UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________

)

JERRY HILL, )

)

Plaintiff, )

)

v. ) Civil Action No. 11-34 (RWR)

)

JANET NAPOLITANO, )

)

Defendant. )

_____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Jerry Hill filed this complaint under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a et.

seq, against the Secretary of the Department of Homeland Security

(“DHS”), the parent organization of his former employer, the

Transportation Security Administration (“TSA”), alleging that the

TSA terminated his employment based on his age in 2007. The DHS

has moved to dismiss for improper venue or to transfer the

complaint to the Eastern District of Virginia or to the District

of Oregon. Because venue is improper here but would be proper in

the District of Oregon, the defendant’s motion will be granted in

part and the case will be transferred to the District of Oregon.

BACKGROUND

Hill, who currently resides in Portland, Oregon, alleges the

following facts. He was employed by TSA from November 2004 to

November 2007 as an Assistant Federal Security Director for Law

Enforcement at Portland International Airport in Portland,
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Oregon. When he was hired, Hill was over 40 years of age. 

(Compl. ¶¶ 4-7). TSA categorized Hill as a “rehired annuitant”

with a “dual compensation waiver,” meaning that Hill had

previously retired from federal service and was drawing a pension

from that service in addition to his full salary from TSA. (Id.

¶ 7; Def.’s Mem. of P. and A. in Supp. of Mot. to Dismiss

(“Def.’s Mem.”) at 2.) In 2005, TSA’s Assistant Administrator

declared in a meeting that occurred at TSA’s headquarters in

Arlington, Virginia that she opposed renewing dual compensation

waivers because she preferred providing advancement opportunities

to younger employees. She told Hill’s colleague that “you guys

would have to step aside so that younger people could move up.” 

(Compl. ¶ 8.) In 2006, Mike Restovich, TSA’s Assistant

Administrator for Security Operations stated in a meeting that

occurred in St. Louis, Missouri, that TSA needed to rid itself of

“this type of leadership,” and made several derogatory comments

about the age of the agency’s upper-level management, including

referring to them as “old, white and pathetic” and “old, white

and gray haired.” (Id. ¶¶ 9-12.) Later in 2006, TSA’s Executive

Resource Council, a body that Hill asserts is influenced by

Restovich, determined that it was not in the best interests of

the agency to continue to allow rehired annuitants to receive a

dual compensation waiver. Hill alleges that this decision was

made solely or in part based on the age of the reemployed
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annuitants. (Id. ¶ 13.) In 2007, Hill was terminated as the

Assistant Federal Security Director for Law Enforcement at

Portland International Airport. He alleges that he was

terminated because of his age. (Id. ¶¶ 16-17.) 

Hill filed the instant complaint against the Secretary of

DHS in 2011. The Secretary has moved under Federal Rule of Civil

Procedure 12(b)(3) to dismiss for improper venue, or in the

alternative, to transfer the case under 28 U.S.C. § 1404(a) to

either the District of Oregon, where Hill resides and where he

worked, or the Eastern District of Virginia, where TSA is

headquartered. Hill opposes. 

DISCUSSION

Rule 12(b)(3) “allows a case to be dismissed for improper

venue.” Hunter v. Johanns, 517 F. Supp. 2d 340, 343 (D.D.C.

2007); see also Fed. R. Civ. P. 12(b)(3). Generally, a plaintiff

bears the burden of demonstrating that venue is proper. Walden

v. Locke, 629 F. Supp. 2d 11, 13 (D.D.C. 2009). When

“‘considering a Rule 12(b)(3) motion, the court accepts the

plaintiff’s well-pled factual allegations regarding venue as

true, draws all reasonable inferences from those allegations in

the plaintiff’s favor, and resolves any factual conflicts in the

plaintiff's favor.’” Walden, 629 F. Supp. 2d at 13 (quoting

Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276 (D.D.C.

2002)). If the district where the case is brought is improper,
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the district court “shall dismiss, or if it be in the interest of

justice, transfer such case to any district” where venue is

proper. 28 U.S.C. § 1406(a); see also Haley v. Astrue, 667 F.

