Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 1699, Docket 91-6060.

Attorney(S)

Denny Chin, New York City, for plaintiff-appellant. Tai H. Park, Asst. U.S. Atty., Southern District of New York, New York City (Otto G. Obermaier, U.S. Atty, for the Southern District of New York, Maria Alhadeff, Asst, U.S. Atty., southern District of New York, New York City, of counsel), for defendant-appellee.

Judges

Thomas Joseph Meskill
Amalya Lyle Kearse
Joseph Michael McLaughlin

Acts

Judiciary And Judicial Procedure — District Courts; Venue — Jurisdiction And Venue — Venue Generally
Judiciary And Judicial Procedure — Courts Of Appeals — Organization Of Courts — Allotment Of Supreme Court Justices To Circuits
The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions
Labor — Vocational Rehabilitation And Other Rehabilitation Services — Findings; Purpose; Policy
Labor — Vocational Rehabilitation And Other Rehabilitation Services — Rights And Advocacy — Remedies And Attorney Fees
Judiciary And Judicial Procedure — District Courts; Venue — Jurisdiction And Venue — Cure Or Waiver Of Defects
Judiciary And Judicial Procedure — General Provisions — Jurisdiction And Venue — Transfer To Cure Want Of Jurisdiction

See more information ...

Smart Summary

Summary of Opinion: Sheila M. Bolar v. Anthony M. Frank, No. 1699, Docket 91-6060 (2d Cir. July 11, 1991)

Factual and Procedural Background

Sheila M. Bolar filed an action under the Rehabilitation Act of 1973 alleging handicap discrimination against her former employer, the Postmaster General of the United States Postal Service (USPS). The United States District Court for the Southern District of New York (Judge Patterson) dismissed the complaint for lack of venue. Bolar, who resides in New York City, appealed the dismissal, arguing that venue was proper in the Southern District of New York under 28 U.S.C. § 1391(e) or, alternatively, that the case should be transferred to the Southern District of Ohio rather than dismissed. The USPS cross-appealed, arguing that the district court should have dismissed the action for Bolar's failure to exhaust administrative remedies in enforcing her administrative award. The Second Circuit addressed the venue question, whether it had authority to transfer the case under 28 U.S.C. § 1406(a), and whether the Southern District of Ohio should be allowed to consider the government's exhaustion defense.

Legal Issues Presented

Whether venue for Bolar’s Rehabilitation Act claim is governed by the general federal venue provision, 28 U.S.C. § 1391(e), permitting suit where the plaintiff resides, or by the more specific Title VII venue provision, 42 U.S.C. § 2000e-5(f)(3), which was incorporated into the Rehabilitation Act.
Whether this Court (the Second Circuit) has authority to transfer the case directly to the Southern District of Ohio under 28 U.S.C. § 1406(a) despite the district court's dismissal for improper venue, and if so, whether transfer is appropriate here.
Whether the district court should have dismissed Bolar's claim for failure to exhaust administrative remedies (raised by the USPS on cross-appeal), and whether that issue should be considered by the transferee court.

Arguments of the Parties

Appellant's (Bolar) Arguments

Bolar contended that venue in this handicap discrimination action is proper in the Southern District of New York under 28 U.S.C. § 1391(e) because she resides in New York City.
Alternatively, Bolar requested that the case be transferred to the Southern District of Ohio rather than dismissed.
To support her position favoring broader venue rules, she cited two district court decisions (Eberhart v. Baker and Wright v. Columbia University) that had applied the broader venue statute § 1391 to employment-discrimination actions.

