FILED UNITED STATES DISTRICT COURT MAY - 4 2009 FOR THE DISTRICT OF COLUMBIA NANCY MAYER WHITTINGTON. CLERK U.S. DISTRICT COURT
William McKenna, ) ) Petitioner, ) ) v. ) Civil Action No. 09 0806 ) Joan Clark, Director, U.S. Marshals ) Service, ) ) Respondent. )
MEMORANDUM OPINION
Petitioner, William McKenna, a prisoner serving sentence pursuant to a state conviction
in Florida, has filed an application to proceed without pre-payment of fees and a petition for
mandamus under 28 U.S.c. § 1361. The application to proceed in forma pauperis will be
granted and the petition will be dismissed because it does not state a claim upon which
mandamus relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
Background
On January 8, 2004, a United States Probation Officer filed a petition alleging that
McKenna had violated his term of supervised release by committing new offenses, offenses
which McKenna admitted committing. Compl. at 2 & Ex. A. On the basis of that petition, the
United States District Court for the Middle District of Florida issued a violator arrest warrant for
McKenna. Id., Exs. B & C. The violator warrant has been lodged as a detainer against
McKenna's release from state custody, but has not yet been executed by service on him.
McKenna's petition for a writ of mandamus seeks an order compelling the Director of the United
, ~\ 3 States Marshals Service) to execute the violator warrant by serving it on him, and arguing that the
respondent has a statutory and common law duty to execute the warrant "forthwith," id. at 4, and
characterizing his claim as "constitutional," id. at 6.
Discussion
I Applicability 0/28 Us.c. § 1915(b)
The Prison Litigation Reform Act ("PLRA") limited a prisoner's ability to proceed
without paying the court filing fee in appeals and "civil actions" - a term not defined in the
statute - and imposed certain requirements for proceeding without paying the full filing fee in
advance. See 28 U.S.C. § 1915(b). Petitioner, a prisoner, contends that his petition for
mandamus is not a civil action within the meaning of § 1915(b), and not subject to its
requirements. The United States Court of Appeals for the District of Columbia Circuit has not
squarely addressed whether, or when, a petition for mandamus under § 1361 is subject to
§ 1915(b)'s requirements. However, it made such a determination with respect to a petition for a
writ of prohibition, "hold[ing] that because [the] petition includes compensatory and punitive
damages claims under the Privacy Act ... that are civil in nature, ... the fee requirements of the
PLRA apply." In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997). In so ruling, the court adopted
the rationale used by other circuits in determining when a petition for mandamus is subject to the
provisions of § 1915(b). Id. (citing Madden v. Myers, 102 F.3d 74 (3d Cir. 1996); Martin v.
United States, 96 F.3d 853 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (lOth Cir. 1996);
and In re Nagy, 89 F.3d 115 (2d Cir. 1996)). The predominant view reflected in those cases is
) The petition mistakenly identifies the Director of the United States Marshals Service as Joan Clark, but it is really John Clark.
2 that a petition for a writ of mandamus is not a stand-alone action, but a procedural step in aid of
an underlying litigation akin to an interlocutory appeal or a contempt proceeding against a
witness. Martin, 96 F.3d at 854. Therefore, "where the underlying litigation is criminal, or
otherwise of the type that Congress did not intend to curtail, the petition for mandamus need not
comply with the PLRA." Madden, 102 F.3d at 77. See also, In re Smith, 114 F.3d at 1250
(discussing Martin, 96 F.3d 853, and noting that every circuit to address the question had decided
that petitions for habeas corpus were not civil actions for purposes of the PLRA filing fee
requirements).
Applying the rationale used in the decisions relied on in the Smith decision, and aided by
two other logically consistent decisions by circuit courts of appeal, In re Stone, 118 F.3d 1032
(5th Cir. 1997) and In re Tyler, 110 F.3d 528 (8th Cir. 1997), this court determines that because
the petition in this case was filed in aid of underlying criminal litigation, the PLRA filing fee
does not apply. Accordingly, the application to proceed in forma pauperis will be granted
without requiring the prisoner to comply with the requirements of § 1915(b).
II Action for Mandamus
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 (1980). Only
"exceptional circumstances" warranting "a judicial usurpation of power" will justify issuance of
the writ. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (internal
quotation marks omitted)); see also Doe v. Exxon Mobil Corp., 473 F.3d 345, 353 (D.C. Cir.
