        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                October 24, 2013
                                  No. 13-40462
                                                                 Lyle W. Cayce
                                                                      Clerk



In re: RADMAX, LIMITED,

                                            Petitioner.




                       Petition for Writ of Mandamus to
                       the United States District Court
                       for the Eastern District of Texas




                ON PETITION FOR REHEARING EN BANC
                   (Opinion June 18, 2013, 720 F.3d 285)




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:


      Treating the petition for rehearing en banc as a petition for panel rehear-
ing, the petition for panel rehearing is DENIED. The court having been polled
at the request of one of its members, and a majority of the judges who are in reg-
ular active service and not disqualified not having voted in favor (FED. R. APP.
                                 No. 13-40462

P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is DENIED.
      In the en banc poll, 7 judges voted in favor of rehearing (Chief Judge
Stewart and Judges King, Davis, Dennis, Elrod, Graves, and Higginson), and
8 judges voted against rehearing (Judges Jolly, Jones, Smith, Clement, Prado,
Owen, Southwick, and Haynes).


ENTERED FOR THE COURT:


   /s/ Jerry E. Smith
JERRY E. SMITH
United States Circuit Judge




                           ***************

STEPHEN A. HIGGINSON, Circuit Judge, joined by KING, DAVIS, and
DENNIS, Circuit Judges, dissenting from denial of rehearing en banc.


      I respectfully dissent from the denial of rehearing en banc, both for the
reasons I noted in my panel dissent, and also for the reasons noted more
eloquently by Charles Alan Wright in his article, THE DOUBTFUL OMNISCIENCE
OF APPELLATE COURTS, 41 Minn. L. Rev. 751, 776 (1957).   Wright identified more
than fifty years ago the appellate court disarray and “controversy which now
rages as to use of mandamus to review trial court orders granting or denying a
transfer to a more convenient forum, pursuant to 28 U.S.C. § 1404(a).” Section
1404(a) is Congress’s venue transfer statute, which uses plain language to
entrust district judges with discretion and duty to balance multiple factors and


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assess interests of justice: “For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other
district or division where it might have been brought....” 28 U.S.C. § 1404(a)
(emphases added). I would favor our court’s full attention to the question
whether our construction today of this statute, asserted in my opinion more
constrictingly even than in In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir.
2008) (en banc), propounds appellate mandamus power over district judges
which the Supreme Court has said we do not have. See Will v. United States,
389 U.S. 90, 95 (1967) (All Writs Act available for “exceptional circumstances
amounting to a judicial ‘usurpation of power’”).




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