# Defense of Freedom Institute for Policy Studies, Inc. v. US Department of Education

> District Court, M.D. Florida · March 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10115494

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DEFENSE OF FREEDOM
INSTITUTE FOR POLICY
STUDIES, INC.,

Plaintiff,

v. Case No: 6:23-cv-1515-PGB-EJK

U.S. DEPARTMENT OF
EDUCATION and THE WHITE
HOUSE OFFICE OF
MANAGEMENT AND BUDGET,

Defendants.
/
ORDER
This cause comes before the Court on Defendants’ Motion to Dismiss Or,
Alternatively, to Transfer (Doc. 26 (the “Motion to Dismiss”)) and Plaintiff
Defense of Freedom Institute for Policy Studies, Inc.’s (“DFI”) response in
opposition (Doc. 33 (the “Response”)). Upon consideration, the Motion to
Dismiss is due to be granted.1

1 Defendant U.S. Department of Education filed a nearly identical Motion to Dismiss Or,
Alternatively, to Transfer in Case No. 23-cv-1695, which is also before the undersigned. (Case
No. 23-cv-1695-PGB-EJK, Docs. 13, 27).
I. BACKGROUND2
On August 9, 2023, DFI filed its three-count Complaint against the U.S.
Department of Education (“Department”) and the White House Office of

Management and Budget (“OMB”) (collectively, the “Defendants”), asserting
various violations of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et
seq. (See generally Doc. 1).
DFI is a corporation founded “to defend and advance freedom and
opportunity for every American family, student entrepreneur, and worker, and to

protect civil and constitutional rights at school and in the workplace.” (Id. ¶ 6). In
order to fulfill its mission, DFI’s work involves, among other things, “submitting
FOIA requests to federal agencies to obtain records related to the consideration
and implementation of policies imposed by the federal government and its officials
on the American people, and then posting records produced by the agencies online
for public review.” (Id.). DFI is “incorporated and organized under the laws of the

Commonwealth of Virginia, with its registered agent at 250 Browns Hill Court,
Midlothian, VA, 23114.” (Id.). The headquarters of both Defendants are in
Washington, D.C. (Id. ¶¶ 7–8). DFI asserts that “[v]enue is proper in this District
pursuant to 5 U.S.C. § 552(a)(4)(B) [the FOIA-specific venue provision] because
DFI resides in the District, including maintaining an office in Titusville, Florida.”

(Id. ¶ 4).

2 This account of the facts comes from DFI’s Complaint (Doc. 1), which the Court accepts as true
for the purposes of this Motion to Dismiss. See Williams v. Bd. of Regents, 477 F.3d 1282,
1291 (11th Cir. 2007).
Since February 2022, DFI has served three FOIA requests on Defendants,
who have failed to provide any responsive documents. (See generally Doc. 1).
Essentially, each request “seek[s] records relating to mandatory disclosures to the

Department by institutions of higher education of information required by Section
117 of the Higher Education Act (‘Section 117’), which is codified at 20 U.S.C. §
1011f and entitled ‘Disclosure of foreign gifts.’” (Id. ¶ 1). The aforementioned
disclosures aim “to promote public transparency about the role of foreign funding
and influence in American higher education.” (Id.). DFI opines that the

Department has failed “to ensure that institutions of higher education comply with
Section 117” and Defendants refusal to produce requested records further
“underscores the apparent abandonment of Section 117 enforcement.” (Id.).
DFI’s first FOIA request to the Department was on February 7, 2022. (Id. ¶
11). DFI “sought specific records related to the Department’s enforcement of
Section 117, which requires colleges and universities to report biannually to the

