INRE: SCHMIDT , No. 14-101 (Fed. Cir. 2013)
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Case: 14-101 Document: 7 Page: 1 Filed: 12/12/2013 NOTE: This order is nonprecedential.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 mandamus 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 Claims seeking a owner of a plot of Court of Federal a complaint in the Court of Federal declaratory judgment that he is the land in Iowa. On June 28, 2013, the Claims entered judgment dismissing Case: 14-101 Document: 7 2 Page: 2 Filed: 12/12/2013 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 3 IN RE SCHMIDT FOR THE COURT s24 /s/ Daniel E. O Toole Daniel E. O Toole Clerk of Court
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