
    In re Larry N. ROOD, Billie A. Rood, and J. Byron Holcomb, Petitioners.
    No. MISC. 766.
    United States Court of Appeals, Federal Circuit.
    June 3, 2004.
    Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.
   ORDER

LOURIE, Circuit Judge.

Larry N. Rood, Billie A. Rood, and their attorney, J. Byron Holcomb, on behalf of the Roods and himself, petition for a writ of mandamus to direct the judge of the Court of Federal Claims who is presiding over their case to vacate his order denying their motion to recuse, to order the judge be recused, and for other related relief.

The Roods moved for the judge to re-cuse himself. They alleged that he had a personal bias or prejudice against them and their attorney and that his partiality might reasonably be questioned. The basis of the motion sprang from an earlier contentious case in which counsel filed a judicial misconduct complaint against the same judge.

On May 12, 2004, the trial court denied the motion noting that he did not know the plaintiffs personally and had not previously presided over a case involving them. He also noted that the earlier misconduct complaint was dismissed, the Federal Circuit affirmed the earlier case on the merits, and there was no evidence indicating impartiality in this case.

A writ of mandamus will issue only in exceptional circumstances to correct a clear abuse of discretion or usurpation of judicial power by a trial court. In re Calmar Inc., 854 F.2d 461, 464 (Fed.Cir. 1988). A party who seeks a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

The Roods and Holcomb have not shown that their right to a writ is clear and indisputable. The charges stem from conduct in an earlier case where the same charges were made. That case was affirmed on appeal. Further, the Roods and Holcomb have not shown that they have no other means of attaining relief. They may seek review of the denial of their recusal motion on any appeal after final judgment.

Accordingly,

IT IS ORDERED THAT:

The petition for writ of mandamus is denied.  