UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSHUA DILLON ROH,

Plaintiff,

v. Civil Action No. 21-2560 (BAH)

KARL L. SCHULTZ, in his official capacity Chief Judge Beryl A. Howell as Commandant of the U.S. Coast Guard, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Joshua Dillon Roh, a Nebraska resident who, in May 2021, was dismissed from

the United States Coast Guard Academy (“Academy”) in New London, Connecticut, brings this

action against three Coast Guard officials stationed at the Academy, as well as two high-ranking

Coast Guard members located in Washington D.C., alleging violations of the Administrative

Procedure Act (“APA”),

et seq., his Fifth Amendment equal protection and due

process rights, and the Military Whistleblower Protection Act, 10 U.S.C § 1034(b). Compl. ¶¶ 3,

11, ECF No. 1. The gravamen of plaintiff’s complaint is that his dismissal from the Academy

was based on retaliation and defendants’ desire to cover up “institutional failures” and “repeated

violations of law” after they denied plaintiff adequate support and disregarded Coast Guard

policy following his reporting of a sexual assault perpetrated at the Academy by another male

cadet—all which conduct is alleged to have occurred in Connecticut. See id. ¶¶ 3-4.

Defendants seek transfer of this case to the District of Connecticut pursuant to

(a). Defs.’ Mot. to Transfer (“Defs.’ Mot.”), at 1, ECF No. 13. As explained below,

defendants’ motion is granted.

1 I. BACKGROUND

A brief overview of plaintiff’s factual allegations is followed by discussion of the relevant

procedural history.

A. Factual Background

Plaintiff, a 22-year-old resident of Lincoln, Nebraska, was enrolled as a cadet at the

Academy until his dismissal in May 2021. Compl. ¶¶ 1-2, 12, 21. About two years earlier, on

April 23, 2019, plaintiff was sexually assaulted by another male cadet in his dorm room at the

Academy’s New London campus.

. Following this traumatic incident, plaintiff—

fearful about reencountering his assaulter—filed a Sexual Assault Prevention and Response

(“SAPR”) report with the Academy’s campus Sexual Assault Response Coordinator, expecting

that by doing so Academy staff “would protect him, take care of him, and assist him in

recovering from the trauma he had just suffered,”

, consistent with the SAPR policy

directive to “support[] victim recovery, and assist[] service member victims to be fully mission

capable and engaged,”

. Plaintiff was interviewed by two Coast Guard

Investigative Service agents six days after the assault.

. Only weeks later, however, was

a military protective order issued against the assault perpetrator, whom plaintiff “was forced to

see . . . over and over again because the two shared the same major and the same classes.”

As a result of the trauma stemming from his assault and continued encounters with his

assailant around campus, plaintiff began exhibiting “behavioral issues [that] were directly

attributable to the [Academy’s] abject failure to follow its own SAPR regulations and to treat

[plaintiff’s] post-traumatic stress.”

; see also

(“[Plaintiff’s] chain of command

did virtually nothing to provide him with resources[,] to rehabilitate him” or “to discharge its

mandatory duties under the SAPR [policy].”). Nevertheless, plaintiff avers that thereafter

2 Academy staff—specifically defendant Lieutenant Akaninyene Inyang, plaintiff’s company

officer—“turned that failure on its head, blaming [plaintiff] for failing to ‘suck it up’ and ‘get

over’ his assault.”

; see also

(“[Plaintiff’s] efforts to call attention to, and seek

help for, the debilitating trauma he suffered as the result of a sexual assault, served only to put a

retaliatory target on his back.”). Inyang and other members of the regimental staff “treated

[plaintiff] as though he was not in his right mind,”

, and began to cite plaintiff for

“trumped-up” misconduct and other alleged disciplinary infractions following a variety of

incidents at the Academy,

.

Altogether, plaintiff alleges that, of 75 disciplinary demerits he received after being

assaulted, 60 of those demerits were “attributable to alleged outbursts or loss of temper directly

related to [his] untreated post-sexual assault trauma” and to a “targeted campaign of harassment

and retaliation against [him as] a male who was failing to demonstrate to the Academy’s locker-

room mentality that he was a ‘real man.’”

