Escander v. McCarthy ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TAMER ESCANDER, :
:
Plaintiff, : Civil Action No.: 19-3802 (RC)
:
v. : Re Document Nos.: 5, 6, 9
:
RYAN MCCARTHY, :
:
Defendant. :
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. ¶¶
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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 to
1
In the interest of clarity, the Court refers to the original pagination used in the
Memorandum of Law in Support of Defendant’s Motion to Dismiss or to Transfer Venue, rather
than the pagination imposed by the ECF filing system.
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transfer 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.” Naartex
2
For unclear reasons, Defendant submitted a duplicate filing. Def.’s Mot. to Transfer,
ECF No. 6. For purposes here, the Court will dismiss the duplicate, ECF No. 6, and will only
refer to Def.’s Mot. to Dismiss or Transfer, ECF No. 5.
4
Consulting 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 employment
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records 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.D.C. 2011) (“The Secretary
of the Army’s principal office is located in the Pentagon, in Arlington, Virginia.”); Saran v.
Harvey, No. 04-1847, 2005 WL 1106347, at *4 (D.D.C. May 9, 2005) (“[T]he Secretary of the
Army’s principal office is at the Pentagon in Arlington, Virginia” and therefore “venue is not in
the District of Columbia for plaintiff’s Title VII claim.”); Donnell v. Nat’l Guard Bureau, 568 F.
Supp. 93, 94–95 (D.D.C. 1983) (holding similarly).
But this district is improper under the venue provisions of Title VII. See 42 U.S.C. §
2000e–5(f)(3). Escander does not allege that any unlawful employment practice occurred here,
nor is this the judicial district in which Escander would have worked but for the alleged unlawful
employment practice. Escander has at all times, for the purposes of this claim, worked and
resided in North Carolina. See Compl. ¶¶ 3, 5. Furthermore, Escander makes no claims that any
employment records exist in the District of Columbia, nor that it is the judicial district in which
3
A fourth catch-all provision that allows an action to “be brought within the judicial
district in which the respondent has his principal office” is not applicable here. 42 U.S.C. §
2000e–5(f)(3).
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the employment records relevant to Defendant’s unlawful employment practices are maintained
and administered. Because this Court finds that venue is improper under the applicable venue
provisions of Title VII, the Court will transfer the case to the appropriate district rather than
assess the merits of Escander’s claims or Defendant’s assertions of untimely exhaustion or
failure to state a claim.
2. The Eastern District of North Carolina is an Appropriate Venue
The Eastern District of North Carolina is an appropriate venue under 42 U.S.C. § 2000e–
5(f)(3). Although Fort Bragg spreads across several counties that straddle district boundaries,
Courts have traditionally held Fort Bragg to be in the Eastern District of North Carolina. 4 See,
e.g., United States for use & benefit of NetPlanner Sys., Inc. v. GSC Constr., Inc., No. 4:16-CV-
150, 2017 WL 3000027, at *1 (M.D. Ga. Apr. 3, 2017) (holding the Eastern District of North
Carolina was the correct venue for claims occurring at Fort Bragg); PBG of N. Carolina, Inc. v.
Zurich Am. Ins. Co., No. 15-80448-CIV, 2015 WL 11438216, at *4 (S.D. Fla. July 6, 2015)
(holding same); Wood v. United States, No. 09-CV-4066, 2010 WL 582350, at *1 (W.D. Ark.
Feb. 11, 2010) (holding same); see also Corbett v. McHugh, No. 1:11CV700, 2011 WL
6370997, at *3 (M.D.N.C. Dec. 20, 2011) (transferring to the Eastern District even though Fort
Bragg has a partial presence in the Middle District). All of the alleged incidents giving rise to
the complaint occurred at Fort Bragg. Compl. ¶¶ 5, 28, 30, 36, 38, 49; Def.’s Mot. Dismiss or
Transfer at 7.
Escander makes no indication as to where his employment records may be kept. There
does seem to be a dispute about who actually employed Escander. Defendant claims that
4
See http://www.nced.uscourts.gov/counties/Default.aspx (last visited Aug. 14, 2020)
(listing the counties under the jurisdiction of the Eastern District of North Carolina).
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Escander was employed by a staffing firm called Multi-Lingual Solutions (“MLS”) but may have
also worked for a company called Mid-Atlantic Professionals, Inc., DBA/SSI. Def.’s Mot.
Dismiss or Transfer at 9 n.2; ECF No. 5-3 at 4; ECF No. 5-4 at 80:14–15. Escander contends
that he was employed by several staffing firms, one of which was MLS. Compl. ¶¶ 13, 26.
