UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) JAMES F. HOSKINS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-2061 (RWR) ) JANET NAPOLITANO, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Pro se plaintiff James F. Hoskins brings this action against

the Secretary of the Department of Homeland Security (“DHS”), and

the United States Coast Guard (“USCG”), alleging claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 1346(b)(1),

and the Rehabilitation Act of 1973,

et seq. The

defendants have moved to dismiss for improper venue, or, in the

alternative, to transfer the case to the District of Maryland.

Because venue is improper here but would be proper in the

District of Maryland, the defendants’ motion will be granted in

part and the case will be transferred to the District of

Maryland.

BACKGROUND

Hoskins, a resident of Tenafly, New Jersey, has been

diagnosed as HIV positive since 1995. (Compl. ¶ 15.) Hoskins

was hired by the USCG in January 2007 as an ordnance equipment -2-

worker. He was assigned to a USCG facility located in Baltimore,

Maryland. According to Hoskins, while he was employed by the

USCG he was subjected to constant harassment on the basis of his

race and HIV status from September 2007 until his employment was

terminated in October 2008. (Compl. ¶¶ 11-13, 32-33, 39.)

Hoskins also asserts that the USCG wrongfully denied him training

opportunities (id. ¶¶ 33, 44, 48), denied him a security

clearance by interfering with the background investigation (id.

¶¶ 28, 46, 53, 57), and eventually placed him on administrative

leave and wrongfully terminated his employment. (Id. ¶¶ 52, 54.)

In December 2010, Hoskins filed the instant complaint against the

DHS and the USCG. The defendants have moved under Federal Rule

of Civil Procedure 12(b)(3) to dismiss for improper venue or to

transfer the case to the District of Maryland. (Defs.’ Mem. in

Supp. of Defs.’ Mot. to Dismiss at 1.) Hoskins opposes.

DISCUSSION

Rule 12(b)(3) “allows a case to be dismissed for improper

venue.” Hunter v. Johanns,

(D.D.C.

2007); see also Fed. R. Civ. P. 12(b)(3). In general, the

plaintiff bears the burden of demonstrating that venue is proper.

Walden v. Locke,

(D.D.C. 2009). When

“‘considering a Rule 12(b)(3) motion, the court accepts the

plaintiff’s well-pled factual allegations regarding venue as

true, draws all reasonable inferences from those allegations in -3-

the plaintiff's favor, and resolves any factual conflicts in the

plaintiff's favor.’” Walden,

(quoting

Darby v. U.S. Dep’t of Energy,

(D.D.C.

2002)). If the district where the action is brought is improper,

then it is within that district court’s discretion to determine

whether it is in the interest of justice to dismiss the action,

or to transfer it to a district where venue is proper. Haley v.

Astrue,

(D.D.C. 2009) (citing Naartex

Consulting Corp. v. Watt,

(D.C. Cir. 1983));

see also 28 U.S.C § 1406(a). “This Circuit favors transfer under

§ 1406(a) ‘when procedural obstacles [such as . . . improper

venue] impede an expeditious and orderly adjudication on the

merits.’” Sanchez v. U.S.,

(D.D.C. 2009)

(quoting Sinclair v. Kleindienst,

(D.C. Cir.

1983)); see also Atwal v. Lawrence Livermore Nat. Sec., LLC,

Civil Action No. 10-1111 (RWR),

(D.D.C.

May 23, 2011).

I. FTCA CLAIM

“Any civil action on a tort claim against the United States

under [

(b)] may be prosecuted only in the

judicial district where the plaintiff resides or wherein the act

or omission complained of occurred.”

(b)

(emphasis added). According to “the prevailing interpretation of

section 1402(b), venue is proper in the District of Columbia if -4-

sufficient activities giving rise to the plaintiff’s cause of

action took place here.” Tildon v. Alexander,

(D.D.C. 2008) (quoting Franz v. United States,

(D.D.C. 1984)); see also

at 243 (citing

Stebbins v. State Farm Mut. Auto Ins. Co.,

(D.C. Cir. 1969)) (explaining that “there is a clear preference

for adjudicating employment discrimination claims in the judicial

district most concerned with the alleged discrimination”).

