Natural Resources Defense Council v. U.S. Department of Energy
OPINION re: 16 MOTION to Transfer Case Pursuant to 28 U.S.C. § 1631 or, in the Alternative, 28 U.S.C. § 1404(a) filed by U.S. Department of Energy. Defendant now brings this motion to transfer the present action to the Sev enth Circuit on the basis that this Court lacks the jurisdiction to decide the matter as it impinges upon the Seventh Circuit's exclusive jurisdiction. (As further set forth in this Order.) For the foregoing reasons, the Defendant's motion to transfer is denied. (Signed by Judge Robert W. Sweet on 3/5/2018) (cf)
UNITED STATES DI STR I CT COURT
SOUTHERN DISTRICT OF NEW YORK
---- - - - --- - -- - -- - --- - - -- --- -- - --- ---- x
NATURAL RESOURCES DEFENSE COUNCIL ,
17 Civ. 6989 (RWS)
- against -
U.S . DEPARTMENT OF ENERGY ,
---- - - -- - --- -- - - - ---- - --------------- x
Attorneys for Plaintiff
DEMOCRACY FORWARD FOUNDATION
P . O. Box 34553
Washington , DC 20043
By : Jeffrey B . Dubner , Esq .
Attorneys for Defendant
GEOFFREY S . BERMAN
United States Attorney
Southern District of New York
86 Chambers Street , 3rd Floor
New York , NY 10007
By : Talia Kraemer , Esq .
Defendant U.S. Department of Energy ("DOE" or the
"Defendant") has moved pursuant to 28 U.S.C.
1631 and 1404(a)
to transfer this action brought by Plaintiff Natural Resources
Defense Counci l
("NRDC" or the "Plaintiff" ) to the United States
Court of Appeals for the Seventh Circuit . 1 Plaintiff brings this
action t o challenge the DOE's issuance of an administrative stay
(the "Administrative Stay " ) o f two provisi o ns o f an agen cy pr omulgated rule (the "Test Procedures Rule" or th e "Rul e") ,
which p ost p oned the provisions' effective date pending the
outcome o f a proceeding before the Seventh Circuit . Defendant
now brings this mo tion t o transfer the present action t o the
Seventh Circuit on the basis that this Court lacks the
jurisdiction to decide the matter as it impinges up o n the
Seventh Circuit's ex c lusi v e jurisdiction . Based on the facts and
conc lusi ons set forth bel ow , the Defendant's mo tio n t o transfer
is denied .
In the alternative , Defendant requests that this action be dismissed
for lack of jurisdiction or improper venue under Rule 12 (b) (1) and 12 (b) (3) .
See Def .' s Br . 2 n . 1 , 14 n . 15 , 15 n . 16 . However , the parties agreed , and this
Court endorsed , a scheduling order ("Scheduling Order " ) governing the
proceedings in this action that designated the present motion as one for
transfer only . See Revised Scheduling Order , ECF No . 15 . The Scheduling Order
provides that in t he event that the motion to transfer is denied , Defendants
are permitted to bring a joint motion to dismiss and motion for summary
judgment within 45 days . See id . Accordingly , to the extent that Defendant
moves in the alternative to dismiss this action at th i s stage , this motion is
denied with leave to re - file in accordance with the Scheduling Order . See id .
Facts & Prior Proceedings
The following facts and procedural history is drawn
from documents incorporated into the complaint (the
"Comp l aint " ) , as well as publicly available court filings in
other jurisdictions . See Makarova v . United States , 201 F. 3d
110, 113 (2d Cir. 2000)
(co urts may consider evidence outside
the pleadings when resolving a challenge to the court ' s subject
On January 5, 2017, DOE published a final ru le
entitled "Energy Conservation Program: Test Procedures for
Central Air Conditioners and Heat Pumps ." See Energ y
Conservation Pr ogram : Test Pr ocedures for Central Air
Conditioners and Heat Pumps, 82 Fed . Red . 1426 (Jan. 5 , 2017)
The Test Procedures Rule was part of a series o f rulemaking
proceedings DOE has undertaken to update and strengthen the
energy conservation standards and test procedures for central
air conditioners and heat pumps. Among other provisions , the
Test Procedures Rule sought to clarify th e test procedure for
central air conditioners and heat pumps that may be used as
replacements for units using an ozone - depleting refrigerant, R22 . Specifically , the Rule revised the required testing
procedures for "split" central air conditioning systems, which
consist of both outdoor and indoor components . The new
procedures require outdoor units that meet specific criteria to
be tested by the method prescribed for "outdoor units with no
On March 3 , 2017, Johnson Controls, Inc.