Appellee's (USPS / Government) Arguments

The USPS argued (on cross-appeal) that the suit should be dismissed because Bolar failed to exhaust her administrative remedies in enforcing her administrative award; this was raised before the district court and renewed on appeal.
The government did not take a position in its briefs on whether the appellate court has authority to transfer under § 1406(a), but advanced the exhaustion defense and (on appeal) cited Curtis v. Mosbacher in support of that defense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stebbins v. State Farm Mut. Auto. Ins. Co., 413 F.2d 1100 (D.C. Cir.) (per curiam), cert. denied, 396 U.S. 895 (1969)	Applied §2000e-5(f) (Title VII venue provision) rather than the general venue statute to Title VII claims.	Used as authority supporting the proposition that the specific Title VII venue provision governs employment-discrimination actions rather than the general venue statute.
Templeton v. Veterans Admin., 540 F. Supp. 695 (S.D.N.Y. 1982)	Held Title VII claims governed by §2000e-5(f)(3), not §1391.	Cited as authority consistent with applying §2000e-5(f)(3) to employment-discrimination venue questions.
Arrocha v. Panama Canal Comm'n, 609 F. Supp. 231 (E.D.N.Y. 1985)	Applied §2000e-5(f)(3) rather than §1391 for venue in discrimination cases.	Supported the court's view that §2000e-5(f)(3) governs venue under the Rehabilitation Act.
Archuleta v. Sullivan, 725 F. Supp. 602 (D.D.C. 1989)	Held that Rehabilitation Act claims are controlled by §2000e-5(f)(3) rather than §1391.	Reinforced the court's conclusion that the Rehabilitation Act incorporates the Title VII venue limitation.
Eberhart v. Baker, 652 F. Supp. 1475 (W.D. Pa. 1987)	Applied the broader venue provisions of §1391 to an employment-discrimination action.	Identified as a contrary district court decision relied upon by Bolar but given little weight because it did not address §2000e-5(f)(3).
Wright v. Columbia Univ., 520 F. Supp. 789 (E.D. Pa. 1981)	Applied §1391 to an employment-discrimination action.	Also cited by Bolar but deemed of limited persuasive value for failing to discuss §2000e-5(f)(3) and related authority.
Cox Enters., Inc. v. Holt, 691 F.2d 989 (11th Cir. 1982)	Transferred a case dismissed for lack of personal jurisdiction to a proper district pursuant to §1406(a).	Used to show that other circuits have transferred cases under §1406(a) in the interests of judicial economy even where transfer was not sought in the district court.
Dr. John T. MacDonald Found. v. Califano, 571 F.2d 328 (5th Cir.) (in banc), cert. denied, 439 U.S. 893 (1978)	Transferred an appeal from administrative decision under former §1406(c) despite lack of district court action on transfer.	Analogized to permit transfer by appellate court in the interest of efficient adjudication.
Alexander v. C.I.R., 825 F.2d 499 (D.C. Cir. 1987) (per curiam)	Held that 28 U.S.C. § 1631 does not implicitly revoke an appellate court's inherent power to transfer cases where venue is lacking.	Supported the view that appellate courts possess inherent authority to transfer matters for reasons of judicial administration.
Clark Reid Co., Inc. v. United States, 804 F.2d 3 (1st Cir. 1986)	Recognized a circuit court's "inherent discretionary power to transfer the proceeding to another circuit in the interest of justice and sound judicial administration."	Cited as precedent for the existence of circuit-court transfer power where warranted by justice and administration.
Eastern Air Lines, Inc. v. CAB, 354 F.2d 507 (D.C. Cir. 1965)	Quoted for the principle that courts may exercise discretionary transfer power in the interest of justice.	Used as supporting authority for the inherent discretionary-transfer power doctrine.
Panhandle E. Pipe Line Co. v. Federal Power Comm'n, 337 F.2d 249 (10th Cir. 1964)	Transferred a petition for review of an administrative decision from one circuit lacking venue to another circuit with venue.	Provided an example of inter-circuit transfer where venue was lacking and transfer served justice.
American Tel. & Tel. Co. v. FCC, 519 F.2d 322 (2d Cir. 1975)	Found an "inherent power to order" transfer of a petition for review of an administrative decision in the interest of justice and sound judicial administration.	Demonstrated that the Second Circuit had recognized an inherent transfer power in appropriate administrative-review contexts.
Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962)	Articulated the functional purpose of §1406(a): removing obstacles to expeditious and orderly adjudication of cases on their merits.	Invoked as a guiding principle supporting transfer (rather than dismissal) to facilitate adjudication on the merits.
Curtis v. Mosbacher, 55 EPD ¶ 40,477 (D.D.C. 1990), 1990 WL 78516	Addressed exhaustion of administrative remedies (as cited by the government on appeal).	Not decided upon by the Second Circuit; cited by the government on appeal and identified as a matter for the Southern District of Ohio to consider in the first instance.

