(dissenting).
With due deference, I feel compelled to again dissent in this case from the action taken by my two distinguished colleagues on this court.
This case was first before us on a petition for writ of mandamus directed to Chief Judge Casper Platt of the United States District Court for the Eastern District of Illinois. The writ was ordered issued by a divided court on February 27, 1963, as reported in 314 F.2d 369.
In my dissent to that decision, I agreed with the majority that the district court, in passing on petitioner’s motion to transfer the case to the District of Minnesota, under Rule 21(b), Federal Rules of Criminal Procedure, 18 U.S.C.A., should not consider whether “it would be more difficult to get a fair and impartial jury in the Minnesota District than in the Eastern District- of Illinois.”
Otherwise, I felt the majority erred in the other aspects of its decision.
The Supreme Court, by unanimous vote, reversed and remanded the cause to our court “with instructions to vacate the judgment of the District Court and to remand the case for reconsideration of the motion for transfer, without reference to the ability of the United States to receive a fair and impartial trial in Minnesota.” Platt v. Minnesota Mining Co., 376 U.S. 240, 246, 84 S.Ct. 769, 772, 11 L.Ed.2d 674 (1964). Mr. Justice Harlan concurred in a separate opinion.
In reversing our court, the Supreme Court, speaking through Mr. Justice Clark, said:
“The function of the Court of Appeals in this case was to determine the appropriate criteria and then leave their application to the trial judge on remand. Extraordinary writs are ‘reserved for really extraordinary causes/ Ex parte Fahey, 332 U.S. 258, 260 [67 S.Ct. 1558, 1559, 91 L.Ed. 2041] (1947), and then only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is it's duty to do so.’ Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 [63 S.Ct. 938, 941, 87 L.Ed. 1185] (1943). Here, however, the Court of Appeals undertook a de novo examination of the record and itself exercised the discretionary function which the rule commits to the trial judge. This the court should not have done since the writ cannot be used ‘to actually control the decision of the trial court.’ Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 [74 S.Ct. 145, 148, 98 L.Ed. 106] (1953).” Id. at 245, 84 S.Ct. at 772. The Supreme Court further said:
“Since the trial court must reconsider the motion, effective judicial administration requires that we comment upon the erroneous holding of the Court of Appeals that criminal defendants have a constitutionally based right to a trial in their home districts. * * * The fact that Minnesota is the main office or ‘home’ of the respondent has no independent significance in determining whether transfer to that district would be ‘in the interest of justice/ although it may be considered with reference to such factors as the convenience of records, officers, personnel and counsel.” Id. at 245-246, 84 S.Ct. at 772.
The Supreme Court observed that the Government has not “challenged the use of the extraordinary writ of mandamus as an appropriate means to review the refusal to transfer” and for that reason did not consider that question or express any opinion thereon. Id. at 244, 84 S.Ct. at 772.
Mr. Justice Harlan stated that while the action of the majority in our court reflected a strong view that the transfer should be granted, yet “such action cannot well be regarded as other than a de novo determination of the change of venue motion on the part of the Court of Appeals. Such a course inescapably contravenes accepted principles governing *688the exercise of appellate jurisdiction.” Id. at 246, 84 S.Ct. at 773.
In due course, the matter was remanded to the district court, as directed by the Supreme Court.
Judge Platt held a further hearing on the petition to transfer on May 28, 1964 and on June 30, 1964 again denied the transfer to the District of Minnesota, because he “was not satisfied that petitioner had established that the ‘interest of justice’ would be promoted by the requested transfer.”
Minnesota Mining and Manufacturing Company again filed in this court a petition for a writ of mandamus directing the transfer to the District of Minnesota. The same panel of three judges of our court which heard the prior mandamus petition was designated to rehear this second one. A majority voted to issue a Rule to Show Cause directing Judge Platt to answer the petition for writ of mandamus.
I voted to deny the issuance of the rule and further to dismiss the petition.
Thereafter, Judge Platt filed his answer to the rule. In the interest of clarity, I have appended Judge Platt’s answer as an Appendix to this dissent.
The matter came on for oral argument before the assigned panel of three judges. Again, I am compelled to dissent from the majority holding that the writ of mandamus will issue directing Judge Platt “(1) to vacate and set aside the order entered by him on June 30, 1964 * * * and (2) enter an order transferring said cause to the United States District Court for the District of Minnesota. * * *”
I dissent for the following reasons:
(1) In my judgment, as shown in his answer to the Rule to Show Cause and in his order under review, Judge Platt has fully complied with the decision of the Supreme Court, 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674, and with our order on remand. He did not in any sense abuse the discretion vested in him. He did reconsider the motion to transfer in the light of proper criteria.
(2) I read the majority opinion as being in conflict with the decision of the Supreme Court, in that the majority again, in my judgment, has considered the case de novo and made its own determination of the motion to transfer,
(3) The “other relevant facts” appended in footnote (3) of the opinion are a verbatim copy of a part of petitioner’s brief filed in this appeal (except for record references, substitution of “petitioner” for “defendant,” and a few minor deletions), beginning on page 5 and ending on page 10, and except for a portion of the final sentence in the footnote. Thus, the majority opinion not only makes de novo findings but accepts them as found by petitioner in its brief.
(4) The majority opinion improperly orders the case transferred to the District of Minnesota. In my judgment, we have no authority to enter such an order as an appellate tribunal. If I read the decision of the Supreme Court correctly, it held this was not our function.
