Great Northern Railway Company v. Hyde, 15630.

• Decision Date: 27 June 1957
• Docket Number: No. 15630.,15630.
• Citation: 245 F.2d 537
• Parties: GREAT NORTHERN RAILWAY COMPANY, a corporation, Relator-Petitioner, v. Edward T. HYDE, Plaintiff-Respondent, Honorable Robert C. Bell, Judge of the United States District Court, District of Minnesota, and the Other Judges and Officers of the United States District Court, District of Minnesota, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F.2d 537 (1957)

GREAT NORTHERN RAILWAY COMPANY, a corporation, Relator-Petitioner, v. Edward T. HYDE, Plaintiff-Respondent, Honorable Robert C. Bell, Judge of the United States District Court, District of Minnesota, and the Other Judges and Officers of the United States District Court, District of Minnesota, Respondents.

No. 15630.

United States Court of Appeals Eighth Circuit.

June 27, 1957.

D. E. Engle, St. Paul, Minn. (Edwin C. Matthias and Anthony Kane, St. Paul, Minn., on the brief), for relator-petitioner.

Harry H. Peterson, Minneapolis, Minn. (Eugene A. Rerat, Minneapolis, Minn., on the brief), for plaintiff-respondent and respondents.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Upon the original submission of this application for a writ of prohibition and mandamus, this Court ruled that an order of Judge Bell transferring, under 28 U.S.C. § 1404(a), the case of Edward T. Hyde v. Great Northern Railway Company from the District of Minnesota, where it was brought, to the Northern District of California (where it could have been brought) for trial, was not reviewable under 28 U.S.C. § 1651(a), for an erroneous exercise of discretion. We declined to prohibit the Judge from carrying into effect the transfer order, and refused to command him to transfer the case to the Western District of Washington. 8 Cir., 238 F.2d 852.

Shortly after our opinion was filed, the Supreme Court decided La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290. It held in that case that the United States Court of Appeals for the Seventh Circuit had discretionary and supervisory power under the All Writs Act, 28 U.S.C. § 1651(a), to require Judge La Buy to vacate orders made under Rule 53(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., referring two antitrust cases to a master for trial.

The petitioner in the instant case sought a rehearing upon the ground that the La Buy decision had, in effect, impliedly and inferentially demonstrated that this Court had erred in holding that the transfer order of Judge Bell was not reviewable under § 1651(a). We granted a rehearing, and the case has been reargued.

There is much force in the petitioner's contention that, since the Court of Appeals for the Seventh Circuit had discretionary power to compel Judge La Buy to vacate his orders of reference, for abusing his discretion, this Court necessarily has discretionary power to compel, and should compel, Judge Bell to vacate his order transferring the instant case to the Northern District of California, and to command him to transfer the case to the Western District of Washington.

Just how far the discretionary and supervisory power of a Court of Appeals, under § 1651(a), to deal with transfer orders made under § 1404(a) extends has not as yet been determined. We do not question our power to command the vacation of an order transferring a case to a district to which, as a matter of law, the case was not transferrable. Here we have an erroneous exercise of judicial discretion because the factual situation did not warrant the transfer of the case to the Northern District of California under § 1404(a).

The La Buy case, as the Supreme Court took pains to point out, presented an extreme situation of a District Judge abusing judicial power which "amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation." 352 U.S. at page 256, 77 S.Ct. at page 313.

Here the District Judge has transferred a case for trial to a district in which it could have been brought, but to which, in our opinion, it could not properly have been transferred in view of the surrounding circumstances.

It may be that we are unduly reluctant to undertake the review of discretionary orders of transfer under § 1404(a), involving, as they usually do, controversial fact questions as to where cases can most conveniently and appropriately be tried. If so, we shall hope to be corrected.

Notwithstanding the La Buy decision, we feel justified in adhering to our former views that our power to issue writs under § 1651(a) does not warrant us to command Judge Bell to vacate his order of transfer and to enter an order transferring the case to the Western District of Washington.

Application denied.

JOHNSEN, Circuit Judge (dissenting).