Court's Reasoning and Analysis

The court analyzed the competing venue statutes and appellate transfer authority in two principal stages.

First, on the venue question the court compared the general venue statute, 28 U.S.C. § 1391(e), which permits suits against federal agencies in the district where the plaintiff resides, with the more specific Title VII venue provision, 42 U.S.C. § 2000e-5(f)(3), which enumerates venue based on where the unlawful employment practice occurred, where relevant employment records are maintained, where the aggrieved person would have worked, or, failing those, where the respondent has its principal office. The court emphasized that the Rehabilitation Act incorporates Title VII's remedial and procedural provisions (citing 29 U.S.C. § 794a(a)(1)), and therefore §2000e-5(f)(3) applies to actions under the Rehabilitation Act.

The court invoked rules of statutory construction: a specific, later-enacted provision controls over an earlier general statute. The court also relied on the mandatory language of Title VII's § 2000e-16(d) that "the provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern" employment-discrimination actions. For these reasons, and consistent with federal decisions applying §2000e-5(f)(3) to Title VII and Rehabilitation Act claims, the court concluded that the Title VII venue provision circumscribes venue for Bolar's claim and that §1391(e) did not furnish an independent basis for venue in the Southern District of New York.

Second, having concluded that venue in the Southern District of New York was improper, the court addressed whether it could, and should, transfer the case directly to the Southern District of Ohio under 28 U.S.C. § 1406(a). The statute speaks of district-court transfers and does not explicitly address appellate transfer. The court surveyed prior circuit authority and found that other circuits had exercised transfer powers (or inherent transfer authority) to promote judicial economy and facilitate adjudication on the merits — including transfers following dismissal for lack of jurisdiction or venue. The court further observed Second Circuit precedent recognizing an inherent transfer power in administrative-review contexts.

Invoking the functional purpose of §1406(a) as articulated in Goldlawr (removing obstacles to adjudication on the merits) and the interests of judicial economy, the court held that it had authority to transfer the case directly to the Southern District of Ohio. The court also noted a practical consideration favoring transfer: Bolar might be time-barred from initiating a new action, so the interest of justice supported transfer rather than dismissal.

Finally, because the government had argued below that Bolar failed to exhaust administrative remedies and then cited Curtis v. Mosbacher on appeal (a case the district court had not had the opportunity to consider), the Second Circuit vacated the district court's dismissal and transferred the case to the Southern District of Ohio so that the court there could address the exhaustion defense in the first instance.

Holding and Implications

Holding: The court held that venue for Bolar's Rehabilitation Act employment-discrimination claim is governed by 42 U.S.C. § 2000e-5(f)(3), not by 28 U.S.C. § 1391(e); venue therefore did not lie in the Southern District of New York. Rather than affirming dismissal, the court vacated the district court's judgment and transferred the case to the Southern District of Ohio pursuant to 28 U.S.C. § 1406(a).

Implications:

Direct consequence for the parties: Bolar's action is not dismissed on venue grounds; it is transferred to the Southern District of Ohio where the case can proceed. The court expressly permitted the Southern District of Ohio to consider the government's exhaustion-of-remedies defense in the first instance.
On precedent and statutory interpretation, the opinion reinforces that employment-discrimination actions under the Rehabilitation Act are subject to the Title VII venue limitation in §2000e-5(f)(3), and that a specific statutory venue provision enacted later governs over a prior general venue statute.
The court's decision also establishes (within this case) that the Second Circuit may, in the interest of justice and judicial economy, transfer a case directly under §1406(a) to cure a venue defect rather than order dismissal — particularly where transfer avoids potential statute-of-limitations problems and furthers adjudication on the merits.
Nothing in the opinion purports to establish a new broad rule concerning exhaustion of administrative remedies; the court specifically left the exhaustion question to the transferee district court to decide, vacating the prior judgment so that the Southern District of Ohio may address the defense in the first instance.

Show full summary ...

