S)  CAREFIRST OF MARYLAND, INCORPORATED, d/b/a Carefirst Blue Cross/Blue Shield v.  CAREFIRST URGENT CARE CENTER, LLC, d/b/a Carefirst; HARDIN MEMORIAL HOSPITAL

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 In Re: CAREFIRST OF MARYLAND,
INCORPORATED, d/b/a Carefirst Blue No. 01-1964 Cross/Blue Shield,
Petitioner. 
On Petition for Writ of Mandamus.
(CA-00-2938-S)
 CAREFIRST OF MARYLAND,
INCORPORATED, d/b/a Carefirst Blue
Cross/Blue Shield,
Plaintiff-Appellant,
v. No. 01-1973 
CAREFIRST URGENT CARE CENTER,
LLC, d/b/a Carefirst; HARDIN
MEMORIAL HOSPITAL,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CA-00-2938-S)
Argued: May 8, 2002
Decided: September 25, 2002
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.

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Appeal dismissed and petition for mandamus denied by published
opinion. Judge Traxler wrote the majority opinion, in which Judge
Williams joined. Judge Widener wrote a dissenting opinion.
COUNSEL
ARGUED: Ruth Mae Finch, STEPHENS, DAVIS, MILLER &
MOSHER, L.L.P., Washington, D.C., for Appellant. John William
Scruton, STITES & HARBISON, P.L.L.C., Louisville, Kentucky, for
Appellees. ON BRIEF: Barth X. deRosa, Christopher M. Collins,
STEPHENS, DAVIS, MILLER & MOSHER, L.L.P., Washington,
D.C., for Appellants.
OPINION
TRAXLER, Circuit Judge:
Carefirst of Maryland, Inc. ("Carefirst") brought this action in
Maryland district court asserting claims of trademark infringement,
dilution, and unfair competition against Hardin Memorial Hospital
and Carefirst Urgent Care Center, LLC (together, the "defendants").
After allowing limited discovery into the defendants’ contacts with
the state of Maryland, the district court concluded that it lacked per-
sonal jurisdiction over the defendants, and, pursuant to 28 U.S.C.A.
§ 1631 (West 1994),1 transferred the case to federal district court in
Kentucky, where the defendants are located. Carefirst appeals the
transfer order, contending that the Maryland court could properly
exercise personal jurisdiction over the defendants. We dismiss the
appeal as interlocutory.
1As is relevant to this case, section 1631 provides that "[w]henever a
. . . court finds that there is a want of jurisdiction, the court shall, if it
is in the interest of justice, transfer such action . . . to any other such
court in which the action . . . could have been brought at the time it was
filed." 28 U.S.C.A. § 1631 (West 1994).
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I.
Subject to certain exceptions not applicable here, the appellate
jurisdiction of this court extends only to appeals from "final deci-
sions" of the district courts. 28 U.S.C.A. § 1291 (West 1993); see
TechnoSteel, LLC v. Beers Constr. Co., 271 F.3d 151, 154 (4th Cir.
2001). Generally speaking, an order is "final" within the meaning of
section 1291 if it "ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment." Catlin v. United States,
324 U.S. 229, 233 (1945). The transfer order here obviously does not
meet this standard—the transfer did not terminate the litigation, but
instead ensured that Carefirst remained in court, free to pursue its
claims. See Stelly v. Employers Nat’l Ins. Co., 431 F.2d 1251, 1254
(5th Cir. 1970) (per curiam) (noting that after a transfer, the plaintiff
"is still in the federal court although in a different room. The district
court’s order rather than having the effect of precluding [the plaintiff]
from further prosecuting his lawsuit, guarantees that [the plaintiff]
will have his day in court.").
Nonetheless, some orders addressing issues collateral to the merits
are sufficiently final to warrant immediate review. Accordingly,
through what is generally referred to as the "collateral order doctrine,"
the Supreme Court has construed section 1291 to permit appeals from
"a narrow class of decisions that do not terminate the litigation, but
must, in the interest of achieving a healthy legal system, nonetheless
be treated as final." Digital Equip. Corp. v. Desktop Direct, Inc., 511
U.S. 863, 867 (1994) (citation and internal quotation marks omitted).
