Civil Transfer Compared

Civil Transfer Compared

Federal civil practice has its own statute for moving a case between districts, and its wording is close enough to Rule 21(b) that the two are easy to conflate. Section 1404(a) of Title 28 allows a district court, "[f]or the convenience of parties and witnesses, in the interest of justice," to transfer a civil action to another district "where it might have been brought."¹ Rule 21(b) borrows the vocabulary of convenience and the interest of justice, and it is equally permissive, because the court may transfer but never must.² The resemblance ends there. The two provisions differ on where a case may be sent, on who may ask for the move, and on what the move is for, and each difference brings out a feature of the criminal rule.

The first difference is the destination. A civil transfer must go to a district where the action might have been brought, and Hoffman v. Blaski is the decision cited for the point that such a district must itself have jurisdiction and proper venue.³ The limit looks to the situation when the suit was filed, so a defendant's later consent to the destination did not make an otherwise ineligible district eligible, and Congress responded by adding districts to which all the parties have consented.⁴ The reason for the limit lies in what the statute assumes. Section 1404(a) operates on the premise that the plaintiff properly exercised a venue choice, and nothing in its language or policy lets a defendant use it to defeat the advantages of a forum that was proper even if inconvenient.⁵ If the destination were open-ended, a defendant could ask for a place the plaintiff had no right to use, and the plaintiff's venue privilege would shrink to whatever the other side tolerated. Restricting the move to places where the plaintiff could have sued keeps a convenience motion from becoming a way to override that choice.

Rule 21(b) has no destination limit. Its text authorizes transfer to "another district" and never asks whether the prosecution could have been brought there.⁶ A court may therefore move a proceeding from a district that is proper under the venue rules to one that otherwise would not be proper, which is the very thing transfer provisions of this kind are written to permit.⁷ The explanation turns on whose interest the venue rule serves. The crime-committed rule taught earlier in this chapter protects the accused, so the accused is the party the limit was built for, and granting the accused's own request does not undermine its purpose. That also explains why Rule 21(b) responds only to the defendant's motion, since lower federal courts have suggested that the Sixth Amendment's vicinage clause bars Congress from authorizing a venue change on anyone else's request.⁸ Civil transfer is not so confined, because either party may seek it and the court may order it on its own motion.⁹

The third difference is purpose. The Supreme Court has described the civil statute as "a federal judicial housekeeping measure" intended, on the basis of convenience and fairness, "simply to authorize a change of courtrooms."¹⁰ That description fits a provision that starts from a venue the plaintiff properly chose and only rearranges where the case is heard, and it marks the line between two civil statutes: § 1406(a) handles filings laid in the wrong district, while § 1404(a) handles filings laid in a proper one.¹¹ Rule 21(b) also starts from a proper district, so it sits on the § 1404(a) side of that line, yet it adds what the civil statute lacks, which is the defendant's ability to depart from the place the crime-committed rule fixes.¹² Both provisions relocate the existing case instead of ending it. A civil transfer spares the parties the dismissal and refiling that a forum non conveniens dismissal would require.¹³ Rule 21(b) likewise authorizes the court to transfer "the proceeding" itself.¹⁴

The two motions rest on the same convenience facts, and the rule invoked is the only variable that changes the result. In the civil case the destination fails a threshold test before convenience is weighed, while in the criminal case the destination is open and convenience decides. Students lose this issue when they carry the civil destination limit into a Rule 21(b) motion and reject a transfer only because the transferee district would not have been a proper place to prosecute. The sound answer asks whether the grounds Rule 21(b) itself supplies are met, namely the convenience of the parties, any victim, and the witnesses, and the interest of justice.¹⁷