IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

THE HISPANIC LEADERSHIP FUND,

INC.,

Civil Case Number:

4:12-cv-00339-JAJ-TJS

Plaintiff,

v. ORDER

FEDERAL ELECTION COMMISSION,

Defendant.

This matter comes before the Court pursuant to the Hispanic Leadership Fund, Inc.’s

(“Plaintiff”) Motion for Declaratory and Injunctive Relief filed on July 30, 2012. [Dkt. No.

2.] The Federal Election Commission (“Defendant”) filed a response on August 8, 2012.

[Dkt. No. 22.] On August 6, 2012, the Defendant filed a Motion to Transfer Venue. [Dkt.

No. 16.] The Plaintiff filed a Response to the Motion to Transfer on August 6, 2012 and the

Defendant filed a Reply on August 7, 2012. [Dkt. Nos. 17–18.] The Court heard oral

argument on August 8, 2012. The Motion to Dismiss is GRANTED and the Motion to

Transfer Venue is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The Defendant is the independent agency of the United States government vested

with statutory authority over the Federal Campaign Act and other federal campaign finance

statutes. The Defendant’s office is in Washington D.C. The Defendant maintains a

process through which organizations may submit an “Advisory OpinionRequest” (“AOR”)

in order to obtain the Defendant’s opinion as to whether certain actions and advertisements

comply with federal regulations. 2 U.S.C. § 437F (2012). The statute requires a

majority—or four member vote —for all decisions. Id. at § 437C(c).

On April 18, 2012, the American Future Fund (“AFF”) filed an AOR with the

Case 4:12-cv-00339-JAJ-TJS Document 26 Filed 08/09/12 Page 1 of 5
Defendant requesting the Commission issue an opinion finding eight television

advertisements would not constitute “electioneering communications” under 2 U.S.C. §

434(f)(3)(A). On June 13, 2012, the Defendant issue an advisory opinion, finding that two

of the advertisements referred to clearly identified candidates and one did not. The

Defendant did not issue an opinion as to the remaining ads.

On July 30, 2012, the Plaintiff — with headquarters in Alexandria, Virginia —filed

the instant complaint and moved for preliminary and permanent injunction. [Dkt. Nos. 1,

2.] Plaintiff intends to run the advertisements at issue in the State of Iowa and argues that

the Defendant erred as a matter of law by not granting AFF’s AOR as to these

advertisements. The Defendant responded to these motions and has filed a Motion to

Dismiss or Transfer Venue. Defendant argues that the “events or omissions” giving rise

to the Plaintiff’s complaint took place in either Washington D.C. or Virginia and that

Plaintiff’s plans to run the advertisements in Iowa do not satisfy the requirements for

proper venue under 28 U.S.C. § 1391(e)(1).

II. MOTION TO TRANSFER VENUE

The Defendant argues that this Court should either (1) dismiss the case pursuant to

28 U.S.C. § 1406(a) or (2) transfer the case pursuant to 28 U.S.C. § 1404(a) or § 1406(a)

to either the United States District Court for the District of Columbia or the United States

District Court for the Eastern District of Virginia.

A. Standard for Motion to Transfer Venue

Where no “special” venue statute is applicable, the general venue statute, 28 U.S.C.

§ 1391, applies. In this case, the defendant is an “officer or employee of the United

States” and, as such, 28 U.S.C. § 1391(e) applies. The statute reads as follows:

(e) Actions where defendant is officer or employee of the United States--

(1) In general.--A civil action in which a defendant is an officer or

employee of the United States or any agency thereof acting in his

official capacity or under color of legal authority, or an agency of the

United States, or the United States, may, except as otherwise

provided by law, be brought in any judicial district in which (A) a

Case 4:12-cv-00339-JAJ-TJS Document 26 Filed 08/09/12 Page 2 of 5
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 (C) the plaintiff

resides if no real property is involved in the action. Additional

persons may be joined as parties to any such action in accordance

with the Federal Rules of Civil Procedure and with such other venue

requirements as would be applicable if the United States or one of its

officers, employees, or agencies were not a party.

(2) Service.--The summons and complaint in such an action shall be

served as provided by the Federal Rules of Civil Procedure except

that the delivery of the summons and complaint to the officer or

agency as required by the rules may be made by certified mail beyond

the territorial limits of the district in which the action is brought.