SHEILA M. BOLAR, PLAINTIFF-APPELLANT, v. ANTHONY M. FRANK, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, DEFENDANT-APPELLEE.

PER CURIAM:

Shelia M. Bolar appeals from a judgment of the United States District Court for the Southern District of New York, Patterson, J., dismissing her complaint against her former employer, the Postmaster General of the United States Postal Service (USPS), for lack of venue.

Bolar claims that the Southern District of New York is an appropriate venue for this handicap discrimination action under 28 U.S.C. § 1391(e) or, alternatively, that the action should be transferred to the Southern District of Ohio rather than be dismissed. The USPS cross-appeals, contending that the district court also should have dismissed the action due to Bolar's failure to exhaust administrative remedies in enforcing her administrative award. We first address the question of venue.

The competing venue provisions are 28 U.S.C. § 1391(e) and 42 U.S.C. § 2000e-5(f)(3). Section 1391(e) is a general venue provision. It permits a case to be brought against the federal government in the district where the plaintiff resides. Section 2000e-5(f)(3) was enacted two years after section 1391(e) and is part of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. The remedial and procedural provisions of Title VII, including section 2000e-5(f)(3), are incorporated in the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., under which Bolar brought this action. See 29 U.S.C. § 794a(a)(1). Section 2000e-5(f)(3) states:

[A]n action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or 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 within the judicial district in which the respondent has his principal office.

Bolar concedes that, with respect to her lawsuit, the Southern District of New York does not satisfy any of the four bases for venue delineated in section 2000e-5(f)(3). If, however, section 1391(e) governs this action then Bolar, who currently resides in New York City, may bring her lawsuit in the Southern District of New York.

The relevant statutory language and case law convince us that section 2000e-5(f)(3) controls the question of venue in this instance. It is clear that section 1391(e) has its limitations. It applies to civil actions in which an agency of the United States is a defendant "except as otherwise provided by law." Section 2000e-5(f)(3), having been incorporated into the Rehabilitation Act, is one such law that "otherwise provide[s]." Moreover, venue for Bolar's right of action is circumscribed by the very statute that gives her the right to sue in the first place. See Stebbins v. State Farm Mutual Automobile Ins. Co., 413 F.2d 1100, 1102-03 (D.C.Cir.) (per curiam) (applying section 2000e-5(f), not section 1391(c), to Title VII claim), cert. denied, 396 U.S. 895, 90. S.Ct. 194, 24 L.Ed.2d 173 (1969). By incorporating section 2000e-5(f)(3), the Rehabilitation Act clearly evinces congressional intent that venue for actions brought under the Act be limited to district courts having a connection with the alleged discrimination. See id. Another provision of Title VII also supports this interpretation. Section 2000e-16(d) of Title VII states that "[t]he provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern" employment discrimination actions. The "shall govern" language is mandatory. As such, it undermines Bolar's point that Title VII does not refer specifically to the inapplicability of section 1391(e). Finally, given the conflict between the two statutes, well settled principles of statutory construction dictate that the later, specific venue provision (section 2000e-5(f)(3)) applies rather that the earlier, general venue provision (section 1391(e)).

Almost uniformly, courts considering this question have applied section 2000e-5(f)(3) to determine venue in employment discrimination actions premised on Title VII or, as in this case, the Rehabilitation Act. See, e.g., Stebbins, 413 F.2d at 1102-03; Templeton v. Veterans Admin., 540 F.Supp. 695, 696-97 (S.D.N.Y. 1982) (Title VII claim governed by section 2000e-5(f)(3), not section 1391); Arrocha v. Panama Canal Comm'n, 609 F.Supp. 231, 234-35 (E.D.N.Y. 1985) (same); Archuleta v. Sullivan, 725 F.Supp. 602, 604 (D.D.C. 1989) (Rehabilitation Act claim controlled by section 2000e-5(f)(3) rather than section 1391). Attempting to parry this authority, Bolar cites two district court cases, Eberhart v. Baker, 652 F.Supp. 1475, 1476 (W.D.Pa. 1987), and Wright v. Columbia University, 520 F. Supp. 789, 795 (E.D.Pa. 1981), in which the broader venue provisions of section 1391 were applied to employment discrimination actions. These cases deserve little weight, however. Neither of them acknowledges section 2000e-5(f)(3) or discusses the above case law.

