In re: Chamber of Commerce

Case: 24-10266 Document: 89-1 Page: 1 Date Filed: 05/03/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

April 5, 2024

No. 24-10266 Lyle W. Cayce

____________ Clerk

In re Fort Worth Chamber of Commerce; Longview

Chamber of Commerce; American Bankers Association;

Consumer Bankers Association; Texas Association of

Business; Chamber of Commerce for the United States

of America,

Petitioners.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:24-CV-213

______________________________

Before Higginson, Willett, and Oldham, Circuit Judges.

Don R. Willett, Circuit Judge:

Our prior panel opinion, In re Fort Worth Chamber of Com., 98 F.4th

265 (5th Cir. 2024), is WITHDRAWN and the following opinion is

SUBSTITUTED therefor:

A group of plaintiffs consisting of various business associations,

including one located in Fort Worth, filed suit in the Northern District of

Texas, challenging a new Final Rule issued by the Consumer Financial

Protection Bureau (CFPB) regarding credit card late fees. The plaintiffs

collectively sought a preliminary injunction against the Final Rule and

requested expedited briefing and review in light of the Final Rule’s imminent

effect and the substantial compliance it entailed.

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Rather than rule on the motion for preliminary injunction, however,

the district court sua sponte considered whether venue was appropriate in the

Northern District of Texas and invited CFPB to file a motion to transfer.

CFPB obliged, and the district court granted its motion in short order,

transferring the case to the United States District Court for the District of

Columbia.

The plaintiffs now petition for a writ of mandamus, arguing that the

district court clearly abused its discretion by transferring the case while the

plaintiffs’ appeal was already pending here and, alternatively, lacked

jurisdiction to transfer the case. Because the plaintiffs appealed the district

court’s effective denial of their preliminary-injunction motion before the

district court granted the motion to transfer the case, we agree that the

district court acted without jurisdiction.

Forum disputes are nothing new in American litigation. Opposing

parties frequently bicker over where their litigation belongs. And district

judges are right to scrutinize whether legal challenges in their courts actually

belong there. Procedure matters—in big and small cases alike—and venue,

admittedly, can be vexing. But this much is clear: Once a party properly

appeals something a district court has done—here, the effective denial of a

preliminary injunction—the district court has zero jurisdiction to do

anything that alters the case’s status. Importantly, we are not announcing

today a broad rule regarding inter-circuit transfers. Indeed, we do not even

reach the question of where this case rightly belongs. Our decision today is

exceedingly narrow and procedural, focused not on the correctness of the

district court’s transfer order but rather on whether the court had jurisdiction

to enter it. On these facts, it did not.

Accordingly, we GRANT the petition for mandamus, VACATE the

district court’s transfer order, and ORDER the district court to reopen the

2

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case because its post-appeal transfer order was void for want of jurisdiction

and to give notice to D.D.C. that its transfer was without jurisdiction and

should be disregarded.

I

The Credit Card Accountability and Disclosure Act directs CFPB to

“establish standards for assessing whether” credit card late fees are

“reasonable and proportional” to the violation. To that end, it authorizes

CFPB to create a “safe harbor” fee amount presumed to be reasonable and

proportional.1 On March 5, 2024, CFPB enacted a Final Rule that decreases

the previously applicable safe-harbor amount for late fees charged by the

nation’s largest credit card issuers. The rule is set to take effect on May 14.

To comply with the Final Rule, the credit card issuers must print and

distribute disclosure materials about the new $8 fee to customers and provide

notice of any terms that issuers change to mitigate lost revenues caused by

the decrease of the safe-harbor amount. The current effective date means

that customers must have received notice of the mitigating changes by March

29.

On March 7, the Chamber of Commerce2 sued CFPB and moved for

a preliminary injunction in the Northern District of Texas.3 The Chamber

requested a ruling “within 10 days, or as soon as possible thereafter, to

prevent irrecoverable harm.” The motion became ripe on March 14. Despite

previously finding good cause to expedite briefing, however, the district court

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1

See 15 U.S.C. § 1665d(a)–(e).

2

We refer to the group of plaintiffs as “the Chamber” for simplicity.

3

The Chamber argues in its complaint that CFPB violated the Appropriations

Clause, exceeded its statutory authority, offered a deficient analysis and reasoning, and

adopted an effective date that violates another statute.

3

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did not rule on the motion by within 10 days of its filing. Instead, it sua sponte

requested briefing on venue on March 18 and “welcome[d]” CFPB to file a

motion to transfer venue.

Having not received a ruling by the requested date, the Chamber

moved for expedited review of its motion for a preliminary injunction on

March 19. The Chamber informed the court that if it did not receive a ruling

by March 22, it would understand its preliminary injunction to be effectively

denied and would accordingly seek appellate review under 28 U.S.C.

§ 1292(a)(1). The district court denied the motion for expedited review on

March 20. It did not rule on the motion for a preliminary injunction by March

22.

CFPB moved to transfer the case to the United States District Court

for the District of Columbia (D.D.C.) on March 21. The motion became ripe

on March 25. That same day, the Chamber appealed and filed an emergency

motion for an injunction pending appeal and an administrative stay, arguing

that the district court had effectively denied its motion for a preliminary

injunction.4

On March 28, the district court granted the motion to transfer the case

to D.D.C. The Chamber filed an emergency petition for mandamus and an

administrative stay on March 29, requesting that we order “the district court

to reopen the case because its transfer order was void for lack of jurisdiction

and/or immediately request that the case be transferred back.”

We administratively stayed the district court’s transfer order pending

our more considered view of the mandamus petition.

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4

That appeal is before our court under case number 24-10248.

