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Wilson v. Department of Army

United States District Court, Ninth Circuit

December 18, 2013

HELDA WILSON, Plaintiff,
v.
DEPARTMENT OF THE ARMY, Defendant.

ORDER GRANTING MOTION TO DISMISS FOR IMPROPER VENUE

MARILYN L. HUFF, District Judge.

On September 5, 2013, Defendant Department of the Army filed a Motion to Dismiss Helda Wilson's Petition. (Doc. No. 8.) On October 29, the Court submitted the motion on the parties' papers and vacated the hearing pursuant to its discretion under Local Rule 7.1(d)(1). (Doc. No. 15.) The Court allowed Mr. Wilson until November 6, 2013 to respond to Defendant's Motion to Dismiss. (Id.) Mr. Wilson did not respond. For the following reasons, the Court grants Defendant's motion.

I. Background

Petitioner Helda Wilson is a Vietnam veteran. He was inducted into the Army on February 3, 1968 and was discharged on October 3, 1969. (Doc. No. 1-1 at 17.) In 2011, Mr. Wilson sought to have his military records corrected to reflect a different pay grade. (Id. at 9.) The Army Board for Correction of Military Records denied Mr. Wilson's request. (Id.) On March 18, 2013, Mr. Wilson filed a Petition for Writ of Habeas Corpous pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The Court construed the petition as requesting judicial review of the Board's decision. (Doc. No. 3 at 3.)

II. Legal Standard for Venue

The rules governing proper venue in federal actions in which the defendant is an officer or employee of the United States are set out in 28 U.S.C. § 1391(e)(1). Under this provision, venue is proper only in a district where:

(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
(3) the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e)(1).

Once it is determined that venue is improper, 28 U.S.C. § 1406(a) states:

The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or 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). The decision whether to dismiss or transfer the action rests entirely within the discretion of the trial ...


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