Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIERRA CLUB, vs. Plaintiff, STEPHEN L. JOHNSON, in his official capacity as Administrator, United States Environmental Protection Agency, Defendant. No. 08-CV SIERRA CLUB S RESPONSE TO DEFENDANT S MOTION TO DISMISS OR ALTERNATIVELY, MOTION TO TRANSFER Plaintiff Sierra Club, through the undersigned counsel, responds to Defendant Stephen Johnson s Motion to Dismiss, or In the Alternative, To Transfer, Docket No. 9 ( Mot.. This case seeks to compel Johnson, the Administrator of the Environmental Protection Agency, ( Administrator to issue a permit for the Hugh L. Spurlock Generating Station in Maysville, Kentucky. (Compl., Dkt. 1, 1-2. Defendant argues that this case should be dismissed or transferred, pursuant to 28 U.S.C. 1406(a and Fed. R. Civ. P. 12(b(3, for lack of venue in this Court because one of the three causes of action pled in the Complaint might not be appropriate in this Court. For the reasons set forth below, Defendant s motion is not well taken and should be denied 1. 1 As a preliminary matter, Sierra Club notes that to the extent that the Administrator s motion seeks to transfer the instant dispute, Administrator s counsel failed to confer in good faith with Sierra Club s 1

2 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 2 of 24 BACKGROUND This case arises out of Title V of the Clean Air Act, 42 U.S.C f, which establishes a federal operating permit program for major sources of air pollution. The program envisions that states will develop permitting programs consistent with the standards set forth in the Clean Air Act and will issue federally-enforceable permits to sources within the respective state. See 42 U.S.C. 7661a(b, (d. However, the federal Environmental Protection Agency (EPA maintains oversight authority and obligations, including reviewing and objecting to deficient state-issued permits. 42 U.S.C. 7661d(a, (b. As a safeguard, if the EPA Administrator fails to object to a deficient permit within his allotted 45-day review period, any person can petition the Administrator to object. 42 U.S.C. 7661d(b(2; 40 C.F.R. 70.8(d. To ensure that this review process is timely and efficient, the Administrator has 60 days to object and, following the objection, the state has only 90 days to issue a permit revised to meet the objection. 42 U.S.C. 7661d(b(2, (c. Here, Sierra Club petitioned the Administrator to object to a deficient state-issued permit for the Spurlock plant in Kentucky. (Compl., Dkt The Administrator objected (following a lawsuit by Sierra Club necessitated by the Administrator s unlawful delay on August 30, (Id Kentucky failed to meet its 90-day deadline to revise the deficient permit, but the Administrator has yet to take any action to issue or deny the permit as required by the Act. 42 U.S.C. 7661d(c; Compl., Dkt , Consequently, Sierra Club brought this action on September 5, 2008, to ensure that the Administrator complies with his obligation to issue or deny the permit for the counsel prior to filing the motion in violation of Local Rule 7.1(m. (Mot. To. Transfer, Dkt. 10.; see LCvR 7.1(m( Before filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel (emphases added. 2

3 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 3 of 24 Spurlock plant. (Id. The Administrator moved to dismiss on November 24, 2008, claiming that venue is not proper as to all claims asserted in the Complaint. (Mot., Dkt. 9 at 1. I. STANDARD OF REVIEW FOR A MOTION TO DISMISS. Venue statutes seek to protect a defendant from the inconvenience of having to defend an action in a trial court that is either remote from the defendant s residence or from the place where the acts underlying the controversy occurred. Modaressi v. Vedadi, 441 F. Supp.2d 51, 53 (D.D.C (quoting VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed.Cir Accordingly, a defendant can test whether a plaintiff has brought the case in a venue that the law deems appropriate, under Fed. R. Civ. P. 12(b(3. Id. Such a motion is the proper mechanism for challenging venue, including under the common-law doctrine of forum non conveniens. In considering a motion to dismiss under Rule 12(b(3 for improper venue, the Court accepts the plaintiff s well-pled factual allegations regarding venue as true, and draws all reasonable inferences in plaintiff s favor. Great Socialist People's Libyan Arab Jamahiriya v. Miski, 496 F.Supp.2d 137, 141 (D.D.C Further, a court may consider materials outside of the pleadings in ruling on a motion to dismiss for lack of venue without converting it to a motion for summary judgment. Artis v. Greenspan 223 F.Supp.2d 149, 152 n.1 (D.D.C (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 (1947. Courts have split on the burden in such a motion. See Beckley v. Auto Profit Masters, LLC, 266 F.Supp.2d 1001, 1003 (S.D.Iowa 2003 (noting a division amount courts. Some courts have held that the plaintiff typically carries the burden of showing 3

