(dissenting).
An en banc hearing as one of three oral arguments and two briefings, on each side, is quite enough of this case. Several serious matters of policy and principle, however, concerning mandamus, impel me to expand this dissent and express my views on some broader aspects of the majority opinion. This entire episode illustrates problems following in the wake of generously encouraged repetitive invocations of mandamus.
I would have allowed the respondent Judge’s motion to dismiss the Railroad’s second petition for a writ of mandamus, and rested my determination on the reasons expressed in this dissent.
A major point of my divergence, from the majority opinion, is stressed by tracing, chronologically, the various stages through which this matter passed after suit was filed, September 13, 1952, in the Superior Court of Cook County, Illinois. Petitioner here, defendant-Railroad, removed the case from that State court, October 6, 1952, to the district court below. Four days later petitioner invoked 28 U.S.C.A. § 1404(a) and moved for a transfer to one of two districts in Iowa, the Eighth Circuit. Objections to petitioner’s motion were interposed, June 12,1953, on behalf of the plaintiff-widow-administratrix. It was respondent’s order, entered eight days later, which stimulated the Railroad’s first petition for a writ of mandamus to compel the transfer, and that resulted in an opinion reported as Chicago, R. I. & P. R. Co. v. Igoe, 7 Cir., 1954, 212 F.2d 378.
On remand ordered April 20, 1954, the basic factual showing remained unaltered, save in one respect hereinafter mentioned, and remarkably similar to-that outlined in Judge Lindley’s opinion, 212 F.2d 378 and now narrated in the Chief Judge’s opinion. Confronted with the same papers originally tendered him by the Railroad and plaintiff’s objections, by then implemented with her affidavit (filed June 24, 1954) concerning change of residence to Illinois sometime in May-June, 1953, respondent again denied this transfer.
At this juncture, and parenthetically at least, I recall marginal note 2 of Chicago, R. I. & P. R. Co. v. Igoe, 7 Cir., 1954, 212 F.2d 378, 379, viz.:
“Respondent’s answer to the petition avers that plaintiff, prior to June 30, 1953, the date petitioner’s motion was denied, had moved to, and was a resident of the Northern *306District of Illinois, and on the basis of this averment denies the allegation of the petition that all witnesses to be called by either party are residents of the Southern District of Iowa. It was conceded on oral argument that plaintiff was not a witness to the accident which caused the death of her decedent. On November 30, 1953, over petitioner’s objection, respondent granted a motion that a statement as to this change of residence be certified to this court. Inasmuch as that fact was not before respondent when he denied petitioner’s motion to transfer, it is not properly before us now and we do not consider it. General Portland Cement Co. v. Perry, 7 Cir., 204 F.2d 316.”
Judge Igoe, as part of his second denial, filed the following memorandum:
“In compliance with the mandate of the Circuit Court of Appeals in Chicago, Rock Island and Pacific Railroad Company v. Igoe, 7 Cir., 212 F.2d 378, the order heretofore entered in this matter denying the transfer of the above cause has been vacated and further consideration has been given to the petition for transfer heretofore filed herein, as well as to all of the pleadings in this matter, including affidavits filed by both parties thereto since the cause has been remanded.
“Upon consideration of all of the papers now on file in this case, I have reached the conclusion that it would not be for the convenience of the parties and witnesses, nor in the interest of justice to transfer this case to either of the Iowa Districts requested in the petition of the defendant.”
I also think the District Judge is entitled to have repeated the following representation made in his answer,- and behalf, by his counsel:
“Respondent further states that he has faithfully discharged the discretion which the orderly administration of justice requires.”
Now, the majority devotes part of their opinion to what “we intended to say” and “thought we clearly delineated * * *” in Chicago, R. I. & P. R. Co. v. Igoe, 7 Cir., 1954, 212 F.2d 378. Yet I find it difficult to so easily dilute the impact of Judge Lindley’s final passage:
“Ultimate decision on that motion is within the province of the District Court, and we cannot, as petitioner would have us do, usurp its function and decide the question in this court.’’ Ibid, 382; italics added.
