Milanes v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
JUAN E. MILANES, :
:
Plaintiff, :
:
v. : Civil No. 09-824 (GK)
:
ERIC H. HOLDER, Jr., :
Attorney General, :
United States of America, :
et al., :
:
Defendants. :
______________________________:

MEMORANDUM OPINION

Plaintiff Juan E. Milanes brings this suit against Defendant

Eric H. Holder, Attorney General of the United States, and Rosa

Emilia Rodriguez-Velez, Acting United States Attorney for the

District of Puerto Rico, alleging discrimination based on gender

and disability, a hostile work environment, retaliation, and

constructive discharge in violation of Title VII of the Civil

Rights act of 1964, 42 U.S.C. § 2000e et seq., and the

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. This matter is

before the Court on Defendants’ Motion to Transfer “[p]ursuant to

28 U.S.C. § 1404(a),” Mot. at 1 [Dkt. No. 7].1 Upon consideration

1
The Defendants brought their Motion “on the grounds that the
instant forum is non conveniens,” Defs.’ Mot. to Transfer 1, but
motions under § 1404(a) are not the same as those formerly brought
under the common law doctrine of forum non conveniens. See 14
Wright & Miller, Federal Practice & Procedure § 3828 (3d ed. 2009)
(noting that the correct remedy in a forum non conveniens case is
dismissal of the action and that “forum non conveniens and transfer
should not be confused, either in terms of the standard to be
(continued...)
of the Motion, Opposition, Reply, and the entire record herein, and

for the reasons stated below, Defendants’ Motion is granted and

this case shall be transferred to the United States District Court

for the District of Puerto Rico.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Juan Milanes is a former Assistant United States

Attorney (AUSA) in the District of Puerto Rico. He alleges

numerous incidents which either contributed to creation of a

hostile work environment or constituted retaliation. Plaintiff was

assigned to the Narcotics Unit while in Puerto Rico, where his

superior was the Unit’s Deputy Chief, Jeanette Mercado. Plaintiff

alleges that Mercado created a hostile work environment. When

Plaintiff complained about his work environment, Rosa Emilia

Rodriguez-Velez, Acting U.S. Attorney for the District of Puerto

Rico, allegedly retaliated by denying Plaintiff’s children the

benefit of having the Department pay for them to attend an English-

language school in Puerto Rico, while still giving that benefit to

her friends in a “Girls Club” at the office. Plaintiff allegedly

was further retaliated against when Mercado assigned him the oldest

and weakest narcotics cases, threatened him with disciplinary

action, and attempted to sabotage his trial work.

1
(...continued)
applied by the district court or the very different consequences of
granting the motion”).

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 Additionally, Plaintiff applied for and was accepted to an

overseas detail in Kosovo, but Rodriguez-Velez served him with a

written reprimand on the day he was supposed to leave Puerto Rico,

preventing his departure on that date. His overseas detail was

subsequently retracted after Rodriguez-Velez accused the Plaintiff

of threatening her. Plaintiff filed a Complaint with the

Department of Justice and met with officials from the Executive

Office for United States Attorneys (EOUSA) in Washington, DC. The

EOUSA forwarded his complaint to its general counsel’s office, but

Plaintiff alleges it has not conducted an investigation nor given

him evidence he requested. Plaintiff was placed on administrative

leave pending an investigation and alleges that he was

constructively discharged on June 27, 2008, when he was forced to

resign his position as an AUSA.

On February 5, 2009, Plaintiff filed his first Complaint in

the District Court for the District of Puerto Rico (09-cv-1108),

which included the above allegations. On April 13, 2009 Plaintiff

filed a Motion to Recuse all the judges in the District of Puerto

Rico and petitioned the Chief Judge to appoint a judge from outside

the jurisdiction (Dkt. No 22). This motion was denied on April 22,

2009 (Dkt. No. 23). On the same day, Plaintiff filed a Notice of

Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a) (Dkt. No.

