In Re SHOLEM WEISNER v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 2004 cleaned up . To begin, Mr.…

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In Re SHOLEM WEISNER,
Petitioner
______________________
2026-100
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Southern District of New York in No.
1:20-cv-02862-AKH-VF, Judge Alvin K. Hellerstein.
______________________
ON PETITION AND MOTION
______________________
Before DYK, LINN, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
O R D E R
Sholem Weisner petitions for a writ of mandamus seek-
ing to set aside a district court order referring certain is-
sues to a magistrate judge, who has scheduled proceedings
to begin October 21, 2025. Google LLC opposes. We deny
the petition.1
1 Mr. Weisner also moves to stay the proceedings
pending resolution of this petition, which we deny as moot.
Case: 26-100 Document: 10 Page: 1 Filed: 10/15/2025

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IN RE WEISNER 2
In the underlying patent infringement case, Mr. Weis-
ner and Google cross-moved for summary judgment on
Google’s affirmative defenses of inequitable conduct and
prosecution laches. Without the consent of the parties, the
district court referred those “motions, and any bench trial
that may be appropriate, to [a magistrate judge], for a re-
port and recommendation, pursuant to 28 U.S.C.
§ 636(b)(1)(B)–(C).” Dkt. No. 392 at 1; see Dkt. No. 414 at
2 (noting the court “referred the summary judgment mo-
tions, including any related bench trial of the issues in the
motions,” to the magistrate judge). The magistrate judge
has scheduled proceedings for October 21–23, 2025, which
she has referred to as a “bench trial.” Dkt. No. 408 at 1.
Mr. Weisner petitions this court to set aside the referral,
arguing the magistrate judge lacks authority to hold a trial
on the merits of Google’s affirmative defenses.
A petitioner seeking the extraordinary remedy of man-
damus must show: (1) “no other adequate means to attain
the relief he desires,” (2) a “clear and indisputable” right to
relief, and (3) the writ is “appropriate under the circum-
stances.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367,
380–81 (2004) (cleaned up). To begin, Mr. Weisner has
failed to demonstrate the inadequacy of an appeal (if nec-
essary) following final judgment, see Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 383 (1953), and while man-
damus may be available in rare circumstances when imme-
diate intervention is necessary to assure proper judicial
administration, the petition fails to identify any “basic, un-
settled, recurring legal issues over which there is consider-
able litigation producing disparate results,” In re Micron
Tech., Inc., 875 F.3d 1091, 1095 (Fed. Cir. 2017).2
2 Indeed, Mr. Weisner concedes he has not identified
any other case where this issue has arisen.
Case: 26-100 Document: 10 Page: 2 Filed: 10/15/2025

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IN RE WEISNER 3
Nor has Mr. Weisner shown a clear and indisputable
right to relief. To be sure, some courts have concluded that
magistrate judges typically lack “the authority to perform
fact-finding on the merits of [a] case because that function
is the essence of a trial, and magistrate judges cannot con-
duct trials without the parties’ consent.” Beazer E., Inc. v.
Mead Corp., 412 F.3d 429, 439 (3d Cir. 2005) (citing Banks
v. United States, 614 F.2d 95, 97 (6th Cir. 1980)).3 But here
it is far from clear and indisputable that the magistrate
judge will conduct the upcoming proceedings, regarding
cross-motions for summary judgment, in a manner that
would exceed her statutory authority. See § 636(b)(1)(B)
(permitting magistrate judges “to conduct hearings” re-
garding motions for summary judgment); Jeffrey S. by Ern-
est S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507,
511–12 & n.17 (11th Cir. 1990).
Accordingly,
3 See also 12 Wright & Miller’s Federal Practice and
Procedure § 3068.1 (3d ed. 2025) (“[A]bsent consent of the
parties, the magistrate judge cannot conduct a trial.” (cit-
ing Fed. R. Civ. P. 72)); but cf. Ford v. Estelle, 740 F.2d 374,
380 (5th Cir. 1984).
Case: 26-100 Document: 10 Page: 3 Filed: 10/15/2025

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IN RE WEISNER 4
IT IS ORDERED THAT:
The petition for a writ of mandamus is denied, and the
motion for a stay is denied as moot.
October 15, 2025
Date
FOR THE COURT
cc: United States District Court for the Southern District
of New York
Case: 26-100 Document: 10 Page: 4 Filed: 10/15/2025

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