Having determined that the venue provisions of section 2000e-5(f)(3) govern Bolar's claim, we must consider her alternative request. For the first time on appeal, she asks that rather than dismiss the action we transfer it pursuant to 28 U.S.C. § 1406(a). This request raises two questions. First, as an appellate court, do we have authority to transfer a case to a federal district court under section 1406(a)? Second, if we do, should we exercise that authority in this instance? The government, it bears note, has taken no position on the issue of our authority to transfer the action directly.

Section 1406(a) does not mention whether an appellate court may transfer an action to cure a venue defect. It only refers to a district court's authority to transfer a case to the appropriate judicial district. Other circuit courts, seeking to further judicial economy and the underlying policies of section 1406, have granted transfer requests to plaintiffs who did not make such a request before the district court. See Cox Enterprises, Inc. v. Holt, 691 F.2d 989, 990 (11th Cir. 1982) (transferring case, which had been dismissed for lack of personal jurisdiction, to Northern District of Georgia pursuant to section 1406(a)); cf. Dr. John T. MacDonald Foundation v. Califano, 571 F.2d 328, 332 (5th Cir.) (in banc) (transferring appeal from administrative decision, which district court did not have jurisdiction to review, to the Court of Claims under former section 1406(c), which, like section 1406(a), made no reference to appellate courts), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978). Several circuit courts also have found an inherent power to transfer administrative review proceedings over which they have jurisdiction but not venue to other circuit courts. See, e.g., Alexander v. C.I.R., 825 F.2d 499, 501-02 (D.C.Cir. 1987) (per curiam) (holding that 28 U.S.C. § 1631, which authorizes transfer from a federal court without jurisdiction to a federal court with jurisdiction, did not implicitly revoke inherent power to transfer cases where venue is lacking); Clark Reid Co., Inc. v. United States, 804 F.2d 3, 7 (1st Cir. 1986) (holding that circuit court has "`an inherent discretionary power to transfer the proceeding to another circuit in the interest of justice and sound judicial administration'" (quoting Eastern Air Lines, Inc. v. CAB, 354 F.2d 507, 510 (D.C.Cir. 1965))); Panhandle Eastern Pipe Line Co. v. Federal Power Comm'n, 337 F.2d 249, 252 (10th Cir. 1964) (transferring petition for review of administrative decision from Tenth Circuit, which did not have venue, to Eighth Circuit, which did). Cf. American Telephone Telegraph Co., v. F.C.C., 519 F.2d 322, 325 (2d Cir. 1975) (finding "inherent power to order" the transfer of a petition for review of an administrative decision, over which both it and another circuit had jurisdiction and venue, "in the interest of justice and sound judicial administration").

In accord with the functional purpose of section 1406(a) — "that of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits," Goldlawr, Inc., v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 916, 8 L.Ed.2d 39 (1962) — and the interests of judicial economy, we hold that we have authority to transfer this matter directly to the Southern District of Ohio. Moreover, because Bolar might be time barred from initiating a new action in this matter, "the interest of justice" merits such a transfer.

One other issue warrants brief attention. The government also argued below that Bolar's claim should be dismissed because she had not exhausted her administrative remedies. The district court rejected this argument based in part on the government's failure to cite any supporting precedent. In its appellate brief, however, the government has cited one case, Curtis v. Mosbacher, 55 EPD ¶ 40,477 (P. 65,378). 1990 WL 78516 (D.D.C. 1990), supporting its exhaustion argument. In view of the district court's inability to consider the Curtis case to the Southern District of Ohio, we will vacate the district court's decision and thereby allow the Southern District of Ohio to consider the government's exhaustion defense in the first instance.

In sum, section 2000e-5(f)(3) governs venue of this employment discrimination claim. Venue of the action therefore does not lie in the Southern District of New York. Rather than dismiss Bolar's claim, however, we vacate the district court's judgment and transfer the case directly to the Southern District of Ohio. The Southern District of Ohio may thereafter consider the government's exhaustion defense.

BOLAR v. FRANK