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11/08/74 William Rodger Starnes, v. Honorable Matthew F.

November 8, 1974







On Rehearing En Banc.


Bazelon, Chief Judge, Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb, and Wilkey, Circuit Judges, sitting en banc. Leventhal, Circuit Judge, with whom Chief Judge Bazelon and Circuit Judge Robinson join, concurring in part and dissenting in part.


Opinion for the Court by Circuit Judge McGOWAN.

Opinion filed by Circuit Judge LEVENTHAL, in which Chief Judge BAZELON and Circuit Judge ROBINSON join, concurring in part and dissenting in part. McGOWAN, Circuit Judge:

These cases, heard together en banc, involve in each instance a petition by a federal prisoner for a writ of mandamus compelling vacation of a District Court order transferring the underlying case to the district of the prisoner's place of confinement. At issue is the propriety of the exercise of authority granted in 28 U.S.C. § 1404(a):

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 may have been brought.

Our en banc consideration was prompted by a seeming need to define with greater precision, if possible, the scope of our decision in Young v. U.S. Bureau of Prisons, et al., 125 U.S. App. D.C. 105, 367 F.2d 331 (1966). The District Court frequently has occasion to apply Young, and it is a matter of obvious importance, Rule 35(a), F.R.A.P., that both we and the District Court be correct -- and, as nearly as possible, at one -- in our interpretations of the purposes and reach of Section 1404(a), and in our concepts of the procedures appropriate for its implementation.

For the reasons stated hereinafter, we find that we are without jurisdiction to consider the petition in No. 73-1034; and we deny the petition on its merits in No. 73-1827. I

Young was one of two cases before the court on motions for leave to prosecute appeals without prepayment of costs filed by two inmates of the Federal Penitentiary in Lewisburg, Pennsylvania, who had brought separate declaratory judgment actions against federal officials in the District Court. One of the inmates, Young, had sued the Director of the Bureau of Prisons and the Chairman of the Board of Parole, asking that the time he spent on parole before being recommitted as a parole violator be credited against his sentence. The other inmate, Rossello, had sued the Board of Parole, complaining of delay in the issuance and execution of a parole violator warrant. In the case of Young, the District Court granted a motion to dismiss the complaint on its merits. *fn1 In the case of Rossello, the District Court granted a motion under Section 1404(a) to transfer the case to the Middle District of Pennsylvania.

On appeal we said that Rossello squarely posed the issue whether the District Court was obligated "to entertain declaratory judgment actions brought by inmates not confined in the District of Columbia, not sentenced in the District of Columbia, and seeking resolution of issues in no way related to this jurisdiction . . ." We held that, in light of the 1962 amendment to the venue statute, 28 U.S.C. § 1391(e), our decisions prior to that amendment did not preclude transfer to the district of confinement under Section 1404(a) and that, "absent extraordinary circumstances which we need not today delineate, such actions should ordinarily be transferred as a matter of course."

We noted several reasons why we thought this course to be "in the interest of justice." The first was that the transfer is responsive to the Congressional purpose underlying the 1962 amendment. *fn2 Secondly, we considered such transfer to be desirable as a practical matter "since, if an evidentiary hearing is necessary to resolve disputed issues of material fact, the inmate will be readily available." Our third stated reason was that transfer will discourage duplicative litigation and will relieve the D.C. courts of the unnecessarily onerous task of deciding cases brought "by a prisoner incarcerated far away from Washington, D.C., and based on events alleged to have taken place in distant parts of the country" (citing and quoting from Phillips v. United States, 122 U.S. App. D.C. 235, 352 F.2d 711, 716 (1965)). We concluded by saying (at p. 333 of 367 F.2d):

"Hereafter, if such cases are instituted in this jurisdiction, the pleadings are to be preliminarily examined to determine whether any compelling reason requires the matter to be litigated here. If no such reason appears, transfer of the case to the district of confinement would be in order. [Note 7, quoted above]. While there may be exceptional circumstances which would warrant retention of jurisdiction, it seems to us that such cases would be rare."

