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ARROCHA v. PANAMA CANAL COMMN.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 20, 1985

JOSE LUIS ARROCHA, Plaintiff, against THE PANAMA CANAL COMMISSION, DENNIS McAULIFFE, ADMINISTRATOR, WILLIAM CREWS, ATLANTIC AREA COMMANDER OF THE PANAMA CANAL COMMISSION, Defendants.

The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 This unusual case concerns the venue provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and raises the question of where venue may lie when none of the provisions of that venue statute may be strictly applied to the case bat bar. In this action, defendant Panama Canal Commission, *fn1" as well as defendants McAuliffe and Crews, in their official capacities, *fn2" have moved to dismiss this action or to transfer venue to the United States District Court for the District of Columbia. For the reasons that follow, defendants' motion is granted insofar as it requests that the action be transferred pursuant to 28 U.S.C. § 1406(a). *fn3"

 Background

 Plaintiff, a New York resident *fn4" and a former employee of the defendant Commission, brings this action pursuant to Title VII, supra, and 42 U.S.C. § 1981 alleging that defendants unlawfully discriminated against him on the basis of race. He also claims that defendants violated the right to free speech guaranteed him under the First Amendment to the United States Constitution, in that defendants allegedly retaliated against him due to statements he made to the press. *fn5"

 For purposes of the motion now before me, it is relevant to note that defendant's allegedly unlawful employment practices all took place in the Republic of Panama, which is also the location of any employment records relevant to those practices. Additionally, it is conceded that but for defendants' allegedly unlawful acts, plaintiff would have worked in Panama. Finally, the "principal office" of the defendant Commission is located in Panama. 35 C.F.R. § 9.2. The only offices of the Commission located in the United States are the office of the Secretary of the Commission in Washington, D.C. *fn6" and a procurement office in New Orleans, Louisiana. Id.

 The factual backdrop to this action is further complicated by developments arising from the enactment of the Panama Canal Treaty of 1977, T.I.A.S. No. 10030, between the United States and the Republic of Panama. Pursuant to Article XI, P5 of the Treaty, the United States District Court of the Canal Zone was abolished as of April 1, 1982. *fn7" The implications of that event will be discussed further in the following section.

 Discussion

 At issue here is the applicability of 42 U.S.C. § 2000e-5(f)(3), the venue provision of Title VII. That portion of the statute provides that suit 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. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

 (emphasis added). In determining proper venue under this statute, a court must first look to the situs of any one of the first three criteria set forth in § 2000e-5(f)(3). The court may look to the district in which the employer's principal office is located only if venue cannot be laid in one of the other three possible districts specified in the statute. See, e.g., Allen v. Bolger, 597 F. Supp. 482, 485 (D. Kan. 1984); Katz v. Lewis, 26 F.E.P. Cases 1402, 1403 (D.D.C. 1981). This is so because the "principal office" portion of the venue provision in Title VII was enacted to cover the "rare case" when the employer could not be found in one of the other three districts.110 Cong. Rec. 12723. Moreover, the venue provision has been held to demonstrate Congress' clear intent "to limit venue to the judicial districts concerned with the alleged discrimination[.]" Stebbins v. State Farm Mutual Automobile Ins. Co., 134 U.S. App. D.C. 193, 413 F.2d 1100, 1102 (D.C. Cir.), cert. denied, 396 U.S. 895, 24 L. Ed. 2d 173, 90 S. Ct. 194 (1969).

 As noted supra, it is undisputed that Panama is the jurisdiction within which defendants' alleged unlawful practices took place, where the relevant records are kept and in which plaintiff allegedly would have been employed but for defendants' acts. Thus, the only district in which venue is proper is that in which the Commission has its "principal office." The precise issue raised by this motion thus crystallizes: because the Commission's principal office is indisputably located in Panama, where the federal district court no longer exists, within what district should this action proceed?

 Defendants contend that the venue provision of Title VII must be read expansively, to permit venue to lie in the defendant's principal office within the United States. Thus, defendants urge that venue is proper in the District of Columbia, where the office of the Secretary of the Commission is located.