("JCI " ), a
manufacturer of outdoor units of central air conditioners, filed
a petition for review in the United States Court of Appeals for
the Seventh Circuit , challenging two provisions of the Test
Procedures Rule (the "Seventh Circuit Action"). See Pet. for
Review , ECF No. 1, Johnson Controls, Inc. v. U.S. Dep't of
Energy, No. 17-1470 (7th Cir. Mar. 3, 2017); Energy Conservation
Program: Test Procedures for Central Air Conditions and Heat
Pumps - Notification of Administrative Stay , 82 Fed. Reg . 32227
(July 13, 2017)
(the "Notification of Administrative Stay " ) .
NRDC sought to participate in the Seventh Circuit Action by
filing an unopposed motion seeking to intervene in support of
the Test Procedures Rule . See Mot . of Natural Resources Defense
Council for Leave To Intervene in Supp. of Resp 't, ECF No. 7 ,
Johnson Controls, Inc., No . 17-1470 (7th Cir. Apr. 3, 2017). The
Seventh Circuit denied NRDC 's motion without prejudice, but
invited NRDC to seek leave to participate as amicus in the
proceedings. Order , ECF No. 10 , Johnson Controls, Inc., No. 171470 (7th Cir. Apr. 3, 2017) . The Seventh Circuit granted
intervenor status to a competitor of JCI's, Lenn ox Internati onal
In c .
("Lennox") , which similarly sought leave to intervene in
support o f the Test Procedures Rule. See id.; M t. by Lenno x
Int'l Inc. to Intervene in Supp. of Resp'ts, ECF No.
Controls, Inc., No. 17 -1 470
(7th Cir. Apr. 3 , 2017) .
In addition to filing the Seventh Circuit Action,
s o ught t emporary relief fr om DOE with regard to the Test
Procedures Rule. First, on the same date JCI filed its petition
for review, JCI petitioned DOE under 42 U.S.C. § 6293(c) (3)
a 1 8 0-da y extension of time to comply with the new rule's
requirements for representations about product efficiency. 2 See
Letter from Daniel R. Simmons, Acting Assistant Secretary,
Office of Energy Efficiency and Renewable Energy, to Elizabeth
A. Haggerty, Vi ce -Pr es ident & General Manager Unitary Products
(June 2, 2017). Second, on May 31, 2017 , having not
yet received a ruling on its extensi o n request, JCI asked DOE to
administratively stay two provisions of the Test Procedures Rule
under Section 705 of the Administrative Pr ocedures Act
( "APA" )
pending the out come o f the Seventh Circuit proceedings. See
By statute , manufacturers may not make any r epresentations about a
consumer ' s product ' s efficiency un l ess the product has been tested in
accordance with any applicable testing procedures and the manufacturer ' s
representations disclose the results of that test i ng . 42 U. S . C . § 6293(c) (1).
When DOE prescribes new or a mended test pr ocedu r es , a manufacturer may
petition DOE for an extension of time to conform its representations with the
new procedures . Id . § 6293(c) (3) .
Notification of Administrative Stay , 82 Fed. Reg . at 32227. Two
days later, DOE granted JCI its requested 180-day extension ,
until January 1 , 2018, to comply with the representation
requirements of the Test Procedures Rule. See Simmons Letter.
Shortly thereafter , in light of the extension , JCI asked DOE to
hold its Section 705 stay request in abeyance . See Notification
of Administrative Stay , 82 Fed. Reg. at 32227.
On June 29 , 2017, Lennox filed a complaint in the
United States District Court for the Northern District of Texas,
seeking to challenge DOE ' s grant of JCI ' s request for a 180-day
extension (the "Texas Action") . See Compl . for Declaratory and
Inj. Relief , ECF No. 1 , Lenn ox Int'l Inc . v . U. S . Dep ' t of
Energy, No . 17 Civ . 1723 (N . D. Te x . June 29, 2017). That same
day, Lennox moved for an emergency stay of the 180-day
extension , arguing that it would offer JCI an unfair competitive
advantage . See Lennox's Mot. for Emergency Stay, ECF Nos. 3 & 4,
Lennox Int'l Inc. , No. 17 Civ. 1723 (N . D. Te x . June 29 , 2017) .
The Texas District Court denied the emergency motion. Order , ECF
No. 16, Lennox Int'l Inc., No . 17 Civ. 1723 (N . D. Tex . June 30 ,
201 7) .
