause . . . requires an actual show-
ing of the existence of relevant sources of proof, not merely an expression that some sources
likely exist in the prospective forum. . . . [T]he district court erred by uncritically accepting
the [movant’s] conclusory assertions.” (internal citations omitted)); see also TikTok,
85 F.4th at 360 (“We must credit a district court’s reasonable inferences when they are
rooted in record evidence. But where, as here, there is nothing in the record supporting its
conclusions, we may comfortably say that the court has committed a clear abuse of
discretion.”).
17
The transfer order was issued on January 16, 2024. By that time, the district
court was already aware that CFTC was pressing for dismissal on the grounds of various
threshold issues.
18
Citing Sec. Indus. & Fin. Mkts. Ass’n, 67 F. Supp. 3d at 401–12. Relatedly, it is
unclear how CFTC can infer any trend, much less one generally applicable to any court
deciding an APA suit, where n=1.
14
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No. 24-50079
dentiary hearings were unlikely. But the court went all the way: By con-
cluding that all private factors were “neutral,” it found implicitly that there
was zero chance that the case would need any evidentiary hearing. 19 That
finding “abuse[s] both logic and the court’s discretion.” Def. Distributed,
30 F.4th at 434
.
Given the possibility of evidentiary hearings, we must assess the third
private interest factor—the cost of attendance for willing witnesses. Testi-
fying imposes myriad external costs on witnesses.20 The third factor
attempts to internalize and minimize those costs by favoring the venue that
is more convenient from the perspective of willing witnesses. See TikTok,
85 F.4th at 361; Volkswagen I, 545 F.3d at 317
.
Our circuit assesses convenience as a function of distance. We begin
by determining whether the transferee venue is more than one hundred miles
from the transferor. Where that is so, the factor of inconvenience borne by
witnesses positively and linearly scales with the additional distance they must
travel. See TikTok, 85 F.4th at 361–62 & nn. 8–9.
Plaintiffs have identified Kevin Clarke, a resident of Austin, as the pri-
mary source for testimony regarding standing and injury. 21 CFTC does not
identify any relevant witness—much less one residing near the transferee
venue. By transferring the case to D.D.C., Clarke—the primary witness in
_____________________
19
As explained infra, the third private-interest factor favors venue in the Western
District of Texas. That means the district court could have concluded that the third private
factor was neutral only if it believed an evidentiary hearing would never occur.
20
Travel time; meal and lodging expenses; and absence from work, family, and
community—to name a few. See TikTok, 85 F.4th at 361 (citations omitted).
21
As petitioners explain, Clarke is the primary source of proof for standing and
injury because he “has been studying the distortions in the marketplace due to the agency’s
decision to require premature liquidation of contracts” and has “chronicle[d] the injuries
to traders from the agency’s decision.”
15
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No. 24-50079
this case—must now travel over one thousand additional miles to testify. As
should be plain, that is a massive inconvenience.
Accordingly, the third private-interest factor strongly favors the Wes-
tern District of Texas over D.D.C. The district court clearly abused its dis-
cretion in deciding otherwise.
D. Good Cause
The propriety of § 1404(a) transfer turns on CFTC’s meeting its bur-
den of “adduc[ing] evidence and arguments that clearly establish good cause
for transfer based on convenience and justice.” Def. Distributed, 30 F.4th at 433
; see also Planned Parenthood,52 F.4th at 629
(“The ultimate inquiry is
whether the destination venue is clearly more convenient than the venue
chosen by the plaintiff.” (cleaned up)).
CFTC utterly fails to meet its burden “clearly [to] establish good
cause.” Id.
Of the eight factors, six are neutral and therefore lend CFTC no
support for transferring to D.D.C.22 Worse still, one of the factors—the cost
of attendance for willing witnesses—reveals that CFTC’s venue of choice
results in a net loss of convenience. Assessing the public- and private-interest
factors yields but one message: Beyond dispute is the fact that CFTC totally,
absolutely, and unqualifiedly failed to show “good cause” for transferring to
D.D.C.
Further, we struggle to comprehend how that message could have
been any louder or clearer, given that none of the factors favors CFTC’s
venue of choice. Indeed, not even the court congestion factor supports trans-
ferring the case to D.D.C.—it would be a stretch to say that court congestion
_____________________
22
Neutral factors cannot be weighed against the non-movant and in favor of trans-
fer. See Def. Distributed, 30 F.4th at 434
.
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No. 24-50079
“favors D.D.C.” and not just transfer “somewhere else.”
It is well-settled law that § 1404(a) transfer cannot be granted solely
because of court congestion. As a premier learned treatise forcefully states:
“[R]educ[ing] congestion on the local docket[,] . . . [b]y itself, . . . is not an
appropriate factor on a motion to transfer under Section 1404(a).”23 The
conclusion is plainly obvious: “[D]ocket conditions . . . [are] not decisive.”
