Royster v. Food Lion, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: FOOD LION, INCORPORATED,
FAIR LABOR STANDARDS ACT
"EFFECTIVE SCHEDULING" LITIGATION.

JEFFREY L. ROYSTER; DANIEL BAKER;
CLARENCE L. ALSTON; CHARLES V.
STRICKLAND, JR.; RON MURCHISON;
LARRY BRITT; CARL WILLIAMS;
TRUMAN SURLES; TIM LAYDEN; KIM
PIPPA; JEFFREY BARNES; GLENN
JOHNSON; STEVE TWIDDY; LARRY
RILEY; WAYNE NEIL HAND, JR.;
MICHAEL ALPHIN; HARVEY KEITH
No. 94-2360
MATTHEWS; TERRY N. CONNER; JAMES
E. DANIELS; BILLY MADDOX; RUSSELL
THOMAS; JONATHAN ANDERSON;
WOODROW BREEDEN; AARON NORRIS;
JAMES GRUBER; REGINALD ASHFORD;
CLINTON E. BLOYER, III; RICKY
COLTREN; BILLY RAY COLLINS;
WILLIAM DALE FITZGERALD; ROBIN
DALE STEWART; STEPHEN A.
WILLIAMS; REGINALD GILL; LESTER
BRITT,
Appellants,

and
TERRY W. MCLAWHON, on behalf of
himself and all others similarly
situated; KEITH LAMONT PERRY, on
behalf of himself and all others
similarly situated; RONALD GRANNIS;
BOSTON D. MCCORNELL; RANDY E.
JONES; TIMOTHY E. PEELE; ANDY
CZUBAI; CHRISTOPHER AYDEN SURLES;
KELLY E. QUINN; JAMES L. ROYAL;
FRANCIS D. CARPENTER; GREGORY
TODD RING; LESTER JEROME
MITCHELL; RODNEY M. RAMSEY;
WILLIAM RICHARD HAMM; BILLY M.
PARSON; WOODROW CARROLL, JR.;
BOBBY GLYMPH; KEVIN CARR; BRAD
CLARK; BILLY WILLIAMS,
Plaintiffs,

v.

FOOD LION, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-91-133-4-F, MISC-92-198-5-F)

2
In Re: FOOD LION, INCORPORATED,
FAIR LABOR STANDARDS ACT
"EFFECTIVE SCHEDULING" LITIGATION.

DONALD T. LEDFORD; J. MICHAEL
OAKES; MICHAEL CARDOZA; R.
CHUCK VILLARREAL, JR.; ROY
SARTER; LARRY WORLEY; TOMMY
ARRINGTON; BILLY BAKER; CHERYL
BORN; DANNY BUCKNER; ROBERT
CALLOWAY; DONNA CATLIN; KIM
CAUDILL; JOSEPH COCKERHAM;
No. 94-2645
MICHAEL COFFEY; FELECIA COLEMAN;
ROBERT DALY; JAMES DARROW;
CHRISTOPHER DUNHAM; RHONDA
DUPREE; ROBERT DYER; FRANK
EASON; RHONDA ENGLAND; PAUL ERB;
RICHARD FAWLKES; CHRIS FRENCH;
RICHARD P. HENSLEY; ROGER ALLEN
HILL; RICKEY HINSON; TERRY
HORTON; PATRICIA HOYLE;
CHRISTOPHER JOLLY; ALECIA JONES;
WILLIAM JOYCE; WELDON JUNGE;
MONTY LEE; PAUL LUCAS; SCOTT
MATTOX; KEVIN O'BRIANT;

3
GARY O'NEAL; KIM PAIVA; VICTOR
PRONIER; RUSSELL RAMSEY; JOE
REED; ELVA JEAN RILEY; SAMUEL
SHERRIN; MARLIN SHUFORD; RONALD
STURGILL; JOSEPH SULTON; RICK
TRAVIS; LESLIE TUCKER; DEREK
WHITE; WARREN WHITE; TERRY
WHITMIRE; GARY WOODS; BURNELL
G. WRIGHT,
Plaintiffs-Appellants,

v.

