Jenson v. Huerta

Filing 6

MEMORANDUM DECISION AND ORDER It is therefore ORDERED, that the Plaintiff's Petition for a Writ of Mandamus (Dkt. 2 ) is DENIED. It is further ORDERED this action dismissed pursuant to F. R. Civ. P. 12(h)(3). It is further ORDERED, that Plai ntiff's Application for Leave to Proceed In Forma Pauperis (Dkt. 1 ) is DENIED as MOOT. It is further ORDERED, that the Clerk close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TRACY JENSON,
Case No. 2:17-cv-00221-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
MICHAEL HUERTA,
Defendant.

INTRODUCTION
On May 25, 2017, the Clerk of the Court conditionally filed Plaintiff Tracy
Jenson’s Petition for Writ of Mandamus subject to later review by the Court to determine
whether he is entitled to proceed under 28 U.S.C. § 1915 (Dkt. 3). Plaintiff filed his
Petition without the assistance of counsel. Because Plaintiff requests to proceed in forma
pauperis, the Court conducted an initial review of his Petition under 28 U.S.C. §
1915(e)(2). Having reviewed the record, and otherwise being fully informed, the Court
finds that Plaintiff’s claims are subject to dismissal because the Court lacks jurisdiction to
enter the relief proposed.
BACKGROUND
According to the Petition, Plaintiff complains that the Federal Aviation
Administration (the “FAA”) mismanaged over $200 million in pay raises intended for Air
Traffic Controllers. As a result, Plaintiff alleges that nearly 15,000 Controllers received

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marginal overpayments over many years, while approximately 160 Controllers, himself
included, were substantially underpaid during the same period. According to Plaintiff,
this error was due to the FAA’s failure to timely implement raises for some Controllers,
which was exacerbated by an incorrect calculation of those Controllers’ base pay under a
new pay system. Plaintiff argues that the FAA administrator has a nondiscretionary duty
to recover overpayments and correct underpayments to Federal employees. As such,
Plaintiff petitions this Court for a Writ of Mandamus ordering the FAA Administrator to
recover and redistribute wages among the affected Air Traffic Controllers.
LEGAL STANDARD
Once an action has been conditionally filed pursuant to 28 U.S.C. § 1915, the
Court will conduct an initial review. See 28 U.S.C. § 1915(e)(2). The Court must dismiss
an action or any portion thereof if it: (1) is frivolous or malicious; (2) fails to state a claim
upon which relief can be granted; or (3) seeks monetary relief from a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii). Further, “[i]f the court
determines at any time that it lacks subject matter jurisdiction, the court must dismiss the
action.” Fed. R. Civ. P. 12(h)(3).
Because Plaintiff is proceeding pro se, the Petition must be liberally construed,
and Plaintiff must be given the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000). Additionally, if the Petition can be saved by amendment, Plaintiff
should be notified of the deficiencies and provided an opportunity to amend. See Jackson.
v. Carey, 353 F.3d 750, 758 (9th Cir. 2003). A dismissal without leave to amend is

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improper unless it is beyond doubt that the Petition “could not be saved by any
amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).
ANALYSIS
In this case, Plaintiff seeks to recover lost wages from the FAA, and asks that the
Court order the FAA Administrator to restore his lost wages by recovering and
redistributing pay raises and base pay amounts erroneously paid out to other Controllers.
Plaintiff has previously filed “at least thirty administrative and judicial claims against
various parties and entities” on essentially the same facts as he raises here. Jenson v.
Carr, No. C11-1222-RSL, 2012 WL 2190881 at *1 (W.D. Wash. June 14, 2012). This
includes at least one case against the FAA. See, e.g., Jenson v. FAA, No. CV-10-0234-CI,
2011 WL 2491428 (E.D. Wash. June 22,2011). Plaintiff previously filed an action in this
District, seeking judgment against individuals involved with the National Air Traffic
Controllers Association for failing to correct flaws in a collective bargaining agreement
negotiated with the FAA. See Jenson v. Mellody, No. 2:10-cv-00493-LMB, 2011 WL
3679142 (D. Idaho August 23, 2011). Plaintiff alleged that this failure contributed to the
FAA’s failure to correctly calculate Plaintiff’s base pay. Id. In two related actions,
Plaintiff sought to bring claims against lawyers and judges involved in prior federal
actions, brought by the Plaintiff, which resulted in adverse decisions on similar claims.
See Jenson v. U.S. Dep’t. of Justice, No. 2:11-cv-00218-LMB; Jenson v. Baskir, et al.,
No. 2:11-cv-00219-LMB. As part of that previous round of litigation, the magistrate
judge found that

