Before BAZELON, Chief Judge, and WRIGHT and MACKINNON,* Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioner's District Court complaint sought to convene a statutory three-judge court to adjudicate the constitutionality of 18 U.S.C. 4205 (1970), the provision which denies to re-incarcerated parole violators credit against their original sentence for the time spent while on parole.6 On October 30, 1972, respondent transferred petitioner's complaint, upon motion of the United States Board of Parole and the authority of Young, to the United States District Court in Kansas, the district of petitioner's incarceration.
In Young this court ruled that it was "in the interest of justice" under 28 U.S.C. § 1404(a) to require transfer of actions brought by inmates "not confined in the District of Columbia, not sentenced in the District of Columbia, and seeking resolution of issues in no way related to this jurisdiction," to the district of confinement "absent extraordinary circumstances." 125 U.S.App.D.C. at 106, 367 F.2d at 332. Young was never intended to establish an automatic and inflexible rule of transfer for all prisoner civil actions. Only complaints of prisoners neither confined nor sentenced in the District of Columbia which sought "resolution of issues in no way related to this jurisdiction" or which failed to involve "extraordinary" circumstances were to be subject to the "per se rule of law for transfer" established by Young.7
Though, as expected, this ruling in Young has resulted in transfer to other jurisdictions of a large number of prisoner petitions,8 the discretion sanctioned by Young must be carefully limited to the circumstances there delineated lest the Young exception to the traditional balancing test of § 1404(a) devour the statutory mandate. In the instant case, this care is not evident.9
Although petitioner is neither confined nor sentenced in the District of Columbia, he seeks resolution of an issue "related to this jurisdiction." As our prior order in this case points out,10 "petitioner [has] challenged on constitutional grounds national policies of an agency headquartered in the District of Columbia, a challenge cognizable at the seat of government11 where its officers are located if their testimony be needed." When, as here, such a challenge is presented to the District Court by a prisoner, the per se rule in Young may not be invoked by that court to effect its automatic transfer.12 Instead, the traditional balancing test, measuring the "convenience of parties and witnesses, in the interest of justice" under 28 U.S.C. § 1404(a)13 and acknowledging the plaintiff's interest in preserving his choice of forum14 at the seat of government, must be utilized.
Furthermore, since transfer under § 1404(a) is appropriate only to districts where the civil action "might have been brought," it is incumbent upon the District Court prior to ordering transfer to ascertain that jurisdiction and venue properly lie in the proposed tranferee district.15 When the United States Board of Parole is named as defendant in a civil action brought by a prisoner seeking relief which may not be fairly construed as a petition in the nature of mandamus or habeas corpus, it may be that the only district where such relief may be granted is the District of Columbia. This has been the approach of at least one District Court16 and although the transferee judge in the instant case attempted to avoid this problem by reaching and disposing of the merits of petitioner's contentions,17 the District Court must be alert to the obstacles posed by the necessity for venue and jurisdiction in proposed transferee districts before it grants a motion to transfer. No inquiry along these lines is apparent in this record.
In this particular case, although it was error to transfer petitioner's complaint to the District Court in Kansas without such inquiry, there is no relief available to petitioner in this court. Since petitioner's case had already been decided on the merits prior to our earlier order reversing the transfer decision of our District Court, the proper forum to review the transferee judge's action and his express refusal to retransfer to our District Court is the Court of Appeals for the Tenth Circuit upon appropriate appeal.18
Accordingly, the petition for writ of mandamus is Dismissed.
APPELLATE PANEL: FOOTNOTES
* Circuit Judge MacKinnon did not participate in ...