good afternoon your honor is in may it please the court the district court transferred this case to the district of columbia holding that section fourteen zero for favors to judicial efficiency over the development of law across multiple circuits that holding is not supported by supreme court precedent and it would turn section fourteen zero four into a potent weapon for the government to limit challenges to federal rules and federal statutes w anybody's paper a fourteen for a transfer case where the party requesting transfer was a government agency requesting transfer of the district of columbia level from the district of minnesota and others where both when the government had competing interpretations of some a p a challenges of the ones where transfer for the purposes of consolidation was granted those tended to be ones where the review of the a p a record would be extensive and unusually time consuming because they were sufficient evidence to challenge as challenges that were required to deep dive into the administrative record whereas this is a case that isn't going to transfer decisions on the on petitions for mandamus meaning that nobody's ever mandamus or that they're there in the circuit there have been about government case the government won it prevailed over an opposing it to get the case inside the beltway so to speak i don't know the answer the that's probably a better question to be asked to the to the government and any of them circuit decisions i can answer that the government may be able to support with examples of that but i think what the point you're making i gather you just accept as gospel the notion that normal fourteen zero for a transfer principles among that govern private litigation apply to give the government nearly carte blanche to do that in this situation they're the government but you're you you you don't suggest what i'm suggesting maybe fourteen zero for a transfer principles that apply to private litigation do not automatically apply to a government regulatory situation where the government wants all of the regulatory challenges in the d c circuit this is a pretty novel case where and i think that's applications call for creative lawyer  just accepting what your briefs suggest which is that there's only one universe of legal principles that apply and fourteen zero for a transfer situation i think given that the unusualness some of the government's motion in this case to try to consolidate them the best we can do is to look at the close to the cases where the supreme court has had to rescind an analogous situations of which mendoza is the most on point case that was the one case where the supreme court has had to weigh judicial efficiency that would come from limiting review pretty clearly not enough on its own to outweigh the substantial deference shown to a plaintiff suing in their home district what this really turned on was the third prong the interest of justice factor and that's what the lower court hung this judicial efficiency in terms of how many courts how many judges have to work on it all counsel each each side has their own sort of pieces on this right so the other side has ferrand's and you have mendoza none of them are on point as judge logan points says you know we like the development of circuit splits in the percolation of legal issues so what do we do i mean we've got to we've got to not on point cases both saying would seem to be conflicting in this case isn't this then just a district court matter i don't think so your honor i think the approach is best shown in the atlantic marine construction co case from twenty thirteen where the court basically found that when there's an on point venue selection clause in the case that the efficiency of any other district other than the venue selected it can't be a factor at all i think when the question before the reviewing court is whether or not something should be a factor at all that's a question that you have to review did novo the discretion and deference that's given to lower courts is on matters of weighing various proper factors not on whether or not a factor was proper or improper and in this case what we're arguing is that the factor of another pending case raising the same question of law was an entirely improper factor but it can you make that case given that ferentz i mean i realize it's not on point but neither is your case can you really make that case when ferentz recognizes that duplication of district court after its may not be a great policy for courts to follow i think it would first i think that furnes wasn't considering public law litigation like this there are many cases where lawyers have brought public interest litigation campaigns which we acknowledge this is one of and it has resulted in more circuit review than there otherwise would have been pointed to more versus kim is one example that was on the mandatory detention provision in the illegal immigration reform act three of the five circuit court cases on the question had been brought by the same u attorneys and who argued the supreme court case but the supreme court did not suggest that the percolation was any lesser than that or that that was a burden on the federal court system for the question to appear has been prevented those five times over goodfellow versus hodges had an appendix at the end that listed all of the various judges who had considered the question many of them in cases that had the same attorneys bringing the cases and again they didn't suggest that the percolation value was any less how much does your argument depend upon the in the so called improper factor that you're talking about which is consolidating the case because a pending case proceeding if we disagree with you and think that that was a proper factor for the for the district court to consider do you lose i think so yeah i think that was determin and i think the judge would low would even have acknowledged that but for that factor transfer would not have been granted so that really is the issue here they're also very i think the structure in interpreting section fourteen zero four there is evidence that it doesn't really make sense to treat it as a consolidation of issues statute for one thing if you section fourteen zero seven is where congress specifically considered the issue of consolidation and when it's appropriate and when it's not appropriate and when they specifically considering that issue and writing a more detailed worded statute they put in identical questions of fact not identical questions of law the government's interpretation would say that in we brought up the clean water act litigation where they tried and failed to use fourteen zero seven to consolidate them under their interpretation they just picked the wrong statute they should have picked fourteen zero four and they would have won in a very piecemeal less efficient way by transferring it most and having it granted in each individual case it not plausible when we're looking at the structure of the federal system as a whole that fourteen zero four is the statute available to consolidate public law questions of constitutional law and not fourteen zero seven given that fourteen zero seven is a much more efficient one panel makes a decision for all of the cases second when congress thinks it's appropriate to consolidate all cases raising a particular issue or on a particular topic it does so explicitly to give one example challenges to e p a rules promulgated under the clean air act by statute or all consolidated in the d c circuit there is no such statute for challenges to f d a rules or to challenges to rules promulgated under the tobacco control act and so i think the default rule which is that venue is appropriate wherever a plaintiff lives shows congress contemplating that multiple plaintiffs would challenge rules in multiple venues i think the fact as you said that there is no on point precedent here is just evidence as to how unusual the government's  consolidation was and their argument that the only argument they have to distinguish this is that the lawyers are identical but as we argued percolation is valuable just as much when a litigation campaign is the reason for it  jurisdictions it can't it can't happen we are our clients are burdened by it right now and i so no i think time is of the essence for both our clients who you can see how important this case is to them given that they came simultaneously or can you wait until you get from the first and second decide if it's