                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 30 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

WILLIAM A. GRAVEN,                               No. 11-16763

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00556-NVW

  v.
                                                 MEMORANDUM*
BARACK OBAMA; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                        Argued and Submitted April 8, 2014
                               Pasadena, California

Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.

       Plaintiff-Appellant William Graven appeals from the district court’s

judgment dismissing this case. Because the parties are familiar with the facts and

procedural history, we repeat only those facts necessary to resolve the issues raised

on appeal. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Graven’s application for a writ of mandamus is without merit for at least two

independent reasons. First, the duty that Graven seeks to enforce is not

“ministerial and so plainly prescribed as to be free from doubt.” R.T. Vanderbilt

Co. v. Babbitt, 113 F.3d 1061, 1065 n.5 (9th Cir. 1997). In his complaint, Graven

makes clear that he seeks relief under the discretionary portion of 25 U.S.C. § 229.

Indeed, the complaint expressly provides that the “Purpose of this Action” is to

compel Defendants “to take the further steps as shall be proper in the opinion of

the President to obtain satisfaction for the injury.” Graven thus attempts to compel

action that is purely discretionary.

      Second, Graven does not demonstrate that “no other adequate remedy is

available.” R.T. Vanderbilt Co., 113 F.3d at 1065 n.5. To the contrary, Graven

was in the midst of pursuing alternative remedies when he filed this lawsuit.

Graven admits in his complaint that, when he filed suit, a related matter was

pending before the Interior Board of Indian Appeals. Moreover, Graven failed to

fully avail himself of tribal court remedies.

      For these reasons, Graven’s application for a writ of mandamus is without

merit. While the district court incorrectly dismissed this case under Federal Rule

of Civil Procedure 12(b)(1), rather than under Rule 12(b)(6), we may affirm on any

basis supported by the record. Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1136 (9th


                                           2
Cir. 2013). Under the circumstances here, “a remand would only require a new

Rule 12(b)(6) label for the same Rule 12(b)(1) conclusion.” Morrison v. Nat’l

Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010). We therefore affirm the judgment

of the district court.1

       AFFIRMED.




       1
         Defendants-Appellees’ Motion to Take Judicial Notice, filed November
15, 2013, is GRANTED. The Motion to Withdraw as Pro Bono Counsel, filed
April 9, 2014, is GRANTED.
                                        3
