SMITH v. SHULKIN et al
ORDER: Upon consideration of Defendant's Motion to Dismiss, or, Alternatively, to Transfer 17 , it is hereby ORDERED that the case be TRANSFERRED to the Middle District of Florida. See document for details. Signed by Judge Randolph D. Moss on 11/16/17. (lcrdm3, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 17-1118 (RDM)
DAVID SHULKIN, Secretary, Department of
Veterans Affairs, et al.,
Plaintiff Timothy Smith brings this action against the Secretary of the Department of
Veterans Affairs (“VA”) and other VA employees. Dkt. 1 at 1–2. He alleges that the VA
employed him in Jacksonville, Florida, and there discriminated against him on the basis of his
disabilities. Id. at 3–4. Smith remains a Florida resident today. Id. at 1. He filed this action,
proceeding pro se, in the District of Columbia.
On June 28, 2017, the Court ordered the parties to show cause why the case should not be
transferred to the Middle District of Florida. Minute Order (June 28, 2017). The VA responded
by filing a motion to dismiss, or, alternatively, to transfer the case to the Middle District of
Florida. Dkt. 17. Plaintiff, now represented by counsel, has consented to the transfer of the case
to the Middle District of Florida. Dkt. 18; Dkt. 18-1.
In actions alleging that federal agencies have unlawfully discriminated in employment on
the basis of disability, venue is governed by 42 U.S.C. § 2000e-5(f)(3). See 29 U.S.C.
§ 794a(a)(1). Such actions may therefore be brought (1) in any district in the state in which the
alleged unlawful employment practice occurred; (2) in the district in which the relevant
employment records “are maintained and administered;” or (3) in the district “in which the
[plaintiff] would have worked but for the alleged unlawful employment practice.” 42 U.S.C.
§ 2000e-5(f)(3). Only if the defendant “is not found” within any of these districts may the action
be brought in the district in which the defendant “has [its] principal office.” Id.
Applying this test to the present case, it is clear that the Middle District of Florida is the
appropriate venue for Smith’s suit. First, Plaintiff’s complaint alleges discrimination in the
Middle District of Florida and that the discrimination resulted from the actions of officials based
in Florida. Dkt. 1. Second, the VA represents that the relevant records are kept in the Middle
District of Florida. Dkt. 17 at 7. Third, Plaintiff resides in Jacksonville, a city located in the
Middle District of Florida. Dkt. 1. Finally, the VA does not dispute that it can be “found”
within the Middle District of Florida. The District Court of the District of Columbia, therefore,
is not a proper venue for this action.
“When venue is improper, the Court must dismiss the claim or, ‘if it be in the interest of
justice, transfer [it] to any district or division in which it could have been brought.’” Ellis-Smith
v. Sec’y of Army, 793 F. Supp. 2d 173, 177 (D.D.C. 2011) (quoting 28 U.S.C. § 1406(a)).
Although the Court retains much discretion regarding whether to transfer an action pursuant to
28 U.S.C. §1406(a), “the interest of justice generally requires transferring a case to the
appropriate judicial district in lieu of dismissal.” Id. That conclusion is particularly appropriate
in cases, such as this one, in which the parties consent that the case should be litigated elsewhere.
The Court, accordingly, ORDERS that the case be TRANSFERRED to the Middle
District of Florida.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: November 16, 2017
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