FILEn

UNITED STATES DISTRICT coURT MAY 0 ' gm
‘i

FOR THE DISTRICT OF COLUMBIA
C'erkl U.S. '

Ba~k~»pt?fé;‘::t:"@

Michael Smith, )

Plaintiff, g

v. § Civil Action No.

The United States of America et al., § 1  q 

Defendants. §

MEMORANDUM OPINION

Plaintiff Michael Smith has filed an application to proceed without prepayment of fees
and a pro se complaint. The application will be granted and the complaint dismissed.

This complaint against the United States of America, the Equal Employment Opportunity
Commission ("EEOC"), and the EEOC’s acting chairman in his official capacity, invokes as
grounds for bringing this action the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et
seq., the Freedom of Inforrnation and Privacy Acts, 5 U.S.C. §§ 552, 552a ("FOIA/PA"), and
seeks a writ of mandamus. See Complaint at l. Through this action, Smith seeks to reverse the
outcome of litigation he commenced in another court in 2004. Id. 1[ 101 (referring to Smith v.
Washington Suburban Sanitary Commissz`on, Case No. RDB-04-2288 (D, Md.)). That case
resulted in summary judgment for the defendant. Smith v. Washinglon Suburban Sanz'tary
Commission, Civil Actions No: RDB-04-2288, RDB-05-1 153, 2006 WL 4706998, *8 (D.Md.
Oct. 4, 2006). Smith unsuccessfully appealed to the United States Court of Appeals for the
Fourth Circuit and to the United States Supreme Court. See Complaint1[ lOl. Subsequently,

Smith contacted the Department of Justice and the EEOC, neither of which responded to him.

Ia'. As relief, Smith asks this Court to issue orders that reverse and vacate the foregoing judicial
decisions, to issue declarations in his favor on various issues related to the prior litigation, and to
issue mandamus orders compelling the EEOC to do certain things, including to produce certain
documents. Id. 11 I.(A)-(M).

Smith seeks relief that this Court is not empowered to grant. This Court does not have
jurisdiction to reverse or vacate orders issued by the United States District Court for the District
of Maryland, the United States Court of Appeals for the Fourth Circuit, or the Supreme Court of
the United States.

The defendants in this action are immune from suit except where Congress has waived
sovereign immunity. Lane v. Pena, 518 U.S. l87, 192 (l996); United States v. Mz'tchell, 463
U.S. 206, 212 (1983);FD1C v. Meyer, 510 U.S. 471, 484-85 (1994); see also Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (an official capacity suit against an agency head is
equivalent to a suit against the United States). Smith invokes the APA as authority for his
private right of action against the EEOC, but his reliance is misplaced. Review pursuant to the
APA is available only for final agency action, and the EEOC’s determination in Smith’s case did
not constitute a final agency action because it lacked determinative consequences for either party.
Rather, Smith was entitled to, and received, a de novo trial in district court on his employment
discrimination claims. See Georater Corp. v. EEOC, 592 F.2d 765, 768 (4th Cir. 1979).

Smith does not state a claim under the FOIA/PA, as it does not appear that he ever made a
FOIA request for the documents he seeks. Rather, he demands documents through a writ of
mandamus directed to the EEOC. Complaint 1111 I.(F) & (H). The remedy of mandamus "is a

drastic one, to be invoked only in extraordinary circumstances." Allied Chemical Corp. v.

-2_

Dazjlon, Inc., 449 U.S. 33, 34 (1980). lt is available only if "( 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 plaintiff," In re Medicare Reimbursement Litigation, 414 F.E`»d 7, 10 (D.C. Cir. 2005)
(quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)). Smith is not entitled to
mandamus relief for the documents he seeks or for any other relief he seeks, as he has not shown
that "the duty to be performed is ministerial and the obligation to act . . . clear and indisputable,"
as opposed to discretionary, or that there are no other adequate remedies available. Lozada
Colon v. U.S. Dep ’t of State, 170 F.3d 191 (D.C. Cir. 1999) (per curiam) (intemal quotation
marks and citation omitted). Indeed, Smith has already pursued other remedies with respect to
some of his claims, albeit unsuccessfully, and he demonstrates an awareness of the FOIA,
another adequate remedy available to him.

For the reasons stated, this complaint will be dismissed with prejudice. A separate order

r£wl§, 

Date: @7)/\».`/[ .l€”/ 10 10 bilnit&i'§tates District Judge

accompanies this memorandum opinion.