That narrow class of immediately appealable collateral orders "in-
cludes only decisions that are conclusive, that resolve important ques-
tions separate from the merits, and that are effectively unreviewable
on appeal from the final judgment in the underlying action." Swint v.
Chambers County Comm’n, 514 U.S. 35, 42 (1995); see Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The ques-
tion, then, is whether the transfer order in this case satisfies the
requirements of the collateral order doctrine.
II.
A.
Before we tackle the collateral order question, it is helpful to con-
sider the treatment of transfer orders made pursuant to other statutory
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provisions. Section 1404(a) authorizes inter-district or inter-division
transfers "[f]or the convenience of parties and witnesses, in the inter-
est of justice," 28 U.S.C.A. § 1404(a) (West 1993), while section
1406(a) provides that "[t]he district court of a district in which is filed
a case laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any district or
division in which it could have been brought," 28 U.S.C.A. § 1406(a)
(West 1993). Although its language suggests otherwise, section
1406(a) has been interpreted to authorize transfers in cases where
venue is proper but personal jurisdiction is lacking or some other
impediment exists that would prevent the action from going forward
in that district. See Porter v. Groat, 840 F.2d 255, 258 (4th Cir. 1988)
("[W]e adopt as the rule in this circuit the reading of § 1406(a) that
authorizes the transfer of a case to any district, which would have had
venue if the case were originally brought there, for any reason which
constitutes an impediment to a decision on the merits in the transferor
district but would not be an impediment in the transferee district.");
Martin v. Stokes, 623 F.2d 469, 474 (6th Cir. 1980) (Section 1406(a)
"provides the basis for any transfer made for the purpose of avoiding
an obstacle to adjudication on the merits in the district court where
the action was originally brought. That defect may be either improper
venue or lack of personal jurisdiction."); see also Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466 (1962) (concluding that a district court
lacking personal jurisdiction over a defendant may transfer the case
under section 1406(a)).
Courts have consistently held that transfer orders under sections
1404(a) and 1406(a) do not satisfy the requirements of the collateral
order doctrine. See, e.g., TechnoSteel, 271 F.3d at 154 (stating that
section 1404(a) transfer order is not immediately appealable); Gower
v. Lehman, 799 F.2d 925, 927 (4th Cir. 1986) (explaining that orders
transferring cases under section 1404(a) or 1406(a) are not immedi-
ately appealable); Carteret Sav. Bank v. Shushan, 919 F.2d 225, 230
(3d Cir. 1990) (holding that section 1406(a) transfer for lack of per-
sonal jurisdiction was not an appealable collateral order); 15 Charles
Alan Wright et al., Federal Practice & Procedure § 3827 (2d ed.
1986) ("An order of transfer under Section 1406(a) is interlocutory
and not appealable. . . .); id. § 3855 ("It is entirely settled that an order
granting or denying a motion to transfer under 28 U.S.C.A. § 1404(a)
is interlocutory and not immediately appealable. . . .). And there is
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good reason for not allowing immediate appeals of transfer orders—
"it will be highly unfortunate if the result of an attempted procedural
improvement is to subject parties to two law suits: first, prolonged lit-
igation to determine the place where a case is to be tried; and, second,
the merits of the alleged cause of action itself." Ellicott Mach. Corp.
v. Modern Welding Co., 502 F.2d 178, 181 (4th Cir. 1974) (internal
quotation marks omitted).
Because of the broad construction given section 1406(a), the dis-
trict court in this case could have transferred the case to Kentucky
under that section instead of section 1631. If the transfer had been
pursuant to section 1406(a), then there would be little doubt that the
order was not immediately appealable. The question, then, is whether
there is any reason for transfers effectuated under 28 U.S.C.A. § 1631
to be treated differently.
Most circuits considering this question have concluded that section
1631 transfer orders are not immediately appealable. See Brinar v.
Williamson, 245 F.3d 515, 517-18 (5th Cir. 2001); FDIC v. McGlam-
ery, 74 F.3d 218, 221-22 (10th Cir. 1996); Ukiah Adventist Hosp. v.