2007) (stating that mandamus is "an extraordinary remedy reserved for really extraordinary
cases") (internal quotation marks and citation omitted). Mandamus is available only if"(I) the
3 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 plaintiff." In re Medicare Reimbursement Litigation, 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. us. Dep't a/State, 170 F.3d 191 (D.C. Cir. 1999) (internal quotation marks and citation omitted).
The petition does not, and on these facts cannot, establish either that petitioner has a clear
right to the relief requested or that the respondent has a clear duty to perform a ministerial,
clearly defined, and peremptory act. Petitioner's argument ignores the federal regulation that
authorizes a violator warrant to be lodged as a detainer in exactly the circumstances that pertain
here.
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FILED UNITED STATES DISTRICT COURT MAY - 4 2009 FOR THE DISTRICT OF COLUMBIA NANCY MAYER WHITTINGTON. CLERK U.S. DISTRICT COURT
William McKenna, ) ) Petitioner, ) ) v. ) Civil Action No. 09 0806 ) Joan Clark, Director, U.S. Marshals ) Service, ) ) Respondent. )
MEMORANDUM OPINION
Petitioner, William McKenna, a prisoner serving sentence pursuant to a state conviction
in Florida, has filed an application to proceed without pre-payment of fees and a petition for
mandamus under 28 U.S.c. § 1361. The application to proceed in forma pauperis will be
granted and the petition will be dismissed because it does not state a claim upon which
mandamus relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
Background
On January 8, 2004, a United States Probation Officer filed a petition alleging that
McKenna had violated his term of supervised release by committing new offenses, offenses
which McKenna admitted committing. Compl. at 2 & Ex. A. On the basis of that petition, the
United States District Court for the Middle District of Florida issued a violator arrest warrant for
McKenna. Id., Exs. B & C. The violator warrant has been lodged as a detainer against
McKenna's release from state custody, but has not yet been executed by service on him.
McKenna's petition for a writ of mandamus seeks an order compelling the Director of the United
, ~\ 3 States Marshals Service) to execute the violator warrant by serving it on him, and arguing that the
respondent has a statutory and common law duty to execute the warrant "forthwith," id. at 4, and
characterizing his claim as "constitutional," id. at 6.
Discussion
I Applicability 0/28 Us.c. § 1915(b)
The Prison Litigation Reform Act ("PLRA") limited a prisoner's ability to proceed
without paying the court filing fee in appeals and "civil actions" - a term not defined in the
statute - and imposed certain requirements for proceeding without paying the full filing fee in
advance. See 28 U.S.C. § 1915(b). Petitioner, a prisoner, contends that his petition for
mandamus is not a civil action within the meaning of § 1915(b), and not subject to its
requirements. The United States Court of Appeals for the District of Columbia Circuit has not
squarely addressed whether, or when, a petition for mandamus under § 1361 is subject to
§ 1915(b)'s requirements. However, it made such a determination with respect to a petition for a
writ of prohibition, "hold[ing] that because [the] petition includes compensatory and punitive
damages claims under the Privacy Act ... that are civil in nature, ... the fee requirements of the
PLRA apply." In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997). In so ruling, the court adopted
the rationale used by other circuits in determining when a petition for mandamus is subject to the
provisions of § 1915(b). Id. (citing Madden v. Myers, 102 F.3d 74 (3d Cir. 1996); Martin v.
United States, 96 F.3d 853 (7th Cir. 1996); Green v. Nottingham, 90 F.3d 415 (lOth Cir. 1996);
and In re Nagy, 89 F.3d 115 (2d Cir. 1996)). The predominant view reflected in those cases is
) The petition mistakenly identifies the Director of the United States Marshals Service as Joan Clark, but it is really John Clark.
2 that a petition for a writ of mandamus is not a stand-alone action, but a procedural step in aid of
an underlying litigation akin to an interlocutory appeal or a contempt proceeding against a
witness. Martin, 96 F.3d at 854. Therefore, "where the underlying litigation is criminal, or
otherwise of the type that Congress did not intend to curtail, the petition for mandamus need not
comply with the PLRA." Madden, 102 F.3d at 77. See also, In re Smith, 114 F.3d at 1250
(discussing Martin, 96 F.3d 853, and noting that every circuit to address the question had decided
that petitions for habeas corpus were not civil actions for purposes of the PLRA filing fee
requirements).