persuasive the district court if the transfer is reversed it may continue to have that discretion but many courts have decided that such a state is not necessary for example during the or during the more recent trump so called travel ban litigation multiple courts consider the issue at the same time i'm always earth a balance all right so you waive that you don't want us to consider an alternative now we're asking for sequined disposition is exempt if your honor would like i would be entirely happy to find out the government's position on that my guess is that we might be amenable to that we might not cases where it's been then we certainly can do we certainly accept that it could be done it sounds like petitioners council isn't interested in that course your honour's but just to take a quick step back here title twenty eight contains a number of provisions relating to not and what petitioners are asking here is to import that limitation a common questions of fact into section fourteen zero four and to read what the language the congress did put in which is a broad permissive may confer and considerable discretion on the district court to regularly are asked to transfer in these circumstances for instance there are other first amendment challenges to this rule to the deeming litigation pending in district courts around the country that the government did not move to transfer  t i'm addressing the question the fundamental question that he seems to want to talk about is whether fourteen known for a transfer principles that have developed over time in many cases for private sector litigation of a limitation like they didn't for instance fourteen zero seven unless living at a common questions of fact to write different principles here this is judicial stuff it is your honor and i think that actually supports not secondary sources discussing fourteen zero four and government translation your honor i had as you noted you know no party had suggested that there should be a different analysis for the government and i think that's why there hasn't been much research or  listed something like sixteen factors and three buckets of factors which is witnesses parties and interest of justice and it said that even that was not a extensive list and that there may be factors it was private sector your honor but this court has very much refused to to intrude on district courts discretion they described it as much discretion and they've said that where the facts and circumstances are rationally capable of providing reasons for what the district court has done that will be enough to deny the extraordinary writ of mandamus so no one here is suggesting that in every circumstance even in every circumstance in which identical complaints are being filed by the same counts on the same day that in every one of those circumstances district courts are compelled to transfer the question here is merely whether given this unique confluence of factors and where plaintiffs counsel have indicated that they are able and willing to litigate in that issue of columbia the district court abused its discretion in recognizing that those judicial economy factors are at their apex well counsel let me ask you about two factors that bother me and with a rise to an abuse of discretion i don't know but one of the factors is the district court i think it was maybe in a footnote but it might have also been in the text the order itself compared the pending cases per judge ship and said well in district columbia two waiting in minnesota it's thirteen hundred twenty eight per judge is that an appropriate factor to consider to sort of say well they don't have as big of a workload so on the transferred over there i think it would be a lot to suggest that that could justify transfer on it's own your honor not for it's inappropriate to have taken it into account or to have cited it was in a footnote so as as your honor suggests i think it's unlikely that the district court based its transfer order on the differences in the pending cases across districts ok the other the other point is opposing counsel makes a really pushes this which is the fact that there's an existing case and just because there's an existing case somewhere else it's inappropriate to score sort of consolidate everything in one place and have only one one court considered rather than having multiple courts and allowing a lot of percolate is that any essentially loses if that's an appropriate factor and i think you said that pretty clearly so why is that an appropriate factor in the government's view so a few reasons your honor the first is that we are talking about i mean what you just described is judicial economy and this court and the supreme court have repeatedly made clear that you digital economy is a valid and in fact important factor to consider even in the mendoza case that they cite one of the primary reasons for the outcome of that case was judicial economy the supreme court explained that if  the doctrine of non neutral offensive collateral estoppel applied against the government that that would clog the courts because the government would be forced to appeal every adverse district court decision or risk being a stopped so even their own cases don't support the fact that this is an inappropriate factor and they certainly have pointed to no case either by the supreme court's or by any other court suggesting that under the transfer statute that it is inappropriate to consider judicial economy and as the district court here explained there are these would have the identical record they will have likely identical briefs the record is two hundred thirty thousand pages more than that slightly and that although petitioner suggests that you don't need to look at the record in this case it will be a record intensive case just because the case is hard requires a lot of documents just because the cases aren't and just because you're overloaded with cases doesn't mean you know so i get to transfer it somewhere else that's absolutely right your honor but again that the question isn't whether you necessarily get to transfer it but as as you suggested whether it's inappropriate to even consider the question of judicial conduct in those circumstances and i don't think that there's really any support whatsoever much less the sort of clear support you would need to say that there was any abuse of discretion by the district court here that this that one can't look at you to a common you say that you are you think that comes in at least in the transfer statutes language in the interests of justice that that portion of that i believe that of the court has to be something that is looked at onder under the interest of justice analysis a few other minor things i wanted to point out  i mentioned the cases are and as petitioner mentioned the cases are not factually distinct so even under his proposed analysis of the law that the case the district court still would have properly looked at judicial economy here and under addition or theory ninety four identical judicial complaints could have been filed in each of the district courts in this country and the transfer would presumably have been inappropriate and a stick or hand would have been tied in those circumstances and we don't think that that's the right view of the law and it certainly isn't so clearly right that there would have been an abuse of discretion here if the court has no thank you your honor i think we agree with you judge loken in that there is not a lot of precedent here and that's part of what makes this an unusual case but i think the unusual aspect of this goes to show how how strange the government's strategy was and how against the normal course of public law litigation and challenging rules it really is and that's the danger of this case that we would no longer have situations where for you know an immigration executive order is challenging plaintiffs are allowed to challenge in their home districts i just want to take a step back and emphasize the fact that these are minnesota plaintiffs one of the families challenging this is here in the courtroom today this is an extremely important rule that will likely affect if not end their current livelihoods the current business at they're in and they've brought a suit in their home state to challenge a rule that's affecting them in their home state other than the fact that this is a public interest campaign the government hasn't pointed to why this is different from the many other examples of