Id. (emphasis added). And any doubt to the contrary has long been elimin-
ated in this circuit. In TikTok, we expressly held—in no uncertain terms—
that “no factor is of dispositive weight.” 85 F.4th at 358 (citing Radmax,
720 F.3d at 290
n.8). No actually means no.
Nor was that unequivocal holding in TikTok borne from whole cloth.
The rationale underlying TikTok’s holding has long existed in this circuit’s
caselaw. Court congestion alone cannot justify § 1404(a) transfer because it
is speculative and ignores the plaintiffs’ role as master of the complaint.
In Planned Parenthood, we expressly acknowledged holdings charac-
terizing court congestion as a “speculative” factor. 52 F.4th at 631
(quoting In re Genentech, Inc.,566 F.3d 1338, 1347
(Fed. Cir. 2009) (internal quotation marks omitted)). We further declined to make any representation regarding “the extent docket efficiency can be reliably estimated” in Planned Parent- hood.Id.
That makes sense, for measuring congestion is easier said than done. True, we recognize that the district court is in a better position to esti- mate the efficiency of its own docket. Seeid.
But that structural advantage
disappears when it comes to estimating congestion in the transferee venue.
Though the district court may, in exercising its discretion, conclude that its
docket is more congested than the transferees’, that conclusion—which, at
_____________________
23
8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3854 (West).
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No. 24-50079
its core, is an uninformed guess—alone cannot be dispositive.
Moreover, permitting § 1404(a) transfer solely because of court con-
gestion would call into question the point of having different judicial districts
at all. Indeed, those transfers would create but a poor approximation of a
scheme dynamically to balance caseload amongst district courts nationwide.
That cannot be, for we “must also give some weight to [a] plaintiff[’s] choice
of forum” and his role as master of the complaint.24
Consequently, the district court clearly abused its discretion by trans-
ferring the case when none of the factors specifically weighed in favor of
transferring the case to D.D.C., and one of the factors favored keeping the
case in the Western District of Texas.
V.
There are three requirements for a writ of mandamus: First, “there
must be ‘no other adequate means to attain the relief . . . desire[d].’” TikTok,
85 F.4th at 357 (quoting Cheney v. U.S. Dist. Ct. for Dist. of Columbia,
542 U.S. 367
, 380–81 (2004)). Second, “the right to issuance of the writ must be clear and indisputable.”Id.
at 357–58 (cleaned up). Third, “the issuing
court, in the exercise of its discretion, must be satisfied that the writ is appro-
priate under the circumstances.” Id. at 358 (cleaned up).
The first requirement is met because there is no other avenue for peti-
tioners to seek recourse for the erroneous transfer decision. See Radmax,
720 F.3d at 287
n.2.
_____________________
24
Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49
, 62 n.6 (2013) (citing Norwood v. Kirkpatrick,349 U.S. 29, 32
(1955)); see also Def. Distributed,30 F.4th at 433
(“When the transferee venue is not clearly more convenient than the venue chosen by the Plaintiff, the Plaintiff's choice should be respected.” (quoting Volkswagen II,545 F.3d at 305
)); Weber v. PACT XPP Techs., AG,811 F.3d 758, 767
(5th Cir. 2016).
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The second requirement for mandamus is also satisfied. As explained,
see supra part IV, the district court’s transfer decision was patent error. And,
as we observed in TikTok, we have granted mandamus for less egregiously
erroneous transfers. Indeed, in Radmax, we granted mandamus when “three
factors weighed in favor of transfer” and “five factors were neutral.”
TikTok, 85 F.4th at 358 (citing Radmax, 720 F.3d at 290
).
Not a single relevant factor favors CFTC’s chosen venue of D.D.C.
So, petitioners’ right to the writ is clear and indisputable.
That leaves the last mandamus requirement—“whether, in the exer-
cise of our discretion, we are satisfied that the writ is appropriate under the
circumstances.” Id. at 367
(cleaned up). “Writs of mandamus are supervis- ory in nature and are particularly appropriate when the issues also have an importance beyond the immediate case.”Id.
(cleaned up).
TikTok is the last in a line of Fifth Circuit cases recognizing that
Ҥ 1404(a) decisions often have importance beyond the immediate case
because venue transfer decisions are rarely reviewed, and district courts have
applied our tests with too little regard for consistency of outcomes.” Id.
(cleaned up). That reasoning continues to apply in full force to our instant
petition. See id.
Petitioners meet all three requirements for mandamus. Accordingly,
issuance of the writ is appropriate.
* * * * *
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No. 24-50079
The district court transferred petitioners’ case to D.D.C. essentially
because of court congestion. That is a clear abuse of discretion, for which
plaintiffs have no other remedy, with sweeping implications for our circuit’s
§ 1404(a) transfer standards.
The petition for writ of mandamus is GRANTED. The district court
is directed to request return of the case from D.D.C.
20