Department foreign source gifts and contracts with an annual value of $250,000
or more.” (Id. ¶¶ 11, 13). Ultimately, 549 days had passed since the first request,
and although DFI had submitted a number of production request inquiries and the
Department indicated it “intend[ed] to provide records on a rolling basis as they
become available,” no inquiries were responded to, and no records had been

produced regarding the first FOIA request. (Id. ¶¶ 12, 21–25).
On February 7, 2022, DFI also submitted a FOIA request to OMB. (Id. ¶ 29).
Like the first request, the second request “sought records relating to the
Department’s enforcement of certain statutory reporting obligations regarding
foreign gifts and contracts by colleges and universities; specifically, [DFI] asked for
OMB’s communications with particular non-governmental entities and associated

individuals regarding these obligations and the Department’s enforcement of
them.” (Id. ¶¶ 30, 32). Again, despite the passage of 549 days and OMB
acknowledging receipt of DFI’s request, OMB has failed to produce any related
records in response. (Id. ¶¶ 31, 34).
DFI’s final FOIA request was submitted to the Department on February 27,

2023. (Id. ¶ 39). Similar to the first two requests roughly a year prior regarding the
Department’s enforcement of Section 117, DFI’s third request sought “documents
relating to the Department’s transfer of Section 117 enforcement responsibilities
from the Department’s Office of General Counsel (‘OGC’) to its Office of Federal
Student Aid (‘FSA’).” (Id. ¶¶ 40, 42). Although the Department represented to DFI
that it was “processing its production of responsive records, the Department has

failed to produce any records” in the 164 days since DFI’s third request. (Id. ¶ 41).
Ultimately, on August 9, 2023, DFI instituted this action by filing the instant
Complaint seeking judicial review of the aforementioned matters. (Doc. 1).
Defendants moved to dismiss for improper venue or, alternatively, to transfer the
case to the District Court for the District of Columbia pursuant to 28 U.S.C §

1404(a). (Doc. 26). DFI filed its response in opposition (Doc. 33), and the matter
is now ripe for review.
II. STANDARD OF REVIEW3
Pursuant to Federal Rule of Civil Procedure 12(b)(3), a party may move to
dismiss an action based on “improper venue.” FED. R. CIV. P. 12(b)(3). When a

defendant moves to dismiss on grounds of improper venue, the plaintiff has the
burden of demonstrating that venue in the forum is proper. E.g., Capital Corp.
Merch. Banking, Inc. v. Corp. Colocation, Inc., No. 6:07-cv-1626, 2008 WL
4058014, at *1 (M.D. Fla. Aug. 27, 2008); Delong Equip. Co. v. Wash. Mills
Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). In ruling on such a motion, the

court must accept all allegations in the plaintiff’s complaint as true if
uncontroverted by defendants’ evidence. Delong, 840 F.2d at 845. “If an allegation
in the complaint is challenged, ‘the court may examine facts outside of the
complaint to determine whether venue is proper’ and ‘may make factual findings
necessary to resolve motions to dismiss for improper venue.’” In re Blue Cross Blue

3 The Court acknowledges that the instant Motion to Dismiss for improper venue was filed post-
answer. (See Docs. 25, 26). However, pursuant to Federal Rule of Civil Procedure 12(h),
Defendants preserved their improper-venue defense by including it in their Answer—their
initial responsive pleading filed on October 5, 2023. (See Doc. 25, pp. 4, 15); FED. R. CIV. P.
12(h). Shortly thereafter, on October 23, 2023, Defendants filed their 12(b)(3) motion
requesting the Court dismiss the action for improper venue. (Doc. 26). As Defendants point
out, courts employ different procedural vehicles when addressing post-answers challenges to
improper venue. (Id. at p. 10); Am. Motorists Ins. Co. v. Roller Bearing Co. of Am., No. 99
CIV 9133 AGS, 2001 WL 170658, at *2 (S.D.N.Y. Feb. 21, 2001) (“When a defendant asserts
the defense of improper venue in its answer, it may later make a motion under Rule 12(b)(3)
or § 1406(a) . . . .”); Yocum v. Rockwell Med. Techs., Inc., No. 12–CV–568, 2012 WL 2502701,
at *2 (S.D. Cal. 2012) (considering post-answer motion to dismiss for lack of venue that was
filed within a month of defendant’s answer in order to serve the purposes of Rule 12(b)). Here,
Plaintiff failed to even address the requisite standard of review and thus, presented no
procedural opposition to the Court resolving the Motion to Dismiss before it. In any event,
since Defendant has not waived its defense of improper venue and the parties have both
briefed their views on the issue, the Court could raise the issue of defective venue sua sponte.
See Lipofsky v. N.Y. State Workers Comp. Bd., 861 F.2d 1257, 1258 (11th Cir. 1988).
Shield Antitrust Litig., 225 F. Supp. 3d 1269, 1290 (N.D. Ala. 2016) (quoting
Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)). “Where conflicts exist
between allegations in the complaint and evidence outside the pleadings, the court

