No. 09-______ D.Ct. No. C 09-2469 PJH ____________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ In re THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, and UNITED AIR LINES, INC., Real Party in Interest. ____________________________________________ PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ____________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel PAUL D. RAMSHAW BARBARA L. SLOAN Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 (202) 663-4737 (Ramshaw) paul.ramshaw@eeoc.gov (202) 663-4721 (Sloan) barbara.sloan@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 REASONS WHY THE WRIT SHOULD ISSUE. . . . . . . . . . . . . . . . . . . . . 9 I. THIS COURT HAS JURISDICTION TO GRANT A WRIT VACATING THE TRANSFER ORDER BECAUSE THE ORDER HAD NOT YET TAKEN EFFECT, AND THE NORTHERN DISTRICT OF CALIFORNIA ACCORDINGLY STILL HAS JURISDICTION OVER THIS ACTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 II. THE DISTRICT COURT'S ORDER IS CLEARLY ERRONEOUS BECAUSE IT FAILS TO WEIGH ALL OF THE CIRCUMSTANCES RELEVANT TO A PROPER ASSESSMENT OF THE REQUEST TO TRANSFER THIS CASE TO A COURT IN A CIRCUIT THAT HAS ALREADY REJECTED THE LEGAL THEORY PRESENTED IN THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. The district court improperly accorded little, if any, weight to the Commission's choice of forum. . . . . . . . . . . . . . . . . . . . . 16 2. The district court clearly abused its discretion in finding that a grant of defendant's motion to transfer this enforcement action to a court in the Seventh Circuit would "not greatly inconvenience[]" the Commission and would serve the interests of justice. . . . . . . . . . . 23 III. ALTERNATIVELY, THIS COURT SHOULD ISSUE A WRIT OF MANDAMUS DIRECTING THE DISTRICT COURT TO REQUEST RETURN OF THE RECORD FROM ILLINOIS. . . . . . . . . . . . . . . . . . . . . 27 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 STATEMENT OF RELATED CASES. . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1009) (en banc). . . . . . . . . . . . . . . 19 American Fidelity Fire Insurance Co. v. U.S. District Court, 538 F.2d 1371 (9th Cir.1976). . . . . . . . . . . . . . . . . . . . . . .9 Barnett v. U.S. Air, 228 F.3d 1105 (9th Cir. 2000) (en banc), vacated, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . 19 Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977). . . . . . . . . . . . . . . . . . . . . 9-11 Cheney v. U.S. District Court, 542 U.S. 367 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . .10 Chrysler Credit Corp. v. Country Chrysler, 928 F.2d 1509 (10th Cir. 1991). . . . . . . . . . . . . . . . . . . . 28 Credit Suisse v. U.S. District Court, 130 F.3d 1342 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . .9-10 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834 (9th Cir. 1986). . . . . . . . . . . . . . . . . . 15-16, 23 EEOC v. Area Erectors, No. 06-516, 2007 WL 5601487 (W.D. Wis. Apr. 23, 2007). . . . . . . . . 20 EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). . . . . . . . . . . . . . . . . .19, 24, 26 EEOC v. Icon Benefit Administrators, No 02-527, 2003 WL 748268 (W.D. Tex. Feb 10,2003). . . . . . . . . . . .20 EEOC v. Waffle House, 534 U.S. 279, 291 (2002). . . . . . . . . . . . . . . . . . . . . . . . 22 Engleson v. Burlington Northern Railroad Co., 972 F.2d 1038 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 15 Farrell v. Wyatt, 408 F.2d 662 (2d Cir. 1969). . . . . . . . . . . . . . . . . . . . . . .14 Ferens v. John Deere Co., 494 U.S. 516 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 26 Freecycle Network v. Oey, 505 F.3d 898 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 16 General Telephone Co. v. EEOC, 446 U.S. 318 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . 22 Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir.), cert. granted 128 S.Ct. 742 (2007), cert. dismissed, 128 S.Ct. 1116 (2007). . . . . . . . . . . . . . . . . 19 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . .18 Jones v. GNC Franchising, 211 F.3d 495 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . 15 Koster v. Lumbermen's Mutual Casualty Co., 330 U.S. 518 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . .20-21 In re McBryde, 120 F.3d 519 (5th Cir. 1997). . . . . . . . . . . . . . . . . . . . . 13 In re National Presto Industries, 347 F.3d 662 (7th Cir. 2003). . . . . . . . . . . . . . . . . . 19-20, 25 In re Nine Miles Ltd. 673 F.2d 242 (8th Cir. 1982). . . . . . . . . . . . . . . . . . . . 28-29 Ned Chartering & Trading, Inc. v. Republic of Pakistan, 130 F. Supp. 2d 64 (D.D.C. 2001). . . . . . . . . . . . . . . . . . . . 13 Plata v. Schwarzenegger, 560 F.3d 976 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . 10 Posnanski v. Gibney, 421 F.3d 977 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . 28 Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . 13 Roofing & Sheet Metal Services v. La Quinta Motor Inns, 689 F.2d 982 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . 28 Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . 16 Sipe v. Fritz, 43 B.R. 984 (D. Ariz. 1984). . . . . . . . . . . . . . . . . . . . . . .13 Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc). . . . . . . . . . . . . . 19, 27 Sunshine Beauty Supplies v. U.S. District Court, 872 F.2d 310 (9th Cir. 1989) abrogated on other grounds, Cortez Byrd Chips v. Bill Harbert Construction Co., 529 U.S. 193 (2000). . . . . . . . . . . . . . . . . . . . . . . . 10-11 United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . 9 United States v. Mendoza, 464 U.S. 154 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . .22 United States v. Vanterpool, 377 F.2d 32 (2d Cir. 1967) . . . . . . . . . . . . . . . . . . . . . . .13 United States ex rel. Haight v. Catholic Healthcare West, No. 01-1202, 2001 WL 1463792 (N.D. Cal. Nov. 9, 2001). . . . . . . . . 22 Van Dusen v. Barrack, 376 U.S. 612 (1964). . . . . . . . . . . . . . . . . . . . . . . . 23-27 In re Warrick, 70 F.3d 736 (2d Cir. 1995). . . . . . . . . . . . . . . . . . . . . 12, 29 White v. ABCO Engineering Corp., 199 F.3d 140 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . 13 Wilson v. City of San Jose, 111 F.3d 688 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . 11-12 STATUTES AND RULES Americans with Disabilities Act, 42 U.S.C. §§ 12101 et. seq. ("ADA"). . . . . . . . . . . . . . . passim 42 U.S.C. § 1404(a) passim Local Rule 3-14, Northern District of California. . . . . . . . . 3, 12-13, 28 OTHER AUTHORITY EEOC: Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA: "Reassignment," available at http://www.eeoc.gov/ policy/docs/accommodation.html. . . 