*1 certainty jus- later before the Court of be made with such as to recover tify Claims,13 present compensation or in a suit under the Tucker award of damages may any Act,14 part the actual which based decrease value long damages. prospect materialize from the underflow aft of such All taking. er declaration of court that we hold is that the district summary entering partial erred suggests it is Government that judgment. judgment That is reversed highly preferable standpoint from the and the is remanded for cause further of both the landowners and the Govern- proceedings. damages ment to wait until materialize Reversed and remanded. justify a suit Act under the Tucker If before the Court of Claims. rights agreed, were of landown- damages accruing to sue for
ers might safeguarded by ap- future propriate provision be judgment.15
in the stage proceedings,
At this ever, of the how- right deny we cannot
landowners, they elect, if so to under- compensation
take to increase the damages proof COMPANY, awarded can McGRAW-EDISON which a Cor poration, Petitioner, reasonably anticipated from the max- sought. imum use of the easement Judge PELT, VAN Honorable Robert partial summary judg the United District Court for the States ment should not have been entered un Nebraska, al., Respond et District of appeared certainty less it to a both that ents. genuine
there was no issue as 17465, Nos. 17466. moving party material fact and that the Appeals United States Court of was entitled to a matter of Eighth Circuit. present In law.16 state of this rec 11, Aug. 1965. ord, neither the facts nor the law are incomplete record, at all clear. On
we should not to decide the undertake
important questions of constitutional “Again, presented.17
law which only adjudication on the merits can setting
provide the concrete factual
sharpens process the deliberative es
pecially demanded for constitutional de
cision.” United States v. International Automobile, etc.,
Union United Workers (UAW-CIO) 1957,
of America 352 U.S.
567, 591, 529, 541, 1 77 S.Ct. L.Ed.2d 563. Petrillo, 1947, also United
See States v. 1, 7, 1538, U.S. 67 S.Ct. 91 L.Ed. 1877; Times, Connor v. New York 5 Cir.
1962, 133, And, F.2d 135. say
course, proof we cannot whether the prospective damages facts can Fed.R.Civ.P.; 56(c), 13. Palmer U.S.C. 1491. 16. Rule 532, 1951, Chamberlin, 5 Cir. (2). 14. 28 U.S.C. § A.L.R.2d 416. Holmes, 15. See United States v. 4 Cir. 3, supra. 17. See n. *2 362
PER CURIAM. Petitions for of mandamus are writs separate to two before us relation ac- against petitioner pending de- tions fendant in the District Court for sought A District Nebraska. writ is directing respondent as as to each case judge the order entered district to vacate denying petitioner’s motion for him 1404(a), U.S.C.A. transfer under 28 § granting trans- and to enter an order fer. peti-
We took
en
submission
banc of
applications
tioner’s
a
rule to show
cause, in order to consider whether we
should allow
situation to be controlled
by,
of,
or should make re-examination
holding by
panel
a
of this Court
Railway
Hyde,
Great Northern
Co.
8
v.
Cir.,
(1956),
238 F.2d
adhered
852
to
panel
rehearing,
a divided
245 F.2d
(1957),
537
denied 355 U.S.
certiorari
78
L.Ed.2d 77.
S.Ct.
holding
The
in Great Northern was
prohibition
that
mandamus
not
available for review of an
a
order of
district court under 28 U.S.C.A.
§
(a),
grant
whether
made
or in denial
transfer,
of a
save
the writ
prevent
a court from
transferring
a
to a
case
district where
brought.
the action could not
been
have
Thus,
majority
panel
of the
refused
grant
against
in that case to
relief
transfer,
conceded,
which,
order of
it
warrant”,
“the factual
did
situation
not
which,
and
a
which involved
district “to
opinion (the action)
in our
not
could
properly
have been transferred
view
surrounding
circumstances.”
Young, Omaha,
F.2d at 538.
Neb.,
Malcolm D.
Le-
White, Harlan,
Iowa,
peti-
land C.
legal
absolutism
mandamus
tioner.
permit
not
do
under
examination of an order
§
Eisenstatt, Lay,
Donald P.
Lay,
arbitrariness,
judicial
in the sense
Higgins
Omaha,
Miller,
Neb.,
&
Frank
that the facts
circumstances involved
Heinisch, Omaha, Neb.,
respond-
C.
provide no
for the action taken
basis
ents.
represent
of discretion
JOHNSEN, VOGEL,
situation,
had
Before
not one which has
VAN the
OOSTERHOUT, MATTHES,
following
of other Cir-
BLACK
decisions
MUN,
MEHAFFY,
subsequent
Northern
Circuit
RIDGE and
cuits
holding
Judges.
has been referred
1404(a),
Casualty
Lemon
in two cases
district
General
under
court.
Com-
1958),
Druffel,
680, (6
Grubb,
(7
pany
Cir.
v.
Cir.
Lykes
Steamship
1958).
Bros.
1959),
Noonan,
(2
but
basis
of
cases involved was that
motions were
the
legally
judicial power
of
to involve abuse
they
untimely, in that
had not been made
Among
(with-
responsibility.
and
these
approximately
until
five months after the
complete enumeration)
Butterick
are
out
filed, during
suits were
which time there
(7
Will,
111,
Cir.
316 F.2d
113
Co. v.
preparation
had occurred
and.
extensive
1963)
Tire & Rubber
and General
expense
part
plaintiffs’
on the
of
Nebras-
1964).
Watkins,
926,
(4 Cir.