(5) Finally, I think the majority erred in entertaining this petition for an extraordinary writ and issuing a Rule to Show Cause. It appears to me that a second interlocutory review of a discretionary order in this case is unwise and unsound judicial administration. In light of the experience of this court in recent months, I adhere to the view that repetitive invocations of mandamus are improperly becoming a way of appellate life.
Judge Platt entered his first order denying the requested transfer on August 31, 1962. It now appears that the forum in which this important criminal case will be tried may not even be determined until almost three years after the change was first requested. This is not to speculate on when it may finally come to trial.
As noted in my prior dissent, 314 F.2d at 378, my Brother Castle expressed somewhat similar views in his. dissent in Chesapeake & Ohio Railway Company v. Parsons, 7 Cir., 307 F.2d 924, 926-928 (1962). Certiorari in that case had been granted. Subsequently, this decision was reversed by the Supreme Court. Parsons *689v. Chesapeake & O. R. Co., 375 U.S. 71, 84 S.Ct. 185, 11 L.Ed.2d 137 (1963), and thereby another mandamus proceeding went awry.
As Mr. Justice Clark said, supra, “Extraordinary writs are ‘reserved for really extraordinary causes,’ * * * and then only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ 376 U.S. at 245, 84 S.Ct. at 772. I do not think this is such an “extraordinary cause.” I do think this is a good case in which we might properly limit what I believe to be a misuse of this extraordinary writ.
I would deny the petition for a writ of mandamus and order it dismissed.
APPENDIX
In the United States Court of Appeals for the Seventh Circuit
No. 14725
MINNESOTA MINING AND MANUFACTURING COMPANY, Petitioner v. THE HONORABLE CASPER PLATT, CHIEF JUDGE, UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF ILLINOIS, Respondent.
On Petition for a Writ of Mandamus
ANSWER TO THE RULE TO SHOW CAUSE
I, Casper Platt, Chief Judge of the United States District Court for the Eastern District of Illinois, answer the rule to show cause issued by this Court as follows:
My order of June 30> 1964, in the case of United States, v. Minnesota Mining & Mfg. Co., Criminal Action No. 61-73-D, was made after a hearing held on May 28, 1964, for the purpose of determining whether the case should be transferred to the District of Minnesota upon motion of the defendant (petitioner) under Rule the Federal Rules of Criminal Procedure. After examining all the rele- vant factors and considering the argu- ments of counsel, I was not satisfied that petitioner had established that the “in- terest of justice” would be promoted by the requested transfer and therefore de- nied petitioner’s motion. In reaching
In rerachingthat result I considered the various opinions on the previous transfer motion in this case, i. e., the opinion of the Supreme Court dated March 9,1964; the opinion of this Court this Court *690dated February 27, 1963; and my memorandum opinion and order of August 31, 1962. I also reconsidered the record developed on the previous transfer motion, including the affidavits introduced by both sides. In addition, I considered the supplemental affidavits introduced at the proceeding on the instant transfer motion.
As ordered by the mandate of this Court dated April 21, 1964, I gave no weight to the ability of the United States to receive a fair and impartial trial in Minnesota.
The reasons why I denied transfer have already been spelled out in my answer to the previous rule to show cause. I reiterate and reincorporate those reasons into this answer (except for the fair trial point which I ignored in deciding the present motion): I gave consideration to all factors urged by petitioner and found several which militated against transfer. It appeared to me that the trial of the case would be delayed at least a year by the transfer, and the Government avowed a speedy trial was essential because some of the petitioner’s competitors are in financial straits owing to petitioner’s alleged conduct and to the fact that petitioner has refused to halt its allegedly illegal activities; that the Government’s witnesses may be inconvenienced if forced to travel to the northern city of St. Paul, Minnesota; that the Government’s documents are already in Danville in the custody of the Clerk of the Court and would have to be transported to St. Paul; and that transfer would increase the Government’s expense because its witness fees would be greater, as would the cost of transportation of the Government’s staff. It further appeared to me that petitioner has operated on a nationwide scale in its business of licensing and selling in the industries here involved; that there is support for the Government’s avowal that petitioner’s overt acts have substantially affected the residents of the Eastern District of Illinois; that this is not an “imported” case; and that, considering the- evidence and facts in the over-all, trial in the Eastern District of Illinois would be in the “interest of justice.”
While petitioner would suffer some additional inconvenience and hardship, it does not appear to me that its every assertion must be taken at face value, since not all of its executives need be in Danville at one time; communication via long distance telephone will eliminate much travel; the bulk of the documents necessary for the trial relates to events no longer current so their absence from St. Paul will not disrupt everyday business operations; copies of many of the Government's documents are located in the office of petitioner’s counsel in Chicago and must be moved in any event; petitioner’s private planes can carry its executives and documents from St. Paul to Danville in three hours; Mr. McKnight can obtain adequate medical attention in Danville; and at one time petitioner was willing to assume all such inconvenience and expense in order to have the trial in Chicago.
Petitioner has not introduced any additional evidence, in its supplemental affidavits, sufficient to satisfy me that the “interest of justice” required transfer. Data as of April 1, 1964 (from the Government’s supplemental affidavit of Howard L. Fink), indicates that my criminal docket is still more current than those of the Judges in Minnesota and the case can therefore come to trial earlier in the Eastern District of Illinois.
For the foregoing reasons and those set forth in the attached brief, I respectfully submit that the petition for a writ of mandamus should be denied and that the rule to show cause should be discharged.
Casper Platt,
Chief Judge,
United■ States District Court, Eastern District of Illinois.
September 1964.