 Plaintiff, however, urges that because the venue provisions of Title VII cannot be applied literally to the circumstances of this case, venue in this action should be governed not by § 2000e-f(5)(3), but by a portion of the general venue statute, 28 U.S.C. § 1916(e). That statute provides in relevant part:

 A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States . . . may, except as otherwise provided by law, be brought in any judicial district in which . . . (4) the plaintiff is involved in the action.

 (emphasis added). Plaintiff therefore urges that venue is proper in the Eastern District of New York under § 1391(e) based on plaintiff's residence. But see note 4, supra.

 Plaintiff's claim that § 1391(e) should govern venue in this action must fail, however, because it is well settled that claims brought under Title VII are strictly governed by 42 U.S.C. § 2000e-5(f)(3). See, e.g., Stebbins v. State Farm Mutual Automobile Ins. Co., supra, 413 F.2d at 1102-03; Templeton v. Veterans Administration, 540 F. Supp. 695, 696-7 (S.D.N.Y. 1982); Matthews v. Trans World Airlines, Inc., 478 F. Supp. 1244, 1245 (S.D.N.Y. 1979); Chaves v. Norton, 18 F.E.P. Cases 1705 (D.P.R. 1978). It is abundantly clear that there is no basis under § 2000e-5(f)(3) for venue in the Eastern District of New York; however, the absence of a district court in Panama precludes me from transferring this action to that forum.

 I am persuaded, however, that under the peculiar circumstances of this case, this action should be transferred to the District of Columbia. Defendants have set forth two bases of authority which support such a transfer.First is the decision of Learned hand in the case of Stewart v. Pacific Steam Navigation Co., 3 F.2d 329 (S.D.N.Y. 1924). There the plaintiff sought to sue a foreign corporation under the Jones Act, 46 U.S.C. § 688, which contains an exclusive venue provision stating that "[j]urisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located." *fn8" 46 U.S.C. § 688. If construed literally, this provision would have prevented American plaintiffs from invoking the protection of the Jones Act where the defendant was a foreign corporation.

 In interpreting the statute so as to permit American seamen plaintiffs the "protection which the act was meant to give them when serving on foreign ships," Judge Hand read the phrase "in which its principal office is located" to "clearly mean "in which the principal office of the foreign steamship company is located within the United States." 3 F.2d at 330 (emphasis added). Furthermore, the Stewart court held that "[i]t is no strain on that language to interpret it in th[at] way." Id. at 330. Utilizing that expansive interpretation, it would, of course, still be necessary for the foreign corporation to carry out "a certain amount of business . . . within the United States in order to get any personal jurisdiction." Id. Applying the Stewart court's annalysis to the instant case, venue would be proper in the District of Columbia.

 The defendants' position here is also bolstered by the recent unpublished decision in Robles v. United States, No. L-83-97 (S.D. Tex. Nov. 13, 1984), a case which is identical with this one. In that case the plaintiff, a United States citizen domiciled in Panama, brought suit in Texas under Title VII. Raising the question of jurisdiction sua sponte,9 the district court transferred the action to the District of Columbia in circumstances identical to those presented in this case. The court stated:

 While it is doubtful that [the Washington office of the Commission] is the principal office of the Commission, . . . it is apparently at least the principal office in the United States.

 Plaintiff asks that in lieu of dismissal, the case be transferred to the District of Columbia. Considering the unusual facts ifn this case, including the Defendants' insistence that Plaintiff is protected by Title VII and that there is no forum existing in Panama, the Court concludes that the proper disposition of the pending motion would be to grant a change of venue to the District Court for the District of Columbia.

 Id., slip op. at 3.

 The "unusual facts" of this case are identical to those present in Robles. Venue is clearly improper in this district, and based upon the authorities set forth above, I find that this action should be transferred to the District of Columbia.

 Conclusion

 For the reasons set forth above, defendants' motion to transfer this action to the United States District Court for the District of Columbia is granted pursuant to 28 U.S.C. § 1406(a).

 SO ORDERED


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