FOOD LION, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville,
after remand from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge, sitting by assignment
of the Judicial Panel on Multidistrict Litigation.
(CA-91-184, CA-92-185-5-F, MISC-92-198-5-F)

4
In Re: FOOD LION, INCORPORATED,
FAIR LABOR STANDARDS ACT
"EFFECTIVE SCHEDULING" LITIGATION.

C. MARSHALL HOLLAND, JR.;
CHARLES LEE SMITH; WALTER
CRAWFORD THOMAS, JR.; WILLIAM
BRIAN BAREFOOT; TONYA Y. BROWN;
ROSA BOND; EARNEST A. BRYANT;
No. 95-1274
WAYNE JAY COCHRAN; WILLIAM A.
COOKE; JEFFREY J. GOERMAN; KEITH
HARRIS; CHARLES S. KNOWLES; FAYE
LEE; JOHN M. LYNCH; VERNON W.
MENIFEE; BRUCE E. POPE; BOBBY A.
ROBERTSON; WARREN D. ROMAN;
KEITH W. TINGEN; HASKELL TURNER,
Plaintiffs-Appellants,

and

5
DARRYL ELLIS; DEBBIE GARDNER;
ERIN RICE; KENNETH W. COOPER;
ALAN E. ERETT; DANNY LEEANDER
PERSON; JOE WILLIAM BAKER; PETER
M. SLOKA, SR.; JOHNNY ANDREW
PUNCH, III: ESTER M. WOODS; FRED
MCMILLAN; ISAAC RAY PACK;
ALEXANDER J. SMITH; STEVE J.
KIRSCH; MARILYN S. WILSON; VICKI
ANN WOOD; PHILLIP LARRY OLDHAM;
TERRY A. YOUNG; RICHARD W.
MCDONALD; MICHAEL WRENN;
STEPHEN G. PARRISH; RANDALL LEE
RIGSBEE; DELORES WILSON; DIETTA
M. EDGREN; MATTHEW K. HAENSLER;
JOHN RICHARD EARP; WILLIAM P.
HASKINS; W. EDWARD CAMPBELL;
JOHN L. WALLACE; CRAIG WILSON
PRESSLEY; STAN M. GRIFFIN; MARY
PEEPLES; DAVID G. MYERS; RANDY
LAKE; KENNETH RANDALL COOPER;
WOODROW WILLIAMS, JR.; ERIN RICE
ALBRIGHT; LEISHA BAYNARD; STEPHAN
PARRISH,
Plaintiffs,

v.

FOOD LION, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro,
after remand from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge, sitting by assignment
of the Judicial Panel on Multidistrict Litigation.
(CA-92-503-2, MISC-92-198-5-F)

6
Argued: October 30, 1995

Decided: January 16, 1996

Before HALL and WILKINSON, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Remanded with instructions by published opinion. Judge Hall wrote
the majority opinion, in which Judge Wilkinson joined. Senior Judge
Butzner wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Edward G. Connette, III, LESESNE & CONNETTE,
Charlotte, North Carolina; James McDaniel Johnson, BRYAN,
JONES, JOHNSON & SNOW, Dunn, North Carolina, for Appellants.
William Pinkney Herbert Cary, BROOKS, PIERCE, MCLENDON,
HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for
Appellee. ON BRIEF: James T. Williams, Jr., M. Daniel McGinn,
BROOKS, PIERCE, MCLENDON, HUMPHREY & LEONARD,
L.L.P., Greensboro, North Carolina, for Appellee.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

A number of plaintiffs appeal from summary judgment orders
entered in three actions that were consolidated with eight other
actions for pretrial proceedings. Because there are numerous other
plaintiffs who have not yet appealed but who were dismissed by the
same district court on essentially the same grounds as one or more of
the appellants, we believe that 28 U.S.C. § 1407, the multidistrict liti-
gation statute, requires that the other dismissed plaintiffs have the
opportunity to join in the appeals before us.

7
I

Beginning in 1991, several small groups of employees and former
employees of Food Lion, Inc., filed civil actions in federal courts in
a number of southern states in which Food Lion owns and operates
grocery stores. In each of these actions, the plaintiffs asserted claims
for unpaid overtime and penalties under the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 et seq. Hourly employees alleged that they
were forced to work "off the clock" in order to finish the tasks for
which they were responsible under Food Lion's company-wide sched-
uling system, and several assistant managers claimed that they were
not exempt from FLSA's overtime provisions because the tasks they
performed did not qualify as "managerial."

