Federal Circuit disposition — 2010-m947-1-19-11-1-pdf

# NOTE: This order is nonprecedential.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

IN RE R&R INVESTORS (UPA PARTNERSHIP),
CURTIS HOGENSON, DIANE LARSON, EILEEN M.
BERGER, AND SHIRLEY J. ARVIDSON, PARTNERS,
Petitioners.

Miscellaneous Docket No. 947

On Petition for Writ of Mandamus to the United
States Court of Federal Claims in case no. 03-CV-2264,
Judge Susan G. Braden.

## ON PETITION

Before RADER, Chief Judge, FRIEDMAN and LINN, Circuit
Judges.

FRIEDMAN, Circuit Judge.

## ORDER

R&R Investors, Curtis Hogenson, et al. (Hogenson)
petition for a writ of mandamus directing the United
States Court of Federal Claims to (1) vacate a stipulation
of voluntary dismissal, (2) grant Hogenson's motion to
vacate and for reconsideration, (3) rule on Hogenson's
motion to substitute counsel, (4) rule on Hogenson's
motion for leave to intervene, and (5) file Hogenson's

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notice of appeal. A.F.T.E.R. Incorporated et al.
(A.F.T.E.R.) and the United States each respond.

In the Court of Federal Claims, 116 property owners,
including R&R, filed suit alleging Tucker Act claims.
R&R is a partnership, and the petitioners are former
partners who assert that they, not the current partners of
R&R, are the owners of the Tucker Act claims. In May
2007, the parties entered into a settlement agreement
covering the outstanding claims in this case. At R&R's
request, the Court of Federal Claims suspended proceed-
ings pending disposition of an interpleader action that
was filed in Minnesota state court to determine issues of
state partnership law and entitlement to the settlement
proceeds. The Minnesota state district court ruled that
the current partners are entitled to the proceeds, and the
Minnesota Court of Appeals affirmed. Faegre & Benson,
LLP v. R&R Investors, 772 N.W. 2d 846 (Minn. App.
2009). The United States and R&R filed a stipulation of
dismissal and the Court of Federal Claims dismissed the
complaint. Hogenson filed a motion to vacate and for
reconsideration, which the Court of Federal Claims de-
nied. Hogenson now petitions for a writ of mandamus to
direct the Court of Federal Claims to vacate the stipula-
tion of voluntary dismissal, grant Hogenson's motion to
vacate and for reconsideration, rule on Hogenson's motion
to substitute counsel, rule on Hogenson's motion for leave
to intervene, and file Hogenson's notice of appeal.

The writ of mandamus is available in extraordinary
situations to correct a clear abuse of discretion or usurpa-
tion of judicial power. In re Calmar, Inc., 854 F.2d 461,
464 (Fed. Cir. 1998). A party seeking a writ bears the
burden of proving that it has no other means of obtaining
the relief desired, Mallard v. U.S. Dist. Ct. for S. Dist. of
Iowa, 490 U.S. 296, 309 (1989), and that the right to
issuance of the writ is "clear and indisputable," Allied

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Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). A
court may deny mandamus relief "even though on normal
appeal, a court might find reversible error." In re Cordis
Corp., 769 F.2d 733, 737 (Fed. Cir. 1985); see also United
States v. Watson, 603 F.2d 192, 196-97 (C.C.P.A. 1979).
("the writ will not issue to cure the mere commission of
reversible error").

Hogenson has not met the exacting standard required
for mandamus relief. Hogenson has not shown, in the
papers submitted to this court, that mandamus should
issue regarding the Court of Federal Claims' dismissal of
the complaint in view of the ruling by the Minnesota
Court of Appeals that the Tucker Act claims became the
property of the current partners of R&R. We note that
the Court of Federal Claims has not yet ruled on Ho-
genson's motion for leave to intervene and to allow the
filing of a notice of appeal, but we expect that it will do so
now that we have denied the mandamus petition and no
proceedings are pending before this court.

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

FOR THE COURT

JAN 19 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Erick G. Kaardal, Esq.
Jeff H. Eckland, Esq.
Judge, United States Court of Federal Claims
Clerk, United States Court of Federal Claims

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

JAN 1 9 2011

JAN HORBALY
CLERK