Escander v. McCarthy

TAMER ESCANDER, Plaintiff, v. RYAN MCCARTHY, Defendant.

Civil Action No.: 19-3802 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 16, 2020

Re Document Nos.: 5, 6, 9

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE; DENYING PLAINTIFF'S MOTION TO STAY BRIEFING AS MOOT

I. INTRODUCTION

The Plaintiff, Tamer Escander, has brought a complaint against Defendant Ryan McCarthy in his capacity as United States Secretary of the Army. The complaint, which seeks damages as well as injunctive and declaratory relief, alleges violations of Escander's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. § 1651. Defendant has moved, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6), to dismiss Escander's complaint on grounds of improper venue, untimely exhaustion, or failure to state a claim, or in the alternative, to transfer this case to the Eastern District of North Carolina pursuant to 28 U.S.C. § 1406(a). Escander has consented to the transfer in the interest of judicial economy and the prompt resolution of the case, and in the meanwhile asks the Court to stay all briefing deadlines. Defendant has opposed Escander's motion to stay briefing on the grounds that granting Escander's request would be inefficient and unfair, and Defendant renews his request for the Court to adjudicate the motion to dismiss. For the reasons discussed below, because Escander has consented to the transfer to the Eastern District of North Carolina, and the public and private interests favor transfer, the Court grants Defendant's motion to transfer the case and denies Escander's motion to stay proceedings as moot.

II. FACTUAL BACKGROUND

Escander, a U.S. citizen and North Carolina resident, worked from 2011-2015 as an Arabic language instructor within the Department of Central Asian and Middle Eastern Languages, USAJFK Special Warfare Center and School ("SWCS") on Fort Bragg in North Carolina. Compl. ¶ 5, ECF No. 1. By his own account, Escander's national origin is Egyptian, and his religion is Coptic Christian. Id. ¶ 6. In October 2013, while working at SWCS, Escander wrote a declaration in support of a colleague's security clearance appeal and provided support for that colleague's EEO complaint. Id. ¶ 12. Escander alleges that his national origin, religion, and written declaration in support of his colleague led Dr. Amir Nabipour, an employee of the Army, and at all relevant times head of the Department of Central Asian and Middle Eastern Languages, to make detrimental allegations about Escander's teaching methods. Id. ¶¶ 7, 14-25. After Escander completed teaching for the term, another staffing firm was hired, and Nabipour allegedly told the new staffing firm that Escander was not allowed back at Fort Bragg. Id. ¶¶ 26-36.

After Escander was informed that the Army had allegedly suspended him from Fort Bragg, Escander sought Equal Employment Opportunity ("EEO") counseling from the Army. Id. ¶¶ 36-37. After counseling failed to resolve the matter, Escander filed a formal EEO complaint with the Army on November 30, 2014. Id. ¶ 37. That complaint was dismissed on the grounds that Escander was not an Army employee, and Escander appealed to the Equal Employment Opportunity Commission ("EEOC") Office of Federal Operations ("OFO"). Id. ¶¶38-39. After a reversal, remand, and investigation, Escander's case was again dismissed. Id. ¶¶ 40-45. Escander again appealed to the OFO, and his case was once more reversed, remanded, and further investigated. Id. ¶¶ 46-52. On September 19, 2019, the Army EEO office issued a Final Agency Decision in which it found that Escander was not subjected to discrimination. Id. ¶ 53. Escander contends that he has not been able to be hired as an Arabic language instructor by any staffing firm servicing Fort Bragg since 2015. Id. ¶ 54.

Escander's first cause of action is that Nabipour and potentially other officials in SWCS discriminated against Escander on the basis of his Coptic Christian religion in violation of Title VII. Id. ¶ 56. The second cause of action is that Nabipour and potentially other officials in SWCS discriminated against Escander on the basis of his Egyptian national origin in violation of Title VII. Id. ¶ 58. The third and final cause of action is that Nabipour and potentially other officials in SWCS retaliated against Escander's protected activity of serving as a witness to support his colleague's EEO and security clearance matters. Id. ¶ 60. Escander requests $300,000 in compensatory damages plus prejudgment interest, in addition to injunctive and equitable relief, attorney's fees and litigation costs, including fees and costs incurred in the EEO administrative process, and other declaratory relief as may be appropriate. Id. at 10.

