* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 21 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETER V. SMILDE,

Plaintiff-Appellant,

v. ALEXIS M. HERMAN, Secretary, U.S. Department of Labor; USA; UNITED STATES DEPARTMENT OF LABOR, Defendants-Appellees. No. 99-1217 (D.C. No. 99-Z-245) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Peter V. Smilde appeals the district court’s sua sponte dismissal of his complaint for lack of subject matter jurisdi ction under Fed. R. Civ. P. 12(h)(3). This court, exercising jurisdiction purs uant to 28 U.S.C. § 1291, vacates the district court’s order and judgment of dismissal and remands with instructions.

BACKGROUND In his complaint, Smilde alleges he is a Colorado r esident and was employed as a paralegal by the Private Industry Cou ncil (PIC), an Oregon nonprofit agency, under the Older American Community Service Employment Program (OACSEP). OACSEP provides federal funds fo r the creation and subsidization of part-time, community service jobs for low-income Americans over age fifty-four. See 42 U.S.C. §§ 3056-56i. It is administered by the United States Department of Labor (DOL) through contracts with nonprofit organizations. Before making a payment toward the cost of an OACSEP program, the Secretary of Labor is required to “assure” thatemployed persons shall be paid wages which shall not be lower than w hichever is the highest of (i) the minimum wage which would be appl icable to the employee under the Fair Labor Standards Act of 1938 . . ., (ii) the State or local minimum wage for the most nearly comparable covered1 Previously, the district court ordered a review of the complaint pursuant

to 28 U.S.C. § 1915(e)(2)(B) to determine if the co mplaint was frivolous or malicious, failed to state a claim on which relief may be granted, or sought monetary relief against a defendant who is immune f rom such relief. The court, however, did not base its dismissal on that provisi on. -3- employment, or (iii) the prevailing rates of pay fo r individuals employed in similar public occupations by the same employer. 42 U.S.C. § 3056(b)(1)(J). Proceeding pro se, Smilde filed suit claiming that PIC’s pay scale did not comply with § 3056(b)(1)(J), in that he was paid a minimum wage of $4.75 an hour but others performing the same work were pa id $14.96 an hour. Alleging that he had exhausted his administrative remedies, he sought an order compelling the Secretary of the DOL to enforce Smilde’s interp retation of § 3056(B)(1)(J)(iii) by requiring PIC to pay him $9 ,686.00 in back pay. Smilde claimed that the district court had jurisdiction under 28 U.S.C. § 1361 (the Mandamus and Venue Act), and § 1331 (federal questi on jurisdiction). The district court, on its own motion and before is suing a summons to defendants, reviewed its subject matter jurisdictio n. It concluded that its jurisdiction could arise only under § 1361, determi ned that mandamus was not appropriate, and entered an order dismissing the co mplaint under Fed. R. Civ. P. 12(h)(3). 1-4-

I. STANDARD OF REVIEW Applying “liberal rules of pleading, particularly w here a party proceeds pro se,” this court reviews de novo a dismissal forlack of subject matter jurisdiction, accepting as true the complaint’s unc ontroverted factual allegations.
See Sac & Fox Nation of Okla. v. Cuomo , Nos. 97-6317, 98-6212, 1999 WL 811669, *2, *4 (10th Cir. Oct. 12, 1999) (discussin g dismissal under Fed. R. Civ. P. 12(b)(1)). It is a federal court’s duty to revi ew pleadings for jurisdictional defects. See Maier v. United States Envtl. Protection Agency , 114 F.3d 1032, 1036 (10th Cir. 1997). In weighing the advisability of a sua sponte dismissal based on a complaint alone, however, the court mustkeep in mind that a plaintiff with an arguable claim is ordinarily accorded notic e of a pending dismissal to alert him to the legal theory underlying [a] challe nge, and enable him meaningfully to respond by opposing the motion to d ismiss on legal grounds . . . so as to conform with the requirement s of a valid legal cause of action. This adversarial process also cry stallizes the pertinent issues and facilitates appellate review o f a trial court dismissal by creating a more complete record of the case. Neitzke v. Williams , 490 U.S. 319, 329-30 (1989) (citations omitted) ( comparing a dismissal under 28 U.S.C. § 1915(d), the precurso r to § 1915(e)(2), with one under Rule 12(b)(6)). “[S]ua sponte dismissals without prior notice or opportunity to be heard are hazardous. . . . [U]nl ess the defect is clearly incurable a district court should grant the plaintiff leave t o amend, allow the parties to argue the jurisdictional issue, or provide the plai ntiff with the opportunity to-5-