The original opinion in this case, 8 Cir., 238 F.2d 852, held that, under the All Writs Act, 28 U.S.C.A. § 1651(a), a Court of Appeals has power or authority to issue a writ of mandamus or prohibition against a District Judge, only "to compel a District Judge to exercise a jurisdiction which the law has made it his duty to exercise, * * * or to prevent a judge from exercising a power that he clearly does not have". At page 857.

As indicated by the opinion, the panel of judges which rendered the decision was of the view that, if the act involved was a matter which the District Judge legally had power to do or to refuse to do, his action was in no way subject to being touched by a supervisory or auxiliary writ on the part of the Court of Appeals, even though the doing or refusing might otherwise amount to arbitrariness or abuse of discretion on the factual elements of the particular situation.

Hence, the panel refused, because of believed lack of power, to touch an order of the District Judge, made under 28 U.S.C.A. § 1404(a), denying a motion of the defendant for transfer of the case from St. Paul, Minnesota, to Seattle, Washington, and granting instead an alternative motion of the plaintiff "that in the event that the Court determines that the United States District Court, said District of Minnesota, Third Division, sitting at St. Paul, Minnesota, is not a proper venue for the trial of said cause, and only in that event, that the Court make its Order transferring said cause to the United States District Court for the Northern District of California, Southern Division, sitting at San Francisco, California".

The original opinion stated that "we believe that there was no adequate factual or legal basis for the transfer" made to San Francisco, and declared that, "If the order transferring the case were subject to review for an erroneous exercise of discretion, we would not hesitate to reverse the order and direct the District Court to transfer the case to Seattle, where the plaintiff's claim arose and where most of the persons reside who will be called to give evidence at the trial".

But, added the Court, "We are of the opinion, however, that the transfer order is not subject to review by prohibition or mandamus, despite the fact that it is not an appealable order and that an appeal from a final judgment in the case will be an inadequate remedy for the erroneous transfer". At page 855. And in summary it said that "We think that, in the interest of an expeditious, efficient and orderly administration of justice, controversies about venue should be finally settled and determined at the District Court level". At page 857.

On this rehearing of the case, granted after the decision of the Supreme Court in La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, (and in which hearing I have been assigned to take the place of a member of the original panel), the majority of the Court have adhered to the views expressed in the previous opinion, saying: "We do not question our power to command the vacation of an order transferring a case to a district to which, as a matter of law, the case was not transferrable. Here we have an erroneous exercise of judicial discretion because the factual situation did not warrant the transfer of the case to the Northern District of California under § 1404(a). * * * Here the District Judge has transferred a case for trial to a district in which it could have been brought, but to which, in our opinion, it could not properly have been transferred in view of the surrounding circumstances. * * * Notwithstanding the La Buy decision, we feel justified in adhering to our former views that our power to issue writs under § 1651(a) does not warrant us to command Judge Bell to vacate his order of transfer and to enter an order transferring the case to the Western District of Washington."

This, in its effect, is a holding that a Court of Appeals is utterly without power, under the All Writs Act, to touch any order of a District Court, under § 1404 (a), in the field of transfer, whether the order made is one in grant or in denial of a requested venue change, and whether it involves a transfer outside (as here) or within (see Carr v. Donohoe, 8 Cir., 201 F.2d 426) the circuit, save only that the Court may "command the vacation of an order transferring a case to a district to which, as a matter of law, the case was not transferrable".

I believe — certainly as to a transfer made outside the circuit at least, which is the situation here — that this holding of lack of power is in conflict with both the majority opinion and the minority opinion in the La Buy case.

As to our power to consider and correct the clear abuse of discretion, in which all of us on the panel agree that the trial court here engaged in sending the case to San Francisco on the circumstances involved, I do not believe that any possible question can be viewed as existing under the majority opinion of the Supreme Court. And even under the narrower concept of power, than that recognized by the majority, which the minority felt that § 1651(a) should be regarded as allowing a Court of Appeals to exercise, the latter group said: "The focal question posed for a Court of Appeals by a petition for the issuance of a writ is whether the action of the District Court tends to frustrate or impede the ultimate exercise by the Court of Appeals of its appellate jurisdiction granted in some other provision of the law. The answer is clearly in the affirmative where, for example, the order of the District Court...