                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

PACIFIC MARITIME ASSOCIATION,

                          Plaintiff,                       Civil Action No. 12-1477 (BAH)

                          v.                               Judge Beryl A. Howell

NATIONAL LABOR RELATIONS BOARD,

                          Defendant.


                                       MEMORANDUM OPINION

        This case arises out of a dispute between two labor unions: the International Brotherhood

of Electrical Workers, Local 48, AFL-CIO (“the IBEW”) and the International Longshore and

Warehouse Union (“the ILWU”). The plaintiff, Pacific Maritime Association (“PMA”), is a

“multi-employer collective bargaining agent” for “stevedore companies, marine terminal

operators and maintenance contractors who employ longshoremen and other categories of

dockworkers.” Compl. for Declaratory & Injunctive Relief (“Compl.”) ¶ 5, ECF No. 1. One of

PMA’s members is ICTSI Oregon, Inc. (“ICTSI”), which is the operator of Terminal 6 at the

Port of Portland (“the Port”). Statement of P. & A. in Supp. Def.’s Mot. Transfer Venue (“Def.’s

Mem.”) at 2, ECF No. 12-1. The PMA and the ILWU asserted in early 2012 that their collective

bargaining agreement requires ICTSI to assign certain disputed “reefer work” to ILWU-

represented employees. 1 Id. At the same time, the Port and the IBEW have claimed that the

Terminal 6 lease agreement between IBEW and the Port requires the same work to be assigned

to IBEW-represented employees. Id.




1
 Reefer work involves “plugging in, unplugging, and monitoring refrigerated shipping containers.” Def.’s Mem. at
1.
                                                       1
         In May 2012, this dispute culminated with the ILWU filing unfair labor practice charges

with the defendant National Labor Relations Board (the “Board”) against the IBEW. See Compl.

¶ 14. Following an administrative investigation, four days of hearings before a Board hearing

officer in Portland, and the submission of the hearing officer’s report on the hearings, the Board

issued a decision on August 13, 2012, pursuant to 29 U.S.C. § 160(k), which granted the

disputed work to the IBEW-represented employees. Id. ¶ 27; see Def.’s Mem. at 5. In June

2012, while the Board’s decision was still pending, the PMA and the ILWU filed a civil action in

the District of Oregon against ICTSI, seeking to enforce certain arbitration awards that had

determined that the disputed reefer work should be performed by ILWU employees. See Def.’s

Mem. at 2–3. That action and at least two other related actions are currently pending before the

same judge in the District of Oregon. Def.’s Mem. at 6–7.

         In the instant action, the plaintiff challenges the validity of the Board’s August 13, 2012

decision on the grounds that “the Board acted in excess of its delegated powers and contrary to

specific statutory language.” Compl. ¶ 43. The defendant has moved to dismiss the plaintiff’s

complaint for lack of subject-matter jurisdiction, though that motion is not yet ripe for decision.

See ECF No. 20. Presently pending before the Court is the defendant’s Motion to Transfer

Venue, ECF No. 12, and for the reasons discussed below, the Court grants that motion. 2

I.       VENUE MAY BE ADDRESSED BEFORE SUBJECT-MATTER JURISDICTION
         IS DETERMINED

         First, the Court will discuss whether it is appropriate to address the question of venue

before deciding the defendant’s challenge to the Court’s subject-matter jurisdiction.




2
 The plaintiff has requested an oral hearing on the defendant’s motion to transfer. See Pl.’s Opp’n to Def.’s Mot. to
Transfer Venue (“Pl.’s Opp’n”) at 1 n.1, ECF No. 15. The Court denies this request since the memoranda filed in
connection with this motion, and the record herein, provide an ample basis for the Court’s resolution of this motion.
See LCvR 7(f).
                                                          2
         The Supreme Court has firmly established that “a federal court has leeway ‘to choose

among threshold grounds for denying audience to a case on the merits.” Sinochem Int’l Co. v.

Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 585 (1999)). In Sinochem, the Court held 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 “whether it has authority to adjudicate the cause.” Id. at

425. The unanimous Court reasoned that “[d]ismissal short of reaching the merits means that the

court will not ‘proceed at all’ to an adjudication of the cause,” and therefore “[r]esolving a forum

non conveniens motion does not entail any assumption by the court of substantive ‘law-declaring

power.’” Id. at 431, 433.

         Thus, the D.C. Circuit has acknowledged that Sinochem “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 D.C., 486 F.3d 1342, 1348 (D.C. Cir. 2007) (alteration in original) (internal quotation

marks omitted) (quoting Sinochem, 549 U.S. at 431). Also, since Sinochem was decided, its

reasoning has been extended in this Circuit to motions for venue transfer under 28 U.S.C.

§ 1404. 3 See Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d 48, 52–53 (D.D.C. 2012)

(deciding to address severance and transfer prior to subject-matter jurisdiction); Shay v. Sight &

Sound Sys., Inc., 668 F. Supp. 2d 80, 82 (D.D.C. 2009) (addressing motion to transfer venue

under § 1404(a) before addressing challenge to subject-matter jurisdiction); Aftab v. Gonzalez,

597 F. Supp. 2d 76, 79 (D.D.C. 2009) (“Although the defendants have moved to dismiss for lack


3
  The Supreme Court stated in Sinochem that “Congress has codified the [common-law] doctrine [of forum non
conveniens] and has provided for transfer, rather than dismissal, when a sister federal court is the more convenient
place for trial of the action.” Sinochem, 549 U.S. at 430. Due to this overlap between the doctrine of forum non
conveniens and transfer under 28 U.S.C. § 1404, one could justifiably read Sinochem itself to apply to motions to
transfer venue.
                                                          3
of subject-matter jurisdiction, the motion to transfer venue under § 1404 may be addressed

first.”); see also Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 117 (D.D.C. 2008)

(“Courts have discretion to resolve issues such as venue that do not affect the merits of the case,

without deciding the matter of personal jurisdiction.”).

       The Court in Sinochem observed that the difficulty and complexity of the issues

pertaining to jurisdiction will often dictate whether those jurisdictional questions or other,

threshold, non-merits issues may be decided first instead. The Court stated that if “a court can

readily determine that it lacks jurisdiction over the cause or the defendant, the proper course

would be to dismiss on that ground.” Sinochem, 549 U.S. at 436. “But where subject-matter or

personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh

heavily in favor of dismissal, the court properly takes the less burdensome course.” Id. The

lesson from Sinochem is thus a practical one: as long as a court’s disposition of an action is

based on a threshold, non-merits issue—thereby eschewing any “assumption by the court of

substantive ‘law-declaring power,’” id. at 433—the court may (and should) consider which

course would best serve the interests of judicial efficiency. See also Aftab, 597 F. Supp. 2d at 79

(“Adjudicative efficiency favors resolving the venue issue before addressing whether subject

matter jurisdiction exists.”). In the instant action, as the discussion below makes clear, judicial

efficiency strongly favors deciding the defendant’s Motion to Transfer Venue prior to addressing

the defendant’s challenge to the Court’s subject-matter jurisdiction.

II.    APPLICATION OF LEGAL STANDARD FOR VENUE

       Having determined that it is appropriate to assess venue before subject-matter

jurisdiction, the Court will now discuss whether a venue transfer is warranted.

       A case may be transferred to another venue “[f]or the convenience of parties and

witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). “The decision whether or not to

                                                  4
transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary.” In

re DRC, Inc., 358 F. App’x 193, 194 (D.C. Cir. 2009). “A transfer in derogation of proper venue

in the District of Columbia must be justified by particular circumstances that render the forum

inappropriate by reference to considerations specified in the statute.” Id. In deciding a motion to

transfer venue under § 1404(a), a court must first determine whether the transferee district is one

where the action “might have been brought,” 28 U.S.C. § 1404(a), and then must balance the

private and public interests involved in the proposed transfer to determine “whether the

defendant has demonstrated that considerations of convenience and the interest of justice support

a transfer,” Barham v. UBS Fin. Servs., 496 F. Supp. 2d 174, 178 (D.D.C. 2007).