4 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 4 of 24 that that venue is proper. Freeman v. Fallin, 254 F.Supp.2d 52, 56 (D.D.C However, other courts have held that the defendant, as the party challenging venue, bears the burden. Myers v. American Dental Ass n, 695 F.2d 716 (3 rd Cir. 1982, cert den. 462 U.S (1983; Kelly Services v. Eidnes, 530 F.Supp.2d 940, 948 (E.D.Mich. 2008; Kichler v. Wieland Intern., 2007 WL , *2 (W.D.Pa. 2007; Intern l Truck and Engine Corp. v. Quintana, 259 F.Supp.2d 553, 558 (N.D.Tex Moreover, to the extent that the Administrator seeks to transfer this case as its alternative requested relief, such a motion should have been brought under 28 U.S.C. 1404, rather than 1406(a because venue is not wrong in this Court for the reasons set forth below. Compare 28 U.S.C. 1404(a ( For the convenience of parties and witneses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought. with 28 U.S.C. 1406(a ( The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if the interest of justice, transfer such case to any district or division in which it could have been brought. The Administrator bears the burden to show that transfer is appropriate under that section, against the strong presumption that the plaintiff s initial choice of venue should be respected. Oudes v. Block, 516 F.Supp. 13, 15 (D.D.C.1981; Lopez Perez v. Hufstedler, 505 F.Supp. 39, 41 (D.D.C II. THE APPLICABLE VENUE PROVISIONS The Complaint raises three claims: (1 a failure to perform a mandatory duty, pursuant to 42 U.S.C. 7604(a(2, Compl., Dkt ; (2 in the alternative, an undue delay in performing a discretionary duty, pursuant to 42 U.S.C. 7604(a, id. at 27-32; and (3 a declaratory judgment that 42 U.S.C. 7661d(c requires the 4

5 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 5 of 24 Administrator to assume the permitting for the Spurlock plant, id. at The three claims are subject to different venue provisions. A. The General Venue Provision. Pursuant to 28 U.S.C. 1391(e, civil actions against an officer or employee of the United States, acting in his official capacity, such as this case, may 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 property that is the subject of the action is situated, or (3 the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. This general provision applies except as otherwise provided by law. Id. Defendant does not contest that this venue statute applies, and that venue is proper in this Court, for counts 1 and 3 in the Complaint. (See Administrator s Brief In Support of Motion to Dismiss, Dkt #9 ( Br. Supp. Mot. at 6 (arguing that 28 U.S.C. 1391(e should not apply only to the unreasonable delay claim in the Complaint. B. Citizen Suit Venue for Unreasonable Delay. The citizen suit provision of the Clean Air Act, 42 U.S.C. 7604, provides a venue provision applicable to only one type of citizen suit. The Clean Air Act provides for four types of citizen suits: (1 an enforcement action against any person who has violated an emission standard or limitation or an EPA order, 7604(a(1; (2 an action to compel the EPA Administrator to perform any non-discretionary duty, 7604(a(2; (3 against any person for constructing without a permit required by subparts C or D of the Act, or for violating any such permit, 7604(a(3; and (4 to compel agency 5

6 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 6 of 24 action unreasonably delayed by EPA, 7604(a. As to the fourth type of citizen suit only, the citizen suit provision further states: any action to compel agency action referred to in section 7607(b which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607(b Id. Therefore, in a suit to compel the EPA Administrator to take one of the actions identified in 42 U.S.C. 7607(b, which has been unreasonably delayed, venue is provided in any District Court within the Circuit where such action would be reviewed by the Circuit Court of Appeals specified in 42 U.S.C. 7607(b. Section 7607(b, in turn, lists numerous actions by the Administrator, including promulgation of regulations and standards, which are reviewable by the Court of Appeals for the District of Columbia. Section 7607(b also lists EPA actions, including any other final action which is locally or regionally applicable, that is reviewable only in the United States Court of Appeals for the appropriate circuit. However, even for EPA actions that would otherwise be reviewed in the appropriate circuit, the District of Columbia Circuit has appellate jurisdiction if the EPA action involves any determination of nationwide scope or effect. Id. In this case, the Administrator s unreasonable delay in issuing a permit for the Spurlock plant is pled in the alternative to the Administrator s failure to perform his mandatory duty to issue the permit. (Compl., Dkt Issuance of an operating permit is not specifically listed in 42 U.S.C. 7607(b. The Administrator s Motion assumes that it, therefore, falls within the category of any other final action which is locally or regionally applicable (Br. Supp. Mot. at 4. The Administrator believes the local or regional applicability would be in Kentucky because the Spurlock plant is 6