discover the facts necessary to establish jurisdiction.” Joyce v. Joyce , 975 F.2d 379, 386 (7th Cir. 1992) (quotations and citations omitted). This court has previously held that a sua sponte di smissal under Rule 12(b)(6) is only proper when “it is patently obviou s that the plaintiff could not prevail on the facts alleged, and allowing him an o pportunity to amend his complaint would be futile.” Hall v. Belmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (quotation omitted). It has also permitted d ismissal of a pro se claim “if the plaintiff cannot make a rational argument on th e law and facts in support of [his] claim.” Whitney v. New Mexico , 113 F.3d 1170, 1172-73 (10th Cir. 1997) (quotations omitted). The same principles apply to a sua sponte dismissal for lack of subject matter jurisdiction.
II. DISCUSSION In the instant case, the sufficiency of the jurisdi ctional allegations must be examined in light of the relief sought: an order r equiring the Secretary to perform what Smilde asserts is a statutorily-required duty. This type of relief is authorized by the Mandamus Act and Venue Act, 28 U. S.C. § 1361, and also the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06. See Hernandez-Avalos
v. INS , 50 F.3d 842, 844 (10th Cir. 1995). These “two st atutes are . . . merely different means of compelling an agency to take act ion which by law it is required to take.” Id. at 844 (quotation omitted). “‘A mandatory injunct ion issued under-6-

the APA is essentially in the nature of mandamus. Thus, jurisdiction for its issuance can be based on either § 1361 [mandamus ju risdiction] or § 1331 [federal question jurisdiction] or both.’” Id. at 845 (quoting Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown , 656 F.2d 564, 566 (10th Cir. 1981)). “The APA provides that any person suffering legal w rong because of agency action, or adversely affected or aggrieved b y agency action within the meaning of a relevant statute, is entitled to judic ial review thereof . . . . As the Supreme Court has recognized, the APA establishes a strong presumption in favor of reviewability of agency action .” McAlpine v. United States , 112 F.3d 1429, 1432 (10th Cir. 1997) (quotation omitted). In contrast, mandamus is a drastic remedy which wil l issue only in exceptional circumstances. See Pindus v. Fleming Companies , 146 F.3d 1224, 1226 (10th Cir. 1998). Because of its unique natur e, we have evaluated a district court’s jurisdiction over a mandamus request in an anomalous manner. “‘[T]he test for jurisdiction [under § 1361] is whether man damus would be an appropriate means of relief.’” Marquez-Ramos v. Reno , 69 F.3d 477, 479 n.3 (10th Cir. 1995) (quoting Carpet, Linoleum & Resilient Tile Layers , 656 F.2d at 567) (further quotation omitted). As a result, a failur e to demonstrate entitlement to relief may preclude jurisdiction.2 Because the issue is not properly framed on appeal, we make no

determination whether the holding of Steel Co. , 523 U.S. at 89, affects established case law on the jurisdictional characte r of the mandamus elements. We note, however, that the resolution of this issue may have no practical effect on the treatment of requests for relief from agency action. This court has previously stated that a district court should “avo id tackling the merits under the ruse of assessing jurisdiction . . . . If derelict ion in discharging a mandatory duty is alleged and if that allegation is not patently f rivolous, both mandamus and injunctive relief are available, and we must remand for a trial on the merits.” Carpet, Linoleum & Resilient Tile Layers , 656 F.2d at 567 (quotation omitted). -7- Generally, the existence of subject-matter jurisdic tion does not depend on whether there is a “possibility that averments migh t fail to state a cause of action on which petitioners could actually recover.” Steel Co. v. Citizens for a Better
Env’t , 523 U.S. 83, 89 (1998) (quotation omitted). Rather, the District Court has jurisdiction if the right of petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one constru ction and will be defeated if they are given another, unless the clai m clearly appears to be immaterial and made solely for the purpose of ob taining jurisdiction or where such a claim is wholly insubs tantial and frivolous. Dismissal for lack of subject-matter ju risdiction because of the inadequacy of the federal claim is proper on ly when the claim is so insubstantial, implausible, foreclosed by pri or decisions of [the Supreme Court] or otherwise completely devoid of me rit as not to involve a federal controversy. Id. (quotations and citations omitted). The conversio n of what is usually a merits issue into a jurisdictional one may be avoided by l ooking to the APA first, and resorting to mandamus jurisdiction under § 1361 only if necessary. 2-8-

