Fine v. McGuire, 24177.

• Decision Date: 15 May 1970
• Docket Number: No. 24177.,24177.
• Citation: 433 F.2d 499
• Parties: Michael Lawrence FINE, Petitioner, v. The Honorable Matthew F. McGUIRE, United States District Judge, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

433 F.2d 499 (1970)

Michael Lawrence FINE, Petitioner, v. The Honorable Matthew F. McGUIRE, United States District Judge, Respondent.

No. 24177.

United States Court of Appeals, District of Columbia Circuit.

May 15, 1970.

Messrs. Fred R. Joseph, Karl G. Feissner, William L. Kaplan, Thomas P. Smith and Andrew E. Greenwald, Hyattsville, Md., for petitioner.

Messrs. Morton Hollander and Reed Johnston, Jr., Washington, D. C., entered appearances for respondent.

Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.

PER CURIAM:

On April 22, 1970, petitioner filed suit in the district court seeking an order in the nature of mandamus against the director and others in the Selective Service System that he was entitled to a statutory I-S deferment under this Court's decision in Nestor v. Hershey, 138 U.S. App.D.C. 73, 425 F.2d 504 (decided December 16, 1969). On April 23, 1970, the case was transferred by the District Court, sua sponte, and without notice or hearing to the parties, to the District of Maryland where petitioner's local board is located. Petitioner then brought petition in the nature of mandamus in this Court seeking to vacate the transfer. We ordered response to the petition, referring to the question posed by the order of transfer, without any opportunity for hearing, of a complaint similar in its allegations to Nestor.¹

Having considered the moving papers and response, we conclude that the trial court's action in transferring this complaint without hearing is error that requires prompt correction by this court.

The government argues that this court lacks mandamus jurisdiction to review a transfer of venue citing Great Northern Ry. v. Hyde, 238 F.2d 852 (8th Cir. 1956), affd. on rehearing, 245 F.2d 537, cert. denied, 355 U.S. 872, 78 S.Ct. 117, 2 L.Ed.2d 77 (1957). That position is incorrect. Great Northern Ry. was overruled in McGraw Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir. 1965) (en banc). Following an extensive analysis, the Second Circuit has concluded that there is a mandamus jurisdiction "to correct the disposition of a transfer motion by the District Court, even where the District Court has purported to consider proper factors" and that this is the view reflected in the "great majority of recent appellate decisions", A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 443 (2d Cir. 1966). We think the kind of occasion requiring appellate mandamus intervention is presented when there is a transfer without any opportunity for hearing or argument of a complaint that parallels the one this Court held could properly be lodged in the District of Columbia (see Nestor v. Hershey, supra).

The government's answer claims there are facts that distinguish this case from Nestor and may warrant transfer to the District of Maryland. And indeed the District Court's order bears the notation "Nestor case can be distinguished". However, we see no distinction in terms of the allegations of the complaint. If the District Judge acted upon the basis of facts not in the complaint, he had a duty to give the plaintiff an opportunity for hearing and argument, in order that these assumed facts could be duly verified and perhaps explained.

It is appropriate to observe that while the discretion conferred by 28 U.S.C. § 1404(a) is broad it is not untrammeled. That statute provides for transfers to accomplish change of venue "for the convenience of parties and witnesses, in the interest of justice". The Revisers' Note states that the new subsection "requires the court to determine that the transfer is necessary for the convenience of the parties and witnesses" and further that it is in the interest of justice. Although the statutory procedure of transfer is softer than the outright dismissal required by the old doctrine of forum non conveniens, and the statute confers broader discretion on the judge than the older doctrine, it still requires the court to give consideration to the traditional factors, including the plaintiff's choice of forum, Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955). It is fair to suppose that the general contemplation was that transfer under 1404 would be triggered by a motion. This is not to say that a district judge may not initiate consideration of the convenience factor, but ordinarily at least he will not take action unless a party, and that party...