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FMC Corp. v. U.S. Environmental Protection Agency

June 3, 2008


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 50



Today the court considers the propriety of transferring a case in which FMC Corporation seeks review of a regulation promulgated by the Environmental Protection Agency ("EPA"). Having failed to convince the Eastern District of Virginia to retain this case, the plaintiff ("FMC") now seeks to persuade this court to transfer the matter to the district of its home State of incorporation, Delaware, or alternatively -- and in defiance of the ruling of the predecessor court -- to transfer the matter back to the Eastern District of Virginia. The defendants*fn1 object, citing the law-of-the-case doctrine and the absence of any factor favoring another ticket on the venue merry-go-round. The court abstains from weighing the equities of taking another trip because the law-of-the-case doctrine forecloses the transferee court from second-guessing the transferor court. The case, therefore, stays here.


The following facts are undisputed. On November 7, 2006, FMC submitted a petition to amend an EPA regulation, 40 C.F.R. § 164.80(b), allocating the burden of proof in adjudicatory hearings concerning challenges or cancellations of extant agency orders. Compl., Ex. 1. The impetus behind FMC's petition was the EPA's decision to revoke the registration for FMC's insecticide product, carbofuran, applying this burden-of-proof standard. Pl.'s Mot. to Transfer Venue ("Pl.'s Mot.") at 1. The petition was addressed to Stephen L. Johnson, EPA's administrator, at EPA headquarters in Washington, D.C. Id. The parties met to discuss the issue; FMC submitted a follow-up letter on March 7, 2007; and then EPA issued a final response by a letter dated April 3, 2007. Id., Ex. 3-4. EPA explained that it declined to revoke its regulation, originally promulgated in 1973, because it had already reconsidered the issue in 1996 when similar challenges were brought and the agency concluded they lacked merit. Def. EPA's Opp'n ("Def.'s Opp'n") at 3.

In August 2007, FMC filed this action in the Eastern District of Virginia, the site of the EPA's Office of Pesticide Programs. Pl.'s Mot. at 2. EPA raised no objection to venue, and the case proceeded to a hearing on FMC's motion for judgment on the pleadings and the EPA's cross-motion for summary judgment. Id. at 3. On November 28, 2007, however, the court, sua sponte, directed the parties to brief whether venue is proper in the Eastern District of Virginia under 28 U.S.C. § 1391(e). FMC v. Evtl. Protection Agency, No. 07cv819, Order (E.D. Va. Nov. 28, 2007) at 1. At a December 7, 2007 hearing, Judge Gerald Lee (the presiding judicial officer) held that: (1) the EPA decision at issue occurred in D.C., (2) the presence of the pesticide office in Virginia was not determinative of the nature of the claim, and (3) plaintiffs should be deterred from forum-shopping in Virginia to challenge federal agency decisions made across the Potomac. Def.'s Opp'n, Wu Decl., Ex. A ("Hearing Transcript") at 13-14. He, therefore, concluded that the case "does not belong" in the Eastern District, "[a]nd these cases [APA reviews] certainly can have a proper forum, and that's the District of Columbia District Court." Id. Accordingly, he ordered the transfer of the case to the D.C. District Court. Id. His written order formalizing his determination at the hearing indicates: "the Court sua sponte raised the issue of venue pursuant to 28 U.S.C. § 1404(a)," and, "for the reasons stated in open court . . . the case is transferred to the United States District Court for the District of Columbia." FMC, No. 07cv819, Order (E.D. Va. Dec. 7, 2007) at 1-2. A month later, on January 7, 2008, FMC filed a motion before this court to transfer venue to either the District of Delaware or back to the Eastern District of Virginia.


A. Legal Standard for Venue under 28 U.S.C. § 1391(e) and Transfer Pursuant to 28 U.S.C. § 1404(a)

When federal jurisdiction is not premised solely on diversity and a defendant is an officer, employee, or agency of the United States, 28 U.S.C. § 1391(e) controls venue, establishing that venue is proper in: any judicial district in which (1) a defendant in the action resides, (2) 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 (3) the plaintiff resides if no real property is involved in the action. 28 U.S.C. § 1391(e). If, upon objection of a party, the court concludes that venue is improper, it may transfer the case pursuant to 28 U.S.C. § 1406.

In an action where venue is proper, 28 U.S.C. § 1404(a) nonetheless authorizes a court to transfer the action to any other district where it could have been brought "for the convenience of parties and witnesses, in the interest of justice[.]" 28 U.S.C. § 1404(a). Section 1404(a) vests "discretion in the district court to adjudicate motions to transfer according to [an] individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). Under this statute, the moving party bears the burden of establishing that transfer is proper. Trout Unlimited v. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).

Accordingly, the defendant must make two showings to justify transfer. First, the defendant must establish that the plaintiff originally could have brought the action in the proposed transferee district. Van Dusen, 376 U.S. at 622. Second, the defendant must demonstrate that considerations of convenience and the interest of justice weigh in favor of transfer to that district. Trout Unlimited, 944 F. Supp. at 16. As to the second showing, the statute calls on the court to weigh a number of case-specific private and public-interest factors. Stewart Org., 487 U.S. at 29. The private-interest considerations include: (1) the plaintiff's 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 that the witnesses may actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof. Trout Unlimited, 944 F. Supp. at 16 (citing Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995), Heller Fin., Inc. v. Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1129 (N.D. Ill. 1989), 15 FED. PRAC. & PROC. § 3848). The public-interest considerations include: (1) the transferee's familiarity with the governing laws; (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. Id.

B. No Clear Error or Manifest Injustice Supercedes the Law-of-the-Case Doctrine, Precluding a Reexamination of ...

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