NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM D. DUNNE, No. 21-56254

Petitioner-Appellant, D.C. No. 2:18-cv-09728-MWF-JC and

THOMAS RICHARD FARRUGIA, MEMORANDUM*

Petitioner,

v.

ELISEO RICOLCOL,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted November 20, 2024 San Jose, California

Before: GRABER, FRIEDLAND, and BUMATAY, Circuit Judges.

Petitioner William Dunne appeals the district court’s dismissal of his

Petition for Relief in the Nature of Mandamus (“Petition”) for lack of subject

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. matter jurisdiction. The Petition, which invoked both the Mandamus Act, 28

U.S.C. § 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et

seq., challenged the Administrative Remedy Program at Federal Correctional

Institution I in Victorville (“FCI-1”). We review “de novo a dismissal for lack of

subject matter jurisdiction.” Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir.

2003). We reverse in part the district court’s dismissal and remand.

1. Although Dunne has standing to challenge the one-at-a-time policy under

section 706(2) of the APA, he may lack standing to bring some or all of his other

claims under sections 706(1) and 706(2) of the APA. “[T]o establish standing, a

plaintiff must show . . . that he suffered an injury in fact that is concrete,

particularized, and actual or imminent.” TransUnion LLC v. Ramirez, 594 U.S.

413, 423 (2021). Here, we cannot determine from the existing record whether

Dunne has suffered an injury in fact as to any of his claims, other than his

challenge to the one-at-a-time policy. In particular, it remains unclear what, if

anything, would have been different had Dunne received formal denials of his

administrative requests. It also remains unclear what, if anything, would have been

different if the denials that Dunne received with what he alleges were improper or

arbitrary reasons had instead proceeded under FCI-1’s administrative remedy

program. We thus remand for the district court to determine which claims Dunne

has standing to bring under APA §§ 706(1) and 706(2), following any necessary

2 jurisdictional discovery.

2. The court has subject matter jurisdiction under 28 U.S.C. § 1331 to hear

any of Dunne’s APA claims for which he has standing. Unless another federal

statute precludes review, 28 U.S.C. § 1331 confers jurisdiction over APA

challenges because they arise under federal law. Parola v. Weinberger, 848 F.2d

956, 958 (9th Cir. 1988). Here, Dunne brings APA challenges arising under

federal law because he challenges the prison’s policies and practices as

inconsistent with 28 C.F.R. § 542.10 et seq. under APA § 706(1) and APA

§ 706(2) and as arbitrary and capricious under APA § 706(2). We thus remand to

the district court to address in the first instance the merits of any APA claims for

which Dunne has standing.

3. Dunne is not entitled to relief under the Mandamus Act. “Because

mandamus relief and relief under the APA are in essence the same, when a

complaint seeks relief under the Mandamus Act and the APA and there is an

adequate remedy under the APA, we may elect to analyze the APA claim only.”

Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022) (citation and internal quotation

marks omitted). Here, because Dunne seeks relief under the Mandamus Act and

the APA, and because there would be an adequate remedy under the APA for any

claims determined to have merit, we affirm the district court’s dismissal of

Dunne’s claims under the Mandamus Act.

3 REVERSED IN PART and REMANDED.

4