24). The court allowed the voluntary dismissal as a matter of

right, but noted in its Order that if the Plaintiff re-filed in the

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District of Puerto Rico, “the new case will be consolidated with

this original docket to avoid judge shopping.”

The Plaintiff then filed the present Complaint in this Court

on May 5, 2009 (09-cv-824). On August 8, 2009, Defendants filed the

present Motion to Transfer.

II. Analysis

Venue for Title VII actions is controlled by the venue

provision in 42 U.S.C. § 2000e-5(f)(3), which states:

[A]n action may be brought [1] in any judicial
district in the State in which the unlawful
employment 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, but [4] 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.

This provision also governs venue for actions under the

Rehabilitation Act. Dehaemers v. Wynne, 522 F. Supp. 2d 240, 247

(D.D.C. 2007).

Before deciding whether transfer is appropriate, the Court

must first determine whether the action could have been brought in

the transferee court sought by the moving party. Van Dusen v.

Barrack, 376 U.S. 612, 617 (1964). Congress intended to limit

venue in Title VII cases to those jurisdictions concerned with the

alleged discrimination. Stebbins v. State Farm Mut. Auto. Ins.

Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969). To determine where an

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alleged unlawful employment practice was committed, a court “must

look to the place where the decisions and actions concerning the

employment practices occurred.” Walden v. Locke, 629 F. Supp. 2d

11, 14 (D.D.C. 2009).

There is no question that venue would be proper in the

District of Puerto Rico. The underlying events surrounding

Plaintiff’s claims of discrimination, hostile work environment, and

retaliation occurred there. The Defendants concede, however, that

venue is also proper in this Court based on the retraction of

Plaintiff’s overseas assignment, which occurred in this

jurisdiction. Defs’. Mot. to Transfer 7.

When venue is proper in more than one district, a court can

transfer a Title VII employment discrimination case pursuant to 28

U.S.C. § 1404(a). See Hunter v. Johanns, 517 F. Supp. 2d 340, 343

(D.D.C. 2007); Johnson v. Lumenos Inc., 471 F. Supp. 2d 74, 75-76

(D.D.C. 2007). Under § 1404(a), “for the convenience of parties and

witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where

it might have been brought.” The moving party bears the burden of

establishing that transfer is proper. Johanns, 517 F. Supp. 2d at

343. Section 1404(a) grants discretion to adjudicate motions for

transfer according to an “individualized, case-by-case

consideration of convenience and fairness.” Stewart Org. Inc. v.

Ricoh Corp., 478 U.S. 22, 29 (1988). In making this determination,

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courts must balance public and private interest factors. Id. at

27.

A. The Private Interests of the Parties Weigh in Favor of
Transfer to the District of Puerto Rico

The private interest factors are: (1) the plaintiff’s choice

of forum, unless the balance of convenience is strongly in favor of

the defendants; (2) the defendant’s choice of forum; (3) whether

the claim arose elsewhere; (4) the convenience of the parties; (5)

the convenience of the witnesses, but only to the extent that the

witnesses may be unavailable for trial in one of the fora; and (6)

the ease of access to sources of proof. Fed. Trade Comm’n v.

Cephalon, Inc., 551 F. Supp. 2d, 21, 25 (D.D.C. 2008).

When weighing the plaintiff’s and defendant’s choice of

forum, there is a strong presumption against disturbing a

plaintiff’s initial forum choice. Pain v. United Techs Corp., 637

F.2d 775, 784 (D.C. Cir. 1980). However, this presumption has less

force when the forum is not the plaintiff’s home forum and most of

the relevant events occurred elsewhere. Hunter v. Johanns, 517 F.

Supp. 2d at 344. Those two conditions exist in this case.

First, Plaintiff does not claim to be a resident of the

District of Columbia, but states he “has resided and made his

domicile in the DC Metro area for 19 of the past 21 years.” Pl’s

Opp. Mem. ¶2. The caption of the Complaint indicates that

Plaintiff lives in Reston, Virginia. Therefore, his home forum

would be in the Eastern District of Virginia, not the District of

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Columbia. Second, most of the alleged discriminatory events

occurred in Puerto Rico. The fact that the Plaintiff’s salary was

disbursed from the main DOJ payroll in Washington, D.C. instead of

from funds appropriated to the local AUSA Office in Puerto Rico,

Pl’s Opp. Mem. ¶ 3, does not transform this District into the locus

of the underlying events described in the Complaint.

