Chapter § 4.08 Appeal

• Jurisdiction: United States
• Publication year: 2020

§ 4.08 Appeal

[1] Review of Transfer Decisions by the MDL Panel

Section 1407(e) provides that “[n]o proceedings for review of any order of the panel may be permitted except by extraordinary writ” of mandamus.¹¹⁷ A party must file a writ to review a Panel decision “issued prior to the order either directing or denying transfer” in the circuit court “having jurisdiction over the district in which a hearing is to be or has been held,” while a writ to review “an order to transfer or orders subsequent to transfer” must be filed in the circuit court having jurisdiction over the transferee district.¹¹⁸ A party cannot seek review of “an order of the panel denying a motion to transfer.”¹¹⁹

[2] No Review of Transferee Court Decisions by the MDL Panel

The transferee court decisions, such as an order granting or denying class-action certification, are generally subject to review in the circuit court with jurisdiction over the transferee court—i.e., the same as non-multidistrict litigation.¹²⁰ The MDL Panel lacks any appellate review of transferee court decisions and is usually careful to avoid exercising even the appearance of oversight.¹²¹ The one situation where the Panel may border on review is when it evaluates a transferee court’s recommendation to remand an action to the transferor court before the conclusion of pretrial proceedings. Under section 1407(a), the Panel, not the transferee court, makes all remand decisions.¹²² The Supreme Court has held that the Panel lacks any discretion to deny remand once all pretrial proceedings end.¹²³ But the Panel has some review authority over a transferee court’s decision-making when the court recommends remand before pretrial proceedings conclude.¹²⁴ In deciding whether to follow such a remand suggestion, the Panel “has consistently given great weight” to the recommendation of the transferee judge.¹²⁵

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Notes:

^[117] 28 U.S.C. § 1407(e). The standard for obtaining a writ is high. To qualify for mandamus relief, parties must show they have “no other adequate means to obtain relief” and their “right to the writ is clear and indisputable.” FedEx Ground Package Sys., Inc. v. U.S. Judicial Panel on Multidistrict Litig., 662 F.3d 887, 890 (7th Cir. 2011). Moreover, “only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion will justify the invocation of this extraordinary remedy.” Id. (quoting Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004)).

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