FTC, 981 F.2d 543, 546-48 (D.C. Cir. 1992); Alimenta (USA), Inc. v.
Lyng, 872 F.2d 382, 383-85 (11th Cir. 1989). However, in a case
involving the lack of subject matter jurisdiction, this court has con-
cluded that a section 1631 transfer order was immediately appealable.
See Gower v. Lehman, 799 F.2d 925 (4th Cir. 1986).
The plaintiff in Gower was discharged by the Navy and sought
administrative review of the discharge decision. When that failed,
Gower (the plaintiff) filed an action in district court challenging the
discharge and seeking reinstatement. The district court concluded that
because the remedies sought by Gower included back pay, the amount
in controversy exceeded $10,000, thus bringing the case within the
exclusive jurisdiction of the Court of Claims. Relying on section
1631, the district court transferred the case to the Court of Claims. See
id. at 926. On appeal, this court held that the transfer order was
appealable under the collateral order doctrine:
The order conclusively resolves the issue of the district
court’s jurisdiction. The issue of the district court’s jurisdic-
tion is entirely separate from the merits. The district court’s
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determination that it lacks jurisdiction cannot be effectively
reviewed on appeal to the Federal Circuit from a final judg-
ment in the Claims Court.
Id. at 927 (citation omitted).
Carefirst contends that Gower compels the conclusion that the sec-
tion 1631 transfer order in this case is an appealable collateral order.
The defendants, however, contend that the order in Gower involved
a transfer based on the absence of subject matter jurisdiction and that
Gower does not answer the question of whether a section 1631 trans-
fer order based on the lack of personal jurisdiction is immediately
appealable. We agree with the defendants.2
A careful reading of Gower reveals that its appealability ruling
sprang primarily from the court’s view that questions involving sub-
ject matter jurisdiction were different and more important than issues
arising from typical transfers, thus justifying immediate appellate
2The defendants also contend that section 1631, which refers to "a
want of jurisdiction," contemplates transfers only where subject matter
jurisdiction, not personal jurisdiction, is absent. Because we conclude
that the transfer order in this case is not immediately appealable, we need
not decide whether section 1631 extends to cases where only personal
jurisdiction is lacking, a question that has divided the courts. Compare,
e.g., Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d
Cir. 2000) (not deciding the issue, but noting that the "legislative history
of section 1631 provides some reason to believe that this section autho-
rizes transfers only to cure lack of subject matter jurisdiction"); Pedzew-
ick v. Foe, 963 F. Supp. 48, 49-50 (D. Mass. 1997) (collecting cases and
concluding that section 1631 applies only to cases where subject matter
jurisdiction is lacking); 15 Charles Alan Wright et al., Federal Practice
& Procedure § 3842 (2d ed. 1986) (stating that section 1631 "is con-
cerned only with subject matter jurisdiction. It has nothing to do with
personal jurisdiction or venue."), with Ross v. Colorado Outward Bound
School, Inc., 822 F.2d 1524, 1527 (10th Cir. 1987) (concluding that sec-
tion 1631 permits transfers where personal jurisdiction is lacking); Carty
v. Beech Aircraft Corp., 679 F.2d 1051, 1066 (3d Cir. 1982) (reversing
district court’s determination that it had personal jurisdiction over the
defendant, but remanding to the district court to consider application of
section 1631).
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review. For example, while the court recognized that normal district-
court-to-district-court transfers under sections 1404(a) or 1406(a) are
not immediately appealable, the court determined that
[a] transfer from a district court to the Claims Court pursu-
ant to section 1631 is quite different from a transfer between
district courts. Section 1631 stipulates that an essential pred-
icate to transfer pursuant to this section is the district court’s
"want of jurisdiction." Appellate review is concerned with
this aspect of the transfer.
Id. at 927 (citation omitted).
