# Donald W. Park v. United States

> District Court, C.D. California · May 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10634030

## Case

- **Court:** District Court, C.D. California
- **Decided:** May 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL

Case No. EDCV 24-844-KK-SPx Date: May 24, 2024
Title:

Present: The Honorable KENLY KIYA KATO, UNITED STATES DISTRICT JUDGE

Noe Ponce Not Reported
Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s):
None Present None Present

Proceedings: (In Chambers) Order to Show Cause Why Action Should Not Be Dismissed
for Lack of Subject Matter Jurisdiction

On April 22, 2024, plaintiff Donald W. Park (“Plaintiff”), proceeding pro se, filed the instant
Petition for Writ of Mandamus (“Petition”). ECF Docket No. (“Dkt.”) 1. Plaintiff seeks an order
requiring defendant United States Secretary of the Navy Carlos Del Toro (“Defendant”) to provide
Plaintiff with an opportunity to appear at an in-person hearing before the Board for Correction of
Naval Records. Id.

Federal courts are courts of “limited jurisdiction” which “possess only that power authorized
by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). Thus, federal courts “have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006). “[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the
court must dismiss the complaint in its entirety.” Id.

A district court has jurisdiction over “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. However, mandamus relief is only available when “(1) the plaintiff’s
claim is clear and certain; (2) the defendant official’s duty is ministerial and so plainly prescribed as
to be free from doubt; and (3) no other adequate remedy is available.” Johnson v. Reilly, 349 F.3d
1149, 1154 (9th Cir. 2003) (internal brackets omitted). If the defendant officer does not have a
“nondiscretionary duty” to act, mandamus relief is unavailable, and dismissal for lack of jurisdiction
is appropriate. See Stang v. IRS, 788 F.2d 564, 565-66 (9th Cir. 1986) (affirming dismissal for lack
of subject matter jurisdiction where defendant officer lacked nondiscretionary duty to act).
Here, Defendant does not have a nondiscretionary duty to provide Plaintiff with an in-
person hearing before the Board for Correction of Naval Records (“Board”). Pursuant to the
applicable federal regulations, when an application for correction is submitted to the Board and
accepted for consideration, a three-member panel reviews the application “to determine whether to
authorize a hearing, recommend that the records be corrected without a hearing, or to deny the
application without a hearing.” 32 C.F.R. § 723.3(e)(1). “When an original application or a request
for further consideration of a previously denied application is denied without a hearing, the Board’s
determination shall be made in writing and include a brief statement of the grounds for denial.” 32
C.F.R. § 723.3(e)(3). The Board, thus, has discretionary power to deny an application without
providing the applicant with a hearing. Hence, mandamus relief is unavailable, and dismissal for lack
of jurisdiction appears to be appropriate. See Stang, 788 F.2d at 566.

Accordingly, Plaintiff is ORDERED TO SHOW CAUSE in writing why this action
should not be dismissed for lack of subject matter jurisdiction. Plaintiff shall file a response to this
Order no later than June 7, 2024.

Plaintiff is expressly warned that failure to timely file a response to this Order will
result in this action being dismissed without prejudice for lack of subject matter jurisdiction
and/or failure to prosecute and comply with court orders. See Arbaugh, 546 U.S. at 514;
FED. R. CIV. P. 41(b).

IT IS SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10634030. Public record. Not legal advice.