UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF IOWA 

CENTRAL DIVISION 

 ) 

THE HISPANIC LEADERSHIP ) 

FUND, INC., ) Civ. No. 4:12-339-JAJ-TJS 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) MOTION TO TRANSFER VENUE 

) 

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO 

TRANSFER VENUE 

Defendant Federal Election Commission respectfully moves the Court to transfer this 

case to either the Eastern District of Virginia or the District of Columbia. Venue cannot properly 

be laid in the Southern District of Iowa under 28 U.S.C. § 1391(e)(1)(A) or (C) because no party 

to this case resides in this District, and venue is improper here under 28 U.S.C. § 1391(e)(1)(B) 

because no substantial part of the events or omissions giving rise to plaintiffs’ claims occurred in 

this District. Therefore, pursuant to 28 U.S.C § 1406(a), the Court may either dismiss this action 

or transfer it in the interest of justice to a district in which it could have been brought. The 

Commission requests that the Court transfer the action to the Eastern District of Virginia, in 

which plaintiff resides, or to the District of Columbia, in which the Commission resides. 

In the alternative, the Commission moves the Court to exercise its discretion to transfer 

the venue of this action to either of the above-named districts for the convenience of the parties 

pursuant to 28 U.S.C. § 1404(a). 

Case 4:12-cv-00339-JAJ-TJS Document 16 Filed 08/06/12 Page 1 of 3
2 

Pursuant to Local Rules 5.2.g.4 and 7.d, a memorandum in support of this motion is 

appended hereto. Pursuant to Local Rule 7.l, the Commission consulted regarding this motion 

with counsel for plaintiff, who indicated that plaintiff does not consent to this motion. 

 Respectfully submitted, 

Anthony Herman 

General Counsel 

 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

 

Adav Noti 

Acting Assistant General Counsel 

/s/ Kevin P. Hancock 

Steve Hajjar 

Kevin P. Hancock 

 Attorneys 

 khancock@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

August 6, 2012 (202) 694-1650 

 

Case 4:12-cv-00339-JAJ-TJS Document 16 Filed 08/06/12 Page 2 of 3
3 

CERTIFICATE OF SERVICE 

I hereby certify that on August 6, 2012, the foregoing Motion to Transfer Venue was 

filed electronically with the Clerk of Court through the Court’s ECF system, which will send 

notification of this filing to the following recipients: 

Matt Dummermuth 

WHITAKER HAGENOW & GUSTOFF, LLP 

305 Second Avenue SE, Suite 202 

Cedar Rapids, IA 52401 

And 

Jason Torchinsky 

Shawn Sheehy 

Lisa Dixon 

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 4:12-cv-00339-JAJ-TJS Document 16 Filed 08/06/12 Page 3 of 3
1 

UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF IOWA 

CENTRAL DIVISION 

 ) 

THE HISPANIC LEADERSHIP ) 

FUND, INC., ) Civ. No. 4:12-339-JAJ-TJS 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) BRIEF IN SUPPORT OF MOTION TO 

) TRANSFER VENUE 

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S BRIEF IN SUPPORT 

OF ITS MOTION TO TRANSFER VENUE 

Plaintiff is a Virginia corporation, the Federal Election Commission is a federal agency 

located in Washington, D.C., and plaintiff claims that the FEC misconstrued a federal statute 

while conducting official agency business in the District of Columbia. Not one event giving rise 

to this suit occurred in the Southern District of Iowa. Thus, venue is not properly laid here, and 

this action must be dismissed or transferred to a district in which venue would be proper. Even if 

venue were proper here, and it is not, the interests of justice and convenience of the parties 

would warrant transferring this case to either Virginia or the District of Columbia. 

I. FACTUAL BACKGROUND 

Plaintiff The Hispanic Leadership Fund (”HLF”) is a Virginia corporation located in 

Alexandria, Virginia. (Compl. at 1 (caption), ¶ 24.) Defendant Federal Election Commission 

(“FEC” or “Commission”) is the independent agency of the United States government vested 

with statutory authority over the administration, interpretation, and civil enforcement of the 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA”), and other federal campaign 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 1 of 9
2 

finance statutes. See generally 2 U.S.C. § 437d(a). The Commission’s only office is in 

Washington, D.C. 