       A.      This Action “Might Have Been Brought” in Oregon

       For venue purposes, a civil action may be brought, inter alia, in “a judicial district in

which a substantial part of the events or omissions giving rise to the claim occurred, or a

substantial part of the property that is the subject of the action is situated.” 28 U.S.C.

§ 1391(b)(2). With reference to that provision, the plaintiff contends that this action is severely

limited in geographic scope because it is a narrow challenge to the Board’s August 13, 2012

decision, which was issued in Washington, D.C. Therefore, the plaintiff’s position is that its

“complaint does not challenge or debate any event that occurred outside of the District of

Columbia.” Pl.’s Opp’n at 9.

       Such a blinkered perspective, however, does not acknowledge the broader context of this

dispute. Although the final act transpired in the defendant’s Washington, D.C. headquarters, the

rest of the play was set elsewhere. In particular, this case ultimately centers on a labor dispute in

Portland, Oregon, the location where the Board held extensive hearings to inform its decision

and where the hearing officer prepared her report. Moreover, Portland is precisely where the

immediate effects of the Board’s decision were felt and where issues related to the Board’s

                                                  5
decision continue to be litigated. See, e.g., FC Inv. Grp. LC v. Lichtenstein, 441 F. Supp. 2d 3,

11 (D.D.C. 2006) (“In determining ‘whether the events or omissions are sufficiently substantial

to support venue under [28 U.S.C. § 1391], a court should not focus only on those matters that

are in dispute or that directly led to the filing of the action. Rather, it should review the entire

sequence of events underlying the claim.’” (internal quotation marks omitted) (quoting Mitrano

v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004))). In this case, these events include: “[t]he disputed

work . . . the administrative investigation of unfair labor practice charges, the alleged unlawful

conduct, the pending 10(l) court injunctive proceedings, and the Section 10(k) hearing.” Def.’s

Mem. at 15. Since the sequence of events underlying the plaintiff’s claim took place almost

exclusively in Oregon, this action “might have been brought” there.

        B.      Private-Interest Factors Weigh in Favor of Transfer

        Next, the Court must assess the balance of the private-interest factors implicated by the

proposed transfer of this action. Those factors traditionally include:

        (1) the plaintiffs’ 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 they may actually be unavailable for trial in
        one forum; and (6) the ease of access to sources of proof.

Foote v. Chu, 858 F. Supp. 2d 116, 121 (D.D.C. 2012). At the outset, the Court agrees with the

parties that neither the fifth nor the sixth factors meaningfully apply to this action because this

case will almost certainly be resolved as a matter of law—there will be no need for witnesses or

access to “sources of proof” beyond electronically filed documents. Additionally, neither party

disputes that the fourth factor (convenience of the parties) is essentially neutral in this case; if




                                                   6
anything, this factor would militate toward transfer because the plaintiff is located in California,

and it does business primarily in California, Oregon, and Washington. See Compl. ¶¶ 5–6. 4

         Next, although “[t]he plaintiff’s choice of forum is afforded great deference, . . . . that

choice is conferred less deference by the court when a plaintiff’s choice of forum is not the

plaintiff’s home forum.” Stockbridge-Munsee Cmty. v. United States, 593 F. Supp. 2d 44, 47

(D.D.C. 2009) (internal quotation marks omitted); see also United States v. H & R Block, Inc.,

789 F. Supp. 2d 74, 79–80 (D.D.C. 2011) (giving deference to plaintiff’s choice of forum when

(1) the plaintiff was the federal government and had substantial ties to the District of Columbia;

and (2) the action involved a challenge to a merger of two national corporations, operating in a

national marketplace that would have nationwide antitrust implications). As discussed, the

plaintiff’s home forum would be the Northern District of California. See Compl. ¶ 6; Pl.’s Opp’n

at 11 n.7 (“PMA’s ‘home forum’ is San Francisco, California, where the association is

headquartered.”).

