Inre: Schmidt

Case: 14-101 Document: 7 Page: 1 Filed: 12/12/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE MERLE RICHARD SCHMIDT,
Petitioner.
______________________
2014-101
______________________
On Petition for Writ of Mandamus to the United
States Court of Federal Claims in No. 1:12-cv-00773-SGB,
Judge Susan G. Braden.
______________________
ON PETITION
______________________
Before RADER, Chief Judge, LOURIE and TARANTO, Circuit
Judges.
PER CURIAM.
ORDER
Merle Richard Schmidt petitions for a writ of manda-
mus to compel the United States Court of Federal Claims
to enter declaratory judgment. We consider whether
Schmidt’s petition should be construed as a notice of
appeal.
Schmidt filed a complaint in the Court of Federal
Claims seeking a declaratory judgment that he is the
owner of a plot of land in Iowa. On June 28, 2013, the
Court of Federal Claims entered judgment dismissing
Case: 14-101 Document: 7 Page: 2 Filed: 12/12/2013
2 IN RE SCHMIDT
Schmidt’s complaint for lack of jurisdiction. Schmidt then
requested the Court of Federal Claims to vacate the order
dismissing his complaint. On August 15, 2013, the Court
of Federal Claims denied that motion. On October 15,
2013, Schmidt filed this writ of mandamus, asking for the
same relief he sought in the Court of Federal Claims and
arguing the merits of his appeal.
In order to appeal a judgment of the United States
Court of Federal Claims, the party seeking appeal must
file notice that sets forth (1) the name of each party to the
proceeding, (2) the judgment, order, or part, thereof being
appealed, and (3) the name of the court to which the
appeal is taken. Fed. R. App. P. 3(c). Schmidt’s petition
meets these requirements. In addition, his petition is
timely if treated as a notice of appeal. See Fed. R. App. P.
4(a)(1)(B).
We conclude that the petition should be construed as
a timely notice of appeal, and thus mandamus relief is not
appropriate. See Mallard v. U.S. Dist. Court for the
Southern Dist. of Iowa, 490 U.S. 296, 309 (1989) (holding
that a party seeking a writ bears the burden of proving
that it has no other means of attaining the relief, such as
by appeal); Bankers Life & Casualty Co. v. Holland, 346
U.S. 379, 383 (1953) (stating “whatever may be done
without the writ may not be done with it.”).
Accordingly,
IT IS ORDERED THAT:
The petition for writ of mandamus is denied because
the matter is treated as a timely notice of appeal. The
clerk is directed to docket the case as an appeal.
Case: 14-101 Document: 7 Page: 3 Filed: 12/12/2013
IN RE SCHMIDT 3
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
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