The parties do not dispute that all facts underlying Escander's allegations occurred in North Carolina. See Compl. ¶¶ 5, 38, 49, 54; Def.'s Mot. Dismiss or Transfer at 1, ECF No. 5-1.¹ Defendant has moved to transfer the case to the Eastern District of North Carolina, to which Escander has agreed. Def.'s Mot. Dismiss or Transfer at 1; Pl.'s Mot. Stay Briefing at 1, ECF No. 9; Pl.'s Reply Supp. Mot. Stay Briefing at 4, ECF No. 11. While Defendant's motion totransfer was pending, Escander filed a motion to stay briefing. See Pl.'s Mot. Stay Briefing. Escander specifically requests that the Court, given Escander has consented to the transfer, stay all briefing deadlines on Defendant's motion to dismiss or transfer venue. Id. at 1.

III. ANALYSIS

Defendant has moved, pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6) to dismiss Escander's complaint on grounds of improper venue, untimely exhaustion, or failure to state a claim, or in the alternative, to transfer this case to the Eastern District of North Carolina pursuant to 28 U.S.C. § 1406(a).² Def.'s Mot. Dismiss or Transfer at 1. The question before the Court, therefore, is whether the circumstances of this case warrant transfer of venue. Because Escander consents to the transfer, and the public and private interests favor transfer to the Eastern District of North Carolina, the Court concludes that the matter should be transferred rather than dismissed. Accordingly, the Court grants Defendant's motion to transfer venue and transfers this case to the Eastern District of North Carolina.

A. Legal Standard for Transfer

If venue is improper, rather than dismiss the case, a district court may, "if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a); see Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981). The "standard remedy for improper venue is to transfer the case to the proper court rather than dismissing it—thus preserving a [plaintiff's] ability to obtain review." Nat'l Wildlife Fed'n v. Browner, 237 F.3d 670, 674 (D.C. Cir. 2001). The decision whether to transfer or dismiss "rests within the sound discretion of the district court." NaartexConsulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983); see also 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3827 (4th ed. 2020) ("[I]t is enough simply that the district judge, in the sound exercise of discretion, concludes that transfer is in the interest of justice, as many courts have concluded."). Generally, "the interest of justice requires transferring such cases to the appropriate judicial district rather than dismissing them." Williams v. GEICO Corp., 792 F. Supp. 2d 58, 64 (D.D.C. 2011) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962); James v. Booz-Allen, 227 F. Supp. 2d 16, 20 (D.D.C. 2002)); Braun v. U.S. Dep't of the Interior, 288 F. Supp. 3d 293, 299-300 (D.D.C. 2018).

B. Proper Venue

In determining a case's proper venue, courts must accept the plaintiff's well-pled factual allegations as true, resolve any factual conflicts in the plaintiff's favor, and draw all reasonable inferences in favor of the plaintiff. See Hunter v. Johanns, 517 F. Supp. 2d 340, 343 (D.D.C. 2007); Davis v. Am. Soc'y of Civil Eng'rs, 290 F. Supp. 2d 116, 121 (D.D.C. 2003). In a typical action against a federal agency, venue is determined under 28 U.S.C. § 1391(e)(1), which provides that a "civil action in which a defendant is an officer or employee of the United States or any agency thereof . . . may . . . be brought 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." 28 U.S.C. § 1391(e). But Escander brings this action under Title VII, which has its own venue provisions specifying that a plaintiff may bring suit in (1) "any judicial district in the State in which the unlawful employment practice is alleged to have been committed," (2) "the judicial district in which the employmentrecords relevant to such practice are maintained and administered," or (3) "the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3).³

1. This Court is an Inappropriate Venue

Escander initially claimed this district was an appropriate venue under § 1391. Compl. ¶ 2. This was ostensibly due to the understandable misconception that the United States Secretary of the Army resides within the District of Columbia. See, e.g., Summons, ECF No. 2 (listing Ryan McCarthy's work address as in Washington, D.C.). However, as courts in this district have previously noted, the Army's principal office is located at the Pentagon in Arlington, Virginia. See, e.g., Ellis-Smith v. Sec'y of Army, 793 F. Supp. 2d 173, 177 (D....