The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
This matter comes before the Court on the Motion to Amend Complaint filed by Plaintiff Truman DeHaemers. Plaintiff seeks to amend his Complaint, which asserts claims under the Privacy Act, 5 U.S.C. § 552a, in order to add claims pursuant to the Rehabilitation Act, 29 U.S.C. § 701, et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a, et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. Defendant asserts that Plaintiff's proposed amendment would be futile because venue for the claims Plaintiff proposes to add does not lie in the District of Columbia. Upon a searching review of Plaintiff's Motion to Amend and proposed Amended Complaint, Defendant's Opposition, Plaintiff's Reply, the relevant statutes and case law, and the entire record herein, the Court concludes that Defendant has not waived, and is not judicially estopped from raising, an objection to venue with respect to Plaintiff's proposed additional claims. The Court further concludes that venue for Plaintiff's Rehabilitation Act and Title VII claims does not lie in the District of Columbia, while venue for Plaintiff's ADEA claim may lie in the District of Columbia. As a portion of Plaintiff's proposed amendment would therefore be futile, the Court shall grant-in-part and deny-in-part Plaintiff's Motion to Amend.
In his Reply, Plaintiff states that if the Court determines that Defendant has not waived its objection to venue, Plaintiff wishes to withdraw his Motion to Amend and proceed on his Privacy Act claims before this Court. Nevertheless, because it appears that venue for all of Plaintiff's claims may be lie in the Eastern District of Virginia, the Court shall allow Plaintiff ten days, through and including December 14, 2007, in which to file Notice with the Court as to whether he intends to pursue his Privacy Act claims before this Court.
Plaintiff filed his initial Complaint in this action on April 10, 2007, against Defendant, Michael W. Wynne, in his official capacity as Secretary of the United States Department of the Air Force (hereinafter "Defendant"), alleging violations of the Privacy Act, 5 U.S.C. § 552a, by various officials of the Air Force Audit Agency, Plaintiff's employer. Compl. ¶ 1. Plaintiff's Complaint alleges that his confidential medical and other personal information was wrongfully disclosed by Air Force personnel in connection with an administrative action he filed before the Equal Employment Opportunity Commission ("EEOC"). Defendant filed an answer to Plaintiff's original Complaint on July 16, 2007. On September 6, 2007, the Court held an Initial Scheduling Conference in this matter, with counsel for Plaintiff and Defendant in attendance. During that Conference, the issue of Plaintiff's pending claims before the EEOC arose, and the parties agreed that Defendant would amend his Complaint to add claims arising under Title VII and the Rehabilitation Act relating to the alleged unlawful disclosure of his confidential medical records.
Plaintiff filed his Motion to Amend Complaint on September 18, 2007, along with a proposed Amended Complaint, which adds claims under the Rehabilitation Act, the ADEA, and Title VII of the Civil Rights Act of 1964 ("Title VII"). Specifically, Plaintiff alleges that various Air Force employees violated the Rehabilitation Act's requirements concerning confidential medical records, Am. Compl. ¶¶ 44-47, 95-100, 112-17, 129-34, 152-57, and that one employee's dissemination of Plaintiff's confidential medical records constituted retaliation in violation of the Rehabilitation Act, the ADEA, and Title VII, id. ¶¶ 72-83.
Like his initial Complaint, Plaintiff's Amended Complaint alleges that he is a resident of the State of Virginia and that he is employed as an Auditor with the "Air Force Audit Agency, Pentagon, Washington, D.C." Am. Compl. ¶ 7. Despite the latter assertion, the Amended Complaint also alleges that "[a]t all times relevant to this Complaint, [Plaintiff] has worked in Arlington, Virginia." Id. ¶ 11. This apparent contradiction is explained by the fact that the Pentagon has a Washington, D.C. mailing address, but is physically located in Arlington, Virginia. See Def.'s Opp'n at 2 n.1. Furthermore, according to the October 2, 2007 Declaration of Nancy M. Kirkpatrick submitted in support of Defendant's Opposition, Plaintiff works, and has worked for over ten years, in the Air Force Audit Agency office located in the Rosslyn neighborhood of Arlington, Virginia. See Def.'s Opp'n, Ex. 1 (10/2/07 Kirkpatrick Decl.) at 1.*fn1
Ms. Kirkpatrick's Declaration further asserts that the personnel records for civilian employees of the office in which Plaintiff works are located at the Pentagon, in Arlington, Virginia, and have been located there since the early 1990s. Id. Plaintiff does not contest these assertions in his Reply.