On June 13, 1992, the Judicial Panel on Multidistrict Litigation
(JPML or Panel) issued an order transferring two of these actions, one
from the District of South Carolina (Scott) and the other from the
Western District of North Carolina (Ledford), to the Eastern District
of North Carolina for "coordinated or consolidated pretrial
proceedings"1 with another action then pending there (McLawhon); all
of the cases were assigned to Judge Fox. The Panel thereafter trans-
ferred six tag-along cases2 over the next five months. Judge Fox even-
tually had eleven separate actions before him.3

In October 1992, court-approved notices were sent to some 60,000
current and former Food Lion employees who had worked in stores
in North Carolina, South Carolina, Florida, Georgia, Virginia, or Ten-
nessee after October 16, 1989.4 Almost one thousand of these
_________________________________________________________________
1 28 U.S.C. § 1407(a).
2 See R. Proc. J.P.M.L. 1.
3 In addition to two cases filed in his district, Judge Fox had before him
a case from each of the other two districts in North Carolina, three from
South Carolina, one from the Eastern District of Virginia, two from the
Eastern District of Tennessee, and one from the Northern District of
Florida. Although the Virginia case arrived in Judge Fox's court via a
transfer of venue entered by the district court in Virginia pursuant to 28
U.S.C. § 1404(a), it was consolidated with the other transferred cases for
pretrial matters and treated as if it were a § 1407 case.
4 The limitations period for filing overtime claims is three years for
willful violations by an employer. 29 U.S.C. § 255(a).

8
employees (including the named plaintiffs in the eleven separate
actions) opted into the litigation by returning"consent forms," and
each employee returning a consent form was assigned a "court num-
ber." A master file was created in a consolidated case denominated In
re: Food Lion, Inc., Fair Labor Standards Act "Effective Scheduling"
Litigation, and each "opt-in" plaintiff was assigned to one of the indi-
vidual cases.

In a series of pretrial orders, Judge Fox dismissed the claims of
about half of the plaintiffs on summary judgment. On March 22,
1994, a "suggestion of remand"5 was filed by the district court and
forwarded to the Panel. On June 2, 1994, the Panel remanded eight
of the actions to their respective transferor courts.6

After remand, one of the two cases remaining in the Eastern Dis-
trict of North Carolina was completed, and an appeal was taken by a
number of the plaintiffs whose claims had been dismissed by sum-
mary judgment during the consolidated pretrial proceedings (the
Royster appeal). At about the same time, some of the plaintiffs who
had met a similar fate in Judge Fox's court, but who were part of
cases from one of the two other districts in North Carolina, asked for
and received Fed. R. Civ. P. 54(b) certifications for immediate appeal
from the respective transferor district courts. These two appeals were
consolidated with the Royster appeal, and we heard oral argument on
October 30, 1995. For the reasons outlined below, we decline to reach
the merits of these appeals at this time.

II

One of the charter Panel members wrote the following with regard
to whether transferor judges should modify orders of transferee
judges:

[I]t would be improper to permit a transferor judge to over-
turn orders of a transferee judge even though error in the lat-
ter might result in reversal of the final judgment of the
_________________________________________________________________
5 See R. Proc. J.P.M.L. 14(c)(ii).

6 The Virginia case was retransferred by an order entered by Judge Fox.

9
 transferor court. If transferor judges were permitted to upset
rulings of transferee judges, the result would be an under-
mining of the purposes and usefulness of transfer under Sec-
tion 1407 for coordinated or consolidated pretrial
proceedings because those proceedings would then lack the
finality (at the trial court level) requisite to the convenience
of witnesses and parties and the efficient conduct of actions.

Weigle, S.A., The Judicial Panel on Multidistrict Litigation, Trans-
feror Courts and Transferee Courts, 78 F.R.D. 575, 577 (1977). The
Food Lion cases present us with the opportunity to foster the transfer
statute's goals.

