961 F. 2d 964 - Moss v. Martin W

961 F2d 964 Moss v. Martin W

961 F.2d 964

295 U.S.App.D.C. 210

Mary B. MOSS, Petitioner
v.
Lynn MARTIN, Secretary, Department of Labor, and Louis W.
Sullivan, Secretary, Department of Health and
Human Services.

No. 91-1593.

United States Court of Appeals, District of Columbia Circuit.

April 14, 1992.

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.

Before WALD, D.H. GINSBURG and SENTELLE, Circuit Judges.

ORDER

PER CURIAM

1

Upon consideration of the application for enforcement of an order issued by the Department of Labor, which the court construes as a petition for a writ of mandamus, and petitioner's response to this court's order to show cause issued December 10, 1991, it is

2

ORDERED that the order to show cause be discharged. It is

3

FURTHER ORDERED that this case be transferred to the United States District Court for the District of Columbia, in accordance with 28 U.S.C. § 1631, to determine whether it has jurisdiction over petitioner's application. This court lacks jurisdiction over the instant application; however, the district court may have original jurisdiction. See, e.g., Paluca v. Secretary of Labor, 813 F.2d 524 (1st Cir.), cert. denied, 484 U.S. 943 (1987) (district court has jurisdiction to consider constitutional challenge to Secretary of Labor's decisions, despite statute prohibiting judicial review); Rodrigues v. Donovan, 769 F.2d 1344 (9th Cir.1985) (district court has jurisdiction to review claim that workers' compensation benefits were suspended in violation of right to due process.)

4

Furthermore, 28 U.S.C. § 1651 provides that courts may issue all writs necessary or appropriate in aid of their respective jurisdictions. See also Ganem v. Heckler, 746 F.2d 844, 853 (D.C.Cir.1984) (district court has jurisdiction to issue writ of mandamus to compel Secretary of Health and Human Services to act); McCuin v. Secretary of Health and Human Services, 817 F.2d 161, 166 (1st Cir.1987) (district court has jurisdiction to issue writ of mandamus for challenges to agency procedures, even where judicial review of challenge to amount of Medicare benefits is prohibited by statute.)

5

The Clerk is directed to send a certified copy of this order and the original file to the United States District Court for the District of Columbia.