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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

LIBBY A. DEMERY, )

)

Plaintiff, )

)

v. ) Civil Action No. 13-216 (RMC)

)

JOHN M. MCHUGH,

Secretary of the Army,

)

)

)

Defendant. )

)

MEMORANDUM OPINION

Pro se plaintiff Libby Demery alleges that she was twice not selected for a 

position as a Management Analyst with the National Guard in Arlington, Virginia. Ms. Demery 

contends that her non-selection constituted employment discrimination and violated the Army’s 

hiring procedures. Defendant moves to dismiss or to transfer due to improper venue. The

motion will be granted and the case will be transferred to the District of Maryland. 

I. FACTS

Ms. Demery is a 62-year-old African-American female who resides in Maryland. 

Compl. [Dkt. 1] ¶¶ 1, 16. Until retirement from active duty in the Army on September 3, 2009, 

she worked as a warrant officer for the U.S. Army Reserve. Id. ¶ 16. She is eligible for a tenpoint hiring preference among applicants for federal jobs due to a service-related disability. Id. 

Ms. Demery asserts that, in the fall of 2010, she applied for a position—

“identical” to her pre-retirement position—as a Management Analyst, GS-343-11, “at the 

National Guard Bureau, Arlington, VA.” Id. ¶ 1. According to Ms. Demery, she was selected 

for the position on November 3, 2010, but was not placed in it; instead, John Wood, a forty-yearold Caucasian male, also eligible for a ten-point preference, was hired and started work on 
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January 3, 2011. Id. ¶¶ 1, 16–17, 35. However, Mr. Wood vacated the position just a few 

months later. Id. ¶ 35. Ms. Demery alleges that she should have been automatically been

selected for the Management Analyst position in April or May 2011 when Mr. Wood left based 

on her hiring preference, but instead the job was awarded to Barbara Stoucker, a 60-year-old 

Caucasian woman with no veteran’s preference. Id. ¶¶ 1, 35, 38. Ms. Demery avers that “the 

discriminating facility/organization” is the Army’s “Northeast Regional Region, Civilian 

Personnel Advisory Service (CPAS), Aberdeen Proving Ground, Maryland.” Id. ¶ 17.

Ms. Demery alleges that she has exhausted her administrative remedies. See id.

¶¶ 2–13. On February 20, 2013, she filed suit against Secretary of the Army John M. McHugh, 

raising various claims of employment discrimination under Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 

§§ 621–34; 42 U.S.C. § 1981; and “5 U.S.C. § 3318” and the “Veterans Preference Act of 1944.” 

See generally id. Although Ms. Demery’s complaint refers to “RETALIATION IN 

VIOLATION OF THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT,” id. at 22, she has 

clarified that she does not advance such a claim, Pl. Am. Opp. MTD, Dkt. 8, at 4. 

Defendant moved to dismiss, see Def. MTD, Dkt. 5, and Ms. Demery filed an 

opposition, Dkt. 6, and an amended opposition, Dkt. 8. The Court issued an order advising Ms. 

Demery of the consequences of failing to respond pursuant to Fox v. Strickland, 837 F.2d 507 

(D.C. Cir. 1988) and permitted her to file a supplemental memorandum, see Fox Order, Dkt. 9, 

which she did, see Pl. Supp. Opp, Dkt. 11. The motion is fully briefed and ready for resolution.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit’s 

outset, test whether the plaintiff “has brought the case in a venue that the law deems 

appropriate.” Modaressi v. Vedadi, 441 F. Supp. 2d 51, 53 (D.D.C. 2006). “If the plaintiff’s 
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chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the 

Court may dismiss the action or transfer the case to a district where venue would be proper or 

more convenient.” Id. (citing 28 U.S.C. § 1406 (providing for dismissal or transfer when venue 

is defective) and 28 U.S.C. § 1404 (allowing venue transfer “for the convenience of the parties 

and witnesses”)). “Because it is the plaintiff’s obligation to institute the action in a permissible 

forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v. 

Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003). On a motion to dismiss based on improper venue 

under Rule 12(b)(3), the Court accepts as true a plaintiff’s well-pled factual allegations regarding 

venue but “may consider material outside of the pleadings.” See Williams v. GEICO Corp., 792 

F. Supp. 2d 58, 62 (D.D.C. 2011) (citing Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 

2002)).

III. ANALYSIS

Defendant argues that the Court should either dismiss the case for improper venue 

or transfer it to the Eastern District of Virginia or the District of Maryland, where venue would 

have been proper under Title VII’s special venue provisions, 42 U.S.C. § 2000e-5(f)(3).1

 Def. 

MTD at 5–8. Under 42 U.S.C. § 2000e-5(f)(3), venue for a Title VII claim is proper in four 

possible districts: “in [1] any judicial district in the State in which the unlawful employment 

 1 As Defendant acknowledges, Def. MTD at 6 n.3, Ms. Demery also cites § 1981, the ADEA, 

and certain provisions of the U.S. Code governing preference-eligible hiring. Other courts of 

this Circuit—although not the D.C. Circuit itself—have applied two different approaches in 

determining whether the stricter Title VII venue provision controls when Title VII claims are 

joined with other claims. See James v. Booz-Allen, 227 F. Supp. 2d 16, 21 (D.D.C. 2002) 

(surveying split of authority between “greater weight of authority” (per se application of Title 

VII provision) and “minority approach” (determination of whether Title VII claim is “primary” 

claim)). Under either approach, the Court finds that the Title VII venue provision controls. 