; see also

, 82-

83, 85, 93 (describing myriad demerits and other disciplinary charges that plaintiff alleges were

issued against him because of retaliatory and discriminatory animus after reporting he was

assaulted by another male cadet). This record, in plaintiff’s view, also reflected “the personal

vendetta and disenrollment campaign Inyang instituted [against him] only three months after the

sexual assault.”

. Plaintiff asserts that the institutional response to his reporting of sexual

assault “stand[s] in stark contrast to the [Academy’s] response to reports of sexual assaults by

female cadets, . . . ranging from a year-long sabbatical to paying for private, out-of-state

counseling services.”

;

(further alleging that, “in the name of diversity,

inclusion and ‘cracking down’ on sexual assault and sexual harassment, the [Academy] bends

backwards to accord female cadets unconditional acceptance of their allegations . . . [while] male

3 cadets who invoke similar challenges are viewed as willful, substandard performers who have

bad attitudes and are simply not ‘owning it.’”). For this reason, plaintiff maintains that

defendants “Superintendent [William G. Kelly] . . . Commandant [Arthur L. Ray], . . . and LT

Inyang,” who were all stationed at the Academy, failed to properly respond to his sexual assault

report because of gender bias and retaliatory animus against him as a male victim.

.

On May 11, 2021, eight days before he was scheduled to graduate from the Academy,

plaintiff was summoned to the office of Superintendent Kelly, who announced plaintiff’s

dismissal from the Academy because he had accrued more than the maximum allowable

demerits resulting from a “pattern of misconduct” and given “continued concern regarding

[plaintiff’s] deficiencies in emotional regulation and professional interactions.”

. Plaintiff

sought reconsideration, but Kelly reaffirmed his disenrollment decision days later.

. On

July 15, 2021, defendant Rear Admiral Joanna M. Nunan, who is stationed in Washington D.C.

and has final authority regarding disenrollment appeals, rejected plaintiff’s appeal of his

dismissal from the Academy.

;

Ex. A, Appeal of Disenrollment. Denial of this appeal

is the only action relevant to plaintiff’s claims that is alleged to have taken place in Washington

D.C. Following his dismissal from the Academy, plaintiff was reduced in rank and is currently

serving in an enlisted status at a Coast Guard base in Portsmouth, New Hampshire.

.

B. Procedural Background

Plaintiff commenced this lawsuit on October 1, 2021. See generally Compl. Following

an extension of time to answer or otherwise respond to plaintiff’s complaint, see Min. Order

(Feb. 11, 2022), on March 15, 2022, defendants moved to transfer this action to the District of

Connecticut. See Defs.’ Mot.

4 Across five counts, plaintiff claims that: (1) defendants’ decision to disenroll him and

deny his appeal was arbitrary and capricious, an abuse of discretion, and otherwise not in

accordance with law, in violation of the APA, Compl. ¶¶ 121-126; (2) defendants deprived him

“of even the most basic notions of fundamental fairness in the creation of a false narrative

designed to cover up their own abject failures meaningfully to respond to [his] sexual assault and

[to] drive [him] out of the . . . Academy,”

, in violation of his procedural due process

rights under the Fifth Amendment,

; (3) defendants’ deliberate and intentional acts

to punish and disenroll plaintiff in an attempt to cover up his sexual assault and their failure to

respond to it deprived plaintiff of fundamental liberty interests, in violation of the Fifth

Amendment’s substantive due process guarantee,

; (4) gender discrimination, in

violation of the Fifth Amendment’s equal protection guarantee,

; and (5)

retaliation, in violation of the Military Whistleblower Protection Act (“MWPA”),

(b),

. On these claims, plaintiff seeks declaratory judgment and an injunction

reversing his disenrollment from the Academy, in addition to attorneys’ fees and any other relief

the Court deems proper.

. Defendants’ motion to transfer is ripe for resolution.

II. LEGAL STANDARD

District courts have discretion to transfer a case to another proper venue “[f]or the

convenience of parties and witnesses, in the interest of justice.”

(a). Under the

general venue statute, venue is proper in any judicial district where: (1) “any defendant resides, if

all defendants are residents of the State in which the district is located;” (2) “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 (3) “any defendant is subject to the court’s personal

5 jurisdiction with respect to such action,” “if there is no district in which an action may otherwise

be brought as provided in this section.”

