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Wiggs v. Secretary of Army

*fn* submitted: February 22, 1993.

MICHAEL R. WIGGS, PLAINTIFF-APPELLANT,
v.
SECRETARY OF THE ARMY; SECRETARY OF THE NAVY; UNITED STATES MARINE CORPS; UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of California. D.C. No. CV-87-0256-G(BTM). Earl B. Gilliam, District Judge, Presiding.

Before: Goodwin, Schroeder, and Canby, Circuit Judges.

MEMORANDUM

Michael R. Wiggs, a former civilian employee with both the United States Army and Marine Corps, appeals pro se both the district court's transfer of his Title VII employment discrimination claim against the Secretary of the Army to the Eastern District of Virginia, and the dismissal of his action against the Secretary of the Navy. Wiggs contends that the district court erred by (1) finding that the Southern District of California was not the proper venue for his claims against the Secretary of the Army and (2) dismissing his claims against the Secretary of the Navy for lack of prosecution. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background

According to Wiggs' complaint, on June 16, 1980, he began serving as an auditor for the Marine Corps at Camp Pendleton, California. One week later, he was selected for and accepted an auditor position with the United States Army at Camp Zama, Japan. In 1983, the Army denied Wiggs request to extend his term. He returned to the United States and was reinstated with the Marine Corps at Camp Pendleton.

Wiggs filed a single complaint in the Southern District of California alleging separate and distinct Title VII claims against the Secretary of the Army and the Secretary of the Navy. Wiggs' claim against the Secretary of the Army alleged that he suffered discrimination during his civilian employment in Japan. Following his employment in Japan, Wiggs alleged that he was subjected to reprisal discrimination during his subsequent employment with the Marine Corps in California due to prior complaints he filed with the Equal Employment Opportunity Commission, and letters he wrote to various high-ranking government officials, each alleging discrimination by the Army.

The district court, relying on 42 U.S.C. § 2000e-5(f)(3), transferred his claim against the Secretary of the Army, whose principal office is in Alexandria, Virginia, to the Eastern District of Virginia. The district court dismissed Wiggs' remaining claim against the Secretary of the Navy for lack of prosecution based upon eighteen months of inactivity. Wiggs timely filed a notice of appeal.*fn1

1. Transfer

Wiggs contends that the district court erred by transferring his discrimination claim against the Secretary of the Army to the Eastern District of Virginia because the relevant employment records were allegedly maintained in California. This contention lacks merit.

We review for abuse of discretion a district court's transfer of an improperly filed case under 28 U.S.C. § 1406(a). Cent. Valley Typo. Un. No. 46 v. McClatchy News., 762 F.2d 741, 745 (9th Cir. 1985).

"The district court of a district in which is filed a case laying venue in the wrong division or district 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); accord King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3446 (U.S. Dec. 3, 1992) (No. 92-954).

42 U.S.C. § 2000e-5(f)(3) provides in relevant part:

an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of section[] . . . 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action may have been brought.

Here, Wiggs' claim against the Army was based upon his civilian employment in Japan. He argued that the employment records relevant to his claim against the Army were maintained in California by the Secretary of the Navy. The district court, however, reviewed the records maintained by the Marine Corps and concluded that the relevant employment records for Wiggs' discrimination claim against the Army were maintained in Japan. The Secretary of the Army maintained his principal office in Alexandria, ...


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