Garner v. Wolfinbarger

JOHN R. BROWN, Chief Judge,

concurring and dissenting in part:

I agree that the transfer from the Northern to the Southern District of Alabama should not be disturbed whether approached as a petition for mandamus or on its merits under § 1292(b). But I dissent as to the Court’s holding that § 1292(b) is not available to test the grant or the denial of a transfer under § 1404(a) when the issue is the so-called “abuse of discretion” by the trial Judge.¹

I think the decision is both a retreat and discounts too much the action and words of this Court in cases other than Humble II.

Heading the list of significant decisions holding against a direct challenge to the use of § 1292(b) in a § 1404(a) transfer is Continental Grain (note 1, supra). We had to determine whether § 1292(b) applied to an in rem admiralty case even though it was not, in the words of § 1292(b) a “civil action”.² We did that in the context of an appeal from an order transferring the cause from Louisiana to Tennessee. Bound up in the “civil action” problem was the action basically under attack — the trans-fer-

We thought the issue presented was sufficiently controlling — as did the Supreme Court — even though both opinions reflect that the net effect of our decisions was merely to approve trial in Tennessee rather than in Louisiana. There is not the slightest hint that the interlocutory appeal was deciding questions of substance, procedure or evidence that would have any perceptible effect on the disposition of the case apart from where it was to be tried. This feature also puts the spotlight on the Court’s present overemphasis on “controlling issue of law”. The statute ³ contains two modifiers. The controlling issue must (i) be one as to which there is a substantial difference of opinion and, more important, (ii) a decision which will materially advance the ultimate termination of the litigation. It bears emphasis that Congress did not talk in terms of “dispositive” issues. Congress took a practical view, as have we until today, to measure the order in practical terms as seen through the eyes of the trial Judge and the three Judges of the Court of Appeals in allowing the appeal. If there is anything which Judges as former lawyers could never forget it is the fact that where a case is to be tried can be the most important thing about it. A personal damage suit filed in Alabama and ordered transferred to, say, New York or Illinois where dockets are 4 to 5 years behind suddenly takes on a different hue.' Settlement now becomes more important, more imminent. And nothing quite contributes so much to “termination of the litigation” as a settlement.⁴

Equally important, by a case subsequent to Humble II this Court has sounded in emphatic terms the broad liberal approach we have given — before and since Humble II — to § 1292(b). In so doing we emphasized also the unsatisfactory nature of the writ of mandamus in which the Judge enters the lists as an adversary and decision is cast in that awful misnomer of the law — abuse of discretion which, no matter how watered down, borders close on saying that the Judge's action was not merely erroneous — it was so to the point of irrationality. In Tokio Marine & Fire Ins. Co. v. Aetna Casualty & Surety Co., 5 Cir., 1963, 322 F.2d 113 we had this to say:

At the outset we may readily dispose of the request that we mandatorily order certification under § 1292(b). Tbe occasions for that relief would indeed be rare, if not superfluous. Having said as much, we nevertheless think that as to the basic constitutional issue of the supremacy of admiralty, Judge Ainsworth reads § 1292(b) much too narrowly. We do not believe it does any good to echo epithets uttered by others that § 1292(b) is to be ‘sparingly applied,’ Milbert v. Bison Laboratories, Inc., 3 Cir., 1958, 260 F.2d 431, 433. Following very practical considerations, we have on a number of occasions allowed interlocutory appeals. Ex parte Deepwater Exploration Co., 5 Cir., 1958, 260 F.2d 546, on remand, Deepwater Exploration Co. v. Andrew Weir Ins. Co., E.D.La., 1958, 167 F.Supp. 185; Ex parte Watkins, 5 Cir., 1958, 260 F.2d 548, certification held inadequate, 5 Cir., 271 F.2d 771, 76 A.L.R.2d 1113; Jewell v. Grain Dealers Mutual Ins. Co., 5 Cir., 1959, 273 F.2d 422; Ex parte Underwriters at Lloyd’s London (Gulf Shipside Storage Corp. v. Underwriters at Lloyd’s London), 5 Cir., 1960, 276 F.2d 209. Pointing out that ‘[e]ach application is to be looked at then in the light of the underlying purpose reflected in the statute,’ Hadjipateras v. Pacifica, S.A., 5 Cir., 1961, 290 F.2d 697, 702, 1961 A.M.C. 1417, we have allowed full use of this effective device where there is ‘a controlling question of law’ and ‘an immediate appeal’ may ‘materially advance the ultimate termination of the litigation.’ For these purposes, ‘the litigation’ is here the Louisiana libel against the tug’s underwriters. If the underwriters are correct — and we may assume without deciding the if is a big one — then the Constitution forbids the further prosecution of the case against them in Louisiana. An authoritative decision would not only ‘materially advance’ the ultimate disposition of ‘the litigation,’ it would terminate it altogether. On that hypothesis, to require the parties to go through a trial before a court lacking jurisdiction would be both expensive and senseless for no matter what facts were developed on the trial, the Constitution would forbid the adjudication there. Nothing in the legislative history⁵ requires any such artificial result. Likewise, mandamus or prohibition is singularly inappropriate to determine the correctness of a controlling question of law ‘as to which there is substantial ground for difference of opinion.’ These extraordinary writs are generally directed toward situations so bold and plain that the trial Judge’s actions are examined in the light of the presence or lack of' an abuse of discretion. Merely to decide a question of law incorrectly is certainly not an abuse of discretion. And yet the District Judge’s refusal to certify this substantial and controlling question of law puts the Appellate Court in the position of either acquiescing in a useless trial and later appeal or the equally dubious position of saying that the trial Court’s error is so gross that it amounts to an abuse of discretion. On this latter aspect, no one could say Judge Ainsworth was that wrong considering the likelihood that the Supreme Court does not itself know exactly what it meant to hold or now holds under Jane Smith.

