This morning the Federal Circuit released a precedential opinion in a case appealed from the Merit Systems Protection Board and a nonprecedential opinion in a case appealed from the Court of Federal Claims. The Federal Circuit also released two nonprecedential orders. One denies a writ of mandamus seeking disqualification of the district court judge; one denies a writ of mandamus to transfer an appeal from the Western District of Texas to the District of Massachusetts. Here are the introductions to the opinions and text from the orders.

Coy v. Department of the Treasury (Precedential)

The Department of the Treasury (“Treasury”) initiated a removal action against William Coy, charging Coy with “Misuse of Government Property.” Treasury sustained the charge and removed Coy, and Coy appealed the removal to the Merit Systems Protection Board (“Board”). A Board Administrative Judge (“AJ”) reversed Treasury’s removal of Coy on the ground that Treasury violated his due process rights by considering information concerning Coy’s work performance not included in the Notice of Proposed Removal. Treasury and Coy both petitioned the Board for review of the AJ’s initial decision. While that petition for review was still pending, Treasury initiated a second removal action based on the same charge and specifications and subsequently removed Coy. Coy does not contend that the due process defect in the first removal action was present in the second removal action. An AJ upheld Treasury’s second removal action, and the AJ’s initial decision in the second action became the decision of the Board when no party petitioned the Board for review.

Coy petitions this court for review of the final decision in his second removal action, arguing both that Treasury was precluded from initiating the second action while the first was still pending and that the Board erred by considering grounds not listed in the Notice of Proposed Removal. We affirm.

Hirsch v. United States (Nonprecedential)

Lieutenant Colonel (“LTC”) Jonathan R. Hirsch began serving in the United States Army in 1988. While serving in the Army, LTC Hirsch attended law school. In 2016, the Army removed LTC Hirsch from active status. According to the Army, he had served for 28 years, the maximum allowed for lieutenant colonels under 10 U.S.C. § 14507(a) (absent certain exceptions not applicable here). Because LTC Hirsch disagreed with the Army’s calculation of 28 years, he filed a complaint in the United States Court of Federal Claims (“the Claims Court”). In his complaint, he argued that the Army should have excluded the service that he performed concurrently with law school. In support of his argument, LTC Hirsch pointed to 10 U.S.C. § 14706, which provides that certain periods of service are excluded from the Army’s 28-year calculation. The Claims Court denied LTC Hirsch’s claim based on its construction of § 14706. Hirsch v. United States, No. 19-236C, 153 Fed. Cl. 345 (2021) (“Decision”). Because the Claims Court erred in construing § 14706, we reverse its decision and remand for further proceedings consistent with this opinion.

In re GYROOR US (Nonprecedential Order)

GYROOR US et al. (collectively, “Gyroor”), defendants in the underlying patent infringement action, moved the district court to recuse under 28 U.S.C. § 455. After the district court denied that motion and a subsequent request for reconsideration, Gyroor filed this petition for a writ of mandamus seeking an order requiring the district court judge to disqualify.

A party seeking mandamus must demonstrate no “adequate alternative” means to obtain the desired relief, Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989), and that the right to issuance of the writ is “clear and indisputable,” Will v. Calvert Fire Ins., 437 U.S. 655, 666 (1978) (citation and internal quotation marks omitted). The court must also be satisfied that the issuance of the writ is appropriate under the circumstances. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004). Gyroor has failed to make such a showing in its petition.

Gyroor relies on § 455, which states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and when there is “a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Gyroor’s primary arguments for recusal amount to nothing more than disagreements with the court’s (a) preliminary injunction rulings, (b) determination to initially allow an affidavit in support of a motion for attorney fees to be submitted in camera, and (c) order directing plaintiffs to file and serve a new preliminary injunction motion. But Supreme Court precedent explains that “judicial rulings alone almost never constitute a valid basis” for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994). Gyroor otherwise points to remarks made by the district court judge in a proceeding that “injunctions are often entered in this district . . . where there’s an asset freeze on all of the defendants” and that “it is no secret” that there are “[c]ounterfeiters and people who infringe intellectual property market products on places like eBay or Amazon.” Pet. at. 19–20. But those remarks do not establish bias under § 455. They do not reveal an “opinion that derives from an extrajudicial source”; nor do they clearly establish “a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at 555.



The petition is denied.

In re Hewlett Packard Enterprise Co. (Nonprecedential Order)

Hewlett Packard Enterprise Co. (“HPE”) petitions for a writ of mandamus directing the United States District Court for the Western District of Texas to transfer this case to the United States District Court for the District of Massachusetts. Intellectual Ventures I LLC (“IV”) opposes.

