UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) PSV ENTERPRISES, LLC, ) ) Plaintiff, ) ) v. ) No. 20-cv-2287 (KBJ) ) UNITED STATES CITIZENSHIP AND ) IMMIGRATION SERVICES, et al., ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER TRANSFERRING CASE TO THE DISTRICT OF NEBRASKA

Plaintiff PSV Enterprises, LLC (“PSV”) is a construction company

headquartered in North Dakota. (See Compl., ECF No. 1, ¶ 7.) On August 19, 2020,

PSV filed the instant action against the United States Citizenship and Immigration

Services (“USCIS”) and the Director of USCIS (collectively, “Defendants”),

challenging the decision of USCIS’s Nebraska Service Center (“NSC”) to deny four

Form I-140 petitions that PSV had submitted. (See id. ¶¶ 1, 8.) Broadly speaking,

Form I-140 allows employers, such as PSV, to seek authorization for a non-citizen to

work and permanently reside in the United States. See George v. Napolitano,

(D.D.C. 2010); Ravulapalli v. Napolitano,

, 44–45

(D.D.C. 2011). PSV had submitted Form I-140 petitions on behalf of four of its

employees (see Compl. ¶ 7), and in its complaint, PSV claims that NSC’s decision to

deny the four petitions violated the Administrative Procedure Act (see id. ¶ 4), because

NSC did not comply with the Immigration and Nationality Act (“INA”) or its accompanying regulations, and did not undertake reasoned decision making with

respect to the denial determination (see id. ¶¶ 11–19, 46). As relevant here, PSV

alleges, in particular, that NSC improperly rejected PSV’s financial statements on the

ground that they were not audited (see id. ¶¶ 36, 47–49), and that NSC failed to

consider the other evidence that PSV had submitted with the petitions in order to

demonstrate its ability to pay the employees’ wages (see id. ¶¶ 50–51). 1

Before this Court at present is a motion that Defendants have filed that seeks

transfer of PSV’s legal action to the District of Nebraska or the District of North

Dakota pursuant to section 1404(a) of Title 28 of the United States Code. (See Defs.’

Mot. to Transfer, ECF No. 13, at 1; see also Defs.’ Mem. in Supp. of Mot. to Transfer

(“Defs.’ Mot.”), ECF No. 13-1, at 1.) 2 Defendants do not dispute that the District of

Columbia is a proper venue, but they maintain that this case should be transferred “in

the interest of justice[,]” because PSV’s complaint concerns “final agency actions that

were taken in Nebraska” and “has no meaningful connection to the District of

Columbia.” (Defs.’ Mot. at 1.) PSV responds that Defendants “reside in this

District[,]” and that “USCIS’s decision to deny the petitions at issue marks an agency-

level policy determination, in violation of statute and regulation, as evidenced by the

fact that multiple USCIS off[ic]ers made the same erroneous determination over time.”

1 Under the INA, employment-based visas are allocated based on various preference categories, see

(b), and PSV had sought to classify the four employees as “[o]ther qualified immigrants who are capable . . . of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States[,]”

§ 1153(b)(3)(A)(iii). (See also Compl. ¶ 13.) Importantly for present purposes, USCIS’s regulations require employers filing petitions under that category to submit “evidence that the prospective United States employer has the ability to pay the proffered wage . . . until the beneficiary obtains lawful permanent residence.” See

(g)(2). 2 Page number citations to the documents that the parties have filed refer to the numbers automatically assigned by the Court’s electronic case filing system.

2 (Compl. ¶ 6; see also Pl.’s Opp’n to Defs.’ Mot. to Transfer Venue (“Pl.’s Opp’n”),

ECF No. 16, at 1.)

For the reasons explained below, this Court concludes that the locus of the

instant controversy lies in Nebraska rather than the District of Columbia, and thus that

Defendants have established that a transfer is warranted. Therefore, Defendants’

motion to transfer will be GRANTED, and this case will be TRANSFERRED to the

District of Nebraska.

I.

Section 1404(a) of Title 28 of the United States Code provides that “[f]or the

convenience of parties and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where it might have been

brought[.]”

(a). In evaluating a defendant’s motion to transfer under

section 1404(a), a district court must first determine whether the lawsuit “might have

been brought” in the districts where the defendant seeks to transfer the case. See

If

so, the court must then consider various private and public interest factors to assess

whether transferring the case would be in the “interest of convenience and justice[.]”

See W. Watersheds Project v. Tidwell,

(D.D.C. 2017).

