Scott, In re

• Decision Date: 07 June 1983
• Docket Number: No. 82-2025,82-2025
• Parties: In re Alan Neal SCOTT, Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 717

709 F.2d 717

228 U.S.App.D.C. 278

In re Alan Neal SCOTT, Petitioner.

No. 82-2025.

United States Court of Appeals, District of Columbia Circuit.

Submitted Sept. 2, 1982.

Decided June 7, 1983.

On Petition for Writ of Mandamus (D.C. Civil Action No. 82-01879).

Alan N. Scott, pro se, was on the petition for writ of mandamus.

Stanley S. Harris, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the response.

Before ROBINSON, Chief Judge, WILKEY and GINSBURG, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

Alan Neal Scott, a federal prisoner, filed pro se in the district court a Freedom of Information Act (FOIA) suit against the United States Bureau of Prisons. The district court, sua sponte and without awaiting a responsive pleading or even service of process on the Government, ordered the case transferred to the United States District Court for the Northern District of Georgia. Scott, by petition for a writ of mandamus, seeks our review of the transfer order. We hold that, under the circumstances this case presents, the district court abused its discretion by acting instantly and sua sponte, and by relying on an improper factor in ordering the transfer. We therefore grant Scott's petition, vacate the transfer order, and remand the case to the district court.

I. BACKGROUND

Scott, while incarcerated in a federal correctional institution in Tennessee, filed with the Regional Director of the Bureau of Prisons in Atlanta, Georgia, a FOIA request seeking information about himself. The Bureau granted Scott's request in part, but denied him access to a presentence report and to psychiatric records. Scott filed timely but unsuccessful appeals with the Director of the Bureau of Prisons and with Attorney General Smith, both in Washington, D.C. Having exhausted his administrative remedies, he commenced this action, Scott v. McCune, C.A. No. 82-1879 (D.D.C. filed July 6, 1982), seeking disclosure of the withheld documents and other relief, and naming as defendants the Attorney General and Director and Regional Director of the Bureau.

Two days after the filing of Scott's complaint, the district judge, acting sua sponte, directed Scott to show cause why the case should not be transferred to the Western District of Tennessee. Scott filed a detailed response. He amended his complaint, pursuant to Fed.R.Civ.P. 15, to show that venue was proper in the District of Columbia under 5 U.S.C. Sec. 552(a)(4)(B), and to clarify that he challenged the Department of Justice's administrative review procedures as well as the Regional Director's partial denial of his FOIA request. ¹ Scott also argued that venue was improper in Tennessee and that transfer to any other district was unwarranted. ²

The district court vacated its initial show cause order and issued a second order, this time directing Scott to show cause why the case should not be transferred to the Northern District of Georgia, the location of the Regional Director's office. In response, Scott amended his complaint to dismiss the Regional Director as a party and adopted by reference his answer to the earlier show cause order. The district court thereupon entered an order directing transfer of Scott's action to the Georgia court; the sole reason stated for the transfer was that Scott had failed to file an "adequate response" to the show cause order. ³ Scott then filed with this court a petition for a writ of mandamus to vacate the transfer order.

Because we were unable to discern the basis for transfer with reasonable certainty, we deferred action on Scott's petition, retained jurisdiction, and remanded the record to the district court for a statement of reasons. See In re Pope, 580 F.2d 620, 623 (D.C.Cir.1978). ⁴ On remand, the district judge reported that he had ordered Scott's case transferred because the "very large number of forma pauperis cases ... filed [in this Circuit] by prisoners from all over the country ... are a considerable burden on the Judges of the District Court ...." ⁵ We conclude that the explanation supplied does not justify rejecting Scott's forum choice.

