Case: 12-140    Document: 5     Page: 1    Filed: 04/10/2013




           NOTE: This order is nonprecedential.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
               __________________________

                       PER CURIAM.
                        ORDER
    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
Case: 12-140      Document: 5   Page: 2    Filed: 04/10/2013




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,
   IT IS ORDERED THAT:
    (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.
Case: 12-140   Document: 5   Page: 3   Filed: 04/10/2013




3                                      IN RE KEVIN BRADY




                             FOR THE COURT




                             /s/ Jan Horbaly
                             Jan Horbaly
                             Clerk

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