Moreover, the Gower court relied heavily on Goble v. Marsh, 684
F.2d 12 (D.C. Cir. 1982), a case in which the court found to be imme-
diately appealable a transfer from a district court to the Court of
Claims under (now-repealed) 28 U.S.C.A. § 1406(c), which gave dis-
trict courts the power to transfer cases within the exclusive jurisdic-
tion of the Court of Claims. See id. at 14. The Goble court likewise
focused on the fact that the order involved subject matter jurisdiction,
which distinguished it from run-of-the-mill transfer orders. See id. at
14-15 ("Under [sections 1404(a) and 1406(a)] the question is proper
venue within the system of District Courts. In contrast, in the present
cases appellants seek review of an order transferring their cases to
a different court, the Court of Claims, on the ground that no District
Court had subject matter jurisdiction over their claims." (emphasis
added)).
In addition, the court in Goble concluded that the transfer order at
issue was effectively unreviewable after final judgment (a require-
ment of the collateral order doctrine) because of the potentially con-
current jurisdiction by the district court and the Court of Claims. The
Court of Claims and district courts have concurrent jurisdiction over
Tucker Act claims against the United States seeking $10,000 or less,
while the Court of Claims has exclusive jurisdiction over claims seek-
ing more than $10,000. See 28 U.S.C.A. § 1346(a)(2) (West 1993); 28
U.S.C.A. § 1491 (West 1994 & Supp. 2002). The district court in
Goble determined that it lacked jurisdiction because the plaintiff was
in fact seeking more than $10,000 and that the case should therefore
be transferred to the Court of Claims. Because the Court of Claims
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would have subject matter jurisdiction even if the district court was
wrong and the claim actually was for less than $10,000, the transfer
decision would not be reviewed on appeal from a decision by the
Court of Claims. See Goble, 684 F.2d at 14.3
Thus, we conclude that the appealability determination in Gower
flowed from the fact that the case involved subject matter jurisdiction
and from a not-effectively-reviewable determination that itself flowed
from the quirks of the subject matter jurisdiction of the Court of
Claims. Accordingly, we do not believe that Gower is controlling
here, where the transfer was based on the lack of personal jurisdic-
tion. Instead, we must independently evaluate whether a section 1631
transfer order based on the lack of personal jurisdiction meets the
requirements of the collateral order doctrine.
B.
As noted above, the collateral order doctrine allows immediate
appeals of otherwise interlocutory orders that conclusively "resolve
important questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the underlying
action." Swint, 514 U.S. at 42. If the order fails to satisfy any one of
these requirements, it is not an immediately appealable collateral
order. Assuming that the order in this case meets the other require-
ments, it fails on the last.4
Although the requirement seems simple enough, determining
3Since Gower and Goble were decided, any concern about the reviewa-
bility of orders transferring cases to the Court of Claims has been largely
alleviated—in 1988, Congress enacted 28 U.S.C.A. § 1292(d)(4)(A)
(West Supp. 2002), which gives the Court of Appeals for the Federal Cir-
cuit jurisdiction to review interlocutory section 1631 orders transferring
cases to the Court of Claims.
4We recognize that there are unpublished opinions from this court indi-
cating that section 1631 transfers for lack of personal jurisdiction are
immediately appealable. See, e.g., Brill v. Brown, No. 89-2825, 1990 WL
101620 (4th Cir. July 2, 1990). However, "unpublished opinions are not
binding precedent in this circuit." United States v. Ruhe, 191 F.3d 376,
392 (4th Cir. 1999).
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whether an order is effectively reviewable after final judgment is not
such an easy task. The Supreme Court has explained that an order is
effectively unreviewable on appeal after final judgment "where denial
of immediate review would render impossible any review whatso-
ever." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376
(1981) (internal quotation marks omitted). The Court has also stated
that the "general rule [is] that an order is effectively unreviewable
only where the order at issue involves an asserted right the legal and
practical value of which would be destroyed if it were not vindicated
before trial." Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 498-99
(1989) (internal quotation marks omitted). As we explain below, the
order in this case does not satisfy either standard.