A

The multidistrict litigation statute, 28 U.S.C.§ 1407, was enacted
as a means of conserving judicial resources in situations where multi-
ple cases involving common questions of fact were filed in different
districts. The statute permits the transfer of the various cases or parts
thereof to a single judge for consolidated pretrial proceedings. In
practice, however, the vast majority of transferred cases are disposed
of completely in the transferee court, either through pretrial disposi-
tions such as summary judgment, or by trial.7 See In Re Korean Air
Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1178 (D.C. Cir. 1987)
(D.H. Ginsburg, J., concurring). Although Congress has not yet seen
fit to allow the Panel or the transferee court to consolidate cases for
trial, this is possibly a next step.8

Because all of the remanded Food Lion cases had claims that had
not been dismissed, the dismissed parties were foreclosed by the
_________________________________________________________________
7 See Patricia D. Howard, A Guide to Multidistrict Litigation, 124
F.R.D. 479 (1989); Joan Steinman, The Effects of Case Consolidation on
the Procedural Rights of Litigants: What They Are, What They Might Be
- Part II: Non-Jurisdictional Matters, 42 UCLA L. Rev. 717 (1995).
Under R. Proc. J.P.M.L. 14(b), a transferee court may be able to use the
venue-transfer statutes, 28 U.S.C.A. §§ 1404(a) & 1406, to keep the
transferred actions together for trial.
8 See Blake M. Rhodes, Comment, The Judicial Panel on Multidistrict
Litigation: Time for Rethinking, 140 U. Pa. L. Rev 711 (1991).

10
"final order rule" from appealing prior to the remand. On remand by
the Panel, however, some of the dismissed plaintiffs in the two
remanded North Carolina cases successfully moved for Rule 54(b)
determinations in their respective transferor courts, and their appeals
(Ledford and Holland) dovetailed with the appeal from the final judg-
ment in McLawhon, one of Judge Fox's original cases. The result is
the sort of piecemeal litigation that the multidistrict scheme was
intended to discourage.

The three appeals before us involve precisely the same set of issues
as any appeals that might be taken from the summary judgment orders
in the cases remanded to the transferor courts outside North Carolina.
While we have no reason to upset the remand of those claims that
remain alive, we believe that permitting the transferor courts (and,
possibly, the Courts of Appeal for the Sixth and Eleventh Circuits) to
reconsider the transferee court's summary judgment orders will frus-
trate the aims of § 1407.9 The overriding purpose of the multidistrict
procedure dictates that these claims be decided in the same appellate
forum.10

B

Because of the distinct factual predicates of each claim, Judge Fox
wisely limited his role to sorting out the potential claimants and clari-
_________________________________________________________________
9 Food Lion filed a supplemental brief on the jurisdictional issue advis-
ing us that only the South Carolina and Florida cases remain before their
respective district courts and that all others have been settled or adjudi-
cated and will not be appealed.

10 Review of panel orders of transfer and remand is by petition for
extraordinary writ filed "in the court of appeals having jurisdiction over
the transferee court." 28 U.S.C. § 1407(e). Our responsibility for the
orderly and efficient administration of justice within this circuit is an
adequate basis for the exercise of our power to order relief in the nature
of mandamus directed to the Panel and to the district courts for both the
District of South Carolina and the Eastern District of North Carolina. See
General Tire & Rubber Co. v. Watkins, 373 F.2d 361, 369 (4th Cir.
1967) (en banc) (granting mandamus relief under 28 U.S.C. § 1651(a)
and directing transfer of case to another district on the basis of the "main-
tenance of judicial economy").

11
fying each claim to some degree.11 Each of the dismissals falls into
one of about six or seven broad categories, and the appeals of the dis-
missal orders in each category typically involve a single dispositive
issue of law.12 Even accounting for the peculiar facts of each case, it
is clearly more efficient to provide for review by one appellate court
in one proceeding rather than leaving open the possibility that Judge
Fox's decisions could be reconsidered by each of the transferor courts
and reviewed by as many as three courts of appeal.