19 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure (2007). . . . . . . . . . . . . . . . . . 12 No. 09-______ D.Ct. No. C 09-2469 PJH ____________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ In re THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, Respondent, and UNITED AIR LINES, INC., Real Party in Interest. ____________________________________________ PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ____________________________________________ INTRODUCTION The Equal Employment Opportunity Commission filed this enforcement action under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), in the Northern District of California on June 3, 2009. The complaint alleges that United Air Lines violates the ADA by refusing to reassign employees to a job for which they are qualified when, due to disability, they can no longer do the essential functions of their present jobs. On December 3 the district court granted United's motion to transfer the action to the Northern District of Illinois. The question of whether an employer may be required to reassign an employee as an ADA reasonable accommodation is open in this Circuit. There is a split among the circuits elsewhere, but the Seventh Circuit is one of two courts that has held that an employer does not have a duty to reassign an employee to an open position as a reasonable accommodation for a disability. Ignoring this stark reality, the court reasoned that transfer was appropriate because the Commission would not "be greatly inconvenienced if forced to litigate in Illinois," and the savings in time and resources flowing from the transfer would serve the interests of justice. The court also reasoned that, despite the great weight normally accorded to plaintiff's choice of forum, the Commission's choice of forum deserved little, if any, weight because the Commission is a federal agency and its enforcement action challenges a policy that injures a nationwide class of employees. These rulings constitute clear abuses of discretion. By refusing to accord any deference to the Commission's choice of forums and transferring the case to the Seventh Circuit, where the Commission's legal theory has been rejected, the district court has guaranteed that defendant not only will gain a favorable forum but will avoid this Court's scrutiny of its discriminatory policy. The transfer statute was not intended to achieve such ends, nor should this Court sanction such misuse of the procedure. The Commission has no adequate remedy, by direct appeal or otherwise, for the district court's order transferring this case to the Seventh Circuit. The Commission seeks mandamus to ensure that this Court has the opportunity to rule on an important issue of law on which the circuits presently disagree. If the order stands, both the Commission and the public interest will be harmed in ways not correctable on appeal from a final judgment. The Commission therefore respectfully petitions this Court for a writ of mandamus directing the district court for the Northern District of California to vacate its order transferring the action and enjoining United from attempting again to transfer the action. The district court clerk, acting ultra vires, transmitted the record to the Northern District of Illinois the day after the transfer order, notwithstanding a local rule providing that a transfer order does not take effect for 14 days. Loc. R. 3-14. After receiving the record, the clerk for the Northern District of Illinois docketed the case on December 7, the next business day.<1> If this Court declines to issue a writ of mandamus vacating the transfer order, the Court should grant a writ of mandamus directing the district court to request that the district court for the Northern District of Illinois return the record to enable the Commission to seek review of the district court's transfer order in this Court.<2> RELIEF SOUGHT The Commission requests that this Court issue a writ of mandamus directing the district court to vacate the district court's order transferring the suit to the Northern District of Illinois and enjoining further attempts by United to move this case out of the Northern District of California. In the alternative, if this Court declines to issue a writ of mandamus vacating the underlying order, the Commission requests that the Court issue a writ of mandamus directing the district court to request that the district court for the Northern District of Illinois return the record to the Northern District of California to permit the Commission to seek review in this Court. ISSUES PRESENTED 1. Whether this Court has jurisdiction to issue a writ of mandamus where the district court clerk violated the relevant local rule by precipitously transmitting the record to the Northern District of Illinois. 2. Whether the district court clearly erred in according the Commission's choice of forum little, if any, weight and ordering this ADA enforcement action transferred to the Northern District of Illinois despite the fact that there are substantial grounds for venue in the Northern District of California and adverse Seventh Circuit precedent poses a major roadblock to the Commission's litigation of the case in that jurisdiction. 3. Whether, alternatively, this Court can and should, at a minimum, direct the district court to request that the record be returned to the Northern District of California to allow the Commission to seek review of the transfer order. STATEMENT OF FACTS United Air Lines has approximately 49,500 employees, including residents of each of the fifty states and many foreign countries. Appendix, p. 29 ("App.29"). United's headquarters is located in Chicago, but the company has substantial numbers of employees at its hub airports, including San Francisco International Airport ("SFO") and Los Angeles International Airport. App.29. United adopted a new reasonable accommodation process ("RAP") policy in approximately 2002. App.34. The EEOC's Complaint alleges that the policy "requires qualified employees with disabilities to compete for vacant positions which they need as a reasonable accommodation." App.48. Joel Boswell, who had worked for United at SFO, filed a charge with the Commission on August 10, 2005, alleging that United violated the ADA by failing to approve his request for a reasonable accommodation of his disability, including a transfer. App.35. In its position statement, United identified eight persons who were involved in addressing Boswell's medical situation and in applying the RAP policy to him: Paul