7 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 7 of 24 located in Kentucky. (Br. Supp. Mot. at 7. The Administrator further implicitly presumes that issuing the Spurlock permit will not be based on (or involve any determination of nationwide scope or effect. See 42 U.S.C. 7607(b (providing that any such action is reviewed in the Circuit Court of Appeals for the District of Columbia notwithstanding the fact that it is locally or regionally applicable. In summary, while the Administrator s Motion is based on the premise that Count 3 in the Complaint should be venued in any district court within the Sixth Circuit, Br. Supp. Mot. at 7, that interpretation relies on presumptions about the region that will be affected by the permit and improperly assumes that the permit will involve no determination of nationwide scope or effect. Consequently, the venue provision in 42 U.S.C. 7604(a does not clearly dictate venue in a district court in the Sixth Circuit, as the Administrator would have the Court believe. C. Doctrine of Pendent Venue In cases, such as this one, where there are multiple claims arising from the same facts, and which are subject to different venue provisions, the doctrine of pendant venue applies and allows the Court to hear a claim that would not be properly venued on its own. Beattie v. U.S., 756 F.2d 91, 100 (D.C. Cir.1984(abrogated on other grounds by, Smith v. U.S., 507 U.S. 197 (1993. The doctrine of pendent venue operates as an exception to the rule that venue must be established for each claim in a plaintiff s complaint and permits a plaintiff to pursue a claim that was improperly venued if the pendent claim arises from the same nucleus of operative facts as a properly venued claim federal claim. Beattie, 756 F.2d at 100, 103. Alternatively, the Court may decide to exercise pendent venue if the claims at issue actually arise of one cause of action 7

8 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 8 of 24 asserting multiple claims of relief. Id. at 101. The decision to exercise pendent jurisdiction is a matter of judicial discretion. Beattie, 756 F.2d at 103. The same nucleus of operative facts test is the key consideration in a court s determination of whether exercising pendent venue is appropriate because the test embodies factors that bear upon judicial economy, convenience and fairness, Beattie, 756 F.2d at 103; Burnett v. Al Baraka Inv. and Development Corp., 274 F.Supp.2d 86, 97 (D.D.C Thus, factors such as judicial economy, convenience, avoidance of piecemeal litigation, [] fairness to the litigants [and] convenience of litigants and witnesses [and] the convenience of the court system are to be considered. Beattie, 756 F.2d at 103. The existence of common issues of proof and the existence of similar witnesses are also other relevant factors, which the Court may consider. Burnett, 274 F.Supp. 2d at 98. Similarly, under the once cause of action approach to pendent venue, the Court may consider whether a plaintiff sought damages for an essentially single wrong, whether the parties and proof were identical or very similar and whether witnesses and evidence are common. Beattie, 756 F.2d at 101. If pendent venue is not exercised, then the Court may dismiss the action or transfer the case to a district where venue would be proper or more convenient. Modaressi, 441 F. Supp.2d at 53 (citing 28 U.S.C. 1404, The decision of whether transfer or dismiss is in the interest of justice is within the sound discretion of the Court. Davis v. American Society of Civil Engineers, 290 F.Supp. 2d 116, 120 (D.D.C (citing Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir

9 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 9 of 24 III. THERE IS NO DISPUTE THAT THE DISTRICT OF COLUMBIA IS A PROPER VENUE FOR COUNTS 1 AND 3 OF SIERRA CLUB S COMPLAINT In his motion, the Administrator stresses that Sierra Club s chosen forum is an improper venue as to one of Sierra Club s claim [sic]. (D s Br. at 7 (emphasis added. As to the other two claims, the Administrator implicitly acknowledges that venue is appropriate in this Court. In Count 1, Sierra Club alleges that the Administrator failed to perform a non-discretionary duty when it failed to issue or deny Spurlock s Title V Permit pursuant to CAA 505(c, 42 U.S.C 7661d(c, after Kentucky failed to correct the permit 90 days from the date of the Administrator s objection. (Compl This Court has regularly heard cases involving the EPA Administrator s nondiscretionary duties under Title V of the Clean Air Act. See e.g., Rocky Mountain Clean Air Action v. Johnson, 06-cv-1419-RMC (D.D.C. 2006; Sierra Club v. Johnson, 05-cv- 750-ESH (D.D.C. 2005; Nichols v. Johnson, 05-cv-2215-RCL (D.D.C. 2005; New York Public Interest Research Group v. Whitman, 214 F.Supp.2d 1 (D.D.C. 2002; Rocky Mountain Clean Air Action v. Johnson, 08-cv-1422-RWR; Sierra Club v. Johnson, 08- Cv Count 3 requests a declaratory judgment that the Administrator is now the permitting authority for the Spurlock plant because of Kentucky s failure to timely revise the Spurlock permit following the Administrator s August, 2007, objection, and that the Administrator must issue or deny the permit pursuant to 42 U.S.C. 7661d(c. (Compl There is no dispute that the Administrator resides in the District of Columbia, 2 Defendant s motion does not seek to dismiss Counts 1and 3, yet Defendant s brief argues in a footnote that it might file a motion later to dismiss Counts 1 and 3. (Br. Supp. at 7 n.2. The Administrator s argument is both misplaced and wrong. The Administrator s interpretation of 42 U.S.C. 7661d(c, i.e. the Administrator s duty to issue or deny a permit after a state fails to comply with the 90-day 9

