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The Honorable Karl S. Forester, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0156p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

In re: DAVID SUTTON, JR.,

Petitioner.

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No. 11-1511

On Petition for Writ of Mandamus.

No. 05-70207—Victoria A. Roberts, District Judge.

Decided and Filed: June 14, 2011 

Before: MERRITT and ROGERS, Circuit Judges; FORESTER, District Judge.*

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OPINION

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PER CURIAM. In this petition for a writ of mandamus, David Sutton, Jr., seeks

an order directing the Commissioner of Social Security to exercise his discretion to

reopen proceedings and reinstate a 1985 decision that awarded him disability benefits.

The Commissioner has responded that Sutton is barred by the doctrine of res judicata

and, alternatively, that Sutton’s petition should fail on the merits. Neither of these

arguments needs to be addressed, however, because the petition is not properly before

this court.

Sutton was awarded disability insurance benefits for a period beginning in June

1983. In 2002, however, the Social Security Administration produced evidence that

Sutton had engaged in substantial gainful employment during the years that Sutton

claimed to have been disabled. The Appeals Council accordingly reopened the

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No. 11-1511 In re David Sutton, Jr. Page 2

proceedings and remanded to an administrative law judge, who determined that Sutton

was not entitled to disability benefits. Sutton sought judicial review. The district court

affirmed. Sutton v. Comm’r of Soc. Sec., No. 2:05-cv-70207 (E.D. Mich. Jul. 24, 2006).

On appeal, this court affirmed. Sutton v. Comm’r of Soc. Sec., No. 06-2100 (6th Cir.

Mar. 22, 2007) (order).

Sutton then sought supplemental security income benefits. His application was

denied, and on his request for judicial review, the district court affirmed. Sutton v.

Comm’r of Soc. Sec., No. 2:08-cv-13182 (E.D. Mich. Sept. 25, 2009). On appeal, this

court affirmed. Sutton v. Comm’r of Soc. Sec., No. 09-2288 (6th Cir. Apr. 5, 2011)

(order).

Sutton now petitions for a writ of mandamus, asking this court to order the

Commissioner of Social Security to reinstate Sutton’s disability benefits. The court of

appeals lacks jurisdiction to issue a writ of mandamus directly to the Commissioner of

Social Security.

Direct review of agency action has been placed in the courts of appeals only on

an agency-by-agency basis in the particular organic acts of selected agencies. So-called

“nonstatutory” judicial review, based on the Administrative Procedure Act and a general

grant of jurisdiction such as 28 U.S.C. § 1331, when available, is in the district court.

See Note, Jurisdiction to Review Federal Administrative Action: District Court or Court

of Appeals, 88 Harv. L. Rev. 980, 981 (1975).

Moreover, in the case of Social Security Act cases, judicial review is in the

district court and is exclusively through 42 U.S.C. § 405(g). Shalala v. Illinois Council

on Long Term Care, Inc., 529 U.S. 1, 10 (2000); Mathews v. Eldridge, 424 U.S. 319, 327

(1976); Weinberger v. Salfi, 422 U.S. 749, 757 (1975). Other district court jurisdictional

bases are explicitly precluded in 42 U.S.C. § 405(h). The Supreme Court has reserved

without deciding whether a district court would ever have jurisdiction to review a

decision of the Commissioner under the district court mandamus statute, 28 U.S.C.
No. 11-1511 In re David Sutton, Jr. Page 3

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While several circuits have allowed for mandamus jurisdiction in social security cases, see, e.g.,

Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 765-66 (5th Cir. 2011) (collecting cases), the

Supreme Court has explicitly refrained from resolving the issue, see Your Home Visiting Nurse Srvcs., Inc.

v. Shalala, 525 U.S. 449, 457 n. 3 (1999). 

§ 1361, in light of 42 U.S.C. § 405(h).1 In any event, §1361 obviously does not give any

mandamus jurisdiction to appellate courts.

To be sure, this court has jurisdiction under the All Writs Act to issue writs,

including writs of mandamus, in aid of our jurisdiction. 28 U.S.C. § 1651. Thus we may

issue a writ of mandamus to a lower court in appropriate circumstances. See In re

Chimenti, 79 F.3d 534, 540 (6th Cir. 1996); McClellan v. Young, 421 F.2d 690, 691 (6th

Cir. 1970). Such writs are in aid of our appellate jurisdiction. See Blay v. Young, 509

F.2d 650, 651 (6th Cir. 2004). A mandamus directed at a federal official in a suit

brought directly in our court, in contrast, would be an exercise of original jurisdiction,

as explained in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). We lack such

jurisdiction in the Social Security context.

The petition for a writ of mandamus is dismissed for lack of jurisdiction.