                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 5 1998
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ACCOUNTABILITY (a.k.a. “BOSS
 EINSTEIN”) BURNS,


          Plaintiff-Appellant,
 v.                                                     No. 98-5069
                                                (D.C. No. 98-CV-249-K (M))
 VETERANS ADMINISTRATION,                              (N.D. Okla.)
 sued as: VA/VARO-Muskogee,
 Muskogee OK 74401, (Judicial Officer
 Tracy),

          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Mr. Burns appeals from an order of the district court denying his

Application for Leave to File Action Under Title VII Without Payment of Fees,

Costs or Security. The district court denied Mr. Burns’ application on the


      *
       After examining appellant’s brief and the 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(f) and 10th Cir. R. 34.1.9.
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Judgment is not binding precedent, except under the doctrines of law of the case,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. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
grounds that his Affidavit of Financial Status reflected sufficient income to afford

the filing fee of a civil action.

        Under 42 U.S.C. § 2000e-5(f)(1), a court may, “[u]pon application by the

complainant and in such circumstances as the court may deem just, . . . authorize

the commencement of [an] action [under this section] without the payment of

fees, costs, or security.” The language of this provision is substantially similar to

that of the broader general statute governing proceedings in forma pauperis, 28

U.S.C. § 1915(a), under which a court may authorize the commencement of “any”

suit “without prepayment of fees or security” by a person who submits an

affidavit stating his or her inability to pay.

       The decision to grant or deny in forma pauperis status under § 1915 lies

within the sound discretion of the trial court. Cross v. General Motors Corp., 721

F.2d 1152, 1157 (8th Cir. 1983), cert. denied, 466 U.S. 980 (1984). The language

of § 2000e-5(f)(1) (“in such circumstances as the court may deem just”) reflects a

similarly discretionary standard for granting a Title VII plaintiff leave to file suit

without payment of fees. Upon review of the documents originally submitted by

Mr. Burns in support of his application, we find no abuse of discretion by the

district court.

       Somewhat troubling is the question of whether this case is properly brought

under Title VII. The section under which Mr. Burns submitted his application for


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leave to file without payment of fees, 42 U.S.C. § 2000e, addresses equal

employment opportunities and discriminatory employment practices. As such, it

does not appear to be the proper vehicle for redress of Mr. Burns’ claims for

compensation from the Veterans Administration for violation of civil rights

stemming from the denial of veterans’ benefits.

      Even liberally construing Mr. Burns’ pro se filings as stating a Bivens type

of action, however, see Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388 (1971), his ability to proceed in forma pauperis still would be governed by

the discretionary standard under 28 U.S.C. § 1915. Thus, the outcome of his

attempt to proceed without payment of fees would not differ, as no abuse of

discretion is evident.

      In addition to appealing the denial of his application to file without

payment of costs, Mr. Burns also brings a “Motion for Immediate Mandamus”

seeking payment to him of a “prosecution fund” in the amount of $10,000,000,

apparently for purposes of launching an investigation into certain rights

violations.

      Mandamus is an extraordinary remedy, United States v. Roberts, 88 F.3d

872, 882 (10th Cir. 1996), and “will issue only in those exceptional cases where

the inferior court has acted wholly without jurisdiction or so clearly abused its

discretion as to constitute a judicial usurpation of power.” In re Kaiser Steel


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Corp., 911 F.2d 380, 387 (10th Cir. 1990). A petitioner for a writ of mandamus

bears the burden of showing that his or her right to the writ is clear and

indisputable. In re Weston, 18 F.3d 860, 864 (10th Cir. 1994) (citing Mallard v.

United States Dist. Court, 490 U.S. 296, 309 (1989)). Mr. Burns has failed to

make any such showing.

      For the above reasons, we AFFIRM the district court’s denial of Mr. Burns’

Application for Leave to File Without Payment of Fees, DENY the petition for

mandamus, and DISMISS the appeal.



      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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