FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     November 20, 2007
                      UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



 TODD JAY SCHOENROGGE,

           Petitioner-Appellant,
                                                            No. 07-3145
 v.
                                                    (D.C. No. 07-CV-1032-MLB)
                                                           (Dist. of Kan.)
 KEVIN D. ROONEY,

           Respondent-Appellee.


                              ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


       Petitioner-Appellant Todd Jay Schoenrogge, appearing pro se, files this

appeal following the denial of his request for a writ of mandamus from the

District Court for the District of Kansas. We have jurisdiction under 28 U.S.C. §

1291. Reviewing Mr. Schoenrogge’s filings liberally 1, we conclude that the

       *
            This Order and Judgment is not binding precedent, except under the doctrines of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 Mr. Schoenrogge is proceeding pro se, we review his
pleadings and filings liberally. See Haines v. Kerner, 

, 520-21
                                                                     (continued...)
district court was correct in its findings, and those findings do not constitute an

abuse of discretion. Accordingly, we DENY Mr. Schoenrogge’s request for a

writ of mandamus and AFFIRM the district court’s order of dismissal.

                                I. BACKGROUND

      Mr. Schoenrogge sought a writ of mandamus, pursuant to 28 U.S.C. § 1361,

to compel Kevin D. Rooney, the Director of the Department of Justice (“DOJ”)

Executive Office for Immigration Review, to remove several named employees

for alleged violations of federal law committed at a facility that houses federal

prisoners. 2 Mr. Schoenrogge principally alleged that the employees unlawfully

brought alcoholic beverages onto the facility. Further, Mr. Schoenrogge alleged

that Mr. Rooney was “guilty of the crime of misprision of a felony,” and asked

the district court to “request a full investigation of Mr. Rooney’s conduct.” R.,

Vol. I, Doc. 1 at 3.

      The U.S. Magistrate Judge recommended dismissal, finding the action

frivolous pursuant to 28 U.S.C. § 1915(e) and concluding that Mr. Schoenrogge

failed to establish the necessary factors for issuance of the writ. The district court

agreed and dismissed Mr. Schoenrogge’s action.



      1
       (...continued)
(1972); Howard v. U.S. Bureau of Prisons, 

, 815 (10th Cir. 2007).
      2
             This case is similar to a separate mandamus action Mr. Schoenrogge
brought, Schoenrogge v. Brownback, No. 07-3217, which this Court disposed of
by an order dated November 6, 2007.

                                          -2-
                            II.   DISCUSSION

      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

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, 

, 1206 (10th Cir. 2005). “[W]e

consider de novo whether the legal requirements for such relief are present.”

Marquez-Ramos v. Reno, 

, 479 (10th Cir. 1995).

      Our cases, moreover, have underscored that the action requested must be “a

nondiscretionary, ministerial duty.” Marathon Oil Co. v. Lujan, 

,

500 (10th Cir. 1991); see Carpet, Linoleum & Resilient Tile Layers, Local Union

No. 419 v. Brown, 

, 566 (10th Cir. 1981) (“This . . . oft-cited

ministerial-discretionary dichotomy which permeates the jurisprudence of

mandamus is merely shorthand for the well-taken rule that to the extent a statute

vests discretion in a public official, his exercise of that discretion should not be

controlled by the judiciary.” (footnote omitted)). Because Mr. Schoenrogge has

failed to demonstrate the first two prongs of the mandamus analysis, we need not

address the third issue regarding adequate remedy.




                                          -3-
      As to the first prong, Mr. Schoenrogge contends that he has a clear right to

relief that arises from his status as a U.S. citizen and Mr. Rooney’s status as a

federal government employee. Specifically, Mr. Schoenrogge argues that Mr.

Rooney is required to answer to U.S. citizens, like Mr. Schoenrogge, who in

effect are his employers. Therefore, Mr. Schoenrogge reasons that he has a clear

right to demand that Mr. Rooney act to remove employees who have violated

federal law. We disagree. Such a generalized assertion cannot be a “clear right”

sufficient to be the basis for a mandamus action.

      As to the second prong, Mr. Schoenrogge essentially relies upon the same

rationale, arguing that Mr. Rooney owed him a nondiscretionary duty due to Mr.

Schoenrogge’s U.S. citizenship. The district court properly concluded that Mr.

Schoenrogge’s assertions did not establish that the alleged duties of Mr. Rooney

are clearly ministerial and nondiscretionary.

      As a DOJ official, Mr. Rooney is ultimately subject to the supervision and

control of the Attorney General. See 28 U.S.C. § 509 (with limited exceptions,

vesting in the Attorney General “[a]ll functions of other officers of the

Department of Justice”). Any decision-making authority on the part of Mr.

Rooney that would permit him to remove federal employees from their positions

would have been conferred upon him by the Attorney General. See 

(stating that the Attorney General may authorize the “performance by any other

officer, employee, or agency of the Department of Justice of any function of the

                                          -4-
Attorney General”). And the Attorney General’s responsibility to enforce the law

is a matter of discretion. Cf. United States v. Armstrong, 

, 464

(1996) (“The Attorney General and United States Attorneys retain broad

discretion to enforce the Nation’s criminal laws.” (quotation marks omitted)).

Thus, Mr. Rooney’s alleged refusal to take punitive actions against the employees

here would fall within the grant of discretion delegated to him by the Attorney

General.

      We conclude, as a matter of law, that Mr. Schoenrogge has failed to satisfy

the threshold requirements for mandamus relief and that the district court did not

abuse its discretion in denying the writ. See 

(stating “once a party seeking issuance of a writ of mandamus meets its burden of

showing the prerequisites have been met, a court still exercises its own discretion

in deciding whether or not to issue the writ”). Furthermore, the district court

properly rejected in summary fashion Mr. Schoenrogge’s contentions relating to

Mr. Rooney’s alleged misprision of a felony violations. 3

      3
              For the reasons that we outlined in rejecting Mr. Schoenrogge’s
similar contentions in his mandamus action against Senator Brownback, Mr.
Schoenrogge’s entreaties to the district court and this court to initiate law
enforcement action against Mr. Rooney and to report his alleged criminal conduct
(including supposed violations of 18 U.S.C. § 4) to federal prosecutors are
without legal foundation and, at the very least, out of place in this mandamus
action. See also Brownback, No. 07-3216, at 4 n. 2 (questioning “the notion that
such requests for judicial action are legally cognizable in [Mr. Schoenrogge’s]
mandamus case (if ever)). Furthermore, insofar as Mr. Schoenrogge’s appellate
filings ask this court to initiate similar law enforcement action against Mr.
                                                                         (continued...)

                                          -5-
      Accordingly we AFFIRM the district court’s order of dismissal and DENY

Mr. Schoenrogge’s request for a writ of mandamus.



                                             Entered for the Court

                                             Jerome A. Holmes
                                             Circuit Judge




      3
      (...continued)
Rooney’s subordinates, we likewise decline the request.

                                       -6-