Kennedy v. Ferro

• Court: District Court, District of Columbia
• Decided: July 23, 2012
• Docket: Civil Action No. 2012-1203
• Status: Published

Opinion

FILED UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUL 2 3 2012 Clerk, U.S. District & Bankruptcy Courts for the District of Columbia

Michael E. Kennedy, ) ) Petitioner, ) ) v. ) ) Civil Action No. 12 1203 Anne S. Ferro, Administrator, ) ) Respondent. )

MEMORANDUM OPINION

This matter, brought prose, is before the Court on its initial review ofthe petition for a

writ of mandamus and application for leave to proceed in forma pauperis. The Court finds that

petitioner has failed to state a claim for such extraordinary relief. It therefore will grant the in

forma pauperis application and dismiss the petition pursuant to 28 U.S.C. § 1915(e)(2) (requiring

dismissal of an action upon a determination that the complaint, among other grounds, fails to

state a claim upon which relief can be granted).

Petitioner, a resident of Parsonsburg, Maryland, seeks issuance of the writ to prohibit the

Federal Motor Carrier Safety Administration from "engaging in prohibited and/or discriminatory

hiring practices .... " and to compel its filling of seven advertised job vacancies. Pet. at 1-2.

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. The petitioner bears a heavy burden of showing that his right to a writ of

mandamus is "clear and indisputable." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)

(citation omitted). "It is well-settled that a writ of mandamus is not available to compel

discretionary acts." Cox v. Sec'y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases).

3 Furthermore, mandamus relief is not available when another adequate remedy exists to address

the underlying claim.

The instant petition provides no basis for issuing a writ of mandamus because (1) an

agency's hiring decisions are discretionary acts, see Burkhart v. WMATA, 112 F.3d 1207, 1217

(D.C. Cir. 1997) (holding that "decisions concerning the hiring, training, and supervising of ...

employees are discretionary in nature, and thus immune from judicial review"); and (2) "Title

VII of the Civil Rights Act of 1964, as amended, 'provides the exclusive judicial remedy for

claims of discrimination in [covered] federal employment,"' Kizas v. Webster, 707 F.2d 524, 542

(D.C. Cir. 1983) (quoting Brown v. General Service Admin., 425 U.S. 820, 835 (1976)),

including claims based on an agency's failure to hire. See 42 U.S.C. § 2000e-2(a)(l) ("It shall be

an unlawful employment practice for an employer ... to fail or refuse to hire ... any individual .

. .because of [his] race, color, religion, sex, or national origin[.]"). Hence, this case will be

dismissed. A separate order accompanies this Memorandum Opinion.

Date: July /.J. ~ , 2012