If this blog post gives our readers a feeling of déjà vu, there’s a good reason—the latest developments in the lawsuit challenging the CFPB’s final credit card late fee rule (Rule) are a rerun of earlier developments in the case.  In response to an emergency petition for writ of mandamus and administrative stay of transfer filed by the plaintiffs in the lawsuit, the Fifth Circuit stayed the latest district court order transferring the case once again to D.D.C.  The mandamus petition seeks relief “to prevent a legally erroneous transfer to the District of Columbia that would delay the resolution of this challenge and deprive Petitioners of their choice of a proper and appropriate venue.”  The Fifth Circuit stayed the transfer until June 18, 2024, and requested that the CFPB respond to the mandamus petition by June 6, 2024.

In its opposition to the petition, the CFPB makes substantially the same arguments for why the plaintiffs’ mandamus petition should be denied as it did in opposing the plaintiffs’ mandamus petition that sought to block the district court’s first transfer order.  The CFPB argues that the plaintiffs have not met the standard for issuance of a writ of mandamus which requires either a clear abuse of discretion that produces a clearly erroneous result or that a writ would be appropriate under the circumstances. 

The CFPB argues:

  • The district court did not abuse its discretion in transferring the case to D.D.C.  Under relevant case law, the district court gave appropriate deference to the plaintiffs’ choice of venue given the attenuated nexus between the Northern District of Texas and the facts of the case.  Such case law provides that the plaintiff’s choice of venue is entitled to less weight if the facts giving rise to the claim occurred primarily outside of the chosen forum.  
  • There is no clear error that would justify disturbing the district court’s analysis for why transfer is appropriate.  The district court properly concluded that the  multiple factors [set forth in In re Volkswagen] favored transfer, having found that three factors supported transfer and none supported keeping the case in Fort Worth.
  • Plaintiffs cannot show that issuance of a writ of mandamus is appropriate under the circumstances.  Under Fifth Circuit precedent, writs of mandamus are particularly appropriate when the issues have an importance beyond the immediate case.  The plaintiffs have not shown that the issues raised by their petition have importance beyond this case because “[t]heir petition is simply an effort to reverse a case-specific (and discretionary) transfer decision with which they disagree.” (citations omitted).  The CFPB further asserts that issuing a writ here “based on [the plaintiffs’] run-of-the-mill objections to the experienced district court’s exercise of discretion—would transform the ‘drastic and extraordinary remedy reserved for really extraordinary causes’ into the de rigueur remedy for everyday complaints about a judge’s transfer decision.” (citations omitted).
  • Even a “quotidian misapplication” of the Volkswagen factors would not be sufficient to justify issuance of a writ of mandamus.  Instead, the court would have to conclude that this is an extraordinary case in which Judge Pittman manifestly abused or usurped judicial power.  Issuing a writ here “would put the Court on the path to concluding that any misapplication of the transfer standard–assuming there was one–constitutes an exceptional circumstance, thereby transforming the extraordinary writ into a new avenue for run-of-the-mill interlocutory appeal,” a path that is foreclosed by Supreme Court precedent.