Id. Section 1391(e)(1)(B) expressly requires a determination of whether the chosen forum

is one in which “a substantial part of the events or omissions giving rise to the claim

occurred . . .” Id. “The Eighth Circuit Court of Appeals has clarified that the district

in which ‘a substantial part of the events or omissions giving rise to the claim occurred,’

within the meaning of § 1391(a)(2), means where the events giving rise to the action

occurred, not where the events giving rise to the plaintiff's damages occurred.” Catipovic

v. Turley, 2012 WL 2089552, at * 14 (N.D. Iowa June 8, 2012) (analyzing section 1391

subsection (a)(2)). The Court has also made it clear that this Court must focus on the

relevant activities of the defendant, not the activities of the plaintiff. Woodke v. Dahm,

70 F.3d 983, 985 (8th Cir. 1995); see also Quality Improvement Consultants, Inc. v.

Williams, 2003 WL 543393, at *8 (D. Minn. Feb. 24, 2003) (noting, in the context of

1391(b)(2), “the Court must determine whether a substantial part of the defendants’

allegedly wrongful acts or omissions occurred in this district”). This Court sees no reason

to analyze the identical language of § 1391(e) in a different manner.

If the Court finds venue is appropriate in the Southern District of Iowa, the Court

may transfer venue in compliance with 28 U.S.C. § 1404. If the Court finds venue is

inappropriate in the Southern District of Iowa, the Court shall dismiss the claim or, “if it

be in the interest of justice,” the Court may transfer the case to a jurisdiction in which

Case 4:12-cv-00339-JAJ-TJS Document 26 Filed 08/09/12 Page 3 of 5
proper venue exists.

B. Discussion

Plaintiff claims that venue is proper in the Southern District of Iowa because the

Plaintiff intends to broadcast the advertisements in Iowa and is unable to do so due to the

failure of the Defendant to issue an advisory opinion. The Plaintiff also directs the Court’s

attention to the fact that the Defendant has not challenged venue in a number of other

cases. Defendant argues that the events giving rise to this claim—the failure to issue an

opinion — occurred in Washington D.C. The Defendant further argues that the damages

of the Plaintiff—the inability to broadcast the advertisements in Iowa—are not relevant for

this Court’s venue determination.

The Eighth Circuit Court of Appeals has made it clear that, when determining

whether venue is appropriate, this Court should look to the defendant’s activities or

omissions. Here, the Plaintiff claims the Defendant failed to properly issue an advisory

opinion as to certain advertisements. All of the Defendant’s activities took place in either

Washington D.C. The Defendant’s activities have little or no connection with Iowa. It

certainly cannot be said that a “substantial part” of any activities giving rise to this cause

of action, let alone the Defendant’s activities, occurred in Iowa. The only connection to

Iowa is the Plaintiff’s desire to broadcast the advertisements at issue. 1

With these facts, it is clear to this Court that the Plaintiff has failed to satisfy the

venue requirements of 28 U.S.C. § 1391(e)(1) in order to bring these claims in the

Southern District of Iowa. When venue is improper in the Court in which a case is

brought, the Court looks to 28 U.S.C. § 1406(a). Section 1406 directs the Court to

dismiss the case or, “if it be in the interest of justice,” to transfer the case to a district or

The Plaintiff has provided an agreement and plan for these advertisements, but it is 1

unclear to the Court whether these documents existed at the time the Defendant challenged

venue. However, as this plan is an act of the Plaintiff and represents the Plaintiff’s potential

damages, it is not the focus of this Court’s venue determination.

Case 4:12-cv-00339-JAJ-TJS Document 26 Filed 08/09/12 Page 4 of 5
division in which the case could have been brought. While it is clear that this is not a

proper venue for the Plaintiff’s claims, the Court does not find a compelling reason nor

does the Court have sufficient facts to transfer this case to another district. Accordingly,

the Motion to Dismiss is granted and the Motion to Transfer is denied.

III. CONCLUSION

The Court finds that the venue requirements of 28 U.S.C. § 1391(e)(1) are not

satisfied in this case. The Motion to Dismiss is granted and the Motion to Transfer Venue

is denied. The case is dismissed without prejudice.

IT IS SO ORDERED

DATED this 9th day of August, 2012.

Case 4:12-cv-00339-JAJ-TJS Document 26 Filed 08/09/12 Page 5 of 5