                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


JASON BRIAN BRAUN,

              Plaintiff,

       v.
                                                    Civil Action No. 16-2457 (TJK)
U.S. DEPARTMENT OF THE INTERIOR
et al.,

              Defendants.


                           MEMORANDUM OPINION AND ORDER

       Plaintiff Jason Brian Braun, proceeding pro se, is a former employee of the Department

of the Interior (“DOI”) who was based in Albuquerque, New Mexico. After his employment

ended in 2010, Braun brought administrative claims that he had been subject to employment-

related misconduct, including discrimination based on disability. Those claims were heard by an

administrative judge, who granted summary judgment for the agency. DOI adopted the

administrative judge’s decision. Braun subsequently appealed to the Equal Employment

Opportunity Commission (the “EEOC”), which affirmed the dismissal. Braun has brought suit

against DOI, the Secretary of the Interior,1 and the EEOC, alleging misconduct in his

employment and the post-employment administrative proceedings.

       Defendants have moved to dismiss Braun’s claims against the EEOC for failure to state a

claim. They also ask the Court either to dismiss the claims against DOI and the Secretary of the

Interior for improper venue, or to transfer them to the District of New Mexico. See ECF No. 17.


1
  It appears that Braun has sued former Secretary Sally Jewell in her official capacity.
Defendants have requested that the current Secretary of the Interior, Ryan Zinke, be substituted
for former Secretary Jewell pursuant to Federal Rule of Civil Procedure 25(d). The Court agrees
that this request is proper and will grant it.
For reasons set forth below, the motion will be granted. Braun’s claims against the EEOC will

be dismissed with prejudice. In addition, the Court agrees that this District is not a proper venue

for Braun’s remaining claims against DOI and the Secretary of the Interior. Therefore, the case

will be transferred to the District of New Mexico.

I.     Background

       Braun’s Complaint appears to assert claims against DOI and the Secretary of the Interior

under various federal statutes and regulations, including: Title VII of the Civil Rights Act of

1964 (“Title VII”); the Rehabilitation Act of 1973 (“Rehabilitation Act”), and specifically 29

U.S.C. § 791; the Civil Service Reform Act of 1978 (“CSRA”), specifically 5 U.S.C. §§ 2301(b)

and 2302; 5 U.S.C. § 2108; 5 U.S.C. § 3330;2 5 U.S.C. § 7203; the Americans with Disabilities

Act of 1990; criminal statutes dealing with false statements (18 U.S.C. § 1001), perjury (18

U.S.C. § 1621), and improper disclosure of confidential information (18 U.S.C. § 1905); two

executive orders, Executive Order 12,674 and Executive Order 13,518; and 5 C.F.R.

§ 2635.100(11) and (13). See ECF No. 1 (“Compl.”) at 3.

       Braun also asserts claims against the EEOC for violations of its procedures (namely,

EEOC Management Directive 110, the EEOC Judges’ Handbook, and 29 C.F.R. § 1614.109(a)

and (g)); violations of Federal Rule of Civil Procedure 7(b)(1)(A)-(C); and for criminally

obstructing an agency proceeding, 18 U.S.C. § 1505. See Compl. at 3.

       Braun alleges that he is a veteran with disabilities arising from his military service. See

id. at 4-5. In December 2009, DOI posted a job announcement for an Audiovisual Specialist in

Albuquerque. Id. at 4. Braun claims that the job posting was fraudulent because it inaccurately




2
 It is possible that Braun intended to invoke 5 U.S.C. § 3330a, a section of the Veterans
Employment Opportunities Act of 1998.


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described the position. Id. According to Braun, once he arrived at his new job, he was

improperly trained in his unexpected new duties and “set[] up” to fail. Id. at 5. He further

alleges that DOI made no effort to accommodate his disabilities and that he was subjected to

harassment and a hostile work environment, which included being berated in front of other

employees. See id. at 4-6. He alleges he was terminated on November 23, 2010. Id. at 6.

