                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1986
                                    ___________

James F. Newport,                     *
                                      *
              Appellant,              *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Missouri.
United States Department of Labor;    *
            1
Hilda Solis, Secretary of Labor;      * [UNPUBLISHED]
                2
Paul M. Igasaki, ARB Chair;           *
Honorable Daniel J. Solomon,          *
                                      *
              Appellees.              *
                                 ___________

                              Submitted: February 26, 2010
                                  Filed: March 16, 2010
                                   ___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ___________

PER CURIAM.




      1
       Hilda Solis has been appointed to serve as Secretary of Labor and is substituted
as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
      2
       Paul M. Igasaki has been appointed to serve as Chair of the Department of
Labor Administrative Review Board and is substituted as respondent pursuant to
Federal Rule of Appellate Procedure 43(c).
      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)(1)-(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 nondiscretionary
duty.’” (quoting Heckler v. Ringer, 466 U.S. 602, 616 (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.

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