“While we think that certification would have been appropriate and following our prior practice we might now invite the parties to resubmit it for such certification, see In Re Humble Oil & Refining Co., 5 Cir., 1962, 306 F.2d 567, we think that in the interest of expediting the disposition of the case on its merits, we should not do so here. At the same time we decline to consider finally whether the peremptory writs of mandamus or prohibition should be entered.”

I think it is regrettable that we undertake to fix rigid classes of cases which are beyond the reach of § 1292(b). Our prior cases show the great utility of this device which is so flexible. I am positive that Judge Godbold sounds for all of the members of the full Court the concern that we have been too lax in allowing § 1292(b) appeals. We have of late, after argument, vacated such orders in a number of cases where we felt the allowance was improvidently granted.⁵ But the protection against such a practice is not to needlessly encumber a flexible apparatus. Rather it is for each of us to exercise great restraint so that only cases of any or every character which meet the controlling issue test as outlined here may be taken on interlocutory appeal. Indeed this is the answer to the criticism that our prior practice is too ad hoc. How much more ad hoc could Congress make it than by requiring (a) certificate by the trial Judge and (b) allowance by the Court of Appeals with each applying the broad standards of “controlling” with modifiers (i) and (ii) ?

Section 1292(b) has worked well for us. We have taken a position much more adaptable, less rigid than other Circuits. Where it has not worked well it has been due to our own action in allowing an appeal. We can correct that by the sort of self-discipline which is the hallmark of Judges. We do not need to fashion a rule that, while freeing us from the travail of our calling, unnecessarily ties our hands in a specific type of case to thus begin a construction of the statute which will become more and more technical.⁶

1 . I would assume that an identifiable question of law, such as jurisdiction in the transferor or transferee court could still be certified and reviewed under 1292 (b). See, e. g., Blaski v. Hoffman, 5 Cir., 1958, 260 F.2d 317, aff’d, 1958, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254; Continental Grain Co. v. Federal Barge Bines, Inc., 5 Cir., 1959, 268 F.2d 240, 1959 A.M.C. 2158, aff’d., 1960, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540. While this lessens the Court’s retreat I am at a loss to understand how that “non-diseretionary” law point makes it any more or less “a controlling issue of law” when the real question is whether the yet untried case is or is not to be transferred and thereafter tried.

2 . This was in the old days, good or bad, as one looks at the subsequent integration of Civil and Admiralty Rules, see 39 F.R.D. 69.

3 . 28 U.S.C. § 1292

(a) * * *

“(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C.A. § 1292(b) (1958

Supp.).

4 . A large number of our § 1292(b) appeals involve application of long arm service of process statutes. Although these present frequently a “law” question, either of state construction, federal Constitution, or both, and presumably get by today’s ruling, the net effect almost invariably is confined to where the case will be tried. Technically a holding that the long arm is not that long terminates that “litigation”. But practically this is only temporary as the case is soon refiled in a distant forum — a factor which does have a marked bearing on advancing' the termination of the “litigation” in, (the broad terms of the underlying controversy.

5 . See, e. g., Spurlin v. General Motors, 5 Cir., 1970, 426 F.2d 294.

6 . The Court speaks in terms of vacating the allowance of appeal as “improvidently granted”. Were this not tied to the holding that § 1292(b) is not available for “discretionary” 1404(a) transfers, I would readily join in such dispositions, gee note 3, supra.