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Jenson appears to be engaging in abusive litigation tactics through his multiple
frivolous filings. Jenson’s stated goal in all of his lawsuits is the same. However,
because of the meritorious rulings against him, none of the cases he has filed or
may file will accomplish his goal.
Jenson v. Mellody, No. 2:10-cv-00493-LMB at *5. In that case, the magistrate dismissed
Plaintiff’s claims as barred by the doctrine of claim preclusion, and ordered that he be
subject to a pre-filing order. Id. As such, Plaintiff was “enjoined from filing any further
action, pleading, documents, or letters against NATCA, or former and current NATCA
employees or officers regarding lost wages, promotions, or pay schemes” without leave
from this Court. Id.
Here, Plaintiff has filed an action against the FAA and thus is not subject to the
pre-filing order. However, he is still subject to initial review of his claim under
1915(e)(2(B). As such, the Court must dismiss his Petition if it “(1) is frivolous or
malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks
monetary relief from a defendant who is immune from such relief.” See 28 U.S.C. §
1915(e)(2)(B)(i-iii). Further, the Court must dismiss his Petition if it lacks subject matter
jurisdiction over the action. Fed. R. Civ. P. 12(4)(3).
1. Subject Matter Jurisdiction
“The district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief under
Section 1361 “is an extraordinary remedy and is available to compel a federal official to
perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's

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duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt,
and (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084
(9th Cir. 2003); see also Heckler v. Ringer, 466 U.S. 602, 616, (1984) (“The commonlaw writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of relief. . . .”). A District Court
lacks jurisdiction to order mandamus relief where the Petitioner has access to other
adequate and available remedies. See Perez v. Idaho Falls Sch. Dist. No. 91, No. 4:15-cv00019, 2016 WL 1032790 at *5 (D. Idaho, March 15, 2016) (“the mandamus statute does
not provide this Court with jurisdiction because there are other adequate and available
remedies.”).
Plaintiff has failed to articulate either a clear and certain claim or a plainly
prescribed nondiscretionary duty owed him by the Administrator. See Kildare, 325 F.3d
at 1084. Plaintiff alleges that the FAA Administrator has a nondiscretionary duty (1) to
recover overpayments made to nearly 15,000 Controllers and (2) to redistribute the
recovered payments to the 160 Controllers to compensate them for lost wages. He argues
that this duty is founded in the FAA Administrator’s obligations under 5 U.S.C. § 23012302, as adopted by FAA regulations. 1 The statute Plaintiff refers to, however, simply

1

Under 49 U.S.C. § 40122(g), the FAA is exempt from the provisions of 5 U.S.C. §§ 2301-2302,
except for § 2302(b) relating to whistleblower protection. Plaintiff alleges that the FAA has incorporated
§§ 2301 and 2302 “word for word” into its own personnel management system. See Pl.’s Br. at 3. For the
purposes of this motion, the Court will take this allegation as true. See Resnick, 213 F.3d at 447.

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lays out the principles of the government’s merit-based pay system, outlines prohibited
personnel practices, and instructs that a designee “shall, pursuant to the authority
otherwise available under this title, take any action . . . [the designee] determines is
necessary to ensure that personnel management is based on and embodies the merit
system principles.” 5 U.S.C. §§ 2301-2302. To the extent Plaintiff alleges a claim that the
FAA has failed to abide by its merit system principles or engaged in prohibited personnel
practices, he does not allege the necessary facts or applicable legal standard to support
such a claim. Instead, the bulk of his allegations consist of nothing more than conclusory
statements, which are insufficient to show a clear and certain claim.
Further, mandamus is appropriate only when a plaintiff has identified a
nondiscretionary and ministerial duty owed to him by a federal official. Kildare, 325 F.3d
at 1084. Plaintiff asks the Court to find that the Administrator has a nondiscretionary duty
to take specific action to recover and redistribute overpayment of wages and bonuses.
Yet, according to the authority cited by the Plaintiff, the Administrator does not have any
obligation to act at all, unless he determines that action is necessary. See, e.g., 5 U.S.C. §
2301(c). Thus, mandamus is not an appropriate remedy for Plaintiff to achieve the relief
he seeks, unless such relief is specifically prescribed by some other statutory or
regulatory scheme. See Barron v. Reich, 13 F.3d 1370, 1376 (9th Cir. 1994) (“While
mandamus may not be used to impinge on an official’s legitimate use of discretion, even
in an area generally left to agency discretion, there may well exist statutory or regulatory

