In re: JOSEPH WITCHARD v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 1989

NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: JOSEPH WITCHARD,
Petitioner
______________________
2023-129
______________________
On Petition for Writ of Mandamus to the United States
Court of Federal Claims in No. 1:22-cv-01818-MHS, Judge
Matthew H. Solomson.
______________________
ON PETITION AND MOTION
______________________
PER CURIAM.
O R D E R
Joseph Witchard petitions this court for a writ of man-
damus and moves for leave to amend his petition. Mr.
Witchard also moves pursuant to Rule 8 of the Federal
Rules of Appellate Procedure to enjoin his “unjust impris-
onment sentence of 331-months . . . in lieu of awaiting . . .
decision in this petition for a writ of mandamus.” ECF No.
18 at 1 (some capitalization omitted). For the following
reasons, we deny his petition and motion for an injunction.
Mr. Witchard, who is currently incarcerated, filed this
suit in the United States Court of Federal Claims, alleging
unjust fraud convictions and imprisonment. In April 2023,
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IN RE: WITCHARD 2
the Court of Federal Claims stayed proceedings pending its
determination on jurisdiction. Mr. Witchard then filed this
petition seeking to vacate the stay. While the petition was
pending, the Court of Federal Claims dismissed for, inter
alia, lack of jurisdiction. Mr. Witchard subsequently
sought to amend his petition to challenge the dismissal and
for this court to remand with instructions to grant default
judgment against the United States.
A party seeking a writ of mandamus bears the burden
of demonstrating to the court that it has no “adequate al-
ternative” means to obtain the desired relief, Mallard v.
U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309
(1989), and that the right to issuance of the writ is “clear
and indisputable,” Will v. Calvert Fire Ins., 437 U.S. 655,
666 (1978). Mr. Witchard has not met that standard. The
challenge to the stay is now moot in light of the entry of
final judgment. Moreover, any request for relief from the
final judgment could have been sought by filing a timely
notice of appeal. Mr. Witchard did not file a notice of ap-
peal, however, and his time for doing so has now expired.
We further decline to construe his request to amend his
petition as a timely notice of appeal. Mr. Witchard has
shown the ability on multiple occasions to file a notice of
appeal. Moreover, allowing this case to proceed on appeal
would be futile. Mr. Witchard can make no cognizable,
non-frivolous argument that the Court of Federal Claims
had jurisdiction to review his prior criminal cases and
grant his request to discharge him from prison. See Joshua
v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Nor has
he alleged that his conviction was reversed or set aside or
that he has been pardoned as is required under 28 U.S.C.
§ 2513 to state a claim under 28 U.S.C. § 1495.* For the
* The final judgment of the Court of Federal Claims
also imposed a filing restriction on Mr. Witchard, which he
has not challenged in any of his papers submitted.
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IN RE: WITCHARD 3
same reasons, we deny Mr. Witchard’s request for an in-
junction. See Nken v. Holder, 556 U.S. 418, 434 (2009) (re-
quiring, among other things, a movant to show a
reasonable likelihood of success on the merits).
Accordingly,
IT IS ORDERED THAT:
The court grants leave to amend the petition and will
provide Mr. Witchard a copy of this court’s docket sheet
with this order. All other requested relief is denied.
October 13, 2023
Date
FOR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
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