FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 30, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
TODD J. SCHOENROGGE,
Plaintiff-Appellant,
v. No. 08-3106
(D.C. No. 6:07-CV-01033-JTM-DWB)
BENTLY M. ROBERTS, JR., (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.
Todd J. Schoenrogge appeals from the district court’s order denying his
petition for a writ of mandamus. He sought the writ pursuant to 28 U.S.C. § 1361
to compel the clerk of the Merit Systems Protection Board (MSPB) to place his
motion to reopen before the MSPB’s judges for a decision. The district court
denied the writ, and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
BACKGROUND
Mr. Schoenrogge was removed from federal service in 2003. He appealed
to the MSPB, which upheld his removal. He then sought review from the Federal
Circuit, which affirmed the MSPB’s decision. Schoenrogge v. Dep’t of Justice,
148 F. App’x 941 (Fed. Cir. 2005) (unpublished).
Mr. Schoenrogge subsequently filed a motion to reopen his proceeding with
the MSPB. He asserts that the clerk “refuse[d] to process” the motion, Petition,
R. doc. 1, at 2, although it appears that the clerk did send him a form letter
denying the motion, see Aplt. Br. at 10. Mr. Schoenrogge filed this mandamus
action seeking to compel the clerk to place his motion before the MSPB’s judges
for a decision.
The district court granted Mr. Schoenrogge leave to proceed in forma
pauperis, but denied his mandamus petition. Acting pursuant to 28 U.S.C.
§ 1915(e)(2), it determined that his action should be dismissed because the
mandamus claim was frivolous.
ANALYSIS
Mandamus relief is available under § 1361 “to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to
the plaintiff.” To obtain a writ of mandamus, a petitioner must show “(1) that
[he] has a clear right to the relief sought, (2) that the respondent has a plainly
defined and peremptory duty to do the action in question, and (3) that no other
-2-
adequate remedy is available.” In re McCarthey, 368 F.3d 1266, 1268 (10th Cir.
2004) (quotations and alterations omitted). “We . . . review de novo the district
court’s legal determination that the conditions for issuing a writ of mandamus
were not satisfied.” Fricke v. Sec’y of Navy, 509 F.3d 1287, 1289 (10th Cir.
2007).
In his brief in this court, Mr. Schoenrogge argues that “[a] form letter from
[the MSPB’s clerk] has never been held to be a valid response to a motion to
reopen.” Aplt. Br. at 10. We do not agree. According to the Federal Circuit, the
clerk of the MSPB has been delegated the authority to respond administratively
on behalf of the Board to petitions to reopen. See Haines v. Merit Sys. Prot. Bd.,
44 F.3d 998, 1000 (Fed. Cir. 1995). 1 Moreover, an employee has no right to
reopening and no right to a decision from the Board adjudicating his request to
reopen his case. Id.; cf. 5 C.F.R. § 1201.118 (providing for reopening on Board’s
own motion).
1
We note that the clerk in that case responded to each of the petitioner’s
three “petitions to reopen” in the same way, with a letter
indicating that (1) the decision in her case had become final, (2) the
Board’s regulations did not provide for a party other than the OPM to
file a petition for reconsideration of a final decision, and (3) while
the Board could reopen an appeal on its own motion at any time, it
had no plans to do so in her case.
Haines, 44 F.3d at 999.
-3-
For the above reasons, Mr. Schoenrogge has failed to demonstrate that he
has a clear right to have the clerk “present” his motion to reopen for a formal
decision by the Board. The district court therefore properly denied his petition
for a writ of mandamus. 2
The judgment of the district court is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
2
Mr. Schoenrogge also argues that he did not send or receive various items
identified by the district court clerk in this case. Aplt. Br. at 17-18. He fails to
substantiate his claim that the district court’s allegedly lax procedures denied him
due process or equal protection of the laws.
-4-