UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PENGBO LI, et al.,
Plaintiffs,
v. Civ. Action No. 20-1122 (EGS)
LOREN K. MILLER, in his official capacity, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Pengbo Li (“Mr. Li”) and Continental Automotive
Systems, Inc. (“Continental”) bring this lawsuit against
Defendants—Loren K. Miller, Director of the U.S. Citizenship and
Immigration Service (“USCIS”) Nebraska Service Center (“NSC”);
Tracy Renaud, 1 Senior Official Performing the Duties of the
Director of USCIS; and Alejandro Mayorkas, 2 Secretary of the U.S.
Department of Homeland Security—seeking “a judicial declaration
that Defendants’ actions in wrongfully denying Plaintiffs’ EB-1A
1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes as defendant the Senior Official Performing the Duties of the Director of USCIS, Tracy Renaud, for the former Senior Official Performing the Duties of the Director of USCIS, Kenneth T. Cuccinelli. 2 Pursuant to Federal Rule of Civil Procedure 25(d), the Court
substitutes as defendant the Secretary of the U.S. Department of Homeland Security, Alejandro Mayorkas, for the former Acting Secretary of the U.S. Department of Homeland Security, Chad F. Wolf. Form I-140 immigrant visa petition . . . were arbitrary,
capricious, an abuse of discretion, and not in accordance with”
the Administrative Procedure Act (“APA”) or the Immigration and
Nationality Act (“INA”). Compl., ECF No. 1 ¶ 1. 3 Pending before
the Court is Defendants’ motion to transfer venue either to the
United States District Court for the District of Nebraska, where
NSC is located, or to the United States District Court for the
Eastern District of Michigan, where Plaintiffs are located. See
Defs.’ Mot. Transfer Venue (“Defs.’ Mot.”), ECF No. 10-1 at 5.
Upon consideration of the parties’ submissions, the applicable
law, and the entire record herein, Defendants’ motion is
GRANTED.
I. Background
On April 29, 2020, Plaintiffs filed a Complaint pursuant to
the APA and INA, asking the Court to overturn a USCIS decision
denying Mr. Li’s EB-1A Form I-140 petition. Compl., ECF No. 1 ¶
1. Plaintiffs allege that: (1) “USCIS’s finding that Continental
failed to demonstrate that Dr. Li’s accomplishments . . . were
of major significance to the biomedical and automated driving
industries lacked any indication that the agency meaningfully
engaged with the voluminous evidence presented . . . , and
3 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
2 lacked essential analysis of how it reached its decision,” id.
at 17; (2) “USCIS’s finding that Continental failed to
demonstrate that Dr. Li performed in a leading or critical role
. . . reflects the agency’s complete failure to comprehend the
significance of his technological accomplishments to
Continental’s reputation . . . and his outsized contribution to
the company’s profitability,” id. at 20; and (3) “[d]ue to its
erroneous findings regarding the major significance of Dr. Li’s
sensor technology accomplishments and his leading and critical
role while working for Continental, USCIS failed to address the
remaining requirements to demonstrate eligibility for the EB-1A
immigrant visa petition,” id. at 23.
On July 6, 2020, Defendants filed their motion to transfer
this case to either the United States District Court for the
District of Nebraska or to the United States District Court for
the Eastern District of Michigan. See Defs.’ Mot., ECF No. 10-1
at 5. Plaintiffs filed their opposition on July 19, 2020, see
Pls.’ Opp’n, ECF No. 12; and Defendants filed their reply brief
on July 27, 2020, see Defs.’ Reply, ECF No. 13. The motion is
ripe for adjudication.
II. Legal Standard
Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of
the parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other
3 district . . . where it might have been brought.” In so doing,
the district court has discretion to transfer a case based on an
“individualized case-by-case consideration of convenience and
fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964));
see also Demery v. Montgomery Cnty., 602 F. Supp. 2d 206, 210
(D.D.C. 2009) (“Because it is perhaps impossible to develop any
fixed general rules on when cases should be transferred[,] . . .
the proper technique to be employed is a factually analytical,
case-by-case determination of convenience and fairness.”
