X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Who knew that venue could be so much fun? Sure the economy has taken a turn for the worse, but one wonders how or why the parties got so “bitter” about venue in Dehaemers v. Wynne, 522 F. Supp. 2d 240 (D.D.C. 2007). Bitter or not, the case provides a couple of lessons about venue. First, Judge Colleen Kollar-Kotelly reminds us in Dehaemers that the general venue statute, 28 U.S.C. 1391, does not apply to all claims, especially claims brought against the United States or its officials. Second, her opinion teaches us that federal district court judges do take venue seriously. Violations of the Privacy Act alleged in ‘Dehaemers’ So, what happened in Dehaemers? The plaintiff filed his initial complaint against the defendant in his official capacity as secretary of the U.S. Department of the Air Force. He alleged violations of the Privacy Act, 5 U.S.C. 552a, by various officials of the Air Force Audit Agency, the plaintiff’s employer, who wrongfully disclosed his confidential medical and other personal information in connection with an administrative action he had filed before the Equal Employment Opportunity Commission (EEOC). The defendant timely answered the complaint. Kollar-Kotelly then held her first scheduling conference. During that conference, the plaintiff’s pending claims before the EEOC were discussed, and the parties agreed that the plaintiff would amend his complaint to add claims under Title VII of the Civil Rights Act of 1964, and the Rehabilitation Act relating to the alleged unlawful disclosures. The plaintiff filed his motion to amend the complaint, together with his proposed amended complaint, which added claims under the Rehabilitation Act, the Age Discrimination in Employment Act (ADEA), and Title VII. The defendant opposed the proposed amendment, arguing that it would be futile because venue for the additional claims would be improper in the District of Columbia. The plaintiff responded that the defendant waived, or was estopped from asserting, any challenge to venue with respect to the plaintiff’s proposed claims. He argued that the defendant waived venue objections when, during the initial scheduling conference in this matter, The defendant asked the plaintiff to file his EEO claims as an amendment to the Privacy Act case because the agency preferred to address the case as a whole. The district court began by noting that it may deny as futile a motion to amend a complaint when the proposed complaint would not survive a motion to dismiss. See 3 Moore’s Federal Practice � 15.15[3] (3d ed. 2000). Accordingly, it was proper for the defendant to raise the venue objections in opposition to the motion to amend. The court then went on to reject the plaintiff’s waiver and estoppel arguments. While it is true that under Federal Rule of Civil Procedure 12(h)(1), a defense of improper venue is waived unless asserted by a pre-answer motion under Rule 12(b) or in a responsive pleading, and that venue is a “personal privilege,” that “may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct,” Freeman v. Bee Mach. Co., 319 U.S. 448, 453 (1943), the defendant did comply with Rule 12(h)(1) by “seasonably” asserting his defense of improper venue at the first available opportunity. Additionally, the court rejected the plaintiff’s suggestion that the defendant had waived the defense of improper venue “by submission through conduct” at the scheduling conference. Rather, a review of the record revealed that it was the plaintiff’s counsel who initially raised the issue of amending the complaint. Although the district court noted that defense counsel suggested that she was unlikely to oppose the proposed amendment, she also noted that she would need to review the proposed amendment before deciding. More importantly, neither party raised the issue of venue during the conference. Thus, there was no waiver. The district court also rejected the plaintiff’s estoppel argument. The plaintiff claimed he expressly relied on defense counsel’s representations at the conference, and that his reliance was prejudicial because he abandoned his rights to pursue his proposed additional claims on an administrative level by filing his EEO claims in federal court as an amendment to his Privacy Act claim. However, applying the U.S. Supreme Court’s test for judicial estoppel in New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001), Kollar-Kotelly first noted that since the defendant’s current position was his first with respect to the proper venue it therefore could not be “clearly inconsistent” with any prior position. Nor had she yet accepted any party’s venue position. Third, the defendant’s venue challenge could result in both parties being required to address the plaintiff’s claims in two separate lawsuits, which would be equally disadvantageous for both. Finally, Kollar-Kotelly failed to see any detrimental reliance because venue (as discussed below for each of the plaintiff’s proposed additional claims) would be proper in the Eastern District of Virginia. Thus, the