C

The better practice in this case would have been for the dismissed
parties to have requested, and for Judge Fox to have directed, the
entry of Rule 54(b) final judgments prior to filing the suggestion of
remand.13 A consolidated appeal, heard by the appellate court having
jurisdiction over the transferee district court that entered the orders,
is the best means of achieving the goals of efficient and uniform adju-
dication of numerous actions. See FMC Corp. v. Glouster Engineer-
ing Co., 830 F.2d 770, 772 (7th Cir. 1987) (explaining why the court
of appeals covering the transferee court, rather than the one covering
the transferor court, should hear appeals from orders of the transferee
court). There is no "just reason" for delaying the dismissed plaintiffs'
appeal rights until after remand to the transferor courts. Accordingly,
_________________________________________________________________

11 A consolidated proceeding was clearly the more efficient means of
resolving who were stating claims, for what period of time, for what
stores, and for what wages. For those cases that survived summary judg-
ment, however, the transferor court is clearly the more convenient forum
for deciding whether the plaintiff actually worked the overtime claimed.
12 Most of these categories involve what have been characterized as
"case management dismissals" which are subject to review for abuse of
discretion. For example, one category comprises dismissals based on the
plaintiffs' failure to properly or timely respond to court-propounded
questionnaires.

13 The Panel is permitted to remand only part of a transferred action and
leave the remainder in the transferee court for further proceedings. See
28 U.S.C.A. § 1407(a) (1993). The Panel could have remanded only
those claims that had not been dismissed by Judge Fox. In the event that
we would overturn a summary judgment order for some reason, the
transferee court could refile its suggestion of remand.

12
transferee courts in this circuit must, at some point prior to filing a
suggestion of remand, enter final judgment under Rule 54(b) with
regard to any decision or order of that court that fully disposes of
"fewer than all the claims or the rights and liabilities of fewer than
all the parties."14

III

In the interests of judicial economy, we will delay a decision on the
pending appeals so that those plaintiffs whose claims were dismissed
by Judge Fox may bring their appeals to this court. Accordingly, we
order as follows:

(1) the pending appeals from the three North Carolina districts are
held in abeyance;

(2) the Panel is directed to retransfer from the District of South
Carolina, the Northern District of Florida, and the Eastern District of
Tennessee to the Eastern District of North Carolina those claims that
were dismissed by Judge Fox prior to the June 20, 1994, remand by
the Panel;

(3) after retransfer in accordance with the foregoing paragraph, the
district court for the Eastern District of North Carolina is directed to
enter final judgment as to all such claims, pursuant to Fed. R. Civ. P.
_________________________________________________________________

14 The transferee court may file a suggestion of remand with regard to
those claims and parties not the subject of the Rule 54(b) order(s).

In addition to Rule 54(b) certifications for final judgment "as to one
or more but fewer than all of the claims or parties," another tool at the
transferee court's disposal is 28 U.S.C. § 1292(b). Appeals heard pursu-
ant to § 1292(b) orders are heard in the circuit in which the transferee
court is located. See FMC Corp., 830 F.2d at 772 ("[A] rule which gives
the transferee circuit exclusive appellate jurisdiction over all orders
issued by the transferor district court is simple to administer and free
from uncertainty . . . ").

13
54(b); any appeals taken pursuant to such certifications will be heard
in the Court of Appeals for the Fourth Circuit. 15

An appropriate order will be entered

BUTZNER, Senior Circuit Judge, dissenting:

In its suggestion of remand of the cases that had been consolidated
for pretrial proceedings, the district court stated:

Due to the fact-specific nature of this litigation, these cases
do not lend themselves to a consolidated disposition on the
merits. It appears likely that each individual case must be
disposed of in unique fashion, which is a process better left
to the discretion and planning of the district judges within
the districts from whence these cases originated.

The district court recognized that its pretrial rulings were interlocu-
tory and that they were subject to revision before final judgment. See
Fed. R. Civ. P. 54(b). The district court acted responsibly. Its sugges-
tion of remand was designed to provide a fair opportunity for each
party to seek a revision of the pretrial orders in light of evidence that
might be disclosed in further proceedings in the transferor courts.

The Judicial Panel on Multidistrict Litigation initially issued a con-
ditional remand order to which Food Lion objected. Subsequently,
Food Lion withdrew its objection and the Judicial Panel issued its
order providing that the previously consolidated cases are "remanded
to their respective transferor courts for further proceedings as pro-
vided in 28 U.S.C. § 1407(a)."