(1)
The Sixth Circuit follows the rule of many other circuits that a
transfer order issued by a district court outside the Sixth Circuit is not
directly reviewable on appeal. See Moses v. Business Card Express,
Inc., 929 F.2d 1131, 1136 (6th Cir. 1991) ("We have no appellate
jurisdiction over decisions of district courts outside the Sixth Cir-
cuit."). However, that does not mean the order is effectively unre-
viewable. Indirect review of the order is available by way of a motion
to retransfer the case; if the transferee court denies that motion, that
decision will be reviewable by the Sixth Circuit on appeal. See id.
("Because [the Michigan district court judge] denied the plaintiffs’
motion to retransfer this case to the Northern District of Alabama,
however, we have jurisdiction to review that decision as well as the
summary judgment and, thus, to review indirectly the decision of [the
Alabama district court judge].").
This indirect review perhaps will not subject the transfer order to
the same level of scrutiny that would be applied by this court if the
order were immediately appealable. Nonetheless, effective review of
the order is available, which is what matters for purposes of the col-
lateral order doctrine. See Lauro Lines, 490 U.S. at 501 (concluding
that denial of motion to dismiss based on contractual forum selection
clause is not immediately appealable and explaining that "Petitioner’s
claims that it may be sued only in Naples, while not perfectly secured
by appeal after final judgment, is adequately vindicable at that stage
. . . and hence does not fall within the third prong of the collateral
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order doctrine"); McGlamery, 74 F.3d at 222 (concluding that a sec-
tion 1631 transfer for lack of personal jurisdiction is not immediately
appealable: "In terms of the effectiveness of review after final judg-
ment, a transfer for lack of personal jurisdiction provides no less
opportunity for review than a transfer for improper venue under
§ 1406(a). Indirect review of such orders can be obtained by bringing
a motion to retransfer in the transferee court."); see also Songbyrd v.
Estate of Grossman, 206 F.3d 172, 178-80 (2d Cir. 2000) (reviewing
pre-transfer personal jurisdiction ruling made by district court outside
Second Circuit and discussing showing necessary to reverse transfer
ruling after final judgment).
(2)
Nor can it be said that the order in this case involves a right that
would be effectively lost if not vindicated before trial. The Supreme
Court has found that an order involves a right that would be effec-
tively lost if not vindicated before trial in very limited circumstances
—typically as to orders involving a right not to stand trial, such as
that created by principles of sovereign, absolute, or qualified immu-
nity. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139 (1993) (11th amendment); Mitchell v. For-
syth, 472 U.S. 511 (1985) (qualified immunity); Nixon v. Fitzgerald,
457 U.S. 731 (1982) (absolute immunity). But where the order
involves an asserted "right" to proceed in a particular forum (or a
"right" not to proceed in a particular forum), the Supreme Court has
refused to treat the order as an appealable collateral order. See Lauro
Lines, 490 U.S. at 501 (order denying motion to dismiss based on
contractual forum-selection clause is not immediately appealable; "an
entitlement to avoid suit is different in kind from an entitlement to be
sued only in a particular forum").
If we assume that the district court was wrong and that it did have
personal jurisdiction over the defendants, then what happened here is
that an action was transferred from one district where jurisdiction
existed over the defendants to another district where jurisdiction over
the defendants also existed. Thus, the only "right" involved is the
right of Carefirst to proceed in the forum of its choosing. While a
plaintiff’s choice of forum is of course entitled to respect and defer-
ence, the interest in proceeding in the forum of choice in most
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instances is not weighty enough to be protected by the collateral order
doctrine.5
"[W]hether a right is ‘adequately vindicable’ or ‘effectively
reviewable’ simply cannot be answered without a judgment about the
value of the interests that would be lost through rigorous application
of a final judgment requirement." Digital Equip. Corp., 511 U.S. at
878-79. Carefirst seeks reversal of the district court’s personal juris-
diction ruling so that it may proceed to trial in the forum of its choice.
Thus, the interest at stake in this case is the same as the interest at
stake in every case where a plaintiff seeks to appeal a routine transfer
order. And in ordinary transfer cases, courts do not view the plain-
tiff’s interest in proceeding in the forum of choice as sufficient to out-
weigh the interests served by the general rule prohibiting
interlocutory appeals. We can see no reason to strike a different bal-
ance in this case.