10 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 10 of 24 that a substantial part of the events or omissions giving rise to the claim occurred in this district, or that the Sierra Club resides in this district. 3 (Compl. 3, 9. Therefore, there is no dispute that 28 U.S.C. 1391(e provides venue in this Court for Claims 1 and 3. IV. COUNT 2 IS PROPERLY VENUED IN THE DISTRICT OF COLUMBIA. The only issue in the Administrator s motion is whether the second count in the Complaint is properly venued in this Court. Venue is proper in this Court either because 42 U.S.C. 7604(a provides venue of any ultimate appeal of the Administrator s decision to issue or deny a permit in the Court of Appeals for the District of Columbia, or because venue is appropriate here for Counts 1 and 3and the Court can exercise pendent venue over Count 2. A. The Administrator Prematurely Presumes That A Final EPA Action on the Spurlock Permit Will Be Reviewable In The Sixth Circuit. As explained above, the Administrator leaps to the assumption that the venue provisions referred to in 42 U.S.C. 7604(a and 7607(b(1 require Count 2-- Sierra Club s unreasonable delay claim-- be filed in the Sixth Circuit. 4 However, it is too soon to make such a determination. deadline is discretionary, conflicts with the plain language of the statute and the context of 7661d(c. The Administrator further argues that the Declaratory Judgment Act (DJA claim in Count 3, should be dismissed because it is well established that the merely provides a remedy, rather than create a cause of action. (D s. Br. at 8. Contrary to EPA s assertion, the DJA provides an independent cause of action. Committee On The Judiciary, U.S. House of Rep. v. Miers, 558 F.Supp.2d 53 (D.D.C For example, Sierra Club s notice that it would pursue this lawsuit was submitted to the Administrator s headquarters in the District of Columbia. (Compl., Ex. A. 4 The Administrator does not argue that 42 U.S.C. 7607(b(1 is jurisdictional, nor could the Administrator since that issue has been well settled. Texas Mun. Power Agency v. E.P.A., 89 F.3d 858, 867 (D.C. Cir (holding that section 7607(b(1 is a venue provision rather than a jurisdictional one; see also, National Wildlife Federation, et al., v. Browner, 237 F.3d 670, 673 (D.C. Cir (finding an analogous Clean Water Act provision to be a venue provision because of the statutory similarities with section 7607(b(1. 10

11 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 11 of 24 Because the Administrator s ultimate issuance or denial of the Spurlock plant s permit pursuant to 42 U.S.C. 7661d(c may involve one or more determination[s] of nationwide scope or effect, requiring an appeal of that issuance or denial to be filed in the Circuit Court of Appeals for the District of Columbia, 7607(b(1, venue maybe appropriate in this Court for an unreasonable delay claim. 42 U.S.C. 7604(a. The purpose of the venue provision in Section 7607(b is to place nationally significant decisions in the D.C. Circuit. Texas Mun. Power Agency v. E.P.A., 89 F.3d 858, 867 (D.C. Cir Permits for large coal-fired power plants like the Spurlock plant, which have pollution impacts well beyond the state in which they are located, often involve issues of nation-wide scope or effect. 5 In fact, the EPA s Environmental Appeals Board 6 recently decided not to issue a permit for a coal-fired power plant that is a fraction of the size of the Spurlock plant, based on an insufficient record to justify not including a carbon dioxide emission limit. In its decision, the Environmental Appeals Board noted that we recognize that this is an issue of national scope that has implications far beyond this individual permitting proceeding and suggested that EPA address the issue through a nation-wide program. In re Deseret Power Electric Cooperative, PSD Appeal No , Slip Op. at 63-64, 2008 WL (EAB November 13, In short, many 5 For example, EPA found that pollution from power plants in Kentucky contribute so much pollution to the ambient air in downwind states that the emissions from Kentucky power plants contribute significantly to downwind nonattainment, or interfere with maintenance, of the PM2.5 and 8- hour ozone [national ambient air quality standards]. 70 Fed. Reg ,25167 (May 12, 2005; see also id. at (explaining the problem of pollution from upwind states contributing to violations of air quality standards in downwind states. 6 The Environmental Appeals Board is the final agency decision-maker for certain EPA permitting decision, including the decision to issue or deny an operating permit under Title V of the Clean Air Act. 40 C.F.R (l. 7 Available on the EAB s website at: (last visited November 28,

12 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 12 of 24 permitting decisions for coal-fired power plants in the present regulatory environment present the potential for implicating national air pollution programs. E.g., NRDC v. Thomas, 838 F.2d 1224, 1249 (D.C.Cir (holding that a challenge by local emission sources of EPA s failure to account for their stack heights in an otherwise nationallyapplicable standard implicate the national-jurisdiction of the D.C. Circuit; see also Madison Gas & Elec. Co. v. U.S. E.P.A., 4 F.3d 529, (7 th Cir (commenting that despite the electric utility s challenge appearing to be a local one, its success in a challenge would impact nationally applicable regulations, and therefore could not readily be labeled either a national or local agency action for purposes of evaluating the venue provisions of section 7607b(1. The Administrator s Motion is premised on his premature conclusion that his future decision to issue or deny a permit for the Spurlock plant will involve no issue or nation scope or effect. 42 U.S.C. 7607(b; (D s. Br. at 7. It is simply too early for the Administrator to make such a conclusion before he even makes a draft permit decision available for public comments, (which would likely raise issues with national significance, or prepared a statement of basis for his decision. See 40 C.F.R (a(3-(5, (d-(f. B. Even If Count 2, Standing Alone, Would Be Venued In A District Court Within The Sixth Circuit, The Court Should Exercise Pendent Venue. Even if the Court determines that the venue provisions in 42 U.S.C 7604 and 7607(b(1 would require Sierra Club s unreasonable delay claim to be filed in a district court within the Sixth Circuit if Count 2 were the only count in the Complaint, the circumstances of the instant dispute justify the Court s exercise of pendent venue. See Section II.C., supra; Beattie, 756 F.2d at Nothing in 42 U.S.C. 7604(a or 12