Wapansky, Manager; Joe Pedalino, Manager of Maintenance Operations; Colin Botto, Supervisor in Maintenance Services; Craig Wright, Senior Staff Analyst-Safety; Dr. Semkiu; Ann Butler, Nurse Practitioner; and Sharon Barncord and Kathy Tetrev, Human Resources representatives. App.21-22. Based on these persons' job titles, their availability for RAP meetings at SFO,<3> and United's failure to offer evidence to the contrary,<4> the Commission assumes that most if not all of these persons are or were United employees and are located in the Northern District of California. Of the four other charging parties identified in the EEOC's complaint, two (Patricia Hernandez and Rosemary Verga) worked at SFO and two (Mary Price and Margaret Bucaro) worked in the Chicago area. App.34-37. The Commission assumes that the United employees involved in applying the RAP policy to Hernandez and Verga, like those applying it to Boswell, were based in San Francisco, and that the employees involved in applying the policy to Price and Bucaro were based in Chicago. The five persons named in the complaint presented, in the EEOC's view, the most compelling claims the agency knew about at the time it filed its complaint. App.11. As of the end of September, the EEOC had identified 31 current or former United employees who may have been injured by the challenged policy. App.11. Almost all of these potential claimants hold or held service positions in airport operations, especially in the areas of baggage, flight, and maintenance services. App.11. Of those 31 potential claimants, 13 worked at SFO and two others worked elsewhere in California. App.11. The Commission chose to file this complaint in the Northern District of California instead of the Northern District of Illinois in part because: (a) the Seventh Circuit has issued a decision in an EEOC action holding that a policy like the one challenged here does not violate the ADA; (b) two other courts of appeals have issued decisions holding that a policy like this one does violate the ADA; and (c) the Ninth Circuit has no binding precedent resolving this legal issue. R-18, EEOC's Opposition to Motion to Transfer, pp.4-5. In seeking a transfer to Illinois, United offered evidence that 43% of the employees who have been on illness leave since January 2003 and were coded as having "undergone" a RAP meeting and were identified as needing a job transfer work (or last worked) in the Northern District of Illinois. App.44. If true, this means that a majority of such employees do (or did) not work in the Northern District of Illinois. Moreover, United concedes that 20% of such employees work (or last worked) in the Northern District of California. App.44. United offered evidence showing that the conciliation activities that United and the EEOC engaged in took place in part in the Chicago area. App.37-38. The Commission submitted evidence that the reason that the SFO-based charges were conciliated in part in Chicago was that United asked the EEOC to conciliate those charges in Chicago, and the Commission acceded to the company's request. App.14. Moreover, United concedes that representatives of the EEOC's San Francisco District Office participated in the conciliation activities in Chicago. App.37-38. At some point the EEOC transferred the conciliation activities from its Chicago District Office to its San Francisco District Office, and it was the San Francisco office that issued the notice that conciliation had failed. App.25. The declarations United submitted identify by name more than 20 persons who have some sort of historical, managerial, or ongoing operational responsibility for various phases of the company's operations. The declarations do not identify which of these persons United considers necessary witnesses who would present non-repetitive evidence in a liability phase, nor do they establish the relevance of historical testimony about how the challenged policy was drafted and implemented to a trial focusing on whether the policy as implemented is lawful. REASONS WHY THE WRIT SHOULD ISSUE This Court has power to review by mandamus an order transferring a case to a district court in another circuit. American Fidelity Fire Ins. Co. v. U.S. Dist. Ct., 538 F.2d 1371, 1374 (9th Cir.1976) (mandamus is "proper avenue for review of transfer orders under § 1404(a)"). Before issuing a writ of mandamus, an appellate court must be "firmly convinced that the district court has erred and that the petitioner's right to the writ is clear and indisputable." Credit Suisse v. U.S. Dist Ct., 130 F.3d 1342, 1345 (9th Cir. 1997). In deciding whether mandamus is warranted, this Court applies a five-factor test from Bauman v. U.S. District Court, 557 F.2d 650, 656 (9th Cir. 1977). The Court considers (1) whether petitioner "has no other adequate means," such as a direct appeal, "to attain the [desired] relief"; (2) whether petitioner "will be damaged or prejudiced in a way not correctable on appeal"; (3) whether "the district court's order is clearly erroneous as a matter of law"; (4) whether "the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules"; and (5) whether "the district court's order raises new and important problems, or issues of law of first impression." United States v. Fei Ye, 436 F.3d 1117, 1122 (9th Cir. 2006). The petitioner need not establish all five factors, and none is determinative. See id. Rather, the Court must weigh the factors together based on the facts of the individual case. Id.; see also Plata v. Schwarzenegger, 560 F.3d 976, 983 (9th Cir. 2009) (factors are cumulative and may require "balancing of conflicting indicators"). Although the requirements for a writ are demanding, they are "not insuperable." Cheney v. U.S. Dist. Ct., 542 U.S. 367, 381 (2004). For example, this Court has used its mandamus authority to direct a district court to vacate an order transferring a case to a court outside the Ninth Circuit where three of the five Bauman factors existed. Sunshine Beauty Supplies v. U.S. Dist. Ct., 872 F.2d 310, 311 (9th Cir. 1989), abrogated on other grounds, Cortez Byrd Chips v. Bill Harbert Constr. Co., 529 U.S. 193, 197 (2000) (discussing venue under Federal Arbitration Act). The Court reasoned that the transfer order was not immediately appealable, the prejudice resulting from such an erroneous order was "of a type not correctable on appeal," and the district court erroneously failed to consider all of the relevant factors including the contractual forum-selection clause. Id. See also Fei Ye, 436 F.3d at 1123-24 (issuing writ because challenged discovery order was not