Case: 14-101         Document: 17          Page: 1       Filed: 04/25/2014




              NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                       ______________________

           IN RE MERLE RICHARD SCHMIDT,
                        Petitioner.
                  ______________________

                              2014-101
                       ______________________

    On Petition for Writ of Mandamus to the United
States Court of Federal Claims in No. 1:12-cv-00773-SGB,
Judge Susan G. Braden.
    ---------------------------------------------------------------------------

                MERLE RICHARD SCHMIDT,
                    Plaintiff-Appellant,

                                      v.

                         UNITED STATES,
                         Defendant-Appellee.
                       ______________________

                             2014-5031
                       ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00773-SGB, Judge Susan G.
Braden.
               ______________________

                             ON MOTION
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2                                IN RE SCHMIDT




                 ______________________

 Before RADER, Chief Judge, LOURIE and TARANTO, Circuit
                        Judges.
PER CURIAM.
                        ORDER
    We construe Merle Richard Schmidt’s motion for
“summary disposition” as a request to reconsider the
court’s order denying his petition for a writ of mandamus
directing the United States Court of Federal Claims to
enter judgment in his favor.
    Schmidt filed a complaint at the Court of Federal
Claims seeking a declaratory judgment that he is the
owner of a plot of land in Iowa. On June 28, 2013, the
Court of Federal Claims entered judgment dismissing
Schmidt’s complaint for lack of jurisdiction. Schmidt did
not file an appeal within 60 days from the date of filing of
that judgment, thereby rendering it final. See Fed. R.
App. P. 4(a)(1)(B).
    On August 12, 2013, Schmidt filed a motion for relief
from judgment under CFC Rule 60, requesting the court
to vacate the order dismissing his complaint. * On August
15, 2013, the Court of Federal Claims denied that motion.
On October 15, 2013, Schmidt filed for a writ of manda-
mus in this court.
    Because Schmidt’s petition for a writ of mandamus
met the requirements for being a timely appeal from the
Court of Federal Claim’s denial of his Rule 60 motion, this
court construed his petition as a notice of appeal, assigned


    *  Because the Rule 60 motion was not filed within 28
days from the date of judgment it did not toll the time to
file an appeal from the underlying judgment. See Fed. R.
App. P. 4(a)(4)(A)(vi).
Case: 14-101     Document: 17   Page: 3   Filed: 04/25/2014



 IN RE SCHMIDT                                          3



it Appeal Number 2014-5031, and denied the petition.
However, because Schmidt failed to file a brief in Appeal
No. 2014-5031, that appeal was dismissed for lack of
prosecution on February 19, 2014.
    It is clear from the papers submitted that Schmidt
does not wish to pursue Appeal No. 2014-5031. See
Petitioner’s Demand in the Nature of Procendendo at 1
(“All parties and the magistrate holding Petitioner’s court
are in full agreement that the case numbered 2014-5031
be dismissed. . . .”). Accordingly, we see no reason to
disturb the court’s order dismissing the appeal.
     As to Schmidt’s request for reconsideration of this
court’s order denying his petition for a writ of mandamus,
“[t]he remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations.” Kerr v. U. S. Dist.
Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976). It
may not be used as a substitute for appeal. Ex parte
Fahey, 332 U.S. 258, 259-60 (1947). If Schmidt wished to
challenge the underlying judgment, he could have filed a
timely appeal, but he did not do so. We therefore see no
reason to disturb this court’s prior ruling denying his
petition for a writ of mandamus.
    Accordingly,
    IT IS ORDERED THAT:
   (1) Schmidt’s request to reconsider this court’s De-
cember 12, 2013 order and grant mandamus is denied.
    (2) Any request to reconsider this court’s February
19, 2014 order dismissing Appeal No. 2014-5031 is denied.
    (3) All other pending motions are moot.
                                   FOR THE COURT

                                    /s/ Daniel E. O’Toole
                                        Daniel E. O’Toole
                                        Clerk of Court
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4                             IN RE SCHMIDT




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