Even if it did not, the Court would transfer the case to the District of Maryland, where venue 

would be proper as to all of Ms. Demery’s claims, in the interest of justice under 28 U.S.C. 

§ 1404(a). 
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practice is alleged to have been committed, [2] in the judicial district in which the employment 

records relevant to such practice are maintained and administered, or [3] in the judicial district in 

which the aggrieved person would have worked but for the alleged unlawful employment 

practice, [4] but if the respondent is not found within any such district, such an action may be 

brought within the judicial district in which the respondent has his principal office.” James v. 

Booz-Allen, 227 F. Supp. 2d 16, 20 (D.D.C. 2002); see also Stebbins v. State Farm Mut. Auto. 

Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969) (noting that it is “clear” that Congress intended to 

restrict Title VII venue “to the judicial district concerned with the alleged discrimination”).

Venue is proper in the Eastern District of Virginia under prongs 1 and 3 of 

§ 2000e-5(f)(3) or in the District of Maryland under prongs 1 and 2. The Court will review each 

of the potential statutory venues by prong. As to prong 1, Plaintiff’s allegations implicate 

allegedly discriminatory acts that took place either where she wished to work in Arlington, 

Virginia, Compl. ¶ 1, or at the Army’s “Northeast Regional Region, Civilian Personnel Advisory 

Service (CPAS), Aberdeen Proving Ground, Maryland,” id. ¶ 7. Prong 2 makes venue proper 

where “the employment records relevant to such practice are maintained and administered;” 

Defendant has offered the Declaration of Sandiann Devaney, Department of the Army Human 

Resources Specialist, who confirms that the records relevant to the Management Analysis 

position (including Ms. Demery’s application) are kept at Aberdeen Proving Grounds in 

Maryland. See Def. MTD, Ex. 1 [Dkt. 5-2]. As to prong 3, Defendant correctly notes that 

“Plaintiff’s claim is centered on her non-selection for two positions located at [the National 

Guard’s] offices in Arlington, Virginia, and, accordingly, that is where she would have been 

working but for the alleged discrimination.” Def. MTD at 7; see also Compl. ¶ 1 (referring to 

Management Analyst position based in Arlington, VA). Thus, venue would be proper in either 
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the Eastern District of Virginia or the District of Maryland, but not the District of Columbia. 

See, e.g., Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 9 (D.D.C. 2003) (finding venue 

proper in District of Columbia where plaintiff would have worked in D.C. if she had been 

offered the position for which she applied); see also Darby v. U.S. Dep’t of Energy, 231 F. Supp. 

2d 274, 277 (D.D.C. 2002) (“[V]enue cannot lie in the District of Columbia when ‘a substantial 

part, if not all, of the employment practices challenged in this action’ took place outside the 

District even when actions taken in the District ‘may have had an impact on the plaintiff’s 

situation.” (quoting Donnell v. Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983)).

Importantly, Plaintiffs’ allegations do not lay venue in Washington, D.C. under 

any of the relevant provisions. Ms. Demery relies on the contention that “the critical approval 

records are stored at OPM [the Office of Personnel Management]’s Washington, DC Office.” 

See Pl. Supp. Opp. at 3, 6 (“The Plaintiff has brought her claims to this court based on the 

location of [OPM] and its administration documents . . . .”). She also asserts that “the 

Defendant, John McHugh, has an official address, office, and conducts substantial business 

through his facilities and agents with [OPM] within the Washington DC area to establish 

jurisdiction.” Id. at 7. These arguments fail for several reasons. First, as stated above, the 

records for Ms. Demery’s application remain at Aberdeen, Maryland. Second, Ms. Demery’s 

arguments—which confuse venue with personal jurisdiction—are nonresponsive to the venue 

inquiry under 42 U.S.C. § 2000e-5(f)(3), which only permits the Court to consider the principal 

office location when venue is not proper under any of the first three prongs of Title VII’s venue 

provisions. Finally, Defendant’s principal office actually is located at the Pentagon in Arlington, 

Virginia, notwithstanding the use of a Washington, D.C. mailing address. See Def. MTD at 7–8 

(citing, inter alia, Donnell, 568 F. Supp. at 94–95). 
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IV. CONCLUSION

For the foregoing reasons, the Court finds that venue is not proper in the District 

of Columbia under 42 U.S.C. § 2000e-5(f)(3) but would be proper in the Eastern District of 

Virginia or the District of Maryland. Because Ms. Demery resides in Maryland, the relevant 

records are located there, and the alleged discriminatory practice took place there, the Court will 

order that the case be transferred to the United States District Court for the District of Maryland 

in the interest of justice, pursuant to 28 U.S.C. § 1406(a).

DATE: August 7, 2013

 /s/ 

ROSEMARY M. COLLYER

United States District Judge