4

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II

As a threshold matter, the Chamber and CFPB disagree about

whether the district court had jurisdiction to transfer the case. Specifically,

CFPB says the district court retained jurisdiction to transfer because the

district court did not effectively deny the preliminary injunction, so there was

no appealable order.

To determine whether the district court had jurisdiction, we must first

determine whether the district court effectively denied the preliminary

injunction. An effective denial of a preliminary injunction is an appealable

order.5 If there is an appealable order, the appeal divests the district court of

jurisdiction “over those aspects of the case on appeal.”6

“A district court does not have the power to ‘alter the status of the

case as it rests before the Court of Appeals.’”7 If the district court altered the

status of the case, in frustration of our jurisdiction, when it transferred the

case, then the district court didn’t have jurisdiction to transfer the case. But

if the district court did not alter the status by transferring the case, then it had

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5

Clarke v. CFTC, 74 F.4th 627, 635 (5th Cir. 2023) (“[We] may review a district

court’s order that, while not explicitly denying a preliminary injunction, ‘nonetheless ha[s]

the practical effect of doing so’ and might cause irreparable harm absent immediate

appeal.” (second alteration in original) (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 83

(1981))).

6

Alice L. v. Dusek, 492 F.3d 563, 564–65 (5th Cir. 2007) (per curiam) (“A notice

of appeal from an interlocutory order does not produce a complete divestiture of the district

court’s jurisdiction over the case; rather, it only divests the district court of jurisdiction

over those aspects of the case on appeal. . . . How broadly a court defines the aspects of the

case on appeal depends on the nature of the appeal.”).

7

Dayton v. Indep. Sch. Dist. v. U.S. Min. Prod. Co., 906 F.2d 1059, 1063 (5th Cir.

1990) (quoting Coastal Corp. Tex. E. Corp., 869 F.2d 817, 820–21 (5th Cir. 1989)).

5

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jurisdiction, and we must consider whether the district court abused its

discretion in ordering the transfer under 28 U.S.C. § 1404.8

A

We begin by asking whether the district court effectively denied the

Chamber’s motion for a preliminary injunction. We conclude that it did.

When a district court denies a preliminary injunction, the denial is an

appealable interlocutory order.9 “[W]here an order has the ‘practical effect’

of granting or denying an injunction, it should be treated as such for purposes

of appellate jurisdiction.”10 Because the district court did not expressly deny

the motion here, we must determine whether the district court’s inaction, in

light of the unique expedited nature of the case, amounts to an “effective”

denial.

It’s generally understood that a motion for preliminary injunctive

relief “must be granted promptly to be effective,” so if a district court does

not timely rule on a preliminary-injunction motion, it can effectively deny the

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8

This analysis entails applying four private-interest and four public-interest

factors. “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.’ 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.’” In re Clarke, 94 F.4th 502, 509 (5th Cir. 2024) (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)).

9

See 28 U.S.C. § 1292(a)(1).

10

Abbott v. Perez, 585 U.S. 579, 594 (2018).

6

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motion.11 We have accordingly recognized that simply sitting on a

preliminary-injunction motion for too long can effectively deny it.12

CFPB argues that the district court’s delay is too short to constitute

an effective denial because only one month has passed since the motion for a

preliminary injunction was filed. According to CFPB, the timeline of this

case is far shorter than the other cases in which we recognized an effective

denial.13 Without context, CFPB is right. But its argument fails to account

for the expedited nature of this case. Among the considerations when

determining whether a district court has waited too long to rule on a motion

is “the urgency of preliminary relief as a means of preserving the opportunity

for effective permanent relief.”14 Thus, whether a district court fails to act

promptly depends entirely on context.

The context of this case reveals that the district court did not act

promptly with regard to the Chamber’s motion for a preliminary injunction.

When CFPB enacted the Final Rule on March 5 and set an effective date of

May 14, it created a short runway for issuers to comply or seek preliminary

injunctive relief. To comply with the Final Rule, credit card issuers needed

to have (1) printed and distributed disclosure materials about any mitigating

changes to customers by March 29, and (2) removed and replaced all printed

materials to reflect the new $8 fee by May 14. The Chamber attests that the

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11

16 Charles Allen Wright & Arthur Miller, Federal Practice

& Procedure § 3924.1 (3d ed.) (emphasis added).

12

See, e.g., Clarke, 74 F.4th at 635 (three months); McCoy v. La. State Bd. of Educ.,

332 F.2d 915, 916–17 (5th Cir. 1964) (four months); United States v. Lynd, 301 F.2d 818,

820 (5th Cir. 1962) (eight months).

13

See supra note 12.

14

Wright & Miller, supra note 11, § 3924.1 (emphasis added).

7

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process of approving, printing, and sending notice “typically takes 4

months”—not weeks.

For its part, the Chamber acted diligently. It filed this action

challenging the Final Rule within two days of CFPB issuing the new rule. It

argues in its complaint that CFPB implemented its new rule in violation of a

statute that requires it to give 6 months for issuers to comply. With its initial

filing, the Chamber specifically requested a ruling on its preliminary

injunction within 10 days so that the credit card issuers could avoid rushing

to comply with a rule that they thought was invalid. It also requested

expedited briefing. The district court found good cause to expedite the

briefing schedule.

When the motion for a preliminary injunction became ripe on March

14, the district court did not rule on it but instead sua sponte invited briefing

on venue on March 18. The Chamber responded to not having received a

ruling by its requested date by moving for expedited review of the motion for

a preliminary injunction on March 19. It argued that if it didn’t receive a

ruling by March 22, the preliminary injunction would be effectively denied

because the credit card issuers had to print new inserts and disclosures for all

new cards issued after May 14, a process that usually takes months, and

provide notice to customers of any mitigating changes by March 29. The

district court quickly denied the motion for expedited review on March 20.

