The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRANDON T. WIEGAND, : CIVIL ACTION NO. 1:23-CV-897
: (Consolidated with 1:17-CV-979)
Plaintiff :
: (Judge Neary)
v. :
:
DANIEL DRISCOLL, Secretary, :
Department Of the Army, :
:
Defendant :
MEMORANDUM
In this action, plaintiff Brandon T. Wiegand challenges defendant Secretary
of the Army’s (“the Army”) decision, made in his official capacity, declining to hire
him for a Museum Curator position in Fort Belvoir, Virginia, alleging
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq, the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq, and
various federal regulations. The Army asserts the Middle District of Pennsylvania is
an improper venue to adjudicate Wiegand’s claims. Because the Army is correct,
this matter will be transferred to the Eastern District of Virginia for further
adjudication.
I. Factual Background & Procedural History
This is one of many suits filed by Wiegand relating to the end of his tenure
with the Army Heritage and Education Center (“AHEC”) and his failure to find new
employment with the Army. Wiegand alleges he was discriminated against for his
disability, Asperger’s, at AHEC. (Doc. 1 ¶¶ 5, 27 n.3, 37-39).1 After his employment
with AHEC ended, Wiegand applied for various other positions with the Army, but
none of his applications were successful. (Id. ¶¶ 41-42). Many of these non-selections
are the subject of what was originally a separately filed lawsuit, (id. ¶ 43), though
now that case has been consolidated with this one.
This current matter only deals with a single non-selection: a Museum
Curator position at Fort Belvoir, Virginia. (Id. ¶ 45; Doc. 1-5 at ECF 18). After
learning about his non-selection, Wiegand filed an official equal opportunity
complaint with the Army. (Id. ¶ 121). Wiegand asserts the Army did not hire him
because of his Asperger’s and because it was retaliating against him for other equal
opportunity complaints he had made. (Id. ¶¶ 208-210).2 In a final agency action, an
administrative law judge granted summary judgment in favor of the Army
regarding Wiegand’s claim. (Id. ¶¶ 122-23). Wiegand then appealed to the Merit
Systems Protection Board (“MSPB”) which ultimately dismissed his claim for lack
of jurisdiction. (Id. ¶¶ 124-28). This case serves as an appeal from that final decision
of the MSPB. (Id. ¶ 129).
II. Legal Standard
Pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, a party
may move to dismiss a complaint for improper venue. FED. R. CIV. P. 12(b)(3). In
1 For convenience, the court uses the document numbers from original
docket 1:23-CV-897 when citing to the record in this case.
2 Wiegand also argues the Army violated numerous Code of Federal
Regulations provisions relating to how the position was advertised and how
candidates were evaluated. (Doc. 1 ¶¶ 130-205).
addition to the complaint, parties may rely on affidavits to support their position on
venue. See Bockman v. First Am. Mktg. Corp., 459 F. App’x 157, 158 n.1 (3d Cir.
2012) (non-precedential); Kimmel v. Phelan Hallinan & Schmieg, PC, 847 F. Supp.
2d 753, 759 (E.D. Pa. 2012). When ruling on a motion to dismiss under Rule 12(b)(3),
a court must “accept as true all of the allegations in the complaint, unless those
allegations are contradicted by the defendants’ affidavits.” Bockman, 459 F. App’x
at 158 n.1. It is the moving party that bears the burden of proving venue is
improper. Myers v. Am. Dental Ass’n, 695 F.2d 716, 724-25 (3d Cir. 1982).
III. Discussion
District courts, as opposed to the Court of Appeals for the Federal
Circuit, only have jurisdiction over appeals from MSPB decisions when the
appeal is a “mixed case.” Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 423 (2017).
A mixed case is one where “an employee complains of a personnel action
serious enough to appeal to the MSPB and alleges that the action was based on
discrimination.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012) (citing 29 C.F.R. §
1614.302 (2012)). There is no dispute among the parties this is mixed case
appeal involving discrimination claims under Title VII of the Civil Rights Act.
(See Doc. 13 at 5 n.8 (Army noting—but not challenging—Wiegand considers
this to be a mixed case); Doc. 12 at 6).
What is disputed, however, is whether this court is the proper venue for
this appeal. An appeal of an MSPB decision in a mixed case shall be filed in
accordance with the relevant anti-discrimination statute. See Kloeckner, 568
U.S. at 45-46 (quoting 5 U.S.C. § 7703(b)(2)). In this case, the relevant statute is
Title VII of the Civil Rights Act of 1964. The Army notes Title VII has a distinct
venue provision, separate from the more general venue statue for other federal
cases. (Doc. 11 at 4 (citing 42 U.S.C. § 2000e-5(f)(3)). It argues Wiegand’s
complaint fails to establish the Middle District of Pennsylvania as an
appropriate venue under that statue and move to dismiss this case pursuant to
Federal Rule of Civil Procedure 12(b)(3). (Doc. 10).
In response to the Army’s challenge, Wiegand offers three responses: (1)
the doctrine of “pendent venue” provides support to keep this case in this
district; (2) provisions from the Federal Tort Claims Act (“FTCA”) establish
venue; and (3) venue is proper under Title VII’s specific provisions. (Doc. 12 at
5-7). None of these arguments is persuasive.
First, as to pendent venue, it is true that the court invoked that doctrine
to claim venue over certain claims in another lawsuit (the “non-selection
action”) filed by Wiegand. See Wiegand v. Esper, No. 1:17-CV-979, 2018 WL
11381484, *6 (M.D. Pa. Sept. 13, 2018). It is further true that this case and the
non-selection have been administratively consolidated into one docket. But
these cases do not share “a common nucleus of operative fact” necessary to
invoke pendent venue. See id. Most distinctively, the non-selection action
involved claims that were unresolved by the relevant Equal Employment
Opportunity office. Id. at *1. Conversely, this current matter stems from an
appeal of a decision by the MSPB. (Doc. 1 ¶ 129).