‘must draw all reasonable inferences and resolve all factual conflicts in favor of the
plaintiff.’” Capital Corp., 2008 WL 4058014, at *1 (quoting Wai v. Rainbow
Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004)).
III. DISCUSSION
A. Motion to Dismiss for Improper Venue

Defendants initially argue that the case must be dismissed because venue is
improper in the Middle District of Florida. (Doc. 26, pp. 9–13).4 Essentially,
Defendants’ argument is that Plaintiff does not “reside” in the Middle District for
purposes of FOIA’s venue provision, 5 U.S.C. § 552(a)(4)(B). (Id.). For the
forthcoming reasons, the Court agrees.
Typically, venue for civil actions in federal courts is governed by 28 U.S.C. §

1391, “[e]xcept as otherwise provided by law.” 28 U.S.C. § 1391(a). Prior to 2011, §
1391(c) defined “residency” “[f]or purposes of venue under this chapter.” 28 U.S.C.
§ 1391(c) (2010) (emphasis added). However, in 2011, Congress amended § 1391(c)
to apply “for all venue purposes.” 28 U.S.C. § 1391(c) (emphasis added). Legislative
history clarifies congressional intent with regard to this amendment, highlighting

that § 1391(c)’s definition of residence “appl[ies] to all venue statutes, including

4 In the alternative, Defendants contend that the matter should be transferred to the District of
Columbia pursuant to 28 U.S.C. § 1404(a). (See Doc. 26). However, since the Court finds
venue improper, it does not address transfer under § 1404(a). See infra Section III.B.
venue provisions that appear elsewhere in the United States Code.” H.R. REP. NO.
112-10, at 20 (2011) (emphasis added). For purposes of the “residence” of a
plaintiff-entity, § 1391(c) states that it “shall be deemed to reside . . . only in the

judicial district in which it maintains its principal place of business. Id. §
1391(c)(2). However, if the entity is a defendant, it may reside “in any judicial
district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question.” Id.
On the other hand, venue in a FOIA action is governed by 5 U.S.C. §

552(a)(4)(B), a statute-specific venue provision. The FOIA venue provision
provides that venue is proper in any district where either: (1) the plaintiff resides;
(2) the plaintiff has its principal place of business; (3) the relevant records are
located; or (4) in the District of Columbia. 5 U.S.C. § 552(a)(4)(B).5
The crux of the parties’ dispute implicates whether the general venue statute
can supply the FOIA-specific venue provision, 5 U.S.C. § 552(a)(4)(B), with the

definition of “residency.” (Compare Doc. 26, pp. 9–13, with Doc. 33, pp. 5–11).
Plaintiff argues that it cannot. Specifically, Plaintiff contends that venue for a FOIA
action is governed exclusively by its own special venue provision and thus, the
generic provisions provided for by 28 U.S.C. § 1391(c) are irrelevant. (See Doc. 33,