And, as promised, the Chamber appealed, arguing effective denial.

CFPB filed a motion to transfer that became ripe on March 25, and

the district court chose to give its attention to that motion, ultimately

granting it three days later on March 28.

The Chamber made clear from its first filing that the Final Rule was

going into effect on an unusually short timeline, which meant the credit card

issuers had an unusually short window of time to comply. Accordingly, the

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Chamber repeatedly requested swift review. Given the Chamber’s diligence

in seeking to expedite briefing and consideration, and its repeated requests

for a ruling by specific dates so as to avoid substantial compliance with the

new rule, the district court effectively denied the motion by failing to rule on

it by those dates and sua sponte inviting briefing on venue/transfer.15

Of course, we recognize that plaintiffs cannot simply say they need an

expedited ruling and then appeal by claiming effective denial when they don’t

get it on their preferred timeline. “Appeal cannot be achieved simply by

asserting that the trial court has failed to act as promptly as wished by a party

seeking an injunction.”16 There must be a legitimate basis for the urgency.

CFPB does not contradict the Chamber’s summary of the timeline or what

the Final Rule requires credit card issuers to do by the effective date. It only

counters that the issuers’ compliance costs, which the Chamber says are

substantial, are in fact negligible. On this limited record, however, the

Chamber has made the case that its urgency is justified.

The dissent suggests that we should ignore the March 29 date because

it is only relevant to the extent issuers choose to make mitigating changes.

But Chamber points out “[i]n the Final Rule, the CFPB repeatedly assured

that issuers can make mitigating changes to other card terms to offset the

losses from the lower late fees.” Indeed, CFPB “explained” in the 2023

Proposal that “issuers can mitigate the costs” created by the lowering of the

late fee “by taking other measures,” such as increasing interest rates.17 And

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15

Cf. Comput. Care v. Serv. Sys. Ent., Inc., 982 F.2d 1063, 1075 (7th Cir. 1992)

(“[F]ailure to grant such relief when it was sought . . . has the substantive effect of a denial.”

(emphasis added)).

16

Wright & Miller, supra note 11, § 3924.1.

17

12 C.F.R. Part 1026, 19192 (2024).

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in the Final Rule it lists the possible steps issuers can take to mitigate.18

CFPB cannot suggest that issuers make changes to mitigate the cost of the

Final Rule and then claim the date by which issuers would have to give notice

of those changes is irrelevant.

In sum, given the issuers’ unusually short timeline for complying with

the Final Rule or obtaining injunctive relief, the district court effectively

denied the Chamber’s motion for a preliminary injunction by not promptly

ruling on it by and by instead opting to hear an unrelated motion sua sponte.

We emphasize that what counts as an effective denial is contextual—

different cases require rulings on different timetables. District courts have

wide discretion in managing their docket, and they do not necessarily deny a

motion by failing to rule on a parties’ requested timeline. Even so, in this

case, the Final Rule’s fast-closing window for compliance demanded faster

review of the motion for a preliminary injunction.

Because the district court effectively denied the preliminary

injunction, there is an appealable order before us. 19

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18

“As discussed above, Larger Card Issuers could also increase other prices in a

way that would offset some revenue lost from reduced late fees. In general, Larger Card

Issuers will set the terms of credit cards to maximize profits, and it is not clear that limiting

late fees will directly affect the existing profit-maximizing finance charge or account

maintenance fee, for example. However, a reduction in late fee revenue could cause Larger

Card Issuers to change other terms if the lost late fee revenue reduced the profitability of

issuing credit cards to the point at which issuers are faced with a choice between raising

new revenue by changing other card terms or exiting the market segment. As discussed

above, such offsetting price increases are most likely where profit margins are low since any

reduction in revenue is likely to drive risk-adjusted returns on capital below market

expectations, limiting supply and driving prices up for consumers. The recent profitability

of consumer credit card businesses makes the CFPB expect the market to see exceedingly

few exits and no change in entries.” 12 C.F.R. Part 1026, 19198 (2024).

19

Clarke, 74 F.4th at 635.

10

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B

Next, we ask whether the Chamber’s appeal of the district court’s

effective denial divested the district court of jurisdiction to transfer the case.

A notice of appeal from an appealable order divests the district court

of jurisdiction over aspects of the case on appeal.20 “The filing of a timely

and sufficient notice of appeal transfers jurisdiction over matters involved in

the appeal from the district court to the court of appeals. The district court

is divested of jurisdiction to take any action with regard to the matter except

in aid of the appeal.”21 “How broadly a court defines the aspects of the case

on appeal depends on the nature of the appeal.”22 But it is clear that “[a]

district court does not have the power to alter the status of the case as it rests

before the Court of Appeals.”23 To determine whether the district court had

jurisdiction to transfer the case, we must define the scope of “the aspects of

the case on appeal.”24

The Chamber argues that jurisdiction to transfer the case implicates

“the aspects of the case involved on appeal” because a transfer would

frustrate our ability to provide meaningful relief because we would have no

case to review. We agree.

In support of this argument, the Chamber points to two other

contexts—qualified immunity and arbitration. In the qualified-immunity

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20

United States v. Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en banc), superseded

by statute on other grounds; see also Rutherford v. Harris County, 197 F.3d 173, 190 n.17 (5th

Cir. 1999).

21

Hitchmon, 602 F.2d at 692.

22

Dusek., 492 F.3d at 565.

23

Dayton, 906 F.2d at 1064 (quoting Coastal Corp., 820–21).

24

Dusek, 492 F.3d at 564.