Section 1407(a) authorizes the Judicial Panel to remand actions
that have been consolidated for pretrial proceedings"at or before the
conclusion of such pretrial proceedings" to the transferor district
courts "unless [such actions] shall have been previously terminated."
None of the actions that the Judicial Panel remanded was previously
terminated in the pretrial proceedings.
_________________________________________________________________
15 We note that failure to file a timely notice of appeal after entry of the
Rule 54(b) order will result in the loss of the right to appeal.

14
Section 1407(e) governs appellate review of orders of the Judicial
Panel. This section provides that no proceedings for review of any
order of the Judicial Panel may be permitted except by extraordinary
writ pursuant to the provisions of 28 U.S.C. § 1651. Since the Judicial
Panel acted within the jurisdiction conferred by§ 1407(a), there is no
occasion for this court to issue an extraordinary writ to reverse the
Judicial Panel.

General Tire & Rubber Co. v. Watkins, 373 F.2d 361 (4th Cir.
1967), which is cited as authority in the slip opinion at 11 n.10, is far
afield. In that case we dealt with a petition for a writ of mandamus
filed by one of the parties. We directed a district court in this circuit
to transfer a case to a district in another circuit where a similar case
was proceeding. We acted because the issuance of a writ was "the
only practical or adequate remedy for an abuse of discretion." 373
F.2d at 364. In the case before us, in contrast, there is no abuse of dis-
cretion on the part of either the district court, which gave very cogent
reasons for its suggestion of remand, or the Judicial Panel, which
acted pursuant to its statutory authority. No other authority is cited for
the unprecedented reversal of an order of the Judicial Panel that
remands actions pursuant to the authority granted it in § 1407(a).

I have no quarrel with FMC Corporation v. Glouster Engineering
Co., 830 F.2d 770 (7th Cir. 1987), or In re Korean Air Lines Disaster
of September 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987), which place
appellate jurisdiction in the court of appeals of the circuit where the
transferee district court is located. But the Judicial Panel had not
remanded these cases to the transferor courts. Certainly these cases
are not authority for reversing an order of the Judicial Panel.

In the case now before us there is no petition for an extraordinary
writ. The parties apparently are well satisfied with the status quo.
They urge us to decide the cases now before us. We have three cases
before us: cases from the Western and Middle Districts of North Car-
olina were properly certified, and a final order was entered in one
case originating in the Eastern District of North Carolina. Another
case from the Eastern District settled or was adjudicated with no
appeal taken.

The case from the Eastern District of Virginia, we are told, has
been settled or adjudicated, and no appeal will be taken.

15
No final order has been entered in the three South Carolina cases.
They have not been certified for appeal, and the parties, we are told,
are engaged in settlement negotiations on the claims that Judge Fox
did not dismiss. Eventually these cases may come to us either by cer-
tification or by final order. Or they may be settled.

We are told that claims in the two Tennessee cases have been set-
tled or adjudicated and that no appeal will be taken.

This leaves only the Florida case where neither a final order nor
certification has been entered. We are told the parties are engaged in
settlement negotiations as to those claims not dismissed by Judge
Fox. We have no jurisdiction over this case because of the Judicial
Panel's remand order. I have no doubt that the Eleventh Circuit is
capable of deciding any appeal.

Parenthetically, I note that in General Tire & Rubber Co., we
observed that we were not concerned "with the problem of whether
or not we shall ultimately lose our jurisdiction to review to another
appellate court." 373 F.2d at 370. We were, however, concerned with
effective judicial administration. To gather back into this circuit the
cases the Judicial Panel remanded will, I am afraid, negate effective
judicial administration and subject the parties to delay and to needless
counsel fees and expenses.

Rather than reaching out to the extraordinary, unsolicited, and ill-
advised writ of mandamus, I would consider the merits of the cases
before us, realizing that only one other circuit could potentially rule
on these issues. The greater danger to our system comes not from pos-
sible circuit conflict but from failure to honor the role that Congress
prescribed for the transferee court and the Judicial Panel in establish-
ing a system of multidistrict litigation.

16