in Re Kevin Patrick Brady v. U.S. Dist. Court for the South- ern Dist. of Iowa, 490 U.S. 296, 309 1989 holding…

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
IN RE KEVIN PATRICK BRADY,
Petitioner.
__________________________
Miscellaneous Docket No. 140
__________________________
On Petition for Writ of Mandamus to the United
States Court of Federal Claims in case no. 12-CV-0373,
Judge Lawrence J. Block.
__________________________
ON MOTION
__________________________
P ER CURIAM .
O R D E R
Kevin Patrick Brady, pro se, petitions for a writ of
mandamus. We consider whether Brady’s petition should
be construed as a notice of appeal. He also moves for leave
to proceed in forma pauperis.
Brady filed a complaint in the United States Court of
Federal Claims seeking a tax refund and other relief. The
court dismissed his suit for lack of subject matter jurisdic-
tion. Brady filed a motion for reconsideration that was
denied by the Court of Federal Claims. We received this
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IN RE KEVIN BRADY 2
petition within the time to appeal from the Court of Federal
Claims' decision.
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). Brady’s petition clearly
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).
Because we conclude that the petition should be con-
strued as a timely notice of appeal, mandamus relief is not
appropriate. See Mallard v. U.S. Dist. Court for the South-
ern 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,
I T I S O RDERED T HAT :
(1) The petition for a writ of mandamus is denied be-
cause the matter is treated as a notice of appeal. The
clerk is directed to docket the case as an appeal.
(2) The motion for leave to proceed in forma pauperis
is granted and thus requirement of payment of the fee in
the appeal is waived.
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IN RE KEVIN BRADY 3
F OR T HE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
s26
Case: 12-140 Document: 5 Page: 3 Filed: 04/10/2013

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