Paula Johnson v. United States

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-5006
PAULA JOHNSON,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 07-CV-663,
Judge Lynn J. Bush
ON MOTION
Before NEWMAN, BRYSON, and DYK, Circuit Judges.
PER CURIAM
ORDER
The United States responds to the court's order concerning whether this court
has jurisdiction over Paula Johnson's appeal. Johnson has not responded. Separately,
Johnson moves for leave to proceed in forma pauperis.
Johnson filed a notice of appeal seeking review of the United States Court of
Federal Claims' order that transferred her case to the United States District Court for the
Southern District of Illinois. Johnson sought damages due to asserted misconduct of
the United States Marshals Service The Court of Federal Claims held that it did not
have jurisdiction over the complaint and transferred the action to the district court
pursuant to 28 U.S.C. § 1631. Because Johnson failed to pay the docketing fee, this
court dismissed the appeal for failure to pay the fee. Johnson has now filed a motion for

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leave to proceed in forma pauperis, which we grant. Thus, we reinstate her appeal for
purposes of determining whether the appeal should be dismissed for lack of jurisdiction
or whether the appeal should be treated as a petition for a writ of mandamus.
The United States argues that this court does not have jurisdiction over
Johnson's appeal because it is not an appeal of a final judgment pursuant to 28 U.S.C.
§ 1291, an appeal of a district court order transferring a case to the Court of Federal
Claims (see 28 U.S.C. § 1292(d)(4)(A)), or an appeal of a collateral order that meets the
criteria of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). We agree that
this is not an appeal of a final judgment and that it is not expressly covered by section
1292(d)(4)(A), which allows an appeal to this court of a district court's order transferring
a case to the Court of Federal Claims. Concerning whether the appeal is permitted by
Cohen for an order to be appealable pursuant to that case, the order (1) must
conclusively determine the disputed question, (2) must resolve an important issue
completely separate from the merits of the action, and (3) must be effectively
unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay 437 U.S.
463 (1978). The jurisdictional issue, whether the Court of Federal Claims or the district
court might have jurisdiction over Johnson's complaint, could be effectively reviewed
upon any appeal from a final judgment. Thus, if the district court denies relief on
Johnson's complaint or otherwise dismisses the case and enters a final judgment, then
Johnson can appeal that final judgment. The court of appeals can review the
jurisdictional issue at that time, and thus immediate review of the transfer order is not
warranted in the circumstances of this case. Thus, we must dismiss this appeal for lack
of jurisdiction.
2009-5006 2

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In the alternative, we treat Johnson's appeal as a petition for a writ of mandamus
to vacate the transfer order. The remedy of mandamus is available only in extraordinary
situations to correct a clear abuse of discretion or usurpation of judicial power. In re
Calmar, Inc. 854 F.2d 461, 464 (Fed. Cir. 1988). A party seeking a writ bears the burden
of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist.
Court for the Southern Dist. of Iowa, 490 U.S. 296, 309 (1989), and that the right to
issuance of the writ is "clear and indisputable," Allied Chemical Corp. v. Daiflon, Inc. 449
U.S. 33, 35 (1980). Johnson has not shown a colorable basis for jurisdiction of this subject
matter in the Court of Federal Claims; we conclude that the court did not abuse its
discretion in transferring the case to the district court. Thus, to the extent that we treat this
appeal as a mandamus petition, the petition is denied.
Accordingly,
IT IS ORDERED THAT:
Johnson's motion for leave to proceed in forma pauperis is granted, the
mandate is recalled, the court's previous order dismissing the appeal for failure to pay
the docketing fee is vacated, and the appeal is reinstated.
The appeal is dismissed for lack of jurisdiction.
Mandamus relief is denied.
Each side shall bear its own costs.
FOR THE COURT
MAY 2 7 2009 /s/ Jan Horbaly
Date
cc: Paula Johnson
Scott A. MacGriff, Esq.
s8
2009-5006 3
Jan Horbaly
Clerk
'1444 %pi
MAY 2 7 2009
Jrua lithibia
CLERti

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