United States District Court, N.D. California
June 16, 2004.
CARMEN BARBARA MARRON, Plaintiff,
DONALD H. RUMSFELD, Defendants.
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
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
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
There is no venue in this district under Title VII's special
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
(2) the judicial district in which the employment
records relevant to such practice are maintained and
(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
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
The Court must deny Plaintiff's request for appointment of
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.
IT IS SO ORDERED.
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