United States District Court, District of Columbia
HENRY L. KLEIN, et al., Plaintiffs,
STEVEN TERNER MNUCHIN, Defendant.
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Henry Klein, a New Orleans attorney, is exercised by what he
perceives as the abuses of the title-insurance industry. To
address these ills, he filed this pro se suit
seeking a writ of mandamus to compel the Secretary of the
Treasury either to include information on the industry in his
annual reporting to Congress or to declare that title
insurance is not “insurance” under federal law.
The Government has filed a Motion to Dismiss, contending that
mandamus jurisdiction does not exist here. Because this Court
agrees, it will grant the Motion and dismiss the Complaint
without prejudice. It will, however, give Plaintiff an
opportunity to cure this jurisdictional defect by filing an
Amended Complaint within 20 days if he so chooses.
Dodd-Frank Wall Street Reform and Consumer Protection Act
established the Federal Insurance Office within the
Department of the Treasury. See 31 U.S.C. §
313(a). The FIO has the authority to, inter alia,
“monitor all aspects of the insurance industry, ”
“monitor the extent to which traditionally underserved
communities and consumers . . . have access to affordable
insurance products, ” and “develop [f]ederal
policy on prudential aspects of international insurance
matters.” Id. § 313(c)(1)(A), (B), (E).
In addition, it submits an annual report to Congress
“on the insurance industry and any other information as
deemed relevant by the [agency] or requested by
[Congress].” Id. § 313(n)(2).
brings this action for mandamus against Secretary of Treasury
Steven Mnuchin, alleging that the Act requires the Secretary
either to declare that title insurance is not
“insurance” under federal law or to add title
insurance to the FIO's annual reporting. See ECF
No. 1 (Complaint), ¶¶ 5, 42-44. The Secretary has
moved to dismiss for lack of jurisdiction. See ECF
No. 11 (Motion to Dismiss).
the defendant files a Rule 12(b)(1) motion to dismiss, the
plaintiff must demonstrate that the Court indeed has
subject-matter jurisdiction to hear his claims. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
U.S. Ecology, Inc. v. U.S. Dep't of Interior,
231 F.3d 20, 24 (D.C. Cir. 2000). “Because
subject-matter jurisdiction focuses on the court's power
to hear the plaintiff's claim, a Rule 12(b)(1) motion
[also] imposes on the court an affirmative obligation to
ensure that it is acting within the scope of its
jurisdictional authority.” Grand Lodge of Fraternal
Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.
2001). For this reason, “‘the [p]laintiff's
factual allegations in the complaint . . . will bear closer
scrutiny in resolving a 12(b)(1) motion' than in
resolving a 12(b)(6) motion for failure to state a
claim.” Id. at 13-14 (quoting 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1350 (2d ed. 1987)) (alteration in
original). In policing its jurisdictional borders, the Court
must scrutinize the complaint, treating its factual
allegations as true and granting the plaintiff the benefit of
all reasonable inferences that can be derived from the
alleged facts. See Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
only jurisdictional basis invoked in Plaintiff's
Complaint is mandamus. See Compl., ¶¶ 1-2,
22-28. The Court thus begins and ends by evaluating whether
mandamus jurisdiction exists in this case. Mandamus relief is
“drastic” and available “only in
extraordinary situations.” In re Cheney, 406
F.3d 723, 729 (D.C. Cir. 2005) (en banc) (citation
omitted). To establish mandamus jurisdiction, Plaintiff must
demonstrate that (1) he has “a clear right to relief,
” (2) the Secretary has “a clear duty to act,
” and (3) he has “no other adequate remedy
available.” Power v. Barnhart, 292 F.3d 781,
784 (D.C. Cir. 2002). Here Klein's jurisdictional showing
suffers from two independent defects: the Secretary has no
clear duty to act, and there is an adequate alternate remedy.
relevant statutory provision requires the Secretary to
provide a report to Congress “on the insurance industry
and any other information as deemed relevant by the [agency]
or requested by [Congress].” Id. §
313(n)(2). The contours of the insurance industry and the
relevance of additional information are within the
Secretary's discretion absent some additional specific
request from Congress. Mandamus is inappropriate to compel
performance of a discretionary duty. Rather, “the writ
is . . . reserved only for the most transparent violations of
a clear duty to act.” In re Bluewater Network,
234 F.3d 1305, 1315 (D.C. Cir. 2000). If the duty
“depends on a statute or statutes the construction or
application of which is not free from doubt, it is regarded
as involving the character or judgment or discretion which
cannot be controlled by mandamus.” Consolidated
Edison Co. of N.Y. v. Ashcroft, 286 F.3d 600, 605 (D.C.
Cir. 2002) (quoting Wilbur v. United States, 281
U.S. 206, 218-19 (1929)). To the extent Klein seeks, in the
alternative, to have the Secretary declare title insurance
not to be “insurance” under federal l a w,
see Compl., ¶¶ 5, 42-44, he likewise
points to no source of law rendering that a clear duty to
addition, Plaintiff has not demonstrated the absence of an
adequate alternate remedy. There is no reason he could not
bring essentially the same suit under the Administrative
Procedure Act, alleging agency action unlawfully withheld.
See 5 U.S.C. § 706(1). Specifically, Klein
could allege under the APA that Dodd-Frank, by its terms,
requires the Secretary to include title insurance in any
report on the insurance sector. Where there is such an
alternative, mandamus cannot issue. See Fornaro v.
James, 416 F.3d 63, 69 (D.C. Cir. 2005). In so finding,
the Court does not endorse the merits of such APA claim,
which would likely face an uphill climb.
than dismiss the case for lack of jurisdiction, however, the
Court will dismiss only the Complaint. See Ciralsky v.
CIA, 355 F.3d 661, 669-70 (D.C. Cir. 2004) (recognizing
district court had appropriately exercised discretion in
dismissing Complaint but not entire case). It will give
Plaintiff 20 days to file, if he so elects, an Amended
Complaint that permits the Court to exercise jurisdiction.
The Court notes that, although it did not reach the question
of standing in this Opinion, any Amended Complaint setting
out an alternate basis for Plaintiff's claims must also
demonstrate that standing exists to pursue that form of
these reasons, the Court will grant Defendant's Motion to
dismiss the Complaint but allow Plaintiff, if he so chooses,
to file an Amended Complaint by January 24, ...