Winns v. Merit Systems Protection Board et al

Filing 56

Order by Magistrate Judge Howard R. Lloyd certifying appeal is not taken in good faith and denying 55 motion for leave to appeal in forma pauperis. (hrllc1S, COURT STAFF) (Filed on 11/19/2015)

E-Filed 11/19/15

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

HARRIS L. WINNS,

Case No. 15-cv-02313-HRL

Plaintiff,
8
v.
9
10

United States District Court
Northern District of California

11

MERIT SYSTEMS PROTECTION
BOARD, et al.,

ORDER CERTIFYING APPEAL IS NOT
TAKEN IN GOOD FAITH AND
DENYING MOTION FOR LEAVE TO
APPEAL IN FORMA PAUPERIS
Re: Dkt. Nos. 54, 55

Defendants.

12

The court previously denied Plaintiff’s motion for leave to file a second amended

13

complaint as futile, transferred this case to the Federal Circuit to cure a lack of subject-matter

14

jurisdiction, and denied Plaintiff’s motion for an intra-district venue change as moot. Dkt. No. 50.

15

Plaintiff filed a notice of appeal to the Ninth Circuit and moved this court for leave to

16

proceed on the appeal in forma pauperis. Plaintiff appeals five issues: (1) whether the district

17

court abused its discretion by transferring his case to the Federal Circuit under 28 U.S.C. § 1631;

18

(2) whether the district court abused its discretion to deny his motion for leave to amend the

19

complaint; (3) whether the district court abused its discretion to deny his motion for an intra-

20

district venue change; (4) whether the Merit Systems Protection Board (“MSPB”) erred to

21

conclude that it lacked jurisdiction over his claims; and (5) whether it is “possible for the District

22
23
24
25
26
27
28

Court to have it both ways” by lacking jurisdiction while “proceed[ing] to strip and dispose of the
Plaintiff’s non-frivolous discrimination claims[.]” Dkt. No. 54.
The court previously granted in forma pauperis status to Plaintiff. Dkt. No. 8. Ordinarily a
party may proceed in forma pauperis on appeal if the district court granted in forma pauperis status
in the underlying action, but a party may not do so if the district court certifies the appeal has not
been taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Ellis v. United
States, 356 U.S. 674 (1958). A party makes a prima facie showing of good faith by appealing an

1
2

issue that is not plainly frivolous. Ellis, supra at 674-75.
It appears that Plaintiff has solely raised non-appealable issues.

An appealable final

3

decision, in general, is one that “ends the litigation on the merits and leaves nothing for the court

4

to do but execute the judgment.” Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.

5

271, 275 (1988) (internal quotation marks omitted) (applying 28 U.S.C. § 1291). A transfer order

6

under § 1631 is not an appealable final decision because the litigation on the merits continues in a

7

different court. Middlebrooks v. Smith, 735 F.2d 431, 433 (11th Cir. 1984). Four of Plaintiff’s

8

issues challenge the propriety of decisions by this court that did not conclude the litigation on the

9

merits of Plaintiff’s claims—that litigation continues in the Federal Circuit. As to the request for

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19

substantive review by the Ninth Circuit of the MSPB’s final decision, this court has already ruled
the Federal Circuit has exclusive jurisdiction to review the merits of that issue in Plaintiff’s case.
Dkt. No. 50 at 3-5. It therefore appears to the court that Plaintiff has raised only frivolous, nonappealable issues.
The court certifies Plaintiff’s appeal is not taken in good faith. The motion for leave to
appeal in forma pauperis is denied. This order denying in forma pauperis status for purposes of
appeal does not, however, disturb the court’s prior ruling that in forma pauperis status is proper in
the context of Plaintiff’s underlying litigation.
IT IS SO ORDERED.
Dated: 11/19/15

20
________________________
HOWARD R. LLOYD
United States Magistrate Judge

21
22
23
24
25
26
27
28
2