Aftab v. Gonzalez

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
KASHIF AFTAB, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-2080 (RWR)
)
EMILIO T. GONZALEZ et al., )
)
Defendants, )
______________________________)

MEMORANDUM OPINION AND ORDER

Kashif Aftab brings claims against the Director of United

States Citizenship and Immigration Services (“CIS”), the

Secretary of the United States Department of Homeland Security

(“DHS”), the Director of the Federal Bureau of Investigation

(“FBI”), and the Director of CIS’ Texas Service Center (“TSC”),

alleging that they have unreasonably delayed processing his

application for adjustment of his status. The defendants have

moved to dismiss for lack of subject matter jurisdiction, or in

the alternative, to transfer venue. Because the defendants show

that a transfer of venue to the Northern District of Texas is in

the interest of justice, the defendants’ motion to transfer will

be granted.

BACKGROUND

Aftab, a resident of Houston, Texas, was the subject of an

approved “immigrant petition for alien worker (Form I-140) filed

on his behalf by his longtime employer[.]” (Compl. ¶ 15.)
 -2-

After his immigrant petition was approved, Aftab filed an

application for adjustment of status with CIS’ Vermont Service

Center in 2002. As directed by the Vermont Service Center,

Aftab twice provided fingerprints and additional evidence

regarding his birth date and employment. (Id. ¶¶ 15, 16.) CIS

also sent the FBI a request for a background check on Aftab.

(Id. ¶ 12.) Aftab moved to Texas in 2005 and his application

was transferred to the TSC in 2007. (Id. ¶¶ 17, 18.) The TSC

later asked Aftab for additional evidence and fingerprints.

(Id. ¶ 20.) Aftab has contacted the TSC on multiple occasions

regarding the status of his application, but he has not received

a final decision. (Id. ¶ 21.) At the time this action was

filed, the TSC was reviewing “employment-based adjustment of

status applications filed on or before August 25, 2006,” which

would include Aftab’s application. (Id. ¶ 19.)

Aftab alleges that the defendants have failed to adjudicate

his adjustment of status application and seeks to “[c]ompel the

Defendants and those acting under them to take all appropriate

action to perform their duty to adjudicate the Plaintiff’s

adjustment of status application without further delay[.]” (Id.

at 15.) He alleges that CIS has “willfully and unreasonably

failed to adjudicate the Plaintiff’s application for adjustment

of status for over five years, thereby depriving the Plaintiff

of his rights under 8 U.S.C. § 1151(a)(2).” (Id. ¶ 32.)
 -3-

Three of the defendants are located in the District of

Columbia while the Director of CIS’ TSC is located in the

Northern District of Texas. The defendants have moved under

Federal Rule of Civil Procedure 12(b)(1) to dismiss or to

transfer the action to the Northern District of Texas under 28

U.S.C. § 1404(a). (Defs.’ Mem. of Law in Supp. of Mot. to

Dismiss or in the Alternative to Transfer (“Defs.’ Mem.”) at 1.)

DISCUSSION

I. ADDRESSING VENUE BEFORE JURISDICTION

Although the defendants have moved to dismiss for lack of

subject matter jurisdiction, the motion to transfer venue under

§ 1404 may be addressed first. In Sinochem Int’l Co. v.

Malaysia Int’l Shipping Corp., 127 S. Ct. 1184 (2007), the

Supreme Court held that the question of forum non conveniens can

be addressed before considering whether subject matter

jurisdiction exists. Id. at 1188 (stating that “a district

court has discretion to respond at once to a defendant’s forum

non conveniens plea, and need not take up first any other

threshold objection[,]” including subject matter jurisdiction or

personal jurisdiction). “A district court therefore may dispose

of an action by a forum non conveniens dismissal, bypassing

questions of subject-matter and personal jurisdiction, when

considerations of convenience, fairness, and judicial economy so

warrant.” Id. at 1192 (stating that a forum non conveniens
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dismissal “denies audience to a case on the merits” and “is a

determination that the merits should be adjudicated elsewhere”

(internal quotation marks and brackets omitted)). “Sinochem

thus firmly establishes that certain non-merits,

nonjurisdictional issues may be addressed preliminarily, because

‘[j]urisdiction is vital only if the court proposes to issue a

judgment on the merits.’” Pub. Citizen v. U.S. Dist. Court for

District of Columbia, 486 F.3d 1342, 1348 (D.C. Cir. 2007)

(quoting Sinochem, 127 S. Ct. at 1191-92).