5 Considering DFI solely relies on the initial prong of plaintiff’s residence to demonstrate proper
venue, the Court will tailor its argument accordingly. Nonetheless, DFI does not set forth any
allegations that the relevant records are located here in the Middle District, and the fourth
prong simply does not apply as this Court is not in the District of Columbia.
pp. 5–11).6 While the Court agrees that 5 U.S.C. § 552(a)(4)(B) governs proper
venue in a FOIA action, the Court ultimately disagrees that the general venue
statute cannot supplement the FOIA-specific venue provision with the meaning of

a term that the respective statute, and interpreting case law, has left undefined.
First, Plaintiff cites to a single case that squarely addresses the instant issue:
Western Watersheds Project v. National Park Service, No. 21-CV-00219, 2021 WL
5828028, at *1 (D. Idaho Dec. 8, 2021). (Doc. 33, p. 7). Therein, entity-plaintiff
sued defendant, a federal agency, in the District of Idaho for failing to respond to

a number of FOIA requests. Western Watersheds, 2021 WL 5828028, at *1. The
agency defendant moved to transfer venue under 28 U.S.C § 1404(a) for various
reasons. Id. In assessing the transfer motion, the court was tasked with addressing
where the action may have initially been brought. Id. at *2–3.
Since § 552(a)(4)(B) governs venue for FOIA actions, the Watersheds court
similarly analyzed where the entity-plaintiff properly “resides” under the statute.

6 Plaintiff initially cites to Freedom Watch, Inc. v. U.S. Department of State, No. 13-CV-419-
OC-22PRL, 2014 WL 12784907, at *1 (M.D. Fla. Apr. 14, 2014), to support its contention that
the generic venue statute does not govern actions subject to specific statutory venue
provisions. (See Doc. 33, p. 6). As Plaintiff points out, in Freedom Watch, the court highlighted
“that venue for civil actions alleging a FOIA violation is governed by 5 U.S.C. § 552(a)(4)(B),
and not the general venue provision found at 28 U.S.C. § 1391(e).” Id.; 2014 WL 12784907, at
*3. However, the subject provision in the instant case is § 1391(c), not (e). Thus, such a
distinction renders any reliance on Freedom Watch unpersuasive for a few reasons. Moreover,
it provides an inherent reason why “Freedom Watch made no reference to the 2011
Amendment” to § 1391(c). (See Doc. 33, p. 6).

For one, § 1391(e) provides far more than the definition for an undefined term. See 28 U.S.C.
§ 1391(e). Section 1391(e) sets forth proper venue in various locations for actions where the
defendant is an officer or employee of the United States. See id. Thus, reading § 1391(e) in
conjunction with § 552(a)(4)(B) would fully supplant venue as provided for by the FOIA-
specific venue provision. Whereas, § 1391(c) merely defines a term—explicitly “[f]or all venue
purposes”—that could provide clarity to the meaning of one word, “resides,” in § 552(a)(4)(B).
Id. Defendant contended that an entity-plaintiff could reside in “more than one
judicial district for purposes of venue in FOIA cases,” and thus, Utah was also a
proper venue because plaintiff “works in Utah, routinely makes FOIA requests in

Utah, frequently litigates in Utah . . . and otherwise interacts with both the state
and federal land management agencies located in Utah on a regular basis.” Id. at
*2. To the contrary, the Watersheds plaintiff argued it “resides” only in Idaho, “the
judicial district in which it maintains its principal place of business”—which is the
universal definition of an entity-plaintiff’s residence “for all venue purposes” under

28 U.S.C. § 1391(c)(2). Id.
Ultimately, the Watersheds court disagreed with plaintiff’s argument that §
1391(c) supplied FOIA’s venue provision, § 552(a)(4)(B), with the definition of
“resides.” See id. at *2–3. The court reasoned that “[w]hile a plaintiff may at times
reside, and have its principal place of business, in the same location, equating
plaintiff’s principal place of business with its place of residence would render

portions of the FOIA venue provision redundant and thus contrary to a
fundamental rule of statutory interpretation.” Id. at *2.7 Thus, the court concluded
that “resides” referred to “any place where [the entity-plaintiff] has substantial
contacts.” Id. at *3.

