Id. USProtect, as a private corporation, is not an officer of the United States and is not subject to a writ of mandamus under 28 U.S.C. § 1361. See Carman v. Richardson et al., 357 F. Supp. 1148, 1157 (D. Vt. 1973).4 Therefore, the Complaint against USProtect should be dismissed for lack of subject matter jurisdiction.

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). If Plaintiffs cannot show their eligibility for mandamus relief, 28 U.S.C. § 1361 will not provide subject matter jurisdiction. Chaudry v. Chertoff, No. 06-1303, 2006 WL 2670051, at *2 (D. Minn. Sept. 18, 2006), citing Castillo, 445 F.3d at 1060.

Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010); Ass'n des Eleveurs de Canards et D'Oies du Quebec v. Harris, 79 F. Supp. 3d 1136, 1140 (C.D. Cal. 2015). In bringing this action to stop the NLRB from prosecuting the unfair labor complaint, the Hotel relies on three purported sources of subject-matter jurisdiction—general federal question jurisdiction (28 U.S.C. § 1331), general commerce clause jurisdiction (28 U.S.C. § 1337), and the Mandamus Act (28 U.S.C. § 1361). (Dkt.1 at 3-4, ¶¶ 10 -12).

Heckler v. Ringer, 466 U.S. 602, 616 (1984). Thus, jurisdiction under 28 U.S.C. § 1361 only “‘exists when a plaintiff has a clear right to relief, a defendant has a clear duty to act and no other adequate remedy is available.”’ Pit River Home & Agr.

(internal quotations omitted). More importantly, the D.C. Circuit has ruled expressly that, absent a separate statute providing a cause of action or substantive rights, 28 U.S.C. § 1361 does not provide an independent basis for federal jurisdiction. See Mead Corp. v. United States, 652 F.2d 1050, 1052 (D.C. Cir. 1981).

”’ Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992) (citation omitted). Plaintiff relies upon Congress’s grant of jurisdiction over actions in the nature of mandamus, 28 U.S.C. § 1361, but that statute does not constitute a waiver of sovereign immunity. See, e.g., Pit River Home & Agric.

Edison Co. v. Ashcroft, 286 F.3d 600, 605 (D.C. Cir. 2002). Although the Mandamus Act provides that “‘[t]he district court shall have jurisdiction of 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,’” West v. Jackson, 538 F. Supp. 2d 12, 21-22 (D.D.C. 2008) (quoting 28 U.S.C. § 1361), “[j]urisdiction over actions ‘in the nature of mandamus’ under § 1361 . . . is strictly confined.” In re Cheney, 406 F.3d at 729.

(internal quotations omitted). More importantly, the D.C. Circuit has ruled expressly that, absent a separate statute providing a cause of action or substantive rights, 28 U.S.C. § 1361 does not provide an independent basis for federal jurisdiction. See Mead Corp. v. United States, 652 F.2d 1050, 1052 (D.C. Cir. 1981).

See 841 F. Supp. 2d at 132-33. Case 1:17-cv-00450-CKK Document 9 Filed 05/30/17 Page 17 of 32 10 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, that jurisdiction “is strictly confined,” In re Cheney, 406 F.3d at 729. A “court may grant mandamus relief ‘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.

(ECF No. 1, p. 2). The Mandamus Act, 28 U.S.C. § 1361, vests district courts with “original 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.” Id.