(internal quotation marks omitted)). The moving party bears the
burden of establishing that transfer of the action is proper.
Devaughn v. Inphonic, Inc., 403 F. Supp. 2d 68, 71 (D.D.C.
2005); see also SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154
(D.C. Cir. 1978) (noting that the district court’s denial of a
motion to transfer “was effectively a ruling that [the
appellant] had failed to shoulder his burden”).
To justify a transfer, defendants must make two showings.
First, they must establish that the plaintiff could have brought
suit in the proposed transferee district. See Devaughn, 403 F.
Supp. 2d at 71–72; Trout Unlimited v. United States Dep’t of
Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). Second, defendants
must demonstrate that considerations of convenience and the
4 interests of justice weigh in favor of a transfer. See Devaughn,
403 F. Supp. 2d at 72; Trout Unlimited, 944 F. Supp. at 16.
To determine whether “considerations of convenience and the
interests of justice weigh in favor of a transfer,” the Court
considers private-interest factors including: (1) “the
plaintiff’s choice of forum, unless the balance of convenience
is strongly in favor of the defendant”; (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 witnesses may be
unavailable in one fora”; and (6) “the ease of access to sources
of proof.” DeVaughn, 403 F. Supp. 2d at 72. Finally, the Court
considers whether certain public-interest factors weigh in favor
of transfer, including: “(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.” Id. at 73.
III. Analysis
A. Plaintiffs Could Have Brought This Suit in the District of Nebraska or the Eastern District of Michigan
Pursuant to 28 U.S.C. § 1391(e), a lawsuit “in which a
defendant is an officer or employee of the United States or any
agency thereof acting in his official capacity” may be brought
in a judicial district: (1) where “a defendant in the action
5 resides”; (2) where “a substantial part of the events or
omissions giving rise to the claim occurred”; or (3) where “the
plaintiff resides if no real property is involved in the
action.”
It is undisputed that Plaintiffs could have brought their
claims in the District of Nebraska or the Eastern District of
Michigan. See Defs.’ Mot., ECF No. 10-1 at 7; Pls.’ Opp’n, ECF
No. 12 at 6-7. The Court agrees that the District of Nebraska is
an appropriate venue because it is the location where NSC
processed and denied Plaintiffs’ request. See McAfee, LLC v.
USCIS, No. 19-cv-2981 (DLF), 2019 WL 6051559, at *1 (D.D.C. Nov.
15, 2019) (explaining that “in APA cases like this one, the
underlying claim typically arises ‘where the decisionmaking
process occurred’” (citation omitted). The Court also agrees
that the Eastern District of Michigan is an appropriate venue
because Plaintiffs “reside[]” there. 28 U.S.C. § 1391(e)(1); see
Compl., ECF No. 1 ¶ 11.
B. Considerations of Convenience and the Interests of Justice Weigh in Favor of Transfer
1. Plaintiffs’ Choice of Forum
“Absent specific facts that would cause a district court to
question plaintiffs’ choice of forum, plaintiffs’ choice is
afforded substantial deference.” Wilderness Soc’y v. Babbitt,
104 F. Supp. 2d 10, 12 (D.D.C. 2000)(citations omitted). This is
6 especially true when the plaintiff is a resident of the forum.
See Pyrocap Int’l Corp. v. Ford Motor Corp., 259 F. Supp. 2d 92,
95 (D.D.C. 2003). “Conversely, substantially less deference is
warranted when the forum preferred by the plaintiff is not his
home forum.” Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52
(D.D.C. 2000). Transfer is proper when “the material events that
constitute the factual predicate for the plaintiff’s claims
occurred” in the transferee forum. Kafack v. Primerica Life Ins.
Co., 934 F. Supp. 3, 6–7 (D.D.C. 1996).
