LA 200, John Adams Building, 110 Second Street, S.E.
Washington, D.C. 20540-1999
SARA J. OURSLER,
v. Case No. 98-SN-24 (CV, FM, RP)
THE OFFICE OF THE
UNITED STATES SENATE
SERGEANT AT ARMS,
Before the Board of Directors: Glen D.
Nager, Chair; James N. Adler; Jerry M. Hunter; Virginia A. Seitz,
DECISION OF THE BOARD
The Board has before it a Petition for a Writ
of Mandamus of the Office of the United States Senate Sergeant at
Arms ("SAA") concerning the refusal of the Hearing Officer to dismiss
the above-referenced matter. The Board has carefully reviewed the
petition, the materials filed in support of it, and the materials
filed in opposition to it. The Board has also carefully reviewed
the pertinent orders of the Hearing Officer. Based on this review,
the Board denies the petition.
It is settled that "a writ of mandamus is an
extraordinary remedy, to be reserved for extraordinary situations
. . . ." Gulfstream Aerospace Corp. v. Mayacamus Corp., 485
U.S. 271, 289 (1988) (internal citations omitted). Specifically,
under the law of the judicial circuit to which we are accountable,
"[t]he Petitioner has the burden of establishing that its right
to the issuance of the writ is clear and indisputable, and that
it lacks adequate alternative means to obtain the relief sought."
In re Regents of Univ. of Cal., 101 F.3d 1386, 1387 (Fed.
Cir. 1996) (internal citation omitted), cert. denied sub nom.
Genentech, Inc. v. Regents of Univ. of Cal., 117 S. Ct. 1484
(1997). A writ may properly issue "only when there has been a clear
abuse of discretion or usurpation of judicial authority . . . ."
id., and even then the grant of the petition is a matter for sound
discretion, see Kerr v. United States Dist. Court, 426 U.S.
394, 403 (1976). In the case of a jurisdictional ruling, among other
things, the challenged action must be "so plainly wrong as to indicate
failure to comprehend or refusal to be guided by unambiguous provisions
of a statute or settled common law doctrine. If a rational and substantial
legal argument can be made in support of the questionable jurisdictional
ruling, the case is not appropriate for mandamus . . . ." Formica
Corp v. Lefkowitz, 590 F.2d 915, 921, (C.C.P.A.), cert. denied,
442 U.S. 917 (1979) (quoting American Airlines, Inc. v. Forman,
204 F.2d 230, 232 (3d. Cir.), cert. denied, 346 U.S. 806
(1953)); accord In re Cordis Corp., 769 F.2d 733,
737 (Fed. Cir. 1985).
Under these standards, it is plain that there
is no cause here for the issuance of a writ. The Hearing Officer
has written a thoughtful explication of his reasons for retaining
jurisdiction over this matter; and, while we have no occasion at
this time to address further the substance of the underlying jurisdictional
dispute, the Hearing Officer's reasons are self-evidently anything
but irrational or insubstantial. Moreover, our conclusion that "rational
and substantial legal argument[s]" can be made in support of the
jurisdictional conclusion reached by the Hearing Officer is buttressed
both by the substantive arguments advanced on behalf of the Executive
Director of the Office of Compliance, an officer with significant
and explicit statutory responsibilities under the Congressional
Accountability Act ("CAA"), and by the decision of the Executive
Director to file an amicus brief in order to bring to the
attention of the Hearing Officer the importance of the issues here
to the enforcement of the CAA. In addition, because a writ of mandamus
is addressed to the sound discretion of the Board, we find it significant
that the Hearing Officer relied at least in part on current procedural
rules that were expressly approved by this Board. Finally, it appears
that the matters of concern to the SAA can be adequately protected
on appeal. See Alaska v. United States, 64 F.3d 1352 (9th
Cir. 1995); Pullman Constr. Indus. v. United States, 23 F.3d
1166 (7th Cir. 1994).
The CAA contemplates a streamlined, expeditious
administrative dispute resolution process. The Hearing Officer's
orders reflect a concern with the delay resulting from the barrage
of motions already filed by the SAA. While there is undoubtedly
a role in this process for appropriate writs, the expedited dispute
resolution process contemplated by the CAA would be further frustrated
by the granting of this petition for a writ of mandamus.
For the forgoing reasons, the Board declines
to exercise its discretion to issue a writ of mandamus. The petition
is DENIED. (1)
Issued, Washington D.C. February 24, 1999.