With respect to private interest factors, courts generally consider: “(1) the

plaintiff’s choice of forum, (2) the defendant’s choice of forum, (3) where the claim

arose, (4) the convenience of the parties, (5) the convenience of the witnesses, and

(6) the ease of access to sources of proof.” Wolfram Alpha LLC v. Cuccinelli,

, 331 (D.D.C. 2020). As for public interest factors, courts typically assess:

“(1) the transferee court’s familiarity with the applicable law; (2) the relative

3 congestion of the calendars of the transferee and transferor courts; and (3) the local

interest in deciding local controversies at home.”

. District courts have

“broad discretion” in balancing these private and public interest factors, see W.

Watersheds Project,

(quoting Stewart Org., Inc. v. Ricoh Corp.,

(1988)), but the defendant bears the burden of demonstrating that a

transfer is warranted, see

II.

When a plaintiff brings a civil action against an officer, employee, or agency of

the United States, venue is proper “in any judicial district in which (A) a defendant in

the action resides, (B) a substantial part of the events or omissions giving rise to the

claim occurred, or a substantial part of property that is the subject of the action is

situated, or (C) the plaintiff resides if no real property is involved in the action.”

(e)(1). In this case, venue is proper under section 1391(e) in the District

of Columbia, because the agency was headquartered here when PSV filed the instant

complaint (see Compl. ¶ 6), and also the District of Nebraska, because NSC adjudicated

PSV’s visa petitions in that district (see

), which means that “a substantial part of

the events or omissions giving rise to [PSV’s] claim occurred” there, see

(e)(1); see also, e.g., Pengbo Li v. Miller, No. 20-cv-1122,

, at

*3 (D.D.C. Mar. 24, 2021) (determining that the District of Nebraska was “an

appropriate venue because it is the location where NSC processed and denied”

plaintiffs’ Form I-140 immigrant visa petition). Venue is also proper in the District of

North Dakota, because that is the district wherein PSV resides. (See Compl. ¶ 7.)

Indeed, PSV concedes that “this case could have been filed in . . . the District of North

4 Dakota[] or the District of Nebraska” for purposes of section 1391(e). (Pl.’s Opp’n

at 3.)

Accordingly, the remaining question that Defendants’ motion raises is whether

transferring the instant lawsuit to the District of Nebraska or the District of North

Dakota would serve the interests of convenience and justice. See W. Watersheds

Project,

.

III.

The private interest factors and the public interest factors both weigh in favor of

transferring this matter to the District of Nebraska. Starting with the private interest

factors, this Court finds that the balance of interests tilts against PSV’s choice of forum.

To be sure, courts typically “accord[] deference” to a plaintiff’s preferred venue, Fed.

Hous. Fin. Agency v. First Tenn. Bank Nat’l Ass’n,

(D.D.C.

2012) (internal quotation marks and citation omitted); however, that deference is

“weakened” when “the chosen forum is not [the] plaintiff’s home forum” and when

there is no meaningful “nexus between the case and the plaintiff’s chosen forum,”

(internal quotation marks and citation omitted). PSV is not a resident of the District of

Columbia (see Compl. ¶ 7), and there is no meaningful nexus between PSV’s lawsuit

and this District because PSV is challenging NSC’s denials of its Form I-140 petitions,

and those allegedly unlawful denials took place in Nebraska (see id. ¶¶ 8, 46). See also

Pengbo Li,

, at *4 (noting that “challenges to individual immigration

decisions generally arise in the forum of the USCIS service center that processed the

application at issue”); Aftab v. Gonzalez,

(D.D.C. 2009)

(observing that transfer may be proper where there is no allegation that USCIS officials

5 in Washington, D.C. “were personally involved with the processing or adjudication of

[plaintiff’s] application”). Nor do the convenience-related private interest factors

“sway the transfer inquiry in either direction” because the parties here, as elsewhere,

have “agree[d] that the instant dispute will be resolved based on the administrative

record.” W. Watersheds Project,

. (See also Pl.’s Opp’n at 8;

Defs.’ Reply in Supp. of Mot. to Transfer (“Defs.’ Reply”), ECF No. 18, at 5.) Indeed,

if anything, these factors slightly favor transfer as well, because the administrative

record is located in Nebraska (Defs.’ Reply at 5), and “potential witnesses, if any, could

include [NSC] employees involved in processing or deciding [PSV’s] application[s],”

Aftab,

.

PSV attempts to connect the instant case to the District of Columbia by arguing

that “this action involves an agency-wide change in policy” with respect to “reviewing

the employer’s ability to pay the proffered wage.” (Pl.’s Opp’n at 5–6; see also Compl.