        After his employment ended, Braun sought administrative relief for this alleged

misconduct.3 Braun’s claims were heard by an administrative judge, who granted summary

judgment in favor of DOI on April 14, 2014. See Transfer Mot. at 77. On May 5, 2014, DOI

adopted the administrative judge’s decision and determined that no discrimination had occurred.

See id. at 70. Braun subsequently appealed to the EEOC, which affirmed the DOI’s order on

July 13, 2016. See id. at 21-25. The EEOC denied reconsideration on September 20, 2016. See

id. at 9-11.

        Braun was dissatisfied with the EEOC’s handling of the case, and wrote several letters

expressing his dissatisfaction to representatives in Congress. See id. at 27-55. In particular,

Braun complained that the administrative judge had failed to rule on his motions, tampered with

evidence, and obstructed justice. See, e.g., id. at 48. At one point, Braun reported his concerns

to Federal Bureau of Investigation, which, according to Braun, failed to take them seriously. See

id. at 51-52. Braun makes similar allegations in the Complaint, including that the administrative

judge and the EEOC ignored his arguments, improperly limited his discovery requests,

obstructed and slow-walked his case, and “gave the unwavering impression to the Plaintiff that




3
  While the Complaint does not describe these administrative proceedings in detail, Braun has
filed documents related to these proceedings in connection with another motion. See ECF No. 2
(“Transfer Mot.”). All citations to that motion and its attachments will use the page numbers
generated by ECF.


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they were protecting the US Department of the Interior by its [sic] lack of action, lack of ethics

and attitude.” Compl. at 7-8.

        Defendants have moved to dismiss the claims against the EEOC for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 17. Defendants also

argue that venue is improper with respect to the remaining claims against DOI and the Secretary

of the Interior, and that these claims should either be dismissed or transferred to the District of

New Mexico pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a). See

ECF No. 17. Defendants have submitted a declaration from a DOI employee stating that Braun

was employed in New Mexico and that his Official Personnel Folder was “located” in Herndon,

Virginia, until 2011, when it was sent to the National Archives in Valmeyer, Illinois. See ECF

No. 17-1 (“Carruthers Decl.”).

        The Court also ordered the parties to make a supplemental submission on whether venue

would be proper in the Eastern District of Virginia. In their submission, Defendants argue that

venue cannot lie in the Eastern District of Virginia. They further assert that at least two

important witnesses are located in the District of New Mexico, and urge the Court to transfer the

action there. See ECF No. 37 at 1-2. Braun has filed two responses to the Court’s order. In the

first, Braun states that his preference is to continue litigating the case in this Court, but that the

Eastern District of Virginia would also be a convenient venue for him. See ECF No. 38 at 4-6.

In the second, Braun provides additional reasons why the Eastern District of Virginia would be a

proper forum. ECF No. 42. Specifically, Braun argues that records relating to his employment

were located in Virginia when he brought his administrative claims, which, he asserts, means

that venue is proper there under 42 U.S.C. § 2000e-5(f)(3). See ECF No. 42 at 3-4.




                                                   4
II.     Legal Standard

        A motion to dismiss under Rule 12(b)(6) “tests whether a plaintiff has properly stated a

claim.” BEG Invs., LLC v. Alberti, 85 F. Supp. 3d 13, 24 (D.D.C. 2015). “A court considering

such a motion presumes that the complaint’s factual allegations are true and construes them

liberally in the plaintiff’s favor.” Id. Nonetheless, the complaint must set forth enough facts to

“state a claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). “[A]lthough a pro se complaint ‘must be construed liberally, the complaint must

still present a claim on which the Court can grant relief.’” Untalasco v. Lockheed Martin Corp.,

249 F. Supp. 3d 318, 322 (D.D.C. 2017) (quoting Budik v. Dartmouth-Hitchcock Med. Ctr., 937

F. Supp. 2d 5, 11 (D.D.C. 2013)).

        If venue is improper, the court must either dismiss the action or, “if it be in the interest of

justice, transfer such case to any district . . . in which it could have been brought.” 28 U.S.C.

