Leonard Houston v. United States ( 2024 )

USCA4 Appeal: 24-1642 Doc: 7 Filed: 11/20/2024 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-1642
LEONARD W. HOUSTON,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:23-cv-01202-BO-RN)
Submitted: August 22, 2024 Decided: November 20, 2024
Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leonard W. Houston, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Leonard W. Houston seeks to appeal the district court’s text order denying his
motion for certification under 28 U.S.C. § 1292(b), which the court entered in Houston’s
pending action under the Camp Lejeune Justice Act of 2022, Pub. L. No. 117-168, § 804,
136 Stat. 1802, 1802-04 (2022). This court may exercise jurisdiction only over final orders,
28 U.S.C. § 1291, and certain interlocutory and collateral orders, 28 U.S.C. § 1292; Fed.
R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). The
order Houston seeks to appeal is neither a final order nor an appealable interlocutory or
collateral order. See, e.g., Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 19 F.4th
472, 476 (D.C. Cir. 2021) (“Section 1292(b) does not contemplate appellate review of a
district court’s threshold decision about whether to certify a question for appeal.”);
Brown v. Eli Lilly & Co., 654 F.3d 347, 353 (2d Cir. 2011) (“[A]n [o]rder denying
§ 1292(b) certification is not appealable.” (internal quotation marks omitted)).
Accordingly, we dismiss the appeal for lack of jurisdiction and deny Houston’s
motion for judicial notice. * We dispense with oral argument because the facts and legal
*
We note that “[i]n this circuit, a petition for a writ of mandamus is the proper way
to challenge the denial of a jury trial.” In re Lockheed Martin Corp., 503 F.3d 351, 353
(4th Cir. 2007). For that reason, if such a petition would be fruitful, we might be inclined
to construe Houston’s notice of appeal as a petition for a writ of mandamus, given
Houston’s pro se status. E.g., Castro v. United States, 540 U.S. 375, 381 (2003) (“Federal
courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category. They may
do so[, for example,] in order to avoid an unnecessary dismissal[.]” (citations omitted));
Simmons v. Whitaker, 106 F.4th 379, 387 (4th Cir. 2024) (“[P]ro se documents are to be
liberally construed.”); Wall v. Rasnick, 42 F.4th 214, 218 (4th Cir. 2022) (“In practice, this
liberal construction allows courts to recognize claims despite various formal deficiencies,
(Continued)
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contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
such as incorrect labels or lack of cited legal authority.”). However, this Court recently
rejected a petition of mandamus in a highly similar case. See In re McBrine, No. 24-1542
(4th Cir. Aug. 23, 2024) (unpublished order) (rejecting counseled petition for writ of
mandamus seeking to overturn the district court’s order striking a demand for a jury trial
in another case brought under the Camp Lejeune Justice Act, after the district court denied
a motion for certification of an interlocutory appeal). So we decline to exercise our
discretion to construe Houston’s filing as a petition for a writ of mandamus.
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