11

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context, the district court loses authority to order discovery because the point

of appealing a qualified-immunity denial is in part to avoid the burden of

discovery. And in the arbitration context, the district court lacks authority to

proceed because the point of appealing the denial of a motion to compel

arbitration is to vindicate a clause that prohibits court proceedings at all.

Transferring a case to another district while the appeal of an effective denial

is pending would essentially nullify the appeal and render us unable to grant

relief. It would thus “alter the status of the case as it rests before the Court

of Appeals.”25

CFPB counters that the Chamber’s cited cases support only that

district courts are divested from taking actions that would eliminate all

avenues for relief, and the Chamber can still get relief from the transferee

court. But this doesn’t account for the unusually short timeline in this case.

Once a transfer occurred, the Chamber certainly could not obtain relief by

their requested dates for a ruling and would begin incurring compliance costs

because regardless of whether the issuers were going to implement mitigating

changes, the issuers represented that the process of updating all printed

disclosures would take time. Delaying review here undercut the Chamber’s

chance for any meaningful review.

In sum, by transferring the case while an appealable order was pending

before our court, the district court “alter[ed] the status of the case as it rests

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25

Dayton, 906 F.2d at 1064 (quoting Coastal Corp., 869 F.2d at 820–21); see also

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (“The filing of a notice of

appeal is an event of jurisdictional significance—it confers jurisdiction on the court of

appeals and divests the district court of its control over those aspects of the case involved

in the appeal.”); Wooten v. Roach, 964 F.3d 395, 403 (5th Cir. 2020).

12

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before the Court of Appeals.”26 Thus, the district court lacked jurisdiction

to transfer the case.

III

We’ve so far concluded that the district court (1) effectively denied

the preliminary injunction, and (2) lacked jurisdiction to transfer the case.

We must still ask whether mandamus is appropriate.

A petitioner must satisfy three requirements for a writ of mandamus:

(1) “the party seeking issuance of the writ [must] have no other

adequate means to attain the relief he desires—a condition

designed to ensure that the writ will not be used as a substitute

for the regular appeals process”; (2) “the petitioner must

satisfy the burden of showing that [his] right to issuance of the

writ is clear and indisputable”; and (3) “even if the first two

prerequisites have been met, the issuing court, in the exercise

of its discretion, must be satisfied that the writ is appropriate

under the circumstances.27

“[T]his circuit has established that the first ‘mandamus requirement is

satisfied in the motion-to-transfer context.’”28 Cases with “an out-of-circuit

transfer only strengthens the case for mandamus.”29 Thus, we focus on the

second and third requirements.

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26

Dayton, 906 F.2d at 1064 (quoting Coastal Corp., 869 F.2d at 820–21).

27

In re Volkswagen of Am., Inc., 545 F.3d at 311 (first alteration in original) (quoting

Cheney v. U.S. Dist. Ct. for D. C., 542 U.S. 367, 380–81 (2004)).

28

In re TikTok, 85 F.4th at 358 (quoting In re Radmax, Ltd., 720 F.3d 285, 287 n.2

(5th Cir. 2013) (per curiam)).

29

In re Space Expl. Techs., Corp., No. 24-40103, 2024 WL 948321, *2 (5th Cir. Mar.

5, 2024) (Elrod, J., dissenting).

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The second requirement is met because the district court lacked

jurisdiction to transfer the case while an appealable order was pending before

our court. This was clear and indisputable error.

That leaves the third requirement. “[W]rits of mandamus are

supervisory in nature and are particularly appropriate when the issues also

have an importance beyond the immediate case.”30 Facing an uptick in inter-

circuit transfer orders, we take this opportunity to clarify that once an

appealable order is lodged before our court, district courts lack jurisdiction to

transfer a case because it stymies our ability to review.

All three requirements for mandamus are met. Accordingly, issuance

of the writ is appropriate.

* * *

Because the Chamber had a short window of time to either (1) comply

with the Final Rule, or (2) seek a preliminary injunction, the district court’s

inaction amounted to an effective denial of the Chamber’s motion for a

preliminary injunction. That effective denial is properly before us on appeal.

The district court lacked jurisdiction to transfer the case after this appeal was

docketed because doing so would alter its status.

IT IS ORDERED that the administrative stay of the transfer order

previously extended by this panel on April 2, 2024, is DISSOLVED.

The district court’s transfer order is VACATED.

The petition for a writ of mandamus is GRANTED. The district

court is ORDERED to reopen the case and to give notice to D.D.C. that its

transfer was without jurisdiction and should be disregarded.

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30

In re Volkswagen, 545 F.3d at 319.

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Andrew S. Oldham, Circuit Judge, concurring:

I join Judge Willett’s opinion in full. Under the “one-court-at-a-time

rule,” a notice of appeal generally transfers the case to us until we send it

back to the district court. See, e.g., United States v. Willis, 76 F.4th 467, 471

(5th Cir. 2023); United States v. Lucero, 755 F. App’x 384, 386 (5th Cir. 2018)

(per curiam). While there are exceptions to that rule, see Willis, 76 F.4th at

471–73, none applies here.

I write separately to explore additional problems with the district

court’s order to transfer this case under 28 U.S.C. § 1404(a).

I.

With greatest respect for our district court colleague, the transfer

order erroneously construed (A) the § 1404(a) standard and (B) our

precedent. So even if the one-court-at-a-time rule did not apply, (C) we

would have grounds to grant mandamus.

A.

Start with § 1404(a). It enables district courts to transfer certain cases

“[f]or the convenience of parties and witnesses” and “in the interest of

justice.” 28 U.S.C. § 1404(a). Importantly, the burden is on the moving party

to “clearly establish good cause” for the transfer. Def. Distributed v. Bruck,

30 F.4th 414, 433 (5th Cir. 2022). It is not enough that the movant’s chosen

alternative venue is “more likely than not to be more convenient.” See ibid.

