Rosenberg v. Williams, Esq. et al

Filing 6

ORDER GRANTING 2 Motion for Leave to Proceed in forma pauperis and DISMISSING COMPLAINT, WITHOUT PREJUDICE, AND WITH LEAVE TO AMEND COMPLAINT ON OR BEFORE MAY 5, 2014 - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER , Plaintiff's request to proceed in forma pauperis is granted. The instant complaint is dismissed, without prejudice, and with leave to file an amended complaint as set forth above, except that the FTCA and LSCA claims are dismissed with prejudice and plaintiff may not include these claims in the amended complaint. In order for this action to continue, plaintiff must file an amended complaint NO LATER THAN May 5, 2014. The amended complaint must be captioned, "Amended Complain t," and shall bear the same docket number as this Order. For plaintiff's convenience, a copy of instructions on "How to Amend Your Complaint" is attached. No summonses shall issue at this time, and all further proceedings shall b e stayed. If Plaintiff fails to comply with this Order within the time allowed, the complaint will be dismissed with prejudice and judgment shall enter against him. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from th is order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of th is Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff. The closure of this case shall be held in abeyance pending plaintiff's compliance with this Order. SO ORDERED by Judge Dora Lizette Irizarry on 4/3/2014. (Attachments: # 1 Appendix) (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
ZEV ROSENBERG, pro se,
Plaintiff,

MEMORANDUM AND ORDER
14-CV-185(DLI)(LB)

-againstJULIE L. WILLIAMS, Esq., Chief Counsel of the
United States Office of Comptroller of the Currency;
ERIC M. THORSON, Esq., Inspector General of the
United States Treasury Department; and RICHARD
K DELMAR, Esq., Counselor of the Inspector
General of the United States Treasury Department,
Defendants.
---------------------------------------------------------------X
DORA L. IRIZARRY, United States District Judge:
Pro se plaintiff Zev Rosenberg filed the above-captioned complaint and request for
mandamus relief on January 8, 2014. Plaintiff’s request to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915 is granted. For the reasons set forth below, the complaint is dismissed, with
leave to file an amended complaint no later than May 5, 2014.
The Complaint
The submission is entitled “Complaint for Declaratory Relief in the Nature of
Mandamus” and it seeks “declaratory and mandatory relief, authorized by the Declaratory
Judgment Act, . . . and the Administrative Procedure Act.” (Compl. ¶ 1, Dkt. Entry No. 1.) The
named defendants are Julie L. Williams, Chief Counsel of the United States Office of the
Comptroller of the Currency (“OCC”); Eric M. Thorson, the Inspector General of the United
States Department of the Treasury; and Richard K. Delmar, Counsel to the Inspector General of
the United States Department of the Treasury.

Plaintiff states that he is owed money by an unspecified “N.A. bank.” (Compl. ¶ 4.) He
does not indicate the nature of the entitlement, although he describes it as a “serious financial
dispute with the bank.” (Compl. ¶ 7.) He alleges: “Subsequent to not receiving the money from
the bank, the Plaintiff requested in an application to the Office of Comptroller of the Currency’s
legal department for it to be adjudicated expeditiously.” (Id.) He does not identify the type of
application. He states further that he is entitled to support in processing the application under the
Federal Trade Commission Act and the Legal Services Corporation Act.

(Compl. ¶ 11.)

Plaintiff alleges that he initially applied “directly to attorneys of Consumer Law at the OCC legal
department starting May 26, 2009” and continued to communicate with them through February
14, 2013. (Compl. ¶ 7.) “On January 20, 2012, Plaintiff’s counsel started having problems
negotiating with one of the OCC attorneys in resolving the problem with the bank.” (Compl.
¶ 8.) Plaintiff alleges that, when “this particular OCC attorney refused to communicate with
Plaintiff’s attorney,” his attorney approached defendants Williams, Chief Counsel of OCC, and
Thorson and Delmar of the Inspector General’s Office of the United States Treasury. (Id.)
Plaintiff complains that his attorney failed to adjudicate his application to Defendants in a timely
fashion, and, thus deprived him of certain benefits. (Id.)
Plaintiff does not include any documentation or a case number from the OCC complaint
process or indicate whether he received a written response from the OCC or if he pursued any
administrative appeals. He nonetheless claims that he “has exhausted all administrative remedies
available and has determined that no adequate remedies exist.” (Compl. ¶ 9.) He alleges that
“Defendants owe Plaintiff the duty to act upon his application processing his requests to assist
him [to] receive money owed by an N.A. bank to the Plaintiff and have unreasonably failed to
perform that duty.” (Compl. ¶ 12.)

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Discussion
In reviewing the complaint, the Court is mindful that “[a] document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks and citations omitted). If a liberal reading of the complaint
“gives any indication that a valid claim might be stated,” this Court must grant leave to amend
the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, Section
1915(e)(2)(B) of Title 28 of the United States Code requires a district court to dismiss a case if
the court determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to
give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957), overruled in part on other grounds, Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Id. (quoting Twombly, 550 U.S. at 555)).
District courts have “original jurisdiction in 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