(b).

The Supreme Court has explained that “Section 1404(a) is intended to place discretion in

the district court to adjudicate motions for transfer according to an ‘individualized, case-by-case

consideration of convenience and fairness.’” Stewart Org. Inc. v. Ricoh Corp.,

(1988) (quoting Van Dusen v. Barrack,

(1964)). In resolving motions

to transfer venue under § 1404(a), a district court “must evaluate both the convenience of the

parties and various public-interest considerations . . . [and] weigh the relevant factors and decide

whether, on balance, a transfer would serve ‘the convenience of parties and witnesses’ and

otherwise promote ‘the interest of justice.’” Atl. Marine Const. Co. v. United States Dist. Ct. for

W. Dist. of Texas,

(2016) (footnote omitted) (quoting § 28 U.S.C. 1404(a)).

This assessment focuses on whether the presumption in favor of plaintiff’s choice of forum is

overcome by consideration of all relevant public- and private-interest factors indicating that the

alternative forum is more convenient and better serves the interest of justice for resolution of the

merits. See Van Dusen,

(“Congress, in passing [§] 1404(a), was primarily

concerned with the problems arising where, despite the propriety of the plaintiff’s venue

selection, the chosen forum was an inconvenient one.”). The movant bears the burden of

persuasion that transfer of an action is proper. SEC v. Savoy Industries, Inc.,

(D.C. Cir. 1978).

III. DISCUSSION

The first step to resolve a motion to transfer venue under § 1404(a) is determining

whether the proposed transferee district is one where the action “might have been brought.”

(a); Atl. Marine Constr. Co.,

. In actions that raise a federal question

6 by naming as a defendant a federal agency or United States official in his or her official capacity,

venue is proper in any judicial district where: (1) “a defendant in the action resides;” (2) “a

substantial part of the events or omissions giving rise to the claim occurred, or a substantial part

of property that is subject of the action is situated;” or (3) a “plaintiff resides if no real property

is involved in the action.”

(e)(1). Here, plaintiff is a resident of

Nebraska, Compl. ¶ 12, and challenges actions that primarily occurred in Connecticut, which is

where three out of the five defendants reside and the Academy is located, see generally

Plaintiff’s “behavior for which he was disenrolled, the decision to disenroll him, and the Coast

Guard’s first affirmance of that decision” all took place in Connecticut. Defs.’ Mot. at 3-4.

Defendants are thus correct that this action “might have been brought” in the proposed transferee

district.

;

(a). Having cleared that threshold hurdle, consideration of

which forum best serves the convenience of the parties and witnesses and the interest of justice is

the focus of the remainder of this discussion. See

(a).

In resolving motions to transfer venue under § 1404(a), courts do not limit their

consideration to the express statutory factors of “convenience of parties and witnesses,”

(a)(1), but also examine several private- and public-interest factors which serve to

elucidate the concerns implicated by the phrase “in the interest of justice.” See, e.g., Stewart

Org.,

(noting that motion to transfer under this statute “calls on the district court

to weigh in the balance a number of case-specific factors”). This analysis must guard against

“the danger that a plaintiff might manufacture venue in the District of Columbia . . . [b]y naming

high government officials as defendants.” Cameron v. Thornburgh,

(D.C. Cir.

1993). The mere presence of high-level officials in this District who “ultimately oversee all

7 agency activities . . . is [thus] insufficient to favor venue in the District of Columbia.” W.

Watersheds Project v. Pool,

(D.D.C. 2013).

Below, the private-interest factors are addressed first, followed by the public-interest

factors.

A. Private-Interest Factors Weigh in Favor of Transfer

Six private-interest factors are generally employed by courts in this District to assess the

“convenience of parties and witnesses,”

(a): “(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.”

Md. Digital Copier v. Litig. Logistics, Inc.,

, 95 (D.D.C. 2019); see also Trout

Unlimited v. U.S. Dep’t of Agric.,

(D.D.C. 1996) (first articulating these

factors). 1

The first private-interest factor—plaintiff’s choice of forum—is generally afforded

deference, but “that deference is minimized where the ‘plaintiff’s choice of forum has no

meaningful ties to the controversy and no particular interest in the parties or the subject matter.’”