         Moreover, although the decision at issue in this action was made in Washington, D.C.,

“any role played by officials in the District of Columbia is overshadowed by the fact that their

decisions were based on work done by government employees” in Oregon—most notably the

four days of hearings held by the Board’s Portland office that were the basis for the Board’s

August 13, 2012 decision. Airport Working Grp. of Orange Cnty., Inc. v. U.S. Dep’t of Defense,

226 F. Supp. 2d 227, 230 (D.D.C. 2002); see also Stockbridge-Munsee, 593 F. Supp. 2d at 47

(“Though the administrative action at issue in this case arose in Washington, ‘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.’”

(alterations in original) (quoting DeLoach v. Philip Morris Co., 132 F. Supp. 2d 22, 25 (D.D.C.

4
  The plaintiff made clear that it “agrees with the Defendant that only private interest factors (1), (2), and (3) are
relevant to its motion.” Pl.’s Opp’n at 10 n.6.
                                                            7
2000))). The plaintiff relies heavily upon Greater Yellowstone Coalition v. Bosworth, 180 F.

Supp. 2d 124 (D.D.C. 2001) for its insistence that venue is proper in this District. See Pl.’s

Opp’n at 11–12. Unlike the plaintiffs in Greater Yellowstone, however, the plaintiff in the

instant action has no offices or other ties to the District of Columbia. See Greater Yellowstone,

180 F. Supp. 2d at 129 (noting that “two of the five plaintiffs . . . have offices in the District of

Columbia,” and distinguishing contrary cases on that basis). 5 This is a case where “the local

population [of Oregon] face[s] specific injury of a particularly local nature either as a result of,

or upon enjoinment of, [the defendant’s] challenged action,” Otay Mesa, 584 F. Supp. 2d at 127,

and therefore this case’s connection to the District of Columbia is attenuated. 6 Hence, because

the District of Columbia is not the plaintiff’s home forum, and because the District of Columbia

has only an attenuated connection to this controversy, the plaintiff’s choice of forum is not

entitled to deference, and that factor weighs in favor of transfer.




5
  Additionally, all of the other cases relied upon by the plaintiff for its argument that its choice of forum in the
District of Columbia is entitled to deference were challenges to the rulemaking of a federal agency. See Nat’l Ass’n
of Home Builders v. EPA, 675 F. Supp. 2d 173 (D.D.C. 2009); Otay Mesa Prop. L.P. v. U.S. Dep’t of Interior, 584
F. Supp. 2d 122 (D.D.C. 2008); Akiachak Native Cmty. v. Dep’t of Interior, 502 F. Supp. 2d 64 (D.D.C. 2007); The
Wilderness Soc’y v. Babbitt, 104 F. Supp. 2d 10 (D.D.C. 2000). These cases noted that a federal rulemaking, even
when focused upon a narrow geographic area, has “a national dimension” because the notice-and-comment process
is nationwide, and the forward-looking rule that results from the process can potentially apply directly to all areas of
the country. Compare Akiachak, 502 F. Supp. 2d at 67–68 (noting “the national rule-making process DOI engaged
in when formulating the regulation”); Wilderness Society, 104 F. Supp. 2d at 15 (“[T]he entire rulemaking process
had a national dimension as comments were received from all 50 states and public meetings were held both inside
and outside Alaska.”), with Abusadeh v. Chertoff, No. 06-2014, 2007 WL 2111036, at *6 (D.D.C. July 23, 2007)
(granting motion to transfer because “Plaintiff’s complaint does not assert a general, broad-based challenge to
immigration policies or regulations” but rather “focuses solely on Plaintiff’s application for naturalization and asks
simply that this Court require Defendants to immediately finish adjudicating his application”). Venue in this District
is more appropriate when the action challenged is an agency rulemaking with national implications, rather than an
agency adjudication of a dispute between two localized parties. Cf. Save Our Cumberland Mountains, Inc. v. Lujan,
963 F.2d 1541, 1551 (D.C. Cir. 1992) (acknowledging the distinction between “the national rulemaking context”
and “situation-specific litigation”).
6
  When a case involves a challenge to federal agency action, the extent to which a court confers deference upon a
plaintiff’s choice of forum depends upon the litigation’s connection to the transferee venue. This latter question, in
turn, depends upon whether the federal agency action in question should be characterized as local or national in
nature. In this way, the private-interest factor of the plaintiff’s choice of forum can, in the context of a challenge to
federal agency action, overlap heavily with the public-interest factor of the local interest in having localized
controversies decided at home.
                                                            8
        The defendant’s choice of forum (Oregon), on the other hand, is the true locus of this