While the defendants do not move for dismissal based on

forum non conveniens as happened in Sinochem, they do seek a

transfer of the case to the Northern District of Texas under

§ 1404(a). Sinochem’s rationale has been extended to cases

involving transfer of venue under § 1404(a). See Kazenercom TOO

v. Turan Petroleum, Inc., Civil Action No. 08-1339 (ESH), 2008

WL 5272767, at *2 n.5 (D.D.C. Dec. 19, 2008) (stating that

Sinochem supports deciding the motion to transfer venue under

§ 1404(a) before addressing issues of personal or subject matter

jurisdiction); Cheney v. IPD Analytics, LLC, Civil Action No.

08-1044 (JDB), 2008 WL 4616888, at *5 (D.D.C. Oct. 20, 2008)

(concluding that following Sinochem, the court could address a

motion to transfer venue under § 1404(a) before addressing

issues of personal jurisdiction); Focus Enters., Inc. v. Zassi

Med. Evolutions, Inc., Civil Action No. 06-2068 (GK), 2007 WL
 -5-

1577844, at *1 n.1 (D.D.C. May 31, 2007) (stating that because

the case should be transferred to another district, the question

of personal jurisdiction need not be addressed). “[A] federal

court has leeway ‘to choose among threshold grounds for denying

audience to a case on the merits’” and there is no “‘mandatory

sequencing of jurisdictional issues.’” In re LimitNone, LLC,

551 F.3d 572, 576 (7th Cir. 2008) (quoting Sinochem, 127 S. Ct.

at 1191); see also Public Serv. Elec. & Gas Co. v. FERC, 485

F.3d 1164, 1171 (D.C. Cir. 2007) (citing Sinochem to support the

proposition that it “need not reach the question of standing

because our decision rests on a different ‘threshold,

non-merits’ ground”). Adjudicative efficiency favors resolving

the venue issue before addressing whether subject matter

jurisdiction exists.

II. ASSESSING VENUE

A case may be transferred to another venue under 28 U.S.C.

§ 1404(a) “[f]or the convenience of parties and witnesses, in

the interest of justice[.]” 28 U.S.C. § 1404(a). See also

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). The

moving party has the burden of establishing that a transfer is

proper. Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 3

(D.D.C. 2006). As a threshold requirement, the transferee court

must be in a district where the action “might have been

brought.” See 28 U.S.C. § 1404(a). If it is, then a court uses
 -6-

its broad discretion to balance case-specific factors related to

the public interest of justice and the private interests of the

parties and witnesses. Stewart Org., Inc. v. Ricoh Corp., 487

U.S. 22, 29-30 (1988); Trout Unlimited v. U.S. Dep’t of Agric.,

944 F. Supp. 13, 16 (D.D.C. 1996). In the balancing, a

“[p]laintiff’s choice of forum is given paramount consideration

and the burden of demonstrating that an action should be

transferred is on the movant.” Air Line Pilots Ass’n v. Eastern

Air Lines, 672 F. Supp. 525, 526 (D.D.C. 1987); see also DeLoach

v. Phillip Morris Cos., 132 F. Supp. 2d 22, 24 (D.D.C. 2000).

Ultimately, if the balance of private and public interests

favors a transfer of venue, then a court may order a transfer.

A. Venue in the Northern District of Texas

Under 28 U.S.C. § 1391(e),

[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 or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated, or (3) the plaintiff
resides if no real property is involved in the action.

The TSC Director resides in the Northern District of Texas.

Moreover, the TSC oversees Aftab’s adjustment of status

application (Compl. ¶ 18), and has taken actions in processing

Aftab’s application by gathering evidence and fingerprints from
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Aftab. (Id. ¶¶ 18-20.) Aftab has also had multiple contacts

with the TSC regarding the status of his adjustment application.

(Id. ¶ 21.) This action could have been brought, then, in the

transferee district.

B. Private Interests

The private interest factors typically considered include:

1) the plaintiff’s choice of forum, 2) the defendant’s choice of

forum, 3) where the claim arose, 4) the convenience of the

parties, 5) the convenience of the witnesses, particularly if

important witnesses may actually be unavailable to give live

trial testimony in one of the districts, and 6) the ease of

access to sources of proof. Montgomery v. STG Int’l, Inc., 532

F. Supp. 2d 29, 32-33 (D.D.C. 2008).

The first three factors weigh in favor of transfer. A

plaintiff’s choice of forum is ordinarily accorded deference.