Plaintiff allegedly suffered a hostile work environment in

Puerto Rico, and much of the employment discrimination and

retaliation occurred in Puerto Rico, including the denial of his

children’s enrollment in the English-language school. Although the

actual denial of Plaintiff’s overseas assignment occurred in this

District, that decision was based on events that occurred in Puerto

Rico, i.e., Plaintiff’s alleged threat against Defendant Rodriguez-

Velez. See Perez v. Hufstedler, 505 F. Supp. 39 (D.D.C. 1980)

(transferring case to the District of Puerto Rico when the balance

of convenience and the interests of justice favored that district).

Therefore, because the Plaintiff does not reside in this District,

and because the alleged acts which form the basis of the

discrimination and retaliation charges occurred in the transferee

forum, reduced deference is paid to his choice of forum.

Courts weigh the convenience of witnesses “only to the extent

that the witnesses may actually be unavailable for trial in one of

the fora.” Johnson v. Lumenos, Inc., 471 F. Supp. 2d 74, 77

(D.D.C. 2007). Plaintiff compiled a sample witness list, Compl. ¶

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6, that includes witnesses from both Washington, D.C. and Puerto

Rico. There are no allegations that any of the witnesses would

actually be unwilling or unable to testify. Given the fact that

Plaintiff chose initially to file his case in Puerto Rico, it is

difficult to give much credence to his total reversal of position

regarding the convenience of witnesses and their ability to

testify.

Moreover, ease of access to sources of proof does favor the

Defendants’ choice of forum. Because the Plaintiff’s Complaint

alleges events that either occurred in Puerto Rico or involved

decisions based on events that occurred in Puerto Rico, most

discovery in this case will occur in that District. See Munoz v.

England, No. CV-05-2472, 2006 WL 3361509 at *5 (D.D.C. Nov. 6,

2006) (“The Title VII venue provision is not concerned with the

location of the administrative processing of Plaintiff’s claims,

but rather with the location of the events giving rise to the

claims.”). Given the diminished weight due the Plaintiff’s choice

of forum, the other private interest factors combine to favor

transfer of this case to the District of Puerto Rico. See Kafack v.

Primerica Life Ins. Co., 934 F. Supp. 3, 6-7 (D.D.C. 1996) (stating

in support of a transfer that “the material events that constitute

the factual predicate for the plaintiff's claims occurred” in the

transferee district).

B. The Public Interest of the Court Also Weighs in Favor of
Transfer to the District of Puerto Rico

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 The public interest factors are: (1) the transferee’s

familiarity with the governing laws; (2) the relative congestion of

the calendars of the transferee and transferor courts; and (3) the

local interest in deciding local controversies at home. Fed. Trade

Comm’n v. Cephalon, Inc., 551 F. Supp. 2d, 21, 25 (2008).2

First, since this case is brought under federal law, the

District Court of Puerto Rico is just as “competent to decide

federal issues correctly” as is this Court. Otay Mesa Prop., L.P.

v. U.S. Dept. of Interior, 584 F. Supp. 2d 126 n.1 (D.D.C. 2008).

Second, while both districts have crowded dockets, this District

has over 4,000 pending cases, compared to the District of Puerto

Rico’s which has 2,000. Although the median civil case takes two

months longer to resolve in Puerto Rico than in the District of

Columbia, that is not a substantially different length of time.

See Federal Court Management Statistics, 2008, available at

http://www.uscourts.gov/cgi-bin/cmsd2008.pl. As this case has “not

evolved past the earliest stages of litigation, the proposed

transfer would not unduly delay the case’s progress.” Johnson v.

Lumenos, Inc., 471 F. Supp. 2d at 77.

