Opinion
Case No. 02-4157-SAC
May 9, 2003.
MEMORANDUM AND ORDER
Plaintiff has filed this case pro se alleging that the United States Treasury violated the Privacy Act, § 5 U.S.C. § 552a, Executive Order 2635.101-2635.107, Subsection A, Ethical Conduct; Workman's Compensation; and the Americans With Disabilities Act, 42 U.S.C. § 12111, et seq., ("ADA"). All alleged violations occurred during plaintiff's employment at the Internal Revenue Service ("IRS") service center in Atlanta, Georgia. Plaintiff now resides in Topeka, Kansas. Defendant is located in Washington, D.C.
This case comes before the court on two motions: defendant's motion to dismiss or transfer, Dk. 17, and defendant's motion to substitute defendants, Dk. 19. Also pending before the magistrate judge are defendant's motion to stay proceeding, Dk. 20, plaintiff's motion to stay proceeding, Dk. 27, and plaintiff's motion for appointment of counsel, Dk. 3.
MOTION TO SUBSTITUTE DEFENDANTS
Defendant has moved to substitute John W. Snow as defendant for Paul H. O'Neill, as Secretary of the Treasury. Defendant's motion relates that the defendant named by plaintiff is incorrect, and that John W. Snow is the Secretary of the Treasury. The court grants this motion as unopposed.
MOTION TO DISMISS OR TRANSFER
Defendant has moved the court for an order dismissing plaintiff's ADA claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction or, alternatively, to dismiss the case for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) or, alternatively, to transfer the case to the Northern District of Georgia to cure improper venue pursuant to 28 U.S.C. § 1406(a), or, for the convenience of parties and witnesses, in the interest of justice pursuant to 28 U.S.C. § 1404(a). Because plaintiff failed to timely file any response to this motion, the court issued an order to plaintiff to show good cause why defendant's motion to dismiss should not be granted as uncontested pursuant to D. Kan. Rule 7.4. Plaintiff then responded to the show cause order, Dk. 25, and filed a motion to stay proceedings pending resolution of her motion to appoint counsel, Dk. 27.
Plaintiff's response states, among other matters, that "changing the venue will add a further burden on me and allows the defendant to never be held accountable . . ." Dk. 25, p. 2.
Where venue is attacked, plaintiff bears the burden to show proper venue. See Andrean v. Secretary of the United States Army, 840 F. Supp. 1414, 1422 (D.Kan. 1993); See General Bedding Corp. v. Echevarria, 714 F. Supp. 1142, 1144 (D.Kan. 1989). Where multiple claims are pleaded in one action, venue must be proper for each claim. General Bedding, 714 F. Supp. at 1144.
Plaintiff alleges venue is proper pursuant to 28 U.S.C. § 1391. This statute provides:
A civil action in which a defendant is an officer . . . of the United States . . . acting in his official capacity . . . may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) 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). Because the plaintiff resides in the District of Kansas and no real property is involved, it would initially appear that venue is proper under the third provision of the statute above. This, and the other provisions of this statute, are inapplicable, however, where a more specific law governs venue. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general."); In re Gledhill, 76 F.3d 1070, 1078 (10th Cir. 1996). Where "otherwise provided by law," venue is to be determined by reference to that other law.
One of the claims made by plaintiff is brought pursuant to the ADA. The ADA does not apply to the federal government. See 42 U.S.C. § 12111(2), (5)(B)(i); Under the law governing this case, Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, is the exclusive remedy for a federal employee or ex-employee claiming disability discrimination. See Williams v. Widnall, 79 F.3d 1003, 1004 n. 1 (10th Cir. 1996); DeFrees v, West, 988 F. Supp. 1390, 1393 (D.Kan. 1997). The court thus lacks subject matter jurisdiction over plaintiff's ADA claims, and could dismiss them, but will instead deem plaintiff's disability discrimination claims to have been filed under the Rehabilitation Act, giving her the benefits of liberal construction afforded pro se plaintiffs. See Nance v. Potter, 225 F. Supp.2d 638, 646 (M.D.N.C. 2002) (treating pro se plaintiff's claim under ADA as one under the provisions of the Rehabilitation Act).
The Rehabilitation Act incorporates the venue provisions of Title VII. See 29 U.S.C. § 794a(a)(1). The appropriate venue provision of Title VII states that an action "may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained or administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice . . ." 42 U.S.C. § 2000e-(f)(3). Because plaintiff has failed to show that any of these requirements is met, venue is not appropriate in the District of Kansas for plaintiff's discrimination claims.
Generally, the court will transfer rather than dismiss a case for improper venue. See United States v. Miller-Stauch Construction Co., 904 F. Supp. 1209, 1214 (D.Kan. 1995). This is particularly appropriate here, where at least some of plaintiff's claims would be time-barred if her case were dismissed. See Dk. 13, EEOC Decision August 2, 2001; 42 U.S.C.A. § 12101 et seq.; 29 C.F.R. § 1614.407. Jurisdiction is proper in the Northern District of Georgia for plaintiff's discrimination claims, because it is a "judicial district in the State in which the unlawful employment practice is alleged to have been committed." See 42 U.S.C. § 2000e-(f)(3).
The court thus examines whether jurisdiction is proper in that district for plaintiff's other claims. Plaintiff has made claims pursuant to the Privacy Act. The venue provision of the Privacy Act provides in pertinent part:
An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia . . .5 U.S.C. § 552a(g)(5). Although neither party has shown specific facts relative to this determination, it is logical to assume that because plaintiff was employed at the IRS Service Center in the Atlanta Metropolitan area in Atlanta, Georgia, the agency records would be situated there. Accordingly, jurisdiction is proper in the Northern District of Georgia for plaintiff's claims brought pursuant to the Privacy Act. See Boers v. United States, 133 F. Supp.2d 64, 65(D.D.C. 2001) (transferring Privacy Act case pursuant to § 1404(a).)
Plaintiff also cites to Executive Order 2635.101-2635.107. Plaintiff has not shown that this Executive Order, if any there be, has the force and effect of law, or was intended to create a private right of action. Accordingly, the court finds that it is judicially unenforceable. See Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 236 (8th Cir.), cert. denied, 424 U.S. 966 (1976); United States v. Eklund, 733 F.2d 1287, 1303 (8th Cir. 1984), cert. denied, 471 U.S. 1003 (1985).
The court has searched in vain for the cited Executive Order, and presumes that plaintiff's citation to Executive Order 2635.101, Subsection A, Ethical Conduct, should probably be to 5 U.S.C. § 2635.101 et seq., which relates to principles of ethical conduct for federal employees, but that part specifically states that it creates no private right of action, see 2635.106(c).
Plaintiff's claim pursuant to the Workman's Compensation law is one over which a federal court has supplemental, but not original jurisdiction, thus no venue provision exists under federal law. Because plaintiff was employed in Georgia, her claim for violation of workman's compensation laws will be decided with reference to that state's laws, not the laws of the State of Kansas.
The court finds that justice requires that this case be transferred to the Northern District of Georgia pursuant to 28 U.S.C. § 1406. Accordingly, the court orders this case transferred to the Northern District of Georgia for all further proceedings, including decisions on the other pending non-dispositive motions.