### UNITED STATESDISTRICT COURT FORTHE DISTRICT OF COLUMBIA JOSEPH H. ZERNIK, ) ) 

### Plaintiff, ) ) 

### v. ) ) 

### U.S. DEPARTMENT OFJUSTICE, ) 

### et al., ) ) 

### Defendants. ) Civil Action No. 09-805 (RJL)

# MEMORAND~NION (June

## 1L, 2009) This matter is before the Court onpro se plaintiffJoseph Zemik'spetition for a writ ofmandamus and plaintiffsmotion to disqualify this Court [Dkt. #3]. For the following reasons, the Court will deny the motion to disqualify and dismiss the petition

sua sponte for failure to state a claim upon which reliefcan be granted. Fed. R. Civ. P. 12(b)(6); Baker v. Dir., 

## us. Parole Comm 'n, 916 F.2d 725, 727 (D.C. Cir. 1990) (district court may dismiss complaintsua sponte ifit is patently obvious that plaintiffcannot prevail on the facts as alleged). Plaintiffspetition centers primarily on events related to the compelled sale ofhis house, as ordered by the Los Angeles Superior Court in August 2007 following contentious litigation over apurchase and sale agreement. (See Pet. at 3-38.) Plaintiff alleges that his civil rights were abused in that proceeding, and he now seeks a writ of mandamus ordering the U.S. Department ofJustice, Federal Bureau ofInvestigation, and Securities and Exchange Commission to investigate alleged frauds committedby Bank of

1America Corporation (as successorto Countrywide Financial Corporation), alleged harassment by the law firm Bryan Cave LLP, and alleged corruption and fraud in the California state and federal courts.) (See generallyPet. at 99-110.) Plaintiffalso seeks a writ ofmandamus ordering investigations into the alleged abuse ofRichard Fine, an attorney imprisoned in Los Angeles County, and into the alleged wrongful imprisonment of 10,000 individuals in the late 1990s in connection with the Rampart Scandal. (Pet. at 96-98.) Finally, plaintiffalso asserts a civil RICO claim pursuant to 18 U.S.C. § 1964(c) and False Claims Act claim pursuant to 31 U.S.c. § 3729 against Bank ofAmerica for alleged conduct related to plaintiffs loss ofhis house and for alleged conductrelated to the nation's subprime mortgage crisis. Atthe outset, the Court addresses plaintiffs motion to disqualifY. Ajudge shall disqualifY himself"in any proceeding in which his impartiality might reasonably be questioned," 28 U.S.C. § 455(a), or in which thejudgehas "personal knowledge of disputed evidentiary facts concerning the proceeding," id. § 455(b)(l), among other circumstances. Plaintiffcontends that this Court's service as Deputy ChiefMinority Counsel for the u.S. House Select "Iran-Contra" Committee warrants recusal here, based

onplaintiffs allegation thatthe Iran-Contra affair was "akey event in the abuse of[Los Angeles] County residents," (Mot. at 1), which plaintiffbriefly identifies in his petition as

In connection with plaintiffs allegations regarding the California state courts, plaintiff also seeks an writ ofmandamus (l) ordering certain Los Angeles Superior Court actions be deemed void and/or vacated, (Pet. at 99-102), (2) ordering that the Grant Deed filed with the Los Angeles County Registrar in connection with plaintiffs former property be deemed void, (Pet. at 108), and (3) ordering Bryan Cave LLP to provide him with information concerning its representation ofCountrywide in the litigation involving plaintiffshouse, (Pet. at 110-112). 2evidence ofwidespread abuse ofLos Angeles residents' civil rights. Because this Court's prior service does not call into doubt the Court's impartiality due to the wholly unrelated nature ofIran-Contra's alleged connectionto this case, and because this Court does nothavepersonal knowledge ofany facts relevant to plaintiffspetition, plaintiffs motion to disqualify will be DENIED. 

### See 

## s.E.C v. 

### LovingSpiritFound. Inc., 392 F.3d 486,493 (D.C. Cir. 2004) ("Recusal is required when a reasonable and informed observer would question thejudge's impartiality."). A writ ofmandamus is "adrastic and extraordinary remedy reserved for really extraordinary causes." 

