Buckley v. United States

• Decision Date: 21 May 2013
• Docket Number: Case No. 1:13-CV-17
• Parties: ALLEN BUCKLEY and ALLEN BUCKLEY LLC, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

ALLEN BUCKLEY and ALLEN BUCKLEY LLC, Plaintiffs,

v.UNITED STATES OF AMERICA, Defendant.

Case No. 1:13-CV-17

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

Dated: May 21, 2013

Judge Curtis L. Collier

MEMORANDUM

Before the Court is a motion to dismiss for improper venue filed by Defendant The United States of America ("Defendant" or "United States") (Court File No. 8). Plaintiffs Allen Buckley and Allen Buckley LLC (collectively, "Plaintiffs") filed a response (Court File No. 11) and Defendant submitted a reply (Court File No. 15). Plaintiffs also filed a surreply with leave of the court (Court File No. 19). After considering the relevant law and the parties' arguments, the Court will GRANT IN PART and DENY IN PART Defendant's motion to dismiss (Court File No. 8). The Court grants Defendant's motion in part because the Court agrees venue is improper. However, the Court will TRANSFER rather than dismiss Plaintiffs' claims to the Northern District of Georgia for further consideration.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On January 25, 2013, Plaintiffs filed a complaint against Defendant seeking judicial review under the Administrative Procedure Act ("APA"). See 5 U.S.C. §§ 101 et seq. (Court File No. 1 ("Compl.")). Plaintiff Allen Buckley is "a resident of Smyrna, Cobb County, Georgia" and a licensed attorney and accountant in Georgia (id. at 13). Plaintiff Allen Buckley LLC is a limitedliability company in Georgia (id.). Allen Buckley "has prepared tax returns for compensation, including compensation received by Allen Buckley LLC" (id. at 14). Although the suit is brought against the United States, Plaintiffs also indicate that the Secretary of the Treasury would be responsible for compliance in this case in his official capacity (id.).

Plaintiffs allege, pursuant to regulations enacted in 2010 and 2011, the United States Department of the Treasury "requires tax return preparers to file, pay, receive, and (thereafter) annually renew and pay annual renewal fees, for a PTIN [preparer tax identification number] in order to prepare tax returns for compensation" (Compl. at 2). They also allege Plaintiff Allen Buckley had to pay the Department of the Treasury $64.25 as a PTIN issuance fee in 2010 and a renewal fee of $63 in 2011 (id. at 3). Plaintiffs aver the issuance fee and annual renewal fees imposed by the Department of the Treasury are "unlawful" and, alternatively, even if not unlawful, "excessive" (id. at 10-13). Plaintiffs seek injunctive relief and "restitution" either in the form of a refund of the total fees paid plus interest or the excessive amount paid plus interest (id. at 16-17).

II. STANDARD OF REVIEW

Defendant moves to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). "On a motion to dismiss for improper venue, the plaintiff bears the burden of proving that venue is proper. The Court may examine facts outside the complaint but must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff." Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F. Supp. 2d 1014, 1017 (E.D. Mich. 2002) (citations omitted). "If a defendant prevails on a Rule 12(b)(3) challenge, the Court has the discretion to decide whether the action should be dismissed or transferred to an appropriate court [pursuant to 28 U.S.C. § 1406]." Id.

III. DISCUSSION

The parties do not dispute the appropriate venue statutes under which the Court should analyze Plaintiffs' claims are 28 U.S.C. § 1391(e) and 28 U.S.C. § 1402. They do, however, dispute whether venue is proper under these statutes. According to Defendant, Plaintiffs fail to satisfy any of the venue requirements of § 1391(e) for their claims for injunctive relief because the United States does not reside in this district for venue purposes, Plaintiffs are not residents of this district, and none of Plaintiffs' causes of action occurred in this district. Moreover, with respect to Plaintiffs' claims for a refund of $127.25 (or in the amount of excessive fees paid), Defendant contends venue is improper because the requirements of 28 U.S.C. § 1402 have not been met. Finally, Defendant argues the Court should dismiss Plaintiffs' claims for improper venue rather than transfer them to an appropriate district because Defendant believes Plaintiffs were forum shopping when they brought suit here. Defendant notes Plaintiffs brought a nearly identical case in the Northern District of Georgia that was dismissed, and the Eleventh Circuit affirmed the dismissal. Defendant believes Plaintiffs only brought their case here to avoid unfavorable precedent now established in the Eleventh Circuit.