Supp. 2d 138, 142 (D.D.C. 2009) (citing Naartex Consulting Corp.

v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983)); Baez v. Connelly,

734 F. Supp. 2d 54, 58 (D.D.C. 2010) (“The decision to transfer

an action [under § 1406(a)] is left to the discretion of the

Court.”). “Generally, the interests of justice require

transferring such cases to the appropriate judicial district

rather than dismissing them.” Poku v. FDIC, 752 F. Supp. 2d 23,

27 (D.D.C. 2010). “This Circuit favors transfer under § 1406(a)

‘when procedural obstacles [such as . . . improper venue] impede

an expeditious and orderly adjudication on the merits.’” Sanchez

v. United States, 600 F. Supp. 2d 19, 22 (D.D.C. 2009) (quoting

Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir. 1983));

see also Atwal v. Lawrence Livermore Nat. Sec., LLC, 786 F. Supp.

2d 323, 328 (D.D.C. 2011)).

Since the ADEA lacks its own venue provision, venue is

governed by 28 U.S.C. § 1391(e), which provides in relevant part:

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 (1) a

defendant in the action resides, (2) a substantial part

of the events of omissions giving rise to the claim

occurred, or a substantial part of the property that is

the subject of the action is situated, or (3) the
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plaintiff resides if no real property is involved in

the action.

28 U.S.C. § 1391(e). “It is well established that ‘mere

involvement on the part of federal agencies, or some federal

officials who are located in Washington D.C., is not

determinative of venue[.]’” Chauhan v. Napolitano, 746 F. Supp.

2d 99, 103 (D.D.C. 2010) (quoting Aftab v. Gonzalez, 597 F. Supp.

2d 76, 82 (D.D.C. 2009)). “[N]aming a cabinet secretary . . .

does not alone anchor venue” in the District of Columbia. Aftab,

597 F. Supp. 2d at 81. “‘Courts in this circuit must examine

challenges to . . . venue carefully to guard against the danger

that a plaintiff might manufacture venue in the District of

Columbia [because] [b]y naming high government officials as

defendants, a plaintiff could bring a suit here that properly

should be pursued elsewhere.’” Aftab, 597 F. Supp. 2d at 81

(quoting Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir.

1993)) (alterations in the original). 

Here, Hill’s complaint pleads no facts that establish that

venue is proper in the District of Columbia. TSA’s headquarters

are in the Eastern District of Virginia (see Def.’s Mem. at 1

n.1), and Hill resides in Oregon, not in the District of

Columbia. The complaint does not allege that any events

associated with this case occurred in the District of Columbia

whatsoever. The plaintiff does not dispute this in his

opposition, and instead argues that venue is proper because the
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secretary of DHS “resides” in the District of Columbia. (Pl.’s

Opp’n at 2. ) However, as is mentioned above, naming a cabinet

secretary does not alone anchor venue in the District of

Columbia. Aftab, 597 F. Supp. 2d at 81. Hill’s complaint does

nothing more to establish venue in the District of Columbia than

naming the Secretary of DHS as the defendant. Therefore, venue

is not proper here. 

Although venue in this court is improper, this action may be

transferred nevertheless to a proper venue. Hill argues that

transfer to the District of Oregon or the Eastern District of

Virginia is inappropriate because a substantial part of the

events giving rise to his claim did not occur in either district. 

(Pl.’s Opp’n at 2-3.) It is apparent that the locus of the

gravamen of his complaint - - his discriminatory termination from

his Oregon job - - is Oregon. Nevertheless, even accepting

Hill’s arguments as true that few events associated with the case

occurred in Oregon or the Eastern District of Virginia, 28 U.S.C.

§ 1391(e)(3) expressly provides for venue in the district in

which the plaintiff resides. That district here is Oregon. 

Therefore, the case could have been brought in the District of

Oregon, and transferring the case to that District is in the

interest of justice. 
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CONCLUSION AND ORDER

Hill has not established that venue in the District of

Columbia is proper for his claim. Because venue is improper here

but would be proper in the District of Oregon, it is hereby

ORDERED that the defendant’s motion [5] to dismiss or in the

alternative to transfer be, and hereby is, GRANTED IN PART. The

Clerk is directed to transfer this case to the United States

District Court for the District of Oregon.

SIGNED this 16th day of March, 2012.

 /s/ 

RICHARD W. ROBERTS

United States District Judge