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United States District Court, N.D. California

June 16, 2004.


The opinion of the court was delivered by: JAMES LARSON, Magistrate Judge



Before the Court is Defendants' motion to dismiss for improper venue. Plaintiff appeared in pro per. Assistant United States Attorney Steven J. Saltiel appeared for Defendants. The Court considered the moving and opposing papers and the arguments of both sides at the hearing, hereby grants the motion, and exercises its discretion to transfer the case to the Eastern District of Virginia, where venue is proper.

  Factual and Procedural Background

  Plaintiff Carmen Marron ("Plaintiff") worked for the Department of Defense Dependents Schools ("DoDDS") as a Spanish Immersion teacher at an elementary school in Okinawa, Japan. She resigned from her job as part of the settlement of her employment dispute. Part of the agreement, which was signed in 1998, was that she would not seek re-employment with DoDDS earlier than the 2001-2002 school year; in turn the agency would agency would provide only limited information to any potential employer including the nature of her position, the duration of her employment, that she had voluntarily resigned, and that her "official personnel record reflects fully satisfactory performance."

  Plaintiff applied for re-employment with DoDDS in June 2001, but did not provide a copy of her most recent evaluation, which was the normal procedure. In June or early July, in lieu of the evaluation, agency headquarters contacted Plaintiff's former supervisor who recommended against rehiring Plaintiff. In August, when Plaintiff found out that the negative recommendation was apparently still in her file, she contacted DoDDS, which removed the document from the paper file but left it in the electronic data base. These were finally removed in November.

  Plaintiff attempted to retract her resignation, alleging that DoDDS had breached the settlement agreement, and she petitioned the Merit Systems Protection Board seeking enforcement of the agreement. In an Initial Decision issued February 19, 2002, the Administrative Judge denied Plaintiff's petition, finding that the agency's breach was not material because the negative recommendation did no harm to Plaintiff's interests during the limited time it was in her employment application file. The Administrative Judge found that the agency was in compliance with the agreement and that there was no basis to rescind it. He denied Plaintiff's petition to enforce the agreement. Plaintiff filed a petition for review, which was denied in a Final Order issued April 27, 2004. Plaintiff was notified of her right to request the U.S. Court of Appeals for the Federal Circuit to review the final decision.

  Plaintiff filed her complaint in this district on January 22, 2004. This Court granted leave to file in forma pauperis but denied without prejudice Plaintiff's request for appointment of counsel. Defendant was served with the summons and complaint and both parties consented to the jurisdiction of this Court as required by 28 U.S.C. § 636(c).

  After the hearing, Plaintiff requested time to file additional briefing on venue. The Court granted the extension, but before the deadline Plaintiff requested that the time be extended further until the Court had appointed counsel to represent her. Plaintiff did not believe she could pursue her case without counsel.

  Analysis and Conclusion


Title VII is Plaintiff's exclusive remedy for a claim of discrimination
  Plaintiff, as a government employee, finds her exclusive remedy for a claim of employment discrimination in Title VII of the Civil Rights Act of 1964. Brown v. General Services Administration, 425 U.S. 820, 829-832 (1976); Sommatino v. United States, 255 F.3d 704, 711 (9th Cir. 2001). Consequently, any attempt to amend her complaint by adding a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. §§ 1346, 2680(a), would be futile.

  Even if Plaintiff could state a claim under the FTCA, this Court would lack jurisdiction because she has not exhausted her administrative remedies by first presenting a claim to the agency. See 28 U.S.C. § 2675(a); Burns v. United States, 764 F.2d 722, 723 (9th Cir. 1985). In addition, the waiver of sovereign immunity in the FTCA does not extend to claims arising in a foreign country. See 28 U.S.C. § 2680(k). For this reason, 28 U.S.C. § 1402(b), which would permit Plaintiff to file suit in the judicial district in which she resides, does not apply to this case.


There is no venue in this district under Title VII's special venue rules
  Title 42 U.S.C. § 2000e-5(f)(3) provides that a civil action under Title VII of the Civil Rights Act of 1964, as amended, may be brought in one of four judicial districts:


(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 records relevant to such practice are maintained and administered;
(3) the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice; or
  (4) if the respondent is not found within any such district, within the judicial district in which the respondent has its principal office. There is no dispute that the decision not to rehire Plaintiff was not made in California. The employment records are maintained in Japan. Any jobs for which Plaintiff might have been hired were located in Asia. The Department of Defense Education Agency ("DoDEA's") principal office is in Arlington, Virginia. None of the four potential judicial districts are in California. There is no basis for bringing a lawsuit in the Northern District of California for a Title VII claim arising in Japan. The only proper venue for this lawsuit under 42 U.S.C. § 2000e-5(f)(3) is the Eastern District of Virginia, where the DoDEA has its principal office.


There is no venue in this district for a suit alleging breach of the settlement agreement
  This Court considered whether to dismiss Plaintiff's claim with leave to amend to add a cause of action for breach of the settlement agreement; however, this would not justify venue in this district either. Title VII governs a claim for breach of a settlement agreement only when it is a conciliation agreement to which the Equal Employment Opportunity Commission ("EEOC") is a party. Otherwise, there is no federal jurisdiction. Cook v. City of Pomona, 884 F. Supp. 1457 (C.D.Cal., 1995).

  In the case at bar, Plaintiff's recourse for any breach of the settlement agreement is to appeal to the U.S. Court of Appeals for the Federal Circuit.

  The convenience of the forum is not dispositive

  Plaintiff argues that this Court should consider her choice of forum and the convenience to her of litigating her case in the district where she resides. Unfortunately for Plaintiff, these two factors are not considered under the special venue provisions of Title VII. Venue in the federal courts is governed entirely by statute. See Leroy v. Great Western United Corp., 443 U.S. 173, 181 (1979). The special venue rules which govern Title VII preclude venue in this district for Plaintiff's claim. Title VII venue provisions control in this case

  Title 42 U.S.C. § 2000e-5(f)(3) controls over the general venue provisions of 28 U.S.C. § 1391(b). See Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 587 (9th Cir. 1991).

  This Court has discretion to dismiss or transfer

  Where an action is brought in an improper venue, "the decision whether to dismiss or transfer lies within the sound discretion of the district court." Pierce v. Shorty Small's of Branson, Inc., 137 F.3d 1190, 1191 (10th Cir. 1998). This Court finds that the only proper venue for Plaintiff's suit under Title VII for employment discrimination is the Eastern District of Virginia.


The Court must deny Plaintiff's request for appointment of counsel
  The only question before this Court is whether it is the proper venue for Plaintiff's case. The Court finds that appointment of counsel in this district, where venue is not proper, would be futile, and a waste of scarce legal resources. Accordingly, Plaintiff's most recent request for appointment of pro bono counsel is denied without prejudice to being raised before the court in which venue is proper.


  Plaintiff's case is hereby transferred to the United States District Court for the Eastern District of Virginia.



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