We fully recognize that it will be less convenient and more expen-
sive for Carefirst to prosecute its claims in Kentucky than in Mary-
land. But those concerns, while real, are not sufficient to bring the
transfer order within the collateral order doctrine. As the Supreme
Court has explained,
[T]he strong bias of § 1291 against piecemeal appeals
almost never operates without some cost. A fully litigated
case can no more be untried than the law’s proverbial bell
can be unrung, and almost every pretrial or trial order might
be called "effectively unreviewable" in the sense that relief
from error can never extend to rewriting history. Thus, erro-
neous evidentiary rulings, grants or denials of attorney dis-
qualification, and restrictions on the rights of intervening
parties, may burden litigants in ways that are only imper-
5We note that Congress has expressly provided for immediate appel-
late review of certain orders that effectively deny a party his chosen
forum, see, e.g., 9 U.S.C.A. § 16(a)(1)(A) (West 1999) (authorizing
immediate appeal of an order denying a motion to stay litigation pending
arbitration), thus reflecting a policy judgment that a particular subset of
forum choices are sufficiently important to merit protection via immedi-
ate appellate review.
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fectly reparable by appellate reversal of a final district court
judgment; and other errors, real enough, will not seem seri-
ous enough to warrant reversal at all, when reviewed after
a long trial on the merits. . . . But if immediate appellate
review were available every such time, Congress’s final
decision rule would end up a pretty puny one, and so the
mere identification of some interest that would be "irretriev-
ably lost" has never sufficed to meet the third Cohen
requirement.
Digital Equip., 511 U.S. at 872 (citations omitted). Thus, Carefirst’s
interest in proceeding in one federal forum rather than another is sim-
ply insufficient to warrant further inroad on the important interests
animating section 1291’s finality rule. See MDK, Inc. v. Mike’s Train
House, Inc., 27 F.3d. 116, 119 (4th Cir. 1994) ("The rule against
appeal of interlocutory rulings . . . serves twin purposes. It both
avoids the enfeebling of judicial administration that comes with
undue delay, and preserves the primacy of the district court as the
arbiter of the proceedings before it." (citations and internal alteration
omitted)).
Carefirst, however, suggests that its right to fully and fairly litigate
its claims will be irretrievably lost absent an immediate appeal of the
transfer order. Carefirst contends that the district court, in the course
of concluding that it lacked personal jurisdiction over the defendants,
improperly made statements that reached (and rejected) the merits of
Carefirst’s claims—statements that Carefirst believes will be treated
as the law of the case by the district court in Kentucky. Carefirst thus
argues that, absent an immediate appeal in this circuit, it will effec-
tively lose its case before even leaving the starting gate.
We agree with Carefirst that certain portions of the district court’s
order appear to reject the merits of some of Carefirst’s claims, which
of course would be improper at this stage of the proceedings. See,
e.g., Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993)
("[W]hen . . . the district court decides a pretrial personal jurisdiction
dismissal motion without an evidentiary hearing, the plaintiff need
prove only a prima facie case of personal jurisdiction. In deciding
whether the plaintiff has proved a prima facie case of personal juris-
diction, the district court must draw all reasonable inferences arising
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from the proof, and resolve all factual disputes, in the plaintiff’s
favor." (citation omitted)). We question, however, whether the district
court in Kentucky would consider itself bound by the merits-related
statements made by the Maryland district court in its order. See, e.g.,
Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 894 (6th
Cir. 1996) (concluding that the district court erred by treating as the
law of the case a statement made in an order denying class certifica-
tion that a contractual term was ambiguous: "The law of the case doc-
trine is not so rigid that it requires a judge to follow a prior ruling,
which is not a final order and has not been the subject of an appeal,
as if the issue is res judicata."). Nonetheless, even if the merits-
related statements were binding on the transferee court, the Maryland
court’s error in addressing the merits cannot suffice to transform the
interlocutory transfer order into an appealable collateral order.