7 The Court does not necessarily agree with this contention, to be discussed infra. In sum,
surplusage is not the only canon in which the Court must consider. Moreover, the term still
carries independent meaning for plaintiffs that are individuals—and thus, such an
interpretation aligns with FOIA’s intention to provide plaintiff-requesters, especially those
that do not have the same resources as legal entities, with convenient venue choices.
This Court finds that the holding in Watersheds is quite distinguishable for
a number of reasons. For one, Watersheds is one case from the District of Idaho
and thus, is not binding. Plaintiff has not presented any additional case law with

the same, or even a similar, holding to further persuade the Court of its position.
Moreover, and perhaps most problematic, the Watersheds court based its
definition of “resides” on a prior Supreme Court case, Pure Oil Co. v. Suarez, 384
U.S. 202, 204–05 (1966), that interpreted the definition of residency as it applied
to a corporate defendant in 1966. Paradoxically, however, the Pure Oil court

ultimately supplied a special venue provision found in the Jones Act with the then-
definition of “resides” from § 1391(c)—which is exactly what DFI asks this Court
not to do here with FOIA. Id. at 204–07; (Doc. 33, pp. 5–11).8
Thus, even though the Court here is tasked with assessing a venue provision
that implicates a corporate plaintiff’s residence, the analysis set forth in Pure Oil
only bolsters this Court’s decision. The Pure Oil court analyzed the residence of a

corporate defendant under a specific venue provision in the Jones Act. See
generally 384 U.S. 202. The Jones Act contained a special venue provision that

8 In any event, even if the Court were to apply DFI’s proposed interpretation of “resides” that
stems from Pure Oil and the then-definition of a corporate defendant’s residency under §
1391(c), DFI fails to demonstrate that it has substantial contacts to the Middle District. To set
forth its “substantial contacts,” DFI primarily emphasizes the fact that the lead attorney on
this case lives and works in Titusville. (Doc. 33, pp. 2–4, 10). However, without more, such an
argument falls flat. DFI neither cites to case law nor references relevant authority to bolster
its position that an attorney’s living arrangement confers contacts sufficient for “residency” of
a corporation and thus, venue of an action. If this Court were to interpret “substantial
contacts” based on the residence of a lead attorney in a case, companies would simply be able
to put attorneys on cases that live in districts in which they wish to proceed. In other words,
forum shopping would be rampant.
provided as follows: “Jurisdiction 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.” 46 U.S.C. § 688 (1964). The underlying question presented in Pure Oil

was akin to that here: whether the definition of residence provided by the general
venue statute, § 1391(c), applied to the Jones Act. 384 U.S. 202. At the time, §
1391(c) had been redefined and expanded such that “[a] corporation may be sued
in any judicial district in which it is incorporated or licensed to do business or is
doing business, and such judicial district shall be regarded as the residence of such

corporation for venue purposes.” Id. at 203–04; 28 U.S.C. § 1391(c) (1964). The
Pure Oil court noted that while statutory history did not elucidate the “intended
effect of § 1391(c) on special venue provisions, the liberalizing purpose underlying
its enactment and the generality of its language support the view that it applies to
all venue statutes using residence as a criterion, at least in the absence of contrary
restrictive indications in any such statute.” 384 U.S. at 204–05. As such, Pure Oil

concluded that the general venue statute’s definition of corporate residence should
be read into the venue provision within the Jones Act. See id. at 207 (“[T]he basic
intent of the Congress is best furthered by carrying the broader residence
definition of § 1391(c) into the Jones Act.”). Such is exactly what the Court intends
to do in the case at bar—except now, the definition of residency itself has changed,

