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MESINA v. SCHACHT
September 22, 2005.
ROMAN CHRISTOPHER MESINA, Plaintiff,
ALAN SCHACHT, Defendant.
The opinion of the court was delivered by: RICHARD ROBERTS, District Judge
In this mandamus action, plaintiff seeks an order to compel
defendant to "file a proper oath of office affidavit." Complaint
at 1. Defendant moves for summary judgment.*fn1 Upon
consideration of the parties' submissions and the entire record,
the Court finds no basis for issuing a writ of mandamus and
therefore will grant defendant's motion.
The writ of mandamus is an extraordinary remedy 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 necessary prerequisites for this court to exercise its
mandamus jurisdiction are that `(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.'" Swan v. Clinton, 100 F.3d 973, 977 n. 1 (D.C. Cir.
1996) (quoting American Cetacean Soc'y v. Baldrige,
768 F.2d 426, 433 (D.C. Cir. 1985), rev'd on other grounds sub nom., Japan Whaling Ass'n v.
American Cetacean Soc'y, 478 U.S. 221 (1986)). The Court's
mandamus power extends only to ministerial duties of public
officials, i.e., those duties that "admit? of no discretion,
so that the official in question has no authority to determine
whether to perform the duty." Swan v. Clinton, 100 F.3d at 977.
Defendant is a Special Agent of the Internal Revenue Service
subject to the oath requirement of all government employees.
See 5 U.S.C. § 3331. Plaintiff asserts that defendant's oath of
office is invalid because the officer who administered the oath,
Stephen L. Zachany, was not authorized to perform that duty.
Defendant has demonstrated that as Director Representative,
Zachany was duly authorized to administer the oath. See
Defendant's Reply at 3-5;*fn2
cf. Defendant's Motion for
Summary Judgment, Declaration of Pat S. Genis, Ex. A. Under the
An employee of an Executive agency designated in
writing by the head of the Executive agency, or the
Secretary of a military department with respect to an
employee of his department, may administer (1) the
oath of office required by section 3331 of this
title, incident to entrance into the executive
branch; or (2) any other oath required by law in
connection with employment in the executive branch.
5 U.S.C.A. § 2903(b). Plaintiff has not credibly refuted
defendant's evidence that establishes the agency's proper
delegation of authority to administer oaths. See Reply
attachments (Order of the Secretary of the Treasury; Delegation
Order). He therefore has not established his clear right to
relief or defendant's clear duty to act. The application to issue
a writ of mandamus is denied. A separate Order accompanies this
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