On July 3 , 2017 , prior to the effective date of the
Test Procedures Rule, DOE issued an administrative stay
postponing the effective date o f two provisi o ns of the Rule
p e nding th e o ut come o f the Seventh Circuit pro c eedings. See
Grant o f Administrati v e Stay Co n c erning Test Pr o cedure f o r
Central Air Conditions and Heat Pumps
("Grant of Administrative
Stay" ) , Energ y .gov, https: // energy.g o v / gc / downloads / grantadministrative-stay-co n c erning-test - pr o cedur e - c entral-airc o nditioners-and-heat. DOE issued the Administrati v e Sta y under
Sec ti o n 705 o f the APA, which permits an agency to postpone the
effecti v e date o f agenc y acti o n pending judicial review if the
agency finds that "justice so requires." See 5 U.S.C. § 705;
Grant o f Administrative Sta y at 4. DOE stated that _it issued the
sta y based o n c o nc e rns raised by JCI abo ut the impact o f the two
r e levant prov isions of the Test Procedures Rule, and to ensur e
that all manufacturers were placed on e qual fo o ting with J CI.
See Grant of Administrati v e Stay at 4. DOE further pr o vided
that, aside fr om the tw o pr o visi o ns co v ered by the stay, the
Te st Pr o cedures Rule would o therwise g o into effect as scheduled
o n Jul y 5, 2017. 3 Id. at 1, 5.
When the Test Procedures Rule was promulgated , it specified an
ef f ective dat e of February 6 , 2017 . DOE postponed that effective date f ir st
to March 21 , 2017 , and then to July 5 , 20 17 . See Energy Conse r vat i on Program :
Test Pr ocedures for Centra l Air Conditioners and Heat Pumps - Final ru l e ;
delay of effective date , 82 Fed . Reg . 8985 (Feb . 2 , 2017) ; Energy
Conservation Program : Test Procedures for Central Air Conditioners and Heat
Pump s - Final rule ; further delay of effective date , 82 Fed . Reg . 14425
(Ma r ch 21 , 2017) . NRDC does not challenge those postponements . See Compl . 1 1
47 - 52 .
The Administrative Stay was published on DOE ' s website
on July 3, 2017 . See Grant of Administrative Stay,
https : //energy . gov/gc/downalods/grant - administrat i ve-stay concerning - test - procedure - central - air - conditioners - and-heat. On
that same day the Government fi l ed a notice in the Texas Action ,
attaching a copy of the Administrative Stay . Notice of
Administrative Stay Pending Judicial Review in the Seventh
circuit ("Notice of Administrative Stay"), ECF No . 18, Lennox
Int'l Inc ., No . 17 Civ . 1723 (N . D. Tex . July 3, 2017) at Ex . A.
A notification of the stay was later published in the Federal
Register . 4 On July 17 , 2017, Lennox voluntarily dismissed the
Texas Action , see Notice of Dismissal , ECF No . 22 , Lennox Int'l
Inc. , No. 17 Civ. 172 3 (N .D. Tex . July 17 , 2017) , although
Lennox remains an intervenor in the Seventh Circu i t Action .
On September 14 , 2017, NRDC filed the present action
to challenge the Administrative Stay. 5 See Compl . i i 47 - 52. Prior
t o filing this acti on , NRDC sought to intervene in the Seventh
The Federal Register notification indicates that the stay was issued on
July 3 , 2017 . Notification of Administrative Stay , 82 Fed . Reg . at 32227 .
On September 11 , 2017 , NRDC filed a petition for review of the
Administrative Stay in the Second Circuit " to protect its rights " in case a
court were to decide that jurisdiction properly lies in the Second Circuit .
See Pet ' r ' s Unopposed Mot . to Hold in Abeyance Pending Disposition of
Proceedings in the Dist . Ct . at 9 , ECF No . 13 , NRDC v . U.S . Dep ' t of Energy ,
No . 17-2827 (2d Cir . Oct. 11 , 2017) . The Second Circuit petition for review
has been held in abeyance pending the outcome of the present motion . Order ,
ECF No . 1 7 , id .
Circuit Action on which the Administrative Stay was predicated ,
but it did not directly seek relief before the Seventh Circuit .
The present motion to transfer was heard and marked
fully submitted on January 17, 2018 .
