Billy R. Tyler v. Epa Administrator

Opinion

FILED JUL 21 2009 UNITED STATES DISTRICT COURT Clerk, U.S. District and Bankruptcy Courts FOR THE DISTRICT OF COLUMBIA

BILLY R. TYLER, ) ) Petitioner, ) ) v. ) Civil Action No. 09 1347 ) EPA ADMINISTRATOR, ) ) Respondent. )

MEMORANDUM OPINION

This matter comes before the Court on review of petitioner's application to proceed in

forma pauperis and his pro se petition for a writ of mandamus. The Court will grant the

application and deny the petition.

Petitioner alleges that he lives on a "contaminated superfund site in Omaha, Nebraska,"

and that he "suffers from arrested mental development due to extreme lead poisoning" caused by

contaminants in the soil. Pet. at 2. He demands "a writ of mandamus compelling respondents to

use the 'superfund' money to remove the diaspora of holocaust oflead contamination off of' the

site. Id. at 1.

Mandamus relief is proper only if"(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff."

Council of and for the Blind of Delaware County Valley v. Regan, 709 F.2d 1521, 1533 (D.C.

Cir. 1983) (en banc). The party seeking mandamus has the "burden of showing that [his] right to

issuance of the writ is 'clear and indisputable.'" Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271,289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)). Where the action petitioner seeks to compel is discretionary, he has no clear right to

relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466

u.s. 602,616 (1984). Petitioner does not establish any of these elements. He fails to demonstrate his clear right

to relief, the respondents' clear duty to expend funds as petitioner requests, and the lack of any

other adequate remedy. Because the petition does not state a claim upon which mandamus relief

may be granted, the petition will be denied.

An Order consistent with this Memorandum Opinion will be issued separately on this

same date.

United States District Judge

Date: 1--' I("b f