Lentz v. Eli Lilly and Co.,

(D.D.C. 2006) (quoting Greater Yellowstone

Coal. v. Bosworth,

(D.D.C. 2001); see also Pac. Mar. Ass’n v.

N.L.R.B.,

(D.D.C. 2012) (Howell, J.) (noting that plaintiff’s chosen forum

is afforded less deference where the “‘plaintiff’s choice of forum is not the plaintiff’s home

forum’” (quoting Stockbridge-Munsee Cmty. v. United States,

(D.D.C.

2009)); Pain v. United Techs. Corp.,

(D.C. Cir. 1980) (“[A] trial judge must

1 These factors are regularly used by this Court without being expressly condoned by the Supreme Court or the D.C. Circuit, and appear to have been adopted from legal treatises and decisions in other Circuits. See Trout Unlimited,

& nn.4-9. The parties do not dispute that these factors appropriately guide the private- interest inquiry. See Defs.’ Mot. at 3; Pl.’s Opp’n at 11-14.

8 give considerable, but not conclusive, weight to the plaintiff's initial forum choice.”), overruled

in part on other grounds by Piper Aircraft Co. v. Reyno,

(1981).

Plaintiff is a resident of Nebraska currently stationed in New Hampshire, so the District

of Columbia is in no sense his “home forum.” Deference to plaintiff’s choice of forum is further

diminished because the District of Columbia has no meaningful ties to the controversy. See

Ngonga v. Sessions,

(D.D.C. 2018) (deference to plaintiff’s choice of

forum not “warranted where the plaintiff’s choice . . . has no meaningful ties to the controversy,

and where transfer is sought to a forum with which plaintiffs have substantial ties and where the

subject matter of the lawsuit is connected”) (cleaned up); Shawnee Tribe v. United States,

(D.D.C. 2002) (venue not appropriate in the District of Columbia “especially

where the involvement of government officials in Washington has not been significant, and there

is no real connection between the District of Columbia and th[e] litigation”). The only action

that plaintiff alleges took place in this District was Nunan’s rejection of his appeal challenging

his dismissal from the Academy, Compl. ¶ 9, whereas all events leading to plaintiff’s

disenrollment—including his initial disenrollment by Kelly—took place in Connecticut. Hence,

because the District of Columbia is not the plaintiff’s home forum and only has an attenuated

connection to this controversy, plaintiff’s selection of venue is entitled to only minimal deference

without weighing significantly against transfer.

The second and third private-interest factors—defendants’ preference of forum and the

district in which the claim arose—also favor transfer. Defendants seek transfer to the District of

Connecticut due to their “preference to litigate this case where most of the acts occurred.” Defs.’

Mot. at 5. As noted, the complaint makes evident that, apart from the final denial of plaintiff’s

disenrollment appeal occurring in this District, Compl. ¶¶ 6, 9, the entirety of events giving rise

9 to plaintiff’s statutory and constitutional claims under the APA, Fifth Amendment, and MWPA

took place at the Academy in New London, Connecticut. Defendants’ proposed choice of forum

(Connecticut) is the true locus of this dispute.

Nevertheless, plaintiff insists that, because his claims in part involve an alleged failure to

adhere to a generally-applicable Coast Guard policy for responding to incidents of sexual

assault—which policy is formulated and ultimately enforced in Washington, D.C. by Coast

Guard leadership such as defendants Schultz and Nunan—his claims can be said to “arise” in this

District. See Pl.’s Mem. Opp’n Defs.’ Mot. to Transfer (“Pl.’s Opp’n”), at 7-8, ECF No. 14; id.

at 8 (“Venue is proper in this District because Defendants Schultz and Nunan are ultimately

responsible for the abject leadership and policy failures pleaded with particularity in Plaintiff’s

Complaint.”). Not so. Venue in this District is not justified merely because a national policy

stems from the District of Columbia and is marginally implicated in a plaintiff’s claims. Indeed,

plaintiff does not challenge the legality of the Coast Guard’s SAPR policy but instead takes issue

with the allegedly faulty application of that policy to his circumstances by Coast Guard officials

in Connecticut. See Wolfram Alpha LLC v. Cuccinelli,

, 331 (D.D.C 2020)