dispute. As the defendant points out, that is where the two unions and the disputed work are

located, and it is also where the alleged unlawful conduct and the entire fact-finding and

administrative process underlying the Board’s decision took place. See Def.’s Mem. at 12, 15.

Furthermore, the defendant’s preference to litigate this action in Oregon “is certainly . . . more

logical . . . in light of the ongoing [related litigation] in that district.” Wada v. U.S. Secret Serv.,

525 F. Supp. 2d 1, 14 (D.D.C. 2007). Thus, the second factor, as well as the third factor—

whether the claim arose elsewhere—both weigh in favor of transfer. For these reasons, on

balance, the private-interest factors generally weigh in favor of transfer.

        C.      Public-Interest Factors Weigh in Favor of Transfer

        Finally, the Court must assess the public-interest factors that are implicated by the

defendant’s request to transfer this action. Those factors have been described traditionally as

“(1) the transferee forum’s familiarity with the governing laws and the pendency of related

actions in that forum; (2) the relative congestion of the calendars of the potential transferee and

transferor courts; and (3) the local interest in deciding local controversies at home.” Foote, 858

F. Supp. 2d at 123.

        The first of these factors, and particularly the aspect of that factor related to “the

pendency of related actions in [the transferee] forum,” is of paramount and overriding concern in

the context of this case. As discussed above, the plaintiff in the instant action challenges the

validity of the Board’s August 13, 2012, decision, but the validity of that decision is critical to

litigation currently ongoing in the District of Oregon. One of the cases currently pending in

Oregon, International Longshore & Warehouse Union v. ICTSI Oregon, Inc., No. 3:12-cv-1058,

is an effort by the ILWU and the PMA to enforce arbitration awards against the Port and ICTSI,

which conflict with the Board’s August 13, 2012, decision. As the defendant in the instant

                                                    9
action points out, in its most recent responsive pleading, “ICTSI relies upon the Board’s Section

10(k) decision, arguing to the District Court that the Court may not confirm the area arbitration

rulings as a matter of law because the Board’s contrary Section 10(k) decision trumps those

rulings.” Def.’s Mem. at 7. Hence, the validity (and consequent preemptive effect) of the

Board’s decision is of the utmost importance to at least one, if not more, of the pending Oregon

actions.

        The most pressing practical concern is that transferring this action to the stewardship of

the District of Oregon will prevent inconsistent judgments. An inconsistent judgment would

potentially impose chaotic effects on the interrelated web of disputes amongst PMA, the labor

unions, the Port, and the Board—almost all of which are pending in the District of Oregon, and

many of which depend, in one way or another, upon the Board’s August 13, 2012 decision.

“[G]iven the risk of inconsistent judgments attendant with retaining this case, the Court adheres

to the principle that ‘[t]he interests of justice are better served when a case is transferred to the

district where related actions are pending.’” Fed. Hous. Fin. Agency v. First Tenn. Bank Nat’l

Ass’n, 856 F. Supp. 2d 186, 195 (D.D.C. 2012) (quoting Reiffin v. Microsoft Corp., 104 F. Supp.

2d 48, 56 (D.D.C. 2000)).

III.    CONCLUSION

        For the reasons discussed above, the District of Oregon would be a more appropriate

venue in which to litigate this action. Thus, the defendant’s motion to transfer will be granted.

An appropriate Order accompanies this Memorandum Opinion.



        Date: November 20, 2012

                                                         /s/ Beryl A. Howell
                                                        BERYL A. HOWELL
                                                        United States District Judge
                                                  10