Defendant intimates that Escander was not an employee of the Army. Def.’s Mot. Dismiss or
Transfer at 13. But Escander suggests that he may have been in a “joint employment
relationship with the Army and any particular staffing firm.” Compl. ¶¶ 39, 46. The Court,
absent further briefing from the parties, is unable to state who actually employed Escander and,
thus, cannot determine where his employment records may be kept. Nonetheless, because the
Eastern District of North Carolina satisfies the other venue provisions of Title VII, as all events
giving rise to the claim occurred at Fort Bragg, and Plaintiff consents to transfer to the Eastern
District of North Carolina, this Court finds it unnecessary to make any determinations about
Escander’s employment status.
The Eastern District of North Carolina is also the judicial district in which Escander
would have worked but for the alleged unlawful employment practice at Fort Bragg. See Compl.
¶ 54. Crucially important here too is the fact that Escander has consented to the transfer. Pl.’s
Mot. Stay Briefing at 1 (“In the interest of judicial economy and the prompt resolution of this
case, Plaintiff consents to this transfer.”); Pl.’s Reply Supp. Mot. Stay Briefing at 4 (reiterating
that “the Court should transfer this case to the Eastern District of North Carolina”). The Court
sees little reason to refrain from transferring the case when the Eastern District of North Carolina
is an appropriate venue and Escander agrees, without reservation, that transferring this case there
is in the interest of justice. See Pl.’s Reply Supp. Mot. Stay Briefing at 2 n.1 (“Escander hopes
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that this Court will transfer the case relatively quickly”). Accordingly, the Court transfers the
case to the Eastern District of North Carolina.
C. Further Briefing in this Court is Unnecessary
Defendant originally requested that this Court transfer the case to the Eastern District of
North Carolina pursuant to 28 U.S.C. § 1406(a), or in the alternative dismiss Escander’s
complaint pursuant to Fed. R. Civ. P. 12(b)(3) or 12(b)(6). Def.’s Mot. Dismiss or Transfer at 6.
Defendant asserts several grounds on which dismissal is appropriate: (1) Escander failed to
timely exhaust his administrative remedies under 29 C.F.R. § 1614.105(a)(1); (2) Escander failed
to plead sufficient facts to state a plausible claim for relief on any basis; and (3) Escander failed
to plead sufficient facts to establish a plausible claim of retaliation. Id. at 12–18. Defendant
appears to equivocate on his preferred course of action. Id. at 11 (“In the interest of justice and
in the Court’s discretion, plaintiff’s action may be transferred . . . [but] dismissal is also
appropriate.”). Escander, after agreeing to transfer the case, has filed a motion to stay all
briefing deadlines in this Court. Pl.’s Mot. Stay Briefing at 1. Defendant, rather than
acknowledge that Escander has agreed to the transfer—i.e. the relief originally requested—has
responded by urging for dismissal and litigating against Escander’s motion to stay. Def.’s Opp’n
Pl.’s Mot. Stay Briefing, ECF No. 10. However, because this Court has determined that this
district is an inappropriate venue for Escander’s claims, it refrains from addressing the merits of
the case nor the legal sufficiency of the pleadings. Furthermore, the Court will not entertain
further briefing from the parties and leaves it to a court with proper venue to assess each party’s
claims.
Escander points out, and this Court concurs, that it would be unfair and against the
principles of justice for the Court to agree it is not the proper venue and then adjudicate a
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dispositive motion according to D.C. Circuit controlling precedent. Cf. Attkisson v. Holder, 241
F. Supp. 3d 207, 214–15 (D.D.C. 2017). In fact, after forcefully arguing that this Court is an
improper venue, Defendant relies almost exclusively on this Circuit’s case law when arguing that
Escander pled insufficient facts in the complaint or failed to exhaust his administrative remedies.
The Court leaves those issues for the Eastern District of North Carolina under its own controlling
precedent. Accordingly, the Court denies as moot Escander’s motion to stay the proceedings and
transfers the case to the Eastern District of North Carolina.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss or to Transfer Venue (ECF
No. 5) is GRANTED IN PART and the case is TRANSFERED to the Eastern District of North
Carolina. Defendant’s duplicate Motion to Transfer (ECF No. 6) is DENIED AS MOOT.
Plaintiff’s Motion to Stay Briefing of Defendant’s Motion to Dismiss (ECF No. 9) is DENIED
AS MOOT. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: September 16, 2020 RUDOLPH CONTRERAS
United States District Judge
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