Smith v. United States Department of Homeland Security ( 2010 )

FILED
MAY l 3 2010
UNITED STATES DISTRICT COURT C|erk, U.S. District & Bankru
FOR THE DISTRICT OF COLUMBIA courts for the District of Co|ui)nt‘tii'/a
Russell Dan Smith,
Petitioner,
v. : Civil Acti0n No.
: . ,. .-
United States Department of Homeland : U./ 10
Security, :
Respondent.
MEMORANDUM OPINION
The plaintiff has filed a pro se petition for a writ of mandamus and an application to
proceed without prepayment of fees. The application will be granted and the petition will be
dismissed for failure to state a claim upon which relief may be granted.
The petition for a writ of mandamus seeks relief against the Wikimedia Foundation
("Foundation"), which, according to the petitioner, produces Wikipedia and Wiktionary.
Petitioner asserts that the Foundation is a clandestine organization that defies investigation, and
that its policies "invite[] its use by terrorists to plot attacks against the United States of America
and its citizens, including but not limited to the petitioner." Petition, 11 V(A), (C). Petitioner
requests that this court find that the Foundation is "too open to . . . use by terrorists," and issue an
order directing the Department of Homeland Security to fully investigate and shut down all
activities of the Foundation. Id. ‘\l Vl.
The remedy of mandamus "is a drastic one, to be invoked only in extraordinary
circumstances." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (l980). Only
"exceptional circumstances" warranting "a judicial usurpation of power" will justify issuance of
the writ. Gulfstream Aerospace Corp. v. Mayacamas C0rp., 485 U.S. 271, 289 (1988) (internal
quotation marks omitted)); see also Doe v. Exxon Mobz``l Corp., 473 F.3d 345, 353 (D.C. Cir.
2007) (stating that mandamus is "an extraordinary remedy reserved for really extraordinary
cases") (intemal quotation marks and citation omitted). Mandamus is available only if "(l) the
plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no
other adequate remedy available to plaintif ." In re Medicare Reimbursement Litigatz``on, 414
F.3d 7, 10 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)).
With respect to the first two requirements, mandamus is available "only where the duty to be
performed is ministerial and the obligation to act peremptory and clearly defined The law must
not only authorize the demanded action, but require it; the duty must be clear and indisputable."
Lozada Colon v. U.S. Dep ’t of State, 170 F.3d 191 (D.C. Cir. 1999) (per curiam) (internal
quotation marks and citation omitted).
The petition does n0t, and on these facts carmot, establish either that the petitioner has a
clear right to the relief requested or that the respondent has a clear duty to perform a ministerial,
clearly defrned, and peremptory act. Accordingly, the petition will be dismissed with prejudice
for failure to state a claim upon which relief may be granted.
A separate order accompanies this memorandum inion.
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Date: /M:é 2 §/_ 10 / C Uni»éJStates District Judge