Rather, the chosen venue needs to be “clearly more convenient.” See In re

Volkswagen of Am., Inc. (“Volkswagen II”), 545 F.3d 304, 315 (5th Cir. 2008)

(en banc); see also In re Clarke, 94 F.4th 502, 508 (5th Cir. 2024) (“[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

15

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transferee venue.”) (emphasis in original). Among other things, this burden

reflects the longstanding deference that courts show towards the plaintiff’s

choice of venue. See, e.g., Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist.

of Tex., 571 U.S. 49, 62 n.6 (2013) (“The Court must…give some weight to

the plaintiffs’ choice of forum.”); Clarke, 94 F.4th at 515–16 (noting that the

plaintiff is “master of the complaint”); see also Def. Distributed, 30 F.4th at

433 (providing that the plaintiff’s choice of venue should be respected);

Volkswagen II, 545 F.3d at 315 (same).

The district court’s order appeared to recognize these requirements.

But I am concerned that the district court lightened the § 1404(a) burden in

two ways.

First, the district court held that a plaintiff’s choice of venue is

accorded less respect “where the plaintiff brings suit outside his home

forum.” District Court Op. at 2 (quotation omitted). As only one of the six

plaintiffs was based in the Northern District, this rule statement appears to

have influenced the remainder of the district court’s analysis. See, e.g., id. at

3, 5. But I am unaware of any support in our precedent or the Supreme

Court’s for this less-respect rule. 1 To the contrary, we have never put a

geographic caveat on our repeated statements about the plaintiff’s choice of

venue. See, e.g., Clarke, 94 F.4th at 515–16; Def. Distributed, 30 F.4th at 433;

Volkswagen II, 545 F.3d at 315. Moreover, this assertion conflicts with the

relevant venue statute regarding suits against federal officers. See 28 U.S.C.

§ 1391(e). In that statute, Congress provided three paths to establish venue,

including, but expressly not limited to, the residence of the plaintiff. See 28

U.S.C. § 1391(e)(1)(C); see also id. § 1391(e)(1)(A) (providing venue in any

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1

Query whether, where at least one of the plaintiffs did bring suit in its home

forum, the residence of the other five plaintiffs should matter in any event.

16

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district “in which…a defendant in the action resides”); id. § 1391(e)(1)(B)

(providing venue in any district “in which . . . a substantial part of the events

or omissions giving rise to the claim occurred, or a substantial part of

property that is the subject of the action is situated”). Because Congress gave

no textual priority to one of these three avenues, we cannot give preference

to suits brought in the plaintiff’s home forum.

Second, the district court appeared to analyze the motion to transfer

with an eye towards discouraging forum and / or judge-shopping. See District

Court Op. at 5–7. However well-intentioned this approach may have been, I

cannot find support for it in Supreme Court or Fifth Circuit precedent. True,

Congress added the qualification “substantial” to § 1391(e)(1)(B). Cf.

District Court Op. at 5; see also id. at 6 (recommending that plaintiffs bring

cases “in jurisdictions where the impact is uniquely and particularly felt,”

notwithstanding the fact that those words do not appear in the relevant

federal venue statute). But that only highlights that Congress did not require

“substantiality” in § 1391(e)(1)(A) and (C). It is not for federal district courts

to add additional qualifications on top of statutory law, especially where the

Supreme Court has previously declined to impose judicial barriers to forum-

shopping. 2 See, e.g., Ferens v. John Deere Co., 494 U.S. 516, 527–29 (1990).

B.

Next, consider our court’s § 1404(a) precedents. In determining

whether the movant has clearly established good cause for the transfer, see

_____________________

2

The district court noted that “[v]enue is not a continental breakfast; you cannot

pick and choose on a Plaintiffs’ whim where and how a lawsuit is filed.” District Court Op.

at 5. But so long as the plaintiffs complied with federal law, any complaint about the scope

of venue statutes is better addressed to Congress.

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Def. Distributed, 30 F.4th at 433, courts must consider eight factors (four

private-interest and four public-interest):

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.” 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.”

Clarke, 94 F.4th at 509 (citations omitted).3 No factor is “dispositive,” and

this court has cautioned against a “raw counting of the factors that weighs

each the same.” In re TikTok, Inc., 85 F.4th 352, 358 (5th Cir. 2023)

(quotation omitted).

The district court found that factors (4), (5), and (6) weighed in favor

of transfer to the D.D.C. See District Court Op. at 4–6. But there are

significant problems with the district court’s analysis of all three.

Begin with factor (4): “practical problems that make trial of a case

easy, expeditious and inexpensive.” Clarke, 94 F.4th at 509. The district

court emphasized that most of the attorneys were from D.C. See District

Court Op. at 4. Accordingly, the attorneys’ travel costs would mean “an

expensive bill” charged either to the plaintiffs or the taxpayers. Ibid. Even if

_____________________

3

These factors are drawn in large part from our en banc decision in Volkswagen II.

But that case involved an intra-circuit transfer from one Texas district court to another. See

545 F.3d at 307. Query whether a higher burden should be met in advocating a § 1404(a)

transfer from a district court in one circuit to a district court in another circuit more than

1,000 miles away.

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true, this does not weigh this factor in favor of transfer. As to the plaintiffs’

costs, it bears repeating that the plaintiffs are the “master[s] of the

complaint.” See Clarke, 94 F.4th at 515–16. That characterization would

mean very little if the travel costs of the plaintiffs’ lawyers could be used to

oppose the plaintiffs’ own choice of venue.

As to the federal government’s lawyers, two points bear emphasis.