Moreover, § 1361 is “intended to provide a remedy f or a plaintiff only if he has exhausted all other avenues of relief. . . .” Heckler v. Ringer , 466 U.S. 602, 616 (1984). Because “[t]he availability of a remedy under the APA technically precludes [an] alternative request for a writ of mandamus,” Mt. Emmons Mining Co. v. Babbitt , 117 F.3d 1167, 1170 (10th Cir. 1997), suggests aninitial examination under the provisions of the APA. This procedure follows the general practice of this court. See id. ; Western Shoshone Bus. Council ex rel. W. Shoshone Tribe of Duck Valley Reservation v. Babbitt , 1 F.3d 1052, 1059 (10th Cir. 1993); see also R.T. Vanderbilt Co. v. Babbitt , 113 F.3d 1061, 1065 (9th Cir. 1997) (“[W]e [have] recognized that manda mus relief and relief under the APA are ‘in essence’ the same; . . . as a resul t we [have] elected to analyze the claim under the APA where there is an adequate remedy under the APA.”).
A. Relief under the APA Here, the district court analyzed Smilde’s request for relief from agency action in reverse order. It viewed and disposed of the matter as solely a mandamus action, without specifically mentioning th e APA. In discussing the mandamus request, however, the district court determined that Smilde should have first sought review of the agency’s action in a court of appeals. See R., doc. 7, at 4-5. This conclusion is the equivalent of a ruling that, in the district court, Smilde has no entitlement to relief under th e APA.-9-

The district court analyzed the OACSEP statutory fr amework and reached its conclusion in a nonadversarial context. It beg an with a recognition that OACSEP does not set out a specific judicial review process. The court noted, however, that 42 U.S.C. § 3056a(B)(1) requires the Secretary to coordinate programs under OACSEP with programs under the Job T raining Partnership Act (JTPA), 29 U.S.C. §§ 1501-1792b, and concluded thatpersons aggrieved by OACSEP working conditions should follow procedures under the JTPA. See R., doc. 7, at 4-5. Under the JTPA, judicial revie w is “in the United States Court of Appeals having jurisdiction over the applicant o r recipient of funds.” 29 U.S.C. § 1578(a)(1). We note, however, that the reference to coordinatio n is in an OACSEP section titled “Administration of community service projects,” requiring coordination with the JTPA, as well as other programs, “to increase the likelihood that eligible individuals for whom employment opportunities under this subchapter are available and who need services unde r such subchapters receive such services.” 42 U.S.C. § 3056a(b)(i). On its f ace, the primary concern of this provision appears to be a fair distribution of grants, not the procedural requirements for program enrollees. It is not patently obvious that Smilde failed to al lege the jurisdictional facts supporting his request for district court review of DOL’s action. When the-10-

controlling statute is silent or ambiguous on the p roper court for judicial review of an agency action, a ruling on the issue implicat es a complex area of the law. As the Eighth Circuit has noted, a determination of “whether initial review [of an agency action] should proceed in the court of appea ls or the district court . . . is often complicated by confused case law standards orpoorly drafted and ambiguous statutory language.” Jaunich v. United States Commodity Futures Trading Comm’n , 50 F.3d 518, 520 (8th Cir. 1995); see also National Parks & Conservation Ass’n v. FAA , 998 F.2d 1523, 1526-29 (10th Cir. 1993) (dealing with the intricacies of jurisdiction over review of agency action). At the outset of litigation, Smilde’s claim is not so deficient t hat it is now subject to dismissal for lack of subject matter jurisdiction.
B. Mandamus relief If his claim for relief under the APA ultimately fa ils for any reason, Smilde must then proceed to demonstrate entitlement to man damus relief by showing: (1) a clear right to the relief sought, (2) a plainly-d efined and peremptory duty on the part of the defendant, and (3) no other adequate remedy. See Johnson v. Rogers , 917 F.2d 1283, 1285 (10th Cir. 1990). Smilde’s complaint alleges that he had exhausted his administrative remedies, that the Sec retary owes a statutory duty to him, and that the duty is mandatory. Liberally con strued, these allegations are-11-

sufficient to allow the adversary process to begin. Therefore, the district court’s sua sponte dismissal for lack of mandamus jurisdict ion was improper.

CONCLUSION We render no opinion on the merits of Smilde’s clai ms, but harbor some doubt that the district court lacked jurisdiction. As a consequence, the judgment of the district court dismissing Smilde’s complaintfor lack of subject matter is VACATED and the matter is REMANDED to the district court with instructions to issue service of process and require defendants to answer or otherwise respond to the complaint. 

### Smilde’s motion to proceed in forma pauperis on ap peal is granted.

Entered for the Court

Michael R. Murphy Circuit Judge