Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
Kemp v. Rice
May 17, 2007
WILLIAM-FREDERICK KEMP, JR., PETITIONER,
CONDOLEEZZA RICE, RESPONDENT.
The opinion of the court was delivered by: John D. Bates United States District Judge
In this action for a writ of mandamus, petitioner seeks to compel the Secretary of State to issue a "Certificate of Loss of U.S. citizenship" pursuant to 8 U.S.C. § 1481(a)(6). Am. Compl. at 1. Respondent moves pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) to dismiss the complaint. Based upon the parties' submissions and the entire record, the Court will grant respondent's motion pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted.*fn1
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 necessary prerequisites for [the] 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." Id., 100 F.3d at 977.
Here, the writ is available only if petitioner can show first that he comes within the following statutory provision.
A person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality . . . [by] making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.
8 U.S.C. § 1481(a)(6). Petitioner, who is incarcerated in Michigan, does not refute respondent's argument that he has not demonstrated his compliance with the foregoing provision or any other applicable provision for renouncing his citizenship or nationality. See Memorandum of Points and Authorities in Support of Respondent's Motion to Dismiss at 4-5, 7-9. Nor does he contest respondent's assertions that he has named the wrong respondent and that "any action by the Attorney General [the proper respondent] pursuant to [the foregoing statute] is discretionary, not ministerial." Id. at 9. For all ...
Buy This Entire Record For