Schoenrogge v. Brownback , 255 F. App'x 307 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TOD D JAY SCHO ENROG GE,
Plaintiff-Appellant,
v. No. 07-3216
(D.C. No. 07-CV-1021-JTM )
SAM BROW NBACK, (D . Kan.)
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
Plaintiff-Appellant Todd Jay Schoenrogge, appearing pro se, appeals the
dismissal of his mandamus action by the District Court for the District of Kansas.
W e have jurisdiction under 28 U.S.C. § 1291. Reviewing M r. Schoenrogge’s
filings liberally, 1 we conclude that the district court correctly held that M r.
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1
Because M r. Schoenrogge is proceeding pro se, we review his pleadings
and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
Schoenrogge failed to meet two of the legal prerequisites for mandamus relief.
Accordingly, we D EN Y M r. Schoenrogge’s request for a writ of mandamus and
A FFIR M the district court’s order of dismissal.
I. BACKGROUND
M r. Schoenrogge invoked 28 U.S.C. § 1361 to request an order directing
U.S. Senator Sam Brownback “to call for the investigation and prosecution” of
certain Department of Justice (“DOJ”) employees who “violated federal laws as
alleged in [Plaintiff’s] July 17, 2006 letter to M r. Brownback’s office.” R., Vol.
I, Doc. 1, at 2. The magistrate judge, after granting leave to proceed in forma
pauperis, recommended dismissal under 28 U.S.C. § 1915(e)(2) on the grounds of
frivolousness because M r. Schoenrogge could not establish two of the
prerequisites to mandamus relief: a clear duty on the part of defendant, and a
clear right in plaintiff to the relief sought. M r. Schoenrogge filed objections to
the magistrate judge’s decision. The district court, however, adopted the
magistrate judge’s reasoning and dismissed the action. The court also denied M r.
Schoenrogge’s motion to reconsider its decision. M r. Schoenrogge timely
appealed.
II. D ISC USSIO N
Section 1361 grants district courts authority “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. Grant of mandamus relief is a matter of
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judicial discretion, but a plaintiff must first show eligibility by establishing “(1)
that he has a clear right to relief, (2) that the [defendant’s] duty to perform the act
in question is plainly defined and peremptory, and (3) that he has no other
adequate remedy.” Rios v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005). “[W ]e
consider de novo whether the legal requirements for such relief are present.”
M arquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995). Our cases,
moreover, have underscored that the action requested must be “a
nondiscretionary, ministerial duty.” M arathon Oil Co. v. Lujan, 937 F.2d 498,
500 (10th Cir. 1991).
M r. Schoenrogge has presented nothing that suggests the investigation of
third party criminal conduct is owed to him here. On appeal he argues that the
refusal to pursue an investigation “violated my Constitutional rights to a Federal
workforce free from corruption and criminals.” Aplt. Br. at 2C. Such a
generalized assertion is not a “clear right” sufficient to be the basis for a
mandamus action.
Separately, and most significant to the district court, M r. Schoenrogge
failed to establish a duty on the part of Senator Brownback to initiate an
investigation. On appeal M r. Schoenrogge argues that Senator Brow nback’s
membership on the Senate Judiciary Committee gives him “a clear duty to
investigate criminal activity in the [DOJ]” and that 18 U .S.C. § 4 establishes a
duty “to report violations of federal laws to the appropriate legal authorities.”
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Aplt. Br. at 2D. As the district court held, even if Senator Brownback had a duty
to call for an investigation, such a duty would be discretionary and beyond the
reach of mandamus. See, e.g., Powell v. Katzenbach, 359 F.2d 234, 235 (D.C.
Cir. 1965) (holding that writ of mandamus against A ttorney General would not lie
because the question of whether to institute prosecution is discretionary).
M r. Schoenrogge’s argument under 18 U.S.C. § 4 also is unavailing. 2
W hile § 4 makes it a crime to conceal or fail to make known the commission of a
felony, it applies only to those “having knowledge of the actual comm ission of a
felony.” 18 U.S.C. § 4. The only basis for Senator Brownback’s alleged
knowledge is the letter M r. Schoenrogge w rote to him. Accusations against third
2
W ith reference to his misprision allegations, M r. Schoenrogge asked
the district court to “seek the criminal prosecution of M r. Brow nback,” R., Vol. I,
Doc. 1, at 2, and, more specifically, “to report the criminal conduct of [Senator
Brownback] to the appropriate law enforcement authorities with a
recommendation that those authorities seek criminal prosecution.” Id., Doc. 8, at
2. Further, M r. Schoenrogge “request[ed] that the record in this matter be
forwarded to the Ethics Committee of the U.S. Senate with a recommendation that
proceedings ensue to remove [Senator Brownback] from his position . . . based on
his violation of criminal laws.” Id. at 2-3. On appeal, M r. Schoenrogge
essentially makes the same requests of this court. Aplt. Br. at 2J, 2K-2L, 3A, 4A.
M r. Schoenrogge offers no argument, nor cites to any legal authority, to support
the notion that such requests for judicial action are legally cognizable in his
mandamus case (if ever), which purports to seek judicially-mandated action by
Senator Brownback, not independent actions by the courts. Accordingly, in the
first instance, M r. Schoenrogge has not established the foundation for our review.
See, e.g., Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995);
Fed. R. App. P. 28(a)(9)(A) (argument “must contain” appellant’s “contentions
and the reasons for them, with citations to the authorities . . . on which appellant
relies”). Furthermore, under the circumstances of this case at the very least, w e
believe that such requests for judicial action are entirely out of place.
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parties in a letter are insufficient to provide knowledge of the actual commission
of a felony, and therefore cannot create a duty. See United States v. Baez, 732
F.2d 780, 782 (10th Cir. 1984) (holding that an element of § 4 is “full
knowledge” that a felony had been committed).
Because M r. Schoenrogge can establish neither a “nondiscretionary” duty
nor a “clear right” to demand an investigation or prosecution, the district court
properly dismissed this case as frivolous under § 1915(e)(2)(B). Accordingly w e
AFFIRM the district court’s order and DENY M r. Schoenrogge’s request for a
writ of mandamus.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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