§ 1406(a). While “‘the defendant must present facts that will defeat the plaintiff’s assertion of

venue’” to prevail on a Rule 12(b)(3) motion, “the burden remains on the plaintiff to establish

that venue is proper.” Slaby v. Holder, 901 F. Supp. 2d 129, 132 (D.D.C. 2012) (quoting Wilson

v. Obama, 770 F. Supp. 2d 188, 190 (D.D.C. 2011)). Even though pro se plaintiffs’ pleadings

must be liberally construed, the Court “cannot relieve [them] of this burden merely because they

are acting without the benefit of counsel.” King v. Caliber Home Loans, Inc., 210 F. Supp. 3d

130, 134 (D.D.C. 2016). “In reviewing such a 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.’”

Slaby, 901 F. Supp. 2d at 132 (quoting Wilson, 770 F. Supp. 2d at 190). “The Court, however,

need not accept the plaintiff’s legal conclusions as true, and may consider material outside the




                                                   5
pleadings, including undisputed facts evidenced in the record, to determine whether it has

jurisdiction in the case.” Id. (quoting Ebron v. Dep’t of Army, 766 F. Supp. 2d 54, 57 (D.D.C.

2011)).

III.      Analysis

          The Court will first analyze Defendants’ motion to dismiss the claims against the EEOC

under Rule 12(b)(6), and then turn to their motion to dismiss or transfer the remaining claims

against DOI and the Secretary of the Interior under Rule 12(b)(3) and 28 U.S.C. § 1406(a).

          A.     Claims Against the EEOC

          As Defendants correctly argue, “Congress has not authorized, either expressly or

impliedly, a cause of action against the EEOC for the EEOC’s alleged negligence or other

malfeasance in processing an employment discrimination charge.” Smith v. Casellas, 119 F.3d

33, 34 (D.C. Cir. 1997) (per curiam). This “analysis is equally applicable to allegations of

improper handling of a complaint by the EEO office of a federal agency, which provides a

function analogous to the EEOC.” Koch v. White, 967 F. Supp. 2d 326, 336 (D.D.C. 2013).

Rather, if a federal employee believes that his administrative employment-discrimination claim

was mishandled, his remedy is to file an employment-discrimination suit against the relevant

agency in federal district court. See id. All of Braun’s claims against the EEOC are based on

allegations of misconduct by the administrative judge and the EEOC in handling Braun’s

discrimination claims. See Compl. at 7-8. Braun therefore does not assert a valid cause of action

against the EEOC, and so those claims must be dismissed.




                                                  6
       B.      Claims Against DOI and the Secretary of the Interior

       Defendants assert that the only claims properly pleaded by Braun arise under the

Rehabilitation Act.4 They argue that those claims are subject to the venue provisions of 42

U.S.C. § 2000e-5(f)(3), pursuant to which venue is not proper in this District. The Court agrees

that venue is not proper here, and will grant Defendants’ request to transfer the case—including

Braun’s remaining Rehabilitation Act claims against DOI and the Secretary of the Interior, as

well as any non–Rehabilitation Act claims against those Defendants—to the District of New

Mexico.

               1.      Braun’s Rehabilitation Act Claims

       Rehabilitation Act claims are governed by Title VII’s venue provision, 42 U.S.C.

§ 2000e-5(f)(3). See, e.g., Slaby, 901 F. Supp. 2d at 132. Under that provision, Title VII and

Rehabilitation Act claims:

               may be brought [i] in any judicial district in the State in which the
               unlawful employment practice is alleged to have been committed,
               [ii] in the judicial district in which the employment records
               relevant to such practice are maintained and administered, or [iii]
               in the judicial district in which the aggrieved person would have
               worked but for the alleged unlawful employment practice, but if
               the respondent is not found within any such district, such an action
               may be brought [iv] within the judicial district in which the
               respondent has his principal office.