appealable, would damage government in a way not correctable on appeal, violated well-established principles leaving Court with "definite and firm conviction that a mistake had been made," and raised new and important questions of law by recognizing novel exception to standard); Credit Suisse, 130 F.3d at 1345-47 (finding that first three Bauman factors applied). Similarly, here, this Court should find that the Commission has met its burden of showing that this is one of the extraordinary cases in which mandamus relief is warranted. Significantly, four of the five Bauman factors weigh in favor of granting the petition. As was true for the transfer order in Sunshine, the Commission has no other adequate means of attaining the desired relief because the order transferring the case to the Northern District of Illinois is not immediately appealable, nor is the harm that would result from the order correctable on appeal from final judgment. Furthermore, as discussed more fully below, the district court's order is premised on several serious legal and factual errors, including the fact that it has allowed defendant to use § 1404 to maneuver the case into one of the two circuits that have rejected the Commission's legal theory, and "raises new and important problems," novel in this circuit and elsewhere. Accordingly, this Court should grant the Commission's petition and issue a writ of mandamus. I.THIS COURT HAS JURISDICTION TO GRANT A WRIT VACATING THE TRANSFER ORDER BECAUSE THE ORDER HAS NOT YET TAKEN EFFECT, AND THE NORTHERN DISTRICT OF CALIFORNIA ACCORDINGLY STILL HAS JURISDICTION OVER THIS ACTION. The normal rule is that if the record in a case has been sent to another court pursuant to a transfer order and the transferee court has docketed the action, the transferor court and its court of appeals lack jurisdiction over the action. See, e.g., Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997) ("[W]ith respect to the transfer of cases under 28 U.S.C. § 1404(a), this court has adopted the docketing date in the transferee court as the time of effective transfer."); 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3846, at 69 (2007) ("When a motion for transfer under [28 U.S.C. § 1404] has been granted, and the papers lodged with the clerk of the transferee court, . . . the transferor court - and the appellate court that has jurisdiction over it - lose all jurisdiction over the case and may not proceed further with regard to it."). This rule presupposes, however, that the district court clerk acted properly in sending the record when it did, and that the party opposing the transfer had an opportunity to challenge the transfer order in the transferor court's court of appeals. See, e.g., In re Warrick, 70 F.3d 736, 739 (2d Cir. 1995) (where district court clerk sent the record the day after the transfer order, even though the local rule required the clerk to wait until the 11th day after the order, the "Clerk's dispatch of the case . . . frustrated the opportunity that the rule affords an aggrieved party to seek a stay of a transfer order, and to seek a writ of mandamus reversing the transfer order"). Local Rule 3-14 of the Northern District of California states: "An order transferring an action to another district court shall become effective 14 days after it is filed, unless the order specifies a specific effective date." The transfer order entered December 3 did not specify an effective date, and it accordingly will not take effect until December 17. It is axiomatic that a district court clerk has only the powers granted the clerk by statute, rule, or judicial order or directive. See, e.g., Sipe v. Fritz, 43 B.R. 984, 991-92 (D. Ariz. 1984) (bankruptcy court clerk lacked authority to fire her deputy clerk without court's approval where the relevant statute required that approval); cf. United States v. Vanterpool, 377 F.2d 32, 34-35 (2d Cir. 1967) (even district court judge lacks authority to take action not authorized by relevant rule). A clerk is not a judge, and absent express authorization, may not make a decision or take an action normally reserved for judges. See, e.g., In re McBryde, 120 F.3d 519, 521 (5th Cir. 1997) (court of appeals clerk lacks authority to determine whether court of appeals has jurisdiction to entertain writ of mandamus filed with court); Robinson v. Kimbrough, 652 F.2d 458, 463 (5th Cir. 1981) (court of appeals clerk lacks authority to determine plaintiffs' entitlement to fee award); Ned Chartering & Trading v. Republic of Pakistan, 130 F. Supp. 2d 64, 66 (D.D.C. 2001) (vacating writs of attachment issued by district court clerk as ultra vires). Therefore, a clerk may not, acting on his or her own authority, implement an order that has not yet taken effect under the relevant local rule. Accordingly, here, the clerk's act of sending the record before the transfer order became effective did not render the district court's order effective. See, e.g., White v. ABCO Eng'g Corp., 199 F.3d 140, 143 n.4 (3d Cir. 1999) ("shifting papers cannot validate an otherwise invalid transfer"). Since the transfer order had not yet taken effect when this petition was filed, the action was still in the Northern District of California, even if the physical documents were not, and this Court thus has jurisdiction to entertain this petition and issue a writ. See, e.g., Farrell v. Wyatt, 408 F.2d 662, 664 (2d Cir. 1969) (where issue was whether the transferor district court "had power to order the transfer," the clerk's act transmitting the physical files to the transferee district court does not "destroy[] our jurisdiction"). The ultra vires act of the district court clerk has deprived neither the district court nor this Court of its jurisdiction over this action. This Court should therefore hold that it has jurisdiction to consider the merits of the Commission's petition. II.THE DISTRICT COURT'S ORDER IS CLEARLY ERRONEOUS BECAUSE IT FAILS TO WEIGH ALL OF THE CIRCUMSTANCES RELEVANT TO A PROPER ASSESSMENT OF THE REQUEST TO TRANSFER THIS CASE TO A COURT IN A CIRCUIT THAT HAS ALREADY REJECTED THE LEGAL THEORY PRESENTED IN THE CASE. The district court clearly erred in granting defendant's motion to transfer this ADA enforcement action from the Northern District of California, where all agree that venue was proper, to the Northern District of Illinois, where under existing circuit precedent the Commission's suit would almost certainly be dismissed. Under § 1404(a), the district court may transfer an action from a district where venue is proper to a district where the action could have been brought initially