Thursday, April 14, 2011

Providing a Venue: DDC Opinion Raises Specter of No Proper Venue for Plaintiffs Seeking Declarations of Citizenship Based on Circuit Split

Circuit splits are always troubling because they can lead to inequitable results in different jurisdictions. For instance, in a recent post, I noted that there is a circuit split over whether to apply the first- or last-served rule for removal, which means that defendants in jurisdiction A might be able to remove a case from state court to federal court while defendants in jurisdiction B would be stuck in state court. But at least these latter defendants could have their case heard in some court. The recent opinion of the United States District Court for the District of Columbia in Roman-Saldago v. Holder, 730 F.Supp.2d 126 (D.D.C. 2010), however, raises the specter of a different circuit split leaving some cases in which plaintiffs cannot have their cases heard in any court. If this is correct, the Supreme Court should step in immediately and resolve the split.

In Roman-Saldago, an immigration detainer was placed on the record of inmate Lamberto Roman-Saldago, subjecting him to likely deportation to Mexico upon the completion of his sentence. Roman-Saldago is serving his sentence at the Beaumont Federal Correctional Institution in Beaumont, Texas, and he resided in Highland Park, Illinois, before being incarcerated. Roman-Saldago brought an action pursuant to 8 U.S.C. Section 1503(a) against Attorney General Eric Holder seeking a declaratory judgment that he is a citizen or a national of the United States.

The defendant thereafter moved to dismiss under Federal Rule of Civil Procedure 12(b)(3) based upon improper venue. The United States District Court for the District of Columbia agreed that it was an improper venue. The court acknowledged that it would be a proper venue under 28 U.S.C. Section 1391(b)(2) because the Attorney General resides in D.C., but it found that this general venue provision was trumped by the special venue provision in 8 U.S.C. Section 1503(a), which requires that an action brought pursuant to it be brought "in the district court of the United States for the district in which [the plaintiff] resides or claims a residence."

Because it was not a proper venue, the court had to decide under 28 U.S.C. Section 1406(a) whether to dismiss the action "or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought." And, according to the court, "[g]enerally, the interest of justice requires transferring such cases to the appropriate judicial district rather than dismissing them." This, however, was not one of those cases. Why?

Well, the court noted that the D.C. Circuit

has held that for purposes of venue, "a prisoner has his residence at his place of confinement."...Thus, under the law of this Circuit, the proper venue for this action is the Eastern District of Texas, the district in which the plaintiff is confined....According to the Fifth Circuit, however, a prisoner retains his pre-incarceration residence regardless of his place of incarceration....Thus, under the law of the Fifth Circuit, the proper venue for this action would be the Northern District of Illinois, where the plaintiff claims to have resided prior to his incarceration. Accordingly, if the court were to transfer this case to the Eastern District of Texas, that court would have no choice but to dismiss the case for improper venue or transfer the case to the Northern District of Illinois....

The Northern District of Illinois will eventually be the forum for this case because the Seventh Circuit, which includes the Northern District of Illinois, concurs with the Fifth Circuit rule regarding the residence of inmates....Thus, a court in that Circuit would presumably conclude that the plaintiff continues to reside in the Northern District of Illinois and did not become a Texas resident for venue purposes by virtue of his incarceration there....Unfortunately, however, it appears that this court cannot simply transfer this case to the Northern District of Illinois because, even though that court would apparently consider itself a proper venue,...this court is bound by Circuit precedent to conclude that the Northern District of Illinois is an improper venue and therefore not an eligible transferee district. 

Therefore, the court found that the interest of justice required it to dismiss the action so that the plaintiff could re-file his action in the United States District Court for the Northern District of Illinois. Undoubtedly, this caused an inconvenience for the plaintiff, but it is an inconvenience suffered by plaintiffs in numerous cases who have their actions dismissed under 28 U.S.C. Section 1406(a).

But what if the facts were slightly different? In a footnote in its opinion, 

The court note[d] that it [wa]s purely providential that there [wa]s any forum with venue over this case, making this disagreement between the Circuits a particularly problematic one. If, for example, the plaintiff had been a resident of the District of Columbia before being incarcerated in Texas, then there would be no forum in which he could bring his suit, because courts in this Circuit would view him as a Texas resident while the courts in the Fifth Circuit would view him as a resident of the District of Columbia.

Does anyone else find this footnote disturbing? What would happen in such a case? I picture something similar to what plays out in Tom McCarthy's "The Visitor," a film (partially) about an immigrant getting chewed up in the gears of the Kafka-esque immigration machinery. And, even if the scenario mentioned in the footnote doesn't arise with much frequency, it seems to be one that demands immediate attention from the Supreme Court if it is even a possibility.

-Colin Miller

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