holding that it is "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.”
How later courts described this case
- holding that it is "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.”
- setting out the "factors that generally will be relevant to a decision whether to transfer a particular prisoner petition under 28 U.S.C. § 1404(a)" and "the procedures to be followed both in making such a determination in the first instance and in assuring an opportunity for appellate review"
- discussing factors to be considered by courts in determining whether a prisoner lawsuit should be transferred under 28 U.S.C. § 1404 and noting that in many cases litigation in district of plaintiffs place of incarceration, and not Washington, D.C., is appropriate
- holding that “a twenty-day period for a response would be adequate in almost all cases” to allow a prisoner to appeal a transfer order
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge, with whom Chief Judge BAZELON and Circuit Judge SPOTTSWOOD W. ROBINSON, III,
join, concurring in part and dissenting in part:
I concur fully with the opinion filed by Judge McGowan in Starnes v. McGuire.
Although my views generally coincide with the opinion in Small v. Hart, I disagree with the decision to affirm that case without affording petitioner a hearing prior to transfer of his case. Insead of affirming, I would remand for further consideration.
The principle requiring that the petitioner have notice from the court before his case is transferred is indubitable. I deem it requisite that this court reverse for failure to provide such notice. Presumably the court’s affirmance reflects its view that the case should have been transferred. That may be, but that ruling should be made not by this court but by the district court, and by that court only after hearing from both sides. I would have voted to affirm a transfer entered after notice, but I am not prepared to say that the transfer was necessary as a matter of law.
The petitioner was entitled to an opportunity to persuade the district court in the exercise of its discretion to retain the case. After all, the petitioner was in a forum that Congress made permissible. If the petitioner were alerted that the court was considering a transfer of venue, he might have filed a response that *936 did not dwell so much on his individual situation but rather focused on the claim that it was only a particular application of a general national administrative policy fashioned by the Board of Parole.
One might say, what is the possible utility of remanding the case now, since the district judge has made it so clear what he thinks should be done. There is greater wisdom, I think, in our being rigorous to act only when the district court has moved in strict accordance with requisite procedure. This district judge is open-minded enough to change his view, even though publicly announced, if further procedure presents material that leads him to revise his view. *
A disposition without notice is the last place to invoke “harmless error,” or any cognate doctrine. I hesitate to start sliding, backwards, I think, down this slippery slope.
I take note that this district judge, after giving summary judgment to the Government in a case that was reversed and remanded for trial, was persuaded by the material evidenced at trial that he should modify the judgment he previously entered. A Quaker Action Group, Inc. v. Morton, 362 F.Supp. 1161 , (1973).