First, “[w]hen a defendant is haled into court, some inconvenience is

expected and acceptable.” Def. Distributed, 30 F.4th at 433. Travel costs are

an assumed part of that inconvenience. Cf. In re Horseshoe Entertainment, 337

F.3d 429, 434 (5th Cir. 2003) (per curiam) (rejecting a district court’s

consideration of the location of counsel in the § 1404(a) analysis). Second, it

is no surprise that defendants’ lawyers are from D.C.—defendants are a

federal agency and a federal officer. But if their travel costs are to weigh

against out-of-D.C. venues, federal defendants could always argue that

litigation should be transferred to the D.D.C.4 Such an outcome would

concentrate federal judicial power in D.C. and undermine our federalist

system. Correctly applied, this factor is neutral as to a transfer from the

Northern District of Texas to the District of Columbia.

Next, consider factor (5): “the administrative difficulties flowing from

court congestion.” Clarke, 94 F.4th at 509. The district court found this

factor weighed “heavily” in favor of transfer. See District Court Op. at 4–5.

_____________________

4

In their opposition to the petition for writ of mandamus, defendants deny the

consequences of the district court’s rationale. See Opposition at 29 (“Many APA cases are

litigated outside Washington, D.C.—including in this Circuit—and appropriately so.”).

But defendants give no indication how the reasoning in the transfer order could not be used

by federal defendants to always support transfers to the D.D.C. on account of government

counsel’s convenience and expense. Must plaintiffs challenging government action always

use non-D.C. attorneys so as to oppose this argument? Such an anti-plaintiff work-around

cannot possibly be required by § 1404(a)’s text or this court’s precedents.

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In doing so, it relied on evidence suggesting the median time for disposition

of a case in the D.D.C. is 1.4 months quicker than that in the Northern

District of Texas. See ibid. (citation omitted). We certainly defer to the able

district court’s assessment of its own docket, but it’s an altogether different

proposition to defer to a district court’s “guess” about the congested nature

of other district dockets. See Clarke, 94 F.4th at 515. If this factor weighs in

favor of transfer, it does so only slightly.

Finally, consider factor (6): “the local interest in having localized

interests decided at home.” Id. at 509. The district court concluded that

there was a “strong interest” in having this case decided in D.C. See District

Court Op. at 5. But in doing so, the court emphasized the location of the

parties and their attorneys. See id. at 6 (“The Rule at issue in this case was

promulgated in Washington D.C., by government agencies stationed in

Washington D.C., and by employees who work in Washington D.C. Most of

the Plaintiffs in this case are also based in Washington D.C. and eighty

percent of the attorneys in this matter work in Washington D.C.”). With

deepest respect for our learned colleague, this conflicts with our recent

decision in Clarke, which held that “the local-interest inquiry is concerned

with the interest of non-party citizens in adjudicating the case.” 94 F.4th at

511 (emphasis in original); see also id. (critiquing a district court for only

considering the “relationship between the venue and the party”).

Properly understood, local interests do not weigh in favor of transfer

and plausibly weigh against transfer. Plaintiffs have alleged that many of the

non-party citizens that will be affected by the challenged CFPB Rule live in

Texas, including in the Northern District. See Plaintiffs’ Supplemental

Motion on Venue and Response to Defendants’ Motion to Transfer Venue

at 13. And as relevant to the “relative” nature of the transfer analysis, cf.

Clarke, 94 F.4th at 512, many more potentially affected non-party citizens are

in Texas than in the District of Columbia. See Plaintiffs’ Supplemental

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Motion on Venue and Response to Defendants’ Motion to Transfer Venue

at 13. A proper focus on non-party citizens instead of parties would place the

local interests factor as weighing against transfer not in favor of it.

C.

Lastly, the mandamus inquiry. Clarke succinctly laid out the three

requirements for writ of mandamus:

First, “there must be ‘no other adequate means to attain the

relief . . . desire[d].’” Second, “the right to issuance of the writ

must be clear and indisputable.” Third, “the issuing court, in

the exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances.”

94 F.4th at 516 (citations omitted). All three requirements are met here.

First, mandamus is permitted where plaintiffs have no other means of

achieving redress for the district court’s erroneous transfer order. See ibid.;

see also In re Radmax, Ltd., 720 F.3d 285, 287 n.2 (5th Cir. 2013).

Second, the right to mandamus is clear and indisputable based on the

district court’s erroneous analysis of the § 1404(a) factors. Clarke is

instructive. In that case, we found a clear abuse of discretion where the only

factor that weighed in favor of transfer, congestion, was opposed by another

factor that weighed against transfer. See id. at 509–16. Here, the only factor

that weighs in favor of transfer, congestion, is opposed by another factor that

plausibly weighs against transfer, local interests. While we do not replace the

district court’s exercise of discretion with our own, see Volkswagen II, 545

F.3d at 312, the parallels between Clarke and this case cannot be ignored. And

we are obviously bound to follow Clarke.

Third, as we recognized in Clarke and prior cases, mandamus is

“particularly appropriate” for reviewing district court transfer decisions. See

Clarke, 94 F.4th at 516 (quotation omitted); see also TikTok, 85 F.4th at 367

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(holding that mandamus is an appropriate exercise of our supervisory

discretion where transfer decisions are rarely reviewed and district courts

continue to inconsistently administer § 1404(a) transfers). Here, mandamus

would be appropriate for many reasons, not least of which is to clarify to this

district court and others that forum-shopping, whether in or out of one’s

home forum, cannot weigh in favor of § 1404(a) transfer.

II.

This case again highlights why a district court should stay a transfer

order for a short period so that opposing parties may appeal it. We

commended that procedure in Clarke, 94 F.4th at 507 n.1. And that

procedure would have avoided the very unfortunate circumstance presented

by this motion: we’ve been forced to consider a mandamus application on a

highly truncated timeline and to grant relief that could’ve otherwise been

avoided.