and the Court has crystal-clear intent from Congress that § 1391(c) is meant to
“apply to all venue statutes, including venue provisions that appear elsewhere in
the United States Code.” H.R. REP. NO. 112-10, at 20 (2011).
Next, Plaintiff analogizes the instant matter to TC Heartland LLC v. Kraft
Foods Group Brands LLC, 581 U.S. 258, 263 (2017), which discussed the definition
of residency for purposes of proper venue in patent infringement suits. (Doc. 33,

pp. 9–10). Therein, the Supreme Court held that the general provisions of § 1391(c)
did not control the meaning of terms in the patent-specific venue provision. See
generally TC Heartland, 581 U.S. 258. However, the Court finds the circumstances
in TC Heartland quite distinct from the ones at bar.
To provide context, TC Heartland similarly involved a dispute over the

interpretation of “resides” under the patent-specific venue provision, 28 USC §
1400(b). Section 1400(b) provided that “[a]ny civil action for patent infringement
may be brought in the judicial district where the defendant resides, or where the
defendant has committed acts of infringement and has a regular and established
place of business.” 28 USC § 1400(b) (emphasis added). The Supreme Court in TC
Heartland noted that the issue involved whether the 2011 amendment to §

1391(c)’s definition of residency—to apply “for all venue purposes” versus those
“under this chapter”—supplanted the longstanding definition of “resides” for
purposes of § 1400(b). Since 1957, in Fourco Glass Co. v. Transmirra Products
Corp., 353 U.S. 222 (1957), the Supreme Court had “definitively and
unambiguously held that the word ‘reside[nce]’ in § 1400(b) has a particular

meaning as applied to domestic corporations: It refers only to the State of
incorporation.” TC Heartland, 581 U.S. at 267–68 (citing Fourco, 353 U.S. 222).
As such, the TC Heartland court concluded that Congress did not intend to change
the established interpretation of “resides” under § 1400(b) by amending the §
1391(c) default definition of residency in 2011. 581 U.S. at 267–69.9 In other words,
TC Heartland inherently held that § 1391(c) did not supply the patent-specific

venue provision with the meaning of the term “resides.” See id.
For one, the Supreme Court has long made clear that patent exists in a world
of its own. See, e.g., Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561 (1942);
Fourco, 353 U.S. 222. Dating back to 1942 in Stonite, the Supreme Court explicitly
declared that § 1400(b)’s predecessor was “the exclusive provision controlling

venue in patent infringement proceedings.” 315 U.S. at 564. And, since then, case
law has clearly set forth the definition of an entity’s “residence” for purposes of §
1400(b) and patent venue—the entity’s state of incorporation. See, e.g., Fourco,
353 U.S. 222. Thus, § 1391(c) cannot supplement the patent-specific venue
provision with the generic definition of “resides” because the confines of § 1400(b)
are unequivocally “otherwise provided by law.” See § 1391(c); TC Heartland, 581

U.S. at 269 (noting that § 1391(c) now “expressly contemplates that certain venue

9 Moreover, the court in TC Heartland acknowledged that at the time Fourco was decided in
1957, § 1391(c) read “for venue purposes.” TC Heartland, 581 U.S. at 268–69. The 2011
amendment to § 1391(c) merely added the word “all” to the original version of the general
venue statute. Id. Thus, the TC Heartland court found no “material difference between the
two phrasings.” Id. In other words, if § 1400(b) wasn’t subject to § 1391(c)’s default definition
of residency when Fourco was decided in 1957, TC Heartland held that it shouldn’t be now.
See id. Further, even if congressional intent of § 1391 was always to encompass all venue
purposes, Congress has never expressed an intent to alter the original meaning of § 1400(b)—
which has been defined by almost a century of precedent. TC Heartland, 581 U.S. at 268–69
(“The current version of § 1391 does not contain any indication that Congress intended to alter
the [original] meaning of § 1400(b) . . . .§ 1391’s saving clause expressly contemplates that
certain venue statutes may retain definitions of ‘resides’ that conflict with its default
definition.”). As such, § 1391(c) has no bearing on patent venue in particular because the
confines of § 1400(b) have long been “otherwise provided by law.” See § 1391(c).
statutes may retain definitions of ‘resides’ that conflict with [§ 1391(c)’s] default
definition”). Alas, such is simply not the case with the venue provision in FOIA.
The aforementioned having been distinguished, the Court is left at a

