Reed v. Esper

FILED
UNITED STATES DISTRICT COURT JUN 13 2019
FOR THE DISTRICT OF COLUMBIA . Clark, U.S, District & B
Courts for the District of Colum
JAMES THOMAS REED, )
\
)
Petitioner, )
)
Vv. ) Civil Action No.: 1:19-cv-01563 (UNA)
)
MARK ESPER, )
)
)
Respondent. )
MEMORANDUM OPINION
This matter is before the Court on petitioner’s application to proceed in forma pauperis
and his pro se “mandamus complaint.” Petitioner requests that this Court issue a writ ordering the
Army Board for Correction of Military Records (“ABCMR”) to decide his request for a discharge
upgrade. Petitioner argues that he submitted his application for correction on August 23, 2016,
and that he has not yet received a determination, in contravention of 10 U.S.C. § 557. He does
indicate, however, that he corresponded with the ABCMR on February 17, 2019, and two days
later, he received a response regarding the general timeline for the determination. Petitioner does
not attach the full ABCMR response to the complaint for further evaluation of details or context.
The extraordinary remedy of a writ of mandamus is available to compel an “officer or
employee of the United States or any agency thereof to perform a duty owed to plaintiff.” 28
U.S.C. § 1361. “[M]andamus is ‘drastic’: it is available only in ‘extraordinary situations.’” Jn re
Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (citations omitted). A petitioner bears a heavy burden
of showing that his right to a writ of mandamus is “clear and indisputable.” Jd Only if “(1) 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 the plaintiff,” Thomas v. Holder, 750 F.3d 899, 903 (D.C. Cir. 2014),
is mandamus relief granted. Petitioner addresses none of these elements, and thus fails to meet his
burden. Additionally, this Court has held that mandamus relief is generally inappropriate as it
relates to pending petitions before the ABCMR, given that litigants have the eventual right to
pursue their claims through the Administrative Procedures Act. See Association of Civilian
Technicians, Inc. v. U.S., 601 F. Supp. 2d 146, 157-59 (D.D.C. 2009); see also Bland v. Secretary
of Army, 2007 WL 902302, No. 05-02143 (HHK) (D.D.C. 2007) (citing Levant v. Roche, 384
F. Supp. 2d 262, 271 (D.D.C. 2005)).
Further, in these circumstances, “administrative remedy should be exhausted unless the
party invoking the court's jurisdiction can demonstrate special circumstances.” Jsenbarger v.
Farmer, 463 F. Supp. 2d 13, 25 (citations omitted). Specific factors are relevant in assessing the
exhaustion requirement: “1) the Army's interest in handling internal complaints, 2) the presence
of technical issues of fact, 3) the presence of issues whose resolution depends on interpretation of
military regulations, 4) the Army's interest in construing its own regulations for the sake of
uniformity, and 5) the court's interest in avoiding ruling on unnecessary questions.” Jd. (citations
omitted). Petitioner has not addressed any of these specific factors in support of waiving
exhaustion. Therefore, petitioner must continue to pursue his administrative claim before the
agency, as he has failed to establish the right to mandamus relief or waiver of exhaustion.
For the following reasons, the Court will grant petitioner leave to proceed in forma
pauperis and deny the mandamus complaint. An Order accompanies this Memorandum Opinion.
DATE: June {L,2019 (| GS LO
(es States istrict Judge
tL f 9 shen