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standards delimiting the scope or manner in which such discretion can be exercised.”)
(internal quotations omitted).
Plaintiff does not identify any such statutory or regulatory standards. As such, the
Administrator’s nondiscretionary and ministerial duty to collect and redistribute the
overpayment of wages is neither “plainly prescribed” nor “free from doubt.” Kildare, 325
F.3d at 1084. Plaintiff argues that the Improper Payments Elimination and Recovery
Improvement Act of 2012 (IPERIA) mandates that agencies recover any overpayment
made to federal employees. See 31 U.S.C. § 3321 note (IPERIA, Pub. L. 112-238, Jan.
10, 2013). The Court finds no support for such a mandate in the text of the Act. Nor does
that Act’s “allusion” to the correction of underpayments plainly prescribe a statutory duty
to recover and redistribute wages in the manner suggested by the Plaintiff.
Finally, Plaintiff cannot show that he lacks any other adequate remedy. “The
general principle which governs proceedings by mandamus is, that whatever can be done
without the employment of that extraordinary remedy, may not be done with it. It only
lies when there is practically no other remedy.” Ex parte Rowland, 104 U.S. 604, 617
(1881). Here, Plaintiff’s multiple previous lawsuits demonstrate that not only was there
an available and adequate proceeding through which Plaintiff could pursue his claims,
but that he in fact availed himself of that proceeding. Although Plaintiff did not obtain the
relief he sought through his prior lawsuits, this does not render the remedy afforded either
inadequate or unavailable. At issue is whether Plaintiff had “adequate means to attain the

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desired relief,” not whether the desired relief was obtained. See In re Ozenne, 841 F.3d
810, 816 (9th Cir. 2016).
Further, the appropriate recourse to an adverse judgment is direct appeal, not
mandamus. See id. at 815 (“Procedurally, a writ of mandamus cannot substitute for
timely appeal.”). Where Plaintiff has failed to timely appeal the adverse determination of
his claims for relief, he cannot instead seek to challenge them through mandamus. See
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943) (“[Mandamus] may not be used
merely as a substitute for the appeal procedure prescribed by the statute.”). Like in
Ozenne, the Plaintiff here “filed a mandamus petition seeking precisely the same relief”
he could have sought on appeal of his prior lawsuits. 814 F.3d at 816. Because the
Plaintiff had access to other adequate and available remedies, the Court lacks jurisdiction
to order mandamus relief. Perez, No. 4:15-cv-00019, 2016 WL 1032790 at *5.
Although it is conceivable that Plaintiff could amend his Petition such that he
meets the first two requirements for mandamus, no conceivable amendment would
change the fact that Plaintiff had alternative adequate remedies, and indeed availed
himself of those remedies. His lack of success in pursuing the relief he seeks does not
justify the extraordinary use of mandamus, particularly where he failed to pursue his
previous claims upon direct appeal. For that reason, the Court will order this action
dismissed without leave to amend.

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2. Frivolousness
Because the Plaintiff is proceeding pro se in this action, the Court must construe
his Petition liberally, and give him the benefit of the doubt. See Resnick, 213 F.3d at 447.
Although the Court will dismiss this action for lack of subject matter jurisdiction, and
thus does not need to reach the question of whether the claim was frivolous, the facts
underlying the claim certainly support such a finding. The Plaintiff has previously
engaged in vexatious litigation in this District, such that he was subject to a pre-filing
order on these same claims, as brought against different defendants. Jenson v. Mellody,
No. 2:10-cv-00493-LMB at *5. The magistrate judge in that action held that the Plaintiff
had engaged in abusive litigation techniques and made multiple frivolous filings. Id. This
Court later denied a request by the Plaintiff to remove the pre-filing order, and a request
to file a new action against the defendants in that case, finding again that his claims
lacked merit. See Orders, Jenson v. Mellody, No. 2:10-cv-00493-LMB (Dkt. 40, 42).
Plaintiff brings essentially the same claims in this action, and again the Court has found
he cannot possibly succeed. For these reasons, there are sufficient grounds to find that
Plaintiff’s Petition is frivolous, and due to be dismissed.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Plaintiff’s Petition
for a Writ of Mandamus (Dkt. 2) is DENIED.

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IT IS FURTHER ORDERED, that this action be dismissed pursuant to F. R.
Civ. P. 12(h)(3).
IT IS FURTHER ORDERED, that Plaintiff’s Application for Leave to Proceed
In Forma Pauperis (Dkt. 1) is DENIED as MOOT.
IT IS FURTHER ORDERED, that the Clerk close this case.

DATED: November 13, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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