Id. However, if a plaintiff is not a resident of the forum and

“most of the relevant events occurred elsewhere,” this deference

is weakened. Hunter v. Johanns, 517 F. Supp. 2d 340, 344

(D.D.C. 2007); see also 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).
 -8-

Aftab is a resident of Texas and not the District of

Columbia.1 (Compl. ¶ 11.) While the claim arguably arose in

more than one district, the claim involves identifiable relevant

events occurring in the transferee district and virtually none

in this district. Aftab has had multiple contacts with the TSC

regarding his application and has responded to its requests for

additional evidence and fingerprints. (Id. ¶ 20.) And it is

Genize Walker, an officer at the TSC who is located in the

Northern District of Texas, who has been “delegated the

authority to make declarations about the status of the

Plaintiff’s application and implement the procedures for

processing background security investigations.” (Defs.’ Mem.,

Decl. of Genize Walker (“Walker Decl.”) ¶¶ 1, 4-5; Compl. ¶¶ 18-

19.) Aftab’s choice of this district as a forum commands

diminished deference.

Moreover, naming a cabinet secretary and agency directors

does not alone anchor venue here. “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

1
Aftab resides in Houston, Texas, which is in the Southern
District of Texas.
 -9-

should be pursued elsewhere.” Cameron v. Thornburgh, 983 F.2d

253, 256 (D.C. Cir. 1993).

When “‘the only real connection [the] lawsuit has to the

District of Columbia is that a federal agency headquartered here

is charged with generally regulating and overseeing the

[administrative] process, venue is not appropriate in the

District of Columbia.’” Al-Ahmed v. Chertoff, 564 F. Supp. 2d

16, 19 (D.D.C. 2008) (noting in a case where the plaintiff seeks

to “compel action on his I-485 application for adjustment of

immigration status, his I-131 application for a travel document,

and his I-765 application for employment authorization” that

“little, if any, of the activity giving rise to plaintiff’s

claims has occurred in the District of Columbia nor will it”

because the named high level government officials do not

adjudicate applications) (quoting Abusadeh v. Chertoff, Civil

Action No. 06-2014 (CKK), 2007 WL 2111036, at *6-7 (D.D.C.

July 23, 2007)). Courts in the District of Columbia have found

venue to be proper when the agency official was personally

involved in the decision making process. Greater Yellowstone

Coal. v. Bosworth, 180 F. Supp. 2d 124, 128 (D.D.C. 2001),

involved a challenge to the renewal of a cattle grazing permit

for the Horse Butte Allotment (“HBA”), and the court noted that

venue was supported because the plaintiff alleged that officials

in Washington, D.C. were “involved in inter-agency discussions
 -10-

regarding the reissuance of the HBA grazing permit.” And, in

The Wilderness Soc. v. Babbitt, 104 F. Supp. 2d 10, 14 (D.D.C.

2000), venue was proper in this district because Secretary

Babbitt was personally and substantially involved in the matter

by visiting the area at issue, meeting with interested parties,

signing the record of decision, and briefing the public about

his decision.

Aftab does not allege that the DHS Secretary or the FBI or

CIS Directors were personally involved with the processing or

adjudication of his application. Aftab asserts “the evidence

suggests that the five year delay in Plaintiff’s adjustment of

status application and the necessary actions to move forward

Plaintiff’s application, must occur outside of Texas.” (Pl.’s

Opp’n to Defs.’ Mot. to Dismiss or in the Alternative to

Transfer (“Pl.’s Opp’n”) at 31.) He also asserts that

adjudication of applications is an issue of national policy

(Compl. ¶ 9) and that the federal officials in this forum play

an “active or significant role in the processing of background

and security checks on cases such as the Plaintiff[’s].” (Pl.’s

Opp’n at 37 (internal quotation marks omitted).) Aftab relies

on policy memoranda and reports by the defendants, but he

neither points to any involvement by the DHS Secretary or the

FBI or CIS Directors in his application nor challenges a general

policy or regulation. (See id. at 39 (stating that “[t]he
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action before this Court pertains solely to the Defendants’

unreasonable delay in processing Plaintiff’s application”).)

Cf. Akiachak Native Cmty. v. Dep’t of Interior, 502 F. Supp. 2d

64, 67 (D.D.C. 2007) (stating that the plaintiff’s choice of

venue was given deference because the plaintiff challenged the

validity of a regulation that was formulated through a rule-

making process, which occurred in the District of Columbia).