13 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 13 of (b prohibits this Court from exercising jurisdiction over Count 2. See generally, Texas Mun. Power Agency, 89 F.3d at 867 (venue restrictions in 7607(b, which are incorporated into 7604(a, are not jurisdictional. Therefore, because Counts 1 and 3 are properly venued here, and all claims arise out of the same facts, and seek relief for the same wrong, this Court should hear all claims under the doctrine of pendent venue. Sierra Club agrees with the Administrator that the three counts in the Complaint are based on the same facts, seek relief for the same wrong, and should be heard together. 8 However, the Administrator is incorrect that venue is not proper before this 8 The Administrator notes that courts in this District have held that splitting claims between districts is inefficient. (Id., citing McCullough v. Bureau of Prisons, No. 05-CV-374, 2006 WL , at *3 (D.D.C. 2006; Ridgely v. Chao, No. Civ. A , 2006 WL (D.D.C at *4; Saran v. Harvey, No. Civ. A , 2005 WL (D.D.C at *4; Crenshaw, 287 F. Supp. 2d at 42-43, 45. While Sierra Club agrees that claim splitting would be inefficient, the cases cited by the Administrator provide little support for its argument to transfer the instant matter to the Eastern District of Kentucky. Only one of the cases actually transferred a claim that was arguably correctly venued as EPA requests that this Court do for Counts 1 and 3. Instead, most of the cases involved transfers where none of the claims were properly venued in this Court. In McCullough, this Court transferred a civil rights case brought by an inmate against a corrections corporation and prison officials to the Eastern District of California pursuant to 28 U.S.C because the court lacked personal jurisdiction over the individual prison officials named (who were all located in California and venue was appropriate in the Eastern District of California pursuant to 28 U.S.C. 1391(b WL , *3. In dicta, the McCullough court noted that it was appropriate to transfer all claims rather than splitting them, but none of the claims would have been proper in the District of Columbia in the first instance. Id. In Saran, the plaintiff alleged a Title VII violation-- implicating the Title VII venue provision-- and additional claims for which 28 U.S.C. 1391(b applied to individual defendants and 1391(e to the Army as a defendant WL , *2. The court held that, because the Army is located in the Pentagon in Virginia, none of the defendants resided in the District of Columbia, and none of the events alleged occurred in the District, venue was not proper in the District for any of the plaintiff s claims. Id. at *2-*4. In Crenshaw, the court considered proper venue under 28 U.S.C. 1391(b and the specific venue waiver provision for RICO claims, 18 U.S.C. 1965(b, and transferred the case to the district in which the plaintiff, most defendants, and all of the activities at issue were located. 287 F.Supp. 2d at 44. Since none of the plaintiff s claims were properly venued in the District of Columbia, the court s statement that [i]t is in the interest of justice to transfer the entire complaint rather than have it heard in, two different venues, id. at (quoting In re O'Leska, 2000 WL ,*1 (D.C.Cir. Dec.7, 2000, was dicta and inapplicable to the instant dispute. In Ridgely, the only case cited by Defendants which transferred a claim that had been properly venued, the court applied the specific venue statute for Title VII claims, 42 U.S.C. 2000e-5(f(3, and transferred the case to the proper venue under Title VII WL , *3. In reaching this conclusion, however, the court stressed the fact that plaintiff s argument that the location of employment records in the District of Columbia established venue, had been specifically rejected. Id. at *2. After determining that it must transfer the Title VII claim, the Ridgely court decided without analyzing the basis for venue, to exercise its discretion under 28 U.S.C. 1406(a to also transfer the age discrimination claim even though 13

