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, *

*

William Smith, * Appeal from the United States

* District Court for the Eastern

Petitioner, * District of Missouri. 

*

v. *

* [UNPUBLISHED]

Robert G. O'Blennis, *

*

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.

The HonorableRodneyW. Sippel, United States DistrictJudge for the Eastern 1

District of Missouri. 
Appellants are three disability-benefit claimants with proceedings before the

Social Security Administration. Appellee Robert O'Blennisisthe 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 thisinformation supported their claimthat O'Blennisis 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 nonpartiesto 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 waiversfromthe 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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§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 DistrictCourt, 426 U.S. 394, 402 (1976). 

"In order for mandamusto 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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