only if the court determines that transfer would be for the "convenience of the parties and witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a). In deciding whether to grant a motion to transfer, the court must weigh a number of factors, including the plaintiff's choice of forum, the contacts linking the parties as well as plaintiff's cause of action to the chosen forum, the relative ease of access to sources of proof and witnesses, and the public interest in the local adjudication of local controversies. See, e.g., Jones v. GNC Franchising, 211 F.3d 495, 498-99 (9th Cir. 2000); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). The transfer decision is then reviewable for abuse of discretion. See, e.g., Engleson v. Burlington No. R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992). Here, although the district court paid lip service to the relevant factors in concluding that transfer was appropriate, the court made several critical legal and factual errors. First, in deciding whether to grant defendant's motion to transfer, the court gave little, if any, weight to the Commission's choice of forum despite the strong ties between the case and the Northern District of California. Second, the court erroneously concluded that the Commission would not "be greatly inconvenienced if forced to litigate in Illinois," and that transfer would serve the interests of justice. The court reached these conclusions by simply ignoring the fact that the Seventh Circuit, where the Northern District of Illinois is located, has rejected the legal theory on which the Commission's enforcement action is premised, and defendant has not denied that it sought the transfer to avail itself of this favorable circuit precedent. The court cited no applicable circuit precedent for these rulings, and we are aware of none. 1.The district court improperly accorded little, if any, weight to the Commission's choice of forum. The district court committed a clear abuse of discretion in holding that the Commission's choice of forum is entitled to little, if any, weight, and this ruling infected the remainder of the decision. A court abuses its discretion when it bases its decision on clearly erroneous factual findings or is guided by erroneous legal conclusions, either by employing a faulty legal standard or by misapprehending the law in applying the appropriate standard. Freecycle Network v. Oey, 505 F.3d 898, 901-02 (9th Cir. 2007). As noted above, a key factor that the district court must consider in deciding whether to transfer a case to the defendant's choice of forum is the forum in which the plaintiff has chosen to bring the case. Indeed, ordinarily, plaintiff's choice of forum is entitled to great deference and, unless the balance of the other factors is "strongly in favor" of the defendant, that choice "should rarely be disturbed." See, e.g.. Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985); see also Decker Coal, 805 F.2d at 843 (defendant must make a "strong showing of inconvenience" to warrant upsetting plaintiff's choice) Here, the Commission chose to bring this enforcement action in the Northern District of California. There were several important reasons, both logistical and legal, for that choice. Logistically, three of the five charges identified in the Complaint, including the lead charge of Joel Boswell, were filed and investigated and cause findings were made in the Northern District of California. All of these individuals lived and worked in the Bay Area during the period in which they were encountering health-related difficulties with their jobs and seeking reassignment to another position as a reasonable accommodation for the disability. Accordingly, not only these individuals but persons involved in determining both that they are disabled and that they should be denied a reasonable accommodation are located in the San Francisco area.<5> Moreover, San Francisco is one of United's five major hubs - Los Angeles is another. The Commission has already located a number of other potential victims - and, as the case progresses, it presumably will discover more - who are conveniently located for a case venued in San Francisco. In any event, the focus of this enforcement action is on the legality of United's policy of refusing to reassign employees to a job for which they are qualified as a reasonable accommodation when, because of disability, they become unable to do the essential functions of their existing positions. Employees and former employees who were injured by the policy as well as their supervisors and doctors - and any other United personnel the company deems important to its defense - can be deposed during pre-trial proceedings anywhere in the United States. Those few who are actually called to testify at trial serve mainly to put a human face on the otherwise largely legal issue of whether the policy violates the ADA. Cf. International Bhd of Teamsters v. United States, 431 U.S. 324, 339 (1977) (in Title VII enforcement action, "individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life"). Based on the present state of the record, it appears that San Francisco is a convenient forum for those individuals and the case.<6> As for the law, the Commission also considered the importance of the legal issue - whether United's policy of not reassigning disabled employees to a position for which they are qualified violates the ADA, and the fact that this Court has no binding precedent on that issue whereas other circuits have reached differing conclusions.<7> Bringing suit in the Northern District of California, would provide this Court with the opportunity to weigh in on this developing legal issue.