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American Civil Liberties Union of Northern California v. Burwell

United States District Court, N.D. California, San Francisco Division

April 28, 2017

SYLVIA MATHEWS BURWELL, et al., Defendants.




         The ACLU of Northern California challenges federal grants to religious organizations for the care of unaccompanied immigrant minors and trafficking victims.[1] The ACLU claims that the Office of Refugee Resettlement (“ORR”) violates the Establishment Clause by its grants to religious groups that refuse to provide unaccompanied minors and trafficking victims with “information about, access to, or referrals for contraception and abortion” services.[2] To challenge these grants, the ACLU sued, in their official capacities, the Secretary of Health and Human Services, the Acting Assistant Secretary of the Administration for Children and Families, and the Director of ORR.[3] The United States Conference of Catholic Bishops (“USCCB”) - an ORR grantee that “issues subgrants to Catholic Charities” - intervened in the case.[4]

         The government defendants now move to transfer the case to the District of Columbia.[5] The ACLU opposes the motion.[6] The court denies the motion because the government has not overcome the deference afforded to the ACLU's choice of forum.


         28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Although Congress drafted § 1404(a) in accordance with the doctrine of forum non conveniens, it was intended to be a revision to rather than a codification of the common law. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955). Thus, a § 1404(a) transfer is available “upon a lesser showing of inconvenience” than that required for a forum non conveniens dismissal. Norwood, 349 U.S. at 32.

         The burden is upon the moving party to show that transfer is appropriate. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); see also Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 89 F.R.D. 497, 499 (C.D. Cal. 1981), aff'd, 726 F.2d 1381, 1399 (9th Cir. 1984). Nonetheless, the district court has broad discretion “to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)); see Westinghouse Elec. Corp. v. Weigel, 426 F.2d 1356, 1358 (9th Cir. 1970).

         An action may be transferred to another court if: (1) that court is one where the action might have been brought; (2) the transfer serves the convenience of the parties; and (3) the transfer will promote the interests of justice. E & J Gallo Winery v. F. & P. S.p.A., 899 F.Supp. 465, 466 (E.D. Cal. 1994) (citing 28 U.S.C. § 1404(a)). The Ninth Circuit has identified numerous additional factors a court may consider in determining whether a change of venue should be granted under § 1404(a):

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

Jones, 211 F.3d at 498-99. Courts may also consider “the administrative difficulties flowing from court congestion . . . [and] the ‘local interest in having localized controversies decided at home.'” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (quoting Piper Aircraft, 454 U.S. at 241 n. 6).

         Generally, the court affords the plaintiff's choice of forum great weight. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987). But when judging the weight to be given to plaintiff's choice of forum, consideration must be given to the respective parties' contact with the chosen forum. Id. “If the operative facts have not occurred within the forum and the forum has no interest in the parties or subject matter, ” the plaintiff's choice “is entitled only minimal consideration.” Id.


         The parties do not dispute that the case could have been brought in the District of Columbia.[7]And, indeed, because the defendants are government officials sued in their official capacities, and because a substantial part of the events (i.e. the decision-making process) took place in Washington, D.C., the ACLU could have sued in the District of Columbia. See 28 U.S.C. §§ 1391(e), 1404(a).

         The court next considers the remaining § 1404(a) factors. The court first considers the ACLU's choice of forum because the government's burden shifts based on the weight given to that choice. See Chesapeake Climate Action Network v. Export-Import Bank, No. C 13-03532 WHA, 2013 WL 6057824, at *2 (N.D. Cal. Nov. 15, 2013) (“As deference to a plaintiff's choice of forum decreases, a defendant's burden to upset the plaintiff's choice of forum also decreases.”). The court then considers the convenience of the parties and witnesses, the location of the evidence, and the interests of justice.

         1. The ACLU of Northern California's Choice of Forum

         Generally, “unless the balance of the § 1404(a) factors ‘is strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed.'” Getz v. Boeing Co., 547 F.Supp.2d 1080 (N.D. Cal. 2008) (quoting Secs. Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985)); see also Decker, 805 F.2d at 843 (“[D]efendant must make a strong showing . . . to warrant upsetting the plaintiff's choice of forum.”). “This is especially true when a plaintiff chooses to sue in its ‘home turf.'” Natural Wellness Ctrs. of Am. v. J.R. Andorin Inc., No. 11-04642 EDL, 2012 WL 216578, at *10 (N.D. Cal. Jan. 24, 2012).

         But sometimes a plaintiff's choice of forum is entitled to only minimal weight, “even if the plaintiff is a resident of the forum.” Chesapeake, 2013 WL 6057824 at *2 (emphasis in original). “[T]he deference accorded to a plaintiff's chosen forum should be balanced against the extent of both the defendant's and plaintiff's contacts with the chosen forum, including those relating to plaintiff's claims.” Ctr. for Biological Diversity v. Export-Import Bank, No. C 12-6325 SBA, 2013 WL 5273088, at *5 (N.D. Cal. Sept. 17, 2013) (citing Pac. Car & Foundry v. Pence, 403 F.2d 949 (9th Cir. 1968)). “If the operative facts have not occurred within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiff's choice is entitled only to minimal deference.” Pac. Car & Foundry, 403 F.2d at 954.

         The parties point to several instructive cases involving environmental challenges to government action.[8] See Chesapeake, 2013 WL 6057824; Ctr. for Biological Diversity, 2013 WL 5273088.

         In Center for Biological Diversity v. Export-Import Bank, the plaintiffs' decision to litigate in the Northern District of California weighed against transfer. 2013 WL 5273088 at *5. There, three environmental organizations challenged an Export-Import Bank loan to finance a natural gas project in Australia's Great Barrier Reef. Id. at *1-*2. The defendants - the United States Export-Import Bank and its Chairman and President - moved to transfer the case to the District of Columbia, where the Bank (a federal agency) is headquartered, and where the environmental-review process took place. Id. at *1, *4. The defendants argued that the plaintiffs' “choice of forum [was] entitled to minimal deference because the operative facts giving rise to [the] action occurred in Washington, D.C., and because this District ha[d] no particular interest in or connection to [the] litigation.” Id. *5.

         But the defendants did not satisfy their burden. Id. Instead, the Northern District of California had a particular interest in the litigation because (1) the plaintiff organizations were incorporated in California, (2) “each ha[d] an office in th[e] district, ” and (3) each had “members that reside[d] in the district who [were] concerned about the potential impacts from the Project, including impacts on endangered and threatened species and the climate.” Id. Some members had “specific plans to travel to Australia” and were “concerned that the Project [would] harm their recreational and aesthetic interests.” Id. The plaintiffs' choice of forum was thus entitled to deference.

         In contrast, in Chesapeake, this factor weighed in favor of transferring venue. 2013 WL 6057824 at *2. As in Center for Biological Diversity, the Chesapeake plaintiffs were non-profit environmental groups challenging the Export-Import Bank's decision to finance a development project. Id. at *1. The plaintiffs asserted that the Bank's decision, which would facilitate the export of Appalachian coal through facilities in Maryland and Virginia and “to clients in China, ...

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