crossroads in interpretating the meaning of “resides” under 5 U.S.C. §
552(a)(4)(B). So, in order to reach its conclusion, the Court must embark on a
journey of statutory interpretation. “The starting point for all statutory
interpretation is the language of the statute itself” in order to determine whether
its meaning is clear. United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.

1999); see Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002).
If a statute is susceptible to more than one reasonable interpretation, and is
thus ambiguous, “courts are left to determine [the statute’s] meaning by looking to
the legislative history and employing . . . canons of statutory construction.” Lindley
v. F.D.I.C., 733 F.3d 1043, 1055–56 (11th Cir. 2013) (quoting U.S. Steel Mining Co.
v. Dir., OWCP, 719 F.3d 1275, 1283 (11th Cir.2013)). One “pertinent canon is the

presumption against surplusage: we strive to give effect to every word and
provision in a statute when possible.” Garcia v. Vanguard Car Rental USA, Inc.,
540 F.3d 1242, 1247 (11th Cir. 2008). “The conclusion that two statutes conflict,
however, is one that courts must not reach lightly. If any interpretation permits
both statutes to stand, the court must adopt that interpretation, ‘absent a clearly

expressed congressional intention to the contrary.’” Miccosukee Tribe of Indians
of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010) (quoting
Garfield v. NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006)).
Considering “resides” under § 552(a)(4)(B) is not defined and is clearly
susceptible to more than one meaning, the statutory language is ambiguous.10
And, unlike with the patent-specific venue provision § 1400(b), the definition of

residency for purposes of § 552(a)(4)(B) has not been “otherwise provided by law.”
§ 1391 (addressing the universal applicability of the general venue statute “[e]xcept
as otherwise provided by law”). Accordingly, in construing FOIA’s venue provision,
the Court must “employ canons of construction which embody sound
generalizations about Congressional intent.” Garcia, 540 F.3d at 1247–48.

Legislative history makes clear that Congress intended § 1391(c)—and thus
the definition of residency—to “apply to all venue statutes, including venue
provisions that appear elsewhere in the United States Code.” H.R. REP. NO. 112-10,
at 20 (2011). Moreover, the Court can easily interpret § 1391(c) in tandem with §
552(a)(4)(B), which permits both statutes to hold their meaning. See, e.g.,
Miccosukee Tribe, 619 F.3d at 1299.

Therefore, assuming the Court were to supply § 552(a)(4)(B) with the
general definition of “residency” provided by § 1391(c), DFI would “reside” where
it has its principal place of business.11 However, Plaintiff does not make an

10 The Court acknowledges DFI’s contention that it is unaware of any other case finding 5 U.S.C.
§ 552(a)(4)(B) “ambiguous or resorting to legislative history to interpret it.” (Doc. 33, pp. 10–
11). However, this is partly the issue—the meaning of “resides” under § 552(a)(4)(B) has yet
to be addressed, much less defined, by case law and thus, there is practically no authority that
discusses the term at all. FOIA’s venue provision does not provide a definition of “resides” nor
has one been supplied by decades of precedent, unlike with regard to the patent specific venue
provision § 1400(b). Therefore, the bottom line is that the Court is left to decipher the meaning
of the term itself, in some way or another, by looking outside § 552(a)(4)(B).