We disposed of Rossello's motion to proceed in forma pauperis on the ground that his claim that the District Court abused its discretion in transferring the case to Pennsylvania was frivolous. As for Young, we said only that "we discover no extraordinary circumstances that would require his action to be litigated here," and we therefore granted his appeal in forma pauperis, vacated the District Court's judgment on the merits, and remanded with instructions that the case be transferred to Pennsylvania. II

Our disposition of one of the two petitions for mandamus presently pending before us en banc does not involve consideration of the merits of the transfer under Section 1404(a). On September 2, 1972, Starnes, a federal prisoner at Leavenworth, filed a pro se complaint against the Board of Parole in the District Court for the District of Columbia challenging the constitutionality of 18 U.S.C. § 4205, *fn3 and moved to convene a three-judge court. On October 16, the Board filed (and mailed to the plaintiff) a motion to transfer the action to the District Court for Kansas -- the court in the place of the plaintiff's confinement. Plaintiff filed his pro se opposition to the motion to transfer on October 27, and three days later Judge McGuire entered an order directing transfer. On November 15, the Clerk of the District Court transferred the original papers to the District Court for Kansas. *fn4 The District Court of Kansas dismissed the case, on motion of the Board, on January 4, 1973. Five days later a motions division of this court ordered filed plaintiff's petition for a writ of mandamus compelling vacation of the transfer order. *fn5

A panel of this court, although characterizing the transfer as error, subsequently concluded that this court could provide no relief to Starnes for the reason that his case had been decided on the merits by the District Court in Kansas, and that the proper forum for review of that action was by appeal to the Tenth Circuit. Examining this state of affairs en banc and with the panel opinion vacated, we find that we are without jurisdiction to consider the subject matter of the petition for mandamus.

Although it is well established that a transferee court cannot directly review the transfer order itself, Illinois Tool Works v. Sweetheart Plastics, 436 F.2d 1180 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S. Ct. 2270, 29 L. Ed. 2d 722 (1971); Purex Corp. v. St. Louis Nat'l Stockyards, 374 F.2d 998 (7th Cir.), cert. denied, 389 U.S. 824, 19 L. Ed. 2d 77, 88 S. Ct. 59 (1967); Preston Corp. v. Raese, 335 F.2d 827 (4th Cir. 1964); In re Southwestern Mobile Homes, Inc., 317 F.2d 65 (5th Cir. 1963), it is equally clear that physical transfer of the original papers in a case to a permissible transferee forum deprives the transferor circuit of jurisdiction to review the transfer. *fn6 Farrell v. Wyatt, 408 F.2d 662, 664 (2d Cir.), motion for leave to file petition for writ of mandamus denied, 396 U.S. 810, 90 S. Ct. 145, 24 L. Ed. 2d 122 (1969); In re Southwestern Mobile Homes, supra ; Drabik v. Murphy, 246 F.2d 408 (2d Cir. 1957); cf. A. C. Nielsen Co. v. Hoffman, 270 F.2d 693 (7th Cir. 1959).

Occasionally informal procedures may be employed to return a case to the transferor circuit for review of the order, see Fine v. McGuire, 139 U.S. App. D.C. 341, 433 F.2d 499, 500 n. 1 (1970); Preston Corp. v. Raese, 335 F.2d 827, 828 (4th Cir. 1964). Nevertheless, the appropriate course of action when physical transfer has already taken place at the time the petition for mandamus is filed is a new proceeding seeking retransfer in the transferee court, which may be reviewed by the transferee circuit. See Hoffman v. Blaski, 363 U.S. 335, 4 L. Ed. 2d 1254, 80 S. Ct. 1084; D'Ippolito v. American Oil Co., 401 F.2d 764 (2d Cir. 1968).

This state of the law makes it essential that procedures be adopted and observed that will provide plaintiffs a fair opportunity to seek review in the transferor circuit prior to the physical transfer of the record. It is also true, however, that this court has lost jurisdiction of Starnes' case by its physical transfer to a forum to which transfer was possible under 28 U.S.C. §§ 1404(a) and 1391(e). *fn7 III

On May 24, 1973, petitioner Small, an inmate at Leavenworth under a sentence imposed by the District Court in Colorado, filed in the District Court here a petition pro se for mandamus against the United States Board of Parole. The petition alleged that the reasons given for the Board's revocation of Small's parole and refusal to reparole him were constitutionally inadequate and arbitrary, and that the Board had failed to consider relevant evidence. The primary relief sought by the petition was an order directing that Small be reparoled.

