Federal Circuit disposition — 2011-m997-9-2-11-1-pdf

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE CARL WAYNE STEWART,
Petitioner.

Miscellaneous Docket No. 997

On Petition for Writ of Mandamus to the United
States Court of Appeals for Veterans Claims in case no.
10-CV-3079.

## ON PETITION

Before LOURIE, MOORE, and REYNA, Circuit Judges.
PER CURIAM.

## ORDER

Carl Wayne Stewart petitions for a writ of mandamus
to direct the United States Court of Appeals for Veterans
Claims to rule on his motion for en banc review.

On January 20, 2011, the Court of Appeals for Veter-
ans Claims dismissed Stewart's appeal for lack of jurisdic-
tion, concluding that Stewart's notice of appeal was
untimely. Stewart then moved for reconsideration, or in
the alternative, panel review, which the Court of Appeals
for Veterans Claims denied on March 4, 2011. On March

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18 2011, Stewart moved for en banc review, which is still
pending. On June 24, 2011, the Court of Appeals for
Veterans Claims stayed Stewart's appeal in light of
Henderson v. Shinseki, 131 S. Ct. 1197 (2011). In that
case, the Supreme Court held that the 120-day deadline
for filing an appeal with the Court of Appeals for Veterans
Claims does not have jurisdictional consequences and can
be subject to equitable tolling. Henderson is currently
before the Court of Appeals for Veterans Claims for
consideration of the issue of equitable tolling, which is an
issue that could also be relevant in Stewart's appeal.

The remedy of mandamus is available only in extraor-
dinary 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 South-
ern 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).

Based upon the papers submitted, Stewart has not
met his burden of showing entitlement to a writ. A court
has discretion to stay proceedings in exercising its inher-
ent authority to control the disposition of its cases. See
Cherokee Nation of Oklahoma v. United States, 124 F.3d
1413, 1416 (Fed. Cir. 1997) (whether to stay an action is a
matter of the trial court's discretion). The Court of Ap-
peals for Veterans Claims provided a sufficient basis for
granting the stay, concluding that its decision in Hender-
son will likely affect the outcome of Stewart's appeal.
Additionally, the present stay is not for such a protracted
or indefinite period as to render its issuance an abuse of
discretion. See, e.g., Gould v. Control Laser Corp., 705
F.2d 1340, 1341 (Fed. Cir. 1983) (holding that the stay of
a district court patent proceeding pending reexamination

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of the patent in the Patent and Trademark Office was not
"for such a protracted or indefinite period as to render its
issuance an abuse of discretion").

Accordingly,
IT IS ORDERED THAT:
The petition is denied.

FOR THE COURT

SEP 02 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Carl Wayne Stewart
Corinne A. Niosi, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
SEP 02 2011

JAN HORBALY
CLERK