42 U.S.C. § 2000e-5(f)(3). Venue is proper under the fourth, residual prong of the statute

“[o]nly if the defendant is not found within any of [the first three] districts.” Herbert v. Sebelius,

925 F. Supp. 2d 13, 18 (D.D.C. 2013).




4
 Defendants suggest in a footnote that Braun’s non–Rehabilitation Act claims should be
dismissed for failure to exhaust administrative remedies. See ECF No. 17 at 3 n.2. However,
Defendants have not moved to dismiss on that ground.


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       Braun argues that venue can and should lie in this District because his EEOC appeal was

processed here, and because it would be a burden on him to litigate the case in New Mexico

when he resides in Virginia. See ECF No. 23 at 4-5. Under the statute, the only possible

relevance of these arguments is that certain records related to Braun’s employment may have

found their way to the District of Columbia in the course of the EEOC proceedings. However,

“[c]ourts in this district have ‘rejected the argument that the location where plaintiff’s EEO

complaints were initiated and processed provides a basis for venue under prong [two] of

§ 2000e-5(f)(3).’” Herbert, 925 F. Supp. 2d at 21 (second alteration in original) (quoting Ellis-

Smith v. Sec’y of Army, 793 F. Supp. 2d 173, 176 (D.D.C. 2011)).

       Braun also suggests that venue is proper in this District under prong four of the statute

because DOI’s principal office is located here. See ECF No. 23 at 5. But that prong does not

apply to this case. Under the plain language of § 2000e-5(f)(3), venue under the first and third

prongs is proper in the District of New Mexico, the place where Braun was employed during the

alleged misconduct. And because DOI can be found in New Mexico, it is plain that the fourth,

residual prong of the statute does not apply. Therefore, Braun’s arguments are unavailing, and

the Court agrees with Defendants that venue does not lie in this District.

       Given that venue is improper here, the Court must consider whether and where to transfer

the case. “Generally, the ‘interest of justice’ instructs courts to transfer cases to the appropriate

judicial district, rather than dismiss them.” James v. Booz-Allen & Hamilton, Inc., 227 F. Supp.

2d 16, 20 (D.D.C. 2002). Given that Defendants have presented no argument for why dismissal

would be preferable, see ECF No. 17 at 6, the Court concludes that transfer to a proper venue is

the more appropriate path forward.




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        As discussed above, it is clear that venue is proper in the District of New Mexico under

prongs one and three of the statute. Less clear is venue under prong two, which is proper in the

“judicial district in which the employment records relevant to such practice are maintained and

administered.” Prong two could potentially support venue in one of two additional jurisdictions.

        The first possibility is the Southern District of Illinois, where the relevant employment

records are now archived. See Carruthers Decl. But courts in this District have disagreed on

whether venue would be proper there. One court has held that, when a plaintiff’s records were

moved to storage after her employment, they were not “maintained and administered” at the

storage location for purposes of the statute. See Saran v. Harvey, No. 04-cv-1847 (JDB), 2005

WL 1106347, at *4 (D.D.C. May 9, 2005). Other courts, however, have disagreed, reasoning

that the statute speaks in the present tense and holding on that basis that the place where the

records were archived provided a venue under prong two. See, e.g., Jyachosky v. Winter, No. 04-

cv-01733 (HHK), 2006 WL 1805607, at *3 n.2 (D.D.C. June 29, 2006). Ultimately, however,

the Court does not need to decide that issue, because neither party has expressed an interest in

litigating this case in the Southern District of Illinois.

        The other potential venue under prong two is the Eastern District of Virginia, where the

records were previously located during Braun’s employment. See Carruthers Decl. But in light

of the facts as they stood when Braun filed suit, it is doubtful whether venue lies there. The

statute authorizes venue where the relevant records “are maintained and administered,” but

Braun’s records are not presently there, and have not been at any time during this lawsuit. Saran

could be read as implicitly blessing venue there, since the court in that case declined to recognize

venue in the district to which the records had been sent for archival purposes. However, the

court did not reach the issue because the records in that case had been located in Germany




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(outside any judicial district) during the plaintiff’s employment. See 2005 WL 1106347, at *4.