 On April 18, 2012, an organization named American Future Fund (“AFF”) requested that 

the Commission issue an advisory opinion finding that eight television advertisements AFF 

planned to run would not constitute “electioneering communications” under a provision of 

FECA, 2 U.S.C. § 434(f)(3)(A). (See Compl. Exh. 2.) Specifically, AFF asked the Commission 

to opine that the advertisements did not refer to a “clearly identified” candidate for federal office 

within the meaning of 2 U.S.C. § 431(18) and 11 C.F.R. §§ 100.17, 100.29(b)(2). AFF sought 

this opinion because any person who broadcasts an “electioneering communication” must 

disclose to the Commission and the public certain information about the financing of the 

communication, 2 U.S.C. § 434(f)(1), and AFF did not wish to disclose such information. 

(Compl. Exh. 2 at 1.) 

In response to AFF’s request, the Commission issued an advisory opinion on June 13, 

2012, finding that two of AFF’s advertisements referred to clearly identified candidates and one 

did not. (Compl. Exh. 7.) The Commission did not issue an opinion as to the remaining ads 

(Compl. ¶¶ 35, 38), because the FEC’s six Commissioners were evenly divided on the 

application of the statute to those ads and the Commission cannot issue an advisory opinion 

without the affirmative vote of four or more of its Commissioners. 2 U.S.C. § 437c(c). 

 Six weeks later, on July 30, HLF filed the instant complaint and moved for a preliminary 

injunction. HLF alleges that it plans to run the same five advertisements as to which AFF did 

not receive an advisory opinion. (Compl. Exh. 1 (scripts); Compl. ¶ 48 (noting that HLF’s ads 

are “materially indistinguishable” from AFF’s).) HLF alleges that it plans to run these ads “in 

Iowa and other states.” (Compl. ¶ 46.) HLF argues that the ads do not refer to a clearly 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 2 of 9
3 

identified candidate, and therefore that the Commission erred as a matter of law by not granting 

AFF’s advisory opinion request as to these ads. (Id. ¶ 20; Pl.’s Br. in Supp’t of Mot. for Prelim. 

Inj. at 5, 11-13 (Docket No. 3-1) (“Pl’s Inj. Br.”).) HLF has not alleged any facts about the 

relative number of ads it plans to run in Iowa versus other states or made any allegations about 

specific advertising time it intends to purchase in any location. 

II. THIS CASE MUST BE TRANSFERRED OR DISMISSED BECAUSE VENUE IS 

NOT PROPER IN THIS DISTRICT 

HLF’s complaint invokes the venue provisions of 28 U.S.C. § 1391(e)(1). (Compl. ¶ 23.) 

Under that statute, venue in a civil action against the federal government is proper in any district 

in which: 

“(A) a defendant in the action resides, 

(B) a substantial part of the events or omissions giving rise to the claim occurred . . ., or 

(C) the plaintiff resides . . . .” 

28 U.S.C. § 1391(e)(1). 

It is undisputed that neither HLF nor the Commission resides in the Southern District of 

Iowa. Thus, venue can be proper here only if “a substantial part of the events or omissions 

giving rise to the claim occurred” in this District. 28 U.S.C. § 1391(e)(1). They did not. 

The Eighth Circuit has explained that, “by referring to ‘events and omissions giving rise 

to the claim,’ Congress meant to require Courts to focus on the relevant activities of the 

defendant, not of the plaintiff.” Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995) (emphasis 

added).1

 “Thus, under Woodke, . . . the Court must determine whether a substantial part of the 

 

1

 Woodke and several of the other cases cited herein analyze the general venue provision in 

paragraph (b)(2) of section 1391. That provision is identical to paragraph (e)(1)(B), including 

the same “events or omissions” language; the only difference is that paragraph (e)(1)(B) applies 

in suits against the government, and paragraph (b)(2) applies in other suits. 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 3 of 9
4 

defendants’ allegedly wrongful acts or omissions occurred in this district.” Quality Improvement 

Consultants, Inc. v. Williams, Civ. No. 02-3994, 2003 WL 543393, at *8-*9 (D. Minn. Feb. 24, 

2003) (emphasis added) (finding venue improper because plaintiffs failed to identify “any 

allegedly wrongful act or omission by [defendants] that occurred” in district). The fact that a 

plaintiff may suffer some harm in a particular district does not render venue proper in that 

district. “The Eighth Circuit . . . has clarified that the district in which ‘a substantial part of the 

events or omissions giving rise to the claim occurred,’ . . . 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, Civ. No. 11-3074, 2012 WL 2089552, at *15 (N.D. Iowa June 8, 2012) 

(emphases in original, citing Wisland v. Admiral Beverage Corp., 119 F.3d 733, 736 (8th Cir. 

1997)). 