DOE's Motion to Transfer to the Seventh Circuit is Denied
DOE requests transfer of this acti on to the Seventh
Circuit under either 28 U. S.C . § 1631 or§ 1404(a ) . Section 1631
requires a court to transfer a case "to any other court in which
the action or appeal could have been brought at the time it was
filed or noticed" if the transferor court finds that it lacks
jurisdiction over the case , and if making such a transfer "is in
the interest of justice. " See 28 U. S.C. § 16 31 ; Ruiz v . Mukasey,
552 F.3d 269 , 273 (2d Cir. 2009)
required to transfer a case to another court when :
jurisdiction over the case;
(1) we lack
(2) the transferee court would have
possessed jurisdiction over the case at the time it was filed;
and (3) transfer would be in the interest of justice. " ) . As
such , transfer pursuant to Section 1631 is mandatory only when
all conditions are met . See Paul v. INS,
Cir . 2003).
348 F.3d 43, 46 (2d
Section 1404(a) allows a district court to transfer a
case for the convenience of parties and witnesses "to any other
district or division where it might have been brought " if doing
so is "in the interest of justice." See 28 U. S . C. § 1404(a).
Thus, pursuant to either statute, a court may only transfer an
action to a court where the action could have been brought
originally. See Davallo v. Kaplan, 256 F. Supp . 3d 482, 483
(finding that on a§ 1404(a) motion to transfer,
the first step for the court is to "determine whether the case
could have been brought in another district.") .
Here, DOE seeks transfer of the present action to the
Seventh Circuit only . See Def.'s . Br. 1. Therefore, the central
inquiry pursuant to both statutes is whether this action could
have originally been brought by the NRDC in the Seventh Circuit.
NRDC argues that this motion may be resolved simply by
considering jurisdictional principles. NRDC was not permitted to
have originally filed this action either in federal appellate
court, or in a district court in the Seventh Circuit in light of
subject matter and personal jurisdiction concerns . DOE argues
that NRDC's present challenge to the DOE's issuance of the
Administrative Stay in the Seventh Circuit Action rests
exclusively within the jurisdiction of the Seventh Circuit, and
therefore must be transferred there .
"The normal default rule is t hat persons seeking
review of agency action go first to district court rather than
to a court of appeals . " Watts v . SEC , 482 F . 3d 501, 505
( internal quotations and alterations omitted) . A
direct filing in a court of appea l s is an exception to the
original jurisdiction of the district courts . Id . "On l y when a
direct - review statute specifically gives the court of appeals
subject - matter jurisdiction to direct l y review agency action may
a party seek i nit i a l review in an appellate court ." Micei Int ' l
v . Dep ' t of Commerce , 613 F . 3d 1147 , 1 151 (D . C . Cir . 2010)
(citing Watts , 482 F.3d at 505)
(interna l quotations omitted).
However , if the requisite direct - review provision appears in
neither the " statute pursuant to which the agency action is
taken , or in another statute app li cab l e to it ," see Five Flags
Pipe Line Co . v . Dep ' t of Transp ., 854 F . 2d 1438 , 1439 (D.C.
Cir . 1988) , then "subject matter jur i sdiction regarding review
of agency rulemaking falls to the d i strict courts under federal
question jurisdiction . " See Natural Res . Def . Counci l v . Abraham
(" Abraham" ) , 355 F . 3d 179 , 1 93
(2d Ci r. 2004)
(interna l citation
omitted) ; see also I ragorri v . Un i ted Techs . Corp ., 274 F . 3d 65 ,
73 (2d Cir . 200 1 )
p l aintiff should not be compe l led to mount
a suit in a district where she cannot be sure of perfecting
Here, the only possible statutory authorization
permitting the NRDC t o bring such an action directly in a court
of appeals is 42 U.S.C. § 6306(b) (1 ) , which allows a person
"adversely affected by a rule prescribed under section 6293 ,"
such as the Test Procedures Rule, to "file a petition with the
United States court of appeals for the c ir cu it in which such
person resides or has his principal place of business." See ,
98 1 F.2d 542, 551
(D.C . Cir.
Ukiah Adventist Hosp. v. FTC,
(eva luatin g whether transfer was permissible by l ooking to
venue provision of direct review statute). Thus, Section
6306(b) (1) conceivably permits the NRDC to file the present
action in the court of appeals for the circuit in which it
"resides" or has its "principal place of business ." See id.
NRDC is an entity headquartered in New York City.
14. Its principal place of business is therefore in New
York City , within the Second Circuit. See generally Hertz Corp .
v . Friend,
559 U.S. 77 , 92 - 93 (2010)
(defining "principal place
of business" as "the place where a corporation's officers
direct, control , and coordinate the corporat i o n's activities[,]
the place where the corporation maintains
its headquarters"). Under the federal venue statute, this is
also NRDC's place of residency. See 28 U.S.C.