Even if these officials had some involvement in policy

decisions that affect Aftab, attenuated or insignificant

involvement by an official in the District of Columbia does not

support venue here. See Marks v. Torres, 576 F. Supp. 2d 107,

111 (D.D.C. 2008) (finding 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 because

there was no factual connection between the District of Columbia

and the litigation other than the presence of federal agencies

in the forum, and the interpretation and implementation of

regulations occurred outside this district (citing Shawnee Tribe

v. United States, 298 F. Supp. 2d 21, 25-26 (D.D.C. 2002)));

Sierra Club v. Flowers, 276 F. Supp. 2d 62, 68 (D.D.C. 2003)

(stating that the plaintiff’s choice of forum received less

deference because there was a “lack of evidence that federal

officials in [Washington, D.C.] played ‘an active or significant

role’ in the decision to issue the permits”); Airport Working
 -12-

Group of Orange County, Inc. v. U.S. Dep’t of Def., 226 F. Supp.

2d 227, 230 (D.D.C. 2002) (concluding that the fact that the

record of decision was signed by a Department of Navy official

in the District of Columbia did not support venue because “there

[was] no evidence to suggest that these officials had an active

or significant role in this matter” and “any role played by

officials in the District of Columbia [was] overshadowed by the

fact that their decisions were based on work done by government

employees in California, public comments received from Orange

County residents and organizations, and Orange County land use

plans, zoning ordinances and regulations”); Trout Unlimited v.

U.S. Dep’t of Agric., 944 F. Supp. 13, 18 (D.D.C. 1996)

(concluding that the plaintiff’s deference was weakened because

the “decision-making process at both the forest and regional

level occurred in Colorado, not in Washington, D.C.”). The FBI

may affect the processing of Aftab’s application, but the FBI

“does not adjudicate applications” and “generally provides a

summary of available information to the USCIS for its

adjudicative process.” (Defs.’ Mem., Decl. of Michael Cannon at

15;) see also Abusadeh, 2007 WL 2111036, at *7 (concluding that

venue was not proper in D.C. even though the FBI was conducting

a name check because while “the FBI, in Washington, D.C., may

play a role in the processing of Plaintiff’s application for

naturalization[, this] does not alter the fact that the ultimate
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decision on Plaintiff’s application for naturalization - the

sole decision challenged in Plaintiff’s Complaint - will be made

at the USCIS office Houston, Texas”). While Aftab argues that

other CIS offices outside of transferee district have caused the

delay, none was in this district and the one responsible for

roughly the last two years for any ongoing delay is in the

Northern District of Texas. (Compl. ¶ 18.)

In sum, the plaintiff’s choice of this forum is entitled to

less deference and the Texas forum urged by the defendants is

the locus of substantially more events underlying plaintiff’s

claim than is the District of Columbia. See Barham v. UBS Fin.

Servs., 496 F. Supp. 2d 174, 179 (D.D.C. 2007) (noting that even

though the management decisions may have been made by managers

in the District of Columbia, the plaintiff’s forum was given

less deference because the defendants’ discriminatory actions

occurred in the Maryland office); Airport Working Group of

Orange County, Inc., 226 F. Supp. 2d at 231 (finding that when

the connection between the controversy, plaintiff, and the forum

are attenuated and lack a meaningful factual nexus, less

deference is given).

Regarding the remaining three private interest factors, the

defendants assert that the Northern District of Texas would be

more convenient because the people involved in making a

determination are located in the transferee district and the
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plaintiff resides in Texas. (Defs.’ Mem. at 25; Defs.’ Reply in

Supp. of Mot. to Dismiss, or in the Alternative, for Transfer,

Suppl. Decl. of Genize Walker ¶¶ 1, 3.) Aftab contends that the

convenience of witnesses or parties should carry little weight

in a case involving review of an administrative agency action

and that even if given weight, the Northern District of Texas is

not more convenient. (Pls.’ Opp’n at 38-41.)

