Great Northern Railway Co. v. Hyde

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. [538] 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.