Case: 21-111 Document: 14 Page: 1 Filed: 01/21/2021
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: INTEL CORPORATION,
Petitioner
______________________
2021-111
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 1:19-
cv-00977-ADA, Judge Alan D. Albright.
______________________
ON PETITION AND MOTION
______________________
Before PROST, Chief Judge, LOURIE and CHEN, Circuit
Judges.
PER CURIAM.
ORDER
Intel Corporation petitions this court for a writ of man-
damus directing the United States District Court for the
Western District of Texas to vacate its December 31, 2020
order retransferring this case from the Austin Division
back to the Waco Division pursuant to
28 U.S.C. § 1404(a).
Intel also moved to stay the district court’s retransfer order
pending this court’s consideration of its petition, and VLSI
Technology LLC moves for leave to file a supplemental ap-
pendix.
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2 IN RE: INTEL CORPORATION
This is the second time this case has been before this
court. In both instances, the controversy before us has
flowed from the fact that, although the federal courthouse
in Austin remains closed for jury trials due to the COVID-
19 pandemic, the courthouse in Waco has been ordered
available for such trials.
Briefly, VLSI Technology LLC filed the underlying pa-
tent-infringement suit against Intel in the Waco Division
of the Western District of Texas. In October 2019, the dis-
trict court granted Intel’s motion to transfer the action to
the Austin Division of the Western District of Texas pursu-
ant to § 1404(a).
A few months after the transfer to the Austin Division,
the COVID-19 pandemic hit the nation. In response, on
March 13, 2020, the Chief Judge of the Western District of
Texas issued a district-wide “Order Regarding Court Oper-
ations Under the Exigent Circumstances Created by the
COVID-19 Pandemic.” 1 Citing concerns with the health
and safety of the public, court employees, litigants, counsel,
and jurors, the order continued all trials scheduled to begin
in the following weeks. 2
On June 18, 2020, the Chief Judge of the Western Dis-
trict of Texas issued a supplemental order regarding
COVID-19. Although this order also provided that all tri-
als scheduled to begin in the following weeks would be con-
tinued, it “recognize[d] that not every division within the
district is similarly situated.” 3 Accordingly, it permitted
1 https://www.txwd.uscourts.gov/wp-content/up-
loads/2020/03/Order-Re-COVID-19.pdf.
2 Id. ¶ 1.
3 Supplemental Order Regarding Court Operations
Under the Exigent Circumstances Created by the COVID-
19 Pandemic ¶ 3, https://www.txwd.uscourts.gov/wp-
Case: 21-111 Document: 14 Page: 3 Filed: 01/21/2021
IN RE: INTEL CORPORATION 3
courts in the district to “conduct jury trials within their re-
spective division subject to a determination, based upon
the facts and circumstances unique to the division, that
conducting jury trials would not compromise the health
and safety of Court personnel, litigants, counsel, law en-
forcement, witnesses, and jurors.” 4 The supplemental or-
der further provided that “[i]f judges in a specific division
determine jury trials can be safely conducted, the most sen-
ior district judge within the relevant division may enter an
order making those findings and resuming jury trials for
the division despite this order and with notice to the Chief
Judge.” 5
On August 18, 2020, the district court issued an order
on behalf of the Waco Division finding that the division
“may safely conduct trials.” Appx322–23. In support of
that finding, the order noted that “[s]ince the beginning of
July 2020” the counties comprising the Waco Division had
seen a “meaningful decline in new reported COVID-19
cases”—and that, as of the order’s issuance, those counties
had “approximately just 2.3% of all cases in Texas.”
Appx322. The district court issued another, highly similar,
order on September 23, 2020, again finding that the Waco
Division “may safely conduct trials.” 6 Like the August or-
der, this September order relied on a “meaningful decline
in newly reported COVID-19 cases” “[s]ince the beginning
content/uploads/2020/03/SupplementalOrder-
COVID061820.pdf.
4 Id.
5 Id.
6 Divisional Standing Order Regarding Trials in
Waco, https://www.txwd.uscourts.gov/wp-content/up-
loads/2020/03/WacoStandingOrderTrials092320.pdf.
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4 IN RE: INTEL CORPORATION
of July 2020” among the counties comprising the Waco Di-
vision. 7
Meanwhile, the Chief Judge of the Western District of
Texas kept issuing monthly district-wide supplemental or-
ders continuing all trials. As before, these district-wide or-
ders permitted judges in a particular division to conduct
jury trials if, “based upon . . . facts and circumstances
unique to the division,” they determined that doing so
would not compromise the health and safety of trial partic-
ipants. 8 Unlike the Waco Division, the Austin Division
never issued (and still has not issued) an order finding that
jury trials are sufficiently safe in that division despite the
district-wide orders.
In November 2020, the district court—relying solely on
Rule 77(b) of the Federal Rules of Civil Procedure and its
own inherent authority—issued an order moving the place
of trial back to Waco because the Austin Division was not
yet permitting jury trials.
On December 23, 2020, we granted Intel’s petition for
a writ of mandamus and vacated that order, concluding
that neither Rule 77(b) nor inherent authority authorized
the court to move just the trial proceedings from one stat-
utory judicial division to another without Intel’s consent.
We left open, however, the possibility that the district court
7 Id. ¶ 2. To this court’s knowledge, the Waco Divi-
sion’s September order has not been updated or supple-
mented in light of developments regarding COVID-19
occurring in the four months between now and then.
8 E.g., Twelfth Supplemental Order Regarding Court
Operations Under the Exigent Circumstances Created by
the COVID-19 Pandemic (Jan. 7, 2021),
https://www.txwd.uscourts.gov/wp-content/up-
loads/2021/01/OrdertwelfthSupple-
mentalCOVID010721.pdf.
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IN RE: INTEL CORPORATION 5
could hold trial in the Waco Division by retransfer of the
entire action under § 1404(a). Immediately after our deci-
sion, VLSI moved to retransfer the entire action from Aus-
tin to Waco pursuant to § 1404(a). On December 31, 2020,
the court granted that motion. Intel then filed this second
petition.
Issuance of a writ of mandamus is a “drastic” remedy,
“reserved for really extraordinary causes.” Ex parte Fahey,
332 U.S. 258, 259–60 (1947). A district court generally has
considerable discretion in deciding whether to transfer an
action under § 1404(a), and we review its decision on man-
damus only for a clear abuse of discretion producing a pa-
tently erroneous result. See In re TS Tech USA Corp.,
551
F.3d 1315, 1319 (Fed. Cir. 2008). That means we will not
second guess a district court’s determinations “as long as
there is plausible support in the record for that conclusion.”
In re Vistaprint Ltd.,
628 F.3d 1342, 1347 (Fed. Cir. 2010).
Intel has not satisfied that exacting standard here.
Complying with our order, the district court assessed
whether “‘unanticipated post-transfer events frustrated
the original purpose for transfer’ of the case from Waco to
Austin originally.” In re Intel, No. 2021-105, slip op. at 5–6
(Fed. Cir. Dec. 23, 2020) (quoting In re Cragar Indus., Inc.,
706 F.2d 503, 505 (5th Cir. 1983)). Taking into account the
relevant traditional transfer factors, the district court con-
cluded that it did and that re-transfer to Waco was war-
ranted. While we may have evaluated these factors and
the parties’ arguments differently, we are unable to say
that the district court’s conclusion amounts to a clear abuse
of discretion.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is denied.
(2) The motion to stay is denied as moot.
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6 IN RE: INTEL CORPORATION
(3) The motion to file a supplemental appendix is
granted.
FOR THE COURT
January 21, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s31