14 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 14 of 24 Court. Even assuming, arguendo, that venue for Count 2 would not be appropriate in this Court if that were the only count in the Complaint, its close relation to the other two properly-venued claims counsels against transfer. In other words, it is not true that venue is improper before this Court for Count 2. A court can exercise pendent venue over an improperly venued claim when the pendent claim arises from the same nucleus of operative facts as a properly venued claim or if the pendent claim seeks relief from an essentially single wrong which gives rise to other claims pled by the plaintiff that are properly venued. Beattie, 756 F.2d at Under either basis for pendent venue, the relatedness of the claims at issue, including whether the parties and proof are identical or substantially similar, whether witnesses and evidence are common between claims are factors that a court will analyze when determining when to exercise pendent venue. Id; Burnett, 274 F. Supp.2d at 98. Additionally, the Court can look to whether exercising pendent venue will support judicial economy, be fair to the litigants, be convenient to the parties, witnesses and to the court, and avoid piecemeal litigation. Beattie, 756 F.2d at 103. Sierra Club s claims in this case all involve the same facts, the same witnesses and are for a single wrong committed by the Administrator; keeping the claims venued in the District of Columbia would assuredly promote fairness and convenience to the parties. All three counts in the complaint arise from the Administrator s failure to issue or deny a Title V permit for the Spurlock power plant following the Kentucky agency s failure to meet its mandatory 90-day deadline in 42 U.S.C. 7661d(c. (Compl., Dkt. 1 2, Count 1 asserts that by failing to issue the permit, the EPA Administrator plaintiff s age discrimination claims may be proper in the District of Columbia. Id. at *4 (emphasis added. 14

15 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 15 of 24 failed to complete his mandatory duty to do so. (Id In the alternative, anticipating EPA s argument that the Administrator s failure is an unreasonable delay, rather than a failure to undertake a mandatory duty, see Br. Supp. at 7, Sierra Club also pled an unreasonable delay claim as an alternative to Count 1. (Compl Additionally, because the Declaratory Judgment Act provides a separate cause of action, allowing the Court to declare the rights and obligations of the parties, Sierra Club pled a claim for declaratory relief, asking the Court to declare that the Administrator has an obligation to issue the Spurlock permit, rather than the Kentucky agency, after the Kentucky agency missed the 90-day deadline in 42 U.S.C. 7661d(c. (Id. at 36. There is no dispute that all three counts in the complaint arise from the same basic facts, which will require the same witnesses and evidence. The basis facts underlying all three counts in the Complaint are as follows: (1 The Administrator objected to a permit issued by the Kentucky agency, pursuant to 42 U.S.C. 7661d(b, on August 30, (Compl. 13. (2 The Administrator s objection was based on the permit s lack of a 4850 MMBtu per hour heat input limit and the Kentucky agency s failure to properly account for clean fuel as a pollution control option in 42 U.S.C. 7479(3. (Id (3 The Kentucky agency did not propose a revised permit to meet the Administrator s objections until March 5, 2008 well past the 90-day deadline. (Id. 16, 21. (4 In addition to being late, the state agency s attempt to correct the permit did not meet the Administrator s objections because it did not include the 4850 MMBtu per hour limit the Administrator s objection required. (Id. 16, 22 15

16 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 16 of 24 (5 The Kentucky agency s failure to comply with 42 U.S.C. 7661d(c by submitting a revised permit that meets the Administrator s objections within 90 days terminated the state agency s permitting authority and required the Administrator to issue or deny the permit. (Id. 23, 29, 35. (6 The Administrator has not yet issued or denied the permit for the Spurlock plant. (Id. 24, 31. The Administrator agrees that the same facts are at issue in all three counts and that all three counts seek relief for the same wrong. (Br. Supp. at 8 ( Here, all of Sierra Club s claims are framed as alternatives and seek to compel the same EPA action, i.e., the issuance or denial of a Title V permit for the Spurlock Facility. Sierra Club s unreasonable delay claim and nondiscretionary duty claim thus involve the same subject matter, and it would frustrate judicial economy and risk inconsistent judgments to split the case apart. Therefore, prendent venue in this Court over Count 2 is appropriate. Furthermore, keeping the claims venued in the District of Columbia would be fair to the litigants and convenient for all involved. Sierra Club and the Administrator are both located in this district. (Compl Both parties attorneys have been admitted to practice before the District Court of the District of Columbia. (Mot. at 2 (listing Administrator s attorneys. Sierra Club s counsel, however, has not been admitted to practice before the District Court of the Eastern District of Kentucky, which apparently is the only district that the Administrator believes the instant action should be brought. (Bender Decl. 4. In other words, granting Defendant s motion would result in Sierra Club having to seek other counsel. Since the undersigned counsel are representing Sierra 16

17 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 17 of 24 Club pro bono, finding other counsel to litigate its claims will not be an easy task. (Bender Dec. 3. Moreover, Defendant s attorneys have not explained how or why the District Court of the District of Columbia would be any less convenient to litigating these claims than the District Court of the Eastern District of Kentucky. The Administrator and his permitting personnel are all located here, and any relevant documents or witnesses would also be located here. (See Section C, infra. Indeed, it is hard to imagine a much more convenient forum to litigate the instant dispute than this Court. In sum, exercising pendent venue in this case will promote fairness and convenience to the parties involved. Defendant has proffered no evidence or argument suggesting how venuing this complaint in the District of Columbia, his residence, has inconvenienced the Administrator or will result in some sort of unfairness to the Administrator s interests. Accordingly, the exercise of pendant venue is appropriate in this case. C. Neither the Interests of Justice Nor Judicial Efficiency Counsels Transfer Out of This District Because this Court can exercise pendent venue over Count 2, the question becomes whether transfer to the Eastern District of Kentucky is nevertheless appropriate. It is not. In fact, transfer to the Eastern District of Kentucky makes little sense and would waste both parties resources. This case involves facts, actions, and omissions that occurred at the Administrator s headquarters in the District of Columbia, will involve witnesses from the EPA s offices in the District of Columbia, and seeks an order requiring the Administrator who is located in the District of Columbia to take actions under the 17