The determination of whether an order satisfies the requirements of
the collateral order doctrine must be made by applying the require-
ments to the general category to which the disputed order belongs, not
on a case-by-case basis to every order sought to be appealed. See Van
Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988) ("In fashioning a
rule of appealability under § 1291, . . . we look to categories of cases
. . . ."); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 439 (1985)
("This Court . . . has expressly rejected efforts to reduce the finality
requirement of § 1291 to a case-by-case determination of whether a
particular ruling should be subject to appeal."). Thus, because section
1631 transfers for lack of personal jurisdiction "in the main" do not
satisfy the collateral order doctrine, Van Cauwenberghe, 486 U.S. at
529, the order in this case is not appealable, notwithstanding the fact
that the district court might have made an error that could work to
Carefirst’s disadvantage absent an immediate appeal. See Digital
Equip., 511 U.S. at 868 ("[T]he issue of appealability under § 1291
is to be determined for the entire category to which a claim belongs,
without regard to the chance that the litigation at hand might be
speeded, or a particular injustice averted, by a prompt appellate court
decision." (internal quotation marks, alterations, and citation omit-
ted)); Van Cauwenberghe, 486 U.S. at 529 n.7 ("[W]e refuse to fash-
ion an exception from the general rule of nonappealability for what
petitioner describes as ‘facially apparent reversible error’. . . .).
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III.
Because some review of section 1631 transfer orders based on the
absence of personal jurisdiction is available in the transferee circuit
on appeal from final judgment, such orders are not immediately
appealable under the collateral order doctrine. We therefore dismiss
Carefirst’s appeal for lack of jurisdiction.6
APPEAL DISMISSED;
PETITION FOR MANDAMUS DENIED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
The difficulty with the majority decision is that it does not recog-
nize the difference between a transfer for want of personal jurisdiction
under 28 U.S.C. § 1631, because a plaintiff does not have minimum
contacts with the jurisdiction under International Shoe Co. v. Wash-
ington, 326 U.S. 310 (1945), and a transfer under 28 U.S.C. §§ 1404,
6The district court file for this case was physically transferred to Ken-
tucky upon entry of the transfer order, before Carefirst could file a notice
of appeal. Believing it necessary to preserve its right to appeal the trans-
fer order, Carefirst also filed a petition for writ of mandamus, requesting
that this court order the district court to seek retransfer of the case file
by the Kentucky court. See Wilson-Cook Med., Inc. v. Wilson, 942 F.2d
247, 250 (4th Cir. 1991) (concluding that in cases involving transfers
outside the circuit, jurisdiction is conveyed to the transferee court upon
the physical transfer of the case file); see also TechnoSteel, LLC v. Beers
Constr. Co., 271 F.3d 151, 161 (4th Cir. 2001) (explaining that while the
physical transfer of a case file to a court outside this circuit deprives this
court of jurisdiction to review interlocutory orders that are not immedi-
ately appealable, the physical transfer of a case file does not affect this
court’s jurisdiction over immediately appealable orders). We ordered the
Maryland district court to obtain a copy of the case file, and we consoli-
dated the mandamus action with this appeal. To the extent that any
aspect of the mandamus petition remains pertinent, we find no extraordi-
nary circumstances that would warrant issuance of the writ. See, e.g.,
Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Accord-
ingly, the petition for writ of mandamus is hereby denied.
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1406 for want of or change of venue. In the words of the majority
opinion, referring to "ordinary transfer cases," the decision states it
"can see no reason to strike a different balance in this case." Slip p.
11.
The difference is at once apparent. A want of jurisdiction is a want
of power to adjudicate, whether the same be subject matter jurisdic-
tion under Title 28 of the U.S. Code, or lack of due process under the
Constitution. Want of subject matter jurisdiction under the statutes is
a given lack of power, and there is no argument here in that context.