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owed to the plaintiff.” 28 U.S.C. § 1361. “[M]andamus is an extraordinary remedy that is
‘granted only in the exercise of sound discretion.’” Miller v. French, 530 U.S. 327, 340 (2000)
(citing Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 373 (1955)); see also Appalachian
States Low-Level Radioactive Waste Comm’n v. O'Leary, 93 F.3d 103, 112 (3d Cir. 1996)
(noting that the remedy can only be granted “where a legal duty is positively commanded and so
plainly prescribed as to be free from doubt”). An applicant must satisfy three conditions before
the writ may issue: first, he must have “no other adequate means to attain the relief he desires,”
second, he must show that his right to the writ is “clear and indisputable,” and third, the issuing
court must be satisfied that the writ is appropriate under the circumstances. Stein v. KPMG, LLP,
486 F.3d 753, 759-60 (2d Cir. 2007) (citing Cheney v. United States Dist. Court, 542 U.S. 367,
380-81 (2004)).
The OCC is a bureau within the Department of the Treasury that is charged with
“assuring the safety and soundness of, and compliance with laws and regulations, fair access to
financial services, and fair treatment of customers by” the national banks. 12 U.S.C. § 1(a).
Among other regulatory functions, it provides a mechanism for filing customer complaints
against banks regulated by the OCC. See http://www.helpwithmybank.gov/complaints/ indexfile-a-bank-complaint.html. Complaints are to receive a written response. Thereafter, customers
who are dissatisfied with the initial response from the OCC may file an appeal with the OCC’s
Customer Assistance Group, and, subsequently, with the OCC Ombudsman.

See

http://www.helpwithmybank.gov/complaints/file-appeal/complaints-file-appeal.html.
In this case, plaintiff has failed to show that defendants have failed to perform a plainlydefined and nondiscretionary duty. He states that he filed an application with the OCC’s “legal
department,” but does not state whether he followed the OCC complaint procedure or indicate

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whether he received the initial written response or pursued agency appeals. He alleges a breakdown in communication between his unidentified counsel and “one of the OCC attorneys,” and
counsel’s subsequent attempt to involve defendants Williams, Thorson, and Delmar. However,
plaintiff does not identify any duty owed to him by the unidentified OCC attorney, the Chief
Counsel of the OCC, or by any individuals at the Office of the Inspector General of the United
States Treasury that would warrant mandamus relief.
To the extent plaintiff believes that he is entitled to review of the agency’s decision
pursuant to the Administrative Procedure Act (“APA”), he must establish that he has exhausted
all available administrative remedies. 5 U.S.C. §§ 702, 704; Howell v. I.N.S., 72 F.3d 288, 291
(2d Cir. 1995) (“[A] party may not seek federal judicial review of an adverse administrative
determination until the party has first sought all possible relief within the agency itself.”).
In light of plaintiff’s pro se status, plaintiff is granted leave to amend the complaint to
state grounds justifying mandamus relief or review under the APA. He must provide details
concerning his bank transaction that underlies his complaint, including the identity of the bank,
and the application he filed with the OCC, including any written decisions he has received and
subsequent procedural acts.
The Court has considered whether the complaint states any other grounds for relief.
Plaintiff cites the Federal Trade Commission Act, (“FTCA”) and the Legal Services Corporation
Act (“LSCA”). It is unclear how either of these federal statutes would apply to plaintiff’s
dispute with an unspecified “N.A. bank” or his subsequent application with the OCC. The
FTCA created the Federal Trade Commission, which prohibits unfair or deceptive trade practices
by persons, partnerships, or corporations. It specifically excludes the regulation of banks, which
are regulated by other agencies, including, in the case of national banks, the OCC. 15 U.S.C.

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§ 45(a)(2) (excluding banks and savings and loans from the jurisdiction of the Federal Trade
Commission); 12 U.S.C. § 1(a) (describing the functions of the OCC). The LSCA established a
non-profit government organization, the Legal Services Corporation, and authorized it to
distribute funds appropriated by Congress to local grantee organizations “for the purpose of
providing financial support for legal assistance in noncriminal proceedings or matters to persons
financially unable to afford legal assistance.” Legal Services Corp. v. Velazquez, 531 U.S. 533,
536 (2001) (quoting 42 U.S.C. § 2996b(a)). Neither statute provides for a private cause of
action. See Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir. 1974) (“[T]he
provisions of the Federal Trade Commission Act may be enforced only by the Federal Trade
Commission. Nowhere does the Act bestow upon either competitors or consumers standing to
enforce its provisions.”); Shahid v. Brooklyn Legal Services Corp., 114 Fed. Appx. 35, 36, 2004
WL 2579204, at *1 (2d Cir. 2004) (“[T]he LSC Act does not provide a private right of action.”)
Accordingly, plaintiff’s claims, if made pursuant to the FTCA or the LSCA, fail to state a claim
on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). Moreover, it appears that, even if
granted leave to amend his complaint in connection with these claims, such amendment would
be futile. Accordingly, plaintiff’s FTCA and LSCA claims are dismissed with prejudice.
Conclusion
Plaintiff’s request to proceed in forma pauperis is granted. The instant complaint is
dismissed without prejudice and with leave to file an amended complaint as set forth above,
except that the FTCA and LSCA claims are dismissed with prejudice and plaintiff may not
include these claims in the amended complaint. In order for this action to continue, plaintiff
must file an amended complaint no later than May 5, 2014. The amended complaint must be
captioned, “Amended Complaint,” and shall bear the same docket number as this Order. For

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plaintiff’s convenience, a copy of instructions on “How to Amend Your Complaint” is attached.
No summonses shall issue at this time, and all further proceedings shall be stayed. If Plaintiff
fails to comply with this Order within the time allowed, the complaint will be dismissed with
prejudice and judgment shall enter. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good faith and, therefore, in forma pauperis
status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
SO ORDERED.
Dated: Brooklyn, New York
April 3, 2014
____________/s/_________________
DORA L. IRIZARRY
United States District Judge

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