<8> The district court, however, disregarded these considerations, opting instead to accord little, if any, weight to the Commission's choice of forum. The court explained that, as "a government agency and a plaintiff in a class action," the Commission's choice was entitled to "diminshed" deference. Order at 4-5. That reasoning and result are flawed. In In re National Presto Industries, 347 F.3d 662 (7th Cir. 2003), the Seventh Circuit addressed and rejected a similar argument that the Securities and Exchange Commission's choice of forum was not entitled to deference. Noting that that case had few ties to the chosen forum, the Court nevertheless upheld the lower court's refusal to transfer the case to defendant's preferred court, where the bulk of defendant's witnesses and evidence were located. Noting a dearth of circuit authority on point (id. at 664), the Court elected to treat the government plaintiff like any other plaintiff, and gave its choice of forum the same deference that any other plaintiff's choice would receive. Id. at 665 ("When plaintiff and defendant are in different states and there is no choice of forum that will avoid imposing inconvenience, and when the inconvenience of the alternative venues is comparable, the tie is awarded to the plaintiff."). The district court here cited no contrary circuit caselaw, and we are aware of none. In arguing against granting deference to the Commission's choice of forum, United relied on two unpublished district court decisions. R-9 at 5 (citing EEOC v. Area Erectors, No. 06-516, 2007 WL 5601487 (W.D. Wis. Apr. 23, 2007), and EEOC v. Icon Benefit Adm'rs, No 02-527, 2003 WL 748268 (W.D. Tex. Feb 10, 2003). As we pointed out below, these cases not only are weak authority but are factually distinguishable. See R.18 at 8-9. Moreover, and significantly, both involved only intra-circuit transfers. Thus, in sharp contrast to the situation here, the district courts in those cases, by granting the transfer, neither deprived the transferor circuit of an opportunity to address the plaintiff's legal theory nor allowed the defendant to gain a tactical advantage from favorable law in a different circuit. The district court cited Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987), for the proposition that "a plaintiff's choice of forum deserves less weight when the plaintiff 'brings a derivative suit or represents a class.'" Order at 4 (quoting Lou, 834 F.2d at 739). That proposition is inapposite to this case. Lou was a shareholder derivative action where the plaintiff, a private individual, had suffered only a minor loss from the alleged malfeasance by the corporation and, moreover, concededly had no ties to the chosen forum. Id. at 739. Noting that "great weight is generally accorded plaintiff's choice of forum," the Court held that less weight would be given when the individual "brings a derivative suit or represents a class." Id. In upholding transfer to New York, the center of most of the relevant activity, the Court stated that the plaintiff's choice of forum "is entitled to only minimal consideration" where "the operative facts have not occurred within the forum and the forum has no interest in the parties or subject matter." Id. See also Koster v. Lumbermen's Mut. Cas. Co., 330 U.S. 518, 524-26 (1947) (presumption in favor of the plaintiff's choice of forum does not apply in derivative actions because in such actions there may be hundreds of potential plaintiffs scattered across the country, any one of whom could bring the action in his or her home court, which may have no other ties to the action, and since case challenges defendant's business practices, the location of its records and other transactions are likely more important than those of any single victim). This case, by contrast, is neither a shareholder's derivative case nor a class action brought by a private plaintiff. Rather, it is an ADA enforcement action brought by the Commission pursuant to its statutory duty to enforce the ADA. Unlike the plaintiff in Lou or an ordinary class action (or in U.S. ex rel. Haight et al. v. Catholic Healthcare West, No. 01-1202, 2001 WL 1463792 (N.D. Cal. Nov. 9, 2001), a qui tam case cited by United), the Commission does not represent a class but rather litigates in its own name and in the public interest. See General Tel. Co. v. EEOC, 446 U.S. 318, 324-26 (1980); see also EEOC v. Waffle House, 534 U.S. 279, 291 (2002) ("[t]he statute clearly makes the EEOC the master of its own case"). And unlike plaintiffs in derivative, qui tam or class actions, when the Commission chooses to bring an enforcement action, its choice of forum is not happenstance but rather based on factors such as where the charge was filed and investigated, the location of witnesses, the availability of agency resources, and the desirability of developing the law in a particular area. Cf. United States v. Mendoza, 464 U.S. 154, 162-63 (1984) (holding that offensive collateral estoppel would not apply to the government, in part because government litigation serves to develop legal doctrine). In light of these differences, the rule in Lou and related cases does not apply where, as here, a government agency is the plaintiff. The district court therefore clearly erred in extending the rule in Lou to this enforcement action. Mandamus is appropriate to correct this manifest error. 2.The district court clearly abused its discretion in finding that a grant of defendant's motion to transfer this enforcement action to a court in the Seventh Circuit would "not greatly inconvenience[]" the Commission and would serve the interests of justice. In granting defendant's motion to transfer, the district court concluded that "the balance of conveniences with respect to the parties of this action favor transfer." The court reasoned that United would be inconvenienced if forced to litigate in California whereas "it does not appear the Commission would be greatly inconvenienced if forced to litigate in Illinois," and such a transfer would serve the interest of justice. Order at 5, 8. In reaching these conclusions, however, the court made no mention of the fact that, unlike in this Circuit, there is adverse precedent in the Seventh Circuit which, if still good law, would essentially compel dismissal of the Commission's case. Because the court entirely ignored this highly relevant factor, its decision granting defendant's transfer motion constitutes a clear abuse of discretion and, so, warrants mandamus review. As the district court acknowledged, in addition to the plaintiff's choice of forum, a key factor in deciding whether transfer is appropriate is whether litigation in the transferee forum would be convenient to the parties. However, the transferee forum should not merely be "equally convenient or inconvenient," and the defendant's motion should be denied "if the effect is simply to shift the inconvenience to the party resisting the transfer." Van Dusen v. Barrack, 376 U.S. 612, 646 (1964). See also Decker Coal, 805 F.2d at 843. Here, in opposing United's motion to transfer this enforcement action to a court in the Seventh Circuit, we pointed out that transfer to the Northern District of Illinois would be extremely inconvenient to the Commission. See R-18 at 1-2, 4-6. Whereas the circuits are divided on the viability of the Commission's theory of the case, and there is no binding precedent on the issue in this Circuit, the theory was squarely rejected by the Seventh Circuit in a prior case brought by the