N OTE : This o rder is non precedential. 

# 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, DEP UTY 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.

---------------------------------------------------------------------
ISAAC A. POTTER, JR. , Plaintiff

- Appellant,

v. Case: 14-1379 Document: 19 Page: 1 Filed: 07/24/2014POTTER v. BREN 2

ROBERTA S. BREN AND OBLON SPIVAK, Def endants

- Appellees

,

AND

MICHELLE K. LEE, DEP UTY 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 Di strict of Virginia in No. 1:13

- cv

- 01417

- CMH

IDD, Senior Judge Claude M. Hilton.

______________________ P ER C URIAM

.

O R D E R Upon docketing of Mr. Potter’s rece nt notice of appeal, Potter v. Bren , 2014

- 1505, the court reconsiders it s prev ious 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 th is case, the district court dis missed with out pre judice and directed Mr. Potter to amend his co m plaint. 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 transfer ring the case to the Fourth Cir cuit , where Mr. Potter had filed a previous inter locutory 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 ap peal, 2014

- Case: 14-1379 Document: 19 Page: 2 Filed: 07/24/2014POTTER v. BREN 3

1505, it appears that Mr. Potter is seeking reconsider ation 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 trans fer 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 complain t or e ntry of final judgment.”); see also 28 U.S.C. § 1631 (authorizing tran sfer 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 acte d on by the district court

. Generally, this court has jurisdiction to review interloc utory 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 cita tions to 28 U.S.C. §§ 1292 and 1295 and refer ence to the Fourth Cir cuit ’s previous dismiss al order , it is unclear that Mr. Potter ’s motion was actually seek ing transfer to the Court of Federal Claims

. T o the extent that the district court’s dismissal order
construc tively denied his transfer motion and that dete rmination properly falls within this court’s jurisdiction

, t here is no showing that the Court of Federal Claims would have had jurisdiction over Mr. Potter’s complaint

. Thus, t o 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, a t *1 (Fed. Cir. Apr. 15, 1993) (summarily affirming under similar circumstances). Accordingly, Case: 14-1379 Document: 19 Page: 3 Filed: 07/24/2014POTTER 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 dismiss ed- in

- part and affirm edin

- part. (3 ) Any other pending motions are denied as moot.

F OR THE C OURT

/s/ Daniel E. O’Toole Daniel E. O’Toole Clerk of Court

s30 Case: 14-1379 Document: 19 Page: 4 Filed: 07/24/2014