I have zero doubt about the conscientiousness of the learned district

court judge. The district court’s forum-shopping concerns might be well-

founded. And I certainly don’t think the district court “defied” anyone or

anything. Post, at 3 (Higginson, J., dissenting). But I do think the preexisting

transfer rules precluded sending this case to Washington, D.C. That result is

dictated by Clarke and the ample authorities underlying that decision—not

some “new proposition of law created by [today’s] majority.” Post, at 5

(Higginson, J., dissenting).

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Stephen A. Higginson, Circuit Judge, dissenting:

I would deny the mandamus petition.

I.

The district court’s reasoned conclusion that the case “does not

belong in the Northern District of Texas” is fact-based and sound. Chamber

of Com. v. CFPB, No. 4:24-CV-00213-P, 2024 WL 1329959, at *4 (N.D. Tex.

Mar. 28, 2024). As it notes, the CFPB and “[m]ost of the Plaintiffs in this

case are also based in Washington D.C.”—not to mention that all the events

are tied to Washington, D.C.: The CFPB Rule in question “was promulgated

in Washington D.C., by government agencies stationed in Washington D.C.,

and by employees who work in Washington D.C.” Id. at *3. Conversely, the

case has no real, let alone “substantial,” connection to the Northern District

of Texas. 28 U.S.C. § 1391(e)(1). As the district court explained, “[t]he only

apparent connection” is that: (1) “one Plaintiff”—not a card issuer affected

by the Late Fee Final Rule, but the Fort Worth Chamber of Commerce,

asserting associational standing for an out-of-state bank that claims

membership—is headquartered in the Northern District of Texas, and (2)

“the effects of the Rule will be felt generally here.” Chamber of Com., 2024

WL 1329959, at *4.

All parties agree venue is proper in Washington, D.C., where the case

has already been docketed. See Chamber of Com. v. CFPB, No. 1:24-cv-00915-

ABJ (D.D.C. Mar. 29, 2024), ECF No. 68.

The district court also correctly emphasized that there is no indication

the matter would not get a full, fair, and expeditious resolution in the District

Court for the District of Columbia. And Petitioners’ assertion, embraced by

the majority, of a March 29 deadline to provide notice to customers ignores

what the challenged Rule actually requires.

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I would therefore hold that the stark concentration of parties and

events in Washington, D.C. readily supports the district court’s

determination that practical considerations, along with the congestion and

local-interest factors, justify transfer.

II.

Importantly, I also see no abuse of discretion that would warrant

mandamus. Judge Pittman’s analysis of the Gilbert factors and his fact-

specific determinations, all made in response to Petitioners’ urgent

presentation of this case, make transfer here a determination soundly within

his discretion, In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008)

(en banc) (“There can be no question but that the district courts have ‘broad

discretion in deciding whether to order a transfer.’” (citation omitted)), and

certainly not “patently erroneous,” id. at 312; see id. (“But—and we stress—

in no case will we replace a district court’s exercise of discretion with our

own; we review only for clear abuses of discretion that produce patently

erroneous results.”).

Notably, this is not a case where the district court “fail[ed] to rule on

the preliminary injunction for three months,” In re Clarke, 94 F.4th 502, 508

(5th Cir. 2024); not a case where the district court made a relative

determination regarding the local-interest factor based “solely” on the

parties’ “connection[s] to the venue” rather than the “events that gave rise

to the suit,” id. at 511 & n.12 (citation omitted); and not one where it provided

“all of two sentences” to discuss all four private-interest factors, id. at 513.

Indeed, the district court’s prompt transfer of the case, after

explaining in detail why the case was improperly before it, dutifully heeds our

admonishments to district courts to prioritize ruling on motions to transfer.

See, e.g., In re TikTok, Inc., 85 F.4th 352, 362 (5th Cir. 2023); In re Horseshoe

Ent., 337 F.3d 429, 433 (5th Cir. 2003). By granting mandamus, the majority

24

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No. 24-10266

reverses course today.1 Contra State ex rel. Nixon v. Coeur D’Alene Tribe, 164

F.3d 1102, 1107 (8th Cir. 1999) (finding that an order granting a motion to

transfer a case did not constitute an effective denial of a pending motion for a

preliminary injunction).

Worse still, the majority’s grant of mandamus also threatens to

impossibly hamstring district courts by effectively declaring that our district

judges cannot manage their dockets to sequence threshold questions before

difficult merits questions and cannot transfer cases if there are motions

pending. Instead, district courts will be deemed to have “decided” merits

questions—and will be subject to appellate review—when they simply do not

accede to a plaintiff’s insistence for a ruling in less than two weeks from

assignment of the case. I have never been a trial judge, but this strikes me as

impossible law for us to impose, much less declare as clear and obvious

existing law defied by Judge Pittman.

The majority concludes there was an effective denial of the

preliminary injunction because of the “unusually short timeline for

complying.” Maj. at 10; see id. (“There must be a legitimate basis for the

urgency. CFPB does not contradict the Chamber’s summary of the timeline

or what the Final Rule requires credit card issuers to do by the effective

date.”). This conclusion, however, rests on a factually flawed premise. As

the CFPB has explained, issuers are not required to give advance notice if

they reduce a late fee—which is the only change that the Late Fee Rule

requires. See 12 C.F.R.§ 1026.9(c)(2)(v)(A); see also id. § 1026.6(b)(3). Any

_____________________

1

The absence of any authority establishing requirements for threshold

determinations a district court must make prior to effectuating what it in good faith believes

is a valid transfer—including ruling on pending motions—underscores the impropriety of

mandamus in this case.