IV filed this suit in the Waco Division of the Western District of Texas, alleging that HPE’s SimpliVity data storage solution infringes a patent assigned to IV. According to HPE, the accused technology was “mostly” designed and developed by SimpliVity Corporation before HPE acquired it in 2017 and the development of the accused products occurred primarily in Massachusetts. Appx83. HPE moved SimpliVity development work to India in 2020. Appx84.

HPE sought to transfer the case pursuant to 28 U.S.C. § 1404(a) to the District of Massachusetts. On April 29, 2022, the district court denied that motion. After determining that this suit could have been brought in the District of Massachusetts, the court analyzed whether HPE had shown that the transferee venue was clearly more convenient than the Western District of Texas, following the multi-factor approach adopted by the United States Court of Appeals for the Fifth Circuit in In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc). The court found that one factor (court congestion) weighed against transfer; one factor (willing witnesses) weighed slightly in favor of transfer; one factor (local interest) favored transfer; three factors (sources of proof, compulsory process, and practical problems) were neutral, and the parties agreed that the remaining two factors were neutral. Among other things, the district court determined that: (1) the Texas forum is likely to be faster in adjudicating the matter; (2) the cost of attending proceedings in Texas was only slightly more costly than in Massachusetts; (3) HPE financial documents are in Texas; and (4) there was insufficient evidence that relevant documents existed in Massachusetts, given HPE had moved its relevant operations to India in 2020 (and thus technical documents presumably would be easiest to access in India), HPE’s 30(b)(6) witness testified about the location of electronic documents with some certainty and none were in Massachusetts, and two developers of the accused product who reside in Massachusetts but no longer work on the accused product did not testify that they had any documents.

Applying the law of the regional circuit, In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008), here, the Fifth Circuit, our task on mandamus is limited to determining whether the denial of transfer was such a “‘clear’ abuse of discretion” that refusing transfer would produce a “patently erroneous result,” id. (citation omitted); see also In re Apple Inc., 979 F.3d 1332, 1336 (Fed. Cir. 2020); In re Nitro Fluids L.L.C., 978 F.3d 1308, 1310–11 (Fed. Cir. 2020). Under Fifth Circuit law, we must deny mandamus unless it is clear “that the facts and circumstances are without any basis for a judgment of discretion.” Volkswagen, 545 F.3d at 312 n.7 (citation omitted). Here, HPE has not shown the required clear abuse of discretion resulting in a patently erroneous result.

HPE has not shown a clear right to having the sources of proof factor weighed in favor of transfer. Given the record in this case, the court here reasonably found that HPE did not show that more documentary evidence exists in Massachusetts than Western Texas. HPE failed to identify any specific documents in Massachusetts. And while HPE submitted a declaration from an employee who worked on the development of the accused products stating to his personal knowledge that technical documents were located “primarily with the persons that design, develop, and test it,” Appx99, it was reasonable here for the district court to question whether any of those employees in Massachusetts, who had not worked on the products in years, would still have documents in their possession, given that development had moved to India. HPE notably did not submit declarations from any employee confirming possession of such technical documents. It was likewise reasonable for the district court to give little weight to the existence of IV documents located with its counsel in Massachusetts. See In re Horseshoe Ent., 337 F.3d 429, 434 (5th Cir. 2003) (“The factor of ‘location of counsel’ is irrelevant and improper for consideration” in a transfer analysis).

Nor has HPE provided compelling reasons to second guess the court’s determinations regarding the witness factors. The court reasonably found that the willing witnesses factor only slightly weighs in favor of transfer given that HPE had only identified two potentially relevant witnesses in Massachusetts with any particularity and IV identified one potentially relevant witness in the Western District of Texas. The district court also found that it had compulsory process power over at least one non-party potential witness. HPE challenges whether these individuals identified in Texas have relevant and material information. Mindful of the demanding standard of review, however, HPE has not shown that we should disturb those findings in this case. Accordingly, we cannot say that the trial court’s weighing of the witness factors was unreasonable and warrants the extraordinary relief of mandamus.

As such, the court reasonably found that the circumstances of this case are materially different from In re Genentech, Inc., 566 F.3d 1338, 1347 (Fed. Cir. 2009), in which we granted mandamus to direct transfer. Genentech held that “when . . . several relevant factors weigh in favor of transfer and others are neutral, then the speed of the transferee district court should not alone outweigh all of those other factors.” Id. But in Genentech, we concluded that there was “no rational argument” for keeping that case in the Texas forum based on an assessment of the other factors. Id. at 1348. This case is different because the trial court reasonably found that while the local interest factor favors transfer, the willing witness factor only slightly favors transfer, and the remaining factors (other than court congestion) are neutral. HPE has not convinced us to extend Genentech to reach this case. Nor can we say that the trial court’s balancing of the factors was so unreasonable as to warrant the extraordinary relief of mandamus.



The petition is denied.