Isaac A. Potter, Jr. v. Roberta S. Bren and Oblon Spivak

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ISAAC A. POTTER, JR.,
Plaintiff-Appellant,
v.
ROBERTA S. BREN AND OBLON SPIVAK,
Defendants-Appellees,
AND
MICHELLE K. LEE, DEPUTY DIRECTOR, U.S.
PATENT AND TRADEMARK OFFICE, AND LINDA
M. KING,
Defendants-Appellees.
______________________
2014-1379
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:13-cv-01417-CMH-
IDD, Senior Judge Claude M. Hilton.
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ISAAC A. POTTER, JR.,
Plaintiff-Appellant,
v.
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POTTER v. BREN 2
ROBERTA S. BREN AND OBLON SPIVAK,
Defendants-Appellees,
AND
MICHELLE K. LEE, DEPUTY DIRECTOR, U.S.
PATENT AND TRADEMARK OFFICE, AND LINDA
M. KING,
Defendants-Appellees.
______________________
2014-1505
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:13-cv-01417-CMH-
IDD, Senior Judge Claude M. Hilton.
______________________
P ER CURIAM .
O R D E R
Upon docketing of Mr. Potter’s recent notice of appeal,
Potter v. Bren, 2014-1505, the court reconsiders its previ-
ous order of May 6, 2014 transferring an appeal in the
same case, Potter v. Bren, 2014-1379, to the United States
Court of Appeals for the Fourth Circuit.
In this case, the district court dismissed without prej-
udice and directed Mr. Potter to amend his complaint.
Mr. Potter then filed a notice of appeal seeking review at
this court, and that appeal was docketed as 2014-1379.
On May 6, 2014, this court issued an order transferring
the case to the Fourth Circuit, where Mr. Potter had filed
a previous interlocutory appeal. Before our mandate
issued, Mr. Potter filed a new “notice of appeal” at the
district court, which was transmitted to this court. While
this court docketed that notice as a new appeal, 2014-
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POTTER v. BREN 3
1505, it appears that Mr. Potter is seeking reconsidera-
tion of this court’s previous determination to transfer.
Upon further review, this court concludes that it
would not be in the interest of justice to transfer the 2014-
1379 appeal because the Fourth Circuit would not have
jurisdiction over the order dismissing the complaint
without prejudice. See Groves v. City of Darlington, 346
Fed. Appx. 965, 966 (4th Cir. 2009) (“An order granting
leave to amend is interlocutory as it leaves the case open
for either amendment of the complaint or entry of final
judgment.”); see also 28 U.S.C. § 1631 (authorizing trans-
fer only if it is in the interest of justice to do so).
Mr. Potter mentions his “Motion to Transfer Action
No. 1:13-CV-0417-CMH-IDD to the Court of Federal
Claims,” which has not been acted on by the district court.
Generally, this court has jurisdiction to review interlocu-
tory orders from district courts concerning a motion to
transfer to the Court of Federal Claims. See 28 U.S.C.
§ 1292(d)(4)(A). However, based on Mr. Potter’s citations
to 28 U.S.C. §§ 1292 and 1295 and reference to the Fourth
Circuit’s previous dismissal order, it is unclear that Mr.
Potter’s motion was actually seeking transfer to the Court
of Federal Claims.
To the extent that the district court’s dismissal order
constructively denied his transfer motion and that deter-
mination properly falls within this court’s jurisdiction,
there is no showing that the Court of Federal Claims
would have had jurisdiction over Mr. Potter’s complaint.
Thus, to the extent that Mr. Potter’s appeals raise this
issue, we affirm. Cf. Parker v. U.S., Nos. 93-1055, -1058, -
1123, 1993 WL 262640, at *1 (Fed. Cir. Apr. 15, 1993)
(summarily affirming under similar circumstances).
Accordingly,
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POTTER v. BREN 4
I T I S O RDERED T HAT :
(1) The May 6, 2014 order transferring Appeal No.
2014-1379 is vacated.
(2) The appeals are dismissed-in-part and affirmed-
in-part.
(3) Any other pending motions are denied as moot.
F OR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s30
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