Here, the deference accorded to Plaintiffs’ choice of forum
is “weakened” because Plaintiffs do not reside in their chosen
forum and “most of the relevant events” giving rise to their
claims “occurred elsewhere.” Aftab v. Gonzalez, 597 F. Supp. 2d
76, 80 (D.D.C. 2009) (citations and quotations omitted). It is
undisputed that Plaintiffs reside in Michigan, see Compl., ECF
No. 1 ¶ 11; and NSC adjudicated and denied the visa petition in
Nebraska, see id. ¶ 47 & Ex. 4. And while Plaintiffs argue that
their choice of forum is the most appropriate because “a
majority of the Defendants named in this action are domiciled in
the District of Columbia,” Pls.’ Opp’n, ECF No. 12 at 8; the
Court is unpersuaded. Plaintiffs do not allege that the Acting
Secretary of the U.S. Department of Homeland Security or the
Senior Official Performing the Duties of Director of USCIS were
personally involved with the processing or adjudication of Mr.
7 Li’s application, and “naming a cabinet secretary and agency
directors does not alone anchor venue here.” Aftab, 597 F. Supp.
2d at 81. Therefore, the deference usually given to a
plaintiff’s choice of forum is diminished here. See Chauhan v.
Napolitano, 746 F. Supp. 2d 99, 103-04 (D.D.C. 2010) (explaining
that deference to plaintiffs’ choice of forum was weakened where
plaintiffs resided in the Northern District of Texas and the
Dallas Field Office had processed plaintiffs’ applications for
adjustment of their status); Pyrocap, 259 F. Supp. 2d at 96
(finding that the plaintiff’s choice of forum was diminished
because the “gravamen of this case involve[d] defendants’
alleged knowledge and conduct” outside of the District).
2. Defendants’ Choice of Forum
A defendant’s choice of forum is a consideration when
deciding a transfer motion, but it is not ordinarily entitled to
deference. Douglas v. Chariots for Hire, 918 F. Supp. 2d 24, 32
(D.D.C. 2013) (citations omitted). “[W]here Defendants move to
transfer over Plaintiff’s opposition, they must establish that
the added convenience and justice of litigating in their chosen
forum overcomes the deference ordinarily given to Plaintiff’s
choice.” Id. As discussed in further detail below, Defendants
have done so here by establishing that transfer to the District
of Nebraska will “lead to increased convenience overall.”
Mazzarino v. Prudential Ins. Co. of Am., 955 F. Supp. 2d 24, 31
8 (D.D.C. 2013). “Since, as just discussed, Plaintiffs receive no
deference, and as these other interests favor transfer,
Defendants receive some deference for their choice of forum.”
Ngonga v. Sessions, 318 F. Supp. 3d 270, 275 (D.D.C. 2018).
3. Whether the Claim Arose Elsewhere
“Courts in this district have held that claims ‘arise’
under 28 U.S.C. § 1404(a) in the location . . . where most of
the significant events giving rise to the claims occurred.”
Treppel v. Reason, 793 F. Supp. 2d 429, 436–37 (D.D.C. 2011)
(citations omitted). “When the material events that form the
factual predicate of a plaintiff’s claim did not occur in his
chosen forum, transfer is favored.” Tower Labs, Ltd. v. Lush
Cosmetics Ltd., 285 F. Supp. 3d 321, 326 (D.D.C. 2018). “In
cases brought under the APA, courts generally focus on where the
decisionmaking process occurred to determine where the claims
arose.” Nat’l Ass’n of Home Builders v. EPA, 675 F. Supp. 2d
173, 179 (D.D.C. 2009). Furthermore, courts in this District
have found that challenges to individual immigration decisions
generally arise in the forum of the USCIS service center that
processed the application at issue. See, e.g., Pasem v. USCIS,
No. 20-cv-344, 2020 WL 2514749, at *1, **4-5 (D.D.C. May 15,
2020); Bourdon v. U.S. Dep’t of Homeland Sec., 235 F. Supp. 3d
298, 306 (D.D.C. 2017); Aftab, 597 F. Supp. 2d at 78.
