Newport v. United States Department of Labor

367 F. App'x 729

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 16, 2010
• Docket: 09-1986
• Status: Unpublished

Opinion

PER CURIAM.

James Newport previously filed with the Department of Labor (DOL) a 42 U.S.C. § 5851 whistleblower complaint, which — on the recommendation of an Administrative Law Judge (ALJ) — was dismissed by the DOL Administrative Review Board as a sanction for Newport’s improper conduct. Newport then brought this mandamus action in the district court, 3 seeking to have the ALJ recused and his administrative action reinstated. The district court dismissed the mandamus action upon concluding it lacked subject matter jurisdiction, and Newport now appeals that dismissal.

After careful de novo review, see LeMay v. U.S. Postal Serv., 450 F.3d 797, 799 (8th Cir.2006), we agree with the district court’s decision, see 42 U.S.C. § 5851(c)(l)-(2) (orders under § 5851(b) may be appealed to United States court of appeals for circuit in which violation allegedly occurred; where such review of order could have been obtained, order “shall not be subject to judicial review in any criminal or other civil proceeding”); cf. Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir.1992) (in Medicare context, agreeing with district court that general federal subject matter jurisdiction was precluded where administrative remedies had not been exhausted); Hatcher v. Heckler, 772 F.2d 427, 432 (8th Cir.1985) (“[T]he writ of mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretion-ary duty.’ ” (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984))).

Accordingly, we affirm. See 8th Cir. R. 47B.

3 .The Honorable David Gregory Kays, United States District Judge for the Western District of Missouri.