c30:No. 72-1694

BIGGS, Circuit Judge
(dissenting).
Meaningful review requires that the reviewing tribunal must be able to review a decision of a trial court or of an agency to determine its correctness and if necessary control the course of the litigation whether by appeal or by use of a writ under the All Writs statute, 28 U. S.C. § 1651. In the case at bar this court cannot fulfill that reviewing function for there was no court reporter present in the trial judge’s chambers to record what either may or may not have been an adequate hearing on respondents’ Section 1404(a) motion. The petitioners insist that they did not receive adequate notice or hearing and were taken by surprise by the course of the proceedings. The respondents insist there was adequate notice and hearing. We are left with conflicting statements of counsel which cannot be reconciled and, in any event, are not part of the record and therefore cannot serve as a basis for adjudication. United States ex rel. Bradshaw v. Alldredge, 432 F.2d 1248, n. 1, 2d para. (3 Cir. 1970). Moreover, the trial court made no findings of fact or conclusions of law, wrote no opinion, and entered a transfer order in the bare terms of Section 1404(a).
We would all agree that whether or not a transfer should be made depends upon the balance of convenience. Wyndham Associates v. Bintliff, 398 F.2d 614 (2 Cir. 1968), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Brown v. Woodring, 174 F.Supp. 640 (M.D.Pa.1959). A determination of that balance rests within the sound discretion of the trial judge, and he alone must make the decision required by Section 1404(a). We may not perform that duty for him, although we must set aside any such decision which constitutes a clear abuse of discretion (Rapp v. Van Dusen, 350 F.2d 806 (3 Cir. 1965); Golconda Mining Corp. v. Herlands, 365 F.2d 856 (2 Cir. 1966)), or is constitutionally deficient.
In the case at bar, local Rule 36 of the United States District Court for the Eastern District of Pennsylvania purportedly authorized the district court judge to decline to hear oral argument on respondents’ Section 1404(a) motion. Nonetheless a hearing was afforded and certainly that hearing was required to be a fair one — one in which the petitioners had an opportunity to make proper argument and to present their case. Furthermore, the fact that the decision to transfer the case may be justified on the merits does not obviate the requirement of a fair hearing. We are entitled to know what was before the district judge at that hearing and the factors which may have brought him to his decision to transfer in order that his exercise of discretion and the constitutionality of the procedure may be properly reviewed.
I believe the absence of a court reporter has rendered it impossible for this court to determine the fairness of the hearing, for in my view the record fails to reveal facts from which such a determination can be made. In the exercise of our supervisory powers we should require the district court to grant the petitioners’ motion for reconsideration, to hold a hearing and to have a court reporter present taking notes of the proceedings. Specifically, under circumstances such as those at bar, the presence of a court reporter should be required by the trial judge.
I assume, of course, that if this court were to hold as I have indicated, the issuance of a writ would be unnecessary and the district judge would comply promptly with our suggestions.
For the reasons stated, I must respectfully dissent.

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