In the end, neither party has brought to the Court’s attention a case that squarely supports venue

in the Eastern District of Virginia on the facts here.

       Therefore, in light of all of the above, the Court will transfer the case to the District of

New Mexico. Although transfer there may be somewhat inconvenient for Braun, it is the only

district in which venue clearly lies. Moreover, it is the only venue with a meaningful nexus to

the facts of the case. The events related to Braun’s employment allegedly took place there, and

Defendants have proffered that at least two important witnesses are located there. Therefore, the

Court finds that it is in the interest of justice to transfer the case to the District of New Mexico.

               2.      Braun’s Non–Rehabilitation Act Claims

       Braun invokes a large number of other statutes and authorities to support his claims

against DOI and the Secretary of the Interior. For many of these authorities, in particular the

criminal statutes that Braun cites, it is doubtful that he has a valid cause of action. See, e.g., Lee

v. USAID, 859 F.3d 74, 78 (D.C. Cir. 2017) (per curiam) (holding there is no private cause of

action under 18 U.S.C. § 1001). For others, such as the CSRA, it appears that this Court may

lack subject matter jurisdiction. See, e.g., Elgin v. Dep’t of Treasury, 567 U.S. 1, 23 (2012)

(holding district courts generally lack jurisdiction under the CSRA). And Defendants suggest

that all of these claims should be dismissed for failure to exhaust administrative remedies. See

ECF No. 17 at 3 n.2. However, because Defendants have moved to dismiss these claims only for

improper venue, the Court will not address those other possible grounds to dismiss. See, e.g.,

Shay v. Sight & Sound Sys., Inc., 668 F. Supp. 2d 80, 82 (D.D.C. 2009) (holding that district

courts may address motion to transfer for improper venue before jurisdictional issues).




                                                  10
       “[T]he authority in this Circuit indicates that when a plaintiff brings a Title VII action,

which is covered by Title VII’s restrictive venue provision, as well as an action governed by the

general venue provision, the narrower venue provision of § 2000e-5(f)(3) controls.” Munoz v.

England, No. 05-cv-2472 (CKK), 2006 WL 3361509, at *7 (D.D.C. Nov. 20, 2006); see also

Johnson v. Deloitte Servs., LLP, 939 F. Supp. 2d 1, 6 (D.D.C. 2013) (“[E]ven when only some of

the claims in the complaint arise under Title VII, courts regularly transfer the entire case if they

find venue for the Title VII claims to be improper.”). In other words, a plaintiff cannot make an

end-run around the Title VII venue statute by piling additional causes of action on top of his

Title VII claims. The same result obtains for Rehabilitation Act claims governed by Title VII’s

venue provision. See Gardner v. Mabus, 49 F. Supp. 3d 44, 47-48 (D.D.C. 2014) (transferring

entire case when venue was improper for Title VII and Rehabilitation Act claims). Therefore,

the entire case—including any other claims Braun has asserted against DOI and the Secretary of

the Interior—will be transferred to the District of New Mexico.

IV.    Conclusion and Order

       For the reasons set forth above, it is hereby ORDERED that Defendants’ Motion to

Dismiss or Transfer is GRANTED. Braun’s claims against the EEOC are DISMISSED WITH

PREJUDICE, and the case (including all of Braun’s remaining claims against DOI and the

Secretary of the Interior) shall be TRANSFERRED to the U.S. District Court for the District of

New Mexico. It is FURTHER ORDERED that Secretary of the Interior Ryan Zinke shall be

substituted for Defendant Sally Jewell pursuant to Federal Rule of Civil Procedure 25(d).


       SO ORDERED.
                                                              /s/ Timothy J. Kelly
                                                              TIMOTHY J. KELLY
                                                              United States District Judge

Date: February 13, 2018


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