18 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 18 of 24 supervision of the Court. (Compl., Dkt 1 at 7 ( Administrator is statutorily charged with the duties Sierra Club seeks to enforce through this lawsuit, 10 and Attachment A ( statutory notice of intent to file this suit was given to the Administrator at his address in the District of Columbia, 24-27, (asserting that it is the Administrator s obligation to issue or deny the permit and that he has failed to do so and p. 9 D (seeking an order compelling the Administrator to take action. Moreover, the Administrator has been taking actions related to the Spurlock plant out of his District of Columbia offices. For example, when Sierra Club was forced to sue the Administrator to respond to Sierra Club s petition pursuant to 42 U.S.C. 7661d(b in a previous case, the Administrator responded to Sierra Club s notice of intent to sue by requesting that correspondence be sent to EPA s Air and Radiation Law Office in the District of Columbia. (Bender Decl. 5, Ex.1. When a proposed consent decree was agreed to between Sierra Club and the Administrator in that case, EPA sought public comment on the proposed consent decree and requested that public comments be submitted to EPA s offices in the District of Columbia. 72 Fed. Reg. 39,413 (July 18, 2007 ( Submit your comments mailed to EPA Docket Center 1200 Pennsylvania Ave., NW., Washington, DC ; or by hand delivery to EPA Docket Center 1201 Constitution Ave., NW, Washington, DC. Once the Administrator issued its objections, those objections came from the Administrator, not from any offices or EPA personnel in the Eastern District of Kentucky. See spurlock_response2006.pdf (last visited, November 30,

19 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 19 of 24 Moreover, once the Administrator is ordered to issue or deny the permit for the Spurlock plant, administrative adjudication of that permit will occur in the Environmental Appeals Board, which is located in the District of Columbia. 40 C.F.R (l; see also In short, all of the administrative processes and agency decisionmaking at issue in this case are connected to the District of Columbia and none of it is connected to the Eastern District of Kentucky. Venue is proper in this Court. See e.g., Greater Yellowstone Coalition v. Bosworth, 180 F.Supp.2d 124, 128 (D.D.C (holding that venue was proper in the District of Columbia in a case addressing bison herds in Montana where the relevant decisions were made by agency personnel in the District of Columbia; Wilderness Soc'y v. Babbitt, 104 F.Supp.2d 10, 14 (D.D.C.2000 (holding that venue was proper in the District of Columbia where the agency head located in the District was involved in the disputed action. Furthermore, the convenience to the parties, witnesses, and to the Court supports venue in this Court. Subpoenas will issue out of this Court for depositions for the likely witnesses who are located in the District of Columbia. Fed. R. Civ. P. 45(a(2(B, (C; see also Fed. R. Civ. P. 45(b(2. Supervision of such discovery, and enforcement of subpoenas for such witnesses, will occur in this Court. Fed. R. Civ. P. 45(c,(e. Moreover, appearance at trial by relevant witnesses, who all live and work in the District of Columbia, and supervision of the Administrator s compliance with court orders all support venue in this Court. In fact, three of four of EPA s counsel on EPA s Motion are located in the District of Columbia, and the fourth is located in Georgia. (Mot. at 2. None are from the Eastern District of Kentucky. 19

20 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 20 of 24 These factors all support venue before this Court, especially in light of the substantial deference that must be given to a plaintiff s selection of forum. There is no merit to EPA s attempt to paint this case as one that has great local impact necessitating venue in eastern Kentucky. (Br. Supp. at 9 (citing National Wildlife Fed n v. Harvey, 437 F. Supp. 2d 42, 50 (D.D.C. 2006; DeLoach v. Philip Morris Cos., 132 F. Supp. 2d 22, 26 (D.D.C. 2000; Valley Cmty Pres. Comm n v. Mineta, 231 F. Supp. 2d 23, 47 (D.D.C. 2002; Citizen Advocates For Responsible Expansion v. Dole, 561 F. Supp. 1238, 1240 (D.D.C The cases that the Administrator relies upon are all based on facts very different and easily distinguished from the facts in this case. In National Wildlife Federation, the case involved the population decline of a bird specie caused by the Army Corps of Engineers mismanagement of Lake Okeechobee in Florida. 437 F.Supp. 2d at The Court held that transfer was appropriate because the case involved the management of the Florida lake, by agency personnel located in Florida, which had an impact on the residents and environment in southern Florida. Id. at In contrast to this case, none of the relevant administrative actions or decisions in that case were made in the District of Columbia and the administrative record was located in Florida. Id. at In DeLoach, tobacco farmers brought a class action suit against cigarette manufacturers, alleging anti-competitive practices. 132 F. Supp. 2d at 23. None of the named plaintiffs or class members (and only a tiny number of unidentified tobacco farmer class members were located in the District of Columbia. Id. at 25. The only connection to the District of Columbia was that the United States Department of Agriculture was located in the District; however, none of the Department personnel 20