("[A]n entity with the capacity to sue and be sued shall be
deemed to reside ,
. if a plaintiff, only in the judicial
district in which it maintains its principal place of business .
. "). As such , while Section 6306(b) (1) establishes that the
NRDC was permitted to file the present action in the Second
Circuit originally , it does not create authority for the NRDC to
have filed in the Seventh Circuit. Because the Seventh Circuit
is not a court where this case cou l d have been brought , transfer
is therefore not authorized under either Section 1631 or
Further , Second Circuit precedent belies the DOE ' s
argument that NRDC is required to bring this challenge in the
same forum as the litigation contesting the substance of the
underlying rule. In Abraham , the Second Circuit held that it
maintained jurisdiction to hear a challenge to a series of DOE
final rules delaying the effective date of implementation of
certain efficiency standards even though a challenge to the
underlying efficiency standards was pending before the Fourth
Circuit. 355 F . 3d at 189 - 90, 194. The Second Circuit did not
suggest that the fact that underlying litigation was pending in
a different court was in any way relevant to its jurisdiction.
According to this logic , there is no reason why this
Court lacks the jurisdiction to review the DOE's decision to
delay the effective date of the Rule simply because another case
is pending before the Seventh Circuit challenging the Rule
Nevertheless, even if there were some plausible basis
for filing the present action in the Seventh Circuit , transfer
to that forum would be inappropriate. Transfer is proper on ly if
the plaintiff has an "unqualified right" to bring the action in
the transferee forum, such that "venue [is] proper in the
transferee district and the transferee court [has] power to
command jurisdiction over all of the defendants." Shutte v .
Armco Steel Corp ., 431 F.2d 22 , 24
(3d Cir . 1970)
omitted) . "If there is a 'real question' whether a plaintiff
cou ld have commenced the action originally in the transferee
forum, it is evident that he would not have an unqualified right
to bring his cause in the transferee forum." Id.; see also Harry
Rich Corp . v. Curtiss-Wright Corp. , 308 F. Supp. 1114, 111 6
(S .D.N. Y. 1969)
("The plaintiff must have had an unqualified
right to bring the action in the proposed transferee district
independent of the consent of the defendant .
." ) . As such,
even if there were some ambiguity as to whether NRDC's challenge
cou ld have been brought in the Seventh Circuit , any ambiguity is
resolved against transfer.
DOE ' s reliance on Section 1404(a) in seeking transfer
to the Seventh Circuit fails for another reason: as the plain
statutory language provides, transfer is allowed only to a
"district or division , " not to an appellate court . DOE suggests
that despite this language, Section 1404(a) should be construed
to contain the entirety of preexisting forum non conveniens law.
However , this argument has been rejected by both the Supreme
Court and the Second Circuit . See Piper Aircraft Co. v. Reyno,
454 U. S. 235, 253 (1981); see also Capital Currency Exch . , N.V.
v . Nat'l Westminster Bank PLC , 155 F . 3d 603 , 607
(2d Cir. 1998)
("Secti o n 1404(a) does not apply in cases where the purportedly
more convenient forum is not a United States district court . ")
(citation omitted) . Thus, this a ct ion may not be transferred to
the Court of Appeals for the Seventh Circuit under Secti o n
1404(a) even if that were a forum where NRDC could have filed
its petition for re v iew.
Finally, even if transfer to the Seventh Circuit was
permissible , such action would still be inappropriate as DOE has
failed to satisfy its burden of making a strong showing that
transfer is warranted. See N . Y. Marine & Gen. Ins . Co. v.
Lafarge N . Am . , Inc., 599 F . 3d 102 , 114 (2d Cir . 2010)
party requesting transfer carries the burden of making out a
strong case f o r transfer")
(internal qu o tation and citation
omitted). On a motion to transfer pursuant to§ 1404(a), " the
district court would 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 Constr. Co. , Inc. v . U.S . Dist. Court.
for W. Dist. of Texas,
134 S . Ct . 568 , 581
(2013). The factors
considered in granting a motion to transfer are :
( 1) the plaintiff's choice of forum, ( 2) the
convenience of witnesses, ( 3) the location of relevant
documents and relative ease of access to sources of
proof , ( 4) the convenience of parties, ( 5) the locus
of operative facts, ( 6) the availability of process to
compel the attendance of unwilling witnesses, [and]
(7) the relative means of the parties.