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of right at any time before a responsive pleading is served. See Fed. R. Civ. P. 15(a). Once a responsive pleading is served, however, a party may amend its complaint only by leave of the court or by written consent of the adverse party. Id.; Foman v. Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave to amend is committed to the sound discretion of the district court, see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996); however Rule 15 specifically provides that leave is to be "freely given when justice so requires," id.; see also Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1083 (D.C. Cir. 1998). Indeed, "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman, 371 U.S. at 182. Nevertheless, the Court may deny as futile a motion to amend a complaint when the proposed complaint would not survive a motion to dismiss. James Madison, Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996); see also 3 Moore's Federal Practice § 15.15 (3d ed. 2000) ("An amendment is futile if it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.").
A. Defendant May Challenge Venue With Respect to Plaintiff's Proposed Additional Claims
As an initial matter, the Court addresses Plaintiff's argument that Defendant has waived, or is estopped from asserting, any challenge to venue with respect to Plaintiff's proposed claims under the Rehabilitation Act, Title VII, and the ADEA. Plaintiff asserts that Defendant waived such a challenge when, during the Initial Scheduling Conference in this matter, Defendant "requested that Plaintiff file his EEO claims as an amendment to the Privacy Act case because the EEO claims arose from the same set of operative facts as the Privacy Act claims and because the Agency sought to address the case as a complete whole." Pl.'s Reply at 2. Plaintiff also asserts that Defendant waived his venue argument in his Answer to Plaintiff's Original Complaint by admitting Plaintiff's assertion that Plaintiff is employed by "the Air Force Audit Agency, Pentagon, Washington, D.C." Id. at 3. Under Federal Rule of Civil Procedure 12(h)(1), a defense of improper venue is waived unless asserted by a pre-answer motion under Rule 12(b) or in a responsive pleading. Fed. R. Civ. P. 12(h)(1); see also Chatman-Bey v. Thornburgh, 864 F.2d 804, 813 (D.C. Cir. 1988) (en banc). In addition, because venue is a "personal privilege," it "may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct." Freeman v. Bee Mach. Co., 319 U.S. 448, 453 (1943).
Defendant has complied with Rule 12(h)(1) by "seasonably" asserting his defense of improper venue with respect to Plaintiff's proposed additional claims at the first available opportunity. Furthermore, the Court cannot conclude that Defendant waived the defense of improper venue "by submission through conduct" in suggesting that Plaintiff add his additional claims to his Privacy Act claim. To the contrary, Plaintiff's description of the Initial Scheduling Conference in this matter is inaccurate. The Court has reviewed the record of that Conference, and notes that it was Plaintiff's counsel--not Defendant--who initially raised the issue of amending Plaintiff's Complaint. While defense counsel certainly suggested that Defendant was unlikely to oppose Plaintiff's proposed amendment, she also noted that Defendant would need to review Plaintiff's proposed amendment before making a conclusive determination. Significantly, the proper venue for Plaintiff's additional claims was not raised by either party during the Initial Scheduling Conference and so the issue was never waived. Rather, it appears that Defendant discovered the defense of improper venue upon analyzing Plaintiff's proposed Amended Complaint, and promptly raised an objection to venue in his Opposition to Plaintiff's Motion to Amend. Nor does the Court conclude that Defendant waived a defense of improper venue with respect to Plaintiff's proposed additional claims by admitting the allegation in Plaintiff's original Complaint that he is employed by the Air Force Audit Agency, Pentagon, Washington, D.C. Indeed, that allegation appears to be factually correct because ...