In this case, venue is not proper in this district because not a single “event or omission” 

giving rise to this suit occurred in the Southern District of Iowa. The only “allegedly wrongful 

act” at issue in this case, Quality Improvement, 2003 WL 543393, at *8, was the Commission’s 

statutory interpretation of the term “clearly identified candidate” in the context of AFF’s request 

for an advisory opinion. (See, e.g., Compl. ¶ 16 (alleging that plaintiff is being harmed by “the 

FEC’s failure to correctly apply the FECA and controlling precedent to AFF’s advisory opinion 

request”); Pl.’s Inj. Br. at 39 (“There is a causal connection between the FEC’s failure to apply 

the law and issue and advisory opinion, and the harm now faced by HLF.”).) The FEC’s 

interpretation of the relevant FECA provisions took place in Washington, D.C., not in this 

District. 

HLF’s complaint states that venue is proper here because “the injury to plaintiff’s 

constitutional rights is occurring in the state of Iowa.” (Compl. ¶ 23.) The relevant inquiry, 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 4 of 9
5 

however, is not where the damage allegedly occurred, but where the events or omissions “giving 

rise to the claim occurred.” See Catipovic, 2012 WL 2089552, at *15. This principle applies 

fully in constitutional challenges: “Allegations that [plaintiff] is complying with an 

unconstitutional law for fear of prosecution in this judicial district cannot support venue under 

§ 1391(e)(2).” Dearth v. Gonzales, Civ. No. 06-1012, 2007 WL 1100426, at *4 (S.D. Ohio, Apr. 

10, 2007) (finding venue improper in suit against federal government where only connection to 

district was plaintiff’s allegation that federal law would unconstitutionally prohibit his desired 

conduct there). 

And, in any event, HLF merely alleges that Iowa is one of several states in which it 

would like to run advertisements. (Compl. ¶ 46.)2

 Thus, even if the site of the alleged injury 

were relevant (which it is not), plaintiff makes no factual allegation that a “substantial part” of 

those injuries would occur here. For example, plaintiff does not identify any specific media 

outlet where it plans to run its ads, let alone allege that a substantial percentage of its purchases 

would be made in this District. 

Allowing venue to rest on bare allegations such as those made by HLF here would 

undercut the primary purpose of the venue statutes, to prevent forum shopping. Wisland, 119 

F.3d at 735-36. Under plaintiff’s theory, any pre-enforcement challenge to a federal statute 

could be venued in essentially any district; the plaintiff would merely have to allege that the 

challenged statute would prevent him from doing something in that district. There is no basis in 

law for enabling such forum shopping. Cf. Richards v. Aramark Servs., Inc., 108 F.3d 925, 

928 (8th Cir. 1997) (“Venue requirements exist for the benefit of defendants. One of the central 

 

2

 Plaintiff’s assertion that venue is proper because of plaintiff’s planned activity in “the 

state of Iowa” (Compl. ¶ 23) is deficient on its face, as neither that allegation nor anything else in 

the complaint states any connection to this District, as required by section 1391(e)(1). 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 5 of 9
6 

purposes of statutory venue is to ensure that a defendant is not haled into a remote district, 

having no real relationship to the dispute.”) (internal citations and quotation marks omitted); 

Dearth, 2007 WL 1100426, at *4. 

In sum, because all of the events and omissions that gave rise to HLF’s claims occurred 

in the District of Columbia and not in this District, venue is not proper here. And upon a finding 

of improper venue, the district court “shall dismiss, or if it be in the interest of justice, transfer 

such case to any district . . . in which it could have been brought.” 28 U.S.C. § 1406(a); see also 

Dearth, 2007 WL 1100426, at *5 (dismissing suit against federal government for improper 

venue pursuant to § 1406(a) without prejudice to refiling in District of Columbia). “In the 

interest of justice,” the Commission respectfully requests that the Court transfer this case to 

either of the districts in which it could have been brought: in the Eastern District of Virginia 

(plaintiff’s residence), where venue would be proper under section 1391(e)(1)(C), or in the 

District of Columbia (FEC’s residence and where “substantial part of events . . . giving rise to the 

claim occurred”), where venue would be proper under section 1391(e)(1)(A)-(B). 

III. IN THE ALTERNATIVE, THIS CASE SHOULD BE TRANSFERRED FOR THE 

CONVENIENCE OF THE PARTIES 

Even if the Court were to determine that a substantial part of the events or omissions 

giving rise to the claim occurred in this District, the Court should exercise its discretion to 

transfer this case under 28 U.S.C. § 1404(a). That section provides that for the “convenience of 

the parties and witnesses, in the interest of justice, a district court may transfer any civil action to 

any other district court where it might have been brought.” As the Supreme Court has explained, 

the 

purpose of the section is to prevent the waste “of time, energy and money” 

and “to protect litigants, witnesses and the public against unnecessary 

inconvenience and expense . . . .” To this end it empowers a district court 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 6 of 9
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to transfer “any civil action” to another district court if the transfer is 

warranted by the convenience of the parties and witnesses and promotes 

the interest of justice. 

Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Cont’l Grain Co. v. Barge F.B.L.-585, 

364 U.S. 19, 26-27 (1960)) (footnote omitted). The reasons to transfer a case under section 

1404(a) include ease of access to evidence, the availability of compulsory process, the cost of 

securing the attendance of witnesses, and “all other practical problems that make trial of a case 

easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). While 

the Eighth Circuit has declined to offer an “exhaustive list of specific factors to consider in 

making the transfer decision,” it has explained that “district courts should weigh any casespecific factors relevant to convenience and fairness to determine whether transfer is warranted.” 

In re Apple Inc., 602 F.3d 909, 912 (8th Cir. 2010) (internal quotation marks omitted). 

The Eastern District of Virginia or the District of Columbia would be a far more 

convenient venue for this case. HLF is located in the Eastern District of Virginia, as is HLF’s 

counsel. The Commission and its counsel are located in the District of Columbia, which is 

adjacent to the Eastern District of Virginia and less than ten miles from plaintiff’s location. And 

any witnesses who might be called to provide testimony are presumably located in these two 

districts. HLF has not alleged that it has any connection to this District, and so its choice of this 

forum is entitled to little weight. Holt v. Wyeth, Civ. No. 05-263, 2012 WL 1901290, at *2 (D. 

Minn. May 25, 2012) (“Plaintiff’s choice of forum is given less protection since Plaintiff does 

not reside in Minnesota, does not have any connection to Minnesota, and because the events 

underlying this action did not occur in Minnesota.”). 

Indeed, HLF does not appear to dispute that the Eastern District of Virginia would be a 

more convenient venue. (See Pl.’s Resp. & Opp. to Def.’s Mot. to Continue Hearing on Pl.’s 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 7 of 9
8 

Mot. for Prelim. Inj. at 4 (Docket No. 15).) Instead, HLF argues that the Court should 

nonetheless decline to transfer this case because the Commission is currently defending cases in 

various districts across the country. (See id.) That argument, however, is beside the point. 

 HLF’s also asserts that the Court should retain this case because, in cases filed against the 

Commission in the District of Columbia and the Eastern District of Virginia, those courts have 

scheduled arguments on preliminary injunction motions for approximately six to ten weeks after 

the cases were filed. (See Pl.’s Opp. to Mot. to Continue at 4-5.) HLF implies that the plaintiffs 

in those cases sought more expedited injunctive relief and were denied it due to “docket 

congestion.” (See id.) Not true. The court in the Eastern District of Virginia is well known for 

its “rocket docket” approach to scheduling.3

 And in any event, HLF’s argument rings 

exceedingly hollow given that HLF waited almost seven weeks from when the Commission 

issued its response to AFF’s advisory opinion request before filing this suit. Such self-created 

exigency should not outweigh the benefits that would accrue from trying this matter in a more 

convenient venue. 

IV. CONCLUSION 

 The events giving rise to plaintiff’s claims occurred and both parties and their counsel are 

located in two adjoining districts some 1,000 miles away from this Court. The Commission 

respectfully requests that the Court transfer this action to the Eastern District of Virginia or the 

District of Columbia. 

 Respectfully submitted, 

Anthony Herman (D.C. Bar No. 424643) 

General Counsel 

 

 

3

 See, e.g., Jackie Judd, Moussaoui, Lindh on 'Rocket Docket', ABC News,

 http://abcnews.go.com/WNT/story?id=130520#.UB8dJqOwVDU. 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 8 of 9
9 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Special Counsel to the General Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Kevin P. Hancock 

Steve Hajjar 

Kevin P. Hancock 

 Attorneys 

 khancock@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

August 6, 2012 (202) 694-1650 

CERTIFICATE OF SERVICE 

I hereby certify that on August 6, 2012, the foregoing Brief in Support of Defendant’s 

Motion to Transfer Venue was filed electronically with the Clerk of Court through the Court’s 

ECF system, which will send notification of this filing to the following recipients: 

Matt Dummermuth 

WHITAKER HAGENOW & GUSTOFF, LLP 

305 Second Avenue SE, Suite 202 

Cedar Rapids, IA 52401 

And 

Jason Torchinsky 

Shawn Sheehy 

Lisa Dixon 

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 4:12-cv-00339-JAJ-TJS Document 16-1 Filed 08/06/12 Page 9 of 9