¶ 3 (alleging that “USCIS’s decisions to deny all the petitions rely on a new, previously

unstated, agency requirement” that “it will not accept financial statements reviewed by

an independent expert[,]” and that this alleged new policy “marks an agency-level shift

away from the agency’s own I-140 National Standard Operating Procedure” and “the

USCIS Adjudicator’s Field Manual”). As ostensible support for this assertion, PSV

notes that “at least two separate [NSC] officers” adjudicated PSV’s petitions, and each

allegedly “stated plainly in the denials that reviewed financial statements are not

reliable evidence of the employer’s ability to pay the proffered wage.” (Pl.’s Opp’n at

6; see also Ex. 4 to Pl.’s Mot. for Prelim. Inj., ECF No. 2-2, at 14, 23.) But the mere

fact that two NSC officers made similar statements when denying PSV’s applications

6 does not give rise to a reasonable inference that the statements are traceable to some

“undisclosed agency-level shift in policy[,]” much less that such a policy was

necessarily “directed by USCIS headquarters in the District of Columbia[,]” as PSV

speculates. (See Pl.’s Opp’n at 8.) And like other courts considering similar

arguments, this Court is skeptical of attempts to “manufacture venue” by recasting local

determinations as “broad national policy directives.” See EfficientIP, Inc. v. Cuccinelli,

No. 20-cv-1455,

, at *3 (D.D.C. Nov. 12, 2020); see also Cameron v.

Thornburgh,

(D.C. Cir. 1993).

And even if such an agency-wide policy existed, PSV is not asserting a “general,

broad-based challenge” to the agency’s alleged policy regarding unaudited financial

statements, see Abusadeh v. Chertoff, No. 06-cv-2014,

, at *6

(D.D.C. July 23, 2007); rather, “its dispute is with implementation of th[at] polic[y]” in

NSC’s denials of PSV’s I-140 petitions, which took place in Nebraska, see EfficientIP,

, at *3 (internal quotation marks and citation omitted). Indeed, in its

Request for Relief, PSV asks the Court to set aside NSC’s decisions and order approval

of PSV’s petitions (see Compl., Request for Relief, ¶¶ 3–4)—requests that do not

implicate USCIS’s “nationwide policies for adjudicating visa petitions” (see Pl.’s

Opp’n at 7). Therefore, PSV’s complaint still lacks a meaningful tie to the alleged

national policy that it says warrants litigation of its claims in the District of Columbia.

In short, given the complaint’s particularized focus on decisions made in

Nebraska by NSC, “this Court has little doubt that the locus of the instant controversy

lies in [Nebraska], and that its connection to the District of Columbia is tenuous at

best.” W. Watersheds Project,

(internal quotation marks and

7 citation omitted). Thus, the private interest factors weigh in favor of transferring this

case to the District of Nebraska. See Bourdon v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2017) (observing that “[c]ases challenging the actions of

local USCIS offices are frequently, and appropriately, transferred to the venue

encompassing those local offices”).

The Court reaches the same conclusion with respect to the public interest factors.

To start, this case concerns matters of federal law, and courts in the District of

Nebraska and the District of Columbia are therefore “equally familiar” with the

governing law. Aftab,

. What is more, the statistics cited by the

parties indicate that the District of Nebraska has a shorter median time from filing to

trial (see Defs.’ Mot. at 6), yet the District of Columbia has a lower median time from

filing to disposition (see Pl.’s Opp’n at 10). This means that “the statistics regarding

court congestion [are] mixed and may also reflect differences other than congestion,

such as differences in the types of cases that are likely to be tried in each district[,]”

which renders the docket-congestion factor “neutral” in the analysis of the public

interest factors. Pengbo Li,

, at *5 (internal quotation marks and

citation omitted).

However, with respect to the final public interest factor, it is clear that Nebraska

“has a stronger local interest in this case than does the District of Columbia.” Aftab,

. As explained above, PSV’s suit arises from NSC’s denials of its

visa petitions, and this plaintiff seeks relief that “ultimately involves a determination of

whether [NSC] should be compelled to” approve PSV’s applications. See

.

That makes the instant matter indistinguishable from other cases that have been filed in

8 the District of Columbia but were subsequently transferred to the district where the

field office that made the challenged determination is located. See, e.g., Pengbo Li,

, at *6; Ngonga v. Sessions,

(D.D.C. 2018);

Bourdon, 235 F. Supp. 3d at 309–10; see also Aishat v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2018) (explaining that “[t]he district in which the

relevant USCIS Field Office is located is better positioned to be involved in” a lawsuit

challenging a decision of that office (internal quotation marks and citations omitted)).

Consequently, the public interest factors also weigh in favor of transferring this case.

IV.

Accordingly, and for the reasons discussed above, it is hereby

ORDERED that Defendants’ Motion to Transfer, ECF No. 13, is GRANTED,

and this case is TRANSFERRED to the District of Nebraska pursuant to

(a).

Date: May 25, 2021 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

9