Plaintiffs, on the other hand, argue venue is proper in the Eastern District of Tennessee. According to Plaintiffs, venue can be established under § 1391(e) because the United States resides in this district as well as all other districts in the United States. Moreover, with respect to 28 U.S.C. § 1402, Plaintiffs aver the Court should exercise pendant venue over their claims for monetary relief even if venue is improper. Finally, in the event the Court determines venue is improper, Plaintiffs ask the Court to transfer the case to the proper jurisdiction in the interest of justice.

The Court will address each issue in turn.

A. Venue under 28 U.S.C. § 1391(e)

Title 28, United States Code, Section 1391(e) is the appropriate venue statute for most of Plaintiffs' claims. Section 1391(e)(1), which is applicable when the defendant is an officer or employee of the United States, an agency of the United States, or the United States provides as follows:

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

(A) a defendant in the action resides,

(B) 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

(C) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.

28 U.S.C. § 1391(e)(1). Here, neither § 1391(e)(1)(B) or § 1391(e)(1)(C) are applicable. Plaintiffs do not contend the events giving rise to their cause of action occurred in the Eastern District of Tennessee. Moreover, the Northern District of Georgia, not the Eastern District of Tennessee, is where Allen Buckley lives and where Allen Buckley LLC has its principal place of business. Thus, the only provision that could possibly be applicable in this case is § 1391(e)(1)(A)--that is, "any judicial district in which . . . a defendant in the action resides."

Defendant contends venue is not proper in this district because § 1391(e) was not designed for a plaintiff to sue the United States in every district around the country. Defendant relies primarily upon Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264 (7th Cir. 1978), for this proposition. InDonnelley, a publishing company sued the Federal Trade Commission ("FTC") and various individual commissioners to prevent the FTC from proceeding with an administrative action against it. Id. at 265-66. The plaintiff could claim residence in Delaware or New York, yet it brought suit in the Northern District of Illinois. Although the FTC had a regional office in Chicago, the United States Court of Appeals for the Seventh Circuit concluded venue was improper in the Northern District of Illinois. Id. at 266. Among other reasons, the Seventh Circuit observed allowing a federal agency to be sued "Eo nomine wherever it maintains an office would, as a practical matter, render subsections (2), (3), and (4) [of § 1691(e)] superfluous." Id. at 267. Moreover, the court noted "such an interpretation would mean that a plaintiff could file a suit in any district regardless of how remote that district's contact may be with the litigation. 'The venue statute was not intended to permit forum-shopping, by suing a federal official wherever he could be found, or permitting test cases far from the site of the actual controversy.'" Id. (quoting Hartke v. Federal Aviation Administration, 369 F. Supp. 741, 746 (E.D.N.Y. 1973)).¹

Plaintiffs, however, dispute Defendant's interpretation of § 1391(e). In what Plaintiffs consider an analogous case to the instant matter, Plaintiffs cite Milliken & Co. v. F.T.C., 565 F. Supp. 511 (D.S.C. 1983), in furtherance of their argument that venue is proper against the United States in any district in the country under § 1391(e). In Milliken, a district court concluded venue was proper in South Carolina in a suit against the Federal Trade Commission where the plaintiff's company had its principal place of business in South Carolina and the cause of action occurred in South Carolina. In reaching this decision, the district court relied in part on United States Supreme Court case Stafford v. Briggs, 444 U.S. 527 (1980). While Stafford addressed a totally different matter--that is, whether the venue provisions in 28 U.S.C. § 1391(e) applied to claims seeking monetary damages against federal officers in their individual capacities--the Supreme Court did note § 1391(e) expanded choices for venue and, citing a Congressional report, observed the provision was "designated to permit an action which is essentially against the United States to be brought locally rather than requiring it to be brought in the District of Columbia simply because Washington is the official residence of the officer or agency sued."Milliken, 565 F. Supp. at 514 (quoting Stafford, 444 U.S. at 540).² Moreover, the district...