Hoskins has conceded that venue is not proper in the

District of Columbia for his FTCA claim. However, he asks that

the FTCA claim be transferred to the judicial district in which

he resides, namely, the District of New Jersey. (Pl.’s Opp’n

at 5.) While it is in the interest of justice to transfer

Hoskins’ FTCA claim instead of dismissing it, and § 1402(b) does

allow for an FTCA claim to be brought in the district in which

the plaintiff resides, venue for this claim is more appropriate

in the District of Maryland than the District of New Jersey. The

District of Maryland was where Hoskins was employed (Defs.’ Reply

in Supp. of Mot. to Dismiss, Attach. 1, Decl. of Karla Brown

(“Brown Decl.”) ¶ 3), where the events that gave rise to Hoskins’

actions occurred (Compl. ¶ 5), and, according to the defendants,

where the records related to Hoskins’ complaint are kept. (Brown

Decl. ¶ 4.) Meanwhile, New Jersey has little interest in, or

connection with, the matters relevant to Hoskins’ complaint -5-

because no event related to Hoskins’ employment with USCG, and

none of the specific events giving rise to Hoskins’ complaint,

took place there. See Tildon,

(holding

that venue was improper in the District of Columbia despite the

fact that it was plaintiff’s place of residence because no event

giving rise to the claims in plaintiff’s complaint took place

there).

II. TITLE VII AND REHABILITATION ACT CLAIMS

Hoskins’ complaint also alleges claims under Title VII and

the Rehabilitation Act. (Compl. ¶ 1.) “‘Where a case involves

more than one cause of action, venue must be proper as to each

claim.’” Walden,

-15 (quoting Relf v.

Gasch, 511 F.2d at 807 n.12 (D.C. Cir. 1975)). In a Title VII

action, 42 U.S.C. § 2000e-5(f)(3) “controls any other venue

provision governing actions in federal court.” Donnell v. Nat’l

Guard Bureau,

(D.D.C. 1983). “The venue

provisions of Title VII also apply to causes of action which are

brought under the [Rehabilitation Act].” Archuleta v. Sullivan,

(D.D.C. 1989) (citing

(a)(1)). Venue for a Title VII action is proper in the

district where: (1) “the unlawful employment practice is alleged

to have been committed”; (2) “the employment records relevant to

such practice are maintained and administered”; or (3) “the

aggrieved person would have worked but for the alleged unlawful -6-

employment practice.” 42 U.S.C. § 2000e-5(f)(3). When “‘the

defendant cannot be found within any of the districts provided

for by the first three bases,’” venue may also be proper in the

district in which the defendant has its principal office.

Walden,

(quoting Kendrick v. Potter, Civil

Action No. 06-122 (GK),

, at *3 (D.D.C. July 16,

2007)); see also 42 U.S.C § 2000e-5(f)(3).

The District of Maryland satisfies the first two bases

listed in 42 U.S.C § 2000(e)-5(f)(3) for proper venue. “To

determine where an alleged unlawful employment practice was

committed, a court ‘must look to the place where the decisions

and actions concerning the employment practices occurred.’”

Walden,

(citing Ifill v. Potter, Civil

Action No. 05-2320 (RWR),

, at *2 (D.D.C. Nov. 17,

2006)) (internal citation omitted). Hoskins does not dispute

that, while he was employed by the USCG, he was employed in

Baltimore, Maryland. (Compl. ¶ 5.)