Third, Puerto Rico has a stronger local interest in this case

than this District, as “the parties and material events that make

2
The Plaintiff lists a number of additional factors that the
Court should consider, Pl’s Opp. Mem. ¶5, 9, but does not cite any
cases from this Circuit, and those other factors are not
controlling in this District.

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up the claims' factual predicate are more connected” to the

transferee district. Montgomery v. STG Int’l, Inc., 532 F. Supp.

2d 29, 34 (D.D.C. 2008). See also Liban v. Churchey Group II,

L.L.C., 305 F. Supp. 2d 136, 143 (D.D.C. 2004) (transferring a case

to the district in which the majority of the alleged discriminatory

events occurred).

Lastly, the Court will address the issue of forum shopping,

raised by both parties. To the extent that Plaintiff is engaging

in forum shopping, that issue weighs in favor of transfer to a more

appropriate forum. Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d

1, 4 (D.D.C. 2006). As noted above, Plaintiff originally filed his

Complaint in the District of Puerto Rico, but voluntarily dismissed

it only when his motion to recuse all of the judges in that

District was denied. The Court has reviewed both the original

complaint filed in Puerto Rico and the present Complaint filed in

this Court. They each contain the same allegations of

discrimination and retaliation.

It therefore appears that the Plaintiff re-filed his Complaint

in this District because he was not satisfied, for whatever reason,

with the judges in Puerto Rico. It is not in the interest of

justice to allow the Plaintiff to re-file his case in this venue

because he is unhappy with denial of his recusal motion. See

Schmid Laboratories, Inc. v. Hartford Accident and Indem. Co., 654

F. Supp. 734, 736 (D.D.C. 1986) (transferring case where the

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plaintiff’s forum shopping combined with other factors was

sufficient to deny plaintiff’s chosen forum).3

Plaintiff alleges that he and all of the judges in the

District of Puerto Rico have a conflict of interest because they

are defendants in a pro se civil case brought in the District of

Maryland, Zeno v. The United States of America, 09-cv-544, and

there are potential antagonistic defenses among them. Pl’s Compl.

at ¶ 10. While charges of judicial bias are serious, the Court has

little doubt that the judges in the transferee district will make

a fair and impartial determination on whether there is a conflict.

See Airport Working Group of Orange County, Inc., v. U.S. Dep’t of

Defense, 226 F. Supp. 2d 227, 232 (D.D.C. 2002) (transferring case

despite claims that large numbers of judges in the transferee

district would have to recuse themselves). There is no reason to

think that the judges will not be able to give the Plaintiff a fair

hearing just because they are common defendants in an unrelated

matter. See United States v. Fiat Motors of North America, Inc.,

512 F. Supp. 247, 251 (D.D.C. 1981) (“A trial judge is presumed to

be impartial and the affiant assumes a heavy burden in

demonstrating the contrary.”). Indeed, before Plaintiff dismissed

3
It is clear that the District Court in Puerto Rico thought
Plaintiff was forum shopping when it conditioned approval of
Plaintiff’s voluntary dismissal motion on a procedure designed “to
avoid judge shopping.”

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his case there, one of the judges voluntarily recused himself from

this matter. (09-cv-1108 Dkt. No. 18).

Based on all the factors discussed, the Court concludes that

Puerto Rico has a greater interest in having this case decided

there. As the Supreme Court noted in Gulf Oil v. Gilbert, 330 U.S.

501, 508-09 (1947), “[t]here is a local interest in having

localized controversies decided at home.” The Complaint alleges

conduct that was almost entirely based in Puerto Rico, and while

venue is technically proper in this Court under § 2000e-5(f)(3),

the interests of justice dictate transfer to that district.

III. CONCLUSION

For the reasons stated herein, Defendants’ Motion to Transfer

pursuant to 28 U.S.C. § 1404(a) is granted. Accordingly, this case

will be transferred to the United States District Court for the

District of Puerto Rico.

An Order will issue with this opinion.

October 21, 2009 /s/
Gladys Kessler
United States District Judge

Copies to counsel of record via ECF

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