The opinion of the court was delivered by: SCULLIN
Presently before the Court is an action filed by Barbara Schwarz ("plaintiff" or "Schwarz") pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, together with an application to proceed in forma pauperis. Docket nos. 1 and 2.
For the reasons stated below, plaintiff's complaint is dismissed on the basis of improper venue under 28 U.S.C. §§ 1406(a) and 1391(e), as well as pursuant to 28 U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of Practice of this District as frivolous and without an arguable basis of law.
Initially, the Court notes that in plaintiff's application to proceed in forma pauperis, Schwarz did not answer questions 3 (a) - (d). Docket no. 2 at P 3. Accordingly, the Court denies plaintiff's application to proceed in forma pauperis as incomplete.
With respect to the claims in her complaint, plaintiff alleges that defendant Internal Revenue Service ("IRS" or "the agency") failed to properly respond to Schwarz's FOIA requests within the statutory time period. Schwarz commenced this suit in this district, although, at the time this action was filed, Schwarz resided in Salt Lake City, Utah.
See docket no. 1 at 1. Moreover, plaintiff's FOIA requests to the IRS were mailed to the agency offices located in the District of Columbia. See docket no. 1, exhibits A, B, and E.
A civil action against an agency of the United States
... may, except as otherwise provided by law, be brought 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 the property ... is situated, or (3) the plaintiff resides if no real property is involved.
Advancing to subdivision 2 of this section, because the FOIA requests were served on the IRS in Washington, D.C., this subdivision is inapplicable herein.
Next, as noted above, plaintiff does not reside in this district. Thus, venue is proper in this district only if the agency may be found to legally "reside" in this district for purposes of the instant action.
"There is nothing in [ 28 U.S.C. § 1391(e)] or its legislative history which suggests that Congress ... sought to allow a federal agency to be sued ... wherever it may maintain an office. To the contrary, the wording of the statute itself precludes such an expansive reading." Davies Precision Machining, Inc. v. Defense Logistics Agency, 825 F. Supp. 105, 107 (E.D. Pa. 1993) (citing Reuben H. Donnelley Corp. v. Federal Trade Commission, 580 F.2d 264, 267 (7th Cir. 1978)). Venue is not proper merely because a federal agency maintains a regional office in a district. Davies, 825 F. Supp. at 107 ; see also Hartke v. Federal Aviation Administration, 369 F. Supp. 741, 746 (E.D.N.Y. 1973) ("resides" for purposes of § 1391(e) shall not be construed to include every district where a subordinate of an agency has an office). Since the offices of the IRS in the Northern District of New York are not alleged to have engaged in any substantial part of the activity complained of in plaintiff's complaint, the undersigned finds that venue, as determined by 28 U.S.C. § 1391(e) is improper in this district.
Venue is also improper herein in light of the relief sought by Schwarz -- the production by the IRS of various documents sought by plaintiff. When seeking to enjoin an agency from withholding records requested pursuant to FOIA, venue is proper only with the district court (i) in which the complainant resides, (ii) where the agency records are situated, or (iii) of the District of Columbia. 5 U.S.C. § 552 (a)(4)(B). In this case, plaintiff resides in Salt Lake City, Utah and plaintiff requested records from the Washington, D.C. office of the IRS. Since this district does not have authority to issue an injunction concerning this FOIA request pursuant to 5 U.S.C. 552(a)(4)(B), venue in the Northern District of New York is improper for this reason as well. In light of the fact that venue clearly does not lay in this district for this action, the undersigned next must consider whether this matter should be transferred to an appropriate district or dismissed.
For the reasons more fully outlined below, this action must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and Rule 5.4(a) of the Local Rules of Practice of this District as ...