11-2412-cv
 Doyle v. John G. Roberts, Jr., et al.

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 24th day
 of February, two thousand twelve.

 Present:   ROBERT A. KATZMANN,
            DENNY CHIN,
                       Circuit Judges,
            LEE H. ROSENTHAL,
                       District Judge.*

 ________________________________________________

 ROBERT DOYLE,

            Plaintiff-Appellant,

                    v.                                                  No. 11-2412-cv

 JOHN G. ROBERTS, JR., in his capacity as Chief Justice of the United States, SAMUEL
 ANTHONY ALITO, STEPHEN G. BREYER, RUTH BADER GINSBURG, ANTHONY M.
 KENNEDY, ANTONIN SCALIA, SONIA SOTOMAYOR, ELENA KAGAN, CLARENCE
 THOMAS, each in their capacity as an Associate Justice of the Supreme Court of the United
 States,

       Defendants-Appellees.
 _______________________________________________



        *
          The Honorable Lee H. Rosenthal, United States District Court for the Southern District
 of Texas, sitting by designation.
For Plaintiff-Appellant:                   TODD C. BANK, Kew Gardens, N.Y.

For Defendant-Appellee:                    DAVID ESKEW (Varuni Nelson, Gail A. Matthews, on
                                           the brief), Assistant United States Attorneys, of
                                           counsel, for Loretta E. Lynch, United States Attorney
                                           for the Eastern District of New York.


       Appeal from the United States District Court for the Eastern District of New York
(Gleeson, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Robert Doyle appeals from a May 4, 2011 judgment of the United

States District Court for the Eastern District of New York (Gleeson, J.), dismissing Doyle’s

complaint, which was brought against all of the Justices of the United States Supreme Court.

Doyle’s complaint sought a judgment declaring that 28 U.S.C. § 1254(1) violates the United

States Constitution insofar as it provides the Justices with discretion over whether to grant

certiorari petitions. It also sought the issuance of a writ of mandamus directing the Justices to

vacate the denial of a petition for certiorari, and grant review, in Doyle v. Am. Home Prods.

Corp., 

, 168 (2d Cir. 2009), cert. denied, 

(2010). On appeal, Doyle

contends that the district court erred in dismissing his complaint because 28 U.S.C. § 1254(1),

which provides the Justices with discretion over whether to grant certiorari petitions, constitutes

an unconstitutional delegation of legislative power to the judiciary. We presume the parties’

familiarity with the facts and procedural history of this case.

       We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure, taking its factual allegations to be true, and drawing all reasonable

inferences in the plaintiff’s favor. See Mortimer Off Shore Servs., Ltd. v. Fed. Republic of Ger.,

, 113-14 (2d Cir. 2010).

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        We first turn to Doyle’s contention that 28 U.S.C. § 1254(1) is unconstitutional because

it provides unlimited discretion to the Supreme Court over whether to grant certiorari petitions.

Section 1254(1) provides that “[c]ases in the courts of appeals may be reviewed by the Supreme

Court by . . . writ of certiorari granted upon the petition of any party to any civil or criminal case,

before or after rendition of judgment or decree.” Doyle first argues that the decision of whether

to grant a certiorari petition is not an exercise of judicial power. He then argues that because

Congress delegated this power to the Supreme Court without providing any intelligible

principles that would guide and bind the Court in making certiorari decisions, 28 U.S.C. §

1254(1) violates the non-delegation doctrine. We reject Doyle’s argument for substantially the

reasons articulated by the district court in its well-reasoned Memorandum and Order. See Doyle

v. Roberts, 10–CV–2278 (JG), 

(E.D.N.Y. May 4, 2011). In particular, as

noted by the district court:

        The Supreme Court’s “approach to other nonadjudicatory activities that Congress has
        vested either in federal courts or in auxiliary bodies within the Judicial Branch has
        been identical to [its] approach to judicial rulemaking: consistent with the separation
        of powers, Congress may delegate to the Judicial Branch nonadjudicatory functions
        that do not trench upon the prerogatives of another Branch and that are appropriate
        to the central mission of the Judiciary.” Few things are more appropriate to the
        central mission of the judiciary than the high court’s ability under § 1254(1) to
        manage its caseload by selecting from among more than 10,000 petitions each year
        the cases in which Supreme Court review will most assist not only the parties but
        also the lower federal courts, the coordinate branches of government, and the public
        at large.

(quoting Mistretta v. United States, 

, 388 (1989)) (internal citations

omitted) (alteration in original).

        Having determined that 28 U.S.C. § 1254(1) is not unconstitutional, we similarly reject

Doyle’s request for a writ of mandamus. “The common-law writ of mandamus, as codified in 28

U.S.C. § 1361, is intended to provide a remedy for a plaintiff . . . only if the defendant owes him

                                                  3
a clear nondiscretionary duty.” Heckler v. Ringer, 

, 616 (1984) (emphasis added).

Because the decision to grant or deny certiorari is left to the discretion of the Supreme Court,

see, e.g., Heckler v. Edwards, 

, 876 (1984) (referring to “discretionary Supreme

Court review” as the “general rule”), Doyle has not established “a ‘clear and indisputable right’

to [the writ’s] issuance,” Escaler v. U.S. Citizenship & Immigration Servs., 

, 292

(2d Cir. 2009) (internal quotations omitted).

       We have considered Doyle’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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