326 F.2d
getting
ready
ka
the
for
counsel
cases
by
position
the
This same
had been taken
through-
trial.
local
Petitioner had itself
Circuit,
Bank
Fifth
In
First National
re
period
out this
the court’s time
invoked
(1956),
Montgomery,
F.2d 876
of
and consideration on motions and other
prior to
Northern
our Great
aspects
purported
of a
mov-
incidents
ing
Thus,
toward trial there.
it had filed
making
of
In thus
examination
for extension of
and submitted motions
district
action under
whether the
court’s
plead;
the
time to
calendar
motions to
arbitrary,
has
these cases
been
Lin-
for
Omaha
of
cases
coln;
trial at
instead
opened
any
not
door
loose is
have
the
to
actions;
the
motions to dismiss
ex
suance of a writ. All of them have
claims;
objec-
motions to sever
the
by
pressly
implication emphasized
the
taking
depositions by the
tions to the
plaintiffs.
of
range
scrutiny
of
which
in
narrow
It
had submitted
further
traditional
restraint
volved
the
interrogatories
discov-
of
three sets
for
always
by an
must be exercised
which
ery purposes.
appellate court in relation to the issuance
only
any
a
Respondent’s
of
which
writ.
relief
of the motions to
denial
permitted
party
opportunity
a
will
to seek
such
for
transfer was made after
hearing
against
judicial
respec-
ar
situation is
manifest
of
and consideration
the
clearly
showings
support
to
it made
and in re-
bitrariness. Unless
appear
of
tive
plaintiffs
and circumstances
that the facts
motions. The
to the
sistance
any
judgment
petitioner
for a
of
are without
basis
dealers of
were all franchised
grew
discretion,
appellate
not
of that
court will
out
re-
and their claims all
proceed
lationship.
district
in our
further to examine the
In
action involved
plaintiffs,
17,465,
If the
action in the situation.
court’s
there were three
No.
rationally
asserting
sep-
joined
their
facts and circumstances are
had
who
against
capable
providing
petitioner.
for what the
No
reasons
claims
arate
judgment
done,
sought
claim of
court
its
to the
district
has
was
transfer
sought
plaintiff.
will not
re
motion
based on those reasons
the first
plaintiff
Corporation
Per
Chemetron
the claim of the second
viewed.
ry,
have
1961).
703,
(7 Cir.
the District of Colorado
295 F.2d
transferred
judgment
plaintiff transferred
of dis
of the third
Where basis exists
and that
cretion,
appellate
In the
Dakota.
court
not sub
District of North
to the
17,466, where
own
for that of the
action involved
our No.
stitute its
discretion
single plaintiff,
my view,
overruling
mo-
In
our
was
of Great
there
Hyde, Cir.,
R.
to the Northern
R. v.
transfer
case
tion
852,
rehearing,
adhered to on
District
Colorado.
cert.
U.S.
denied 355
78 S.Ct.
go
need not
further
in our
We
agree
I
is too broad.
that Great
than
declare
consideration here
may go
Northern
too
to the
far
extent
on the facts and circumstances shown
availability
it denies
of man
filed,
court’s denial of
affidavits
damus or
review
abuse
to transfer
the motions
untimeliness
transferring
of discretion orders
cases
arbitrary.
to be
cannot be contended
appropriate
out of the
circuit
situa
prop
which could
was involved
Substance
present case,
tions.
In our
no transfer
weight
erly
significance
be accorded
refusing
was made.
error
Hence
question
transfer,
so that
there
to transfer
can
considered
existed basis in
reason
upon
appeal
judg
court
direct
from final
discretion to be exercised as to what
*4
ment.
ought
to be done. The district court
Judge
pre-
in Great Northern
Sanborn
gave other
action,
reasons also
its
cogent
supported by
sents
reasons
re-
gone
but these
into,
need not be
since the
spectable authority
pp.
at
855-857 of 238
ground set out
is
above
sufficient for us
why
gate
widely
F.2d
should not
to halt
petitions.
consideration of the
opened
extraordinary
to the use of
writs
It
perhaps
should
be mentioned that
in situations
this
such as
where the stat-
petitions
while these
have been under
upon
power
ute confers
the trial court
submission,
panel
an administrative
provision
no
for an
makes
interlocu-
the Court
petitions
has dealt with some
tory appeal.
writs, requiring
action,
immediate
in
Judge
Freight,
All
electrical-equipment
in
Goodrich
States
anti-trust dam-
age
Modarelli, Cir.,
pending throughout
cases
Inc.
the fed-
v.
1012, quoted
approval
system,
eral
with
us
the basis of the views
part:
Northern,
reached,
which have
states
here been
instead
making disposition on the basis of the
escape
“But we cannot
the conclu-
Great Northern
See I-T-E
highly unfortu-
sion that
it will be
Becker,
Circuit Breaker Co. v.
attempted
of an
nate if the result
(1965)
and I-T-E Circuit Breaker
procedural
improvement
to sub-
is
Regan, Cir.,
(July
should be Court level.” at the District
mined F.2d general rule be the Such should granted petition file a should leave extraordinary cases.
for writ might Possibly situations additional might justi- develop future which in the extraordinary entertaining writ.
fy it met when can best be situation
Such
arises. LABOR RELATIONS
NATIONAL BOARD,Petitioner, *5 WAREHOUSE, COMPRESS
AMERICAN
DIVISION OF FROST-WHITED COMPANY,Inc., Respondent.
No. 21365. Appeals
United States Court of
Fifth Circuit.
July 12, 1965.
Rehearing Sept. Denied