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Pacific Solar Energy v. United States Department of Treasury

United States District Court, District of Columbia

December 29, 2017

PACIFIC SOLAR ENERGY, S.A. de C.V., Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE TREASURY, ACTING DIRECTOR OF THE OFFICE OF FOREIGN ASSETS CONTROL, OFFICE OF FOREIGN ASSETS CONTROL AND SECRETARY OF THE TREASURY, Defendants.

          ORDER GRANTING IN PART DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE AND TRANSFERRING CASE TO DISTRICT OF COLUMBIA

          MARCIA G. COOKE UNITED STATES DISTRICT JUDGE

         Plaintiff Pacific Solar Energy brought this action against Defendants United States Department of Treasury, Secretary of the Treasury, Office of Foreign Assets Control (“OFAC”), and Acting Director of OFAC, requesting relief from OFAC's denial of Plaintiff's application for a license releasing funds blocked under the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”), 21 U.S.C. §§ 1901-1908. Defendants subsequently filed the instant Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer (“Defendants' Motion”) (ECF No. 18). Plaintiff filed its Response in Opposition to Defendants' Motion (ECF No. 27), and Defendants filed their Reply Memorandum (ECF No. 28). After reviewing the pending Motion, Plaintiff's Response and Defendants' Reply thereto, the record, and the relevant legal authorities, I grant Defendants' Motion in part and transfer the case to the District of Columbia for the following reasons.

         I. Background

         In 2015, Plaintiff sought to commence a project to install approximately 75, 000 solar panels in a community in Honduras. Compl., ECF No. 1, ¶ 15. On or about May 19, 2015, Plaintiff applied for an insurance policy with Seguros Continental, S.A., a Honduran insurance company, which would provide for $45.5 million in coverage for damage to solar panels and equipment during the construction of the project for a premium payment of $105, 028.05 from Plaintiff. Id. at ¶¶ 16-17. On October 7, 2015, Plaintiff wired the premium payment from its account at Banco Santander International in Miami, Florida to the Insurer's account at Banco Continental, S.A. Id. at ¶ 18. On the same day, OFAC included Banco Continental on its List of Specially Designated Nationals or Blocked Persons under the Kingpin Act. Id. at ¶ 19; Blackborow Decl., ¶ 12. Subsequently, Plaintiff received notice that the transfer was blocked at U.S. Century Bank. Compl., ¶ 20.

         On November 23, 2015, Plaintiff applied for a license to release the blocked funds. Id. at ¶ 48. After Plaintiff was notified that the OFAC Licensing Division could not locate the record of the funds, Plaintiff confirmed with U.S. Century Bank that the funds were blocked and then re-submitted its application. Id. at ¶¶ 49-50. On March 28, 2016, the Department of Treasury denied Plaintiff's request to release the funds. Id. at ¶ 51. On June 2, 2016, Plaintiff sent a letter to OFAC requesting reconsideration of the denial. Id. at ¶ 55. OFAC denied the request again on November 14, 2016. Id. at ¶ 58. The decisions regarding Plaintiff's license application were handled by OFAC staff in Washington, D.C. Blackborow Decl., ECF No. 18-1, ¶ 17. While OFAC maintains a small office of three employees in Miami, Florida, two of the employees work only on licensing issues pertaining to sanctions against Cuba and do not work on issues related to the Kingpin Act. Id. The third employee is part of OFAC's Enforcement Division and does not work on licensing issues at all. Id.

         Plaintiff filed this action against Defendants to seek review of OFAC's denial of its application for a license releasing the blocked funds. Compl., ¶ 2. Subsequently, Defendants' filed the underlying Motion.

         II. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(3), a defendant can file a motion to dismiss for improper venue. Once a defendant moves to dismiss, the plaintiff bears the burden of showing that venue is proper. See Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988) (stating a plaintiff need only make a prima facie showing of venue when no evidentiary hearing is held). While a court must take the facts of the complaint as true, it is only “to the extent they are uncontroverted by defendant['s] affidavits.” Estate of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012) (quoting Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir.1990)). A court may consider evidence outside the complaint while drawing all reasonable inferences in favor of the plaintiff and making any findings of fact necessary to resolve the motion. Estate of Myhra, 695 F.3d at 1239; Hemispherx, 669 F.Supp.2d at 1356.

         If a district court finds a case is filed in the improper venue, it “shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a) (2012). Rule 12(b)(3) and § 1406(a) allow dismissal only when venue is “wrong” or “improper.” Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for Western Dist. of Texas, 134 S.Ct. 568, 577 (2013). “[T]he decision whether to transfer a case is left to the sound discretion of the district court . . . .” Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985 (11th Cir. 1982). “Transfer of a case is generally considered to be more in the ‘interest of justice' than outright dismissal of an action.” Forbes v. Lenox Fin. Mortg., LLC, 2008 WL 2959727, at *4 (S.D. Fla. July 30, 2008). If a district court chooses to transfer a case, it must be to a venue in which the plaintiff could have originally brought the action. Manley v. Engram, 755 F.2d 1463, 1467 (11th Cir. 1985).

         III. Discussion

         Defendants move to dismiss for improper venue or, in the alternative, to transfer the case to the District of Columbia. Plaintiff asserts venue is proper in the Southern District of Florida under 28 U.S.C. § 1391(e)(1)(A) and § 1391(e)(1)(B).[1]

         A. Venue is improper under 28 U.S.C. § 1391(e)(1)(A)

         Under § 1391(e)(1)(A), venue is proper in any district where “a defendant in the action resides.” For venue purposes, a federal agency or officer resides where it “performs its official duties.” Brahim v. Holder, 2014 WL 2918598, at *2 (S.D. Fla. June 26, 2014); A.J. Taft Coal Co. v. Barnhart, 291 F.Supp.2d 1290, 1307 (N.D. Ala. 2003). Venue can properly lie in more than one jurisdiction because officers and agencies may have more than one residence. Brahim, 2014 WL 2918598, at *2 (citing Bartman v. Cheney, 827 F.Supp. 1, 2 (D.D.C. 1993)); A.J. Taft Coal Co., 291 F.Supp.2d at 1307 (citing Bartman, 827 F.Supp. 2)). However, a federal agency does not reside in a district merely because it has a regional office in that district. Brahim, 2014 WL 2918598, at *2 (citing Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264, 267 (7th Cir. 1978)).

         Defendants argue that venue is not proper in this District because the residence of all the Defendants is Washington, D.C. Specifically, the agency Defendants United States Department of Treasury and OFAC contend that they have their headquarters and perform their official duties in Washington, D.C., making their residence Washington, D.C. Additionally, the officer Defendants Secretary of the Treasury and the Director of OFAC assert their residence is Washington, D.C. because they perform a significant amount of their official duties ...


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