Janice Bowen, et al v. Robert O'Blennis

Filing

PER CURIAM OPINION FILED - THE COURT: WILLIAM JAY RILEY, C. ARLEN BEAM and DUANE BENTON (UNPUBLISHED) [3770354] [09-3080]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-3080
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Janice Bowen; Mary Eastridge;
Sherri Link,

*
*
*
Petitioners-Appellants,
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*
William Smith,
* Appeal from the United States
* District Court for the Eastern
Petitioner,
* District of Missouri.
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v.
*
*
[UNPUBLISHED]
Robert G. O'Blennis,
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Respondent-Appellee.
*
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Submitted: December 13, 2010
Filed: March 25, 2011
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Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
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PER CURIAM.
Janice Bowen, Mary Eastridge, and Sherri Link appeal the district court's1
dismissal of their petition for a writ of mandamus. We affirm.

1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

Appellate Case: 09-3080

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Date Filed: 03/25/2011 Entry ID: 3770354

Appellants are three disability-benefit claimants with proceedings before the
Social Security Administration. Appellee Robert O'Blennis is the administrative law
judge (ALJ) assigned to each appellant's case. Each appellant filed a motion
requesting that O'Blennis recuse himself from her respective case, alleging that
O'Blennis is biased against certain classes of social-security claimants and that
appellants are members of those classes. Included with each appellant's motion to
recuse were the names and partial social security numbers of 54 individuals who
appellants' attorney had previously represented in proceedings before O'Blennis.
Appellants argued that this information supported their claim that O'Blennis is biased
against certain claimant classes and requested that this information be included in
their respective electronic records. O'Blennis declined to include the non-party
information in appellants' electronic records, citing Administration policy against
releasing identifying information about non-parties without their consent. O'Blennis
indicated he would include the information in the electronic records only if appellants
produced valid waivers from the non-parties. Appellants' counsel proffered an
unsigned copy of a waiver, which appellants' counsel alleged he required the nonparties to sign while he represented them. However, O'Blennis concluded this waiver
was insufficient. While reviewing appellants' recusal motions, O'Blennis did
consider the proffered information and he notified appellants in writing that he "kept
a copy in camera should a copy be needed by others with a need to know." O'Blennis
also said he would reconsider his decision not to include the non-party information
in the electronic record if appellants produced adequate waivers from the non-parties.
Appellants filed a petition for a writ of mandamus in district court, seeking
an order requiring O'Blennis to include the proffered information in their respective
electronic records. On August 25, 2009, the district court dismissed their petition,
holding that O'Blennis had no ministerial duty to include that information in the
electronic records.
We review the district court's dismissal of a petition for a writ of mandamus de
novo. Grisso v. Apfel, 219 F.3d 791, 793 (8th Cir. 2000). Pursuant to 28 U. S. C.
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Date Filed: 03/25/2011 Entry ID: 3770354

§1361, a district court has the authority to issue a writ of mandamus to "compel an
officer or employee of the United States or any agency thereof to perform a duty
owed to the plaintiff." However, the writ is a "drastic" remedy to be used only in
"extraordinary" cases. Kerr v. United States District Court, 426 U.S. 394, 402 (1976).
"In order for mandamus to lie[,] the duty owed to the plaintiff must be ministerial and
a positive command so plainly prescribed as to be free from doubt." Keeny v. Sec'y
of the Army, 437 F.2d 1151, 1152 (8th Cir. 1971) (internal quotation omitted).
This case does not present the kind of "extraordinary" situation that warrants
mandamus relief. The district court correctly found that O'Blennis had no clearly
established ministerial duty to place the proffered information in the electronic
record. O'Blennis did not ignore any clear mandate, but rather made a legal judgment
that his duty to protect the privacy of the non-parties prevented him from placing the
proffered information in the record. Appellants point to no authority that forbids an
ALJ from making an independent assessment of whether the inclusion of evidence
proffered in connection with a recusal motion would violate regulations regarding
third-party privacy rights. O'Blennis attempted to balance the rights of appellants
with the rights of the non-parties, by reviewing the information himself and retaining
it in camera. Regardless of whether he struck precisely the right balance, he did not
violate a clear ministerial duty. Any error in O'Blennis's judgment about the
admissibility of the information is more properly reviewed through the normal
channel of appealing to the Social Security Appeals Council and, if necessary, to the
federal courts. See Taylor v. Barnhart, 399 F.3d 891, 894 (8th Cir. 2005) (mandamus
relief only appropriate if petitioner has no adequate remedy); Diabo v. Sec'y of
Health, Educ. & Welfare, 627 F.2d 278, 282 (D.C. Cir. 1980) (reviewing on appeal
an ALJ's decision not to include evidence in the record).
We affirm.
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Date Filed: 03/25/2011 Entry ID: 3770354