On May 29, 1973, Judge Hart sua sponte ordered the case transferred to the District Court for the District of Kansas -- the place of petitioner's confinement. On June 11, plaintiff filed a motion for stay of the order (mailed June 3), which motion was denied July 13. It appears that sometime between July 13 and July 24, Judge Hart ordered that physical transfer of the case be stayed. On July 24, plaintiff moved for reconsideration of the July 13 order; this motion was denied on July 25. *fn8

Meanwhile, this court had received, on June 19, a motion to file in forma pauperis a petition for writ of mandamus compelling vacation of the transfer order. This motion was filed on June 26. On July 27, with the physical transfer still delayed pursuant to the direction of Judge Hart, this court granted leave to file a petition for writ of mandamus in forma pauperis, ordered the petition docketed, and entered an order staying the District Court's transfer order. The petition alleges that there is no reason for transfer, that there are affirmative reasons not to transfer, and that the transfer order was an abuse of discretion.

Petitioner correctly notes that our decision in Young does not eliminate the need for an examination of the facts of each case prior to any decision on whether transfer should be ordered under 28 U.S.C. 1404(a). See Van Dusen v. Barrack, 376 U.S. 612, 622, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960); Fine v. McGuire, 139 U.S. App. D.C. 341, 433 F.2d 499 (1970); Nestor v. Hershey, 138 U.S. App. D.C. 73, 425 F.2d 504 (1969). When the federal officers named as defendants are to be found within the District of Columbia for purposes of personal jurisdiction, venue is properly laid here under Section 1391(e). Transfer elsewhere under Section 1404(a) must, therefore, be justified by particular circumstances that render the transferor forum inappropriate by reference to the considerations specified in that statute.

Absent such circumstances, transfer in derogation of properly laid venue is unwarranted. Our statement in Young that "absent extraordinary circumstances . . . such actions should ordinarily be transferred as a matter of course," was merely a recognition of the fact that many, if indeed not most, petitions filed by prisoners not confined in the District of Columbia and not sentenced here originally, will tend to involve factors that make transfer to the place of incarceration appropriate. One of these factors, specifically mentioned in Young, is the availability of witnesses, including the availability of the prisoner himself when his testimony, as is often the case, is essential.

Small now characterizes on appeal his original petition in the District Court for a writ of mandamus against the Board of Parole as challenging only an alleged national policy of not providing any reasons whatsoever for revocation of parole: "Thus, he is attacking a general policy made and implemented by the Parole Board which is located here in Washington. Litigation of his case will involve no evidentiary issues concerning his own incarceration, release to the Colorado authorities, return to Federal prison, or rehabilitation while in prison." (Petitioner's brief at 11-12). The petition filed with Judge Hart, however, is at odds with this characterization, and is phrased so as to suggest that the full development of the facts requisite to the giving of the relief explicitly sought would, if indeed that relief is available at all, certainly require witnesses who are more easily available in Kansas.

The record indicates that Small, while on federal parole from Leavenworth to serve a sentence under a Colorado conviction for a confidence game, was convicted of two state offenses in Colorado while at liberty on a state appeal bond. One was driving while intoxicated, for which he appears to have served some time in jail; and the other was aggravated robbery, for which he served two years and eight months in state prison. In his petition, Small recited that he had been given a full parole revocation hearing at Leavenworth, Kansas. In his petition, he described that hearing as follows:

At the parole revocation hearing petitioner applied for immediate reparole. In support of such application, he requested consideration of (1) the length of incarceration under the intervening sentences, a period of 13 months in jail, and 2 years 8 months in state prison; (2) the punitive consequences of the detainer upon his status, opportunities for rehabilitation, mental outlook, and ability to prepare for a return to society; (3) his record as a prisoner during the intervening incarceration; and (4) his parole plans. Documentary evidence supporting this application for reparole included [listing evidence submitted to the parole revocation-reparole hearing].

He further recited that he was given a statement of reasons which consisted of a reference to his two Colorado convictions as the grounds for the parole revocation.

Small's contentions and plea are summed up in two places in his petition. In a section entitled ...

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