Graf v. Gonzales

MEMORANDUM ** Appellant’s motion to reinstate this appeal is granted. The court has received appellant’s proof of payment of the filing and docketing fees in the district court. A review of appellant’s response to the court’s order to show cause indicates that the questions raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam) (stating standard). The extraordinary remedy of mandamus is only appropriate to compel a federal official to perform a duty if: “(1) the plaintiffs claim is clear and certain; (2) the defendant official’s duty to act is ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.” Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir.1994) (internal quotations and citations omitted). The district court’s determination as to whether the three-part mandamus test is satisfied is a question of law, which we review de novo. See Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986) citing United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 , 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984). Appellant’s petition for a writ of mandamus in the district court sought to compel the government to commence an investigation and grand jury proceeding to investigate alleged criminal misconduct. The district court correctly concluded that the extraordinary remedy of mandamus relief was not appropriate to compel the relief sought by appellant. *642 Accordingly, we summarily affirm the district court’s judgment. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.