(“The location of activities giving rise to the action weigh[ed] heavily in favor of transfer.”);

Ngonga,

(“When the material events that form the factual predicate of a

plaintiff’s claim did not occur in his chosen forum, transfer is favored.” (citations omitted));

Shawnee Tribe,

(“While some officials . . . who work in the Washington,

D.C. area are involved in the [matter at issue], the decisionmaking process . . . has not been

substantially focused in this forum” and “mere involvement on the part of . . . federal officials

who are located in Washington D.C. is not determinative.”). Thus, the second and third private-

interest factors heavily favor transfer.

10 The fourth and fifth factors—convenience to the parties and witnesses—further favor

transfer in this case. To be sure, “[a]dministrative review cases ‘are often resolved on cross-

motions for summary judgment,’” with no factual discovery necessary or even proper. W.

Watersheds Project, 306 F. Supp. 3d at 360 (quoting Pac. Ranger, LLC v. Pritzker,

(D.D.C. 2016) (Jackson, J.)); see Pl.’s Opp’n at 13 (noting that “Count I of the

Complaint is an APA claim for which, under normal circumstances, discovery would be limited

to the administrative record”). Yet, the remaining counts are non-APA claims for which

“depositions of witness[es] would be proper,” and plaintiff makes clear that he “has every

intention of seeking testimonial discovery.” Pl.’s Opp’n at 13. Perhaps realizing that this

argument would favor transfer given that most, if not all, relevant witnesses are in Connecticut,

see Defs.’ Mot. at 6 (“Even if witnesses were called, most of the witnesses likely would be found

in the District of Connecticut.”), plaintiff asserts that because of advances in technology allowing

for remote hearings and depositions, the convenience of witnesses should be considered a neutral

factor. Pl.’s Opp’n at 13.

The evolving nature of the COVID-19 pandemic makes any determination of whether

any future hearings or depositions in this matter will proceed in person or virtually somewhat

speculative. Even in the context of the ongoing pandemic, however, “live testimony [remains]

markedly preferable to remote testimony.” FTC v. Illumina, Inc., No. 21-cv-873 (RC),

, at *3 (D.D.C., Apr. 20, 2021). With the defendants most directly involved in the

allegations giving rise to plaintiff’s claims residing in Connecticut, “witnesses related to [those]

Defendants’ activities are likely to reside in” the transferee district, which traditionally has

favored transfer. Wolfram Alpha LLC, 490 F. Supp. 3d at 334. In addition, given that plaintiff

is currently stationed in New Hampshire and is otherwise a resident of Nebraska, Compl. ¶¶ 12,

11 21, 136, appearing in this District is—at a minimum—unlikely to be more convenient for him

than appearing in the transferee district. 2 The fourth and fifth private interest factors therefore

favor transfer.

As to the final private-interest factor—the availability of evidence—the parties agree that,

to the extent this action raises an APA challenge to an agency decision likely to be resolved on

the administrative record, this factor is of minimal relevance. See Defs.’ Mot. at 7; Pl.’s Opp’n

at 13-14; see also W. Watersheds Project, 306 F. Supp. 3d at 360; Ctr. for Env’tl Sci., Accuracy

& Reliability v. Nat’l Park Serv.,

(D.D.C. 2014) (noting that “ease of

access to proof” was “largely irrelevant” in determining venue in case reviewing agency action).

Yet, to the extent other claims are subject to discovery and evidence beyond the administrative

record is required, such evidence will be found primarily in the District of Connecticut.

Based on the foregoing, the private interest factors weigh, on balance, in favor of transfer

to the District of Connecticut.

B. Public-Interest Factors Also Weigh in Favor of Transfer

Finally, the Court must assess the public-interest factors that are implicated by

defendants’ request to transfer this action. Those factors have been described traditionally as

“(1) the transferee forum’s familiarity with the governing laws and the pendency of related

actions in that forum; (2) the relative congestion of the calendars of the potential transferee and

transferor courts; and (3) the local interest in deciding local controversies at home.” Foote v.

Chu, 858 F. Supp. 2d at 116, 123 (D.D.C. 2012); see Atl. Marine Constr. Co.,

n.6.