11 See supra note 7.
argument that it maintains its principal place of business in the Middle District.
Instead, it argues that it has “substantial contacts,” and thus “resides,” in the
Middle District because it “maintain[s] an office in Titusville, Florida” where the

“attorney with primary responsibility for all of its FOIA matters” works and lives.
(Doc. 1, ¶ 4; Doc. 33, p. 10). DFI further contends it is “registered to business in
Florida” and pays taxes to the state. (Doc. 33, p. 10). Nevertheless, the Court does
not find that such activity is sufficient to deem the Middle District DFI’s “principal
place of business.”12 In fact, as Defendant points out, DFI advertises—via its own

letterhead, email correspondence, social media, and so forth—as if its principal
place of business is in the District of Columbia. (E.g., Doc. 1-3, pp. 12, 18, 22, 43,
46 (stating repeatedly that its address, and that of its then senior counsel, is “1455
Pennsylvania Avenue NW, Suite 400, Washington, DC 20004”); Doc. 26, pp. 4–7,
14 n.8).
In the alternative, if the Court were not to incorporate the definition of

resides from § 1391(c) into § 552(a)(4)(B), the Court would instead be inclined to
define an entity-plaintiff’s “residency” as its state of incorporation. At the time of
FOIA’s enactment in 1966, it had been well-settled that “for purposes of the general
venue statutes a corporation resided only in its state of incorporation.” See Flowers
Indus., Inc. v. F.T.C., 835 F.2d 775, 777 (11th Cir. 1987) (emphasis added)

(interpreting “the meaning of residence when the § 1391(e)(4) plaintiff is a

12 Moreover, as indicated previously, the Court is not even persuaded that DFI has “substantial
contacts” in the Middle District. See supra note 8.
corporation”); Shaw v. Quincy Mining Co., 145 U.S. 444, 449 (1892) (“In the case
of a corporation, the reasons are, to say the least, quite as strong for holding that it
can sue and be sued only in the state and district in which it has been incorporated

. . . . [Such] has been often reaffirmed by this court, with some change of phrase,
but always retaining the idea that the legal existence, the home, the domicile, the
habitat, the residence, the citizenship of the corporation can only be in the state by
which it was created, although it may do business in other states whose laws permit
it.”). Moreover, “a corporation always resides only in the state of incorporation for

purposes of a specific venue statute unless there is some contrary indication.” See
Flowers, 835 F.2d at 777 (citing Tenneco Oil Co. v. EPA, 592 F.2d 897, 899 (5th
Cir. 1979)).13
The instant Plaintiff, DFI, is “incorporated and organized under the laws of
the Commonwealth of Virginia, with its registered agent at 250 Browns Hill Court,
Midlothian, VA, 23114.” (Doc. 1, ¶ 6). Therefore, even if the Court were to

alternatively define “resides” for purposes of § 552(a)(4)(B) as a plaintiff-entity’s
state of incorporation, venue in this case would still not be proper in the Middle
District.
Ultimately, the reality is that no matter which of the aforementioned
interpretations of “resides” the Court attributes to § 552(a)(4)(B), DFI does not

reside in the Middle District. Thus, venue here is improper.

13 The Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions prior to October
1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
B. Transfer Pursuant to 28 U.S.C. § 1406
Pursuant to 28 U.S.C. § 1406(a), if a district court finds venue improper, 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). Considering
§ 552(a)(4)(B) provides that venue for a FOIA action is always proper in the
District of Columbia—and the fact that the FOIA requests have been pending for
an extended period of time—the Court will transfer the matter accordingly in the
interest of justice. See § 1406(a).
IV. CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as
follows:
1. Defendants’ Motion to Dismiss for improper venue (Doc. 26) is
GRANTED.
2. The Clerk of Court is DIRECTED to transfer this matter to the
District Court for the District of Columbia, where venue properly lies
pursuant to 5 U.S.C. § 552(a)(4)(B), and close the case.
DONE AND ORDERED in Orlando, Florida on March 19, 2024.

/ / □ Mi——
PAUL G.
UNITED STATESISTRICT JUDGE

Copies furnished to:

Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115494. Public record. Not legal advice.