Applying the rationale used in the decisions relied on in the Smith decision, and aided by
two other logically consistent decisions by circuit courts of appeal, In re Stone, 118 F.3d 1032
(5th Cir. 1997) and In re Tyler, 110 F.3d 528 (8th Cir. 1997), this court determines that because
the petition in this case was filed in aid of underlying criminal litigation, the PLRA filing fee
does not apply. Accordingly, the application to proceed in forma pauperis will be granted
without requiring the prisoner to comply with the requirements of § 1915(b).
II Action for Mandamus
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 (1980). Only
"exceptional circumstances" warranting "a judicial usurpation of power" will justify issuance of
the writ. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (internal
quotation marks omitted)); see also Doe v. Exxon Mobil Corp., 473 F.3d 345, 353 (D.C. Cir.
2007) (stating that mandamus is "an extraordinary remedy reserved for really extraordinary
cases") (internal quotation marks and citation omitted). Mandamus is available only if"(I) the
3 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 plaintiff." In re Medicare Reimbursement Litigation, 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. us. Dep't a/State, 170 F.3d 191 (D.C. Cir. 1999) (internal quotation marks and citation omitted).
The petition does not, and on these facts cannot, establish either that petitioner has a clear
right to the relief requested or that the respondent has a clear duty to perform a ministerial,
clearly defined, and peremptory act. Petitioner's argument ignores the federal regulation that
authorizes a violator warrant to be lodged as a detainer in exactly the circumstances that pertain
here. That is, where a prisoner is serving a new sentence in a state or local institution, a violation
warrant may be placed against him as a detainer, and after the regional commissioner for the
United States Parole Commission makes a dispositional record review of the violator warrant,
the regional commissioner may decide to let the detainer stand and consider it again at a later
date. See 28 C.F.R. § 2.47(a)(2), (c)(3). In addition, the Supreme Court has found no
constitutional fault with the practice of lodging an unexecuted violator warrant for possible later
service where the prisoner was serving a sentence for a new offense. See Moody v. Daggett, 429
U.S. 78 (1976). Where, as here, the prisoner's present confinement was based on his conviction
for a new offense and not the outstanding parole violator warrant, issuance of the parole violator
warrant and lodging the detainer did no more than express an intention by the parole authority to
4 defer consideration of revocation to a later time. See id at 86-87. In Moody, the Court
concluded that
even after completion of the ... sentences [for the new offense] the Commission retains full discretion to dismiss the [violator] warrant or decide, after hearing, that petitioner's parole need not be revoked. If revocation is chosen, the Commission has power to grant, retroactively, the equivalent of concurrent sentences and to provide for unconditional or conditional release upon completion of the subsequent sentence. ... Thus, deferral of the revocation decision does not deprive petitioner of any such opportunity; nothing in the statute or regulations gives him any "right" to force the decision of the Commission at this time.
Id at 87-88 (citations omitted). The Court added that
there is a practical aspect to consider, for in cases such as this, in which the parolee admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified notwithstanding the violation. This is uniquely a "prediction as to the ability of the individual to live in society without committing antisocial acts." Morrissey [v. Brewer, 408 U.S. 471,] 480 [1972] .... In making this prophecy, a parolee's institutional record can be perhaps one of the most significant factors. Forcing decision immediately after imprisonment would not only deprive the parole authority of this vital information, but since the other most salient factor would be the parolee's recent convictions, ... a decision to revoke parole would often be foreordained. Given the predictive nature of the hearing, it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate at the expiration of the parolee's intervening sentence.
Id at 89.
In the face of the lawful authorization of the precise practice of which petitioner
complains, petitioner cannot establish either that he has a clear right to the relief he requests or
that the respondent has a clear duty to execute the violator warrant by serving him now as
opposed to later. Accordingly, the petition for a writ of mandamus will be dismissed for failure
to state a claim upon which relief may be granted against this respondent. 28 U.S.C.
§ 1915(e)(2)(B)(ii).
5 A separate order accompanies this memorandum opinion.
uUted States District Judge