### Cheney v. 

## u.s. Dist. Court, 542 U.S. 367,380 (2004) (internal quotation marks and citations omitted); 

### see also Doe v. 

### Exxon Mobil Corp., 473 F.3d 345, 353 (D.C. Cir. 2007). The Court's mandamus authority derives from 28 U.S.C. § 1361, and it extends only to "officer[s] or employee[s] ofthe United States or any agency thereof[.]" Further, a writ ofmandamus is available only if"(1) the plaintiffhas a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff." 

### In re Medicare ReimbursementLitig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal citation omitted). A court may issue a writ ofmandamus only if"the duty to be performed is ministerial and the obligationto actperemptory and clearly defined. The law must not only authorize the demanded action, butrequire it; the duty must be clear and undisputable." 

### Shoshone Bannock Tribes v. 

### Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995) (internal citation omitted). Plaintiffspetition fails to seek any writs ofmandamus this Court could permissibly issue. First, this Court cannot review the decisions ofstate courts or direct

3state courtjudicial offers in the performance oftheir duties. See In re Taylor, No. 04- 7070,2004 WL 2009373, at * 1(D.C. Cir. Sept. 9,2004) (per curiam) (denyingpetition for writ ofmandamus "becausethis court has no authority overthe Superior Court ofthe District ofColumbia");In re Carter, No. 92-8033,1992 WL 381041, at *1 (D.C. Cir. Dec. 2,1992) (per curiam) (citing Van Sickle v. Holloway, 791 F.2d 1431, 1436 n.5 (lOth Cir. 1986) (federal appellate courts lack authority to "direct state courts ortheirjudicial officers in the performance oftheir duties")). Similarly, 28 U.S.C. § 1361, by its plain language, does notpermit this Courtto compel action by state officials orprivate entities. And finally, it is well established that this Court cannot orderthe Executive Branchto exercise its prosecutorial discretion to perform an investigation. Heckler v. Chaney, 470 U.S. 821, 831 (l985); Gray v. Bell, 712 F.2d 490,513 (D.C. Cir. 1983). Accordingly, plaintiff's petition for a writ ofmandamus must be dismissed in all respects for failure to state a claim. Plaintiff's civil RICO and False Claims Act claims must also be dismissed. To state a civil RICO claim, aplaintiffmust allege four elements: "(1) conduct (2) ofan enterprise (3) through apattern (4) ofracketeering activity." PyramidSecurities Ltd. v. IBResolution, Inc., 924 F.2d 1114, 1117 (D.C. Cir. 1991) (internal citation omitted). The term "pattern ofracketeering activity" is defined as requiring the commission ofat least twopredicateracketeering offenses over a ten yearperiod. See 18 U.S.C. § 1961(5). Plaintiffalleges seven predicate racketeering offenses to support his claim, including collusion in robbery, mail fraud, and wire fraud. (Pet. at 93.) Each and every of plaintiff's allegedpredicate racketeering offenses, however, relates solely to the

4compelled sale ofplaintiff's house in 2007. (See id.) As such, plaintifffails, at a minimum, to allege apattern ofracketeering activity, as his claims relate to a single alleged scheme, for which he was the sole injuredparty. See W Assocs. Ltd. ex reI. Ave. Assocs. Ltd. v. Mkt. SquareAssocs., 235 F.3d 629,634 (D.C. Cir. 2001) (plaintifffailed to allege a "pattern ofracketeering activity" where plaintiffonly alleges "a single scheme, a single injury, and a single victim"). And finally, as to plaintiff's False Claims Act claim, while "private persons acting on behalfofthe government may sue those who defraud the government and may share in any proceeds ultimately recovered," United States ex reI. J Cooper & Assoc., Inc. v. BernardHodes Group, Inc., 422 F. Supp. 2d 225, 233 (D.D.C. 2006) (internal citation omitted); 31 U.S.C. § 3730(b),pro se plaintiffs

are not qualified to represent the interests ofthe United States in such an action, United States ex reI. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 16 (D.D.C. 2003), aff'd, No. 03-7120, 2004 WL 180264 (D.C. Cir. Jan. 21, 2004), cert. denied, 543 U.S. 820 (2004). Accordingly, plaintiff's civil RICO and False Claims Act claims must also be dismissed for failure to state a claim. Thus, for all ofthe above reasons, the Court will DENYplaintiffs' motion to disqualify and will DISMISS plaintiff'spetition for a writ ofmandamus. An appropriate Orderwill issue with this Memorandum Opinion.

# ~ON United States District Judge

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