N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

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DONALD W. ZAPPLEY, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

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2011-5075

__________________________ Appeal from the United States Court of Federal Claims in Case No. 10-CV-299, Judge Francis M. Allegra

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Decided: August 5, 2011

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D ONALD W. Z APPLEY , S R ., of Gladstone, Michigan, pro

se.

C OURTNEY S. M CNAMARA , Trial Attorney, CommercialLitigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendantappellee. With her on the brief were T ONY W EST , Assistant Attorney General, J EANNE E. D AVIDSON , Director, and F RANKLIN E. W HITE , J R ., Assistant Director.

__________________________ZAPPLEY v. US 2

Before N EWMAN , P ROST , O’M ALLEY , Circuit Judges

. P ER C URIAM

. Donald W. Zappley (“Zappley”) appeals two orders from the United States Court of Federal Claims (“CFC”)dismissing Zappley’s wrongful discharge claim as timebarred and denying his motion for reconsideration of the dismissal order. For the reasons discussed below, we lack subject matter jurisdiction to hear this appeal; it is, therefore, dismissed

. B ACKGROUND
On May 17, 2010, Zappley filed the complaint thatgave rise to the present appeal in the CFC. The complaint raised several tort and criminal claims, a wrongful discharge claim, and disabilit y benefits claims. These claims arose from an altercation between Zappley and an African-American sailor aboard the USS Independence in July 1973. As a result of this altercation, Zappley was honorably discharged from the United States Navy onAugust 20, 1973. Zappley claims that the Navy incorrectly reported that he got into a fight with the other sailor, when he was, in fact , the victim of a “surprise attack.” In addition, Zappley contends that the Navy medical records contain incorrect statements, suggesting that he had animosity towards African-Americans. Zappley contends that these statements, coupled with the incorrect characterization of his altercation with the other sailor, caused his involuntarily discharge from the Navy.
On August 30, 2010, the United States filed a Motionto Dismiss Zappley’s tort, criminal, and wrongful discharge claims pursuant to Rule 12(b)(1), and to remand his disability benefits claims . In a November 15, 2010 order, the CFC transferred Zappley’s tort and criminal claims to the United States District Court for the WesternZAPPLEY v. US 3

District of Michigan, dismis sed as time-barred his wrongful discharge claim, and remanded his disability benefits claims to the Board for Correction of Naval Records (“BCNR”). In addition, the CFC ordered that “[o]n or before May 10, 2011, and every 6 months thereafter, [theUnited States] shall file an interim status report regarding the remand proceedings. [The United States] shallalso notify the court once the BCNR has resolved [Zappley’s] claims.” SA 1.
On December 17, 2011, the BCNR issued its decisionon remand, denying Zappley’s request for further consideration of his application. Subsequently, Zappley filed a Motion for Reconsideration of the CFC’s November 15,2010 order. The CFC found that Zappley sought reconsideration of only the dismissal of his wrongful termination claim. Because Zappley provided no basis for reconsideration, however, the CFC denied the motion on March 16, 2011.
Zappley filed a timely notice of appeal.

D ISCUSSION

I.

This court only has subjec t matter jurisdiction over appeals from final decisions of the CFC. 28 U.S.C. § 1295(a)(3) (2006) (“The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction . . . of an appeal from a final decision of the United States Court of Federal Claims.”). This so-called final judgment rule limits our jurisdiction to appeals from a decision or orderthat “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Allen v. Principi , 237 F.3d 1368, 1372 (Fed. Cir. 2001) (quoting Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 373 (1981)).ZAPPLEY v. US 4

II.
While the CFC dismissed Zappley’s wrongful termination claim, it also remanded his disability benefits claims back to the BCNR so that it could determine, for the first time, the effect on Zappley’s claims of the United States Department of Veteran’s Affairs decision to grant Zappley a ten-percent disability rating. “The [CFC’s] decision in this case was, in essence, a remand to the [BCNR] for adjudication in the first instance of [Zappley’s claim] . . . . As such, it was not a final or der or final decision” because it did not leave the CFC in the position where there was nothing for it to do but enter judgment. Wood v. Social Security Admin. , 571 F.3d 1359, 1362 (Fed. Cir. 2009) (holding that a Board order remanding a claim to the field office for further adjudication was not a final order or decision). Here, the CFC still must address the merits of Zappley’s disability benefits claims in light of the BCNR’s decision on remand. The CFC has not, moreover, enteredfinal judgment pursuant to Federal Rule of Civil Procedure 54(b) with respect to the dismissal of Zappley’s wrongful termination claim. The CFC’s order dismissing this claim, therefore, is not a final decision or order that we have jurisdiction to hear.
In some instances, a non-final decision is appealable ifit qualifies as a collateral order under the standard announced in Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541, 545-47 (1949). An orde r is considered collateral if it: “[C]onclusively determine[d] the disputed question, resolve[d] an important issu e completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978). The CFC’s dismissal of Zappley’s wrongful termination claim is not a “collateral order” because the decision is not effectively unreviewable on appeal from the CFC’s even tual final judgment. OnceZAPPLEY v. US 5

the CFC decides the merits of Zappley’s disability benefits claims, Zappley can appeal any issues he believes were not decided in accordance with law.
Because the order dismissing Zappley’s wrongful discharge claim is not a final decisi on or order, and it is not acollateral order, we do not have subject matter jurisdiction to hear this appeal. Accordingly, this appeal is dismissed.

DISMISSED