The parties agree that the first of these factors is inapplicable and thus neutral here since the

2 Plaintiff also argues against transfer because his counsel is not barred in the transferee court and resides in or near the District of Columbia. Pl.’s Opp’n at 12-13. This argument is unavailing. As this Court has stated before, “[w]here counsel resides is of little relevance for purposes of evaluating venue transfer motions.” Stand Up for Cal.! v. Dep’t of Interior, 919 F. Supp .2d 51, 64 (D.D.C. 2013) (Howell, J.) (quotation marks omitted).

12 instant action arises under federal law. See Defs.’ Mot. at 7-8; Pl.’s Opp’n at 14; see also

Oceana v. Bureau of Ocean Energy Mgmt., F. Supp. 2d 70, 78 (D.D.C. 2013) (first factor “is

generally applied in cases that implicate state law, with which federal courts are not equally

familiar”).

The second factor, the relative congestion of the courts, weighs in favor of transfer. As

defendants point out, “[e]ven indulging the assumption that every senior status judge [in this

District] carries a full caseload, [the respective court calendars of the districts] still work out to

nearly 256 cases per judge in [the District of Columbia], versus less than 195 cases per judge in

the District of Connecticut.” Defs.’ Reply in Supp. Mot. to Transfer at 5, ECF No. 17; see also

Defs.’ Mot. at 8 (“As of December 31, 2021, the most recent date for which data is available,

4,326 civil cases were pending in this District, compared to only 2,121 civil cases in the District

of Connecticut.”). Although “statistics are not perfect indicators of court congestion,” Wolfram

Alpha LLC, 490 F. Supp. 3d at 336, on account of the considerable differences in caseloads

between districts across different metrics, this factor favors transfer.

The third and final factor—the “local interest in having localized controversies decided at

home”—also weighs in favor of transfer. Adams v. Bell,

(D.C. Cir. 1983).

The interest in adjudicating local issues at home still “applies to controversies . . . requiring

judicial review of an administrative decision,” as in part here. Sierra Club v. Flowers,

(D.D.C. 2004). Plaintiff’s assertions that this is a matter of “national interest

and importance” are overstated. Pl.’s Opp’n at 14. While plaintiff may be correct that “sexual

assault at the Coast Guard Academy, and retaliation for reporting such an assault, is not some

localized malady unique to Connecticut,” id. at 15, the fact remains that the locus of plaintiff’s

case is New London, Connecticut, and its outcome will most directly impact not only plaintiff

13 but also “the Academy and the officials who run it,” Defs.’ Mot. at 9. See Wolfram Alpha LLC,

490 F. Supp. 3d at 339 (finding this factor favored transfer when “outcome of . . . action will be

felt most strongly in the Central District of Illinois and because the events giving rise to . . .

action emerged from that district”). Plaintiff seeks individualized relief based on events, actions,

and omissions over the span of two years which substantially occurred at the Academy,

including his disenrollment and the retaliation and other allegedly unlawful conduct to which he

was subjected primarily by defendant Inyang and other Academy officials. That a single, high-

ranking Coast Guard official located in this District (defendant Nunan) denied plaintiff’s second

appeal from disenrollment does not transform a local, albeit serious, matter into one of national

importance, nor does it supersede the significant interest that Connecticut has in adjudicating a

matter primarily affecting a local institution and local defendants.

Therefore, the public-interest factors, like the private-interest factors, weigh in favor of

transferring venue.

IV. CONCLUSION AND ORDER

For the reasons stated above, the Court finds that transfer to the District of Connecticut is

in the interest of justice and warranted under

(a). Accordingly, upon

consideration of the memoranda and exhibits submitted in support and opposition to the pending

motion to transfer, and the entirety of the underlying record, it is hereby

ORDERED that defendants’ Motion to Transfer, ECF No. 13, is GRANTED; and it is

further

ORDERED that the Clerk shall transfer this case to the U.S. District Court for the

District of Connecticut; and it is further

14 ORDERED that defendants’ deadline to respond to the complaint is stayed for 30 days

following the District of Connecticut’s acceptance of this case for transfer.

SO ORDERED.

Date: June 14, 2022 ______________ BERYL A. HOWELL Chief Judge

15