                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                    September 6, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court


 JEROM E D AVIS,

               Petitioner - A ppellant,          Nos. 06-3056 and 06-3103
          v.                                             (D. Kansas)
 EN V IR ON M EN TA L PR OTEC TION             (D.C. Nos. 05-CV-3458-RDR
 A G EN CY ,                                       & 06-CV-3049-SAC)

               Respondent - Appellee.




                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.




      Jerome Davis, a state prisoner in Nebraska, appeals from tw o judgments.

The first dismissed his petition under 28 U.S.C. § 1361 for a writ of mandamus

against the Environmental Protection Agency (EPA ) because of the availability of



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
a statutory remedy. The second judgment dismissed a subsequent complaint

seeking the statutory remedy because it failed to state a claim. W e have

jurisdiction under 28 U.S.C. § 1291. W e affirm the first dismissal and reverse the

second.

      M r. Davis filed a petition for a writ of mandamus in the United States

District Court for the District of Kansas on December 6, 2005. The petition

alleged that the EPA had “been negotiating an arrangement” with several

companies that had been found liable “for the contamination of the Superfund Site

in Omaha, Nebraska” but had so far failed to make those parties financially liable

for the site’s decontamination. R. (06-3056) Doc. 1 at 1. M r. Davis requested

that the district court issue an order “to have the ‘E.P.A.’ take the other parties

into Federal Court [and have them] held liable financially for the on-going clean-

up on site,” along with whatever further remedy the district court would deem

just. Id. M r. Davis apparently filed the petition in Kansas because the regional

EPA office responsible for EPA activities in Nebraska is located in Kansas City,

Kansas. The district court ruled that mandamus relief w as not warranted because

M r. Davis had an adequate remedy under the citizen-suit provision of the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. § 9659, which specifically provides for actions compelling

the EPA to perform its duties. It dismissed the petition without prejudice on




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January 27, 2006. M r. D avis filed a timely notice of appeal on February 8, 2006.

The district court granted him leave to proceed in form a pauperis on appeal.

      Five days after filing his notice of appeal, M r. Davis filed a pro se

complaint in district court requesting a declaratory judgment “directing the

Administrator of the ‘E.P.A.’ to take legal action” against the companies; a

preliminary and permanent injunction “to get ‘E.P.A.’ to act”; a temporary

restraining order “making E.P.A. immediately take all said liable & possible

parties to court”; and whatever further relief the court deemed appropriate. R.

(06-3103) Doc. 1 at 2. The district court, stating that the complaint had been

drafted on a prisoner’s “form complaint for seeking relief under 42 U.S.C.

§ 1983,” dismissed the complaint without prejudice because it was a “repetitive

filing of essentially the same claim” as the petition for a writ of mandamus and

therefore “frivolous and abusive” and did not state a claim for relief under

§ 1983. Id. Doc. 3 at 1, 2. M r. Davis filed a timely notice of appeal from this

judgment, and again the district court granted him leave to proceed in forma

pauperis on appeal.

I.    D ISC USSIO N

      A.     Petition for a W rit of M andam us (06-3056)

      “[T]he remedy of mandamus is a drastic one, to be invoked only in

extraordinary situations.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34

(1980). “To be eligible for mandamus relief, the petitioner must establish (1) that

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he has a clear right to relief, (2) that the respondent'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, 398 F.3d 1201, 1206 (10th Cir. 2005) (emphasis added).

W e review de novo the determination whether the factors are met. See id.

      The district court denied M r. Davis’s request for mandamus relief because

such “drastic and extraordinary relief” was not warranted when 42 U.S.C. § 9659

provided a statutory mandamus remedy whose requirements M r. Davis had not

followed. Section 9659(a)(2) provides in relevant part:

      (a) Authority to bring civil actions

      Except as provided in subsections (d) and (e) of this section and in
      section 9613(h) of this title (relating to timing of judicial review),
      any person may commence a civil action on his own behalf—

             (2) against . . . any . . . officer of the United States (including
             the Administrator of the Environmental Protection Agency
             . . .) where there is alleged a failure of the President or of such
             other officer to perform any act or duty under this chapter,
             including an act or duty under section 9620 of this title
             (relating to Federal facilities), which is not discretionary with
             the President or such other officer.

      On appeal M r. Davis states only, “It is Appellant’s opinion that providing a

notice to the E.P.A. Administrator is an inadequate remedy, as after

approximately 4 years” the EPA is still negotiating with the companies

responsible for the polluted site. Aplt. Br. (06-3056) at 3. A writ of mandamus,

M r. Davis argues, is the “only option left” and would provide the same relief as

§ 9659. Id. at 4.

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      Although M r. Davis’s frustration is perhaps understandable, he has not

shown that he has no other adequate remedy. Section 9659 provides the very

remedy M r. Davis seeks. Therefore, we AFFIRM the judgment of the district

court in case number 06-3056.

      B.     Complaint (06-3103)

      The district court stated that M r. Davis’s complaint was “before the court

on a form complaint for seeking relief under 42 U.S.C. § 1983.” R. (06-3103)

Doc. 3 at 1. M r. Davis in fact wrote his complaint on an upside-down “Inmate

Interview Request” form. Id. Doc. 1 at 1. The only apparent reason he did so

was to use the ruled lines the form provided; he crossed out all other w ords on it.

Nor does the complaint itself cite or in any way refer to § 1983. It does, however,

claim that the district court has jurisdiction under 42 U.S.C. § 9659. Construing

M r. D avis’s pro se complaint liberally, see Garcia v. Lemaster, 439 F.3d 1215,

1217 (10th Cir. 2006), we read it as a suit seeking relief under that statute. H e in

fact so argues in his appellate brief.

      It appears that the district court thought that M r. Davis’s complaint could

not be a citizen suit under § 9659 because such a suit must be brought in the

District of Columbia. But venue is not restricted to that district. The venue

provision of § 9659 provides that citizen suits against governmental agencies

“may be brought in the United States District Court for the District of Columbia,”

42 U.S.C. § 9659(b)(2) (emphasis added). “M ay” is permissive, not mandatory.

                                         -5-
Congressional intent on this point becomes even clearer when one considers the

accompanying venue provision for citizen suits against private actors: such suits

“shall be brought in the district court for the district in which the alleged

violation occurred,” id. § 9659(b)(1) (emphasis added). Although no published

opinion specifically addresses this point, we note that citizen suits against the

government have been regularly litigated outside the District of Columbia. See,

e.g., Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990) (CERCLA citizen suits

against the EPA filed in District of Columbia were removed to and decided in the

Southern District of Indiana); City of M oses Lake v. United States, 416 F. Supp.

2d 1015 (E.D. W ash. 2005) (deciding CERCLA suit not brought in District of

Columbia); Worldw orks I, Inc. v. U. S. Dep’t of Army, 22 F. Supp. 2d 1204 (D.

Colo. 1998) (same); Conservation Law Found. of New England, Inc. v. Browner,

840 F. Supp. 171 (D. M ass. 1993) (same).

      Because M r. Davis was not in fact asserting any claims under 42 U.S.C.

§ 1983, and his complaint was not a “repetitive filing of essentially the same

claim” and therefore “frivolous and abusive,” we reverse the judgment of the

district court and remand for further proceedings. W e intimate no view on the

adequacy of M r. Davis’s claim in other respects.




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II.   C ON CLU SIO N

      W e AFFIRM the judgment of the district court in case number 06-3056.

W e REVERSE the judgment of the district court in case number 06-3103 and

REM AND for further proceedings.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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