The Railroad’s first petition for mandamus, then pending before the panel which approved that specific closing paragraph, sought precisely the same relief now granted, after petitioner’s persistent efforts. Having announced we had “power,” the writ was neither expressly granted nor denied. Facing up to realities, it seems to me the trial judge was simply given a second chance. Since he made the wrong choice on the second round, which incidently was the same ruling precipitating remand, the writ issues.
Discretion, vested in the District Judge is the nub of this matter. Secret motives of either set of litigants, or their counsel are irrelevant — the trial judge stands alone. For that reason I disclaim the majority’s statement, i. e., “ * * * we feel there is no inconsistency between this opinion and our previous opinion in this ease.” It is hardly sound justification for currently usurping the District Judge’s function and deciding the question in this court, to say we were, at first, concerned solely with enunciating the existence of our “power.” Regardless of how it is articulated, I think we now usurp, where once we refrained. Either the remand order gave the District Judge a Hobson’s choice, or it left him with discretion. Nor can the inconsistency be dispelled by simply pointing up a sentence lurking in the first opinion, 212 F.2d 378, 381, viz.: “However, this opinion deals with the existence of power only, not with the permissible limitations on its exercise.” For I find it difficult to conclude that the following portion of *307Judge Lindley’s opinion is merely dictum, if “power” was the sole decision point:
“We adhere to the Dairy Industries decision and remand the cause to the District Court with directions to vacate the order denying the transfer and to reconsider petitioner’s motion in the light of the views expressed herein.” 212 F.2d 378, 382; italics added.
The “views” concerned § 1404(a); and the District Judge reconsidered. Nowhere in its opinion has the majority shown why the writ did not issue the first time. I hardly think remand was ordered as a veiled threat predicated upon an announcement that we had power to issue the writ.
I think we should come to grips with the core issue — abuse of discretion, its existence or non-existence. If we are substituting our discretion for that of respondent we ought to say so and be done with it. We have no business, as I view it, balancing conveniences of the parties, and speculating upon their motivations.
Just how “society in general” merits consideration on a motion to transfer escapes me. That the words found in § 1404(a) “ ‘in the interest of justice’, must be given paramount consideration” is an unsupported view of a district court speaking in Greve v. Gibraltar Enterprises, Inc., D.C.D.N.M.1949, 85 F.Supp. 410, 413. But if that epitomizes § 1404 (a) then certainly it is a sweeping and elastic criteria. Respondent had a broad range of discretion under that prong of § 1404(a), even in light of the majority’s reasoning.
What chiefly emerges from the repertory of ideas expressed in the majority’s opinion is not a demonstration of discretion abused below, but rather a sliding-scale of judgment values between reviewing tribunal and trial court.
My additional views coincide with those expressed by Judge Goodrich, speaking for a unanimous court in All States Freight v. Modarelli, 3 Cir., 1952, 196 F.2d 1010, 1011-1012:
“The second danger which threatens the usefulness of Section 1404 (a) comes from the appellate courts. It is settled in this Circuit and elsewhere that an order either making a transfer or refusing a transfer is not appealable. Now the effort is being made both in this court and elsewhere to substitute for appeal a review by mandamus whenever the losing party on a motion to transfer wants an advance review of the ruling on this point.
“We think that this practice will defeat the object of the statute. Instead of making the business of the courts easier, quicker and less expensive, we now have the merits of the litigation postponed while appellate courts review the question where a case may be tried.
“Every litigant against whom the transfer issue is decided naturally thinks the judge was wrong. It is likely that in some cases an appellate court would think so, too. But the risk of a party being injured either by the granting or refusal of a transfer order is, we think, much less than the certainty of harm through delay and additional expense if these orders are to be subjected to interlocutory review by mandamus.
“We do not propose to grant such review where the judge in the district court has considered the interests stipulated in the statute and decided thereon. * * * ”
Our mandamus power is not a muscle which requires exercise to maintain its vitality. More slides into abdication, today, than a mere order of transfer finally wrested from our court.