Commission. See EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000). As we explained below, if this case were transferred to the Northern District of Illinois, the Commission would be forced to litigate the action within the Seventh Circuit. While there are arguments that the circuit's rule is out of date, there can be no doubt that, at a minimum, it presents a serious hurdle to the litigation. Faced with these facts, the district court simply ignored the issue. Indeed, without mentioning the adverse caselaw, the court made the remarkable finding that granting defendant's motion to transfer to the Seventh Circuit would "not greatly inconvenience" the Commission. That finding is clearly erroneous. In fact, requiring the Commission to litigate in a circuit where the case may have to be dismissed due to a change in the law caused solely by the transfer cannot be viewed as anything but "greatly inconvenient." A ruling based on clearly erroneous facts constitutes a clear abuse of discretion. The court also erred in ruling that the interests of justice would be furthered by the transfer. Citing Van Dusen, 376 U.S. at 616, the court stated that a § 1404(a) transfer prevents "the waste of time, energy and money" and protects litigants and witnesses; granting defendant's motion here, the court reasoned, would enable defendant to avoid transporting witnesses and documents from Illinois to San Francisco. Order at 8. In reaching this conclusion, the court failed to acknowledge that, regardless of where the case is litigated, both parties will be required to transport witnesses, documents, and other evidence, and much of the Commission's evidence may well be in California. Cf. National Presto Industries, 347 F.3d at 665 ("when the inconvenience of the alternative venues is comparable, there is no basis for a change in venue"). Nor did the court acknowledge that, by granting defendant's motion, the court would preclude this Court from ruling on the policy and, so, offering its views on the developing split in circuits on the Commission's theory of the case. These omissions suggest the court misapprehended the legal standard for granting a transfer. More significantly, however, the court utterly ignored the fact that the caselaw in the transferee circuit is favorable to the defendant and unfavorable to the Commission. By agreeing to transfer the case to Illinois, the court enabled defendant to gain a tactical advantage that would not exist if venue remained in California. This was patent error. What Van Dusen makes clear is that a critical consideration in assessing the "interests of justice" is preventing defendants from seeking a transfer to gain a tactical advantage from a favorable change in the law. See Van Dusen 376 U.S. at 626-30. To address that concern in a diversity action, the Van Dusen Court held that the transferee court must apply the law of the transferor jurisdiction. Id. at 634. Any other rule, the Court reasoned, would encourage defendants to seek a transfer to a district where state law was adverse to plaintiff's interests; the motion to transfer "could be tantamount to a motion to dismiss." Id. at 629-30. According to the Court, "nothing . . in the language or policy of § 1404(a) [justifies] its use by defendants to defeat the advantages accruing to plaintiff who have chosen a forum which, although [perhaps] inconvenient, was a proper venue." Id. at 633-34; see also Ferens v. John Deere Co., 494 U.S. 516, 524-25, 639 (1990) (explaining Van Dusen's holding that, where defendant initiates a transfer based on inconvenience of plaintiff's forum choice, the transfer may be allowed but there is no change in the underlying law). While the variations inherent among state laws should not normally arise under federal law, they sometimes do. This case is a prime example. Because of the split in circuits, United's policy recognizing no duty to reassign disabled employees would likely be viewed quite differently in Chicago (where United has a hub, and the Seventh Circuit has held that there is no such duty), in Denver (where United has another hub, and the Tenth Circuit has held there is such a duty), and in this Circuit (where there are two hubs, and there is no binding precedent). If defendant's motion is granted, the Commission will be required to convince the transferee court that the Seventh Circuit's rule does not control. If this argument is unsuccessful, its case is dead and United's policy will, in effect, be immune from challenge. No such disadvantage exists in this Circuit. Defendant has never denied that it sought the transfer in order to avail itself of the favorable caselaw in the Seventh Circuit. Van Dusen is limited to state law, but we believe that its reasoning strongly suggests that defendant should likewise be prohibited from using § 1404(a) to "defeat the advantages" accruing to the Commission from its choice of forum; indeed, that fact should weigh very heavily in assessing whether transfer should be granted. Because the district court completely ignored this critical factor, its ruling constitutes a clear abuse of discretion. Mandamus is therefore appropriate to address this and other fatal errors in the district court's decision. III.ALTERNATIVELY, THIS COURT SHOULD ISSUE A WRIT OF MANDAMUS DIRECTING THE DISTRICT COURT TO REQUEST RETURN OF THE RECORD FROM ILLINOIS. If this Court determines that it lacks jurisdiction to direct the district court to vacate its transfer order, this Court should instead direct the district court to contact the district court for the Northern District of Illinois and request the return of the record. It is well settled that a party whose action has been transferred to another circuit cannot obtain appellate review of the transfer order in the new circuit. See, e.g., Posnanski v. Gibney, 421 F.3d 977, 980 (9th Cir. 2005) (transfer order issued by court in another circuit is "reviewable only in the circuit of the transferor district court"). Thus, to preserve the non-movant's opportunity to seek appellate review of the transfer order and to preserve their own supervisory jurisdiction over their district courts, the courts of appeals have consistently stressed the importance of having district court clerks wait to transmit the record until the non-movant has had a chance to seek that review. See, e.g., Chrysler Credit Corp. v. Country Chrysler, 928 F.2d 1509, 1517 (10th Cir. 1991) ("[T]he preferred approach is to delay physical transfer of the papers in the transferred case for a long enough time to allow the aggrieved party to file a mandamus petition."); Roofing & Sheet Metal Servs. v. La Quinta Motor Inns, 689 F.2d 982, 988 n.10 (11th Cir. 1982) (same); In re Nine Miles Ltd., 673 F.2d 242, 243 (8th Cir. 1982) (same). As noted above, the relevant local rule provides that a transfer order does not become effective until 14 days after it is filed. Loc. R. 3-14. This delay in the effectiveness of the transfer order is designed to afford the non-movant an opportunity to seek review of the order before the transferor district court and court of appeals lose jurisdiction over the case. Thus, the clerk's action of sending the record before the order became effective is not merely a technical violation of a procedural rule, but it has affected the rights of the parties and the jurisdiction of this Court. This Court has jurisdiction to rectify that error. If it determines that it presently lacks jurisdiction to address the underlying merits of the petition, the Court can and should issue a writ of mandamus directing the district court to contact the Northern District of Illinois and ask that court to correct this clerical error by returning the record to the Northern District of California. The Second Circuit issued such a writ in In re Warrick, 70 F.3d 736 (2d Cir. 1995), on facts almost identical to those presented here. The clerk for the District of Connecticut, acting in contravention of the relevant local rule, sent the record the day after the district court entered its transfer order, and the transferee court docketed the case before the plaintiff knew about it. The Second Circuit held that the need to protect its jurisdiction "justifie[d] the rule that when the transferred case has been docketed in the transferee court despite the petitioner's diligence, this Court can 'order[ ] a district court in this circuit to request the transferee court to return the case.'" Id. at 740 (second brackets in original; citations omitted). See also Nine Mile, 673 F.2d at 244 & n.5 (directing the transferor district court to "take every reasonable action possible" to seek return of the record, to enable that court address the non-movant's motion to reconsider the transfer order). CONCLUSION For these reasons, the Commission respectfully requests that this Court grant this petition for a writ of mandamus. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel _/s/ Barbara L. Sloan________________ BARBARA L. SLOAN PAUL D. RAMSHAW Attorneys EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 STATEMENT OF RELATED CASES We know of no related cases pending in this Court. CERTIFICATE OF COMPLIANCE This petition complies with the type-volume limitation of Fed. R. App. P. 21(d) because it does not exceed thirty pages, excluding the parts of the petition exempted by Fed. R. App. P. 21(d) and Fed. R. App. R. 21(a)(2)(C). This petition complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. /s/ Barbara L. Sloan_____ Barbara L. Sloan Attorney for Equal Employment Opportunity Commission Dated: December 16, 2009 ADDENDUM District Court Order CERTIFICATE OF SERVICE I certify that one copy of the foregoing Petition for A Writ of Mandamus was sent by express mail, postage prepaid, on December 16, 2009, to the following individuals, and an electronic version was also transmitted to defendant's counsel of record: Counsel for Defendant District Court Daryl S. Landy Chambers of the Honorable Phyllis MORGAN LEWIS & BOCKIUS LLP Hamilton 2 Palo Alto Square U.S. District Court for the Northern 3000 El Camino Real District of California Suite 700 Phillip Burton United States Palo Alto, CA 94306-2122 Courthouse, 16th Floor 450 Golden Gate Avenue San Francisco, CA 94102-3434 /s/ Lorraine Strayhorn_____________ Lorraine Strayhorn *********************************************************************** <> <1> The EEOC only learned that the case was docketed in Illinois in the course of preparing a motion for a stay of the transfer order pending review by this Court. <2> The Commission is concurrently seeking to have the case re-transferred from the Northern District of Illinois. See N.D. Ill. docket entry no.32, App.60. <3> At least three of the eight persons attended more than one of the SFO meetings addressing Boswell's medical situation. App.21-22. <4> Substantial portions of United's submissions stress that many of the persons it might offer as trial witnesses live in the Northern District of Illinois rather than in the Northern District of California, see, e.g., App.29-31, 40, 43-45, but it has not asserted that any of the eight persons directly involved in Boswell's reasonable accommodation process live in the Northern District of Illinois. <5> Defendant noted that, after his disability-related discharge, Boswell moved to Texas. Nevertheless, he lived, worked and filed his charge in San Francisco. <6> It is possible that the court did not understand the mechanics of an ADA or Title VII enforcement action challenging an alleged discriminatory policy. The court noted, for example, that, according to United, "potential claimants are more than twice as likely to be residents of Illinois than California." Order at 4. That fact is of little moment, however, unless United intends to call hundreds of former employees to testify in the liability phase of what would typically be a bifurcated proceeding. The company made no such assertion in the court below. Similarly, any relevant documents (Order at 7-8), to the extent they are not already in electronic form, will certainly be produced and copied by the Commission during discovery and may well be presented as joint exhibits at trial. <7> Compare Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999) (en banc) (holding that transfer may be a required accommodation); Aka v. Washington Hosp. Center, 156 F.3d 1284 (D.C. Cir. 1009) (en banc) (same); with EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) (rejecting this view); Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir.) (same), cert. granted 128 S.Ct. 742 (2007), cert. dismissed due to settlement by parties, 128 S.Ct. 116 (2007). See also EEOC: Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA: "Reassignment," available at http://www.eeoc.gov/ policy/docs/accommodation.html. <8> This Circuit was presented with this question in Barnett v. U.S. Air, 228 F.3d 1105, 1120 (9th Cir. 2000) (en banc), and held, consistent with EEOC's guidance, that employers have a duty under the ADA to make such reassignments. Id. at 1120 ("[w]e hold that reassignment is a reasonable accommodation"). The decision, however, was subsequently vacated on other grounds by the Supreme Court. 535 U.S. 391 (2002).