Co., Inc. v . Gottdiener , 462 F.3d 95 , 106-07
Cir. 2 00 6)
(alteration in original)
( citation omitted) .
Critically, while judicial economy may be considered as an
"judicial economy .
. is not alone
sufficient ." In re Warrick , 70 F . 3d 736 , 740
(2d Ci r. 1995); see
(quoting In re Scott, 709 F.2d 717, 721
(D . C . Cir .
("Inconvenience to the court is a relevant factor but,
standing alone, it should not carry the day.").
Considering all factors taken together, " unless the
balance is strongly in favor of the defendant , the plaintiff 's
choice of forum should rarely be disturbed ." Gulf Oil Corp . v.
Gilbert, 330 U.S. 501, 508 (1947) ; see also Koslofsky v .
Santaturs, Inc. , No. 10 - cv - 9160 , 2011 WL 10894856 , at *2
(S . D.N . Y. Aug. 18, 2011)
(citing Iragorri , 274 F . 3d at 70)
(internal citation omitted)
("[A]bsent a strong showing that the
balance of factors favors the alternative forum,
Plaintiff ' s
choice of forum will not be disturbed . ") ; Orb Factory, Ltd . V .
Design Sci. Toys, Ltd . , 6 F . Supp. 2d 203, 210
(S . D. N.Y. 1998)
("Generally , plaintiff ' s choice of forum is
entitled to considerable weight, and should not be disturbed
unless the balance of the several factors is strongly in favor
of the defendant .
Further , the plaintiff's choice is
generally accorded more deference
. where the plaintiff is a
resident of the forum district.") .
While Defendant agrees that the D.H. Blair factors
control here, DOE argues instead that "efficiency and the
interests of justice, based on the totality of the
circumstances," should guide the transfer analysis. See Def .' s
Reply Br . 9 (internal citation omitted). DOE contends that
judicial economy weighs in favor of transfer because Plaintiff ' s
challenge to the agency ' s issuance of the Administrative Stay
might impinge on the Seventh Circuit ' s authority .
The Northern District of California rejected an
argument identical to that proposed by DOE in California v .
United States Bureau of Land Mgmt. , No. 17 - cv-3804
(N . D. Cal .
Sept. 7, 2017). In that case , the Bureau of Land Management
("BLM") issued a stay under Section 705 in light of a
substantive challenge to a rule pending in the District of
Wyoming, and the state of California challenged the stay in the
Northern District of California . See Order Denying Defs . ' Mot.
to Transfer at 2 , California v . U. S . ELM, No. 17 - cv-3804 , at 2
(N.D . Cal . Sept. 7, 2017) , Doc. No . 73 (slip op.). Defendants
moved to transfer the case to the District of Wyoming , arguing
"that it would serve the interests of justice because litigation
related to the validity of the original issuance of the Rule is
already pending in the District of Wyoming . " Id . at 4. The
district court rejected this argument:
[J]udicial economy does not favor transfer because
there is no overlap between this case and the
litigation in the District of Wyoming. This case
concerns an agency action in which Defendants
postponed compliance dates under Section 705 after the
effective date had passed . By contrast , the District
of Wyoming litigation challenges a different agency
action , the BLM's promulgation of the Rule .
exceeding its authority under the operative statute.
Thus , this case concerns a completely distinct, purely
legal question about Defendants ' authority to postpone
the compliance dates under Section 705 . The extent of
Defendants ' authority under Section 705 is not at
issue in the District of Wyoming case , as Section 705
was not invoked.
Id . at 4 - 5 .
Likewise, here, there is no overlap between the
present action and the litigation in the Seventh Circuit. This
case concerns an agency action in which the DOE issued a stay
postponing the effective date of two provisions of the Test
Procedures Rule, whereas the Seventh Circuit litigation
chal l enges the Test Procedures Rule itself. The current action
concerns an entirely distinct issue, as well as a separate rule
with a separate administrative record, than that before the
Accordingly , "[w]here the balance of convenience is in
equipoise, plaintiff's choice of forum should not be disturbed."
Doman v. Herman, No. 95 -cv - 260 , 1 995 WL 347402, at *1 (S.D.N.Y.
June 8 , 1995)
(quo ting Ayers v. Arabian American Oil Co., 571 F.
Supp . 707, 709 (S .D.N.Y. 1 983)) .
For the foregoing reasons , the Defendant ' s motion to
transfer is denied .
It is so ordered .
New York, NY
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