9 As discussed above, the claims arose primarily in the
District of Nebraska because NSC is the center that processed
and denied Plaintiffs’ petition. See McAfee, 2019 WL 6051559, at
**1-2 (finding that the underlying claim arose in the Central
District of California because the USCIS California Service
Center processed and denied the plaintiff’s request). In
addition, “any alleged error concerning this decision would have
been committed by NSC in the District of Nebraska.” Defs.’ Mot.,
ECF No. 10-1 at 9.
Plaintiffs’ argue, however, that this District is the most
appropriate forum because: (1) “the fact that the [NSC] reviewed
this particular petition was the result of a decision made by
USCIS agency officials in the District of Columbia”; and (2)
this case involves the “policy goals underpinning the United
States’ strategic desire to attract and retain foreign nationals
of extraordinary ability.” Pls.’ Opp’n, ECF No. 12 at 8-9. The
Court is unpersuaded. Regarding Plaintiffs’ first argument, as
Defendants point out, “Plaintiffs are not challenging USCIS’s
delegation of responsibilities among its service centers.”
Defs.’ Reply, ECF No. 13 at 9. Rather, Plaintiffs challenge a
specific decision made at NSC without the personal involvement
of any named Defendants within the District of Columbia.
Therefore, the Court cannot find that the “material facts are
more connected” to the District of Columbia than to Nebraska.
10 Aftab, 597 F. Supp. 2d at 84; see Pasem, 2020 WL 2514749, at *4
(“When the implementation of a policy is at issue, and that
implementation took place in a different judicial district,
venue is more appropriately laid in that other district.”
(alterations and quotation marks omitted)). Regarding
Plaintiffs’ second argument, even if the Court found that the
claims involved in this case had national implications, “the
connection between the events at issue in this case and the
District of Columbia is still tenuous at best.” Bourdon, 235 F.
Supp. 3d at 307 (dismissing plaintiff’s argument that the USCIS
West Palm Beach Field Office’s denial of his visa petition
involved national policies that emanated from agency
headquarters in the District of Columbia).
Accordingly, the Court finds that this factor tips in favor
of transfer.
4. The Convenience of the Parties, the Convenience of Witnesses, and the Ease of Access to Sources of Proof
Defendants argue that because the claims arose primarily in
another forum, the District of Nebraska or the Eastern District
of Michigan would be more convenient for the parties, potential
witnesses, and evidence. Defs.’ Mot., ECF No. 10-1 at 10-11.
Plaintiffs counter that the District of Columbia is the most
convenient venue because Continental’s legal counsel are located
in North Carolina and South Carolina. Pls.’ Opp’n, ECF No. 12 at
11 9. They further contend that because this case will likely be
decided on a factual record and on evidence currently in the
parties’ possession, the convenience of witnesses and the
location of evidence are irrelevant. Id. at 9-10.
Regarding Plaintiffs’ argument that their legal counsel
would have an easier time travelling to the District of Columbia
than to Nebraska or Michigan, “the location of counsel carries
little, if any, weight in an analysis under § 1404(a).”
McClamrock v. Eli Lilly & Co., 267 F. Supp. 2d 33, 40–41 (D.D.C.
2003) (internal quotation omitted). In addition, “[n]o showing
has been made that any potential witnesses would not be
available to testify in either of the [three] competing forums
and accordingly the Court need not consider the convenience of
witnesses factor.” Bourdon, 235 F. Supp. 3d at 308. To the
extent it would be necessary for the parties to call witnesses
or gather other evidence in this case, Plaintiffs’ Complaint
indicates that more potential witnesses and evidence would be
located in the District of Nebraska, where the claim arose, than
in the District of Columbia. Finally, the administrative record
is located in the District of Nebraska, where the adjudication
of Plaintiffs’ petition occurred, not in the District of
Columbia. See Sierra Club v. Flowers, 276 F. Supp. 2d 62, 69
(D.D.C. 2003) (“The location of the administrative record . . .
carries some weight in transfer determinations.”).
12 Accordingly, the Court finds that this factor weighs in
favor of transfer.