plaintiff could pursue those claims by bringing a second action in that jurisdiction. Or, because venue for all of the plaintiff’s claims, including his original Privacy Act claim, would be proper in the Eastern District of Virginia, the plaintiff could pursue a single comprehensive action there by transferring the Privacy Act claim filed in her court and amend the original action once transferred to add the additional claims. Turning to the merits of the venue challenge, Kollar-Kotelly agreed with the defendant that the proposed amendment would be largely futile because venue over his Rehabilitation Act and Title VII claims is improper in the District of Columbia. Unfortunately for the plaintiff, Title VII actions are governed by a special and exclusive venue provision contained in 42 U.S.C. � 2000e-5(f)(3). Title VII’s venue provision also applies to claims brought under the Rehabilitation Act. Under � 2000e-5(f)(3), venue for the plaintiff’s Rehabilitation Act and Title VII claim would be proper in the district where (1) the defendant’s alleged retaliation or improper dissemination of records occurred; (2) the employment records relevant to the Air Force’s actions are maintained and administered; (3) the plaintiff would have worked but for the Air Force’s alleged actions; or, only if the Air Force cannot be found in any of those districts, (4) where the Air Force has its principal office. This venue provision clearly dictated venue for the plaintiff’s Rehabilitation Act and Title VII claims only in the Eastern District of Virginia. Specifically, that is the district where the Air Force officials allegedly improperly disseminated the plaintiff’s confidential medical records, and that is where one official did so in retaliation for the plaintiff’s identifying that individual as a discriminatory actor. All the Air Force’s alleged improper dissemination and retaliation occurred at the Air Force Agency Office in Arlington, Va. Additionally, any relevant employment records are maintained and administered in Arlington, and the plaintiff continues to work there. Finally, the fourth prong was unavailing because that provision is only available if there is no other proper district. Here, only Virginia’s Eastern District was proper, and the proposed amendment with respect to those claims would be futile. A look at venue under the ADEA Unlike Title VII, the ADEA does not contain a special provision; rather, the general venue statute governs venue for such actions. Under 28 U.S.C. 1391(e), venue for the plaintiff’s ADEA claim is proper (1) where the Air Force resides, (2) where a substantial part of the events giving rise to the action occurred or (3) where plaintiff resides. Under the third prong, the plaintiff’s amended complaint alleges that he is a resident of Virginia. Under the second and third prongs, venue for the ADEA claim clearly lies in the Eastern District of Virginia. Proper venue under the first prong was less clear. Although the secretary of the Air Force has his principal office at the Pentagon, which is physically located in Arlington, the Pentagon has a Washington mailing address. Some courts have held that “[o]fficers and agencies of the United States can have more than one residence, and venue can properly lie in more than one jurisdiction,” and “[w]hen an officer of agency head performs a ‘significant amount’ of his or her official duties in the District of Columbia, the District of Columbia is a proper place for venue.” Jyachosky v. Winter, 2006 U.S. Dist. Lexis 44399, at *4 (D.D.C. June 29, 2006). Thus, it appeared that venue for the plaintiff’s ADEA claim might be proper in either the District of Columbia or the Eastern District of Virginia, and therefore that the proposed amendment was not futile with respect to the ADEA claim. Under 5 U.S.C. 552a(g)(5), a Privacy Act claim may be brought where a plaintiff “resides, or has his principal place of business, or [where] the agency records are situated, or in the District of Columbia.” Unquestionably, therefore as even the defendant admitted, the plaintiff’s Privacy Act claims were properly brought in the District of Columbia. Nevertheless, the court refused to assume pendent venue over the plaintiff’s proposed Title VII and Rehabilitation Act claims. The court held that when the plaintiff brings a Title VII action, as well as claims governed by the general venue provision, the narrower venue provision of � 2000e-5(f)(3) controls. The plaintiff now has some thinking to do: if he chooses to continue to pursue his Privacy Act claim in the District of Columbia, he will have to continue to pursue his Rehabilitation Act and Title VII claims before the EEOC, or he will have to file a separate action in the Eastern District of Virginia. However, filing the second action will make Kollar-Kotelly bitter. Georgene M. Vairo is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She is on the board of editors of Moore’s Federal Practice and writes the Moore’s chapters on removal and venue problems. She can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.