A lack of jurisdiction for want of minimum contacts under Interna-
tional Shoe Co. is also based on a lack of power of the courts to adju-
dicate. That lack of power is just as real under the Constitution as a
lack of power because of lack of subject matter jurisdiction under the
statutes in Title 28. The Court, in International Shoe, stated the argu-
ment of the State to be that "[i]t thus denies the power of the state to
lay the tax or to subject appellant to a suit for its collection. [Para-
graphing omitted.] Historically the jurisdiction of courts to render
judgment in personam is grounded on their de facto power over the
defendant’s person." 326 U.S. at 316. That principle is stated the same
way in this circuit: "[u]nder current Supreme Court jurisprudence,
despite advances in technology, State judicial power over persons
appears to be limited to persons within the State’s boundaries and to
those persons outside of the State who have minimum contacts with
the State such that the State’s exercise of judicial power over the per-
son would not offend traditional notions of fair play and substantial
justice." ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d
707, 712 (4th Cir. 2002). And the same principle is stated much the
same way in ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 623
(4th Cir. 1997): "[t]he jurisdiction of minimum contacts has devel-
oped as a surrogate for presence in the state because ‘[a] state’s sover-
eignty remains territorial, and its judicial power extends over only
those persons, property, and activities within its borders.’"
So the power of a court to adjudicate is based both on subject mat-
ter jurisdiction and jurisdiction of the parties. No reason exists to have
subject matter jurisdiction subject to plenary review and to have the
jurisdiction of the parties because of a question of minimum contacts
subject only to the lesser standard of abuse of discretion usually pres-
ent in transfers and retransfers under §§ 1404 and 1406. See Moses
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v. Business Card Express, Inc., 929 F.2d 1131, 1140 (6th Cir. 1991);
Lewelling v. Farmers Insurance of Columbus, Inc., 879 F.2d 212, 218
(6th Cir. 1989). In my opinion, a court either has the power to act or
it does not have that power, and I suggest a district court’s decisions
on the existence of that power should be as subject to review in one
instance as in the other.
Interlocutory review under 28 U.S.C. § 1631 was examined by us
in the case of Gower v. Lehman, 799 F.2d 925 (4th Cir. 1986). That
case reasoned that "[t]he district court’s determination that it lacks
jurisdiction cannot be effectively reviewed on appeal to the Federal
Circuit from a final judgment in the Claims Court." 799 F.2d at 927
(italics added). And the case further reasoned that: "[t]he propriety of
some form of interlocutory review seems quite clear if the issue goes
to the power of the district court to make the order it did and only a
question of law is presented." 799 F.2d at 927 (quoting 15 Wright,
Miller & Cooper, Federal Practice and Procedure § 3855 at 475 (2d
ed. 1986)).
The majority opinion devotes much of its content to its justification
of the denigration of the very right of review, making any examina-
tion of lack of power of the district court under examination here
reviewable under an abuse of discretion standard present in ordinary
transfer cases rather than the plenary review which should be
accorded when the very power of a court to act is under examination.
The Second Circuit, in the case of Songbyrd, Inc. v. Estate of Gross-
man, in a similar transfer case from Louisiana to New York, recog-
nized that "[a] transfer order entered because of lack of personal
jurisdiction over the defendant should therefore receive plenary
review." 206 F.3d 172, 179 (2d Cir. 2000). But that court then quali-
fied its own decision by providing that the party opposing the transfer
must first demonstrate at least a high likelihood of a different result
in the two States involved, depending on the transfer.
I suggest that the standard is effective review and that effective
review means plenary review when the question is the power of a dis-
trict court to act. Because the majority opinion would deny that effec-
tive review to Maryland Carefirst, I am of opinion that we should
presently review the decision of the district court as to whether or not
Carefirst of Kentucky had sufficient contacts within the jurisdiction
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of the district court to subject it to the power of that court to decide
the case. I express no opinion on whether or not such minimum con-
tacts exist.
To hold otherwise, as we do here, is the effective insulation, as a
matter of law, from plenary judicial review, of the decision of the dis-
trict court that there were not minimum contacts under International
Shoe and transferred on that account. For example, when the district
court decided there were not minimum contacts, it might have either
transferred the case under § 1631, or it might have dismissed the case
under § 1631. If the district court had dismissed the case, its action
was immediately subject to plenary review in this court. Since the dis-
trict court transferred the case, its action on the same facts in the same
case is subject to review in the Sixth Circuit on a motion for retransfer
only for abuse of discretion. Effective plenary review is precluded. I
do not think Congress had that in mind when it enacted § 1631.
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