5. The Transferee’s Familiarity with the Governing Laws
Where “both courts are competent to interpret the federal
statutes involved[,] . . . there is no reason to transfer or not
transfer based on this factor.” Nat’l Wildlife Fed’n v. Harvey,
437 F. Supp. 2d 42, 49 (D.D.C. 2006). Because federal law
governs this case, this District, the District of Nebraska, and
the Eastern District of Michigan are all “equally familiar” with
applying it. McAfee, 2019 WL 6051559, at *1 (citation omitted);
Pasem, 2020 WL 2514749, at *3 (“[F]ederal district courts are
‘equally familiar’ with federal law, so that factor does not tip
the scale in either direction.” (quoting Al-Ahmed v. Chertoff,
564 F. Supp. 2d 16, 20 (D.D.C. 2008)). This factor is therefore
neutral.
6. The Relative Congestion of Each Court
“The relative docket congestion and potential speed of
resolution with respect to both the transferor and transferee
courts are appropriate to consider.” Trout Unlimited, 944 F.
Supp. at 19 (citing SEC v. Savoy Indus., Inc., 587 F.2d 1149,
1156 (D.C. Cir. 1978)). Here, the data regarding the speed of
the relevant court dockets is mixed. Plaintiffs argue that the
Court should consider the median time from filing to disposition
13 in civil cases. Pls.’ Opp’n, ECF No. 12 at 12. “For such cases,
this data reflects a median time of 5.6 months in this District,
8.3 months in the District of Nebraska, and 8.7 months in the
District of Michigan.” Id. Defendants, on the other hand, argue
that the Court should consider the median time from filing to
trial. Defs.’ Mot., ECF No. 10-1 at 11-12. For such cases, the
median time is 48.7 months in this District, 24.4 months in the
District of Nebraska, and 29.1 months in the Eastern District of
Michigan. Id. at 12. Defendants also point out that in the
District of Nebraska, only 5.1 percent of the civil docket is
more than three years old, compared to 8.3 percent in the
Eastern District of Michigan and 16.5 percent in the District of
Columbia. Defs.’ Reply, ECF No. 13 at 13. In addition, “the
number of filings in this District have grown by more than 50%
since 2014,” while the number of filings in the competing fora
have decreased or “remained relatively constant.” Id. Because
the statistics regarding court congestion is mixed and may also
“reflect differences other than congestion, such as differences
in the types of cases that are likely to be tried in each
district and the level of discovery and pre-trial motion
practice required in those cases,” Aishat v. U.S. Dep’t of
Homeland Sec., 288 F. Supp. 3d 261, 271 (D.D.C. 2018); the Court
finds that this factor is neutral.
14 7. The Local Interest in Deciding Local Controversies at Home
Although multiple jurisdictions may have an interest in
resolving Plaintiffs’ claims, courts in this District “have
looked at where a clear majority of the operative events took
place in order to determine where a case should be adjudicated.”
Treppel, 793 F. Supp. 2d at 439–40 (alteration and quotation
marks omitted). Indeed, “[c]ontroversies should be resolved in
the locale where they arise.” Trout Unlimited, 944 F. Supp. at
19. As previously discussed, the majority of the decisions
underlying Plaintiffs’ claims were made in Nebraska, and a
challenge to a decision regarding one visa petition is not
necessarily of such national significance that transfer to
another venue would be inappropriate. See Ngonga, 318 F. Supp.
3d at 277 (“Although recent events show that immigration policy
is undoubtedly of immense national interest, . . . the Court
finds that the instant case, which challenges an adverse
decision on one visa petition, presents an issue of far more
limited importance.”). Therefore, this factor weighs in favor of
transfer.
IV. Conclusion
Having considered all of the relevant factors, the Court
concludes that Defendants made the necessary showing that
“considerations of convenience and justice weigh in favor of a
15 transfer” to the District of Nebraska. Berry v. U.S. Dep’t of
Just., 49 F. Supp. 3d 71, 75 (D.D.C. 2014). Accordingly,
Defendants’ motion to transfer, ECF No. 10, is GRANTED. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge March 24, 2021