II. ANALYSIS

The remedy of mandamus, although "a drastic one, to be invoked only in extraordinary circumstances," Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189, 66 L.Ed.2d 193 (1980), is available on rare occasions to review transfer orders. Because the broad discretion conferred by 28 U.S.C. Sec. 1404(a) is not untrammeled, Fine v. McGuire, 433 F.2d 499, 501 (D.C.Cir.1970), we have entertained petitions for mandamus upon allegations that the district judge lacked power to order a transfer, Relf v. Gasch, 511 F.2d 804, 808 (D.C.Cir.1975) (transfer to court of improper venue), failed to follow procedures appropriate to the case in considering a transfer motion, Fine v. McGuire, 433 F.2d at 501-02 (failure to provide a hearing), or considered an improper factor in evaluating the merits of the motion, Jones v. Gasch, 404 F.2d 1231, 1242 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968); see Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 244-45, 84 S.Ct. 769, 771-72, 11 L.Ed.2d 674 (1964). ⁶ Scott's allegations--that transfer was to a court of improper venue and that the district court considered an improper factor--are of the kind that qualify under our case law for mandamus review. ⁷

We consider first the threshold question whether the district court lacked power to transfer the action to the Northern District of Georgia. The transfer provision, 28 U.S.C. Sec. 1404(a), states: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." (Emphasis supplied.) This provision expressly requires that the transferee court be a place of proper venue. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Scott argues that venue does not lie in the Georgia court, hence our district court was without power to transfer the case there.

Venue is proper under 5 U.S.C. Sec. 552(a)(4)(B), the applicable FOIA venue provision, in any district in which "the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia." Because Scott does not reside or have a place of business in Georgia, venue is proper in the proposed transferee court only if it is the district in which the agency records are located. At this time, we cannot say with complete certainty that the relevant records are located in Georgia. Scott contends that they are not ⁸ and the Bureau of Prisons, the party apparently best equipped to inform the court of the records' location, did not participate in the district court proceeding. Should the district court determine on remand, and after a precise Government response, that the records are indeed situated in the Northern District of Georgia, it will have the power, pursuant to section 1404(a), to transfer the case to that district.

But even if it were crystal clear that the relevant records are located in Georgia, this case would present the further question whether the district court abused its discretion in ordering a transfer of Scott's complaint sua sponte and for the reason stated. As we noted above, there are limits to the broad discretion accorded courts under section 1404(a). The Reviser's Note to the section states that a change of venue under the provision "requires the court to determine that transfer is necessary for the convenience of the parties and witnesses, and further, that it is in the interest of justice to do so." In reaching its decision, a court must give due regard to the factors traditionally associated with the doctrine of forum non conveniens, including the plaintiff's choice of forum under the limited options venue statutes offer the initiator of litigation. See Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955).

Because Scott's complaint is grounded in the FOIA, his venue selection of the District of Columbia has particular significance. Section 552(a)(4)(B) reflects an express congressional design to render the District of Columbia an all-purpose forum in FOIA cases. In 1974, Congress added the District of Columbia to the list of fora in which a FOIA complaint might be brought. Pub.L. No. 93-502, Sec. 1(b)(2) (November 21, 1974), amending 5 U.S.C. Sec. 552(a)(3) (1970). Congress did so for two reasons: first, to provide plaintiffs with an opportunity to bring complaints in a court which has "substantial expertise" in working with the FOIA; second, to provide a forum convenient to the defendant "since attorneys in the Justice Department in Washington, D.C., will have been involved in initial FOIA determinations at the administrative level." S.Rep. No. 854, 93d Cong., 2d Sess. 12-13 (1974); see East Tennessee Research Corp. v. TVA, 416 F.Supp. 988, 989, vacated, 424 F.Supp. 1329 (D.D.C.1976) (voluntary dismissal). Both reasons are implicated in this case. Scott filed here for the express purpose of having a court in this jurisdiction hear his complaint; the agency's attorneys, from all indications, are based in the District. The district judge, therefore, should have accorded Scott's forum choice substantial weight. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947); A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 444 (2d Cir.1966).

With Scott's forum choice and the FOIA policy providing for venue in the District of Columbia firmly in mind, we turn to the district court's reason for transfer. We note initially that the district judge acted sua sponte and without indication from any interested party that this forum would be inconvenient. The broad language of section 1404(a) would seem to permit a court to order transfer on its own...