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No. 24-10266

specter of a March deadline for compliance with the Rule—the alleged

“legitimate basis for the urgency”—was, therefore, a fiction.

To the extent that Petitioners argue that issuers need to make

other changes to counteract the effects of the Rule, the timing of those

changes is elective, and untethered to the Rule’s effective date. Any urgency

stemming from issuers’ desire to effect other changes not required under the

CFPB’s Rule is, therefore, merely an urgency of their own design.

Indeed, Petitioners admit as much in their response to the Petition for

Rehearing, explaining that “March 29 was a significant date” because “[i]f

issuers decided to make . . . mitigating changes contemporaneous with the Final

Rule’s effective date, they had to ensure that customers received notice of

the changes . . . on March 29.” Response to Petition for Panel Rehearing at

6, In re Fort Worth Chamber of Com., No. 24-10266 (April 26, 2024), ECF No.

68 (emphasis added). Nothing in the challenged Rule requires any mitigating

changes, let alone compels such changes to take effect contemporaneously

with the Rule on May 14—and Petitioners have provided no evidence to

show that the temporary cessation of voluntarily assumed mitigation costs

was urgent “as a means of preserving the opportunity for effective permanent

relief.” Maj. at 7 (quoting 16 Charles Allen Wright & Arthur

Miller, Federal Practice & Procedure § 3924.1 (3d ed.))

(emphasis added). It is therefore not true to say that “[t]o comply with the

Final Rule, credit card issuers needed to have . . . printed and distributed

disclosure materials about any mitigating changes to customers by March 29.”

Maj. at 7. To find effective denial on this basis—where a district court does

not rule in time for a petitioner to take its preferred, voluntary response to

regulation—would be a dramatic expansion of the doctrine that all but

guarantees mischief.

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To the extent that the majority now seeks to justify its effective denial

conclusion instead on the basis that the “urgency” here was due to issuers’

need to “remove[] and replace[] all printed materials to reflect the new $8

fee by May 14,” Maj. at 7, that, too, is error. As a reminder: This court could

only have jurisdiction if the district court had somehow effectively denied the

motion for preliminary injunction by March 25, when Petitioners filed their

appeal. See Notice of Appeal, Chamber of Com. v. CFPB, No. 24-10248

(March 25, 2024), ECF No. 1. It is unclear how a deadline over a month and

a half later could furnish the requisite urgency. I do not understand how

mandamus can issue when a district court does not instantly grant an

injunction to prevent any compliance efforts whatsoever.2 Under the

majority’s logic, which provides no limiting principle, any regulated entity is

entitled to mandamus for effective denial of a preliminary injunction when it

challenges compliance with new regulation.

Both of the supposed legitimate bases for urgency, therefore, do not

withstand scrutiny. In the absence of any actual deadline generating genuine

urgency, the mere two weeks the district court had with this complex

preliminary injunction request3—indeed, premised heavily on a case pending

before the Supreme Court—cannot have constituted an effective denial.

Nothing in our case law comes remotely close to establishing that

proposition. Indeed, even this petition for mandamus was pending before us

for a week before we first decided it. See Petition, In re Fort Worth Chamber of

Com., No. 24-10266 (March 29, 2024), ECF No. 5.

_____________________

2

Petitioners have made no credible argument that either these compliance costs or

any delay in adopting mitigating costs would pose a threat to the issuers’ business.

3

Petitioners themselves chose to move for a preliminary injunction, not a

temporary restraining order.

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No. 24-10266

Gutting in this manner a district judge’s discretion to expeditiously

transfer a case it has good reason to believe is improperly before it—

especially when Petitioners have insisted that time is of the essence—is

particularly worrisome not just as our usurpation of district courts’ docket

control, but also in its implications for the judiciary’s ability to prevent forum

shopping. Cf. Judicial Conference Committee on Court Administration and

Case Management, Guidance for Civil Case Assignment in District Courts

(Mar. 2024). It was apparent to Judge Pittman that under Petitioners’

“theory, there isn’t a city in the country where venue would not lie, as every

city has customers who may potentially be impacted by the Rule.” Chamber

of Com., 2024 WL 1329959, at *3. In full view of Petitioners’ actions, the

district court then saw fit to include the following admonition which our

decision today repudiates: “Venue is not a continental breakfast; you cannot

pick and choose on a Plaintiff’s whim where and how a lawsuit is filed.

Indeed, this is why § 1391(e)(1)(B) has the ‘substantial’ qualification as one

of the factors in deciding venue.” Id. I fear that in granting mandamus to

vacate a well-reasoned and fact-based transfer order, so too is vacated any

intelligible limiting principle constraining “[p]laintiffs’ whim[s].”

III.

For the foregoing reasons, I believe that the new proposition of law

created by the majority is incompatible with district court discretion over

docket management and prudent policing of forum shopping.4

_____________________

4

See Order at 2, Chamber of Com. v. CFPB, No. 4:24-CV-00213-P (N.D. Tex.

March 20, 2024), ECF No. 51 (“[T]he Court does not have the luxury to give increased

attention to certain cases just because a party to the case thinks their case is more important

than the rest. There are simply too many cases that demand the Court’s full attention.”);

cf. June Med. Servs., L.L.C. v. Phillips, No. 22-30425, 2022 WL 4360593, at *1 (5th Cir.

Sept. 28, 2022) (construing district court’s denial of expedited relief but explicit deferral

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No. 24-10266

Finally, I am confident the District Court for the District of Columbia

will give the suggestion that it should disregard a case docketed by it its

closest attention.

_____________________

of merits determination as “an administrative decision by the district court to manage its

docket” (citation omitted)).

29