21 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 21 of 24 located in the District had any significant role in any of the allegedly anti-competitive practices at issue in that litigation. Id. Additionally, the Court considered the fact that a large number of witnesses were located outside of 100 miles from the District of Columbia and, therefore, were unavailable as live witnesses at trial. Id. at Furthermore, the case involved the practices of growing and selling tobacco which was locally important in North Carolina. Id. at In contrast, here, all of the parties, relevant witnesses, and EPA personnel are located in the District of Columbia, and there is no clearly local issue involved. (P s Brief, supra at 10-12, In Valley Community Preservation, the court was asked to review a highway project. 231 F. Supp. 2d at 26. The Court found significant the fact that the underlying agency review process being reviewed occurred in New Mexico, by administrative personnel and engineering companies located in New Mexico, that the voluminous administrative record was located in New Mexico, and that the court would be required to determine whether the highway design was intended to correct a safety issue on a particular New Mexico highway. Id. at 45, 47. Again, in contrast to the facts in that case, the facts in this case support keeping the claims within the District of Columbia because all of the relevant documents, witnesses, and agency personnel are all located in this district. (P s Brief, supra at In the last case cited by the Administrator, Citizen Advocates for Responsible Expansion, the court was asked by organizations based out of, and with strong connections to the Fort Worth, Texas, area to review the planning and construction of two segments of highway in Fort Worth. 561 F.Supp at The case was about, and sought to block, the expansion of a highway about which there was considerable local 21

22 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 22 of 24 interest and involvement in the Fort Worth area. Id. Because of the undisputed fact that the specific highway expansion challenged in the suit was a matter of great controversy in and concern to the Fort Worth area, the court decided to transfer the case out of the District of Columbia. Id. Yet, in this case, the issue is not a local project, or even the Spurlock plant, it is the failure of the Administrator to take a bureaucratic action of issuing or denying a permit out of his office in the District of Columbia. In sum, each of the cases the Administrator cites involved direct review of a decision that had direct local impacts, was made by local officials outside of the District of Columbia, and typically involved witnesses or a large administrative record located in another venue. This is not such a case. This case is about a bureaucratic failure by the Administrator that occurred in the District of Columbia. It is not about the merits of the permit that will ultimately be issued, the pollution from the Spurlock plant, or any other matter that will directly impact the residents of Kentucky. (Those decisions will come later based on wholly different facts and a different record, and review will be before different adjudicatory bodies. Here, the issue is the EPA Administrator s compliance with federal law. The Administrator is located in the District of Columbia and none of the EPA employees who have been involved in the unlawful failure to issue or deny a permit for the Spurlock plant are located in the Eastern District of Kentucky 9. This case does not invoke the type of local interests that courts have found convincing in decision to transfer cases to another venue. Sierra Club v. Van Antwerp, 523 F.Supp.2d 5, 13 (D.D.C (citing Wilderness Soc'y v. Babbitt, 104 F.Supp.2d 10, (D.D.C. 2000; Concerned 9 If they are not located in the District of Columbia, such employees are likely located in EPA s Regional offices in Atlanta, Georgia. 22

23 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 23 of 24 Rosebud Area Citizens v. Babbitt, 34 F.Supp.2d 775, 776 (D.D.C Venue, is therefore, proper here. V. EVEN IF THE ADMINISTRATOR WERE CORRECT, DISMISSAL OR TRANSFER IS NOT PROPER Even if the Administrator were correct that Count 2 of Sierra Club s complaint should be venued in the Eastern District of Kentucky, the appropriate step would not be to dismiss or transfer the instant matter. Rather, Sierra Club ought to be granted leave to amend its complaint to eliminate Count 2. See Fed. R. Civ. P. 15(a(leave to amend shall be freely given when justice so requires ; see also Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir (finding that the district court had abused its discretion when refusing to grant leave to a party to amend the complaint, when such leave was requested in the alternative, in the party s response to a motion to dismiss. CONCLUSION For the reasons set forth above, Sierra Club respectfully requests that Defendant s motion to dismiss, or in the alternative to transfer to be denied in its entirety. Alternatively, Sierra Club respectfully requests that it be granted leave to file an amended complaint. 23

24 Case 1:08-cv CKK Document 11 Filed 12/02/2008 Page 24 of 24 Dated this 2nd of December, 2008 Attorneys for Sierra Club GARVEY, MCNEIL & MCGILLIVRAY, S.C. /s/carlos Pabellon David C. Bender D.C. Dist. Ct. Bar No. WI Carlos A. Pabellon D.C. Dist. Ct. Bar No. WI0012 Garvey McNeil & McGillivray, S.C. 634 West Main Street, Suite 101 Madison, WI Tel Fax