Hoskins alleges that “it is beyond dispute” that any and all

employment records relevant to his complaint are located in the

District of Columbia. (Pl.’s Opp’n at 4.) But, according to the

declaration made under the penalty of perjury by Karla Brown, a

Human Resource Specialist for the USCG, the records are actually

located in Baltimore, Maryland. (Brown Decl. ¶ 3.) Hoskins has -7-

filed a surreply1 containing an e-mail chain that he says proves

that his personnel file is being maintained in the District of

Columbia. (Pl.’s Surreply at 1-13.) However, the e-mails appear

to establish at most that an administrative complaint he filed

was processed, at least in part, by managers located in

Washington D.C., and that a “Coast Guard Security File” that was

opened when the Coast Guard initiated a security clearance

investigation regarding Hoskins was located in Chesapeake,

Virginia. (Pl.’s Surreply at 9, 11.) Hoskins does not explain

how or why the e-mails he attached to the surreply contradict

Brown’s declaration, and Hoskins presents nothing else to

contradict the defendants’ sworn assertion that his employment

records are being kept in Maryland. See Sulton v. Peters,

(D.D.C. 2008) (finding that the defendants

presented facts sufficient to defeat the plaintiff’s assertion of

1 Although surreplies are not favored, they are allowed when a reply is filed leaving “a party . . . ‘unable to contest matters presented to the court for the first time.’” Ben-Kotel v. Howard Univ.,

(D.C. Cir. 2003) (quoting Lewis v. Rumsfeld,

(D.D.C. 2001)). Courts have been willing to grant leave to file a surreply when it responds to new factual allegations “of substantial import.” Tnaib v. Document Techs., LLC,

, 89 n.3 (D.D.C. 2006). As is mentioned above, the defendants attached to their reply a declaration from a Human Resource Specialist for the USCG which asserted that Hoskins’ personnel files were in Washington, D.C. The reply’s declaration was the first time that the defendants asserted where Hoskins’ personnel file was located. Therefore, although Hoskins did not attach to his surreply a motion for leave to file a surreply, leave to file was granted. -8-

venue where defendants presented sworn declaration stating that

employment records were located in New York, despite the

plaintiff’s allegations that they were located in the District of

Columbia).

As for the third basis for venue, Hoskins does not claim,

and the filings to not suggest, that he would have worked in the

District of Columbia but for the alleged unlawful employment

practice. Hoskins claims that “the District of Columbia is the

principal place of business for the Department of Homeland

Security and the Headquarters for the United States Coast

Guard[.]” (Pl.’s Opp’n at 4.) However, the principal office or

place of business of the defendant is a relevant basis for venue

only where the defendants cannot be found in any other district,

a situation that is not alleged in this action. See 42 U.S.C

§ 2000e-5(f)(3).

Because this district does not satisfy any of the bases for

venue provided by § 2000e-5(f)(3), venue is not appropriate in

the District of Columbia for Hoskins' Title VII and

Rehabilitation Act claims. See James v. Booz-Allen & Hamilton,

Inc.,

(D.D.C. 2002) (“If the plaintiff

brings suit in a jurisdiction that does not satisfy one of the

venue requirements listed in [§ 2000e-5(f)(3))], venue is

improper.”). Although Hoskins' Title VII and Rehabilitation Act

claims could be dismissed for improper venue, it is in the -9-

interest of justice to transfer these claims to the District of

Maryland along with Hoskins’ FTCA claim. See James,

; Walden,

(citing Hamilton v.

Paulson, Civil Action No. 07-1365 (RBW),

, at *3

(D.D.C. Oct. 10, 2008)).

CONCLUSION AND ORDER

Hoskins has not established that venue in the District of

Columbia is proper for his FTCA, Title VII or Rehabilitation Act

claims. Because venue is improper here but would be proper in

the District of Maryland, and because the activities Hoskins

alleges in his complaint took place entirely in the District of

Maryland and have little if any connection with the District of

New Jersey where Hoskins resides, it is hereby,

ORDERED that the defendants’ motion [3] to dismiss or in the

alternative to transfer to the District of Maryland be, and

hereby is, GRANTED IN PART. The Clerk is DIRECTED to transfer

this case to the United States District Court for the District of

Maryland.

SIGNED this 31st day of January, 2012.

/s/ RICHARD W. ROBERTS United States District Judge