Moreover, in the non-selection action, the court exercised pendent
venue over a single non-selection claim out of twenty-two originally plead (and
eleven surviving a motion to dismiss). Wiegand, 2018 WL 11381484, *6-7.
Conversely, this current action only involves a single event: the failure to hire
Wiegand for the Curator Museum position at Fort Belvoir, Virginia. (See
generally Doc. 1). Regardless, the decision to hear a claim through the doctrine
of pendent venue is one committed to a district court’s discretion. See Martin
v. U.S. Equal Emp. Opportunity Comm’n, 19 F. Supp. 3d 291, 309 (D.D.C. 2014)
(quoting Sierra Club v. Johnson, 623 F. Supp. 2d 31, 37 (D.D.C. 2009)). Because
this current action has a distinctive procedural history and because it contains
a sole claim relating to an employment position located out-of-district, the
court declines to apply the doctrine of pendent venue in this instance.
As to Wiegand’s invocation of the FTCA, 28 U.S.C. §§ 1346, 1402, it can
be quickly set aside. His complaint did not plead an action under the FTCA,
(see generally Doc. 1), and so its provisions are inapplicable to this case.
That leaves the question of whether Wiegand can establish venue under
Title VII. A plaintiff may only bring file a federal lawsuit involving on the basis
of Title VII “[1] in any judicial district in which the unlawful employment
practice is alleged to have been committed, [2] in the judicial district in which
the employment records relevant to such practice are maintained and
administered, or [3] in the judicial district in which the aggrieved person would
have worked but for the alleged unlawful employment practice.” 42 U.S.C. §
2000e-5(f)(3). If none of those provisions apply, then the suit must be filed
“within the judicial district in which the respondent has his principal office.”
Id.
Wiegand argues because he applied to the position from his home in
central Pennsylvania and found out he was not hired from there, the unlawful
employment practice took place in central Pennsylvania. (Doc. 12 at 7-8). He
further asserts, without any citation, that since employment records are
“maintained and administered electronically,” they are “available literally
everywhere.” (Id.). Finally, he highlights the fact that USAJobs can be reached
anywhere in the United States. (Id. at 8).
Applying online and receiving a decision notification online is
insufficient to establish venue here. Other district courts have found that
merely using an online portal for job applications is insufficient to prove venue
is proper. See Blue v. BNSF Ry. Co., No. 1:22-CV-45, 2024 WL 4277812, *4 (S.D.
Ohio Sept. 24, 2024); Shahin v. Geithner, No. CIV. 10-955-LPS, 2012 WL
2126906, *4 (D. Del. June 8, 2012). These cases are persuasive. The purpose of
Section 2000e-5(f)(3)’s provisions was “to limit venue to the judicial districts
concerned with the alleged discrimination.” Thurmon v. Martin Marietta Data
Sys., 596 F. Supp. 367, 368 (M.D. Pa. 1984) (quoting Stebbins v. State Farm
Mut. Auto. Ins. Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969)). Were courts to adopt
Wiegand’s view, venue would be proper “literally everywhere” rendering the
tight limitations imposed by Congress meaningless. Therefore, the mere act of
applying online and receiving a notification must be insufficient to establish
venue under Section 2000e-5(f)(3).
The last piece of the venue puzzle is crafting a remedy. The Army seeks
to have the entire action dismissed, (Doc. 10), but acknowledges the defect
could be cured by transferring the case to a district court of proper
jurisdiction. (Doc. 4-5). Dismissing the action outright would be far too punitive
a remedy to the malady at issue. Rather, the interests of justice warrant
transferring this case per 28 U.S.C. § 1406(a). Virginia is both where the
position for which Wiegand applied is located and the principal place of
business for the Army,3 and so this action shall be transferred to the Eastern
District of Virginia. See id.; 42 U.S.C. § 2000e-5(f)(3).
As a coda, the Army also moved to dismiss Wiegand’s claims under
certain federal regulations for lack of subject matter jurisdiction. (Doc. 10 at 6-
8). While challenges to subject matter jurisdiction go to the heart of whether a
court has the power to adjudicate a claim, in contrast to venue challenges
which only deal with finding the right place to bring a lawsuit, Myers, 695 F.2d
at 727 & 727 n.7, this would only be a partial motion to dismiss. The Army has
not moved to dismiss Wiegand’s Title VII claims. (See Doc. 10 at 6-8). Given
that resolution of that motion would still keep the underlying action alive, it
would be more appropriate for the District Court for the Eastern District of
Virginia, as the proper venue, to address that argument. See Trawick v.
Harvey, No. CIV.A. 06-01937, 2006 WL 2372241 at *3 n.3 (E.D. Pa. Aug. 15, 2006)
(similarly declining to address a partial motion to dismiss when the action is to
be transferred to a proper venue). Therefore, this court declines to rule on the
Army’s 12(b)(1) motion to dismiss.
3 The Army notes it is headquartered in Arlington, Virginia. (Doc. 13 at 3).
IV. Conclusion
The Army has met its burden showing the Middle District of Pennsylvania is
the improper venue for this action. Accordingly, in the interest of justice, this
matter shall be transferred to the Eastern District of Virginia.
/S/ KELI M. NEARY
Keli M. Neary
United States District Judge
Middle District of Pennsylvania
Dated: August 19th, 2025