Neither side complains that either forum is inconvenient to

any party. In a case involving review of an agency action, “the

location of witnesses is not a significant factor,” but “[t]he

location of the administrative record, however, carries some

weight[.]” Sierra Club, 276 F. Supp. 2d at 69. Although not a

strong consideration, potential witnesses, if any, could include

TSC employees involved in processing or deciding Aftab’s

application. See Abusadeh, 2007 WL 2111036, at *8 (stating that

“to the extent that any relevant witnesses and documents exist,

they will be the individuals involved in making the ultimate

decision on Plaintiff’s application for naturalization as well

as the documents and records related to his application, all of

which are located in the [transferee district]”). No issue has

been raised, though, about any witness’s potential

unavailability in any forum. Finally, while the TSC has

approximately two million active files (Walker Decl. ¶ 5), the

defendants do not affirmatively state that the administrative
 -15-

records or documents pertaining to Aftab’s application are

located in the transferee district. Given the nature of Aftab’s

claim, it is unlikely that a transfer would materially affect

the convenience of the parties or witnesses, or the ability to

obtain sources of proof. On balance, these final three private

interest factors favor neither side.

C. Public Interests

The public factors usually weighed in considering a motion

to transfer include: 1) the transferee’s familiarity with the

governing laws; 2) the relative congestion of each court; and 3)

the local interest in deciding local controversies at home.

Liban v. Churchey Group II, L.L.C., 305 F. Supp. 2d 136, 143

(D.D.C. 2004).

The transferee district is presumed to be equally familiar

with the federal laws governing Aftab’s claims. Al-Ahmed, 564

F. Supp. 2d at 20 (stating that both federal courts are “equally

familiar” with federal law). This factor is neutral. The

defendants argue that cases are resolved more quickly in the

Northern District of Texas than in the District of Columbia.

(Defs.’ Mem. at 25-26.) In comparison to the District of

Columbia, the Northern District of Texas has a lower median time

from filing to diposition, but has a larger total case load.

(Defs.’ Mem., Ex. 5, U.S. District Court - Judicial Caseload

Profile at 1-2.) Even if it is assumed that Aftab’s case might
 -16-

proceed more quickly in the Northern District of Texas, the

difference is relatively minor and this factor would favor

transfer only slightly.

Finally, Texas has a stronger local interest in this case

than does the District of Columbia. See Abusadeh, 2007 WL

2111036, at *8 (stating that in a case involving the processing

of the plaintiff’s application for naturalization, the rationale

that “‘[t]here is a local interest in having localized

controversies decided at home’” extends “‘to controversies

involving federal decisions that impact the local environment,

and to controversies requiring judicial review of an

administrative decision’” (quoting Sierra Club, 276 F. Supp. 2d

at 70) (emphasis omitted)).

To determine whether a controversy is local in nature,
courts consider a wide variety of factors, including:
where the challenged decision was made; whether the
decision directly affected the citizens of the
transferee state; the location of the controversy,
whether the issue involved federal constitutional
issues rather than local property laws or statutes;
whether the controversy involved issues of state law,
whether the controversy has some national significance;
and whether there was personal involvement by a
District of Columbia official.

Otay Mesa Property L.P. v. U.S. Dep’t of Interior, Civil Action

No. 08-383 (RMC), 2008 WL 4767998, at *4 (D.D.C. Nov. 3, 2008).

Because the TSC has taken some actions related to Aftab’s

application and has been delegated the authority to make a

decision while the defendants in the District of Columbia have
 -17-

not had any personal involvement, and because Aftab does not

challenge an agency regulation or policy, the material facts are

more connected to Texas than the District of Columbia. Aftab

seeks relief that ultimately involves a determination of whether

the TSC should be compelled to adjudicate his adjustment of

status application without further delay. See Abusadeh, 2007 WL

2111036, at *8 (finding that the transferee district is “better

positioned” to be involved in “dictating the priorities of a

local USCIS office” and “may have a superior interest in doing

so”). This factor tips slightly in favor of transfer.

Thus, although venue may lie in the District of Columbia,

the balance of public and private interests favors a transfer to

the Northern District of Texas, and the defendants’ motion will

be granted only insofar as it seeks a transfer of venue. See

Kazenercom TOO, 2008 WL 5272767, at *8 n.17 (leaving to the

transferee court the defendants’ motions to dismiss since the

case was being transferred).

CONCLUSION AND ORDER

The balance of public and private interest factors favors

transfer of this case to the Northern District of Texas.

Accordingly, it is hereby

ORDERED that defendants’ motion [15] to dismiss or in the

alternative, transfer venue be, and hereby is, GRANTED IN PART.

The request to transfer venue is granted. The Clerk is directed
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to transfer this case to the United States District Court for

the Northern District of Texas.

SIGNED this 17th day of February, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge